author: Justice WAINWRIGHT

text:
    Peter C. BROWNING, et al., Petitioners, v. Jeff P. PROSTOK, et al., Respondents.
    No. 03-0784.
    Supreme Court of Texas.
    Argued Oct. 19, 2004.
    Decided May 27, 2005.

      Boe W. Martin, Dawn Ryan Budner, Sherri Turner Alexander, Rebecca Ann Hicks, Kirk Dailey Dreyer, Bell Nunnally & Martin LLP, Bruce W. Akerly, Bell, Nunnally & Martin L.L.P., Maria' Katina Karos, Bell Nunnally & Martin Pile, Samara L. Kline, Baker Botts L.L.P., Bryant C. Boren Jr., Baker & Botts L.L.P., Dallas, Joe R. Greenhill, Bob Shannon, Baker Botts LLP, Austin, for for petitioners.
    Roger Townsend, Jennifer R. Tillison, Alexander Dubose Jones & Townsend, LLP, James R. Moriarty, Patrick Kevin Leyendecker, Moriarty & Leyendecker, Richard Frankel, Stephen M. Hackerman, Hackerman Frankel, Houston, J. Robert Arnett II, Sopuch, Arnett, Higgins & Gau-bert, L.L.P., Patrick J. Neligan Jr., Neli-gan Tarpley Andrews & Foley, L.L.P., Dallas, Craig Howard Averch, White & Case LLP, Los Angeles, CA, William Powers Jr., Austin, for respondents.
    Michael P. Lynn, Russell James DePal-ma, Lynn Tillotson & Pinker, LLP, Bas-heer Youssef Ghorayeb, Rodriguez Law Firm, P.C., Dallas, Susanna J. Gray, Fried Frank Harris Shriver & Jacobson, New York, NY, for TCW Asset Management Company, TCW Group Inc., TCW Special Credits, Trust Company of the West
    Thomas M. Fulkerson, Clements O’Neill Pierce Wilson & Fulkerson, Houston, for NGC Asbestos Disease and Property Damage Trust.
    C. Rodney Acker, Ellen Bush Sessions, Jenkens & Gilchrist, P.C., Dallas, for Donaldson, Lufkin & Jenrette Securites Corp.
    Kathy D. Patrick, Andrew L. Pickens, Jeffry Joe Cotner, Jeffrey C. Kubin, Gibbs & Bruns, L.L.P., Houston, for Fidelity Management & Research Company.
    William D. Sims Jr., Michael Lawrence Raiff, Vinson & Elkins, L.L.P., Dallas, for Water Street Corporation Recovery Fund I, L.P.
    Marvin S. Sloman, James A. Ellis Jr., Stephen A. Goodwin, Carrington Coleman Sloman & Blumenthal, L.L.P., Dallas, Sheldon Raab, Barry Sher, John Dellapor-tas, Fried Frank Hams Shriver & Jacobson, New York, NY, for Houlihan Lokey Howard & Zukin Capital.
   Justice WAINWRIGHT

delivered the opinion of the Court.

This dispute arises out of highly contentious bankruptcy proceedings. During the bankruptcy proceedings, a committee representing bond and trade unsecured creditors vigorously disputed the valuation of the debtor as presented by the debtor’s management. The committee sought to replace the debtor’s management with a bankruptcy trustee, based in part on allegations of intentional undervaluation of the debtor. In addition, the committee objected to the debtor’s plan of reorganization, again raising allegations of intentional undervaluation. Over two years after the bankruptcy court entered its order confirming the reorganization plan proposed by the debtor, a class of bondholders brought this suit. The class of bondholders alleges that the officers and directors breached their fiduciary duties by intentionally undervaluing the debtor during the bankruptcy proceedings. The trial court granted summary judgment against the class and entered a take-nothing judgment. We consider whether the class claims, based on conduct occurring during bankruptcy proceedings, can be maintained in state court years after the bankruptcy court’s final order confirming the debtor’s reorganization plan. We conclude that the claims cannot.

I. Background and Procedural History

A. Bankruptcy Proceedings

On October 28, 1990, National Gypsum Company and its parent holding company, Aancor Holdings (collectively National Gypsum), filed voluntary petitions for relief under Chapter 11 of the United States Bankruptcy Code. The United States Bankruptcy Court for the Northern District of Texas, Dallas Division, consolidated and jointly administered the cases.

National Gypsum had three classes of publicly traded debt: 1) senior notes, 2) senior debentures, and 3) junior bonds. The senior notes and senior debentures were held by several entities known collectively as the Senior Bondholders. The junior bonds were held by persons and entities referred to as Junior Bondholders, and include Jeff Prostok and the class members he represents. In addition, there were parties holding actual or potential claims against National Gypsum arising from personal injury and property damage related to asbestos products, the Asbestos Claimants. This case stems from conflicts that arose during the bankruptcy proceedings between the Junior Bondholders and Asbestos Claimants, on one side, and the Senior Bondholders and National Gypsum management, on the other.

During the bankruptcy proceedings, National Gypsum operated as debtor-in-possession under the Bankruptcy Code. In November 1990, the United States trustee appointed a committee of bond and trade unsecured creditors (the BT Committee) to serve as a statutory creditors’ committee in the Chapter 11 proceedings. Section 1104 of the Bankruptcy Code authorizes the bankruptcy court to replace a debtor-in-possession with an appointed trustee upon a determination that it would be in the best interest of the debtor’s stakeholders or upon a determination of “cause, including fraud, dishonesty, incompetence, or gross management.” 11 U.S.C. § 1104(a). In January 1992, the BT Committee moved to replace National Gypsum’s management with a bankruptcy trustee for the National Gypsum estate. The BT Committee claimed, among other things, that National Gypsum management had intentionally undervalued National Gypsum by “understating] all its forecasts to hide its objective views of the company.” After a two-day hearing on the motion in March 1992, the bankruptcy court held that the BT Committee did not meet its burden on this issue and denied the BT Committee’s motion.

National Gypsum submitted a plan of reorganization to the bankruptcy court based on a $850 million valuation of National Gypsum. As part of National Gypsum’s proposed plan, a second corporate entity, a new National Gypsum Company (New NGC), would receive National Gypsum’s operating assets and ongoing business. The plan provided that the officers and directors of National Gypsum would remain as the initial management of New NGC. New NGC stock would be largely owned by the Senior Bondholders, with Junior Bondholders receiving warrants to acquire New NGC stock.

However, the BT Committee was not satisfied with the plan and proposed a competing plan based on a $630 million valuation of National Gypsum. In November 1992, the BT Committee filed its objections to National Gypsum’s plan of reorganization. The BT Committee alleged that National Gypsum’s “[mjanagement knowingly misrepresented [National Gypsum’s] future business prospects and value.” The BT Committee explained that:

[i]n exchange for greater than 100% recovery and control of the reorganized company’s board of directors, certain post petition acquirors of Senior Notes ... publicly accepted the [National Gypsum] Plan, including its management-entrenchment and enrichment provisions. Hence, management deceived [National Gypsum’s] creditors with a misrepresentation of the value of the company to coax a small creditor faction into supporting its plan and opposing the BT Plan.

Confirmation proceedings on the competing plans of reorganization began in December 1992. At the conclusion of the valuation phase of the proceedings, the bankruptcy court concluded that the BT Committee plan could not be confirmed because it failed to prove the value of National Gypsum as of the effective date of the plan of reorganization. The order confirming the National Gypsum reorganization plan was entered on March 9, 1998 and was effective as of July 1,1993.

An interested party may contest a bankruptcy confirmation order within 180 days after its entry on the basis that it was procured by fraud. 11 U.S.C. § 1144. The 180-day period expired on September 9, 1993. No interested party requested that the order be set aside within the 180-day period or otherwise appealed the confirmation order. In October 1993, New NGC announced a new cost-savings plan that allegedly resulted in an annual reduction of expenses of $30 to $40 million dollars.

B. Current Litigation

Prostok, individually and on behalf of all other Junior Bondholders, filed the current case in state court in October 1995 against the former officers and directors of National Gypsum (Officers and Directors) and their financial advisor, Donaldson, Lufkin & Jenrette Securities Corporation (DLJ). Prostok amended his petition to add one of the Senior Bondholders, TCW. Prostok sued for breach of fiduciary duties, fraud and constructive fraud, and civil conspiracy against all the defendants. Prostok also brought claims against DLJ and the Officers and Directors for gross negligence, and alternative claims against TCW and DLJ for participating, aiding, assisting, and/or inducing breach of fiduciary duties.

Prostok alleges that during the course of the bankruptcy proceedings, the Senior Bondholders, the Officers and Directors, and their financial advisors intentionally undervalued National Gypsum by concealing a plan to dramatically reduce the company*s operating expenses. Specifically, Prostok alleges that the Officers and Directors represented that National Gypsum was worth $800 to $375 million, based on management’s “best estimate and intention of how the company would operate once out of bankruptcy,” though the Officers and Directors were fully aware of the cost-savings plan later announced in October 1993. Prostok alleges that this cost-savings plan resulted in an increase in the market value of New NGC’s outstanding stock from $350 million to almost $1 billion. According to Prostok, had the Officers and Directors disclosed the plan to cut expenses to the bankruptcy court, the value assigned to National Gypsum would have been higher, and the distribution to the Junior Bondholders would have been greater. Prostok claims that as a result of the cost-savings plan, the value in stock acquired by Senior Bondholders by reorganization far exceeded its initial value, resulting in a windfall for Senior Bondholders. Prostok alleges that in exchange for them participation in concealing the cost-savings plan, the Officers and Directors maintained their positions in New NGC and received lucrative incentive deals.

On November 15, 1995, the Officers and Directors and DLJ (the only defendants at the time) removed the case to federal district court. The bankruptcy court remanded the case to state court for lack of federal jurisdiction. The federal district court affirmed the remand order.

On March 30, 1998, New NGC intervened in the action. New NGC asserted that under the terms of the reorganization plan, it owned the claims asserted by Pros-tok, and thus Prostok’s class lacked standing to raise the claims. New NGC sought a declaratory judgment to that effect.

On February 1, 1999, the Officers and Directors, DLJ, New NGC, and TCW (except The TCW Group, Inc.) joined in a motion for summary judgment asserting that Texas law did not recognize Prostok’s claims. TCW (except The TCW Group, Inc.) filed a separate supplemental motion for summary judgment against Prostok, asserting statute of limitations, res judica-ta, collateral estoppel, and lack of a fiduciary duty.

On March 1,1999, the trial com*t specifically denied TCW’s motion for summary judgment on limitations grounds but granted summary judgment in favor of the Officers and Directors, TCW, and New NGC without specifying grounds. On April 21,1999, the trial court signed a final judgment and dismissed New NGC’s plea in intervention as moot.

C. Appeals

Prostok appealed the trial court’s final take-nothing judgment. Subsequently, DLJ and several of the Officers and Directors settled their disputes with Prostok and the class. Accordingly, the court of appeals severed the claims between these parties and remanded them to the trial court to effectuate their settlements. Thus, the remaining parties on appeal were Prostok, the non-settling Officers and Directors, TCW, and New NGC.

Prostok complained on appeal that the trial court erred in granting summary judgment on his claims against the Officers and Directors and TCW. The court of appeals held that none of the theories asserted by the Officers and Directors could support summary judgment. The court of appeals reversed the summary judgment granted in favor of the Officers and Directors against Prostok.

TCW cross-appealed the trial court’s denial of its motion for summary judgment on statute of limitations grounds. The court of appeals held that TCW’s motion for summary judgment on statute of limitations grounds was meritorious. Thus, the court of appeals effectively affirmed the trial court’s judgment in favor of TCW on different grounds than the trial court articulated in its judgment. New NGC cross-appealed, complaining that the trial court erred in failing to consider and sustain New NGC’s standing argument as an alternative ground for dismissal. The court of appeals reversed the trial court’s dismissal of New NGC’s intervention as to the surviving causes of action. The court of appeals remanded this “ownership” issue to the trial court as a challenge to capacity to sue, instead of as a standing issue as it was raised by New NGC. Therefore, the court of appeals held that Prostok take nothing from TCW because of statute of limitations but remanded all other pending claims to the trial court.

The Officers and Directors petitioned this Court for review, arguing that the court of appeals erred in reversing summary judgment. Specifically, they argue that summary judgment was proper because: 1) Prostok’s claims are an impermissible collateral attack on the bankruptcy court’s final judgment; 2) Texas law does not recognize the duty on which Pros-tok’s claim relies; 3) Prostok’s claims, which arise from alleged misconduct in prior litigation, are precluded under this Court’s holding in Trevino v. Ortega, 969 S.W.2d 950 (Tex.1998); 4) the court of appeals erred in reversing summary judgment on the ground that Prostok could rely on federal bankruptcy law for the existence of a fiduciary duty in state court; and 5) summary judgment was proper on Prostok’s conspiracy claim because it derives from Prostok’s other alleged tort claims.

New NGC also petitioned this Court for review arguing that the court of appeals erred in holding that its claim of ownership merely raised an issue of capacity to sue. New NGC argues that Prostok lacks standing to bring claims for harm suffered by the estate. Lastly, Prostok petitions this Court for review arguing that the court of appeals erred in holding that its claims against TCW were barred by limitations.

II. Standard of Review

In a summary judgment motion brought under Texas Rule of Civil Procedure 166a(c), the moving party has the burden of showing that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law. Provident Life Ins. Co. v. Knott, 128 S.W.3d 211, 215-16 (Tex.2003).

The trial court’s order specifically rejected the motions based on statute of limitations but does not specify which of the remaining grounds asserted formed the basis of its summary judgment. Thus, we may affirm the summary judgment if any of the theories presented to the trial court and preserved for appellate review are meritorious. Id. at 216.

III. Finality of Confirmation Orders

Section 1144 of the United States Bankruptcy Code provides that upon proper request made within 180 days of the entry of the confirmation order and after notice and a hearing, the bankruptcy court may revoke the order if and only if the order was procured by fraud. 11 U.S.C. 1144. Section 1144 provides the exclusive means for revoking a confirmation order. Dale C. Eckert Corp. v. Orange Tree Assocs. (In re Orange Tree Assocs.), 961 F.2d 1445, 1447 n. 6 (9th Cir.1992) (quoting In re Longardner & Assocs., 855 F.2d 455, 460 (7th Cir.1988)); In re Newport Harbor Assocs., 589 F.2d 20, 23-24 (1st Cir.1978). Any attempt to revoke a confirmation order after expiration of the 180-day limitations period is barred even if the alleged fraud is not discovered until then. In re Orange Tree Assocs., 961 F.2d at 1447; see also Farley v. Coffee Cupboard, Inc. (In re Coffee Cupboard, Inc.), 119 B.R. 14, 19 (E.D.N.Y.1990) (“The 180 day time limit in Section 1144 has been strictly enforced by the courts ... even to the extent of enforcing it in those cases where the alleged fraud of the debtor is not discovered until after the limitations period.”) (citations omitted).

In accordance with these principles, the First Circuit in Newport Harbor held that notwithstanding the court’s traditional equitable powers, or powers conferred by Federal Rule of Civil Procedure 60(b), a motion seeking to revoke an order confirming a Chapter 11 reorganization plan filed three years outside the applicable limitations period was filed too late. 589 F.2d. at 23-24. However, the First Circuit also recognized that while the revocation provision provides the exclusive means for revoking a confirmation plan for fraud, it does not necessarily provide the exclusive remedy for debtors or creditors who have been injured by fraud. Id. at 24 (applying the Bankruptcy Act predecessor to Bankruptcy Code Section 1144 and stating, “Our opinion should not be read to suggest that the Debtors or other creditors who may have been injured by fraud are necessarily without other remedies in other forums.”). The court recognized that the “doctrines of res judicata and collateral estoppel would not bar such an action, at least where the alleged fraud could not have been asserted in the bankruptcy proceedings, the underlying factual claims were not actually adjudicated, and the relief sought would not upset the confirmed plan of arrangement.” Id. (emphasis added).

Some federal courts have held that Section 1144 is not the exclusive remedy for debtors or creditors subject to a fraudulently obtained confirmation order if an independent action may otherwise be maintained for the fraudulent conduct. See id.; see also In re Coffee Cupboard, Inc., 119 B.R. at 19 (“Section 1144 does not act as a bar to truly independent courses of action based on a debtor’s wrongful conduct.”). However, debtors and creditors “may not attack confirmation orders by simply characterizing their attempt as an independent cause of action.” In re Coffee Cupboard, Inc., 119 B.R. at 19. The Fifth Circuit has also determined that even though an action has an independent purpose and contemplates some other relief, “it is a collateral attack if it must in some fashion overrule a previous judgment.” Miller v. Meinhard-Commercial Corp., 462 F.2d 358, 360 (5th Cir.1972).

An action is not truly independent when maintenance of the action would violate established finality doctrines or constitute an impermissible collateral attack on the confirmation order. See In re Newport Harbor Assocs., 589 F.2d at 24 (recognizing that a subsequent action could be barred by res judicata and collateral estoppel). Section 1144 provides a means, within a prescribed time limit, to revoke a confirmation order under limited circumstances. F & M Marquette Nat’l Bank v. Emmer Bros. Co. (In re Emmer Bros. Co.), 52 B.R. 385, 390 (D.Minn.1985). A collateral attack brought outside Section 1144’s strict time limit represents nothing more than an impermissible attempt to enlarge the time limit. See id. at 391 (noting that the Section 1144 time limit cannot be enlarged, and later noting that if an action for fraud is construed as an attempt to revoke the confirmation order, then it is barred by the limitations period in Section 1144). An attempt to revoke a confirmation order in a separate proceeding is a collateral attack on the order. See id. (holding that creditors’ complaint was “not an attempt to revoke or otherwise collaterally attack the confirmation order that is subject to the limitations period of Section 1144”). An action which, in effect, attempts to revoke a confirmation order is also a collateral attack. See Miller, 462 F.2d at 360 (“[I]t is a collateral attack if it must in some fashion overrule a previous judgment.”). Thus, if Prostok’s claims constitute an impermissible collateral attack on the confirmation order, Section 1144 of the Bankruptcy Code provides his exclusive remedy. We now turn to whether Prostok’s claims constitute an impermissible collateral attack.

IV. Collateral Attack

Collateral attacks on final judgments are generally disallowed because it is the policy of the law to give finality to the judgments of the courts. Tice v. City of Pasadena, 767 S.W.2d 700, 703 (Tex.1989) (quoting Crouch v. McGaw, 134 Tex. 633,138 S.W.2d 94, 96 (1940)).

[T]he mischief of retrying every case in which the judgment or decree rendered on false testimony, given by perjured witnesses, or on contracts or documents whose genuineness or validity was in issue, and which are afterwards ascertained to be forged or fraudulent, would be greater, by reason of the endless nature of the strife, than any compensation arising from doing justice in individual cases.

United States v. Throckmorton, 98 U.S. 61, 68-69, 25 L.Ed. 93 (1878). This policy of finality is especially important in a Chapter 11 bankruptcy, where the proceedings are intended to rehabilitate a business. A confirmation plan affects the rights of, and restructures the relationships between, the debtor and its creditors. In re Newport Harbor Assocs., 589 F.2d at 22. If the rehabilitative purpose of Chapter 11 is to be realized, Chapter 11 proceedings must be “concluded with reasonable expedition and finality so as to allow certainty for future business planning.” Id.; see also Kaufman v. Pub. Serv. Co. (In re Pub. Serv. Co.), 43 F.3d 763, 768 (1st Cir.1995) (“[T]he willingness of future claimants and creditors to compromise in chapter 11 proceedings depends on giving the reorganization court’s approval a due measure of finality.”); Christopher v. Am. Universal Ins. Group (In re Christopher), 148 B.R. 832, 837 (Bankr.N.D.Tex.1992) (“A strong policy favors enforcement of the plan of reorganization because too many rights of too many interests have relied on the finality of the confirmation order.”). A collateral attack runs counter to this strong policy of finality because a collateral attack attempts to bypass the appellate process in challenging the integrity of a judgment.

A collateral attack is an attempt to avoid the binding force of a judgment in a proceeding not instituted for the purpose of correcting, modifying, or vacating the judgment, but in order to obtain some specific relief which the judgment currently stands as a bar against. Crawford v. McDonald, 88 Tex. 626, 33 S.W. 325, 327 (1895); see also Biaza v. Simon, 879 S.W.2d 349, 353 (Tex.App. — Houston [14th Dist.] 1994, writ denied) (citing Crawford, 33 S.W. at 327). Only a void judgment may be collaterally attacked. Browning v. Placke, 698 S.W.2d 362, 363 (Tex.1985). A judgment is void only when it is apparent that the court rendering judgment “had no jurisdiction of the parties or property, no jurisdiction of the subject matter, no jurisdiction to enter the particular judgment, or no capacity to act.” Id. (citing Austin Indep. Sch. Dist. v. Sierra Club, 495 S.W.2d 878, 881 (Tex.1973)). A confirmation order issued by a bankruptcy court has the effect of a judgment rendered by a district court. Miller, 462 F.2d at 360; In re Emmer Bros., 52 B.R. at 390. Prostok does not argue that the bankruptcy order was void; therefore, any collateral attack is improper.

The heart of Prostok’s complaint is that the alleged misconduct of the Officers and Directors and TCW during the bankruptcy proceedings resulted in the bankruptcy court’s undervaluation of National Gypsum. In turn, he argues, the Junior Bondholders received less than what they would have received had the estate been properly valued. To calculate the damages incurred by Prostok and the Junior Bondholders he represents, a court would need to determine not only how much larger the bankruptcy estate would have been but for the defendants’ conduct, but also what percentage of the estate each class of creditors would have been entitled to if the bankruptcy court had considered the larger estate. Thus, while Prostok’s action contemplates relief other than revoking the confirmation order, it necessarily challenges the integrity of the order and results in a review, perhaps a recalculation, of the bankruptcy determinations of the assets to which some claimants are entitled. See Miller, 462 F.2d at 360 (holding an unsecured creditor’s post-confirmation suit against a secured creditor for fraudulent misrepresentation at a creditors’ meeting constituted a collateral attack on the confirmation order); Mitchell v. Village Creek Drainage Dist. 158 F.2d 475, 477-78 (8th Cir.1946) (state law defining collateral attack generally as a separate proceeding in which the integrity of the judgment is challenged even if brought with some independent purpose); In re French Gardens, Ltd., 58 B.R. 959, 963 (Bankr.S.D.Tex.1986) (“Though an action may have an independent purpose and may contemplate some other relief, it is a collateral attack if it must in effect overrule a previous judgment.”). The success of Prostok’s state court suit necessarily turns upon what the judgment of the bankruptcy court should have been. See Miller, 462 F.2d at 360.

The court of appeals held that Prostok’s claims do not collaterally attack the confirmation order because they are based on conduct extrinsic to the confirmation order. 112 S.W.3d 876, 905. This Court has held that when a party does not seek to set aside a prior judgment, but instead brings suit based on extrinsic fraud, the action is not a collateral attack. State v. Durham, 860 S.W.2d 63, 67 (Tex.1993) (recognizing, in a suit brought by the state for fraud in obtaining court approval for an oil and gas lease, that the State had not sought to set aside the judgment but had “alleged fraud extrinsic to the judgment, and invoke[d] the equity powers of the court to impose a constructive trust”); cf. Spera v. Fleming, Hovenkamp & Grayson, P.C., 25 S.W.3d 863, 871 (Tex.App.— Houston [14th DistJ 2000, no pet.) (holding that extrinsic conduct that formed the basis of claims for attorney malpractice and breach of fiduciary duty were not a collateral attack on trial court’s order apportioning attorneys’ fees). In contrast, the underlying issues resolved by a judgment are considered intrinsic. See King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 752 (Tex.2003) (“Issues underlying the judgment attacked by a bill of review are intrinsic and thus have no probative value on the fraud necessary to [support] a bill of review.”). An attack on a final judgment, otherwise constituting a collateral attack, cannot be maintained on grounds that the judgment was obtained through fraudulent conduct intrinsic to the judgment. See Neill v. Neill, 386 S.W.2d 642, 647 (Tex.Civ.App. — Austin 1965, writ dism’d) (“Neither a collateral nor a direct attack upon a prior judgment can be based upon intrinsic fraud.”).

Extrinsic fraud is fraud that denies a losing party the opportunity to fully litigate at trial all the rights or defenses that could have been asserted. Montgomery v. Kennedy, 669 S.W.2d 309, 312 (Tex.1984) (citing Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996, 1001 (1950)). It generally includes wrongful conduct occurring outside of the adversarial proceedings. See Hagedorn, 226 S.W.2d at 1002 (citing Phillips Petroleum Co. v. Jenkins, 91 F.2d 183, 187 (8th Cir.1937)). The fraud must be collateral to the matter tried and not something which was actually or potentially in issue. Montgomery, 669 S.W.2d at 312. For example, a fiduciary’s concealment of material facts to induce an agreed or uncontested judgment, which prevents a party from presenting his legal rights at trial, is extrinsic fraud. Id. at 313.

Intrinsic fraud, by contrast, “relates to the merits of the issues [that] were presented and presumably were or should have been settled in the former action.” Tice, 767 S.W.2d at 702. Intrinsic fraud includes fraudulent instruments, perjured testimony, or any matter which was actually presented to and considered by the trial court in rendering judgment. Id,.; see also Montgomery, 669 S.W.2d at 313 (“It is particularly well-established that the alleged perjury of a witness on a contested issue, which the opposing party had the opportunity to refute, is intrinsic fraud.”). Allegations that a plaintiff conspired to suborn perjury is an allegation of intrinsic fraud. Tice, 767 S.W.2d at 702. In addition, when the fraudulent acts themselves are in issue, or could have been in issue, in the prior proceeding, the fraud is intrinsic. Montgomery, 669 S.W.2d at 313 (citing Mills v. Baird, 147 S.W.2d 312, 316 (Tex.Civ.App. — Austin 1941, writ ref d)). This Court has noted that while concealment of a material fact by a fiduciary charged with the duty of full disclosure generally is extrinsic fraud, where “the alleged specific fraudulent acts were known and in issue in the prior suit, the fraud is intrinsic.” Id. at 313-14. Similarly, the First Circuit affirmed a bankruptcy court’s injunction barring a civil action for fraud occurring in Chapter 11 proceedings “[bjecause the alleged inaccuracies could have been, and in part were, litigated in the bankruptcy court.” In re Pub. Serv. Co., 43 F.3d at 768.

The distinction between extrinsic and intrinsic fraud as grounds for attacking a judgment represents a balance of competing concerns. On one hand, the sound policy of promoting finality in judgments arises from a general level of confidence that the adversarial process leading to judgment is reasonably effective to ascertain the merits of the controversy. See Restatement (Second) of Judgments § 70 cmt. a (1982). While no system is infallible, “[e]ndless litigation, in which nothing was ever finally determined, would be worse than occasional miscarriages of justice.” Hagedom, 226 S.W.2d at 998 (quoting Pico v. Cohn, 91 Cal. 129, 25 P. 970, 971 (1891)). On the other hand, to fully insulate judgments from attack would give great protections to the most devious parties. See. Restatement (Seoond) of Judgments § 70 cmt. a (1982) (“[I]f judgments were wholly immune it would give powerful incentive to use ... fraudulent tactics in obtaining a judgment.”). As such, an attack upon a judgment based on intrinsic fraud is not allowed because the fraudulent conduct may be properly exposed and rectified within the context of the underlying adversarial process itself. In contrast, a collateral attack on a judgment on the basis of extrinsic fraud is allowed because such fraud distorts the judicial process to such an extent that confidence in the ability to discover the fraudulent conduct through the regular adversarial process is undermined. See Throckmorton, 98 U.S. at 65 (“But there is an admitted exception to this general rule [of finality] in cases where, by reason of something done by the successful party to a suit, there was in fact no adversary trial or decision of the issue in the case.”); see generally 47 Am.Jur.2d Judgments § 929 (1995) (citing Peet v. Peet, 16 Va.App. 323, 429 S.E.2d 487, 490 (1993)).

It is undisputed that the BT Committee represented the interests of Prostok and the other Junior Bondholders in the bankruptcy proceedings. 112 S.W.3d at 885. In January 1992, the BT Committee filed a motion requesting appointment of a Chapter 11 trustee to replace National Gypsum’s management pursuant to Section 1104 of the Bankruptcy Code. One of the grounds alleged was that management intentionally undervalued National Gypsum by manipulating downward the company’s value arising from its business plan. Specifically, the BT Committee claimed that “[m]anagement intentionally understated all its forecasts to hide its objective views of the company and to hide the company’s value.” In addition, the BT Committee asserted that this “manipulation [was] a weapon [mjanagement has used to try to eliminate the consensual plan forged by the BT Committee and to promote a war between the senior and junior bondholders.” The BT Committee made similar arguments at the hearing on the motion, making clear that the “debtor’s business plan is the driver of Chapter 11 plan negotiations because from that busi-ness [sic] plan, which typically extends several years into the future, future profits and cash flow are measured, and the valuation of a business is measured. If that business plan is manipulated down-wards [sic] ... it affects the ultimate outcome of the case in a major way.” In March 1992, the bankruptcy court rejected the BT Committee’s motion for appointment of a trustee, and specifically held that the BT Committee had not met its burden to prove that National Gypsum’s management had intentionally manipulated the company’s business plan.

National Gypsum submitted a reorganization plan to the bankruptcy court based on a valuation of $850 million. In November 1992, the BT Committee objected to the confirmation of this plan. Again, the BT Committee raised an allegation of intentional undervaluation. The BT Committee alleged, among other things, that “[National Gypsum] management [had] systematically exploited the plan process and intentionally manipulated downward its business projections and [National Gypsum’s] value.” Further, the BT Committee alleged that this plan was supported by a small creditor faction “[i]n exchange for greater than 100% recovery and control of the reorganized company’s board of directors.” Confirmation hearings on the proposed plan began on December 7, 1992. On March 9, 1993, the Bankruptcy Court entered its order confirming National Gypsum’s reorganization plan and its supporting findings of fact and conclusions of law. The bankruptcy court expressly overruled all objections to the confirmation of the plan and found that the debtor solicited the plan in good faith.

In this case, Prostok complains that the Officers and Directors intentionally misled the bankruptcy court regarding the proper valuation of National Gypsum. The controlling question is “whether the alleged fraud prevented the party from knowing about and presenting [their] legal rights at trial.” Montgomery, 669 S.W.2d at 314. The alleged fraudulent conduct, the misrepresentation of the value of National Gypsum, is a material issue that was presented and considered by the bankruptcy court over two years before Prostok filed this suit. The conduct was considered by the bankruptcy court in rendering judgment — specifically, when the trial court denied the BT Committee’s motion to appoint a trustee and again in overruling the BT Committee’s objection to the confirmation of National Gypsum’s proposed reorganization plan. The fraud Prostok now alleges did not prevent the Junior Bondholders from presenting them legal rights in the bankruptcy proceedings. In fact, the BT Committee raised and litigated at the bankruptcy court the fraud Prostok now alleges. Fraud is intrinsic when the fraudulent conduct was in issue in the prior proceedings, even when the acts are committed by a fiduciary. Id. at 313-14. Because the fraud Prostok alleges was litigated in the bankruptcy proceedings, the alleged fraudulent conduct is intrinsic to the confirmation order. Therefore, Pros-tok’s allegations based on intrinsic fraud constitute an impermissible collateral attack on the bankruptcy’s confirmation order.

Prostok argues that, at a minimum, claims based on fraudulent conduct occurring post-confirmation could not have been subject to the confirmation order. It is axiomatic that fraud discovered post-confirmation could not have been litigated in the pre-confirmation bankruptcy proceedings. The post-confirmation conduct to which Prostok refers is the delayed implementation of a cost-savings plan. However, it is the misrepresentation of the proper valuation of National Gypsum, by failing to reveal this cost-savings plan to the bankruptcy court during the bankruptcy proceedings, that is ultimately the basis of Prostok’s alleged damages. In addition, the implementation of a cost-savings plan simply does not present the type of new evidence of fraud necessary to justify deviation from the general rule of finality. See In re Pub. Serv. Co., 43 F.3d at 768 (“Absent substantial new evidence of fraud, there is no reason why Congress would have wished, or the courts should permit, participants who actively participated in the reorganization to relitigate in later civil actions previously raised issues about the adequacy of the disclosure statement, or to reserve for such actions claims that feasibly could have been made in the reorganization.”).

Prostok also argues that we cannot treat his claims as a collateral attack on the bankruptcy court’s confirmation judgment because the bankruptcy court itself expressly rejected this argument. In ruling on Prostok’s motion to remand, the bankruptcy judge held that the complaint did not give rise to ancillary jurisdiction under the Fifth Circuit’s decision in Baccus v. Parrish, 45 F.3d 958, 960-61 (5th Cir.1995) (finding removal proper where a state suit sought to set aside provisions of a settlement agreement in a federal case). This ruling was subsequently upheld by the district court on appeal of the bankruptcy court’s order remanding the case to state court. Specifically, the bankruptcy judge held that the “complaint does not seek to attack or undermine an order of this court.” Even if these statements refer to the issue of whether Prostok’s claims constitute a collateral attack on the judgment, because the bankruptcy court held that it lacked subject matter jurisdiction to rule on the substance of the case, the statements carry no preclusive effect on this Court’s consideration of the substantive collateral attack defense. See Smith v. Texas Children’s Hosp., 172 F.3d 923, 926 (5th Cir.1999); Soley v. First Nat’l Bank of Commerce, 923 F.2d 406, 409 (5th Cir.1991) (citing Whitman v. Raley’s Inc., 886 F.2d 1177, 1181 (9th Cir. 1989)) (<cWe take comfort in the fact that, because we construe the order as jurisdictional, the district court’s statements will have no preclusive effect on the state court’s consideration of the. substantive preemption defense.”).

Finally, the court of appeals relies heavily on several federal cases for the proposition that “bankruptcy courts agree that Section 1144 does not bar fraud claims unless those claims would require revocation of a confirmed plan.” 112 S.W.3d at 903 (citing S.N. Phelps & Co. v. Circle K Corp. (In re Circle K Corp.), 181 B.R. 457, 460 (Bankr.D.Ariz.1995); In re Emmer Bros. Co., 52 B.R. at 392). In both of these cases the courts determined that the cause of action was the type of independent action contemplated in Newport Harbor. However, these cases are readily distinguishable from the case at hand.

In Emmer Brothers, a creditor bank sued a debtor for wrongfully withholding and concealing the existence of an asset, thereby obtaining a settlement agreement and order approving it on false pretenses. 52 B.R. at 388. The bankruptcy court dismissed the complaint on two grounds, one of which was that it was time barred under Section 1144. On review, the district court held that the bank’s complaint was “not an attempt to revoke or otherwise collaterally attack the confirmation order that is subject to the limitations of Section 1144.” Id. at 391 (emphasis added). The action was allowed to proceed. Applying the test in Newport Harbor, the court determined that the plaintiff could not have asserted the fraud in the Chapter 11 proceedings. Id. at 892. Thus, unlike the case at hand, the alleged fraudulent conduct was not and could not have been asserted in the underlying bankruptcy proceedings.

Similarly, in Circle K, the creditors sought damages based on allegations of improper conduct, defective disclosures, and erroneous valuation information in connection with the debtor’s plan of reorganization. 181 B.R. at 459. In determining whether the action was time barred by Section 1144, the bankruptcy court noted that “in applying NewpoH Harbor, courts look carefully at the cause of action and requested relief to determine if plaintiff is seeking to revoke [the] confirmation [order] or ‘redivide the pie.’” Id. at 462. Finding that the bare requirements of Newport Harbor were met, the bankruptcy court noted that arguably the alleged fraud could not have been asserted in the confirmation proceedings and that the underlying claims certainly were not actually adjudicated. Id. at 462. Again, Circle K does not present the situation, as in this case, where the alleged fraud was in fact asserted in the underlying bankruptcy proceedings.

V. Conclusion

Because we hold that Prostok’s suit constitutes an impermissible collateral attack on the confirmation order, we need not reach the other issues raised in the Officers and Directors’, New NGC’s, or Pros-tok’s petitions for review. Accordingly, we reverse the judgment of the court of appeals in part and affirm in part, and render judgment that Prostok take nothing.

Justice O’NEILL did not participate in the decision.

      . In Chapter 11 bankruptcy proceedings, the bankruptcy court, upon a showing of cause, will appoint a trustee to manage the estate of the debtor. 11 U.S.C. § 1104. If a trustee is not appointed, the debtor will continue to operate the business as the debtor-in-possession during the bankruptcy proceedings. Id. § 1108. The debtor-in-possession assumes most of the powers and duties of the trustee. Id. § 1107(a).

      . At the same time, the trustee created the official asbestos claimants’ committee, comprised of attorneys representing asbestos-related personal injury and property damage claimants in the bankruptcy proceedings.

      . Section 1104(a) provides:
      At any time after the commencement of the case but before confirmation of a plan, on request of a party in interest or the United States trustee, and after notice and a hearing, the court shall order the appointment of a trustee — (1) for cause, including fraud, dishonesty, incompetence, or gross mismanagement of the affairs of the debtor by current management, either before or after the commencement of the case, or similar cause, but not including the number of holders of securities of the debtor or the amount of assets or liabilities of the debtor; or (2) if such appointment is in the interests of .creditors, any equity security holders, and other interests of the estate, without regard to the number of holders of securities of the debtor or the amount of assets or liabilities of the debtor.

      . Jackie Field Jr. and Alfred Earnest were later added as additional class representatives. We refer to Prostok, Field, and Earnest collectively as Prostok.

      . The group referred to as TCW consists of TCW Special Credits, The TCW Group, Inc., Trust Company of the West, and TCW Asset Management Company.

      . New NGC joined the NGC Asbestos Disease and Property Damage Trust as an involuntary plaintiff on July 24, 1998. However, the court of appeals subsequently severed and abated all claims made by and against the Asbestos Claimants. Thus, we express no opinion regarding the issues concerning the Asbestos Claimants and omit any background and procedural history concerning this party.

      . The TCW Group, Inc. did not move for summary judgment at the same time as the other TCW defendants because it had filed a special appearance. The TCW Group, Inc. moved for summary judgment on March 5, 1999 on the same grounds applicable to the other TCW defendants. The motion for summary judgment was granted in part and denied in part on April 21, 1999 on the same grounds as applicable to the other TCW defendants.

      .Prostok and the Asbestos Claimants also moved for summary judgment on New NGC’s cross-claim and the counterclaims of the Officers and Directors and DLJ, which sought to enforce the fee-shifting provision of the bankruptcy plan. This provision provided that in any suit contesting any action or inaction of certain parties (including the Officers and Directors, New NGC, or their financial advisors) as not being in good faith, the losing party would be required to pay the prevailing parties reasonable attorneys' fees and costs. The trial court granted Prostok and the Asbestos Claimants’ motion for summary judgment. The court of appeals reversed the trial court. Prostok does not raise this issue to this Court. Accordingly, we omit any discussion regarding litigation on the fee-shifting provision from our opinion.

      . The non-settling Officers and Directors are Peter C. Browning, Edward A. Porter, Autino O. Maraia, Bernard Kasriel, Gerard P. Carroll, and Cynthia Hartley.

      . The relevant portion of the court of appeals' judgment reads:
      That portion of the trial court’s judgment denying summary judgment on the grounds of the statute of limitations is REVERSED and judgment is hereby RENDERED that Jeff P. Prostok, Jackie Field, Jr., and Alfred Earnest, and all others similarly situated, take nothing by way of their claims against TCW Special Credits, Trust Company of the West, TCW Asset Management Company, and The TCW Group Inc.
      Because TCW was successful on other grounds at the trial court, the reversal on their cross-appeal effectively affirmed the trial court's judgment.

      .New NGC, joined by the Officers and Directors, also complained on appeal that the trial court erred in granting summary judgment against it on its cross-claims for attorneys’ fees under the fee-shifting provisions of the reorganization plan. See supra note 7.

      . Federal Rule of Civil Procedure 60(b) permits a court to relieve a party from final judgment for several enumerated reasons, including fraud by an adverse party.

      . The court of appeals held that Prostok take nothing from TCW based on TCW's limitations defense. We affirm the judgment in favor of TCW but on the grounds described in this opinion. We do not reach TCW's limitations defense. The court of appeals also reversed the trial court’s dismissal of New NGC’s plea in intervention. We do not decide whether the trial court’s dismissal was proper since no cause of action upon which New NGC’s plea in intervention was based survives this judgment.


source: Caselaw Access Project

author: Justice BRISTER Justice O’NEILL,

license: Public Domain

text:
    VAN INDEPENDENT SCHOOL DISTRICT, Petitioner, v. Scott A. McCARTY, Respondent.
    No. 03-1123.
    Supreme Court of Texas.
    May 27, 2005.

      Eric W. Schulze, Stephen Elliott Dub-ner, Walsh Anderson Brown Schulze & Aldridge, P.C., Austin, for petitioner.
    Bill D. Rosenstein, Tyler, for respondent
   Justice BRISTER

delivered the opinion of the Court, in which

Chief Justice JEFFERSON, Justice HECHT, Justice OWEN, Justice WAINWRIGHT, Justice MEDINA, and Justice GREEN

joined.

Scott A. McCarty fried suit against Van Independent School District under Chapter 451 of the Texas Labor Code, contending he was terminated in retaliation for filing a workers’ compensation claim. The District filed a plea to the jurisdiction asserting McCarty had not exhausted his administrative remedies, which the trial court denied. The District fried an interlocutory appeal. The court of appeals affirmed.

Generally, this Court does not have jurisdiction to consider a petition from an interlocutory appeal. But there is an exception for cases in which one of the courts of appeals holds differently from a prior decision of this Court. The District asserts such a conflict here; we agree and reverse.

McCarty worked for fourteen years as a maintenance employee for the District. He asserts that he was injured on the job on July 26, 2001, and after filing a compensation claim was terminated on August 2, 2001. The District asserts he was terminated for falsifying records and making false statements to his supervisor.

The court of appeals held and the parties agree that McCarty was required to file a notice of appeal to the District’s Board of Trustees within seven days of his termination. He did not do so until August 23, two weeks after the deadline.

In a more detailed request two months later, McCarty asked the Board to grant him a hearing regarding “the facts surrounding my wrongful termination” and “[i]f necessary ... regarding my failure to comply with the time requirements of the Grievances [sic] Procedure.” At the Board’s regular meeting on November 12, 2001, the minutes reflect that after an executive session the Board “[djenied Scott McCarty’s grievance and upheld the administrative decision on the basis of Mr. McCarty’s untimely request for a hearing and also based on the evidence presented in the hearing.”

McCarty filed this lawsuit eight months later. The District filed a plea to the jurisdiction arguing McCarty’s suit should be dismissed for failure to exhaust administrative remedies. When the trial court denied the plea, the District filed an interlocutory appeal.

The court of appeals held that exhaustion of remedies was a prerequisite to the trial court’s jurisdiction, citing our opinion in Wilmer-Hutchins Independent School District v. Sullivan, Neither party challenges this holding.

But the Twelfth Court of Appeals held that the District waived the exhaustion requirement when its Board heard McCarty’s grievance and rendered a decision on the merits. The court relied on opinions by the Third Court of Appeals that a school board waives any objection to untimeliness by conducting an evidentiary hearing on an employee’s grievance.

But the Board here expressly refused to waive the issue of timeliness. While waiver may sometimes be established by conduct, that conduct must be unequivocally inconsistent with claiming a known right. Hearing the merits of a party’s complaint while reserving a ruling on its timeliness is not unequivocally inconsistent with later denying the complaint on the latter ground.

Here, District policy allowed the parties to waive time deadlines “by mutual consent.” Reasonable board members might want to grant such consent only in cases that appear to have merit. If any inquiry along those lines waives the deadline (despite an express reservation to the contrary), then no board will ever do it, and all extensions will be denied. We hold that the District did not waive its deadlines if the Board heard some evidence on McCarty’s termination.

In Wilmer-Hutchins, a custodian claimed that a school district fired her for filing a workers’ compensation claim, just as McCarty does here. She acknowledged that exhaustion of administrative remedies was a prerequisite to the trial court’s jurisdiction, just as McCarty does here. While we held in Wilmer-Hutch-ins that subject-matter jurisdiction could not be conferred by estoppel, we have held it cannot be conferred by waiver either. Accordingly, the court of appeals’ opinion conflicts with Wilmer-Hutchins, and we have jurisdiction to correct that conflict. Our dissenting colleague would hold that school boards cannot impose deadlines for administrative complaints, or at least cannot enforce them. This would certainly be an issue of first impression to the parties, none of whom ever made such an argument in the trial or appellate courts. We postpone consideration of such a sweeping ruling to a case in which it is raised.

We also decline to adopt our dissenting colleague’s view that administrative procedures can be ignored if a creative applicant convinces a court that some other procedure was just as good. An employee’s letter, phone call, or chance conversation with a member might give a board “the first chance to consider his grievance,” but exhaustion of administrative remedies generally requires compliance rather than avoidance.

Accordingly, without hearing oral argument, we reverse the court of appeals’ judgment and dismiss the case for want of jurisdiction.

Justice O’NEILL filed a dissenting opinion.

Justice JOHNSON did not participate in the decision.

Justice O’NEILL,

dissenting.

The Court, without the benefit of oral argument, summarily resolves an issue of first impression by holding that compliance with non-statutory administrative deadlines was a jurisdictional prerequisite to filing suit in this case. Moreover, the Court does so without acknowledging the impact of its holding. I believe that McCarty exhausted his administrative remedies by requesting the Board to hold a hearing on his grievance and to waive the non-statutory deadline for filing the request. I also believe that the purpose of the exhaustion requirement was satisfied in this case. Because I would hold that the district court had jurisdiction over McCarty’s retaliatory discharge claim, I respectfully dissent.

McCarty was an at-will employee of Van Independent School District who sued for unlawful termination under chapter 451 of the Texas Labor Code. As the Court notes, we have held that the trial court lacked subject-matter jurisdiction in a case in which a similarly situated plaintiff failed to exhaust her administrative remedies by suing a school district for retaliatory discharge without first invoking the local grievance procedures. Wilmer-Hutchins Indep. Sch. Dist. v. Sullivan, 51 S.W.3d 293, 294 (Tex.2001) (per curiam). But unlike the plaintiff in Wilmer-Hutchins, McCarty invoked the grievance procedures by requesting a hearing before the Board of Trustees as set out in the local policy; he simply failed to do so within the seven-day deadline set by the policy.

I agree with the Court, as did the court of appeals, that failure to exhaust administrative remedies is a jurisdictional defect. Unlike the Court, however, I do not read the court of appeals’ opinion to hold that subject matter jurisdiction can be and was conferred by waiver, 165 S.W.3d at 354; in fact, the court of appeals expressly recognized the proposition that subject matter jurisdiction cannot be conferred on a court by waiver. 165 S.W.3d 351, 354 (citing Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76 (Tex.2000)). What the court of appeals did hold was that “the matter waived [i.e., the seven-day filing deadline] was not a prerequisite to subject matter jurisdiction.” Id. The real issue, then, is whether McCarty failed to exhaust his administrative remedies by filing his grievance in an untimely fashion, or whether the administrative deadline was simply a procedural requirement that could be waived.

The Court effectively agrees with the former proposition by holding that because the Board did not extend the deadline and McCarty did not comply with it, he failed to exhaust his administrative remedies.

165 S.W.3d at 352-53. But whether a local administrative body like a school district can impose such a jurisdictional deadline is an issue of first impression that the Court decides with little to no analysis.

We have previously addressed the issue of whether administrative deadlines imposed by statute are jurisdictional when exhaustion of administrative remedies is required. In Schroeder v. Texas Iron Works, Inc., we held that a person claiming a violation of the Commission on Human Rights Act (CHRA) must first exhaust the administrative remedies set out in the statute. 813 S.W.2d 483, 485 (Tex.1991) (citing Act of July 8, 1983, 68th Leg., 1st C.S., ch. 7, 1983 Tex. Gen. Laws 37, repealed by Act of May 24, 1993, 73d Leg., R.S., ch. 269, § 5, 1993 Tex. Gen. Laws 1273 (current version at Tex. Lab.Code §§ 21.001-21.306)). We specifically noted that the statutory provision requiring a claim to be filed with the Commission within 180 days after the alleged unlawful practice occurred was “mandatory and jurisdictional.” Id. at 486. But in contrast to the CHRA, chapter 451 of the Labor Code sets out no administrative prerequisites for bringing a claim against an employer for discrimination based on filing a worker’s compensation claim. Tex. Lab. Code §§ 451.001-451.003. Nor does the Education Code provide an administrative review system governing someone in McCarty’s situation; it simply gives the school board the authority to “adopt a policy providing for the employment and duties of district personnel.” Tex. Educ. Code § 11.163.

I cannot interpret that general provision to give local school boards authority to impose jurisdictional deadlines on employees who assert a statutory claim for retaliatory discharge. I agree with the court of appeals that strict compliance with the seven-day deadline was not a jurisdictional prerequisite to filing suit. The deadline was rather a local administrative requirement that the Board could waive. See, e.g., Grigsby v. Moses, 31 S.W.3d 747, 750 (Tex.App.-Austin 2000, no pet.) (school board did -not waive fifteen-day deadline for employee to initially present grievance by listening to employee’s complaint without receiving evidence or acting on the merits); Hernandez v. Meno, 828 S.W.2d 491, 494 (Tex.App.-Austin 1992, writ denied) (school district waived ten-day deadline for employee to request a hearing by actually conducting an evidentiary hearing on the merits). Indeed, the grievance policy itself expressly contemplated that the deadlines could be waived by mutual consent. That the Board ultimately rejected McCarty’s extension request as well as the merits of his case does not mean that he failed to invoke the administrative grievance process for exhaustion purposes.

It is important to keep in mind in cases like this the general purpose of the exhaustion-of-remedies doctrine, which is to prevent courts from interfering with administrative procedures before an agency has been allowed to complete its own decision and review process. United States v. Patemostro, 966 F.2d 907, 912 (5th Cir. 1992). That purpose has been met here. By requesting that the Board grant him a hearing and waive the untimeliness of his request, McCarty gave the school board the first chance to consider his grievance, which it did by conducting an evidentiary hearing and denying the grievance.

There were no further administrative requirements, pursuant to either the statute or the local policies, for McCarty to meet before filing his statutory suit for retaliatory discharge.

I would hold that McCarty exhausted his administrative remedies and that the district court had subject matter jurisdiction over his retaliatory discharge lawsuit. Because the Court holds otherwise, I respectfully dissent.

      . See Tex. Civ. Prac. & Rem.Code § 51.014(a)(8).

      . 162 S.W.3d at 256.

      . See Tex. Gov’t Code § 22.225(b)(3).

      . Id. at § 22.225(c); § 22.001(a)(2).

      . 162 S.W.3d at 256.

      . See Tex. Gov’t Code § 551.074(a) (exempting deliberations on dismissal of public employee from Open Meetings Act).

      . 51 S.W.3d 293, 294 (Tex.2001).

      . Although Chapter 451 of the Labor Code contains no explicit exhaustion requirement, the court below and others have required exhaustion of retaliation complaints by school employees. See 162 S.W.3d at 259; Washington v. Tyler Indep. Sch. Dist., 932 S.W.2d 686, 689 (Tex.App.Tyler 1996, no pet.); Tones v. Dallas Indep. Sch Dist., 872 S.W.2d 294, 296 (Tex.App.Dallas 1994, writ denied). As we did in Wilmer-Hutchins, we again assume this is correct without deciding it as McCarty "acknowledges that exhaustion of remedies is a prerequisite to the trial court’s jurisdiction in a case like this involving disputed fact issues.” Wilmer-Hutchins, 51 S.W.3d at 294 (citations omitted).

      . 162 S.W.3d at 259.

      . See Hernandez v. Meno, 828 S.W.2d 491, 494 (Tex.App.Austin 1992, writ denied); Hav-ner v. Meno, 867 S.W.2d 130, 134 (Tex.App.Austin 1993, no writ). But see Grigsby v. Moses, 31 S.W.3d 747, 750 (Tex.App.Austin 2000, no pet.) (holding school board did not waive objection to untimeliness by listening to but not ruling on employee’s grievance).

      . First Valley Bank of Los Fresnos v. Martin, 144 S.W.3d 466, 471 (Tex.2004); Jemigan v. Langley, 111 S.W.3d 153, 156 (Tex.2003).

      . Cf., e.g., Tex.R. Civ. P. 301 (providing court may render judgment non obstante veredicto when directed verdict would have been proper).

      . As the session was closed, it is unclear how the court of appeals concluded as a matter of law that the evidence presented at the hearing necessarily went to the merits. Although the Board minutes state that McCarty’s grievance was denied based on untimeliness "and also . based upon the evidence presented in the hearing,” there is no way to tell what that evidence might have related to. While the minutes reflect the passage of two hours between the time the Board took up McCarty’s complaint and the time it issued a decision, this only shows the Board members were patient — the minutes also show their meeting began at 6:30 p.m. and was concluded more than seven hours later at 1:45 a.m.

      . 51 S.W.3d at 293.

      . Id. at 294.

        .Id. at 294-95.

      . Univ. of Tex. Southwestern Med. Ctr. at Dallas v. Loutzenhiser, 140 S.W.3d 351, 358 (Tex.2004); Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76 (Tex.2000) {quoting Fed. Underwriters Exch. v. Pugh, 141 Tex. 539, 174 S.W.2d 598, 600 (1943)).

      . Tex. Gov’t Code § 22.225(c), (e).

      . Nor is "the real issue” whether untimeliness is "jurisdictional” or "simply a procedural requirement that could be waived.” The Board's own policy allowed extensions; the Board simply refused to grant one, and McCarty never asserts that refusal was error. An extension by the Board would constitute waiver of a procedural right; reversing dismissal of an untimely complaint on the belief that it was really a ruling on the merits would substitute the judgment of courts for that of school boards.

      . 165 S.W.3d at 356.

      . See Tex.R.App. P. 59.1.

      . I note, however, that the deadline itself was not entirely clear in this case. The superintendent's letter terminating McCarty did not specify a deadline, but merely informed him that he had "the right to request and to be heard by the Board in accordance with policy DGBA (LOCAL).” The policy provides for a three-step grievance process, each with its own deadlines. The District concedes here that the first two steps of the process, which require an employee to discuss a grievance with his principal or immediate supervisor and then with the superintendent, did not apply in McCarty’s case because he was terminated directly by the superintendent. Given this departure from the usual procedure, the deadline to request that the matter be placed on the agenda of a future Board meeting (step 3) understandably may not have been readily apparent to McCarty.

      . I accordingly question the Court’s conclusion that the court of appeals’ opinion conflicts with Wilmer-Hutchins such that we have conflicts jurisdiction in this case. 165 S.W.3d at 354.

      . The Court expresses doubt as to the nature of the evidence presented at the closed hearing. 165 S.W.3d at 354 n. 13. But the District does not dispute that the Board rendered an alternative decision on the merits; rather, it contends there was no waiver because of the Board's independent denial of McCarty’s grievance based on his failure to meet the deadline.


author: HOLCOMB, J.,

text:
    Steven Harry POWERS, Appellant, v. The STATE of Texas, Appellee.
    No. PD-1380-04.
    Court of Criminal Appeals of Texas.
    June 15, 2005.

      Abe Factor, Fort Worth, for Appellant.
    Kimberly Wesley, Asst. District Attorney, Fort Worth, Matthew Paul, State’s Atty., Austin, for State.
   OPINION

HOLCOMB, J.,

delivered the opinion of the Court, in which

KELLER, P.J., PRICE, WOMACK, JOHNSON, KEASLER, HERVEY, and COCHRAN, J.J., joined.

Appellant was charged by information with driving whole intoxicated. Tex. Pen. Code Ann. § 49.04(a) (Vernon 2003). A jury convicted him and assessed punishment at a $750.00 fine and 150 days in jail, probated for two years. The court of appeals reversed the judgment of the trial court and remanded the cause for a new trial. We reverse the judgment of the court of appeals.

Factual and ProceduRal BaCkground

Appellant was involved in a single-car accident in Tarrant County. Two officers responded to the scene, both of whom later testified as fact witnesses at appellant’s trial. The officers’ testimony described appellant’s poor performance in field sobriety tests and the horizontal gaze nystag-mus test, and generally tended to show that appellant was intoxicated at the time of the accident.

One of the two officers, Samuel Williams of the Arlington Police Department, later became employed by the Tarrant County District Attorney; and by the time of trial, he worked as a prosecutor in the misdemeanor section. Although Williams worked in the same county as the court of conviction and had other matters pending before the court of conviction, he did not serve as a lawyer in appellant’s case.

Appellant objected when Williams was called to the stand, complaining that the rules of professional responsibility prevented his testimony. Because appellant did not have notice that the prosecutor was going to call Williams, the trial court took a recess to allow appellant to develop his argument. Ultimately, the trial court received the testimony over appellant’s objection and denied his request for a mistrial.

The court of appeals did not address whether Williams served “dual roles,” i.e., whether Williams’s mere status as (1) a lawyer with the district attorney’s office and (2) a fact witness in the case, constituted “dual roles” as proscribed by Texas Rule of Professional Responsibility 3.08. Powers v. State, 140 S.W.3d 851, 854-55 (Tex.App.-Fort Worth 2004). The court of appeals, however, concluded that “dual-role problems” deprived appellant of a fair trial or otherwise affected his substantial rights. Id. at 856-57. Because we hold that Williams did not serve “dual roles” as contemplated by Rule 3.08, we do not reach the question of whether appellant was harmed.

Discussion

Under a heading entitled “Standard of Review,” the court of appeals set forth, in pertinent part, Rule 3.08:

(a) A lawyer shall not accept or continue employment as an advocate before a tribunal in a contemplated or pending adjudicatory proceeding if the lawyer knows or believes that the lawyer is or may be a witness necessary to establish an essential fact on behalf of the lawyer’s client, unless:
(1) the testimony relates to an uncontested issue;
(2) the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony;
(3) the testimony relates to the nature and value of legal services rendered in the case;
(4) the lawyer is a party to the action and is appearing pro se; or
(5) the lawyer has promptly notified opposing counsel that the lawyer expects to testify in the matter and disqualification of the lawyer would work substantial hardship on the client.
(c) Without the client’s informed consent, a lawyer may not act as advocate in an adjudicatory proceeding in which another lawyer in the lawyer’s firm is prohibited by paragraphs (a) or (b) from serving as advocate.

Tex. DisciplinaRY R. PROf’l Conduct 3.08(a), (c), repainted in Tex. Gov’t Code Ann., tit. 2, subtit. G app. A (Vernon 2005) (Tex. State Bar R. art. X, § 9) (emphasis added). However, we note that an intermediate appellate court’s standard of review on the admission of evidence is whether the trial court abused its discretion. Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App.1996). Although an ethics rule may be relied upon to show that an alleged violation infringed the complaining party’s right to a fair trial or otherwise affected substantial rights, a complaining party’s right is not grounded in the disciplinary rule itself. See, e.g., House v. State, 947 S.W.2d 251, 252-53 (Tex.Crim.App.1997). Therefore, the proper standard of review here is whether the trial court abused its discretion in its implicit finding that Williams was not acting in a dual role. See Gonzalez v. State, 117 S.W.3d 831, 837-39 (Tex.Crim.App.2003).

The court of appeals erred in applying Rule 3.08 because Williams did not serve as an “advocate” in the proceeding. See id. Williams testified about his personal observations as a police officer, and his participation in the case extended no further. By taking no part in the case as a lawyer for the Office of the District Attorney, Williams’s only role in the proceeding was as a fact witness. Thus, because Williams did not serve “dual roles” as advocate and witness, the trial court did not abuse its discretion in admitting his testimony.

This is the primary distinction between this case and our holding in Gonzalez v. State, which the court of appeals found controlling. Powers, 140 S.W.3d at 854-55. In Gonzalez, we concluded that a lawyer could not testify as a fact witness and then resume his role as an advocate without running afoul of the disciplinary rule. 117 S.W.3d at 837-38. Specifically, we upheld disqualification of defense counsel, who unlike Williams here, was personally trying the case, and was the only fact witness with personal knowledge upon a disputed essential fact. Simply put, we concluded that the trial court did not err in disqualifying defense counsel because his continued representation would likely create harmful circumstances specifically targeted by the rule, such as confusion of the jury. Gonzalez, 117 S.W.3d at 843; Tex. DiscipliNaey R. Peof’l Conduct 3.08, cmt. 4.

The court of appeals seems to acknowledge that Williams did not serve dual roles. Powers, 140 S.W.3d at 856. Specifically, the opinion notes that

[although Gonzalez involved a situation where defense counsel assumed dual roles, the court of criminal appeals’ actual prejudice analysis in that case demonstrates the type of dual-role problems the court views as unfairly impacting a trial. The dual-role problems present in Gonzalez are the same dual-role problems present in this case.

See id.

The court of appeals’s analysis, however, is faulty. When it is clear that an advocate is serving dual roles, it is proper to determine whether the opposing party would suffer actual prejudice by an alleged violation of the rule. House v. State, 947 S.W.2d at 252-53. On the other hand, when it is clear, as here, that a lawyer is not serving dual roles, the reviewing court should not proceed to determine whether the complaining party was harmed.

Furthermore, the trial court did not abuse its discretion because Williams’ former role as the lead investigating/arresting officer in this case would not prevent him from “accepting] or continufing] employment” in the Office of the District Attorney. See Tex. DisciplinaRY R. PROf’l Conduct 3.08(a). We are loathe to read into the law a requirement that would discourage lawyers from serving as public servants, and more importantly, that would discourage government entities from hiring otherwise desirable candidates for fear that the government would be prevented from going forward on a charge because one of its lawyers happened to have personal knowledge upon which testimony should be taken to resolve an essential fact. See, e.g., Tex. DISCIPLINARY, R. Prof’l Conduct 1.10, cmt. 3 (“the rules governing lawyers presently or formerly employed by a government agency should not be so restrictive as to inhibit transfer of employment to and from the government. The government has a legitimate need to attract qualified lawyers as well as to maintain high ethical standards. The provisions for screening and waiver are necessary to avoid imposing too severe a deterrent against entering public service.”).

Conclusion

Because the court of appeals erred in applying Rule 3.08 to a situation in which' the lawyer did not serve dual roles, we reverse the judgment of the court of appeals and remand the cause to that court to consider appellant’s remaining issue for review.

MEYERS, J., did not participate.

      . Likewise, because we sustain the State’s first ground for review, namely, that the court of appeals misapplied Rule 3.08, we dismiss the State’s remaining grounds for review that complain of the court of appeals’ harm analysis.


author: MEYERS, J.,

text:
    Billy James SMITH, Appellant, v. The STATE of Texas.
    No. PD-393-04.
    Court of Criminal Appeals of Texas.
    June 15, 2005.
    Allan Fishburn, Dallas, for Appellant.
    Lori Ordiway, Asst. District Atty., Dallas, Matthew Paul, State’s Atty., Austin, for State.
   MEYERS, J.,

delivered the opinion of the unanimous Court.

Appellant was convicted of aggravated rape in 1987 and the jury assessed a life sentence. In 2001, he filed a pro se motion for forensic DNA testing under Texas Code of Criminal Procedure Chapter 64 and requested that counsel be appointed to represent him. Counsel was appointed and a formal motion for forensic DNA testing was filed, accompanied by an affidavit by Smith stating that he is actually innocent of the offense for which he was convicted. The trial court denied the motion, stating that the motion failed to include an affidavit alleging specific facts in support of his motion and failed to establish by a preponderance of the evidence that exculpatory DNA tests would prove his innocence. Appellant’s request that the trial court take judicial notice of the record was granted. The court of appeals affirmed the trial court’s denial of DNA testing. Appellant filed a pro se petition for discretionary review stating that his claim of actual innocence in his motion and affidavit was the equivalent of asserting that he would not have been tried or convicted if favorable DNA results were obtained. We hold that the trial court and court of appeals erred by failing to consider the facts in the judicially noticed trial record. We will reverse the court of appeals and remand the cause to the trial court to order DNA testing.

FACTS

Smith filed the first Chapter 64 motion and affidavit pro se on October 10 and requested counsel under 64.01(c). The statute requires that the sworn affidavit contain a statement of facts in support of the motion, but it does not specify what facts must be included. See Code of Criminal Procedure Art. 64.01(a). Smith in-eluded the facts that: he was convicted of aggravated sexual assault; biological material secured by law enforcement officials existed which could be subjected to DNA testing; and the material was in the possession of the State at the time of the trial, but was not previously subjected to DNA testing because DNA testing was not available. As such, Smith’s pro se motion and affidavit met the requirements of 64.01. The counsel appointed to represent Smith filed a formal motion for forensic DNA testing, asking the court to determine whether the evidence is in a condition that makes DNA testing possible, and whether the evidence has been subjected to a proper chain of custody. The motion additionally asks the court to find that identity is an issue in the case and that Smith has proven by a preponderance of the evidence that a reasonable probability exists that he would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing. The motion was accompanied by an affidavit in which Smith swears that he is not guilty of the offense for which he was convicted, and that the State has evidence that will establish that he is innocent of the alleged offense. The record from the hearing indicates that the trial judge heard motions from two unrelated cases at the same time. No evidence or testimony was presented by the appointed attorney, and the trial judge denied the motions for DNA testing presented by both Smith and another appellant. However, the court was not clear about which motions were being heard or which was being ruled upon (nor was the ruling clear, as mentioned in footnote 1).

The judge did take judicial notice of the trial record in Smith’s case.

COURT OF APPEALS

The court of appeals determined that the only part of Chapter 64 that is disputed in this case is the requirement in 64.03(a)(2)(A), that Smith establish by a preponderance of the evidence that he would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing. Smith v. State, No. 05-02-01411-CR, 2004 WL 213661, 2004 Tex.App. LEXIS 1098 (Tex.App.-Dallas February 5, 2004)(not designated for publication). Because these arguments and allegations were not made in the trial court, and Appellant argued only that he was innocent, the court of appeals agreed with the trial court’s finding that there were not sufficient facts in support of the motion. The court of appeals stated:

On appeal, Smith argues that, if the samples taken from S.B. and contained in a rape kit were tested and Smith were eliminated as the source of the sperm, Smith’s guilt would be eliminated. According to Smith, there was testimony at the trial that the seminal fluid taken from S.B. indicated she had sexual intei'course within the twenty-four hours preceding the offense, but nothing in the record indicated that S.B. had intercourse with anyone other than her attacker during the twenty-four-hour period. Smith reasons that the source of the seminal fluid must be the man who raped S.B. However, these arguments and factual allegations were not made in the trial court. In his motion and affidavit, Smith argued only that he was innocent.

Id. 2004 WL at *2, at *4-5. Appellant filed a pro se petition for discretionary review. We granted review to determine whether a reasonable probability exists that DNA tests would prove Appellant’s innocence.

STANDARD OF REVIEW

While we defer to the trial court’s determination of issues of historical fact and application of law to fact issues that turn on the credibility and demeanor of the witnesses, there were no such issues in this case since there were no witnesses at the hearing and the trial record and affidavit of the Appellant are the only sources of information supporting the motion. As a result, the trial court is in no better position and we will review the issues de novo.

CASELAW

The court of appeals cites several cases holding that if no factual evidence as to the Chapter 64 requirements is offered, trial courts do not err by denying a Chapter 64 motion. However, each of these cases can be distinguished. In Dinkins v. State, 84 S.W.3d 639 (Tex.Crim.App.2002), we upheld the trial court’s denial of DNA testing because the facts he faded to provide in support of his motion included: what evidence he wanted tested, and that means of testing were not available at time of trial. As a result, his motion failed to meet the requirements of Article 64.01. Dinkins additionally said that he wanted testing first, and then, if the results were favorable, he would show that he would not have been prosecuted or convicted if the testing had been done prior to trial. However, Chapter 64 requires that this be shown before the court will order testing.

In Kutzner v. State, we considered the legislative intent of Article 64.03(a)(2)(a) and determined that the statute requires convicted persons to “show a reasonable probability exists that exculpatory DNA tests would prove them innocence.” 75 S.W.3d 427, 439 (Tex.Crim.App.2002). In response to this opinion, the Legislature amended and clarified Article 64.03. The bill analysis states:

a. The bill clarifies that the standard of proof with regard to getting a DNA test is ‘preponderance of the evidence.’ By taking out the ‘reasonable probability’ language, the intent is to clarify that the defendant does not have to meet two burdens. Despite the reasoning in Kutzner, the Legislature did not intend for the defendant to have to prove ‘actual innocence’ (a principle under habeas law) in order to meet his burden to have the test done. The defendant must prove that, had the results of the DNA test been available at trial, there is a 51% chance that the defendant would not have been convicted.
b. The bill further clarifies that the defendant does not have to meet a two-prong test of not having been prosecuted or convicted. Rather, the intent was that the person would have to prove by a preponderance of the evidence that he would not have been convicted. Accordingly, the bill strikes the ‘prosecuted or’ language.

House Criminal Jurisprudence Committee, Bill Analysis, Tex. H.B. 1011 78th Leg., R.S. (2003).

In Whitaker v. State, 160 S.W.3d 5 (Tex.Crim.App.2004), we held that Chapter 64 does not require the trial court to conduct a hearing, and there is no presumption in favor of the applicant when the State fails to file a response to the motion. We additionally concluded that regardless of the results, DNA testing would not show that Whitaker would not have been prosecuted or convicted. Testing blood from the gun used as the murder weapon and finding that it does not belong to the appellant in a murder case involving three conspirators would not be exculpatory since the blood could have belonged to the victim or one of the co-conspirators, or could have been left on the rifle prior to the date of the offense. This is not the situation in the case before us. The seminal fluid was left during the 24 hours prior to the exam (which was conducted about eight hours after the attack); the seminal fluid obviously did not belong to the victim; and there was no evidence that the victim had intercourse with anyone else who could have left the seminal fluid other than the attacker. Therefore, in this case, if the Appellant’s DNA does not match the DNA in the seminal fluid obtained from the rape examination, those results would be exculpatory.

ANALYSIS

At trial, the State used the presence of seminal fluid to indicate that a rape had indeed occurred. The State now argues that because the victim lived with her boyfriend, it is possible that she had intercourse with him in the 24 hours preceding the attack and that it was his seminal fluid that was found during the exam and not the attacker’s. As such, the State argues that a test indicating that Smith’s DNA does not match the seminal fluid would not be exculpatory because perhaps no seminal fluid was left at the time of the attack. However, we must consider the testimony in the judicially noticed trial record. Trial testimony by the victim indicates that seminal fluid was left by the attacker. This rebuts the State’s argument that even if the DNA does not match Smith, he could still be guilty because the attacker may not have left behind any seminal fluid. Additionally, although the issue was discussed at trial, there is no testimony in the record indicating that' the victim had intercourse with anyone other than her attacker within 24 hours of the rape exam. The evidence that the attacker did leave seminal fluid at the time of the attack, combined with the lack of any evidence that the victim had intercourse with anyone other than her attacker during the 24 hours preceding the exam indicates that the seminal fluid belongs to the attacker. Thus, results indicating that Smith’s DNA does not match the seminal fluid would be exculpatory.

The trial court and court of appeals examined this motion by too strict a standard in saying that the arguments and allegations made in the trial court were insufficient. Because Appellant argued only that he was innocent, the trial court and the court of appeals held that there were not sufficient facts supporting the motion. However, innocence is a contested fact that was raised by the Appellant in support of his motion for DNA testing. And, the court of appeals failed to consider the fact that the trial judge took judicial notice of the trial record which did contain facts supporting the motion.

Appellant arguably should have included in his affidavit the additional statements that: at trial, his sister provided him with an alibi; the identification was questionable since it was the victim’s boyfriend — who had not witnessed the attack — who identified Appellant; police searched Appellant’s laundry and belongings and did not find the clothing described by the victim; the clothes police did seize from Appellant did not contain any DNA evidence; and the victim did not testify that she had intercourse with anyone other than her attacker in the 24 hours prior to the exam, to support his assertion that he would not have been convicted if test results show that Appellant’s DNA does not match the seminal fluid left by the attacker. However, the plea of actual innocence in this pro se motion is equivalent to an assertion that there is at least a 51% chance that he would not have been convicted. The trial record, which the trial court took judicial notice of, contained these facts. Therefore, the trial court had enough evidence in front of it to determine, by a preponderance of the evidence, that Appellant would not have been convicted if the DNA results were favorable. As such, this motion meets the requirements of Chapter 64 and Appellant is entitled to DNA testing.

CONCLUSION

Because the trial court took judicial notice of the trial record when he ruled on the motion, and the facts were included in the record, the trial court had enough evidence to determine by a preponderance of the evidence that favorable DNA results would have prevented Smith’s conviction. The cause is remanded to the trial court to order DNA testing under Article 64.03(c).

      . The trial court stated that it was denying the motion, but the written order signed by the trial court indicated that the motion was dismissed with prejudice. After the court of appeals granted the State’s motion to abate the appeal and ordered the trial court to conduct a hearing regarding whether the written order accurately reflected the trial court’s ruling, the trial court rescinded the previous order and entered a new order denying Appellant’s motion.


author: PER CURIAM.

text:
    In re ADVANCEPCS HEALTH L.P., AdvancePCS A/K/A Advancepcs, Inc. PCS Health Systems, Inc. and AdvancePCS Health Systems, L.L.C.
    No. 13-04-00083-CV.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    Feb. 18, 2004.
    Chris A. Brisaek, Lecia Chaney and Lisa D. Duran, for AdvancePCS Health L.P., Advancepcs a/k/a AdvancePCS, Inc., PCS Health Systems, Inc. and AdvancePCS Health Systems, L.L.C.
    David T. Bright, Jaime A. Gonzalez Jr., James P. Roy Domengeaux, Donald Kelly, Henry Cole Gahagan Jr., Spencer Hosie, William Large and William Hoese, for Judge Leticia Lopez, Hector De La Rosa, De La Rosa Pharmacy, Inc., John Z. Cava-zos, J. Z. C. Corporation, Causey’s Pharmacy, Inc.
    Before Justices YÁÑEZ, RODRIGUEZ, and GARZA.
   ORDER

PER CURIAM.

Relators filed a petition for writ of mandamus in the above cause on February 13, 2004. The Court, having examined and fully considered the petition for writ of mandamus, is of the opinion that said petition for writ of mandamus should be. denied. Accordingly, relators’ petition for writ of mandamus is DENIED.