author: TERRY McCALL, Justice.

text:
    STATE of Texas, Appellant v. Dwayne Heath WOOLDRIDGE, Appellee.
    No. 11-03-00186-CR.
    Court of Appeals of Texas, Eastland.
    July 21, 2005.

      James Eidson, Dist. Atty., Patricia Dyer, Asst. Crim. Dist. Atty., Abilene, Matthew W. Paul, State Prosecuting Atty., for State.
    Richard C. Mabry, Abilene, for Appel-lee.
    Panel consists of: ARNOT, C.J., and WRIGHT, J., and McCALL, J.
   Opinion

TERRY McCALL, Justice.

Opinion on Remand from Court of Criminal Appeals

The State appealed on the ground that the trial court illegally sentenced appellee. On original submission, we dismissed the State’s appeal for want of jurisdiction. The Court of Criminal Appeals reversed our judgment and remanded the cause for consideration of the merits of the State’s appeal. We find that the trial court’s sentence of appellee was legal; and, therefore, we affirm the judgment of the trial court.

The Sentence

The jury convicted appellant of the second degree felony offense of aggravated assault with a deadly weapon. TEX. PEN. CODE ANN. § 22.02(a)(2) & (b) (Vernon Supp.2004-2005). The indictment contained two enhancement paragraphs alleging prior felony convictions. The trial court ruled that the prior convictions could not be used for enhancement purposes. The trial court did not make a finding of “true” or “untrue” on either of the prior convictions. The trial court assessed punishment at seven years confinement, a sentence within the statutory range of punishment for a second degree felony. TEX. PEN. CODE ANN. § 12.33 (Vernon 2003).

Issue Presented

The State argues that the trial court erred in refusing to use the prior convictions for enhancement purposes. Therefore, the State contends that the trial court illegally sentenced appellee by refusing to sentence him to a minimum of 25 years as a habitual offender.

The Trial Court’s Enhancement Ruling

The State sought enhancement of appellee’s sentence under TEX. PEN. CODE ANN. § 12.42(d) (Vernon Supp. 2004-2005). Section 12.42(d) provides:

If it is shown on the trial of a felony offense other than a state jail felony punishable under Section 12.35(a) that the defendant has previously been finally convicted of two felony offenses, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction he shall be punished by imprisonment in the institutional division of the Texas Department of Criminal Justice for life, or for any term of not more than 99 years or less than 25 years.

TEX. PEN. CODE ANN. § 12.42(e) (Vernon Supp.2004-2005) provides:

A previous conviction for a state jail felony punished under Section 12.35(a) may not be used for enhancement purposes under Subsection (b), (c), or (d).

The enhancement paragraphs alleged two prior felony convictions for the offenses of theft of a motor vehicle. One of the offenses occurred in 1990, and the other offense occurred in 1992. Both of the offenses involved theft of motor vehicles with values of $750 or more but less than $20,000. When the offenses were allegedly committed, theft of property with a value of $750 or more but less than $20,000 was a third degree felony. See former TEX. PEN. CODE § 31.03(e)(4)(A) (1989)(current version at TEX. PEN. CODE ANN. § 31.03 (Vernon Supp.2004-2005)). In 1993, the legislature changed Section 31.03 to provide that theft of property with a value of $1,500 or more but less than $20,000 is a state jail felony and that theft of property of $500 or more but less than $1,500 is a Class A misdemeanor. See Section 31.03(e)(3) & (4); Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 1.01, sec. 31.03, 1993 Tex. Gen. Laws 3586, 3637-38.

Based on the 1993 change to Section 31.03, the trial court found that the prior convictions alleged against appellee had been changed to convictions for state jail felonies and, therefore, could not be considered for enhancement purposes under Section 12.42(d). The trial court then assessed punishment at seven years confinement.

The trial court was mistaken in finding that the prior convictions could not be considered for enhancement purposes. The alleged convictions were for offenses that were third degree felonies when they were committed. Therefore, the prior convictions could appropriately be used as felony enhancements under Section 12.42(d). Castaneda v. State, 135 S.W.3d 719, 724 (Tex.App.-Dallas 2003, no pet’n). As explained below, the trial court’s mistaken legal ruling does not affect the outcome of this appeal.

Legality of Sentence

Harris v. State, 153 S.W.3d 394 (Tex.Cr.App.2005), is the controlling authority for this appeal. In Harris, the State submitted evidence of prior felony convictions for enhancement purposes at the punishment phase of the trial. On October 28, 2002, after the punishment phase of the trial, the trial court sentenced the defendant to 10 years confinement. At that time, the trial court did not make findings on the record that the enhancement allegations were true. The next day, the trial court recalled the defendant for a second sentencing hearing, found the enhancement allegations true, and re-sentenced the defendant to 25 years confinement under Section 12.42(d). Harris v. State, supra at 395.

In Harris, the defendant argued that the second sentence violated his double jeopardy rights. The State argued that the initial 10-year sentence was unlawful because the trial court was required to sentence appellant to a minimum of 25 years under Section 12.42(d) if the two prior felony convictions were found to be true. The Court of Criminal Appeals explained that, without findings of “true” to the enhancement allegations at the first sentencing hearing, the initial 10-year sentence was a valid and authorized sentence. The Court of Criminal Appeals explained:

Here, the facts do not support the contention that Appellant’s [first] sentence was statutorily unauthorized at the time it was pronounced. When Appellant was sentenced, the trial court did not specifically find the enhancements to be true on the record. The court then sentenced Appellant within the range of punishment for an un-enhanced offense .... The record [of the first sentencing hearing] shows that the trial judge received the evidence of the prior convictions and considered them, but not that he found them true. The trial court erred to then find them true at a second sentencing hearing. This second attempt at sentencing violated Appellant’s rights under the Double Jeopardy Clause. Because the ten-year sentence was a valid and authorized sentence under the Texas Penal Code, the trial court’s second pronouncement of a 25-year sentence the following day was an unconstitutional 15-year increase.

Harris v. State, supra at 396-97.

Thus, the Harris court held (1) that the trial court improperly re-sentenced the defendant after initially sentencing him to an authorized, valid sentence; (2) that the original 10-year sentence was valid and authorized; (3) that the second sentence violated the defendant’s double jeopardy rights; and (4) that the second sentence was an unauthorized and unconstitutional 15-year increase over the initial sentence. See State v. Aguilera, 165 S.W.3d 695, 697 (Tex.Cr.App.2005).

In this case, without findings of “true” to the enhancement allegations at the punishment hearing, the trial court’s seven-year sentence of appellant was valid and authorized. The sentence was within the statutory range of punishment for second degree felonies. Under the principles of Harris, an attempt to re-sentence appel-lee as a habitual offender would be invalid and unconstitutional.

The fact that the trial court made a mistaken legal ruling in finding that the prior convictions could not be used for enhancement purposes does not change the result of this appeal. The Harris court explained that incorrect or mistaken legal rulings that lead to a sentence raise a double jeopardy bar to a greater sentence. Harris v. State, supra at 402, n. 9.

The State’s issue is overruled.

This Court’s Ruling

The judgment of the trial court is affirmed.

      . Wooldridge v. State, 158 S.W.3d 484 (Tex.Cr.App.2005).


source: Caselaw Access Project

author: W.G. ARNOT, III, Chief Justice.

license: Public Domain

text:
    Bruce Douglas WILSON, Appellant v. STATE of Texas, Appellee.
    No. 11-03-00282-CR.
    Court of Appeals of Texas, Eastland.
    July 21, 2005.

      F. Clinton Broden and Franklyn Mickel-sen, Broden & Mickelsen, Dallas, for Appellant.
    Stephen E. Bristow, Dist. Atty., Graham, for State.
    Panel consists of: ARNOT, C.J., and WRIGHT, J., and McCALL, J.
   Opinion

W.G. ARNOT, III, Chief Justice.

The jury convicted appellant, Bruce Douglas Wilson, of two counts of aggravated sexual assault of a child. The jury assessed his punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for a term of 35 years on each count. The jury also imposed fines in the amount of $10,000 on each count. Appellant attacks his conviction in a single issue on appeal. He contends that the trial court erred in denying his motion to require the State to make an election regarding the specific incidents of sexual assault for which it sought to convict appellant. We affirm.

Appellant was charged in a two-count indictment with committing acts of aggravated sexual assault against two sisters. The indictment alleged as follows:

[Count One] Bruce Douglas Wilson, hereinafter styled Defendant, on or about the 22nd day of September 2002, and before the presentment of this indictment, in the County and State aforesaid, did then and there, intentionally or knowingly cause the penetration of the mouth of [V.V.], a child who was then and there younger than 14 years of age and not the spouse of the Defendant, by Defendant’s sexual organ;
[Count Two] Bruce Douglas Wilson, in the County of Stephens and State aforesaid, on or about the 22nd day of September 2002, and before the presentment of this indictment, did then and there, intentionally or knowingly cause the penetration of the female sexual organ of [A.V.], a child who was then and there younger than 14 years of age and not the spouse of the Defendant, by Defendant’s finger.

The evidence presented at trial indicated that appellant committed multiple acts of sexual assault upon the girls over the course of several weeks. Appellant detailed these acts in a written statement which the State offered into evidence. His statement provided in relevant part as follows:

I have known S.V. and her two daughters, A.V. and V.V. for approximately five years. S.V. was a friend of my ex-wife, Orabel Wilson. S.V. used to take care of my dogs when I was gone. Between six and eight weeks ago, S.V. invited me to spend the night at their house. I was on the double bed in the living room. It was around midnight and everybody had gone to bed except for A.V. and I. A.V. and I were talking and she was telling me she was going to be a professional massuse. I asked her if she would give me a massage for twenty dollars. A.V. gave me the massage and I was massaging her back. We started kissing and it grew into a making out situation. At one point she was one top of me, dry humping me. We then got partially undressed. Both of us had our clothes about half way off. During this time, I touched her breast and I believe I touched her vagina. This would have been both on the outside and inside of her vagina. She was masturbating my penis and doing oral sex on my penis. She didn’t sleep with me, she went to bed. Three or four weeks ago, I took S.V., A.V., V.V. and [S.V.’s boyfriend] with me on my truck. We went east of here, finally ending up in Orlando, Florida. The trip lasted approximately eleven days. We went to Universal Studios. During the trip, me and A.V. did a little kissing and a little massaging. This occurred four or five times. It was always in the truck. I rubbed her vagina a little bit. This would be both on the outside of her vagina and inside her vagina. That was all that happened during the trip to Florida. Since we returned, we have been together about three times. These would have been either at S.V.’s house or in my truck while it was parked next to their house. On one occasion, both A.V. and V.V. were in bed with me. This was in the house. V.V. was wanting to play I Dare You. For example, V.V. would dare A.V. to suck on my penis. A.V. would do it. A.V. dared V.V. to do the same thing and V.V. sucked on my penis. I didn’t want to be dared too much, but I was snuggling with them and kissing them. It started out we were all dressed and then everybody ended up undressed. I kissed both of them on their breast and on their vagina. I was mostly kissing them on them lips, they were French kissing me a lot. I would say that I played I Dare You with both of the girls probably three or four times. These games would take place either in the house or in the truck. The last time I was with one of the girls was about ten days ago. I was with A.V. It was in their house. I was kissing her and massaging her. As best as I can recall, she was masturbating me. I was massaging her .all over. We were French kissing. This was around 2:00 a.m. We were in the bed in the living room. I was holding her and touching her all over. I might have touched her breast. I touched her on the outside and inside of her vagina. We never had sex. [S.V.’s boyfriend] walked in and said A.V. can’t sleep with [me] or something to that effect. A.V. then went to bed in her room. That was the last time I saw her.

The State also presented testimony from A.V. and V.V. regarding appellant’s conduct with them. A.V. testified that appellant penetrated her sexual organ with his finger and his penis during the trip to Florida. She also testified that appellant made contact with her sexual organ with his mouth during the trip. These acts occurred on more than one occasion during the trip to Florida. A.V. further testified that these acts occurred at her home in Stephens County on several occasions.

V.V. also testified that appellant made contact with her sexual organ with his mouth during the trip to Florida and that he penetrated her sexual organ with his finger on the trip. She stated that this conduct occurred “a lot” in Stephens County both before and after the trip to Florida. V.V. also testified about an occasion when appellant put his penis in her mouth. She testified that this act occurred in Stephens County.

Appellant did not testify at trial. He rested at the conclusion of the State’s casein-chief without presenting a defense. Defense counsel made the following statement during closing argument of the guilt/innocence phase of trial: “My client ... has never denied that this happened. He confessed to it, not just once, but he was let out of jail — he was let out on bond, got out of jail, and reconfessed to the crime again.”

Appellant filed a written, pretrial motion asking the court to require the State to make an election as to the acts upon which it would rely in seeking to convict him. Appellant sought the following relief in the motion:

[Appellant] requests that prior to trial the State be required to elect which act of sexual conduct and the specific date of such, if any, that the State will rely upon in proving the allegations in the indictment. [Appellant] moves the Court, at the close of the evidence, to require the State to elect the particular date and incident of conduct that it relies upon in seeking the conviction of [appellant].

Appellant asserted in the motion that an election was necessary in order to provide him with adequate notice of the charges against him and to protect him from double jeopardy implications. The trial court considered the motion immediately preceding jury selection. In denying the motion, the trial court stated that an election by the State was unnecessary because of the instructions which would be included in the court’s charge with respect to the jury’s consideration of evidence pertaining to extraneous offenses.

We note at the outset of our analysis that the issues pertaining to the requirement for the State to make an election are currently under review by the Texas Court of Criminal Appeals. The court has granted petitions for discretionary review in two recent cases: Farr v. State, 140 S.W.3d 895 (Tex.App.-Houston [14th Dist.] 2004, pet’n granted), and Phillips v. State, 130 S.W.3d 343 (Tex.App.Houston [14th Dist.] 2004, pet’n granted). In Phillips, the Fourteenth Court of Appeals determined that an error regarding the requirement for the State to make an election is constitutional and, therefore, subject to harm analysis under the constitutional error standard of réview. TEX. R.APP.P. 44.2(a); Phillips v. State, supra at 350-52. The court in Phillips expressly disagreed with previous determinations by the 10th and 12th Courts of Appeals that election error is non-constitutional in nature. See Cates v. State, 72 S.W.3d 681, 696-97 (Tex.App.-Tyler 2001, no pet’n); Wilson v. State, 3 S.W.3d 223, 226 (Tex.App.-Waco 1999, pet’n ref'd). In Farr, the Fourteenth Court of Appeals followed its previous holding in Phillips. Farr v. State, supra at 900. The distinction between constitutional versus non-constitutional error is one of the two issues for which the Court of Criminal Appeals has granted review in Phillips and Farr. The court has also granted review upon the State’s request for it to reexamine its holding in O’Neal v. State, 746 S.W.2d 769 (Tex.Cr.App.1988).

At this time, the Court of Criminal Appeals’ opinion in O’Neal constitutes the controlling authority regarding the requirement for the State to make an election. The court held in O’Neal that the State must elect the specific act on which it will rely for conviction when the indictment alleges one sexual assault but the evidence shows multiple sexual assaults. O’Neal v. State, supra at 771; Wilson v. State, supra at 225. Before the State rests, the trial court has discretion in directing the State to make an election. O’Neal v. State, supra at 772; Phillips v. State, supra at 349; Farr v. State, supra at 898. Once the State rests its case-in-chief, upon a timely request by the defendant, the trial court must order the State to make an election and the failure to do so constitutes error. O’Neal v. State, supra at 772; Phillips v. State, supra at 349; Four v. State, supra at 898.

The State argues that the trial court was not required to grant appellant’s request to require an election because appellant presented his request prior to the close of the State’s case-in-chief. See O’Neal v. State, supra at 772. We disagree with the State’s contention that appellant’s motion was premature. As indicated above, appellant asked the trial court to require the State to make an election “at the close of the evidence” in his pretrial motion. Thus, appellant sought to compel an election by the State at a time when the State was required to make an election under the holding in O’Neal.

Having determined that appellant’s request for an election was timely, we must next consider whether the denial of the motion constituted error. We conclude that error occurred with respect to count two of the indictment charging appellant with digitally penetrating A.V.’s sexual organ. However, error did not occur regarding count one of the indictment charging appellant with penetrating Y.Y.’s mouth with his sexual organ.

The evidence revealed that appellant committed multiple acts of sexual assault upon A.V., including several instances of digital penetration. The evidence did not focus upon a single episode of digital penetration. O’Neal v. State, supra at 772-73. Instead, the evidence was general in nature. The trial court’s denial of appellant’s request for an election constituted error with respect to count two of the indictment because there was evidence that appellant committed the act charged in this count on multiple occasions.

The evidence regarding appellant’s conduct with V.V. also revealed that appellant committed multiple acts of sexual assault upon V.V. Unlike the evidence of multiple instances of digital penetration with A.V., however, the evidence only revealed one instance wherein V.V. performed oral sex upon appellant. Specifically, the prosecutor asked V.V. the following question: “Was there an occasion — was there some time, [V.V.], that he put his thing in your mouth?” (Emphasis added) V.V. answered “[y]es” to this question. Furthermore, appellant’s statement only described one occasion wherein V.V. performed oral sex upon him. Absent evidence that V.V. performed oral sex upon appellant on more than one occasion, the trial court did not err in denying appellant’s request for an election with respect to count one of the indictment.

Having determined that error occurred with respect to count two charging appellant with digitally penetrating A.V., we must next determine if the harm, if any, caused by the error constituted reversible error. As noted previously, there is a split of authority among our sister courts regarding the harm analysis to be used in evaluating election errors which the Court of Criminal Appeals will likely resolve in the future. In the interim, we agree with the Fourteenth Court of Appeals’s determination in Phillips that election error is one of constitutional magnitude based upon the purposes of the election requirement. Phillips v. State, supra at 352. We are aided in this decision by the Court of Criminal Appeals’s recent opinion in Ngo v. State, No. PD-0504-04, — S.W.3d -, 2005 WL 600353 (Tex.Cr.App. March 16, 2005). The court stated in Ngo that jury unanimity is one of the purposes of requiring the State to make an election. Ngo v. State, supra at *6, — S.W.3d at -. The court further noted that jury unanimity is required by the Texas Constitution in felony cases. Ngo v. State, supra at *4, — S.W.3d at -; see Francis v. State, 36 S.W.3d 121, 126 (Tex.Cr.App.2000)(Womack, J., concurring)(citing TEX. CONST, art. V, § 13).

Under the constitutional error standard of review set out in Rule 44.2(a), we must reverse unless we find beyond a reasonable doubt that the error did not contribute to appellant’s conviction under count two. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). In order to apply the standard set out in Rule 44.2(a), we must “calculate, as nearly as possible, the probable impact of the error on the jury in light of the other evidence.” McCarthy v. State, 65 S.W.3d 47, 55 (Tex.Cr.App.2001), cert. den’d, 536 U.S. 972, 122 S.Ct. 2693, 153 L.Ed.2d 862 (2002); Wesbrook v. State, 29 S.W.3d 103, 119 (Tex.Cr.App.2000), cert. den’d, 532 U.S. 944, 121 S.Ct. 1407, 149 L.Ed.2d 349 (2001). If there is a reasonable likelihood that the error materially affected the jury’s deliberations, then the error is not harmless beyond a reasonable doubt. Wesbrook v. State, supra at 119 (citing Satterwhite v. Texas, 486 U.S. 249, 108 S.Ct. 1792, 100 L.Ed.2d 284 (1988)). While the most significant concern must be the error and its effects, the presence of overwhelming evidence supporting the finding in question can be a factor in the evaluation of harmless error. Wesbrook v. State, supra at 119. If an appellate court rules that an error is harmless, it is in essence asserting that the nature of the error is such that it could not have affected the jury. Wesbrook v. State, supra at 119.

Appellant confessed to committing the offense charged in Count Two on multiple occasions in a written statement which was admitted at trial without objection. Appellant provided explicit details about the assaults in his statement. This evidence was obviously overwhelming. Furthermore, appellant made no effort at trial to recant his confession. In light of appellant’s confession that he committed the charged offense on multiple occasions, we conclude that the election error pertaining to Count Two was harmless. Moreover, it appears that the election error benefitted appellant by protecting him against future prosecutions. Appellant’s sole issue is overruled.

The judgment of the trial court is affirmed.

      . The trial court ordered that the two 35-year sentences are to run cumulatively. TEX. CODE CRIM. PRO. ANN. art. 42.08 (Vernon Pamph. Supp.2004-2005).

      . An election is "some action that excludes or limits the jury’s consideration of an offense.” Ex parte Goodbread, 967 S.W.2d 859, 861 n. 2 (Tex.Cr.App.1998).

      . Although appellant’s statement referred to the parties by their names, we refer to the parties by initials so as to protect the identity of the children.

      . "S.V.” is the mother of A.V. and V.V. A.V. and V.V. were 12 and 11, respectively, at the time of trial,

      . Appellant submitted a supplement to his written statement which provided in relevant part as follows:
      [Appellant] is not guilty of aggravated sexual assault, due to the entrapment caused by the mother’s neglect in allowing the girls to watch XXX rated movies and leaving the girls alone with him with the movies, and smoking marijuana (in violation of her probation/testing dirty on a U A test). The second hand smoke from the marijuana must have caused the bad judgement of [appellant] to get involved with minors, as he has never been involved with minors before, (nor will he ever be again). He's planning on getting married to Crystal Baxter, Age 25. [Appellant] does not smoke/use marijuana or any other drugs, nor cigarettes or alcohol.
      The supplemental written statement was also admitted into evidence.

      . Appellant's contention that an election by the State would protect him against potential double jeopardy implications is incorrect. The State’s failure to make an election actually enhances an accused’s double jeopardy protections. If the State does not make an election, it is barred from prosecuting in the future any offense within the scope of the indictment and for which evidence was introduced at trial. See Rodriguez v. State, 104 S.W.3d 87, 91 (Tex.Cr.App.2003); Ex parte Goodbread, supra at 860-61.

      . The charge of the court given to the jury to determine guilt/innocence contained the following instruction:
      The defendant is on trial solely on the charge contained in the indictment. You are instructed that if there is any testimony before you in this case regarding the defendant having committed offenses other than the offense alleged against him in the indictment in this case, you cannot consider said testimony for any purpose unless you find and believe beyond a reasonable doubt that the defendant committed such other offenses, if any were committed, and even then you may only consider the same for the purpose of determining knowledge, identity or intent, or absence of mistake or accident, if it does, and for no other purpose.

      . Appellant stated as follows in his statement: “On one occasion, both A.V. and V.V. were in bed with me. This was in the house. V.V. was wanting to play I Dare You. For exam-pie, V.V. would dare A.V. to suck on my penis. A.V. would do it. A.V. dared V.V. to do the same thing and V.V. sucked on my penis.” (Emphasis added)

      . See Footnote No. 6 above.


author: JAN P. PATTERSON, Justice.

text:
    CITY OF CARROLLTON, Appellant v. TEXAS COMMISSION ON ENVIRONMENTAL QUALITY, Robert D. Balfanz, Truman Clem, Bettye Clem, C.T. Clem, Town of Hebron, Joe Everett, Julie Everett, John O. Grady, Ron Mabra, Willie Mabra, Charles Morris, Randall Morris and Sheri Morris, Appellees.
    No. 03-04-00486-CV.
    Court of Appeals of Texas, Austin.
    July 22, 2005.

      James Chrisman Phillips, Robert H. Lloyd, Georgia N. Crump, Nathan M. Block, Lloyd Gosselink, Blevins, Rochelle & Townsend, P.C., Austin, TX, and R. Clayton Hutchins, City Attorney, Carroll-ton, TX, for Appellant.
    Linda B. Secord, Mary E. Smith, Jane E. Atwood, Assistant Attorneys General, Natural Resources Division, Austin, TX, for Texas Commission on Environmental Quality.
    Robert Balfanz, Stateline, NV, pro se.
    J. Mark McPherson, McPherson & Associates, P.C., Dallas, TX, for Truman Clem, Bettye Clem, C.T. Clem, Lori Clem.
    Cobby A. Caputo, Emily W. Rogers, Bickerstaff, Heath Smiley, Pollan, Kever & McDaniel, LLP, Austin, TX, for Town of Hebron.
    Joe Everett, Carrollton, TX, pro se.
    Julie Everett, Carrollton, TX, pro se.
    John O. Grady, Carrollton, TX, pro se.
    Ron Mabra, Carrollton, TX, pro se.
    Willie Mabra, Carrollton, TX, pro se.
    Randall Morris, Carrollton, TX, pro se.
    Sheri Morris, Carrollton, TX, pro se.
    Before Chief Justice LAW, Justices PATTERSON and PURYEAR.
   OPINION

JAN P. PATTERSON, Justice.

The Texas Constitution allows a home rule city to be governed, generally, by ordinances adopted pursuant to its municipal charter. The narrow question presented here is whether a home rule city, such as appellant City of Carrollton, that acquired a Certificate of Convenience and Necessity to provide water and sewer service may revoke or discontinue its water certificate without notice and hearing. Texas Water Code section 13.254(a) allows for revocation of a water certificate after notice and hearing. Tex. Water Code Ann. § 13.254(a) (West 2000). The City of Carrollton sought a declaratory judgment that, because it is a municipal corporation that is not required to obtain a certificate prior to providing water or sewer service, the Texas Commission on Environmental Quality must grant its petition to cancel its certificate without notice and hearing: The district court denied the requested declaratory judgment.

In four issues, Carrollton appeals, contending that in failing to grant its petition ■without a notice and hearing the Commission’s actions are in violation of (i) the separation of powers doctrine of the Texas Constitution, (ii) the Texas Water Code and Texas Local Government Code, (iii) the powers delegated to the Commission, and (iv) the Commission’s own rules. We hold that, once a water certificate is acquired by a home rule city, the Texas Water Code provides the sole mechanism for decertification, and notice and hearing is required. We therefore affirm the judgment of the district court.

FACTUAL AND PROCEDURAL BACKGROUND

In 1979, Carrollton acquired a certificate covering areas both inside and outside its incorporated limits and including the corporate limits of the neighboring Town of Hebron, all within Dallas and Denton counties. In 1990, the Hebron Water Supply Corporation (“Hebron WSC”) obtained a certificate that dually certified it to serve an area located within Hebron that Car-rollton’s certificate already covered. In 1990, Carrollton requested that the Commission amend Carrollton’s certificate to reflect the dual certification caused by the overlapping certificates.

In 1997, Hebron WSC, with the Commission’s approval and by agreement with Carrollton, transferred its water system to Carrollton. The Commission cancelled Hebron WSC’s certificate and amended Carrollton’s to reflect that the area was no longer dually certified and that Carrollton held the only certificate for Hebron WSC’s former service area. Thus, Hebron and the boundaries of the former Hebron WSC lie within Carrollton’s certificated service area.

In September 2001, Carrollton submitted a petition to the Commission to cancel its certificate. Because it is a home rule city and it affirmed its willingness to continue serving existing customers, Carroll-ton contended that the Commission should ministerially grant its petition. The Commission disagreed, advising the city that it must provide notice — and a hearing, if requested — to its customers pursuant to water code sections 13.250 and 13.254(a). See id. §§ 13.250, .254 (West 2000). Car-rollton subsequently published notice of its request to cancel, and several Hebron customers filed a protest with the Commission, which was referred to the State Office of Administrative Hearings for a contested case hearing.

Carrollton filed a petition for declaratory judgment. The case was submitted to the district court on an agreed record and with certain factual stipulations. Among the agreed facts were that Carrollton is a “retail public utility” as that term is defined in the water code; Carrollton is a home rule city that has not ceded exclusive original jurisdiction over utility rates, operations, and services within its incorporated limits to the Commission; and Car-rollton possesses a water certificate that encompasses portions of the Town of He-bron. The district court denied Carroll-ton’s declaratory relief and rendered judgment in favor of appellees, and this appeal ensued.

ANALYSIS

The Controversy

Carrollton contends generally that, because it is a home rule city, the water code provisions and related regulations pertaining to certificates of convenience and necessity do not apply to it. Carrollton specifically contends that once its city council passed a resolution to cancel its certificate, the Commission had no discretion to act other than to grant its petition for decerti-fication. Carrollton urges that the action by the Commission in requiring a notice- and-hearing process is a violation of the constitutional separation of powers and of the statutory and administrative powers of the agency.

Carrollton further contends that its charter and the home rule amendment exempt it from the reach of the water code because the legislature did not extend its provisions to home rule municipalities with “unmistakable clarity.” It argues that the home rule amendment specifically exempts it from the provisions of the water code relating to termination of the certificate. See Tex. Const, art. XI, § 5. From the general grant of power to home rule cities, Carrollton asserts that “it does not appear” — at least not with unmistakable clarity — that the legislature intended to limit the ability of a municipality to decide where and how to provide utility service. See Proctor v. Andrews, 972 S.W.2d 729, 733 (Tex.1998); Dallas Merck. & Concessionaire’s Ass’n v. City of Dallas, 852 S.W.2d 489, 490-91 (Tex.1993). The Commission responds that certificates are creatures of statute and part of the comprehensive regulatory system for utilities, and that the water code specifies with unmistakable clarity that they may be cancelled only with notice and hearing.

We are therefore asked to square the general grant of power to a home rule city to operate its own water system with the powers granted to the Commission to “establish a comprehensive regulatory system” for retail public utilities for the benefit of consumers and utilities. See Tex. Water Code Ann. §§ 13.001, .250, .254 (West 2000).

Because this case involves issues of statutory construction, our review is de novo. City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex.2003). We turn first to the grant of powers to a home rule city.

Home Rule City

The Texas Constitution authorizes cities exceeding 5000 inhabitants to adopt a home rule charter. Tex. Const, art. XI, § 5. “Adopted in 1912, the home rule amendment ‘altered the longstanding practice of having special charters individually granted and amended by the legislature’ for the State’s larger cities.” Black v. City of Killeen, 78 S.W.3d 686, 692 (Tex.App.-Austin 2002, pet. denied) (quoting 22 David B. Brooks, Texas Practice: Municipal Law and Practice § 1.17 (2d ed.1999)). Although home rule cities have a vast amount of power, their authority is not without limitations. Cities adopting a home rule charter have the full power of self government except that

no charter or any ordinance passed under said charter shall contain any provision inconsistent with the Constitution of the State, or of the general laws enacted by the Legislature of this State....

Tex. Const, art. XI, § 5. Thus, home rule cities look to the legislature not for grants of power, but for limitations on their power. Wilson v. Andrews, 10 S.W.3d 663, 666 (Tex.1999) (legislature can “limit or augment” a home rule city’s self-governance); Dallas Merck. & Concessionaire’s Ass’n, 852 S.W.2d at 490-91; Forwood v. City of Taylor, 147 Tex. 161, 214 S.W.2d 282, 286 (1948) (“The result [of the home rule amendment] is that now it is necessary to look to the acts of the legislature not for grants of power to such cities but only for limitations on their powers.”); Black, 78 S.W.3d at 692.

Carrollton enacted a home rule charter in 1961. Under the city’s home rule charter, it is clear the grant of powers is broad:

Section 1.0k Powers.
The City of Carrollton may exercise all powers that now are or hereafter may be granted to municipalities by the Constitution or the laws of the State of Texas [including] all of the powers conferred upon cities by what is known as the Home Rule Amendment to the Constitution ....

As to utilities, the charter provides

Section 8.01. Powers of the city.
In addition to the city’s power to buy, own, construct, maintain, and operate utilities, within or without the city limits, and to manufacture and distribute electricity, gas or anything else that may be needed or used by the public, the city shall have further powers as may now or hereafter be granted under the Constitution and laws of the State of Texas.

Carrollton’s powers include the use and occupancy of public properties and to require just and reasonable compensation for the use of property, including rights-of-way by public utilities and providers of water services.

The powers included in the charter are consistent with those granted to municipalities by statute. The authority to regulate water and sewer service in a manner consistent with the best interests of its citizens is a power generally granted to municipalities. Texas Local Government Code section 402.001 authorizes a municipality to “purchase, construct, or operate a utility system inside or outside the municipal boundaries and [to] regulate the system in a manner that protects the interests of the municipality.” See Tex. Loc. Gov’t Code Ann. § 402.001(b) (West 1999). It may also “exercise the exclusive right to own, construct, and operate a water system” for its residents. Id. § 402.017 (West 1999).

The Texas Water Code

Certificates of Convenience and Necessity

That the legislature intended certificates of convenience and necessity to be creatures of statute is clear. The general purpose of certification is to provide for a rational distribution of public utility services within defined geographical areas so that, within a specified area, the provider of utility service is “unhampered by competitive forces.” Public Util. Comm’n v. Texland Elec. Co., 701 S.W.2d 261, 265 (Tex.App.-Austin 1985, writ ref'd n.r.e.) (quoting Bradley Toben, Certificates of Convenience and Necessity Under the Texas Public Utility Regulatory Act, 28 Baylor L.Rev. 1115, 1116 (1976)). The Commission issues a certificate authorizing the holder to provide service to customers within a specified area. Tex. Water Code Ann. § 13.242 (West 2000). The certificate grants the holder a monopoly within its service area. Id. Thus, certification is a benefit to its holder because generally no other utility may operate within the area, and the Commission is given authority to issue orders against any provider that transgresses into another’s area. Id. §§ 13.242(a), .252 (West 2000). The certificate obligates its holder to provide continuous and adequate service to every customer and every qualified applicant within its area. Id. § 13.250.

Unless otherwise specified, then, no public utility may render service without first obtaining from the Commission a certificate that the present or future public convenience and necessity require or will require the installation, operation, or extension of such services. Id. § 13.242(a). The factors the Commission must consider in determining whether to award a certificate are expressions of “legislative standards” guiding the Commission in its administration of the certification process. Texland Elec. Co., 701 S.W.2d at 266. The water code also provides for discontinuation of a certificate: “Unless the commission issues a certificate that neither the present nor future convenience and necessity will be adversely affected,” a holder of a certificate may not “discontinue, reduce, or impair” service except for nonpayment or nonuse. Tex. Water Code Ann. § 13.250(b). Thus, certification provides stability and a set of rights to the utility, residents, and customers living within the certificated area.

Regulatory Framework for “Retail Public Utilities”

Chapter 13 of the water code was “adopted to protect the public interest inherent in the rates and services of retail public utilities.” Id. § 13.001(a). It speaks with unmistakable clarity to the comprehensive regulation of these utilities. Finding that retail public utilities are “by definition monopolies in the areas they serve,” that “normal forces of competition” do not operate, and that regulation will serve as a “substitute for competition,” the legislature passed Chapter 13 of the water code to govern retail public utilities with the stated purpose

to establish a comprehensive regulatory system that is adequate to the task of regulating retail public utilities to assure rates, operations, and services that are just and reasonable to the consumers and to the retail public utilities.

Id. § 13.001. Carrollton argues that it is difficult to square the notion that home rule municipalities are charged to regulate their water systems in the best interest of their citizens with the regulatory framework provided by the legislature in the water code and by the Commission in its rules.

It is true that the Texas Local Government Code provides that a home rule municipality may exercise the exclusive right to own, construct, and operate a water system for the use of the municipality and its residents and may take the “necessary action to operate and. maintain the system.” Tex. Loc. Gov’t Code Ann. § 402.017. A home rule municipality may also operate a utility system inside or outside of its municipal boundaries. Id. § 402.001. Texas Water Code section 13.042(a) provides for municipal jurisdiction over utilities operating within the municipality’s corporate limits:

Subject to the limitations of this chapter and for the purpose of regulating rates and services so that those rates may be fair, just, and reasonable and the services adequate and efficient, the governing body of each municipality has exclusive original jurisdiction over all water and sewer utility rates, operations, and services provided by a water and sewer utility within its corporate limits.

Tex. Water Code Ann. § 13.042 (West 2000) (emphasis added). Citing section 13.042, Carrollton contends that the Commission cannot exert jurisdiction over Carrollton by requiring it to follow the statutory notice and hearing process for cancelling its certificate. See id. Section 13.042(b) allows a municipality to cede its jurisdiction over rates, services, and operations to the Commission by ordinance. But these provisions apply only to water and sewer utilities and only when these utilities are operating solely within the borders of the municipality. Id. Carroll-ton does not come within the definition of a water and sewer utility and, further, it serves a territory and customers beyond its corporate limits. See id. § 13.002(23) (West 2000). By its language, then, section 13.042 does not apply to Carrollton.

The water code distinguishes between utilities and retail public utilities as water service providers. “Utilities” are always required to obtain a certificate before beginning to provide service to an area. Id. § 13.242(a). The term “utilities” includes “water and sewer utilities” and “public utilities” and is defined to mean “any person, corporation, cooperative corporation, affected county, or any combination of these persons or entities, other than a municipal corporation, water supply or sewer service corporation, or a political subdivision of the state.... ” Id. § 13.002(23) (emphasis added). Thus, municipalities are expressly excluded from the definition.

“Retail public utilities,” on the other hand, include municipalities and are not always required to operate with a certificate. Id. § 13.002(19) (West 2000). A retail public utility includes “any person, corporation, public utility, water supply or sewer service corporation, municipality, political subdivision or agency operating, maintaining, or controlling in this state facilities for providing potable water service or sewer service, or both, for compensation.” Id. (emphasis added). A “municipality” is defined to include “cities existing, created, or organized under the general, home-rule, or special laws of this state.” Id. § 13.002(12) (West 2000) (emphasis added). A water system operated by a municipality is a “municipally owned utility.” Id. § 13.002(13) (West 2000).

As a home-rule city, therefore, Car-rollton comes within the definition of a “municipality.” Municipalities are expressly included within the Commission’s regulatory framework of retail public utilities. And by stipulation, Carrollton agreed that it is a “retail public utility” as that term is defined in the water code. Thus, although Carrollton is a “retail public utility,” it is not a “utility” and, therefore, is not subject to the provisions in Chapter 13 that apply to utilities alone. It is, however, subject to the provisions that apply to retail public utilities.

By excluding a municipal utility from the definition of “utility” and including it in the definition of “retail public utility,” then, the legislature determined that a municipally owned utility is not always required to have a certificate. As to water service within its borders, a municipality may choose to own its own system and be a retail public utility. If a municipality does not choose to own its system, a utility with a certificate from the Commission authorizing it to serve that geographic area may serve the municipal residents. But a municipality must obtain a certificate when it seeks (i) to render service to an area that is lawfully being served by another retail public utility, see id. § 13.242(a), or (ii) to take over service in areas annexed by a city but that are within the certificated area of a water supply corporation, a special utility district, or a fresh water supply district, see id. § 13.255(b) (West 2000). Nothing prohibits a municipality from obtaining a certificate when, for example, it serves beyond its boundaries. Whether or not it is required to have a certificate, a retail public utility may request one to enjoy the benefits available to all certificate holders. But once it determines to seek a certificate, nothing exempts a municipality from the various procedures specified for the issuance and discontinuance of a certificate.

Issuance and Discontinuance of Certificates

In the first instance, the water code addresses the issuance of certificates. Certificates are issued only with notice and, if requested, a' hearing. Section 13.246 of the water code provides:

If an application for a certificate of public convenience and necessity is filed, the commission shall cause notice of the application to be given to affected parties and, if requested, ... a hearing.

Id. § 13.246(a) (West 2000). After the Commission receives an application, it ensures that affected parties receive notice and, if requested, a public hearing. Id. It evaluates the factors specified by the legislature, including the adequacy of service currently provided to the area, the need for additional service, the effect of granting the certificate on its recipient, as well as the effect on any other retail public utility already offering the same kind of service to the area. Id. § 13.246(c) (West 2000). It must also consider the ability of the applicant to provide adequate service, the feasibility of obtaining service from an adjacent retail public utility, and the financial stability of the applicant. Id.

Carrollton does not argue that it did not seek and obtain the Commission’s approval with notice and hearing when it was granted a certificate. Carrollton applied for and received a certificate in November 1979 “to provide such utility service in accordance with the laws of this State and the Rules of this Commission, subject only to any power and responsibility of this Commission to revoke or amend this Certificate in whole or in part upon a subsequent showing that the public convenience and necessity would be served thereby.” By obtaining this certificate, Carrollton extended its services to include parts of the Town of Hebron and obligated itself to render continuous and adequate service to the certificated area. See id. § 13.250(a). In 1997, when Carrollton and Hebron WSC negotiated for the sale of Hebron WSC’s system and certificate to Carroll-ton, Carrollton submitted an application to the Commission, seeking to transfer the certificate from Hebron WSC to Carroll-ton. The Commission approved the transfer “subject to the rules and orders” of the Commission and specified: “The certificate is valid until amended or revoked by the Commission.” Thus, Carrollton acquired the certificate subject only to further amendment or revocation by the Commission.

Carrollton argues that, as a home rule city, it is not required to have a certificate. It contends, therefore, that section 13.250 does not apply to it and that, because it acquired its certificate voluntarily, the Commission must, upon application, ministerially grant the decertification. This argument is without merit. Texas law mandates that “any retail public utility that possesses or is required to possess a certificate of public convenience and necessity shall serve every consumer within [its] certified area and shall render continuous and adequate service.... ” Id. (emphasis added). By its clear language, section 13.250 applies to “any retail public utility that possesses” a certificate. Id. Because Carrollton is a “retail public utility that possesses” a certificate, we conclude that the provisions of the water code for the issuance of certificates apply to it with unmistakable clarity.

By this language, the legislature has demonstrated a clear and unambiguous intent to apply the provisions of section 13.250 to any holder of a certificate, regardless of whether the holder is required to possess the certificate or possesses it voluntarily. See Southwestern Pub. Serv. Co. v. Public Util. Comm’n, 578 S.W.2d 507, 511 (Tex.Civ.App.-Austin 1979, writ ref'd n.r.e.) (noting that Public Utility Regulatory Act (PURA) reserves “exclusive original jurisdiction” to grant and deny certificates). As a holder of a certificate, then, Carrollton is entitled to the same benefits as any other holder who may be required to possess a certificate: no other water utility may operate within its area, and the Commission is authorized to issue orders against any provider that transgresses a certificate. Tex. Water Code Ann. §§ 13.242(a), .252; see City of Brownsville v. Public Util. Comm’n, 616 S.W.2d 402, 408 (Tex.Civ.App.-Texarkana 1981, writ ref'd n.r.e.) (regarding Commission’s authority to issue cease and desist order under PURA section 50, predecessor statute to Texas Water Code section 13.242).

Likewise, the discontinuation provision also contemplates its application to any holder of a certificate: “Unless the commission issues a certificate that neither the present nor future convenience and necessity will be adversely affected, the holder of a certificate or a person who possesses facilities used to provide service shall not discontinue, reduce, or impair service to a certified service area or part of a certified service area....” Tex. Water Code Ann. § 13.250(b) (emphasis added). Although Carrollton’s argument hinges on its contention that it is not required to hold a certificate and that it acquired the certificate voluntarily, the code makes clear that it applies regardless of whether the holder is required or not to possess a certificate. And, section 13.250(d) specifies the terms on which a retail public utility that “has not been granted a certificate” may discontinue service, i.e., “with approval of the regulatory authority.” Id. § 13.250(d). It is also consistent with the statutory scheme and the concept of protected service areas that Carrollton follow the same process for decertification as for issuance of certificates.

Section 13.254 of the water code, which goes unmentioned in Carrollton’s brief, speaks directly to the certificate cancellation process for all holders. Id. § 13.254. Entitled “Revocation or Amendment of Certificate,” it requires that, once the Commission issues a certificate, it may cancel it only after notice and hearing: “The commission at any time after notice and hearing may revoke or amend any certificate of public convenience and necessity with the written consent of the certificate holder-” Id. (emphasis added). The Commission has promulgated regulations implementing this notice-and-hearing requirement. To cancel a certificate, a retail public utility must file a petition to cancel with the Commission and mail notice to its customers and other affected parties. If an affected party requests a hearing, the case is referred to the State Office of Administrative Hearings to conduct a hearing and make a recommendation to the Commission. The water code does not allow the Commission to cancel unless it determines that neither the present nor future convenience and necessity will be adversely affected. Id. § 13.250(b). As with the issuance of a certificate, in making its determination to grant or deny decertification, the Commission must consider various factors, including the effect on the customers, the availability of alternate sources of service for the area, and the feasibility of customers obtaining service from alternate providers. 30 Tex. Admin. Code § 291.115® (2004).

The legislature may regulate the activities of home rule cities through general statutes when it does so with unmistakable clarity. It has done so here with its comprehensive regulatory framework and express provisions regarding the issuance and cancellation of certificates, which the Commission has implemented through its rules. The code provides no other mechanism for the cancellation of certificates. That this is the sole process contemplated by the legislature for cancelling a certificate is as clear and unmistakable as is the application of the regulatory framework to home rule municipalities.

Even apart from the clear and unmistakable language of the various provisions of the water code, case law confirms that the regulatory provisions concerning retail public utility certificates are applicable to home rule municipalities. In City of Brownsville v. Public Utility Commission, Brownsville, a home rule municipality, argued that it was not subject to the jurisdiction of the Commission under the PURA relating to the extension of service into a certificated area of another retail public utility. 616 S.W.2d at 406-07. The question was the same as that raised here: whether the term “retail public utility” clearly and unmistakably included home rule cities so as to limit their plenary powers. Id. at 407. Our sister court concluded that the provision clearly and unmistakably limited the power of the city to extend service to areas being served by other utilities and constituted “a permissible legislative limitation on the otherwise plenary powers of home rule cities.” Id. As this Court stated in Public Utility Commission v. South Plains Electric Cooperative: “[M]unieipally-owned utilities, as retail public utilities, are no different from any other retail public utilities with respect to certificates of public convenience and necessity.” 635 S.W.2d 954, 956-57 (Tex.App.-Austin 1982, writ ref'd n.r.e.).

Because Carrollton is a home rule municipality and it passed a resolution to cancel its certificate, it contends that the Commission’s determination to subject its “legislative acts to review and adjudication” further violates the constitutional doctrine of separation of powers. Carrollton contends that the Commission must give “appropriate deference” to Car-rollton’s “legislative act.” Even apart from the legislature’s clear intent to require every holder of a certificate— whether required to possess one or not— to undergo the notice-and-hearing process, the Commission’s conduct does not violate the separation-of-powers doctrine. By its language, Carrollton’s resolution merely “ratifies staff actions” in submitting the application to the Commission “seeking to decertify” the certificate, and it authorizes the city attorney to represent Carrollton before the Commission “to continue to represent to [the Commission] that the City no longer wishes to hold [its certificate].” There is no conflict between the processes and procedures mandated by the Commission and the pronouncement of the Carrollton city council.

Moreover, unlike an ordinance, a resolution is not a law, but an expression of an opinion. See, e.g., City of Hutchins v. Prasifka, 450 S.W.2d 829, 832 (Tex.1970); City of San Antonio v. Micklejohn, 89 Tex. 79, 33 S.W. 735, 736 (1895). There is no language in the resolution reflecting a legislative act of the council, but rather it appears to be a ratification of prior staff action and an authorization to proceed before the Commission. The resolution does not constitute a legislative act as to invoke the specter of a violation of the separation-of-powers doctrine.

We are persuaded that the legislature clearly and unmistakably intended to apply the cancellation provisions of Chapter 13 to home rule municipalities. The home rule amendment specifically provides that no home rule city “charter or any ordinance passed under said charter shall contain any provision inconsistent with the Constitution of the State or of the general laws enacted by the Legislature of this State.” Tex. Const, art. XI, § 5. We find Carrollton’s charter, the home rule amendment, and the Commission’s authority to issue and cancel certificates entirely in harmony. While home rule cities generally need not look to the legislature for power to act, the legislature may impose limitations on their ability to act outside their boundaries. With the comprehensive regulatory framework of the water code, it has done so here by granting the Commission the exclusive authority to issue and cancel water certificates.

CONCLUSION

While we recognize that legislative action is not without bounds and that home rule cities maintain the plenary powers of self government, we conclude that the legislature has spoken with unmistakable clarity in specifying that all holders of water certificates of convenience and necessity are subject to the notice and hearing provisions of the water code for the cancellation of their certificates. For the foregoing reasons, we conclude that the Commission’s actions do not violate the separation-of-powers doctrine of the Texas Constitution, the water code or local government code, the powers delegated to the Commission, or its own rules. We overrule the issues presented by the City of Carrollton and affirm the judgment of the district court.

      . In October 2004, the administrative law judge issued a proposal for decision recommending that the Commission deny Carroll-ton’s application to cancel its certificate. The Commission agreed with the AU and denied the application for cancellation. The merits of the Commission’s decision are not before us. For this reason, the underlying facts pertaining to the certificate are also not at issue here. But the Town of Hebron and certain individuals residing in the certificated area are appellees. Because their interests for the purposes of this lawsuit are the same as the Commission’s, for convenience we will refer to the Commission or appellees as necessary.

      . A city that does not want to be in the water business, even to the extent of regulating a utility operating within its city limits, may turn jurisdiction over that utility to the Commission. Tex. Water Code Ann. § 13.042(b) (West 2000). By stipulation, the parties agree that Carrollton has not ceded its jurisdiction over these matters to the Commission.

      . Section 13.242(a) provides: "... [A] utility, a utility operated by an affected county, or a water supply or sewer service corporation may not in any way render retail water or sewer utility service directly or indirectly to the public without first having obtained from the commission a certificate that the present or future public convenience and necessity will require that installation, operation, or extension....” Id. § 13.242(a) (West 2000).

        . See id. % 13.002(19) (West 2000).

      . The certificate was granted by the Public Utility Commission, which had jurisdiction over water certificates in 1979; jurisdiction over water certification was transferred from the Public Utility Commission to the Texas Water Commission in 1985 and then to the Texas Natural Resources Conservation Commission in 1991, which was renamed the Texas Commission on Environmental Quality in 2001. See Act of May 25, 1985, 69th Leg., R.S., ch. 795, § 3.005, 1985 Tex. Gen. Laws 2719, 2789 (transfer from PUC to TWC); Act of July 25, 1991, 72d Leg., 1st C.S., ch. 3, § 1.058, 1991 Tex. Gen. Laws 4, 20 (transfer from TWC to TNRCC); Act of May 28, 2001, 77th Leg., R.S., ch. 965, § 18.01, 2001 Tex. Gen. Laws 1933, 1985 (renaming of TNRCC to TCEQ).

      . PURA is the predecessor act to Chapter 13 of the Texas Water Code. Act of May 25, 1985, 69th Leg., R.S., ch. 795, § 3.005, 1985 Tex. Gen. Laws 2719, 2789-2804. In 1985, when jurisdiction over water and sewer utilities was transferred from the Public Utility Commission to the Texas Water Commission, the utility regulations in Chapter 13 of the Water Code were enacted.

      . Section 13.243 specifies that a certificate is not required for a retail public utility to extend its services into a contiguous territory, and section 13.246(f) allows for such a utility to apply for a certificate for an uncertificated area on a competitive basis with another retail public utility. Tex. Water Code Ann. §§ 13.243, .246(f) (West 2000). No provision exempts the voluntary holder in these instances from the notice-and-hearing provisions for the issuance and discontinuance of certificates under Chapter 13. Id. §§ 13.243, .246(f).

      . 30 Tex. Admin. Code § 291.115(b) (2004). The definitions of "retail public utility” and "utility” in Chapter 291, Title 30 of the Texas Administrative Code are identical to the definitions in the water code. See id. § 291.3 (2004).

      . The statute at issue in City of Brownsville, PURA section 50(2), is the predecessor statute to Texas Water Code section 13.242(a). See Act of May 25, 1985, 69th Leg., R.S., ch. 795, § 3.005, 1985 Tex. Gen. Laws 2719, 2799.


author: Justice LANG-MIERS.

text:
    CITY OF GRAND PRAIRIE, Appellant v. IRWIN SEATING COMPANY, Midwest Mechanical Contractors, Inc., Seyforth Roofing Company, Inc., Lewis & Lambert, L.L.L.P., and Linbeck/Con-Real/Russell Joint Venture, Appellees.
    No. 05-04-00560-CV.
    Court of Appeals of Texas, Dallas.
    Aug. 16, 2005.

      Jim (James) McCown, Nesbitt, Vassar & McCown, LLP, Addison, for Appellant.
    Charles E. Wear, Jr., Arlington, William Brent Shellhorse, Whiatker, Chalk, Swindle & Sawyer, Fort Worth, Martha C. Coleman, Strasburger & Price, LLP, and James K. Peden III, Strasburger & Price, P.C., Toni Scott Reed, Dallas, C. John Scheef III, Frisco, Scott Griffith, Griffith & Nixon, P.C., Dallas, for Appellees.
    Before O’NEILL, LANG, and LANG-MIERS.
   OPINION

Opinion by

Justice LANG-MIERS.

This is an interlocutory appeal of the trial court’s denial of the City of Grand Prairie’s plea to the jurisdiction. Grand Prairie argues the trial court erred because: (1) Grand Prairie did not initiate any legal proceedings in this action which would result in a waiver of its immunity from suit; and (2) the city charter is not an express waiver of immunity from suit.

We affirm the trial court’s order denying Grand Prairie’s plea to the jurisdiction.

I. BACKGROUND

Texas NextStage entered into a sale and lease-back agreement with Grand Prairie concerning the NextStage Theater. Under that agreement, Texas NextStage was obligated to sell the theater and real property to Grand Prairie on substantial completion of construction, and Grand Prairie was obligated to lease the theater back to Texas NextStage.

In January 2002, while work on the project was still in progress, Texas NextStage sold the theater and real property to Grand Prairie. At the time of the sale, Linbeck and Worscheh, as officers of Texas NextStage, certified that it had “timely performed in all material respects all of its covenants, agreements and obligations ... and [wa]s not in default in any material respect under any such agreements.”

In August 2002, Texas NextStage filed for bankruptcy protection. It still owed Linbeck Construction for construction and development of the property. In response, Linbeck Construction as managing venturer for Linbeek/Con-Real/Russell, the contractor, filed a mechanic’s lien against the property and a lawsuit against Grand Prairie seeking to foreclose on that lien. Grand Prairie obtained a bond from RLI Insurance to indemnify it from the mechanic’s lien. The subcontractors intervened in the lawsuit claiming that a portion of Linbeck Construction’s alleged damages were owed to them. Also, some of these subcontractors asserted their own lien claims against Grand Prairié.

Grand Prairie filed a third-party petition against Linbeck and Worscheh, a counterclaim against Linbeck Construction, and a request for declaratory judgment. Then, Grand Prairie filed a plea to the jurisdiction asserting immunity from suit and a motion for summary judgment asserting immunity from liability. The trial court denied Grand Prairie’s plea to the jurisdiction as well as its motion for summary judgment.

II. IMMUNITY PROM SUIT

In its two issues, Grand Prairie argues the trial court erred when it denied Grand Prairie’s plea to the jurisdiction. In its first issue, Grand Prairie argues the trial court erred when it denied Grand Prairie’s plea to the jurisdiction because the city charter is not an express waiver of immunity from suit. Based on our resolution of Grand Prairie’s second issue, we need not address its first issue. See Tex.R.App. P. 47.1. In its second issue, Grand Prairie argues that the trial court erred when it denied Grand Prairie’s plea to the jurisdiction because it did not initiate any legal proceedings which would result in a waiver of immunity. We conclude that Grand Prairie waived immunity and overrule its second issue.

A. Standard of Review

A plea to the jurisdiction is a dilatory plea by which a party may challenge a court’s authority to determine the subject matter of an action. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000). Whether a trial court has subject matter jurisdiction is a question of law to be reviewed de novo. Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.2002). In performing this review, we do not look to the merits of the plaintiffs case but consider only the pleadings and the evidence pertinent to the jurisdictional inquiry. County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.2002) (citing Tex. Natural Res. Conservation Comm’n v. White, 46 S.W.3d 864, 868 (Tex.2001)). When determining whether there is a clear and unambiguous waiver of immunity from suit, we resolve any ambiguity in favor of retaining immunity. See Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 697 (Tex.2003).

B. Applicable Law

Governmental immunity protects governmental entities from lawsuits for damages absent legislative consent. See Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 405 (Tex.1997), superseded by statute on other grounds as stated in Gen. Servs. Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591, 593 (Tex.2001). The sovereign immunity of the State inures to the benefit of a municipality to the extent the municipality engages in the exercise of governmental functions. City of Tyler v. Likes, 962 S.W.2d 489, 501 (Tex.1997). The doctrine of sovereign immunity embraces two distinct concepts: (1) immunity from suit, and (2) immunity from liability. See Fed. Sign, 951 S.W.2d at 405.

Immunity from suit bars a lawsuit against a governmental entity unless the governmental entity expressly gives its consent to the suit. See Fed. Sign, 951 S.W.2d at 405. A governmental entity may consent to suit by statute or by legislative resolution. See Fed. Sign, 951 S.W.2d at 405. Legislative consent to suit must be expressed by clear and unambiguous language. Tex. Gov’t Code Ann. §§ 311.034 (Vernon 2005); Travis County v. Pelzel & Assocs. Inc., 77 S.W.3d 246, 248 (Tex.2002); Fed. Sign, 951 S.W.2d at 405. A governmental entity may also waive immunity by filing suit. Reata Construction Corp. v. City of Dallas, 47 Tex. Sup.Ct. J 408, 2004 WL 726906 (Tex. Apr. 2, 2004) (per curiam) (mo. for reh’g filed).

C. Waiver by Filing Counterclaim and Third-party Claim

Grand Prairie argues the trial court erred when it denied Grand Prairie’s plea to the jurisdiction because Grand Prairie did not initiate any legal proceedings in this action that would result in a waiver of its immunity from suit. Grand Prairie asserted a counterclaim against Linbeck Construction and a third-party claim against Linbeck and Worscheh but contends that it is only seeking damages in any amounts Grand Prairie is found to owe the plaintiff.

The supreme court has held that “by filing a suit for damages, a governmental entity waives immunity from suit for any claim that is incident to, connected with, arises out of, or is germane to the suit or controversy brought by the State.” Id. — S.W.3d at-, at *3. Based on the Reata decision, this court has held that a governmental entity’s counterclaim seeking affirmative relief constitutes “an intentional relinquishment of any claim to governmental immunity.” City of Dallas v. Martin, 140 S.W.3d 924, 925 (Tex.App.Dallas 2004, no pet. h.); City of Dallas v. Bargman, No. 05-04-00316-CV, — S.W.3d-,-, 2004 WL 2222510, at *3 (Tex.App.-Dallas Oct. 5, 2004, no pet. h.); City of Irving v. Inform Constr., Inc., 143 S.W.3d 371, 373 (Tex.App.-Dallas 2004, pet. filed). In Inform Construction, Inc., we concluded that there was no distinction between an affirmative claim for relief filed by a third-party defendant, as in Rea-ta, and a defendant filing a counterclaim for damages and held that the City waived its immunity from suit by filing counterclaims. Inform Constr., Inc., 143 S.W.3d at 374. In Bargman, we concluded that the City waived immunity from suit by filing a counterclaim seeking actual damages. Bargman, — S.W.3d at-, 2004 WL 2222510, at *3. Under Reata, a governmental entity has a choice: to invoke the jurisdiction of the court by seeking affirmative relief or to challenge the court’s subject matter jurisdiction over the dispute. See City of Irving, 143 S.W.3d at 375.

Grand Praire invoked the jurisdiction of the trial court by seeking affirmative relief. Grand Prairie’s third-party action against Linbeck and Worscheh alleges negligent misrepresentation and statutory fraud. And Grand Prairie’s counterclaims against Linbeck Construction allege joint enterprise or conspiracy liability based on the common ownership, control, and management of Texas NextStage and Linbeck Construction by Linbeck. Grand Prairie’s request for declaratory judgment asks the trial court to declare that the lien is invalid, null and void, and to remove the hen as a cloud of title on the property. In its prayer for relief, Grand Prairie requests: (1) that Linbeck and Worscheh be summoned to appear and answer; (2) a judgment against Linbeck, Worscheh, and Lin-beck Construction, jointly and severally, for all damages as pleaded; and (3) its reasonable and necessary attorneys’ fees, pre-judgment and post-judgment interest as allowed by law, costs of suit, and other and further relief, both general and specific, at law or in equity, to which Grand Prairie may be justly entitled. Grand Prairie filed its plea to the jurisdiction claiming it was immune from suit after it filed its third-party petition and counterclaim and a second amended answer that asserts sovereign immunity.

The other parties’ claims were incident to, connected with, arise out of, or are germane to Grand Prairie’s counterclaim. See Reata, — S.W.3d at-, 2004 WL 726906, at *3; see also City of Irving, 143 S.W.3d at 375; City of Dallas, — S.W.3d at-, 2004 WL 2222510, at *3. In fact, Grand Prairie’s third-party petition and counterclaims state, “Jurisdiction and venue have already been established in this Court, and [Grand Prairie’s] claim [sic] arise out of and are related to the claims at issue in this suit.”

We conclude the trial court did not err when it denied Grand Prairie’s plea to the jurisdiction because Grand Prairie’s assertion of its third-party petition and counterclaim constituted a waiver of its immunity from suit. We decide Grand Prairie’s second issue against it.

III. CONCLUSION

The trial court did not err when it denied Grand Prairie’s plea to the jurisdiction because by filing its third-party petition and counterclaim, Grand Prairie waived immunity from suit. The trial court’s order denying Grand Prairie’s plea to the jurisdiction is affirmed.

      . A motion for rehearing is pending with the Texas Supreme Court. Although the Texas Supreme Court's opinion is still subject to withdrawal or revision, we may not disregard it. See City of Dallas v. Bargman, No. 05-04-00316-CV, — S.W.3d -, -, 2004 WL 2222510, at *3 (Tex.App.-Dallas Oct. 5, 2004, no pet. h.).

      . Grand Prairie’s original or first answer is not in the appellate record.


author: Justice WRIGHT.

text:
    James David WAGNER, Appellant v. COMPASS BANK, Appellee.
    No. 05-04-00877-CV.
    Court of Appeals of Texas, Dallas.
    Aug. 16, 2005.

      John Holman Barr and C. Carlyle Grafton, Burt Barr & Associates, L.L.P., Dallas, for Appellant.
    Michael A. Logan, Kane, Russell, Coleman & Logan, P.C., Dallas, for Appellee.
    Before Justices WRIGHT, BRIDGES, and RICHTER.
   OPINION

Opinion by

Justice WRIGHT.

James David Wagner appeals a summary judgment rendered in favor of Compass Bank. In six points of error, Wagner contends generally that the trial court erred in granting the Bank’s motion for summary judgment because it was improper for the bank: (1) to apply the collateral securing the line of credit to the inventory loan; (2) to apply proceeds of the collateral securing the line of credit in excess of Wagner’s obligation under the limited continuing guaranty; (3) to apply the collateral securing the line of credit to debt arising from credit card charge backs without evidence of those charge backs; and (4) to apply the collateral for the line of credit to the debt because it violated the Bank’s waiver of security in the collateral. We overrule Wagner’s points of error and affirm the trial court’s judgment.

Background

In 1998, the Bank extended a $200,000 line of credit to Badge, Inc. (“Badge”) in exchange for a promissory note from Badge. The line of credit was subsequently increased to $250,000. As a condition for increasing the line of credit, the Bank required that Badge put up some collateral. Wagner, a co-owner of Badge, entered into a series of security agreements whereby he provided collateral to secure the line of credit. The security agreements included future advance clauses, providing that the collateral also secured any future obligations of Badge. The collateral consisted of a certifícate of deposit and shares of stock in the Tandy Corporation. Due to fluctuations in the stock market, the Bank later required additional shares to be pledged along with Wagner’s personal guaranty of $50,000.

Badge later obtained a $75,000 inventory loan from the Bank. Badge’s inventory served as security for this loan. John Himelfarb, another co-owner of Badge, signed a personal guaranty for the inventory loan. Badge and the Bank also entered into an agreement whereby the Bank agreed to handle certain credit card transactions for Badge.

Badge defaulted on its obligations. The Bank liquidated enough shares of stock to cover Badge’s debt. After Badge’s debts were satisfied, the Bank returned the un-liquidated stock and the unused money from the liquidated stock to Wagner.

Wagner sued the Bank asserting causes of action for violations of the business and commerce code, conversion, fraud, breach of contract, and DTPA violations. The Bank moved for summary judgment. Wagner filed a cross motion for summary judgment. The trial court granted the Bank’s motion and this appeal timely followed.

Standard of Review

The standard of review in summary judgment is well-established. Tex.R. Civ. P. 166(c); Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 23 (Tex.1990). In reviewing a traditional motion for summary judgment, evidence favorable to the non-movant will be taken as true. Nixon v. Mr.Prop. Mgm’t Co., 690 S.W.2d 546, 548-49 (Tex.1985). To prevail on summary judgment, a defendant as movant must either disprove at least one element of each of the plaintiffs theories of recovery or plead and conclusively establish each essential element of an affirmative defense, thereby rebutting the plaintiffs cause of action. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979). A matter is conclusively established if ordinary minds could not differ as to the conclusion to be drawn from the evidence. Triton Oil & Gas Corp. v. Marine Contractors & Supply, Inc., 644 S.W.2d 443, 446 (Tex.1982).

Security Agreements

Wagner contends in his second point of error that the trial court erred in rendering summary judgment because the collateral securing the line of credit could not be applied to the inventory, loan. He asserts the loan documents, read together, are ambiguous thus creating a question of fact.

A contract is unambiguous if it can be given a definite or certain legal meaning. Columbia Gas Transmission Corp. v. New Ulm Gas., Ltd., 940 S.W.2d 587, 589 (Tex.1996). Whether a contract is ambiguous is a question of law that must be decided by examining the contract as a whole in light of the circumstances present when the contract was signed. Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd., 940 S.W.2d 587, 589 (Tex.1996). If the contract is so worded that it can be given a certain or definite legal meaning, then it is not ambiguous and the court will construe the contract as a matter of law. Coker v. Coker, 650 S.W.2d 391, 393 (Tex.1983). An ambiguity exists only if the contract language is susceptible to two or more reasonable interpretations. Am. Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154, 157 (Tex.2003). Parol evidence is not admissible to render a contract ambiguous, which on its face, is capable of being given a definite legal meaning. Sun Oil Co. (Delaware) v. Madeley, 626 S.W.2d 726, 732 (Tex.1981).

The security agreements listed Wagner as the owner of the collateral and Badge as the borrower. The security agreements provide that the collateral will secure the payment and performance of all of “borrower’s and owner’s present and future ... indebtedness, liabilities, obligations and covenants to lender pursuant to ... this agreement ... [and] all other present or future, written or oral, agreements between borrower or owner to lender (whether executed for the same or different purposes than the preceding documents).”

Wagner contends that when viewed together, the loan documents are ambiguous. First, Wagner contends that if the line of credit future advance clauses serve to eross-collaterize the inventory loan, Himel-farb’s inventory loan guaranty was not necessary and, therefore, meaningless. Obtaining Wagner’s personal guaranty was the Bank’s way of protecting itself up to $50,000, in the event the stock pledged as collateral became worthless.

The Bank sought similar protection with respect to the inventory loan. Again, the stock pledged as collateral for the line of credit also applied to all future debts incurred by Badge, including the inventory loan. If, at the time of default, the stock pledged as collateral for all of Badge’s debts had been worthless, the $50,000 personally guaranteed by Wagner might have even been insufficient to cover the debt remaining on the line of credit. In that circumstance, the Bank would have no means to recover the debt remaining on the inventory loan and the credit card charge backs. To protect itself from this potential scenario, the Bank obtained Hi-melfarb’s personal guaranty so that, in the event of such circumstances, the Bank could look to Himelfarb for payment. Thus, contrary to Wagner’s contention, Hi-melfarb’s guaranty is not meaningless and the Bank had sound business reasons for obtaining it.

Second, Wagner also contends an ambiguity exists because the inventory loan provides that it is secured by Badge’s inventory and it does not list the previously pledged collateral. The inventory loan does not state, however, that it is secured only by the inventory. No language in the inventory loan or Himelfarb’s personal guaranty prevents application of the future advance clause in the security agreements. Wagner submitted Himelfarb’s affidavit to show that it was the intent of the parties to the inventory loan that it would be secured exclusively by Badge’s inventory. Because the language of the inventory loan is unambiguous, parol evidence is inadmissible.

Moreover, it is not necessary for a subsequent agreement to reference the prior pledged collateral for the future advance clause to apply. See Magnum Machine & Tool Corp. v. 1st Nat’l Bank of Seaguin, 545 S.W.2d 549, 551 (Tex.Civ.App.-Eastland 1976, no writ). In Magnum, Vahlco Corporation executed a real estate lien note payable to the bank. As security for the note, Vahlco executed a deed of trust in favor of the bank. The deed of trust contained a future advance clause providing that the deed of trust would secure any future obligations of Vahlco. The real estate covered by the deed of trust was subsequently transferred to Magnum Machine & Tool Corp. The deed provided that the conveyance was made subject to the deed of trust in favor of the bank. Id. at 549.

Subsequently, Vahlco executed a $350,000 note payable to the bank. The note stated that it was secured by inventory, retainages, and a “S.B.A. guarantee.” Id. at 550. Although the note did not mention the deed of trust as security, the trial court found the note was secured by the deed of trust because of the future advance clause contained in the deed. Id. at 551. The court of appeals affirmed. Id. Thus, the fact that the inventory loan does not reference the stock as security for the loan is irrelevant and does not create an ambiguity.

The supreme court considered a similar future advance clause in Estes v. Republic Nat’l Bank of Dallas, 462 S.W.2d 273 (Tex.1970). The deed of trust executed by Estes provided that it secured the $30,000 note and “all other indebtedness, of whatever kind and character, owing or which may hereafter become owing by Grantors to Beneficiary ...” Id. at 274. The supreme court held that the future indebtedness language was unambiguous and, therefore, parol evidence was not admissible to establish the true intention of the parties that the lien was to secure the $30,000 note alone. Id. at 276.

Having determined the loan documents are unambiguous, we turn now to the scope of the future advance clauses contained in the security agreements. The Texas Business and Commerce Code recognizes the validity of future advance clauses, stating that a “security agreement may provide that collateral secures ... future advances or other value, whether or not the advances or value are given pursuant to commitment.” Tex. Bus. & Comm. Code Ann. § 9.204(c) (Vernon 2002). A future advance clause applies to a future obligation between the parties if it was in the reasonable contemplation of the parties to the agreement at the time it was made. Moss v. Hipp, 387 S.W.2d 656, 658 (Tex.1965). Wagner contends the inventory loan was not within the reasonable contemplation of the parties at the time the security agreements were signed.

In addressing the applicability of future advance clauses, the supreme court has held that a future advance clause in a mortgage does not secure a subsequent debt from the debtor to a third party acquired by the bank from the third party. Wood v. Parker Square State Bank, 400 S.W.2d 898, 901 (Tex.1966). In concluding such debt is not within the reasonable contemplation of the parties, the supreme court stated:

The more reasonable construction of this general language [a future advance clause] is that it referred to obligations directly arising between Lincoln Enterprises [the original debtor] and respondent bank [the original lender], i.e., where Lincoln became obligated to the bank as the maker of an obligation, or became liable in a secondary capacity in favor of the bank.

Id. at 902.

The fifth circuit court of appeals considered the application of a future advance clause to a subsequent loan. See In re Conte, 206 F.3d 536 (5th Cir.2000). Conte borrowed money from the bank to purchase a ear. The loan documents included a future advance clause stating that the security interest in the car secured any other loans Conte had with the bank “now or in the future.” Id. at 537. Two months later, Conte received a credit card offer from the bank. Conte filled out the application and obtained a credit card. Three years later, Conte paid off his car loan and sought to have the title transferred to him. The bank refused because he owed $7,000 on his credit card. The bank argued the future advance clause in the car loan documents gave the bank a valid lien on the car to secure the credit card debt. The court held that the bank did have a valid lien on the car to secure the credit card debt which was within the reasonable contemplation of the parties at the time they entered in the car loan. Id. at 538-39.

Pursuant to the future advance clauses in this case, the collateral secured the present and any future agreements between the Bank and Wagner and/or the Bank and Badge. The security agreements were between Badge as borrower and the Bank. The inventory loan was between Badge as borrower and the Bank. In line with the interpretation of future advance clauses by both Texas courts and the fifth circuit court of appeals, we conclude the future advance clause contained in the security agreements covers the inventory loan. Thus, we overrule Wagner’s second point of error.

The Guaranty

In his third point of error, Wagner argues summary judgment was improper because the amount of collateral subject to disposition by the Bank was limited to the amount of money he personally guaranteed.

Wagner does not cite any case law to support his argument. Instead, he relies exclusively on the language in the guarantee that states:

Guarantor’s liabilities and obligations under this Guaranty (“Obligations”) shall include all present or future written agreements between Borrower and Lender (whether executed for the same or different purposes), including but not limited to the indebtedness described below but shall be limited to the principal amount of $50,000, together with all interest and all of Lender’s expenses and costs, incurred in connection with the indebtedness including any amendments, extensions, modifications, renewals, replacements or substitutions thereto.

(Emphasis supplied). This language does not limit the Bank’s right to liquidate Wagner’s previously pledged collateral to $50,000. The security agreements provided that the collateral given to the Bank by Wagner secured the payment and performance of all of Badge’s debts. If the collateral pledged had no value at the time that Badge defaulted on its debts, the Bank’s recovery from Wagner personally would have been limited to $50,000.

We conclude Wagner’s third point of error is without merit and is, therefore, overruled.

Credit Card Charge Backs

In his fourth point of error, Wagner contends summary judgment was improper because the Bank did not present any evidence of the existence of the credit card charge backs attributable to Badge. Contrary to Wagner’s assertion, the Bank did present such evidence in an exhibit attached to its supplemental motion for summary judgment. The exhibit consisted of seventeen pages of documents listing Badge’s credit card charge backs that were processed by the Bank. Accordingly, we overrule Wagner’s fourth point of error.

Waiver of Security Interest

Wagner contends in its fifth point of error that the trial court erred in granting summary judgment because the Bank waived its security interest in Badge’s inventory by refusing to take possession of the inventory in satisfaction of the inventory loan. He contends that such waiver prevented the Bank from applying any other proceeds to satisfy the inventory loan. At the summary judgment hearing, however, counsel for Wagner specifically waived this argument:

The Court: Okay. Well, that’s not responded to, so are you giving up on those points?
[Counsel]: With respect to the waiver and the DTPA, uh, well, I guess since we didn’t file a response, we don’t have much argument.
The Court: Okay.
[Counsel]: I’m giving up on the waiver argument.

We conclude Wagner waived this claim. We overrule his fifth point of error.

Public Policy

In Wagner’s final point of error, he contends the trial court’s summary judgment contravenes the intended policy of facilitating investment and financial certainty. Wagner contends that the Bank should not be allowed to “cherry-pick” the collateral to apply to a defaulted loan. This practice, Wagner argues, prevents business owners from having “certainty in knowing what collateral secures what obligation.” Wagner argues that investors must be able to gauge the amount of their exposure in a particular investment. The documents in the case were clear that the collateral pledged by Wagner secured not only the fine of credit but also any future obligations of Badge. Wagner knew the amount of collateral he pledged. He also knew the amount for which the bank could hold him personally liable.

We overrule Wagner’s sixth point of error. We affirm the trial court’s judgment.

      . Wagner’s first point of error is a general point of error that the trial court erred in granting summary judgment. In light of our disposition of Wagner’s other points of error, his first point of error is likewise overruled.