author: BOB McCOY, Justice. LEE ANN DAUPHINOT, Justice,

text:
    Steven Douglas ARMSTRONG a/k/a Steven D. Armstrong, Appellant, v. The STATE of Texas, State.
    No. 2-04-183-CR.
    Court of Appeals of Texas, Fort Worth.
    Aug. 4, 2005.
    Rehearing Overruled Oct. 13, 2005.

      Johnson, Vaughn & Heiskell and Michael P. Heiskell, Fort Worth, TX, for Appellant.
    Tim Curry, Criminal District Atty., Charles M. Mallín, Asst. Criminal District Atty. and Chief of the Appellate Section, Sylvia Mandel and Amy Collum, Asst. Criminal District Attys., Fort Worth, TX, for appellee.
    Panel B: DAUPHINOT, WALKER, and McCOY, JJ.
   OPINION

BOB McCOY, Justice.

A jury convicted Appellant Steven Douglas Armstrong a/k/a Steven D. Armstrong of capital murder, and the trial judge imposed an automatic life sentence, the State having waived the death penalty. Armstrong brings two issues on appeal, contending that the trial court committed charge error. We affirm.

Background Facts

On January 23, 2003, Live Oak police stopped Armstrong while he was leaving an area known for burning stolen cars. The police searched the area from which Armstrong had been seen leaving and found a Cadillac belonging to the complainant, Christopher Palmer. After the Live Oak Police Department notified the Fort Worth Police Department that it had found the car, Fort Worth police officers were sent to Palmer’s house. After entering Palmer’s house, the police discovered Palmer’s body with multiple stab wounds. According to Armstrong’s statement, he went to Palmer’s house to collect on a debt, and the two began to fight. Defeated, Palmer stopped fighting but refused to give Armstrong the money that he owed him. Determined to get his money, Armstrong then went to the kitchen, grabbed a knife, and told Palmer that he was serious, and that the best thing for him to do was to give Armstrong the money. Palmer lunged and swung at Armstrong. Armstrong claims that only after Palmer began lunging and swinging at him did he stab Palmer. After stabbing Palmer multiple times, Armstrong removed money and valuables from the home and drove away in Palmer’s Cadillac. At trial, Armstrong pled not guilty to capital murder. The jury found Armstrong guilty of capital murder, and the trial court sentenced him to life in prison, the State having waived the death penalty.

In his first issue, Armstrong argues that the trial court erred in failing to instruct the jury to consider the lesser included offenses of murder, aggravated robbery, and aggravated assault. He also argues that the trial court erred in failing to instruct the jury on the defense of self-defense. In his second issue, he again argues that the trial court erred in failing to instruct the jury to consider self-defense.

Lesser Included Offenses

To determine whether a jury must be charged on a lesser included offense, we apply a two-step analysis. Moore v. State, 969 S.W.2d 4, 8 (Tex.Crim.App.1998). The first step is to decide whether the offense is a “lesser included offense” as defined in article 37.09 of the code of criminal procedure. Tex.Code Chim. PROC. Ann. art. 37.09 (Vernon 1981); Moore, 969 S.W.2d at 8. A lesser included offense is defined both in terms of the offense charged and the facts of the case: “An offense is a lesser included offense if ... it is established by proof of the same or less than all the facts required to establish the commission of the offense charged.” Tex.Code Ceim. Proc. Ann. art. 37.09(1). Therefore, our analysis of whether an offense is a lesser included offense of the charged offense must be made on a case-by-case basis. Bartholomew v. State, 871 S.W.2d 210, 212 (Tex.Crim.App.1994); Day v. State, 532 S.W.2d 302, 315-16 (Tex.Crim.App.1976) (op. on reh’g). It does not matter if the charged offense can be established on a theory that does not contain the lesser offense; the issue is whether the State, when presenting its case to prove the offense charged, also includes proof of the lesser included offense as defined in article 37.09. See Bartholomew, 871 S.W.2d at 212; Broussard v. State, 642 S.W.2d 171, 173 (Tex.Crim.App.1982). Second, some evidence must exist in the record that would permit a jury to rationally find that if Armstrong is guilty, he is guilty only of the lesser offense. Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex.Crim.App.), cert. denied, 510 U.S. 919, 114 S.Ct. 313, 126 L.Ed.2d 260 (1993); Royster v. State, 622 S.W.2d 442, 446 (Tex.Crim.App.1981).

The evidence must be evaluated in the context of the entire record. Moore, 969 S.W.2d at 8. There must be some evidence from which a rational jury could acquit the defendant of the greater offense while convicting him of the lesser included offense. Id. The court may not consider whether the evidence is credible, controverted, or in conflict with other evidence. Id. If there is evidence from any source that negates or refutes the element establishing the greater offense, or if the evidence is so weak that it is subject to more than one reasonable inference regarding the aggravating element, the jury should be charged on the lesser included offense. Id.; see also Schweinle v. State, 915 S.W.2d 17, 19 (Tex.Crim.App.1996); Saunders v. State, 840 S.W.2d 390, 391-92 (Tex.Crim.App.1992).

The trial court instructed the jury that it could convict Armstrong of capital murder if the jury found that he had committed murder in the course of committing robbery or burglary of a habitation. The State does not challenge Armstrong’s contention that murder, aggravated robbery, and aggravated assault are lesser included offenses of capital murder in the course of committing robbery. The issue here is whether there is evidence to raise the lesser included offenses.

Aggravated Assault and Aggravated Robbery

In another capital murder case, the Texas Court of Criminal Appeals held that “[a] murder defendant is not entitled to an instruction on the lesser included offense of aggravated assault when the evidence showed him, at the least, to be guilty of a homicide.” Jackson v. State, 992 S.W.2d 469, 475 (Tex.Crim.App.1999); see also Forest v. State, 989 S.W.2d 365, 368 (Tex.Crim.App.1999). In the case before us, Armstrong does not dispute causing the complainant’s death; there is no evidence that the complainant suffered a lesser form of serious bodily injury. See Jackson, 992 S.W.2d at 475. Consequently, there is no evidence that Armstrong is guilty, if at all, only of aggravated assault. Armstrong was therefore not entitled to an instruction on aggravated assault.

Additionally, there is no evidence that the homicide in the case before us was anything other than intentional. Consequently, there is no evidence that Armstrong is guilty, if at all, only of aggravated robbery. See Tex. Penal Code Ann. §§ 29.02(a)(1), 29.03 (Vernon 2003) (allowing an aggravated robbery conviction if actor recklessly caused serious bodily injury), Texas Penal Code Ann. § 1.07(46) (Vernon Supp.2004-05) (including bodily injury that causes death within the definition of “[sjerious bodily injury”); see also Jackson, 992 S.W.2d at 475. He was therefore not entitled to an instruction on aggravated robbery.

Murder

Similarly, we must determine whether there is evidence that Armstrong is guilty, if at all, only of murder, not capital murder. Here, even if we take as true Armstrong’s own version of the events, he is not entitled to the lesser included charge of murder, because “[a] creditor who assaults his debtor to compel him to pay a debt can be convicted of robbery in this State.” Frazier v. State, 170 Tex.Crim. 432, 342 S.W.2d 115, 116 (1961); see also Jones v. State, No. 01-90-00460-CR, 1995 WL 397045, at *6 (Tex.App.-Houston [1st Dist.] July 5, 1995, pet ref'd) (not designated for publication); Collins v. State, 800 S.W.2d 267, 269 (Tex.App.-Houston [14th Dist.] 1990, no pet.).

Armstrong’s own statement reflects that he went to Palmer’s house to collect on a debt, that Palmer denied owing him money, that they fought, and that at some point during the scuffle, he grabbed a knife and told Palmer, that he was serious, and that the best , thing he could do would be to give Armstrong the money. This is evidence of robbery. See Frazier, 342 S.W.2d at 116; see also Jones, 1995 WL 397045, at *6; Collins, 800 S.W.2d at 269. It does not matter that Armstrong claims that he did not form the intent to take money and other items of value from Palmer’s home until after he killed Palmer, for' his own statement establishes that Palmer was killed in the course of Armstrong’s attempt to collect a debt by force, i.e., robbery. Consequently, there is no evidence that Armstrong is guilty, if at all, only of murder. We hold that under the circumstances of this case, Armstrong was not entitled to an instruction on murder.

Self-Defense

Finally, Armstrong argues that even if he committed theft he was nevertheless entitled to raise the defense of self-defense as to the intentional mental state required by the capital murder statute in causing the death. See Tex. Penal Code Ann. § 19.03(a)(2) (Vernon Supp.2004-05). Although Armstrong argues that the complainant had a knife, the record does not support his assertion. The record reveals no evidence of conduct by the complainant that would justify Armstrong’s deadly force. A person is entitled to an instruction on self-defense only on those issues raised by the evidence. Ferrel v. State, 55 S.W.3d 586, 591 (Tex.Crim.App.2001). The trial court, therefore, did not err in denying Armstrong’s requested self-defense charge. We overrule Armstrong’s first and second issues.

Conclusion

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

DAUPHINOT, J. filed a dissenting opinion.

LEE ANN DAUPHINOT, Justice,

dissenting.

The majority confuses the standard for analysis of the sufficiency of the evidence with the standard for determining whether a jury instruction on a lesser included offense is warranted. Because the majority holds that Appellant is not entitled to a jury charge on murder despite the evidence that the theft was an afterthought and despite the evidence that the complainant owed Appellant $300 worth of the property, including the twenty dollars Appellant took from the body and $280 worth of the remaining items, I must respectfully dissent from the majority’s holding that Appellant was not entitled to a jury instruction on the lesser included offense of murder.

When there is evidence from any source that negates or refutes the element establishing the greater offense, if it could lead a rational juror to acquit the defendant of the greater offense while convicting him of the lesser included offense, we must take it as true in determining whether Appellant was entitled to the requested jury instructions. The majority sets out the correct standard of review but, unfortunately, does not employ it in its analysis. The issue in this case is whether there is any evidence which, if believed, could lead a rational juror to conclude that (1) the intent to steal was formulated after the murder, (2) consequently, there was no robbery, (3) consequently, there was no murder in the course of committing robbery, the type of capital murder at issue, and (4) therefore Appellant is guilty, if at all, only of murder. If there is such evidence from any source, no matter how credible or weak, then Appellant was entitled to an instruction on murder.

A person commits capital murder if he intentionally causes the death of another person in the course of committing or attempting to commit robbery. The elements of robbery are that, in the course of appropriating property without the own: er’s effective consent and with intent to deprive the owner of that property (that is, in the course of committing theft), a person “(1) intentionally, knowingly, or recklessly causes bodily injury to another; or (2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.” “ ‘[Ojwner’ means a person ... who has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor.” In criminal law the issue of ownership, an element of the offense, is a question of fact for the jury to determine.

Robbery requires assault in the course of committing theft. “In the course of committing theft” means during an attempt to commit, during the commission, or in immediate flight after the attempt or commission of theft. The Texas Court of Criminal Appeals has recently reaffirmed the principle that “[f]or a murder involving a theft to constitute a capital murder committed in the course of a robbery, the intent to rob must be formulated before or at the time of the murder.” The elements at issue here are who owned the property taken and when did Appellant form the intent to take the complainant’s property?

The record reflects that Appellant made at least three statements to police officers. One statement was written, one was an oral, recorded statement, and the other was oral but not recorded. There is testimony in the record relating the substance of the unrecorded statement.

Once inside the complainant’s house, Appellant argued with the complainant about the complainant’s refusal to pay Appellant the approximately $300 he owed him. Appellant demanded his money, and the complainant said that he was not going to give him the money. The two men were yelling and angry, and Appellant punched the complainant with his fist. The complainant retaliated, and the men wrestled until Appellant overcame the complainant. Appellant said,

[A]t this point if I ... went this far ... came to his house beat him up ... as far as money I was gonna get the money ... you know ... so ... start what I finish ... so I went to his kitchen pulled out the knife and uh ... I mean I wasn’t gonna do nothing with it ... I was just gonna tell him you know ... I’m serious man you need to give me my money ... you know ... had that knife in my hand ... I mean the best thing for you to do is just give me the money ... that’s what I ... basically I was telling him I wasn’t gonna do nothing with it I promise....

Appellant reiterated that he was not going to use the knife and described the complainant’s actions:

[A]nd then he composed himself and got up near me ... no one can come in here (unintelligible) pull out a knife on me ... I try to be an opponent to violence now days ... now we have to get in to all this ... I didn’t wanna ... I came over here just to get my money and be on my way ... and uh ... so he swung ... and uh ... you know ... then he kept lunging at me you know swinging ... I just reacted ... so I stuck him with the knife.-... And it was a steady struggle....

After Appellant stabbed the complainant to death, he took twenty dollars from the complainant’s pocket. Because the twenty dollars fell far short of the nearly $300 that Appellant contended that the complainant owed him, Appellant took additional property to make up the difference. He took the complainant’s television set, a DVD player, some movies, a cell phone, and some marihuana. When he left, Appellant drove off in the complainant’s Cadillac.

There is no direct evidence of the value of the property Appellant took from the complainant. A jury, however, could reasonably conclude that the combined value of all the items exceeded $300, the amount that Appellant claimed the complainant owed him. Because the jury could reasonably conclude that the value of the property taken exceeded the value of the claimed debt, it could also reasonably conclude that the excess property was stolen. Again, Appellant admitted to taking the property.

Appellant claimed ownership of the property he first took, that is, the twenty dollars he took from the complainant’s body. His statement, taken as true, made clear that the complainant was refusing to return the money belonging to Appellant. If the complainant was not the owner, then there could be no theft and, consequently, no robbery.

Our sister court in Houston addressed the issue of whether debt collection constitutes theft in the context of a shooting in the course of collecting a debt in Collins v. State. The Collins court stated that, where the defendant claimed the complainant owed him thirty dollars that he had spent repairing her car, demanding payment with a shotgun was not the legal method of exercising a lien. In the first place, the Houston court announced, the hen should be exercised against the car, not against the debtor. In the second place, the court claimed, force may not be used to collect a debt. The Collins court opined,

To hold that a creditor’s assault upon a debtor for the purpose of cohecting a debt does not constitute a robbery would be establishing a dangerous precedent, since it would authorize the accused not only to decide his own injury or damage but to enforce the collection thereof by force and violence. This is contrary to the policy of our form of government. Crawford v. State, 509 S.W.2d 582 (Tex.Crim.App.1974); Henderson v. State, 149 Tex.Crim. 167, 192 S.W.2d 446 (Tex.Crim.App.1946).

The Collins opinion turns, in part, on the fact that the debt was based on unliq-uidated damages. Unfortunately, the Collins court does not cite us to authority to explain why the taking of an agreed sum of money owed is theft. That is, the Collins court does not explain how it reaches the theft element of aggravated robbery to create a robbery instead of aggravated assault. Additionally, the Collins court does not explain whether demanding return of readily identifiable property, such as an automobile owned by the defendant or a handgun registered to the defendant, would be analyzed in the way the court analyzed the exercise of a hen.

In Crawford v. State, Presiding Judge Onion was faced with a situation similar to the situation this court now considers and discussed the question of whether a creditor’s assault upon a debtor constitutes robbery:

Appellant contends that although some later opinions, without mention of Barton [v. State, 88 Tex.Crim. 368, 227 S.W. 317 (Tex.Crim.App.1921)], have reverted to the Fanin holding, Barton has not been overruled and is still viable and is here controlling.
Even if Barton is alive and well, as appellant contends, and even if the fact situation in the instant case can be stretched to cover a creditor-debtor situation, the appellant cannot prevail.
In Bass v. State, [206 S.W.2d 599 (Tex.Crim.App.1947)] it was written:
We think that the principle involved in the Barton case does not avail one who takes not only property which he claims but other property at the same time. The appellant says he claims only $3.85, but admits taking $20.
In the instant case the appellant paid the complainant’s bill of $14.40 without request. If a creditor-debtor relationship was established, the money actually taken at the time of the alleged offense was far in excess of $14.40.
Still further, to eliminate any confusion in the prior holding of this court, we overrule Barton v. State.

Unfortunately, the Crawford court did not completely answer the question of whether a creditor’s assault upon a debtor for the purpose of collecting a debt is robbery. We do not know whether taking by force the amount owed or less than the amount owed is robbery. The case now before this court differs from Crawford in a significant circumstance. The complainant in Crawford was in fear of death or bodily injury during the entire transaction, including both the time the defendant took what he claimed he was owed and the time he took more than he was owed. Crawford turns on the fact that by taking more than he was owed, the defendant committed theft and therefore robbery.

Consequently, Appellant’s statement raises the issue of whether the complainant owned up to $300 of the property taken. It also raises the issue of when Appellant decided to take more than he was rightfully owed.

According to his statement, Appellant stabbed and killed the complainant while he and the complainant were fighting because the complainant refused to repay money he had borrowed from Appellant. Appellant’s statement makes clear that the fight was not a struggle over the money and did not involve an attempt by Appellant to wrest the funds from the complainant or to physically force the complainant to hand over the money. Appellant had gone to the complainant’s apartment because he was trying to collect the money the complainant owed him. After Appellant saw that the complainant was dead, he looked in the complainant’s pockets for the money that the complainant owed him.

A reasonable juror could conclude from Appellant’s statement that only after Appellant discovered that the complainant had only twenty dollars in cash did he decide to take the complainant’s other property and formulate the intent to steal. That is, a reasonable juror could conclude that the intent to steal was formulated after the murder and was, therefore, an afterthought.

As I understand the statutes and case-law, although Appellant committed murder under this scenario raised by his statement admitted into evidence, he did not commit the murder in the course of committing theft because the taking of the property of another did not occur until he took property exceeding the value of the debt. Consequently, I believe that Appellant’s statement raised the issues of ownership of the $300, whether the murder was committed in the heat of battle rather than in the course of committing theft, and whether the intent to steal arose well after the murder. If Appellant’s statement is taken as true, which we must do in determining whether a lesser included offense instruction is warranted, there could be no robbery and no capital murder based on robbery.

The majority may be correct in concluding that the evidence is sufficient to support the jury’s verdict. But Appellant’s point on appeal does not challenge the sufficiency of the evidence. The majority does not explain how Appellant’s statement does not raise the issue of the ownership element of theft. The majority also does not explain how Appellant’s statement does not raise the issue of whether the intent to commit theft arose after the murder was completed. While we may be in sympathy with the policy arguments advanced by the Collins court, we are restrained by the clear language of the robbery statute. Robbery requires theft. Capital murder as validly charged in this case requires intentional murder in the course of committing robbery, not as an incident to robbery. Although we might feel that the statute should be rewritten, it is not within our province to do so. That authority rests solely with the legislature.

Although the jury was free to believe or disbelieve the relevant portion of Appellant’s confession, the statement constitutes some evidence that the murder was not committed in the course of committing robbery. The issues before us are whether Appellant was entitled to a lesser included offense instruction on murder and whether the trial court’s failure to give him that instruction entitles him to a new trial in this case. I would hold that the answer to both of those questions is yes and reverse the ease for a new trial on the merits. Because the majority affirms the trial court’s judgment, I dissent.

      . The record contains a transcript presented to the jury which reflects that Armstrong stated the following in his audio taped statement: at this point if I ... went to this far ... came to his house beat him up ... as far as money I was gonna get the money ... you know ... so ... start what I finish ... so I went to his kitchen pulled out the knife and uh ... I mean I wasn’t gonna do nothing with it ... I was just gonna tell him you know ... I'm serious man you need to give me my money ... you know ... had that knife in my hand ... I mean the best thing for you to do is just give me the money ... that’s what I ... basically I was telling him I wasn’t gonna do nothing with it I promise....

      . See Schweinle v. State, 915 S.W.2d 17, 19 (Tex.Crim.App.1996); Saunders v. State, 840 S.W.2d 390, 391-92 (Tex.Crim.App.1992).

      . See Tex Penal Code Ann. § 29.02(a) (Vernon 2003).

      . Id. § 19.03(a)(2) (Vernon Supp.2004-05). Although. Appellant was indicted for and the jury was charged on capital murder in the course of burglary and capital murder in the course of robbery, the majority apparently concedes that there is evidence in the record that Appellant entered the complainant’s home with his effective consent and no evidence to the contrary.

      . See Schweinle, 915 S.W.2d at 19; Saunders, 840 S.W.2d at 391-92.

      . See Moore v. State, 969 S.W.2d 4, 8 (Tex.Crim.App.1998); Schweinle, 915 S.W.2d at 19; Saunders, 840 S.W.2d at 391-92.

      . Tex Penal Code Ann. § 19.03(a)(2).

      . Id. § 29.02(a).

      . Id. § 1.07(a)(35)(A) (Vernon Supp.2004-05).

      . Freeman v. State, 707 S.W.2d 597, 604—605 (Tex.Crim.App.1986).

      . Tex Penal Code Ann. § 29.02.

      . Id. § 29.01(1).

      . Herrin v. State, 125 S.W.3d 436, 441 (Tex.Crim.App.2002) (citing Conner v. State, 67 S.W.3d 192, 197 (Tex.Crim.App.2001)).

      . 800 S.W.2d 267, 269 (Tex.App.-Houston [14th Dist.] 1990, no pet.).

      . Id.

      . Id.

        . Id.

      . Id.

      . 509 S.W.2d 582, 584-86 (Tex.Crim.App.1974).

      . In Wharton’s Criminal Law, Vol. 2 Sec. 550, p. 250, it is said:
      Except in a few jurisdictions, a creditor’s taking of money from his debtor to satisfy or secure the obligation, either by force or intimidation, is not regarded as robbery, the generally accepted doctrine being that the requisite animus furandi cannot exist when the property is taken under a bona fide claim of right. The rule is different however, in some jurisdictions, as to the forcible taking of property for the purpose of collecting uncertain, unliquidated damages, and such a taking will support a prosecution for robbery.

        . Crawford, 509 S.W.2d at 584-86 (selected footnotes and citations omitted; footnotes in original).

      . See id. at 586.

      . See Schweinle, 915 S.W.2d at 19; Saunders, 840 S.W.2d at 391-92.

      . See Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991).

      . Tex. Penal Code Ann. § 29.02(a).

      . See id. § 19.03(a)(2).

      . See Boykin, 818 S.W.2d at 785.

      . See id.


source: Caselaw Access Project

author: KAREN ANGELINI, Justice. SANDEE BRYAN MARION, Justice

license: Public Domain

text:
    In re David LEVAY.
    No. 04-05-00451-CV.
    Court of Appeals of Texas, San Antonio.
    Aug. 10, 2005.

      Karen Dalglish Seal, Law Office of Karen Dalglish Seal, P.L.L.C., San Antonio, for appellant.
    Ann E. Buonocore, San Antonio, for ap-pellee.
    Sitting: CATHERINE STONE, Justice, KAREN ANGELINI, Justice, SANDEE BRYAN MARION, Justice.
   OPINION

Opinion by

KAREN ANGELINI, Justice.

Relator David Levay seeks a writ of mandamus ordering the trial court to vaJ cate its temporary orders of June 28, 2005. Because we conclude that the trial court abused its discretion in entering temporary orders that had the effect of changing the designation of the person who has the exclusive right to designate the primary residence of the child, we conditionally grant Levay’s petition.

BACKGROUND

The underlying family law proceeding arises from a suit for modification and bill of review filed by Tabitha Dennis concerning visitation and custody of her daughter, P.C.L. Under a final order, David Levay, P.C.L.’s father, was designated as the person who has the exclusive right to designate the primary residence of P.C.L., and Dennis’s visitation with P.C.L. was ordered to be supervised. Dennis had little contact with P.C.L. for four years, but has now filed a bill of review and suit for modification. On June 28, 2005, the trial court entered temporary orders in this case. Finding that outside resources were necessary to facilitate visitation between P.C.L. and Dennis, the trial court ordered P.C.L. to be admitted to the Rachel Foundation, a residential facility located in Kerrville, Texas, for an indefinite period of time “at the discretion of the Rachel Foundation.” The trial court also ordered that Dennis would have temporary care and control of P.C.L. while P.C.L. is participating in the program at the Rachel Foundation and that all periods of possession shall be determined by the Rachel Foundation. Levay seeks mandamus relief from this order, arguing that the trial court abused its discretion.

STANDARD FOR MANDAMUS RELIEF

Mandamus will lie only to correct a clear abuse of discretion. Walker v. Packer, 827 S.W.2d 838, 840 (Tex.1992) (orig.proceeding). A clear abuse of discretion occurs when a court issues a decision which is without basis or guiding principles of law. Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985) (orig.proceeding). Moreover, there must be no other adequate remedy at law. Walker, 827 S.W.2d at 840. Mandamus is intended to be an extraordinary remedy, available only in limited circumstances. A writ of mandamus will issue “only in situations involving manifest and urgent necessity and not for grievances that may be addressed by other remedies.” Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 684 (Tex.1989) (orig.proceeding).

Here, because the trial court’s temporary orders are not appealable, mandamus is an appropriate means to challenge them. See, e.g., Little v. Daggett, 858 S.W.2d 368, 369 (Tex.1993) (orig.proceeding) (holding that mandamus is appropriate remedy because temporary order granting visitation is not appealable); Dancy v. Daggett, 815 S.W.2d 548, 549 (Tex.1991) (orig.proceeding) (holding that mandamus is an appropriate remedy because “the trial court’s issuance of temporary orders is not subject to interlocutory appeal”); In re Garza, 153 S.W.3d 97, 100 (Tex.App.-San Antonio 2004, orig. proceeding) (holding that mandamus is appropriate to challenge temporary orders); In re Ostrofsky, 112 S.W.3d 925, 928 (Tex.App.Houston [14 Dist.] 2003, orig. proceeding) (holding that because temporary orders, entered while a motion to modify in a suit affecting the parent-child relationship is pending, are not subject to interlocutory appeal, mandamus is an appropriate means to challenge these orders); In re Lemons, 47 S.W.3d 202, 203-04 (Tex.App.-Beaumont 2001, orig. proceeding) (same). We must, therefore, consider whether the trial court committed a clear abuse of discretion in entering its temporary orders.

Discussion

Although section 156.006 of the Texas Family Code allows a trial court to enter temporary orders in a suit for modification, it limits when a trial court can change the designation of the person who has the exclusive right to designate the primary residence of the child:

(a) Except as provided by Subsection (b), the court may render a temporary order in a suit for modification.
(b) While a suit for modification is pending, the court may not render a temporary order that has the effect of changing the designation of the person who has the exclusive right to designate the primary residence of the child under the final order unless:
(1) the order is necessary because the child’s present living environment may endanger the child’s physical health or significantly impair the child’s emotional development; ...

Tex. Fam.Code Ann. § 156.006 (Vernon Supp.2004-05) (emphasis added).

The Fourteenth Court of Appeals has granted mandamus relief when a trial court entered temporary orders with the effect of changing the person with the exclusive right to designate the primary residence of the child. In In re Ostrofsky, 112 S.W.3d 925, 926 (Tex.App.-Houston [14th Dist.] 2003, orig. proceeding), pursuant to a final divorce decree, the mother of the children had been designated as the person with the exclusive right to determine the children’s primary residence. Six months after the final order was entered, the mother filed a petition to modify the order, seeking temporary orders prohibiting the father from contacting her and requesting a temporary restraining order and temporary injunction. Id. In response, the father filed a counter-petition in which he requested that the court modify his periods of possession and the parties’ rights and duties. Id. at 927. In its temporary orders, the trial court ordered that until the parties had undergone a fall psychological evaluation, it was not in the best interest of the children to live with either parent. Id. Thus, the trial court ordered that the children “shall attend a boarding school commencing with the 2003-2004 academic semester and shall remain in that boarding school or any subsequent school approved by this court until further order of the court.” Id. at 929. The Fourteenth Court of Appeals emphasized that because the order required the children to leave the mother’s residence and live at boarding school, it deprived the mother “of any discretion inherent in the right to determine the children’s primary residence.” Id. As such, the court of appeals held that the temporary order effectively deprived the mother of the right to determine the children’s primary residence. Id.

The court then turned to whether there was any evidence that the order was necessary because the children’s present living environment may endanger the children’s physical health or significantly impair the children’s emotional development. See Tex. Fam.Code Ann. § 156.006(b)(1) (Vernon Supp.2004-05). The court held that because there was no evidence of specific acts or omissions by the mother that would support a finding by the trial court under subsection (b)(1), the trial court abused its discretion in entering the temporary orders. In re Ostrofsky, 112 S.W.3d at 932. As such, the court of appeals conditionally granted the petition for writ of mandamus. Id.

Like in In re Ostrofsky, the trial court here has effectively deprived Levay of the right to determine P.C.L.’s primary residence. The trial court has ordered P.C.L. to be admitted to the Rachel Foundation, a residential facility, for an indefinite period at the sole discretion of the Rachel Foundation and has given Dennis temporary care and custody of P.C.L. for that indefinite period of time that P.C.L. remains at the Rachel Foundation. And, according to the order, the Rachel Foundation is to establish all periods of possession. Further, the trial court ordered Dennis and Levay to comply with the Rachel Foundation’s “Program Admission Protocols.” Under these protocols, the Rachel Foundation “does not possess the resources to inform all attorneys and involved parties at all times.” Thus, it requests that “one agency or person be designated for liaison purposes or that [it] be authorized to communicate directly with the Court.” Additionally, the “security” section of these protocols provides in part that “[t]he whereabouts of participants may, at times, be known only to [the Rachel Foundation] and to the Court, its designated representative or responsible agency.” At the hearing, Pamela Hoch, program director of the Rachel Foundation, testified that the program at the Rachel Foundation depends on participation of the individual. According to Hoch, Dennis and P.C.L. would be admitted to the Rachel Foundation and the visit would be “open-ended” until “such times as hopefully the relationship [between Dennis and P.C.L.] is normalized.” Thus, in essence, the trial court has given the Rachel Foundation the sole discretion to determine where P.C.L. will live and who she will see for an indefinite period of time. Even periods of possession will be at the Rachel Foundation’s sole discretion.

Like in In re Ostrofsky, by giving the Rachel Foundation sole discretion to determine where P.C.L. will live and by failing to limit the period of time for the exercise of such discretion, the trial court has rendered a temporary order that has the effect of changing the designation of the person who has the exclusive right to designate the primary residence of the child under the final order. Further, there is no evidence that P.C.L.’s present living environment with Levay endangered her physical health or significantly impaired her emotional development. As such, the trial court has abused its discretion by rendering a temporary order in violation of section 156.006.

Conclusion

Because the temporary orders of the trial court have the effect of depriving Levay of his right to determine P.C.L.’s primary residence, we conditionally grant Levay’s petition and direct the trial court to withdraw its order of June 28, 2005. Only if the trial court fails to comply will we issue the writ.

Dissenting opinion by SANDEE BRYAN MARION, Justice.

SANDEE BRYAN MARION, Justice

dissenting.

The majority has determined that the trial court entered “temporary orders that had the effect of changing the designation of the person who has the exclusive right to designate the primary residence of the child.” Because I do not agree that the temporary orders had this effect and because I believe relator affirmatively waived his right to raise this complaint, I respectfully dissent.

DISCUSSION

Although Tabitha Dennis, a possessory conservator of her daughter, has had little contact with P.C.L. for four years, she has spent more than a year in court, attending at least four hearings and meeting with a variety of professionals, attempting to resume visitation with P.C.L. Her efforts have been thwarted, at least in part, by P.C.L.’s own behavior. For this reason, a hearing was held on April 14, 2005, at which time the trial court discussed with the parties the need to have supervised visits between P.C.L. and Dennis at a neutral location. Relator’s attorney not only did not object,, she agreed that putting P.C.L. “in some place [njeutral might be a good plan.” Later, the court asked:

Okay. Then, if the idea is to move — that [P.C.L.] has got serious problems. She’s a great gal and she’s got, you know, a lot of potential and everything else, but she’s got this giant soon to be crippling chip on her shoulder about mom, okay, that is hard for me to comprehend that she needs to get over, and it doesn’t sound like these parties are working it out to get it over with. Is this weekend at Rachel, provided some people can get the money together for this program, is that something that might move them in the right direction?

Relator’s counsel responded, “Your honor, I would agree that something like that, maybe even every other weekend would be fine. It would probably work; however, my clients have absolutely no money, and this thing has broken them just without even paying an attorney.” At the end of the hearing, the trial court told relator’s attorney to ensure her clients understood “that they need to start thinking in terms of there will be an extended visitation with mom so they cannot make all the summer plans.”

At no time did relator’s attorney raise any objection to visitation being coordinated through the auspices of the Rachel Foundation.

On June 22, 2005, the trial court conducted a hearing at which the terms of the temporary orders were discussed. Again, relator’s counsel raised no objections to the Rachel Foundation.

Court: Number 4: It’s ordered that all periods of possession as established by the Rachel Foundation are to be complied with by the parents and that they are ordered to cooperate in the transfer process of the child. Okay. That implies that the Rachel Foundation is going to determine when possession is going to occur. Is that what you intended it to say?
Dennis’s attorney: Yes, Your Honor, because that’s — ■
Court: Is that agreed?
Relator’s attorney: That’s what we understood from the hearing in April, that they would determine when.
Court: ... And then I have-the next one will be Number 5:[It] is further ordered that all transfers shall take place at a neutral location either designated by the Court or a representative by the Rachel Foundation. Okay. I would rather just put Kids Exchange, KidShare, or a place designated by the Rachel Foundation. Is that okay with you?
Relator’s attorney: I believe, yes, it is, Judge ....
Court: Okay. We’re almost done here. Order Number 9 will be: It is further ordered that ... [Dennis] shall have the temporary care and control of the minor while she is participating in the Rachel Foundation program with the child and while not in the care and control of [relator]. That sounds reasonable.
What — that’s your proposed language. So do you agree with that language?
Relator’s attorney: That’s fine, Your honor, because I believe that’s what the Rachel Foundation needs to do is effectively intervene.
Dennis’s attorney: And the other thing is the judge [who presided over the April hearing] had ordered that my client have the summer with the child.
Relator’s counsel: I disagree with that, Judge. That’s not what she said. It was going to be determined by the Rachel Foundation.

Now, for the first time, in the petition for writ of mandamus, relator objects on the grounds that the temporary orders effectively change the person with the exclusive right to designate P.C.L.’s primary residence of the child. Based on the above, I would hold that relator waived this complaint and deny the petition for writ of mandamus.

However, even if relator did not waive his complaint, I do not believe the temporary orders effectively change the designation of the person who has the exclusive right to designate P.C.L.’s primary residence. In his petition, relator relies on the court’s use of the word “indefinitely” in its order that visitation “shall continue at the discretion of the Rachel Foundation.” However, it is clear from the record and the acquiescence of relator’s counsel that the parties understood the intervention of the Rachel Foundation would occur only during the summer break, and not for an “indefinite” period.

During the June 22nd hearing, several discussions arose concerning summer visitation.

Court: All right. I’m going to add to paragraph 7: Tabitha Dennis shall pay 100 percent of the cost of the Rachel Foundation. That’s what you’re agreeing to?
Dennis’s attorney: Yes.
Court: All right. Now, we’re just dealing with the summer visitation.

During a later discussion regarding a decision on where P.C.L. would spend all or part of her summer, the court asked both the Rachel Foundation program director, Pamela Hoch, and the court-appointed parenting coordinator, Dr. Dina Trevino, if it was their understanding that the Rachel Foundation in conjunction with Trevino would decide the frequency and duration of the visitations, both witnesses responded affirmatively. The court then stated, “Okay. All right. Let’s do it that way then.” Relator’s counsel responded, “Okay. Thank you, Judge.”

Finally, the court discussed the Rachel Foundation’s discretion:

Court: Okay. Let’s go back to my original question; and that is, assuming they start on the 4th of July, how soon can you get recommendations on summer visitation and custody visitation?
Hoch: For about a week.
Court: Okay.
Dennis’s attorney: So they stay there for the whole week, just so the Court is aware of that.
Court: I understand.
Hoch: The visit is open-ended from the child’s perspective. If the child knows that the child is coming there for three days or the week, the child will typically go into lockdown and just hold their breath for a week. The visit is open-ended. There is no determined end. Otherwise, the child will just hold her breath.
Court: All right. I would like you to attempt to do it by July 15th.
Hoch: Yes, Your Honor.
Court: And you’ll be entitled to an extension of two weeks if you would post it.
Hoch: Can you please clarify that, Your honor?
Court: Sure. What I would like to do is for the order to reflect that at the discretion of the Rachel Foundation and the parenting coordinator, the recommendation on visitation will be made by July 15th. If it cannot be completed by that time, at the discretion of the Rachel Foundation and Dr. Trevino, then the alternate date will be July 29th, okay?
Hoch: Okay.
Dennis’s attorney: Just so that I’m clear, when she said that she makes a recommendation, the child will be there for that whole time. So are you saying that on the 15th if she reports and says things are doing great, she stays for the rest of the month? She stays until school starts?
That’s what — I think that’s what I understand from the foundation is that it’s open-ended. So the child shows up on the 4th and doesn’t leave until—
Court: It will be at their discretion?
Dennis’s attorney: Right.
Court: Yes. That’s what I mean.
Hoch: Until such time as hopefully the relationship is normalized, sufficient for the child to resume a normal relationship with her parents.
Dennis’s attorney: But that can extend up through the date school-before school starts?
Hoch: Hypothetically, yes.

The record reveals the trial court intended only that P.C.L. would stay at the Rachel Foundation, at most, from July to the start of the school year so as to provide the Foundation with enough time to work on reunification with Dennis and P.C.L. and make its recommendation without any manipulation on the part of the child. The order effectively accomplishes what a trial court is empowered to do: enter temporary orders regarding summer visitation with a parent conservator. For this reason, I would only conditionally grant mandamus relief and direct the trial court to modify its order to reflect the court’s and parties’ intention that visitation between P.C.L. and Dennis be facilitated by the Rachel Foundation during the summer.

      . Dennis’s bill of review argues that this order should be set aside because she was not served with citation. To date, the trial court has not ruled on Dennis's bill of review.

      . In its order, the trial court had found that attending boarding school was in the best interest of the children. In re Ostrofsky, 112 S.W.3d at 929. The court of appeals, however, explained that section 156.006(b)(1) did not allow changing the designation if it was in the best interest of the children; under subsection (b)(1), the designation could only be changed if the child’s present living environment endangered the child’s physical health or significantly impair the children’s emotional development. See id.

      . Indeed, the trial court has ordered the Rachel Foundation to report to the trial court’s parenting coordinator and ordered the parenting coordinator to disseminate information from the Rachel Foundation to the attorneys and parties at her discretion.

      . We recognize that the Rachel Foundation is required under the order to make recommendations to the parenting coordinator by a certain date. However, the order also allows the Rachel Foundation to request extensions indefinitely. And, there is no indication in the order when the trial court intends to revisit the issue. Thus, we believe that although the order requires recommendations to be made, it is still indefinite and open-ended.

      . Dennis’s appointment as possessory conservator is based on a statement made by Dennis’s attorney during the bill of review hearing. However, the parties have provided the court with a copy of only the February 22, 2000 order naming Dennis and relator joint managing conservators.

      . The only objections raised by relator’s attorney related to the transfer provisions and attendance at a summer camp. When the trial court ordered that transfer would take place at either the office of the parenting coordinator or, if P.C.L. did not cooperate, at a juvenile detention facility, counsel objected on the grounds that P.C.L. had no criminal background. Later, counsel raised a potential conflict with the timing of the visitation due to a summer camp in which P.C.L. had already been enrolled. The court noted that resolution of the summer visitation had been pending since April, but delayed until June. The court told counsel the camp had to be cancelled. However, counsel asked that “if the child’s relationship with her mother is ... normalized, as the Rachel Foundation characterizes it, would it be possible if it normalizes before camp, for her to be able to attend that camp?” The court said, "if it can be accommodated, we will.”


author: SARAH B. DUNCAN, Justice.

text:
    Jesse and Kathy ADAMS, Individually and as Next Friends of Sage Adams, a Minor, Appellants, v. Donna GOTTWALD, D.D.S., P.C. and Donna Gottwald, Appellees.
    No. 04-04-00569-CV.
    Court of Appeals of Texas, San Antonio.
    Aug. 17, 2005.
    Rehearing Overruled Sept. 26, 2005.
    Kevin B. Miller, Mark A. Cevallos, Law Offices of Miller & Associates, San Antonio, for appellants.
    Steven D. Browne, Jeff Jowers, Clemens & Spencer, P.C., San Antonio, for appel-lees.
    Sitting CATHERINE STONE, Justice, SARAH B. DUNCAN, Justice, KAREN ANGELINI, Justice.
   OPINION

Opinion by

SARAH B. DUNCAN, Justice.

Jesse and Kathy Adams, individually and as next Mends of their daughter, Sage Adams, appeal the trial court’s take-nothing summary judgment in their medical malpractice suit against Donna Gottwald, D.D.S., P.C., and Donna Gottwald. We reverse the trial court’s judgment against the Adamses as next Mends of Sage and remand these claims to the trial court for further proceedings consistent with this opinion. In all other respects, we affirm the trial court’s judgment.

Factual and PROCEDURAL Background

On November 22, 2000, fourteen-year-old Sage Adams was treated by dentist Donna Gottwald. When Sage returned for a root canal on December 7, 2000, Dr. Gottwald broke or separated two files in Sage’s tooth or jaw. On that same date, Sage and her mother Kathy were informed that the two files had separated or were broken and that the tooth might need to be re-treated. On December 18, 2000, Sage returned to Dr. Gottwald, who attempted to remove the broken or separated files. Unable to do so, Dr. Gottwald placed a temporary filling on the tooth and informed Sage and her mother that the tooth might need to be re-treated if complications developed. Although Sage was scheduled to return to Dr. Gottwald for a crown to be placed on the tooth, she never did.

In November 2003, Sage’s parents, individually, and on Sage’s behalf, sued Dr. Gottwald and her professional corporation for medical malpractice. In their answer, Dr. Gottwald and her professional corporation pleaded the affirmative defense of the limitations provision set forth in section 74.251 of the Texas Civil Practice and Remedies Code; and it was on that basis that they subsequently moved for summary judgment. The Adamses responded, arguing that the limitations provision is unconstitutional as applied to a minor. The trial court granted the motion.

Standard of Review

“A defendant moving for summary judgment on an affirmative defense has the burden to conclusively establish that defense.” Long Distance Int’l, Inc. v. Tele-fonos de Mexico, S.A. de C.V., 49 S.W.3d 347, 350-51 (Tex.2001). On appeal, we review the trial court’s summary judgment de novo, viewing all the evidence in the respondent’s favor to determine whether there is no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. See Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 816 n. 7 (Tex.2005); see also Tex.R. Civ. P. 166a(c).

Waiver

Gottwald argues the Adamses waived their “as-applied” challenge to the section 74.251 limitations provision by failing to affirmatively plead that it is unconstitutional and by “failfing] to produce any summary judgment evidence that demonstrates that the legislative action was unreasonable in light of the determined state crisis which the legislature addressed.” We disagree. Although “[a] litigant must raise an open-courts challenge in the trial court,” this burden may be met — as it was here — by raising the challenge in a response to a motion for summary judgment. Southwestern Elec. Power Co. v. Grant, 73 S.W.3d 211, 222 (Tex.2002). And Gottwald is simply incorrect in characterizing the Adamses’ challenge as an “as-applied” challenge. The Adamses do not argue the limitations provision in section 74.251 is unconstitutional as applied to Sage and her circumstances; they argue it is unconstitutional on its face as applied to all minors. See Weiner v. Wasson, 900 S.W.2d 316, 320 (Tex.1995) (rejecting Weiner’s argument that the court decided the constitutionality of section 74.251’s predecessor on an “as-applied” basis).

Constitutionality

The Adamses argue the trial court erred in granting Gottwald’s motion for summary judgment because the limitations period set forth in section 74.251 of the Texas Civil Practice and Remedies Code violates the open courts provision contained in article I, section 18 of the Texas Constitution as applied to minors. We agree.

Section 74.251 of the Texas Civil Practice and Remedies Code provides as follows:

Notwithstanding any other law, and subject to subsection (b), no health care liability claim may be commenced unless the action is filed within two years from the occurrence of the breach or tort or from the date the medical or health care treatment that is the subject of the claim or the hospitalization for which the claim is made is completed; provided that, minors under the age of 12 years may have until their 14th birthday in which to file, or have filed on their behalf, the claim. Except as herein provided, this section applies to all persons regardless of minority or any other legal disability.

Tex. Civ. PRAC. & Rem.Code § 74.251 (Vernon 2003). As demonstrated by the following redlined version, section 74.251 is virtually identical to its predecessor, section 10.01 of the Medical Liability Act:

Notwithstanding any other law, and -subject to subsection (b), no health care liability claim may be commenced unless the action is filed within two years from the occurrence of the breach or tort or from the date the medical or health care treatment that is the subject of the claim or the hospitalization for which the claim is made is completed; provided that, minors under the age of 12 years may shall have until their 14th birthday in which to file, or have filed on their behalf, the claim. Except as herein provided, this section applies to all persons regardless of minority or any other legal disability.

Weiner, 900 S.W.2d at 318 (quoting former Tex.Rev.Civ.Stat. Ann. art. 4590i, § 10.01); see also Sax v. Votteler, 648 S.W.2d 661, 665-67 (Tex.1983) (holding section 10.01’s predecessor unconstitutional). The Supreme Court of Texas held that “section 10.01[was] unconstitutional when applied to a minor because it violate[d] [the open courts provision set forth in] article I, section 13 of the Texas Constitution.” Weiner, 900 S.W.2d at 319. However, Gottwald argues that, unlike its predecessor, the limitations provision applicable to minors in section 74.251 is saved because, in the accompanying legislative findings, “the legislature addressed Weiner and Sax by focusing on one part of the balancing test, detailing and demonstrating the important purpose of the statute.” However, a similar argument was considered and rejected in Sax. See id. (“Although the Legislature enacted article 5.82 for the legitimate purpose of restraining the escalating cost of liability insurance for health care providers, we concluded that the means used to achieve this purpose were not ‘reasonable when they [were] weighed against the effective abrogation of a child’s right to redress.’ ” Weiner, 900 S.W.2d at 318 (quoting Sax, 648 S.W.2d at 667)). If this argument is to prevail, it must do so in the Supreme Court of Texas. We are bound by Sax and Weiner.

Conclusion

We hold that, as applied to minors like Sage Adams, section 74.251 of the Texas Civil Practice and Remedies is unconstitutional under the open courts provision contained in article I, section 13 of the Texas Constitution. We therefore reverse the trial court’s summary judgment against Jesse and Kathy Adams as next friends of their daughter Sage and remand these claims to the trial court for further proceedings consistent with this opinion. In all other respects, the trial court’s judgment is affirmed.


author: PHYLIS J. SPEEDLIN, Justice.

text:
    The STATE of Texas, Appellant, v. Tom NEWTON, Appellee.
    Nos. 04-03-00633-CR to 04-03-00637-CR.
    Court of Appeals of Texas, San Antonio.
    Aug. 24, 2005.

      Ronald L. Sutton, Dist. Atty., Junction, Kurtis S. Rudkin, Law Office of Kurtis S. Rudkin, Boerne, for appellant.
    David L. Botsford, Law Office of David L. Botsford, Austin, Stanley G. Schneider, Schneider & McKinney, P.C., Houston, for appellee.
    Sitting: ALMA L. LÓPEZ, Chief Justice, KAREN ANGELINI, Justice, PHYLIS J. SPEEDLIN, Justice.
   OPINION

Opinion by

PHYLIS J. SPEEDLIN, Justice.

The State of Texas appeals from the trial court’s order dismissing five indictments against Tom Newton for misuse of official information under § 39.06(c) of the Texas Penal Code. Tex. Pen.Code Ann. § 39.06(c) (Vernon 2003). We affirm the trial court’s judgment.

Factual and Procedural Background

This appeal arises out of the actions of attorneys Frank Ford and Tom Newton in representing their client, Harold Shields, in his federal civil rights and malicious prosecution suit. In March 2000, a Kerr County grand jury indicted Harold Shields for aggravated sexual assault based on evidence presented by an assistant district attorney, Donnie Jeanne Coleman, and an investigator, Carol Twiss. The presentation to the grand jury was not recorded or transcribed. The victim later recanted, and the State dismissed the indictment. Shields then filed a federal lawsuit against the county, the prosecutor and the investigator, alleging their failure to present exculpatory evidence to the grand jury violated his civil rights and constituted malicious prosecution. In August 2001, Coleman and Twiss gave depositions in the federal suit in which they discussed their recollection of the evidence that was presented to the grand jury. Coleman testified that the grand jury had been presented with all of the evidence, the “good and the bad,” and, specifically, had been presented with information about Shields that did not match the victim’s description. Twiss testified similarly, but in less detail.

In October 2001, Shields’ attorneys, Ford and Newton, or their representatives, purportedly contacted several of the grand jurors who had returned the indictment against Shields seeking disclosure of the information that was presented to the grand jury. Ford and Newton also subpoenaed several of the grand jurors in an attempt to take their videotaped depositions for the federal lawsuit. Coleman and Twiss moved to quash the subpoenas and requested a protective order preventing Shields and his attorneys from any further contact with the grand jurors. The federal district judge quashed the subpoenas and granted the protective order. Only then did Ford and Newton petition the state district court under article 20.02(d) of the Texas Code of Criminal Procedure to order disclosure of the information presented to the grand jury. See Tex.Code CRiM. PROC. Ann. art. 20.02(d) (Vernon 2005). The trial court denied the request, and this court affirmed. See In re Grand Jury Proceedings, 129 S.W.3d 140, 144 (Tex.App.-San Antonio 2003, pet. denied) (holding prosecutors have no duty to present exculpatory evidence to a grand jury, and thus Shields could not show a particularized need to take the grand jurors’ depositions under article 20.02(d) of Texas Code of Criminal Procedure).

On February 26, 2003, Ford and Newton were indicted for “knowingly and with the intent to obtain a benefit, solicitfing] or receiving] from a public servant, to wit: grand juror [name], information that said public servant had access to by means of his/her office, and that said information had not been made public.” See Tex. Pen. Code Ann. § 39.06(c). Each attorney was separately indicted for allegedly contacting five different grand jurors. Ford and Newton filed a joint motion to quash the indictments alleging six grounds. After a hearing, the trial court dismissed the indictments based on three of the six grounds alleged in the motion: failure to allege an offense as a matter of law because grand jury information does not meet the definition of “information that has not been made public” under § 89.06(d); inadequate notice of the type of “information” solicited or received; and inadequate notice of the “benefit” to be obtained from the information. See Tex. Pen.Code Ann. § 39.06(d) (Vernon 2003). The trial court also held that subsections (c) and (d) of § 39.06 are unconstitutionally void for vagueness. The State perfected its appeal. The five appeals relating to Newton were consolidated with each other, and the five appeals relating to Ford were similarly consolidated.

Analysis

On appeal, the State asserts: (1) the indictments tracked the statute and thus sufficiently alleged an offense under § 39.06(c); (2) the indictments adequately notified the defendants of the nature of the charges against them; and (3) subsections (c) and (d) of § 39.06 are not unconstitutionally void for vagueness. See Tex. Pen. Code Ann. §§ 39.06(c),(d). In their joint brief, Ford and Newton respond that: (1) the trial court did not abuse its discretion in quashing the indictments upon any of the six grounds alleged in their motion; (2) by not objecting during the hearing, the State waived any right to complain that they did not brief the constitutionality of the statute in their motion; and (3) the statute is unconstitutionally vague, and the indictments were properly quashed on that basis as well. This court may affirm the trial court’s dismissal of the indictments under any correct theory of law applicable to the case. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990) (if trial court’s decision is correct on any theory of law applicable to the case, it will be sustained even when the judge gives the wrong reason for his decision); see also McNair v. State, 75 S.W.3d 69, 71 (Tex.App.-San Antonio 2002, no pet.). Because we affirm the trial court’s judgment on the basis that the indictments failed to allege an offense as a matter of law, we address only that issue on appeal.

Motion to Quash Indictment

We begin our analysis by looking at the proper way to analyze the sufficiency of an indictment. To be sufficient, the face of an indictment must charge all the elements of an offense in plain and intelligible words so that a person of common understanding would know what is meant. Tex. Code CRIm. PROC. Ann. arts. 21.02(7), 21.03, 21.11 (Vernon 1989); State v. Mays, 967 S.W.2d 404, 406 (Tex.Crim.App.1998). The indictment must allege the offense with that degree of certainty that will give the defendant adequate notice of the offense so he may prepare a defense and may plead the judgment in bar of any future prosecution for the same offense. Tex.Code CRiM. PROG. Ann. arts. 21.04,21.11 (Vernon 1989); Mays, 967 S.W.2d at 406. Generally, an indictment which tracks the language of a criminal statute is sufficient to allege an offense and to provide a defendant with notice of the charged offense. State v. Edmond, 933 S.W.2d 120, 127-28 (Tex.Crim.App.1996); see also DeVaughn v. State, 749 S.W.2d 62, 67 (Tex.Crim.App.1988).

Upon the filing of a timely motion to quash, the indictment must be analyzed to determine whether it states on its face the facts necessary to allege that an offense was committed, to bar a subsequent prosecution for the same offense, and to give the accused notice of the precise offense with which he is charged. DeVaughn, 749 S.W.2d at 67. The indictment must state facts which, if proved, show a violation of the law; the indictment must be dismissed if such facts would not constitute a criminal offense. Posey v. State, 545 S.W.2d 162, 163 (Tex.Crim.App.1977); State v. Williams, 780 S.W.2d 891, 894 (Tex.App.-San Antonio 1989, no pet.). Whether an indictment alleges an offense is a question of law subject to de novo review. State v. Moff, 154 S.W.3d 599, 601 (Tex.Crim.App.2004); Johnson v. State, 954 S.W.2d 770, 771 (Tex.Crim.App.1997) (purely legal questions are reviewed de novo); State v. Hoffman, 999 S.W.2d 573, 574 (Tex.App.-Austin 1999, no pet.) (failure of indictment to allege an offense is a question of law).

Failure to Allege an Offense as a Matter of Law

The statute under which Ford and Newton were indicted is entitled “Misuse of Official Information,” and provides as follows in relevant part:

(c) A person commits an offense if, with intent to obtain a benefit or with intent to harm or defraud another, he solicits or receives from a public servant information that:
(1) the public servant has access to by means of his office or employment; and
(2) has not been made public.
(d) In this section, “information that has not been made public” means any information to which the public does not generally have access, and that is prohibited from disclosure under Chapter 552, Government Code.

Tex. Pen.Code Ann. §§ 39.06(c),(d). The offense is a third degree felony. Tex. Pen. Code Ann. § 39.06(e) (Vernon 2003).

The trial court quashed the indictments in part because they failed to allege an offense as a matter of law, finding that information presented to the grand jury was not information “prohibited from disclosure under Chapter 552” of the Texas Government Code, as required by the definition of the offense in § 39.06(d). See Tex. Pen.Code Ann. § 39.06(d). Chapter 552 of the Government Code is commonly known as the Open Records Act. See Tex. Gov’t Code Ann. §§ 552.001-353 (Vernon 2004). The State argues on appeal that the indictments tracked the statutory language and the statute is completely descriptive of the offense; therefore, the indictments sufficiently alleged an offense under § 39.06(c) of the Penal Code. See Mays, 967 S.W.2d at 406.

The criminal offense created by § 39.06(c) is further described by § 39.06(d)’s definition of “information that has not been made public.” Tex. Pen.Code Ann. §§ 39.06(c),(d). The definition contains two components stated in the conjunctive: information to which the public does not generally have access; and that is prohibited from disclosure under the Open Records Act. Tex. Pen.Code Ann. § 89.06(d). With respect to the first component of the definition, it is well established that grand jury proceedings are secret, and that information presented to the grand jury is not generally available to the public. See Tex.Code Crim. PROC. Ann. arts. 19.34, 20.02(a) (Vernon 2005); see also Ex parte Martin, 6 S.W.3d 524, 528 n. 15 (Tex.Crim.App.1999) (citing Stern v. State, 869 S.W.2d 614, 621-22 (Tex.App.-Houston [14th Dist.] 1994, writ denied), and its discussion of the historical role of the grand jury and the statutory scheme making grand jury proceedings subject to strict secrecy). In recognition of the secrecy of grand jury proceedings, the legislature has provided a specific procedure for obtaining access to grand jury information based on a showing of particularized need. Tex.Code Crim. Peoc. Ann. art. 20.02(d). The parties do not dispute, and we concur, that information presented to a grand jury clearly constitutes “information to which the public does not generally have access,” and thus meets the first part of § 39.06(d)’s definition of non-public information.

With respect to the second component of § 39.06(d)’s definition, that the subject information be “prohibited from disclosure under Chapter 552,” we look to the Open Records Act to determine whether it “prohibits disclosure” of grand jury information. We begin by examining the Act to determine what is “prohibited” from disclosure. The Open Records Act is broadly structured as follows: Subchapter A, which contains general provisions including definitions of terms used in the Act; Subchapter B, which establishes the public’s right of access to public information; Subchapter C, which provides numerous exceptions to required disclosure; Sub-chapters D through F, which establish the procedures for the Act’s administration and the disclosure of public information; Subchapter G, which provides for Attorney General decisions on whether information is subject to disclosure; and Subchapters H and I, which provide methods for civil enforcement and penalties for criminal violations. See Tex. Gov’t Code Ann. §§ 552.001-.353.

While § 39.06(d) of the Penal Code uses the phrase “prohibited from disclosure under Chapter 552,” nowhere in the Open Records Act does it prohibit the disclosure of any information; rather, it provides a set of exceptions to required disclosure for certain categories of public information. Tex. Gov’t Code Ann. § 552.101-.142 (Vernon 2004); City of Garland v. Dallas Morning News, 22 S.W.3d 351, 356 (Tex.2000). It is readily apparent that the terminology used in the penal statute does not match the terminology of the Open Records Act. We. are, however, required to construe the two statutes so that they work together in order to bring about the legislature’s intent. See Boykin v. State, 818 S.W.2d 782, 785-86 (Tex.Crim.App.1991) (courts interpret a statute according to the literal meaning of the words used, unless doing so leads to an absurd result that the legislature could not have intended, in which case, courts may consider extra-textual factors to arrive at a sensible interpretation); see also LaSara Grain Co. v. First Nat'l Bank of Mercedes, 673 S.W.2d 558, 565 (Tex.1984) (if possible, court is required to construe statutes in harmony with each other). Therefore, in order to give meaning to the penal statute, we will construe the phrase “prohibited from disclosure” in § 39.06(d) to mean the set of exceptions to disclosure listed in Subchap-ter C of the Act. See Tex. Gov.Code Ann. § 552.101-142.

Por purposes of our analysis, we must next determine whether the Open Records Act “prohibits disclosure” of grand' jury information. The purpose of the Open Records Act is to provide public access to “complete information about the affairs of government and the official acts- of public officials and employees.” Tex. Gov’t Code Ann. § 552.001(a) (Vernon 2004); City of Garland, 22 S.W.3d at 355-56. The Act defines “public information” as any information that is “collected, assembled, or maintained under a law or ordinance or in connection with the transaction of official business: (1) by a governmental body; or (2) for a governmental body....” Tex. Gov’t Code Ann. § 552.002(a) (Vernon 2004). Under the Act, public information is required to be made available to the public during normal business hours of the governmental body. Tex. Gov’t Code Ann. § 552.021 (Vernon 2004). Grand, juries, however, are not designated as a “governmental body.” See Tex. Gov’t Code Ann. § 552.003(1)(A) (Vernon 2004). In addition, the judiciary is expressly excluded from the definition of a “governmental body;” therefore, judicial information is not “public information” subject to the Open Records Act. See Tex. Gov’t Code Ann. § 552.003(1)(B) (Vernon 2004); Holmes v. Morales, 924 S.W.2d 920, 922 (Téx.1996).

Ford and Newton argue, and the trial court, agreed, that because grand juries are considered part of the judiciary, information presented to a grand jury is exempt from the Open Records Act and its disclosure is neither permitted nor “prohibited” under the Act; therefore, the solicited information does not meet the second prong of the definition of non-public information and the indictments failed to allege an offense under § 39.06(c) of the Penal Code. In determining whether a particular entity is an extension of the judiciary for purposes of the Open Records Act, our focus is on the nature and functions of the entity. Benavides v. Lee, 665 S.W.2d 151, 151-52 (Tex.App.-San Antonio 1983, no writ). The grand jury has historically been characterized as an extension of the judiciary, “ ‘an arm of the court by which it is appointed’... rather than ... an autonomous entity.” Ex parte Edone, 740 S.W.2d 446, 448 (Tex.Crim.App.1987) (quoting W. LaFave & J. ISRAEL, CRIMINAL PROCEDURE § 8.4 (1984)); see also Holmes, 924 S.W.2d at 923 (characterizing “judicial power” as the power to hear and decide issues of fact, to decide questions of law, to render judgment on the facts in accordance with the law, and to execute judgment). We noté that the Texas Attorney General has also opined that the Open Records Act does not apply to information within the actual or constructive possession of a grand jury because the grand jury is an extension of the judiciary for purposes of the Open Records Act. Op. Tex. Att’y Gen. ORD.-513 (1988) (further stating, “[information held by a grand jury ,.. is not itself subject to the Open Records Act”). We agree that based on its nature and functions the grand jury is an extension of the judiciary. See Harrison v. Vance, 34 S.W.3d 660, 663 (Tex.App.-Dallas 2000, no pet.); Dallas County Dist. Attorney v. Doe, 969 S.W.2d 537, 542 (Tex. App.-Dallas 1998, no pet.); Euresti v. Valdez, 769 S.W.2d 575, 577-78 (TexApp.-Corpus Christi 1989, no writ).

Although the State concedes that the grand jury is an extension of the judiciary, it argues that because the Open Records Act refers to the judiciary and recognizes an alternative means of access to judicial information, it therefore “prohibits” disclosure of judicial information. See Tex. Gov’t Code Ann. §§ 552.003(1)(B), 552.0035 (Vernon 2004). The State also argues that because the Act contains a general exception to disclosure for all information made confidential by other laws, it “prohibits” disclosure of grand jury information which is secret by nature. See Tex. Gov’t Code Ann. § 552.101 (Vernon 2004). The State’s arguments are fatally flawed because the Open Records Act clearly and unequivocally excludes judicial information from its scope. See Tex. Gov’t Code Ann. § 552.003(1)(B). In fact, the judiciary is the only branch of government that is expressly excluded from the definition of a “governmental body;” thus its information falls outside the definition of “public information” under the Act. See id.; Tex. Gov’t Code Ann. § 552.002(a). The State’s argument further fails to recognize that the first inquiry in determining whether particular information is even subject to the Act is to determine whether the information meets the Act’s definition of “public information.” See City of Garland, 22 S.W.3d at 359. Only after .information is determined to be “public information” subject to the Act’s provisions does it become relevant whether such public information falls within an exception to disclosure provided by the Act. See id.; see also City of Garland v. Dallas Morning News, 969 S.W.2d 548, 554 (Tex.App.-Dallas 1998), aff'd, 22 S.W.3d 351 (Tex.2000) (noting that “[wjhether the information is excepted from disclosure is irrelevant to the initial question of whether the information is public and, therefore, governed by the Act”). Our analysis need not extend beyond the initial inquiry because the Act expressly provides that judicial information is not “public information” subject to the Act. Tex. Gov’t Code . Ann. §§ 552.003(1)(B), 552.002(a); see City of Garland, 22 S.W.3d at 357 (whether information is public information subject to the Open Records Act is a question of law).

Conclusion

We conclude that because the grand jury is an extension of the judiciary, and judicial information is not “public information” within the meaning of the Open Records Act, grand jury information is not subject to the Open Records Act. See City of Garland, 22 S.W.3d at 359. Because the Open Records Act is simply not applicable to information presented to a grand jury, the information that Ford and Newton allegedly solicited or received from the grand jurors did not fall within the Act’s scope, and thus could not be “prohibited from disclosure under Chapter 552,” as required by § 39.06(d) of the Penal Code. Accordingly, the indictments did not allege facts that, if true, would constitute an offense under § 39.06(c). See Tex. Pen.Code Ann. §§ 39.06(c),(d). We therefore affirm the trial court’s judgment dismissing the indictments on this basis. Because we affirm the trial court’s judgment on this ground, we do not address the remaining issues raised on appeal, including the constitutionality of § 39.06(c) and (d) of the Penal Code.

      . The elements of a malicious prosecution claim are: (1) a criminal prosecution was commenced against the plaintiff; (2) the prosecution was initiated or procured by the defendant; (3) the prosecution terminated in favor of the plaintiff; (4) the plaintiff was innocent; (5) the defendant lacked probable cause to instigate the prosecution; (6) the defendant acted with malice in bringing the prosecution; and (7) the plaintiff suffered damages as a result of the prosecution. Richey v. Brookshire Grocery Co., 952 S.W.2d 515, 517 (Tex.1997); San Antonio Credit Union v. O’Connor, 115 S.W.3d 82, 94 (Tex.App.-San Antonio 2003, pet. denied).

      . The victim had said the man’s name who molested her started with an "M;” the initials “MB” were on his mailbox; he had been molesting her for a long time; he showed her pictures on his computer; he had a particular type of truck; and he lived alone. Shields did not have an "M” in his name; had only moved to the Kerrville area within the last year; did not have a computer in his home; had a different type of truck; and lived with his wife.

      . The State is represented in these cases by an attorney pro tem. On January 12, 2005, this court issued two published opinions denying the appellees’ joint motion to dismiss the State’s appeal for lack of jurisdiction and holding that the attorney pro tem had authority to file notice of appeal on behalf of the State. See State v. Ford, 158 S.W.3d 574, 581-82 (Tex.App.-San Antonio 2005, pet. dism'd); State v. Newton, 158 S.W.3d 582, 590 (Tex.App.-San Antonio 2005, pet. dism’d).

      . See this court’s opinion in Appeal Nos. 04-03-00628-CR through 04-03-00632-CR.

      . The State also argues that Ford and Newton did not allege the statute is unconstitutional in their motion to quash, and thus waived the issue.

      . The legislature amended Chapter 552 of the Government Code effective September 1, 1995, and redesignated the Texas Open Records Act as the "Public Information Act.” See Act of May 29, 1995, 74th Leg., R.S., ch. 1035, § 29, 1995 Tex. Gen. Laws 5127, 5142 (effective Sept. 1, 1995).

      . Attorney general opinions are not binding on the courts, but may be considered as persuasive. Holmes, 924 S.W.2d at 924.

      . Section 552.0035(a) of the Open Records Act acknowledges that the public’s access to information maintained by the judiciary is governed by an alternative procedure outside the Act comprised of "rules adopted by the Supreme Court of Texas or ... other applicable laws and rules.” Tex. Gov't Code Ann. § 552.0035(a).


author: CATHERINE STONE, Justice.

text:
    In re EMERITUS CORPORATION.
    No. 04-05-00171-CV.
    Court of Appeals of Texas, San Antonio.
    Aug. 24, 2005.
    Gregory J. Lensing, Jonathan C. LaM-endola, Cowles & Thompson, P.C., Dallas, for appellant.
    Janice Maloney, Law Office of Pat Malo-ney, P.C., San Antonio, for appellee.
    Sitting: CATHERINE STONE, Justice, SARAH B. DUNCAN, Justice, SANDEE BRYAN MARION, Justice.
   OPINION

CATHERINE STONE, Justice.

This case of first impression raises issues of whether and to what extent a judgment creditor can engage in post-judgment discovery after the judgment debtor has superceded the judgment by posting a cash deposit. Specifically, we must consider the interplay between Texas Rule of Civil Procedure 621a and Texas Rule of Appellate Procedure 24. Emeritus Corporation contends the trial court clearly failed to correctly analyze or apply Texas Rule of Civil Procedure 621a when it denied Emeritus’s motion to quash post-judgment discovery and for a protective order. After thoroughly considering the arguments advanced by the parties, we are of the opinion that the petition for writ of mandamus should be denied.

Background

Leo Ofczarzak and David Niedzielski, on behalf of the Estate of Florine Ofczarzak, deceased, (collectively the “real parties”) filed a wrongful death and survival suit against Emeritus Corporation. A jury rendered judgment in favor of the real parties and awarded them $1,524,445 in compensatory damages (including pre and post-judgment interest) and $18 million in punitive damages. Following the jury’s verdict, Emeritus filed a motion to suspend enforcement of the judgment without bond.

Real parties subsequently served Emeritus with post-judgment interrogatories and requests for production. In addition, real parties filed a motion to enjoin Emeritus from dissipating its assets to avoid satisfaction of the judgment. Real parties also sought leave of court to depose Emeritus’s Chief Financial Officer, Raymond Brand-strom, and its Chief Executive Officer, Dan Baty. Shortly thereafter, the trial court ordered Emeritus to respond to real parties’ written discovery and to produce Brandstrom and Baty for deposition. The court also entered an injunction prohibiting Emeritus from dissipating its assets to avoid satisfaction of the judgment.

Despite its previously filed motion to suspend enforcement of the judgment without bond, Emeritus posted a $1,725,000 cash deposit in lieu of bond with the Bexar County District Clerk on March 17, 2005. Emeritus simultaneously filed a “Motion for Protective Order and to Quash Discovery” in the trial court, asserting that the real parties’ discovery requests had become moot with the posting of the cash deposit. Real parties opposed Emeritus’s motion, arguing the trial court should deny Emeritus’s motion because Texas Rule of Civil Procedure 621a authorizes them to conduct post-judgment discovery to obtain information relevant to their motion for injunctive relief. The trial court ultimately agreed with real parties and denied Emeritus’s “Motion for Protective Order and to Quash Discovery.” Emeritus subsequently filed this original proceeding.

Standard of Review

Mandamus will lie only to correct a clear abuse of discretion when there is no other adequate remedy at law. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992). “A trial court clearly abuses its discretion if ‘it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.’ ” Id. at 839 (citing Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985)). This standard has different applications in different circumstances. Id.

When reviewing factual issues or matters committed to the trial court’s discretion, the reviewing court may not substitute its judgment for that of the trial court. Id. at 839-40. The relator must establish that the trial court could reasonably have reached only one result. Id. at 840. The reviewing court cannot set aside the trial court’s decision unless it is shown to be arbitrary and unreasonable. Id. Review of a trial court’s determination of the legal principles controlling its ruling is much less deferential. Id. “A trial court has no ‘discretion’ in determining what the law is or applying the law to the facts. Id. A clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion.” Id. This mandamus proceeding centers on the trial court’s determination of the legal principles controlling its ruling.

Discussion

This mandamus proceeding hinges upon the proper interpretation of Texas Rule of Civil Procedure 621a. Well-settled principles of law guide our interpretation of this procedural rule. We apply the same rules of construction to procedural rules as we apply to statutes. In re VanDeWater, 966 S.W.2d 730, 732 (Tex.App.-San Antonio 1998, orig. proceeding). “Where a rule of procedure is clear, unambiguous, and specific, we construe the rule’s language according to its literal meaning.” Murphy v. Friendswood Dev. Co., 965 S.W.2d 708, 709 (Tex.App.-Houston [1st Dist.] 1998, no pet.). Rule interpretation is “a pure question of law over which the judge has no discretion.” See Mitchell Energy Corp. v. Ashworth, 943 S.W.2d 436, 437 (Tex.1997).

Rule of Civil Procedure 621a provides:

At any time after rendition of judgment, and so long as said judgment has not been suspended by a supersedeas bond or by order of a proper court and has not become dormant as provided by Article 3773, V.A.T.S., the successful party may, for the purpose of obtaining information to aid in the enforcement of such judgment, initiate and maintain in the trial court in the same suit in which said judgment was rendered any discovery proceeding authorized by these rules for pre-trial matters. Also, at any time after rendition of judgment, either party may, for the purpose of obtaining information relevant to motions allowed by Texas Rules of Appellate Procedure 47 and 49 initiate and maintain in the trial court in the same suit in which said judgment was rendered any discovery proceeding authorized by these rules for pre-trial matters. The rules governing and related to such pre-trial discovery proceedings shall apply in like manner to discovery- proceedings aftér judgment. The rights herein granted to the parties ' shall inure to their successors or assignees, in whole or in part. Judicial supervision of such discovery proceedings after judgment shall be the same as that provided by law or these rules for pretrial discovery and proceedings insofar as applicable.

Tex.R. Civ. P. 621a. Rule of Civil Procedure 621a thus authorizes post-judgment discovery in two specific instances. First, post-judgment discovery is authorized “for the purpose of obtaining information to aid in the enforcement of [a] judgment,” but only “so long as said judgment has not been suspended by a supersedeas bond or by order of a proper court and has not become dormant.” Id. Second, Rule of Civil Procedure 621a authorizes post-judgment discovery “for the purpose of obtaining information relevant to motions allowed by Texas Rules of Appellate Procedure 47 and 49 [now Rule 24].”' Id.

In this proceeding, both parties agree that real parties cannot engage in post-judgment discovery for the purpose of ob-taming information to aid in the enforcement of the judgment because Emeritus posted a cash deposit in the maximum amount required by Texas Rule of Appellate Procedure 24. See Tex.R.App. P. 24.2(a)(1) (“When the judgment is for money, the amount of bond, deposit, or security must equal the sum of the compensatory damages awarded in the judgment, interest for the estimated duration of the appeal, and costs awarded in the judgment.”). We must therefore consider whether real parties are entitled to post-judgment discovery under the second prong of Rule of Civil Procedure 621a: “for the purpose of obtaining information relevant to a motion allowed by Texas Rules of Appellate Procedure 47 and 49 [now Rule 24].”

Emeritus contends real parties are not entitled to post-judgment discovery under the second prong of Rule of Civil Procedure 621a because the rule does not authorize any post-judgment discovery once a judgment debtor posts security for the judgment. We disagree.

Emeritus’s argument is based on its misinterpretation of the unambiguous language of Rule of Civil Procedure 621a. The wording of Rule 621a indicates that a judgment debtor may forestall post-judgment discovery by filing sufficient security only under the first prong of the rule. The first prong of the rule states:

At any time after rendition of judgment, and so long as said judgment has not been suspended by a supersedeas bond or by order of a proper court and has not become dormant as provided by Article 3773, V.A.T.S., the successful party may, for the purpose of obtaining information to aid in the enforcement of such judgment, initiate and maintain in the trial court in the same suit in which said judgment was rendered any discovery proceeding authorized by these rules for pre-trial matters.

Tex.R. Civ. P. 621a. By contrast, the language of the second prong of the rule provides:

Also, at any time after rendition of judgment, either party may, for the purpose of obtaining information relevant to motions allowed by Texas Rules of Appellate Procedure 47 and 49 [now Texas Rule of Appellate Procedure 24] initiate and maintain in the trial court in the same suit in which said judgment was rendered any discovery proceeding authorized by these rules for pre-trial matters.

Id. Absent from the wording of the second prong is the language “so long as said judgment has not been suspended by a supersedeas bond or by order of a proper court.” We believe the absence of this language from the second prong is significant; had the supreme court intended to preclude all post-judgment discovery upon the posting of security by the judgment debtor, the court would have included the language “so long as said judgment has not been suspended by a supersedeas bond or by order of a proper court” in both prongs of Rule of Civil Procedure 621a. See Sayre v. Mullins, 681 S.W.2d 25, 27-28 (Tex.1984) (recognizing a statute must be construed in its entirety and consideration given to the consequences that would follow from each construction); Black v. Am. Bankers Ins. Co., 478 S.W.2d 434, 437 (Tex.1972) (noting one provision is not to be given meaning out of harmony with other provisions). Based on the unambiguous language of Rule of Civil Procedure 621a, we hold that post-judgment discovery is permissible under the second prong of the rule even when the judgment debtor has posted adequate security for the judgment.

Emeritus next contends that real parties are not entitled to post-judgment discovery under the second prong of Rule of Civil Procedure 621a because the trial court improperly considered Rule of Appellate Procedure 24 in its interpretation of’the rule. Emeritus claims the second prong of Rule of Civil Procedure 621a cannot be construed with Rule of Appellate Procedure 24 because Rule 621a still refers to former Rules of Appellate Procedure 47 and 49. We disagree.

The comment to current Texas Rule of Appellate Procedure 24 provides:

Former Rules 47, 48, and 49 are merged. The rule is substantially revised. Paragraph 24.1(a) now provides for superseding the judgment by agreement. Paragraph 24.1(c) is taken from former Rule 48 and provides for a deposit in lieu of the bond, including specific provisions for the release of the deposit. Paragraph 24.1(d) provides the conditions for the surety to honor the bond and for the deposit to be paid to the judgment creditor. In subdivision 24.2, the provisions for determining the amount of the bond or deposit are simplified. All provisions regarding superseding a judgment for an interest in property are merged into subparagraph 24.2(a)(2). The procedure for allowing security in a lesser amount is moved to paragraph 24.2(b) and is made applicable to all judgments. Subdivision 24.4 is taken from former Rule 49. The procedure for appellate review is more precisely stated.

Tes.R.App. P. 24 cmt. From this comment, it is evident that former Rules of Appellate Procedure 47 and 49 were revised and merged into one rule, Rule of Appellate Procedure 24, during the overhaul of the appellate rules in 1997. It is well-established that when a referenced rule/statute is amended or revised, as opposed to repealed, the referencing rule/statute incorporates the amendments or revisions.

When one statute references another statute, one must look to the referenced statute to understand the referencing statute. This becomes problematic when the Legislature repeals or modifies the referenced statute; different rules of construction apply when the referenced statute is repealed as opposed to when it is amended or revised. When the referenced statute is repealed, the meaning and scope of the referencing statute do not change, absent clear legislative intent to the contrary. On the other hand, when the referenced statute is amended or revised, the referencing statute incorporates the amendments or revisions.

In re R.J.J., 959 S.W.2d 185, 186 (Tex.1998) (per curiam) (citations omitted). Rule of Civil Procedure 621a therefore incorporates the provisions of current Rule of Appellate Procedure 24 even though it still refers to former Rules of Appellate Procedure 47 and 49 in its text. See id. Because the applicable rules of statutory construction required the trial court to construe Rule of Civil Procedure 621a, together with Rule of Appellate Procedure 24, and not former Rules of Appellate Procedure 47 and 49, we cannot say the trial court misinterpreted the scope or meaning of the second prong of Rule 621a.

Having determined that Rule of Civil Procedure 621a incorporates Rule of Appellate Procedure 24, we must now determine whether these rules, when construed together, authorized the trial court to grant real parties’ request for post-judgment discovery and to deny Emeritus’s motion to quash post-judgment discovery and for a protective order. Rule of Civil Procedure 621a provides that a party may pursue post-judgment discovery for the purpose of obtaining information relevant to motions allowed by Rule of Appellate Procedure 24. Tex.R. Civ. P. 621a. Pursuant to Rule of Appellate Procedure 24, litigants are entitled to file motions relating to the type and sufficiency of bond posted to stay the execution of a judgment, as well as motions to enjoin a judgment debtor from dissipating or transferring its assets to avoid satisfaction of a judgment. Tex.R.App. P. 24.

In this case, it is undisputed that real parties filed a motion to enjoin Emeritus from dissipating or transferring its assets to avoid satisfaction of the judgment. After real parties’ injunction motion was granted, real parties filed requests for post-judgment discovery. The purpose of real parties’ discovery was to obtain information so that they could test Emeritus’s ongoing compliance with the court-ordered injunction. The trial court found, and we agree, that real parties sought discovery related to a motion allowed by Rule of Appellate Procedure 24 and for a relevant purpose. See generally In re Sears, Roebuck & Co., 146 S.W.3d 328, 331 (Tex.App.Beaumont 2004, orig. proceeding) (“Relevant evidence is evidence that has a ‘tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.’ ”). Accordingly, we hold the trial court did not clearly fail to correctly analyze or apply Rule of Civil Procedure 621a when it granted real parties’ request for post-judgment discovery and denied Emeritus’s motion to quash post-judgment discovery and for a protective order.

Conclusion

Based on the foregoing, Emeritus’s petition for writ of mandamus is denied.

      . This deposit exceeds the sum of the compensatory damages awarded in the judgment, interest for the estimated duration of the appeal, and costs awarded in the judgment. See Tex.R.App. P. 24.2(a)(1).

      . The reference to Texas Rules of Appellate Procedure 47 and 49 is outdated. Former Rules 47 and 49 are from the pre-1997 Rules of Appellate Procedure. Rules 47 and 49 are now consolidated and found in Texas Rule of Appellate Procedure 24. See TexR.App. P. 24 cmt.

      . During oral argument, Emeritus conceded that a judgment creditor could obtain post-judgment discovery to obtain information to determine the continued viability of the bond or surely company even though the judgment debtor has posted security for the judgment. If post-judgment discovery is permissible in this context when the judgment debtor has posted security, we see no reason why real parties should be denied post-judgment discovery here. It makes no sense to grant real parties’ request for injunctive relief and, at the same time, afford them no means to secure the information they need to test future compliance with that injunction.

      . Emeritus asserts that "[o]nce the court granted the injunction, [real parties’] motion for injunctive relief was self-evidently moot. As of now, there is simply no proper motion pending to support post-judgment discovery.” As we previously noted, if a party has the right to an injunction, then that party also has the right to pursue discovery for the purpose of obtaining information to test compliance with that injunction.