source: Caselaw Access Project

author: FRANK F. DROWOTA, III, C.J.,

license: Public Domain

text:
    Gatha BLANKENSHIP v. AMERICAN ORDNANCE SYSTEMS, LLS, d/b/a Milan Army Ammunition Plant.
    Supreme Court of Tennessee, at Jackson.
    April 5, 2005 Session.
    May 12, 2005.

      Jeffrey P. Boyd, Jackson, Tennessee, for the appellant, Gatha Blankenship.
    Fred Coffins, Milan, Tennessee, for the appellee, American Ordnance Systems, LLC, d/b/a Milan Army Ammunition Plant.
   OPINION

FRANK F. DROWOTA, III, C.J.,

delivered the opinion of the court,

in which E. RILEY ANDERSON, ADOLPHO A. BIRCH, JR., JANICE M. HOLDER and WILLIAM M. BARKER, JJ., joined.

The employee in this workers’ compensation case injured her back while taking an upper body strength test on the employer’s premises. The employee, who was laid off at the time of the injury, voluntarily took the strength test as part of the application process for new jobs being created in the employer’s factory. The trial court found that the employee’s injury was not compensable because it did not arise out of her employment. The employee’s appeal was transferred to the full Supreme Court prior to the Special Workers’ Compensation Appeals Panel hearing oral argument. The dispositive question before this Court is whether the evidence preponderates against the trial court’s finding that the employee’s injury did not arise out of her employment. After carefully examining the record and the relevant authorities, we hold that the evidence does not preponderate against the trial court’s finding that the employee’s injury did not arise out of her employment. We also conclude that the employee’s injury did not occur in the course of her employment. Accordingly, we affirm the trial court’s judgment.

I. Factual and Procedural Background

The employee, Gatha Blankenship, was a fifty-four-year-old high school graduate at the time of trial. Her employment history consisted of production work in various factories. In 1987, the employee began working for the employer in this case, American Ordnance Systems, LLC, d/b/a Milan Army Ammunition Plant. The employee’s job was to assemble bullets. Her duties did not require heavy lifting.

In February 2002, the employee was temporarily laid off due to a decrease in the employer’s business. “While the employee was on layoff status, the employer posted a notice at its facility that medical evaluations for upper body strength would be performed on those employees interested in applying for new jobs being created in the plant. The new positions had specific lifting requirements. Thus, in order to qualify as a candidate for the new jobs, applicants had to pass a strength test, which entailed repetitive lifting of 25 pounds and occasional lifting of 70 pounds. The test was available to employees only, not the general public. The posted notice instructed employees interested in the new jobs to contact the employer’s human resources department.

The employee did not see the posted notice prior to being laid off but heard about it from friends after she was laid off. Although no one in a supervisory capacity ever told the employee that she was required to take the strength test, she understood based on conversations with friends that she needed to take the test in order to keep her current job. The employee acknowledged, however, that the strength test was not a condition of her continued employment because she was eventually called back to work despite not passing the test.

The employee took the strength test on March 7, 2002, on the employer’s premises. The test, which took one hour to take, involved lifting weights from various heights and positions. The employee was not compensated to take the test, and she did not pass it. She was receiving unemployment benefits when she took the test.

Immediately upon completing the strength test, the employee began experiencing weakness in her back. By the time she got to her car, the weakness had developed into pain. Over the next several days, the pain worsened and radiated down her leg. The employee testified that within days of taking the strength test she was concerned that she had “damaged something” in her back. Over the next several weeks, the employee attempted to treat herself but to no avail. When it became clear to the employee that she was in “some serious trouble” with her back, she sought medical attention at a hospital emergency room on May 19, 2002. She gave hospital employees a history of having back pain since lifting weights during the strength test. She gave the same history to her physician on May 21, 2002. The employee was diagnosed with a bulging disc. She was given a permanent physical impairment rating of 5% to the whole body.

According to the employee, she reported the injury to the employer on May 21, 2002. The employer denied the claim. This suit resulted.

Paul Harrison, the employer’s human resources manager, testified that taking the strength test was voluntary and that the employee was not paid to take the test. Harrison also testified that taking the test was not a condition of the employee’s continued employment or her return to work. He stated that the strength test was open only to employees, not the general public. He also stated that employees on temporary layoff status, such as the employee in this case, were still regarded as employees of the company for 120 days, at which point they were terminated if there was insufficient work to call them back. This arrangement was dictated by a collective bargaining agreement between the employee’s union and the employer. In any event, Harrison testified that the employee was still employed when she took the strength test on March 7, 2002, a point conceded by the employer’s lawyer at trial.

The trial court, noting that “this is an unusual case,” found that the employee’s back injury was not compensable because it did not arise out of her employment. The trial court explained that “perhaps she had good motives in submitting to the test because she thought by doing so that she could seek better employment within her company or more immediate employment within her company since she’s on layoff. But there’s no question in the court’s mind that there’s no element of compulsion to this.” Thus, the trial court found that taking the test was voluntary. The trial court also found it significant that the employee was not compensated to take the test. The trial court made a provisional finding of 25% permanent partial disability to the body as a whole in case the court’s finding regarding compensability was reversed on appeal.

The employee appealed the denial of benefits. The appeal was transferred to the full Supreme Court prior to oral argument before the Special Workers’ Compensation Appeals Panel. We note that the standai’d of review in this case is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the findings, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. § 50-6-225(e)(2) (Supp.2004).

II. Analysis

Many cases have reached this Court concerning the statutory requirements that a compensable injury arise out of and occur in the course of the employment. See Tenn.Code Ann. § 50-6-102(13)(Supp.2004) (to be eligible for workers’ compensation benefits, an employee must suffer an “injury by accident arising out of and in the course of employment”). Tennessee is not unique in this regard, for 43 states require that the injury arise out of and occur in the course of the employment. 1 Larson’s Workers’ Compensation Law § 3.01(2004). Indeed, the bulk of workers’ compensation litigation centers on these two requirements. Id. As one commentator has observed, “[f]ew groups of statutory words in the history of law have had to bear the weight of such a mountain of interpretation as has been heaped upon this slender foundation.” Id.

In Tennessee, as in most jurisdictions, the statutory requirements that the injury arise out of and occur in the course of the employment are not synonymous, although both elements exist to ensure a work connection to the injury for which the employee seeks benefits. See Sandlin v. Gentry, 201 Tenn. 509, 300 S.W.2d 897, 901 (1957). An injury occurs in the course of employment if it takes place while the employee was performing a duty he or she was employed to perform. Fink v. Caudle, 856 S.W.2d 952, 958 (Tenn.1993). That is, an injury occurs in the course of employment “when it takes place within the period of the employment, at a place where the employee reasonably may be, and while the employee is fulfilling work duties or engaged in doing something incidental thereto.” 1 Larson’s Workers’ Compensation Law § 12 (2004). Thus, the course of employment requirement focuses on the time, place, and circumstances of the injury. Hill v. Eagle Bend Mfg. Inc., 942 S.W.2d 483, 487 (Tenn.1997).

In contrast, arising out of employment refers to causation. Reeser v. Yellow Freight Sys., Inc., 938 S.W.2d 690, 692 (Tenn.1997). An injury arises out of employment when there is a causal connection between the conditions under which the work is required to be performed and the resulting injury. Fritts v. Safety Nat’l Cas. Corp., 163 S.W.3d 673, 2005 WL 926897 (Tenn.2005). The mere presence of the employee at the place of injury because of the employment is not enough, as the injury must result from a danger or hazard peculiar to the work or be caused by a risk inherent in the nature of the work. Thornton v. RCA Serv. Co., 188 Tenn. 644, 221 S.W.2d 954, 955 (1949). Thus, “an injury purely coincidental, or contemporaneous, or collateral, with the employment ... will not cause the injury ... to be considered as arising out of the employment.” Jackson v. Clark & Fay, Inc., 197 Tenn. 135, 270 S.W.2d 389, 390 (1954).

In this case, the employer argues that the employee’s injury did not arise out of and occur in the course of her employment because her participation in the strength test was strictly voluntary and she was not paid to take the test. The employer also argues that the employee’s job from which she was laid off and to which she was later called back did not have lifting requirements. The employer further asserts that the strength test was not a condition of the employee’s continued employment or return to work.

The employee responds that her injury should be compensable because the employer paid for the strength test, scheduled and conducted the test on the employer’s premises, and the test was available only to employees, not the general public. Thus, the employee contends that her participation in the test provided a benefit to the employer by identifying a group of persons physically capable of performing the new jobs at the plant.

Like the trial court, we are persuaded that the employee’s back injury did not arise out of her employment because the record fails to establish a causal connection between the conditions of the employee’s job assembling bullets and her back injury. The employee’s injury did not result from a danger or hazard peculiar to her work or was not caused by a risk inherent in the nature of her work. Evidence that the employer paid for the strength test and administered it on its premises does not trump the fact that the injury did not occur while the employee was performing her job making bullets or a task incidental thereto. Rather than resulting from a danger or hazard peculiar to her work or being caused by a risk inherent in the nature of her work, the employee was injured while undertaking a voluntary test — for which she was not compensated — as part of the application process for a job she did not have and may not have gotten even if she passed the test. In short, this case falls within the rule that an injury which is merely coincidental, contemporaneous, or collateral with the employment is not compensable. Jackson, 270 S.W.2d at 390.

Similarly, the record establishes that the employee’s back injury did not occur in the course of her employment. The record demonstrates that taking the strength test was strictly voluntary. As stated by the trial court, there was “no element of compulsion” on the employer’s part. The posted notice directed employees interested in the new positions to contact human resources. The notice did not require employees to take the test or otherwise apply for the new jobs. Moreover, the record is unrefuted that the strength test was not a condition of the employee’s continued employment or being called back to work. Further, the employee was not paid to take the test, and her current job did not have lifting requirements. The test was merely for the purpose of determining if employees interested in being considered for the new jobs met the physical qualifications for those positions. While it is true that the employee’s participation in the test benefitted the employer by helping it identify persons physically capable of performing the new jobs, it is equally true that the injury did not occur while the employee was performing a duty that she was employed or required to perform or engaged in a task incidental thereto. Accordingly, the trial court correctly declined to award benefits.

III. Conclusion

For the reasons stated above, we hold that the employee’s injury did not arise out of and in the course of her employment with American Ordnance Systems, LLS, d/b/a Milan Army Ammunition Plant. Accordingly, the judgment of the trial court is affirmed. Costs are assessed against Gatha Blankenship and her surety, for which execution may issue if necessary.

      . The employee was called back to work in September 2003, but she was laid off again, this time permanently, in December 2003. Upon resuming her duties in September 2003, she was not required to do any heavy lifting. After her termination in December 2003 the employee got a job in another factory making rivets for chainsaws.

      . The employer raised as a defense the employee’s failure to give notice of the injury within 30 days as required by Tennessee Code Annotated section 50-6-201. The employer contends on appeal that the employee should not be allowed to recover even if her injury arose out of and in the course of her employment because she did not timely report the injury. In light of our conclusion that the employee's injury did not arise out of and in the course of her employment, the issue of timely notice is pretermitted.

      . It is unclear from the record how the employee was able to receive unemployment benefits while still employed. We infer that she was not being paid by the employer while she was laid off.

      . Harrison testified that there were 30 openings and 500 employees in the plant.


author: GARY R. WADE, P. J.,

text:
    STATE of Tennessee, v. Janalee Annette WILSON.
    Court of Criminal Appeals of Tennessee, at Jackson.
    Assigned on Briefs July 9, 2003.
    Oct. 3, 2003.
    Application for Permission to Appeal Denied by Supreme Court March 8, 2004.

      Clifford K. McGown, Jr., Waverly, Tennessee (on appeal); George Morton Googe, District Public Defender (on appeal and at trial); and David Crichton, Assistant Public Defender (on appeal and at trial), for the appellant, Janalee Annette Wilson.
    Paul G. Summers, Attorney General & Reporter; Kathy D. Aslinger, Assistant Attorney General; Alfred L. Earls, Assistant District Attorney General; and R. Leigh Grinalds, Assistant United States Attorney, for the appellee, State of Tennessee.
   OPINION

GARY R. WADE, P. J.,

delivered the opinion of the court,

in which JOHN EVERETT WILLIAMS and ROBERT W. WEDEMEYER, JJ., joined.

The defendant, Janalee Annette Wilson, was convicted of first degree premeditated murder for the death of her husband, Rickey Wilson, Sr. The jury imposed a sentence of life imprisonment with the possibility of parole. In this appeal as of right, the defendant contends that the trial court committed four evidentiary errors and that the evidence was insufficient to support her conviction. The judgment of the trial court is affirmed.

On June 12, 1996, the victim, Rickey Wilson, Sr., was transported by ambulance to the emergency room of the Regional Hospital in Jackson with profound hypoglycemia, or low blood sugar. The defendant, a licensed practical nurse who is afflicted with diabetes, reported having given the victim a shot of Toradol, a pain reliever. Dr. David Larsen, who was aware that the defendant had been treated with insulin, found from a blood work-up that the victim’s C-peptides were below the detectable level. His diagnosis indicated the presence of synthetic insulin, which was consistent, even though the victim was not diabetic, with an insulin injection. Remedial treatment proved to be successful and the victim was discharged.

Michael Fuerst, a paramedic who treated the victim prior to his first hospitalization, arrived at the Wilson residence and found the victim unresponsive. Fuerst used a finger stick glucose test to determine that the victim’s glucose was approximately one-fourth the normal level. When Fuerst administered dextrose, the victim regained consciousness. He recalled that the defendant claimed to have given the victim a Toradol injection the evening before.

Beverly Ann Jetton, a registered nurse who was on duty in the emergency room when Fuerst arrived with the victim, recalled that the victim denied having taken insulin. The defendant informed her that other family members were ill with nausea and vomiting. Ms. Jetton, who knew the defendant, was aware that the defendant had planned to leave the victim.

On July 10, 1996, the victim suffered a seizure with symptoms consistent with hypoglycemia and was again transported to the hospital by ambulance. The defendant reported that on the prior evening she had given the victim a shot of Phenergan for nausea. Dr. Larsen referred the victim to Dr. Harold Sacks, an endocrinologist. Dr. Sacks examined the victim in mid-July of 1996 pursuant to the referral from Dr. Larsen. After forty-eight hours of inpatient testing, he was unable to find any evidence of disease or other physical problem that would have caused the victim’s low blood sugar. During the first examination, the victim informed Dr. Sacks that his family suspected that the defendant had administered insulin injections.

Andy Harwood, an ambulance service medic, responded to the second emergency call at the victim’s residence. He described the victim as semi-conscious, unresponsive, and suffering a grand mal seizure. The victim’s blood sugar was too low to be read by his equipment. After dextrose and a saline IV were administered, the victim regained consciousness and was transported to the hospital. Dr. Timothy Geno, who treated the victim when he arrived at the emergency room, recalled that the defendant informed him that she had given the victim an injection of Phenergan. Dr. Geno was also aware that there was animosity between the defendant and the victim as a result of marital discord. He knew that the custody of them son, Rickey, Jr., was in dispute.

On July 28, 1996, just prior to the victim’s third hospitalization, Billy Dean Gross, Jr., a neighbor, knocked on the Wilsons’ door to ask for help in unloading some furniture. The victim did not answer. Later, the defendant telephoned and asked whether Gross had seen or heard from the victim, explaining that she was at work and that the victim had been sick when she left. When Gross checked on the victim, he looked through the blinds, kicked in the door, and found the victim “foaming at the mouth.” Paul Davis Spencer, the paramedic who responded to the emergency call, found the victim “propped ... in a sitting position.” After determining that the victim’s blood sugar was low, Spencer administered dextrose. He recalled that the defendant had asked that the victim be taken to Jackson General Hospital rather than Regional, where he had been hospitalized on the two prior occasions.

The defendant was treated and released from the hospital that evening, but was taken to the Jackson General emergency room the next day in a comatose state. During this fourth hospitalization, his condition did not improve with the replacement of blood sugar. Douglas Phillips, the emergency room doctor, described the victim’s condition as brain encephalopathy, a “diffusing condition of the brain.” It was his opinion that the condition had been brought on by prolonged hypoglycemia. Pour days later, life support was terminated.

The victim’s mother, lone Wilson, testified that the defendant had reacted callously, attending a yard sale at the time of the victim’s death. Ms. Wilson claimed that the defendant did not want an autopsy performed, suggesting cremation despite the previously expressed desires of the victim, who owned four burial lots. According to Ms. Wilson, the victim had previously been granted temporary custody of his son, Rickey, Jr. While describing her relationship with the defendant as “strained” at the time of the victim’s death, Ms. Wilson stated that both the victim and the defendant had previously rejected her contention that the defendant might be responsible for the victim’s medical condition.

Christy Wilson Gilliam, one of the victim’s daughters by a previous marriage, testified that the victim drank one to two gallons of tea sweetened with two and one-half to five cups of sugar per day. According to Ms. Gilliam, the defendant was concerned that the victim would get custody of their minor son, a possible motive for the crime.

Tracy Wilson Taylor, another of the victim’s daughters by a prior marriage, testified that after the first hospitalization, the defendant accused the victim of “ ‘doing this to stop [her] from going to Florida.’ ” She recalled that when the defendant told the victim that she still intended to go, he replied, “ ‘Over my dead body,’ ” to which the defendant responded, “ ‘Don’t make me.’ ” According to Ms. Taylor, she heard the defendant remark that “she was going to [cremate the victim] and put him on her bedside table so every night when she went to bed she would look at him and know never to marry again.”

Amber Tracy Mayfield, who was a friend of the defendant, testified that the defendant told her that she had given the victim injections of Toradol and Phenergan for chest pain and nausea on July 28, just prior to his last hospitalization. She also overheard the victim tell the defendant that she would go to Florida “over his ... dead body” and the defendant respond, “ ‘Rick, don’t make me do it.’ ”

Charlotte Hunt, who oversaw insurance benefits at the victim’s place of employment, testified that about the time of the victim’s initial hospitalization, the defendant telephoned to check on some insurance information, informing her that the victim’s blood sugar had gotten so low that she had given him a shot of insulin. Because she was familiar with the treatment of diabetics, Ms. Hunt immediately questioned the propriety of the insulin shot.

Jackson Police Officer Will Helms, who knew the defendant through her work as a nurse, remembered her claim that the victim had developed diabetes. He recalled the defendant’s saying that she was medicating the victim with her own drugs.

Randy Duck became sexually involved with the defendant in 1991 or 1992 and continued the relationship until after the victim’s death. In February of 1996, approximately six months prior to the victim’s death, Duck sold his house and planned to move to Florida. At about the same time, the defendant decided that she wanted to move to Florida also. In preparation for her move, the defendant sought employment at different hospitals on the Florida gulf coast. A prospective employer confirmed that in March of 1996, the defendant completed an application for employment indicating that she would be available to start work on August 1. The defendant expressed concern, however, about whether she could take her minor son without a custody order. For a period of time after the victim’s death, Duck shared a residence with the defendant in Florida before she was brought to trial in this state.

The defense contended that the victim had committed suicide. A few weeks before his death, Lisa Cagle McClure telephoned the victim, who worked on her cars, and asked him to change her brake pads. Ms. McClure recalled that the victim had mentioned that he had not been feeling well and had been blacking out. She testified that the victim had remarked, “ ‘Lisa, I’m forty years old and I’ve got a lot of life left to live and I’m ... not ready to die yet.’ ”

Dr. O’Brian Clary Smith, who performed the autopsy, determined that the victim died as the result of a brain encephalopathy brought on by either a metabolic arrangement or ischemia, the absence of circulation through the brain. He testified that the symptoms were consistent with prolonged hypoglycemia, but that he could find no medical explanation for the condition. According to Dr. Smith, the presence of needle marks would not have been helpful in his analysis because the victim’s body would have sustained such marks during medical resuscitation and support measures.

Dr. John William Runyan, Jr., an endocrinologist, reviewed the victim’s medical records and lab results, concluding that, in his opinion, the injection of synthetic insulin had led to each of the victim’s four hospitalizations.

In June of 1996, the defendant completed the paperwork on a life insurance policy on the victim. The insurance agent admitted allowing the defendant to sign the victim’s name even though it was against company policy. When the agent telephoned the victim and asked about his prior physicals because the defendant could not remember the dates, the victim stated that he did not care whether he acquired the coverage, “as long as [the defendant] pays for it.”

Rickey Wilson, Jr., who was nine years old at the time of his father’s death, testified on behalf of the defendant. He recalled that prior to the victim’s initial hospitalization, he, his cousin, and the victim were all ill, suffering from nausea and vomiting. He stated that the defendant, who was the only one not sick, called an ambulance for the victim.

The thirty-nine-year-old defendant claimed that she did not kill the victim, to whom she had been married for thirteen years. While acknowledging her affair with Randy Duck, she blamed her stepdaughters, mother-in-law, and brother-in-law, with whom she had “problems,” for the infidelity. The defendant testified that prior to the victim’s first hospitalization, she thought that the victim was having a heart attack when he appeared sweaty and dizzy and complained of a headache. After calling the doctor, she claimed that she tried to call an ambulance for the victim, but he refused to go for treatment. Later, when the victim became unresponsive, she called an ambulance and the victim was hospitalized overnight. The defendant contended that three days later, when the victim was again vomiting, she drove him to the emergency room where she received vials of injectable Phenergan for home use because the victim refused to use suppositories.

The defendant claimed that the victim again became ill a second occasion on the night of July 9 and that when she attempted to persuade him to go the hospital, he asked to take a shot of Phenergan instead. She insisted he “draw [the shot] up” and notify his family. The next morning, the victim had a seizure and she called an ambulance. According to the defendant, paramedics revived the victim and transported him to the hospital for the second of his four hospitalizations. The defendant recalled that they went to see Dr. Sacks, a specialist in Memphis, the next week. She admitted traveling to Tunica, Mississippi, with Randy Duck during that time, but denied that the trip was sexually motivated.

The defendant testified that on July 28, just prior to the victim’s third hospitalization, she told him that she was moving to Florida because she could no longer tolerate living near his family. She claimed that she offered the victim the opportunity to join her and contended that he responded that he could not go with her on the next day, when she planned to leave, because he had to give notice at work and take care of their house. According to the defendant, the victim became ill and vomited after their conversation. She contended that she administered a shot of Phener-gan and then left for work. Four hours later, after receiving no answer when she telephoned their residence, she called a neighbor, Billy Gross, and asked him to check on the victim. The victim was hospitalized for the third time but was released that evening. The defendant testified that the following morning, she found the victim lying in an unusual position on the bed. When unable to unclasp his hands so as to check his blood sugar, the victim called an ambulance.

The defendant denied going to a yard sale while the victim’s life support was being disconnected, explaining that her son had asked her to purchase D.A.R.E. “Just Say No” jackets from a neighbor’s yard sale. She insisted that her comment about placing the victim’s ashes on her nightstand was a joking response to a similar remark by the victim. The defendant acknowledged that she had engaged in sex with two or three different men during her marriage and had intentionally reported the affairs to the victim to hurt him. She confessed that in 1991 she had experienced a hypoglycemic episode which put her in a coma for four or five days. The defendant claimed that her health was the reason a court had granted the victim a temporary custody order for Rickey, Jr.

I

Initially, the defendant contends that the trial court erred by permitting Lisa McClure, whose identity had not been previously disclosed by the state, to testify at trial that the victim informed her of his desire to live. The defendant argues that the trial court should have either continued the trial or granted a mistrial so as to permit the defense an opportunity to properly investigate.

In support of his argument, the defendant cites Tennessee Code Annotated section 40-17-106, which requires the district attorney to include on the indictment the names of each of the witnesses to be called on behalf of the prosecution. The purpose of furnishing names on an indictment or presentment is to prevent surprise to the defense. State v. Melson, 638 S.W.2d 342, 364 (Tenn.1982). Evidence should not be excluded except when the defendant is actually prejudiced by the failure to comply with the rule and when the prejudice cannot otherwise be eradicated. State v. Baker, 751 S.W.2d 154, 164-65 (Tenn.Crim.App.1987); State v. Morris, 750 S.W.2d 746, 749 (Tenn.Crim.App.1987); State v. James, 688 S.W.2d 463, 466 (Tenn.Crim.App.1984). “In this context, it is not the prejudice which resulted from the witnesses testimony but the prejudice which resulted from the defendant’s lack of notice which is relevant.” State v. Jesse Eugene Harris, No. 88-188-III, slip op. at 8, 1989 WL 60393 (Tenn.CrimApp., at Nashville, June 7, 1989).

It is well settled that the grant or denial of a continuance rests within the sound discretion of the trial court. State v. Seals, 735 S.W.2d 849, 853 (Tenn.Crim.App.1987). Its determination will not be overturned unless there is “a clear showing of an abuse of discretion, to the prejudice of the defendant.” Woods v. State, 552 S.W.2d 782, 784 (Tenn.Crim.App.1977); Frazier v. State, 3 Tenn.Crim.App. 696, 466 S.W.2d 535, 537 (1970). Likewise, “[t]he entry of a mistrial is appropriate when the trial cannot continue for some reason, or if the trial does continue, a miscarriage of justice will occur.” State v. McPherson, 882 S.W.2d 365, 370 (Tenn.Crim.App.1994). The decision to grant a mistrial is within the sound discretion of the trial court, and this court will not disturb the trial court’s determination unless a clear abuse of discretion appears on the record. Id.

Although the defendant objected to the entirety of Ms. McClure’s testimony, the remedy he sought at trial is unclear. The transcript implies that the defendant asked for disqualification of the witness rather than a continuance or mistrial. The record demonstrates, and the defendant concedes, that the state did not withhold the witness’s name in bad faith. Rather, the assistant district attorney learned of Ms. McClure’s knowledge of relevant circumstances the evening before trial. In ruling favorably to the state, the trial judge observed that the proffered testimony was relevant to the defense claim of suicide. Defense counsel was given an opportunity to interview Ms. McClure. Additionally, the trial court limited her testimony to the victim’s statement that he was “not ready to die yet.”

In our view, Ms. McClure’s testimony was relevant, but cumulative. Other witnesses testified that the victim was not suicidal at the time of his death. Although the defense should have been notified earlier by the state, if with reasonable diligence it should have known about her knowledge of the statement, the substance of Ms. McClure’s testimony was not a surprise. The claim of a possible suicide and the state’s desire to rebut the claim were well known to the defense. Any error was harmless.

II

Next, the defendant asserts that the trial court erred by permitting testimony regarding the 1991 order awarding temporary custody of her son to the victim. She contends that the order had no probative value and that evidence thereof served only to inflame the jury.

Relevant evidence is that “having any 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 otherwise would be. Tenn. R. Evid. 401. Generally, all relevant evidence is admissible. Tenn. R. Evid. 402. At the discretion of the trial court, however, relevant evidence may be excluded if it presents a danger of unfair prejudice:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Tenn. R. Evid. 403. This court must not reverse the trial court absent an abuse of discretion. See State v. Stout, 46 S.W.3d 689, 700 (Tenn.2001).

In our view, the trial court did not abuse its discretion by admitting evidence of the 1991 protective order. In doing so, the trial court ruled that the evidence was relevant to the state’s argument that the victim’s desire to obtain custody of Rickey Wilson, Jr., provided a motive for the crime. The trial court farther ruled that the state could elicit only limited testimony to show the prior custody change. Although the custody order pre-dated the victim’s death by approximately five years, it was relevant to the issue of motive because other proof existed that the custody of the son was an ongoing issue between the defendant and the victim. For example, there was testimony that the defendant planned to move to Florida with another man and had expressed concern that she would not be able to move Rickey, Jr. There was considerable evidence, including testimony from non-family members, that custody of Rickey, Jr., was an issue during the weeks preceding the victim’s death. The state offered limited proof on the matter. The victim explained during her testimony that the order came about as a result of her being in a coma after a hypoglycemic episode. In light of all of the other evidence at trial, this evidence had little, if any effect on the verdict. This issue is, therefore, without merit.

Ill

The defendant next argues that the trial court erred by permitting testimony that the victim intended to be buried after death. He contends that the testimony should have been excluded as hearsay. The state asserts that the evidence was not hearsay and also argues that if it was, it was admissible pursuant to a recognized exception.

The Rules of Evidence provide that “[h]earsay is not admissible except as provided by these rules or otherwise by law.” Tenn. R. Evid. 802. Hearsay is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Tenn. R. Evid. 801(c). If an out-of-court statement is not offered to prove the truth of the matter asserted, such as a statement offered for impeachment purposes, it is not hearsay. See State v. Howell, 868 S.W.2d 238, 252 (Tenn.1993).

The victim’s mother, lone Wilson, was the first of several witnesses to testify that the victim had previously expressed his intent to be buried rather than cremated after death. Ms. Wilson also stated that she had purchased four cemetery lots for the victim prior to his death. One of the victim’s daughters, Tracy Taylor, testified that she heard the defendant say that she intended to cremate the victim and place his ashes on her bedside table so that she would be reminded never to marry again. Statements by the victim that he did not wish to be cremated were out-of-court statements offered for the truth of the matter asserted and, therefore, qualified as hearsay. See Tenn. R. Evid. 802. The testimony was admissible, however, under the “state of mind” hearsay exception contained in Tennessee Rule of Evidence 803(3), which provides that out-of-court statements concerning “the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health)” are not excluded by the hearsay rule. Tenn. R. Evid. 803(3). The victim’s declarations that he intended to be buried in a cemetery, rather than cremated, would have qualified as such statements. See State v. Morrois, 24 S.W.3d 788 app. at 809 (Tenn.2000) (testimony regarding the defendant’s out-of-court statements that he intended to go home to speak to his children before committing murder, robbing a bank, and leaving town were admissible under the “state of mind” hearsay exception); State v. Ronald Eugene Rickman and William Edward Groseclose, No. W1999-01744-CCA-R3-CD (Tenn.Crim.App., at Jackson, May 17, 2002) (holding that the defendant’s “statements concerning his desire to move with his family to Kingsport and find a job in that city were statements of his then existing state of mind within the meaning of Tenn. R. Evid. 803(3)”).

There was a second component to the testimony of both Ms. Wilson and Ms. Taylor. Ms. Wilson testified that the victim owned four burial plots that she had purchased for him. That testimony was not hearsay and was admissible. Ms. Taylor recalled the defendant’s remark that she intended to cremate the victim and place his ashes beside her bed as a reminder not to re-marry. The statement, which was relevant to establish her regret in the relationship with the victim, was admissible as a qualified admission by a party-opponent. See Tenn. R. Evid. 803(1.2) (“The following [is] not excluded by the hearsay rule: A statement offered against a party that is ... the party’s own statement ... made ... under circumstances qualifying the statement as one against the declarant’s interest....”). Because a jury might have reasonably inferred that the defendant may have intended cremation as a method to destroy evidence of her crime, testimony that the victim intended a traditional burial was properly admitted.

IV

Next, the defendant asserts that the trial court erred by prohibiting Tracy Mayfield from testifying that the defendant told her that “she didn’t do it.” She claims that the testimony was admissible under Tennessee Rule of Evidence 803(3). The state asserts that the defendant’s statement was inadmissible because it was “a self-serving declaration of innocence.”

Tennessee Rule of Evidence 803(3) provides that “a statement of the declarant’s then existing state of mind” is admissible, “but not ... a statement of memory or belief to prove the fact remembered or believed.” Tenn. R. Evid. 803(3). In addition, the advisory commission comment adds further guidance: “Normally [state of mind] declarations are inadmissible to prove past conduct.” Tenn. R. Evid 803(3), Advisory Comm’n Comments. Declarations admitted under the Rule 803(3) exception “should expressly assert the declarant’s mental state.” Neil P. Cohen et al., Tennessee Law of Evidence § 8.08[3][a] (4th ed.2000). Examples of such statements include statements of love, fear, and hate. Id. The statement, “ T remember that I killed [the victim] last year on this date,’ would not be admissible under the state of mind hearsay exception ... to prove that the declarant killed [the victim] on that date.” Id. at § 8.08[6][a],

In our view, the defendant’s statement to Ms. Mayfield would not have qualified for admission under Rule 803(3) because it is a statement regarding past conduct and not a statement of the defendant’s then existing mental or emotional state. Additionally, there is a general policy excluding such self-serving statements:

“A declaration made by a defendant in his own favor [with certain exceptions], is not admissible for the defense. A self-serving declaration is excluded because there is nothing to guarantee its testimonial trustworthiness. If such evidence were admissible, the door would be thrown open to obvious abuse: an accused could create evidence for himself by making statements in his favor for subsequent use at his trial to show his innocence.”

Hall v. State, 552 S.W.2d 417, 418 (Tenn.Crim.App.1977) (quoting Wharton, Criminal Evidence, § 303 (13th ed.)); see also State v. Wiseman, 643 S.W.2d 354, 366 (Tenn.Crim.App.1982). The trial court properly excluded the statement as self-serving.

The defendant also argues that the statement should have been admitted under Tennessee Rule of Evidence 106, which provides as follows:

When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.

Tenn. R. Evid. 106. By its own terms, however, this rule applies to written or recorded statements. The defendant’s statements to Ms. Mayfield were neither. Accordingly, this issue is without merit.

V

Finally, the defendant contends that the evidence was insufficient to support her conviction. On appeal, of course, the state is entitled to the strongest legitimate view of the evidence and all reasonable inferences which might be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.1978). The credibility of the witnesses, the weight to be given their testimony, and the reconciliation of conflicts in the proof are matters entrusted to the jury as the trier of fact. Byrge v. State, 575 S.W.2d 292, 295 (Tenn.Crim. App.1978). When the sufficiency of the evidence is challenged, the relevant question is whether, after reviewing the evidence in the light most favorable to the state, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Tenn. R.App. P. 13(e); State v. Williams, 657 S.W.2d 405, 410 (Tenn.1983). Questions concerning the credibility of the witnesses, the weight and value of the evidence, as well as all factual issues raised by the evidence are resolved by the trier of fact. Liakas v. State, 199 Tenn. 298, 286 S.W.2d 856, 859 (1956). Because a verdict of guilt against a defendant removes the presumption of innocence and raises a presumption of guilt, the convicted criminal defendant bears the burden of showing that the evidence was legally insufficient to sustain a guilty verdict. State v. Evans, 838 S.W.2d 185, 191 (Tenn.1992).

A criminal offense may be established exclusively by circumstantial evidence. Duchac v. State, 505 S.W.2d 237, 241 (Tenn.1973); Marable v. State, 203 Tenn. 440, 313 S.W.2d 451, 456-58 (1958); State v. Hailey, 658 S.W.2d 547, 552 (Tenn.Crim.App.1983). The facts and circumstances must “be so strong and cogent as to exclude every other reasonable hypothesis save the guilt of the defendant.” State v. Crawford, 225 Tenn. 478, 470 S.W.2d 610, 612 (1971). The weight of the circumstantial evidence is for the jury to determine. Williams v. State, 520 S.W.2d 371, 374 (Tenn.Crim.App.1974) (citing Patterson v. State, 4 Tenn.Crim.App. 657, 475 S.W.2d 201 (1971)). The same standard of review for sufficiency claims is applicable to guilt based upon direct as well as circumstantial evidence. State v. Brown, 551 S.W.2d 329, 331 (Tenn.1977); Farmer v. State, 208 Tenn. 75, 343 S.W.2d 895, 897 (1971). The court may not substitute its inferences for those drawn by the trier of fact in circumstantial evidence cases. Lia-kas, 286 S.W.2d at 859; Farmer v. State, 574 S.W.2d 49, 51 (Tenn.Crim.App.1978).

First degree murder includes, among other things, the premeditated and intentional killing of another. Tenn.Code Ann. § 39-13-202(a)(l). Premeditation is defined as follows:

[A]n act done after the exercise of reflection and judgment. “Premeditation” means that the intent to kill must have been formed prior to the act itself.... The mental state of the accused at the time the accused allegedly decided to kill must be carefully considered in order to determine whether the accused was sufficiently free from excitement and passion as to be capable of premeditation.

TenmCode Ann. § 39-13-202(d).

Although circumstantial, the evidence in this case wove a “web of guilt” around the defendant. See Crawford, 470 S.W.2d at 613. The testimony at trial demonstrated that during the summer of 1996, the defendant had decided to move to Florida with her lover, Randy Duck. She had repeatedly expressed concern that she would be unable to take her son Rickey, Jr., with her because of the victim’s objections. The proof showed that the victim died from brain swelling brought about by a profound hypoglycemic episode, one of several such episodes he had had that summer. The blood work on the victim, who was not diabetic, showed that his hypoglycemia was caused by injected synthetic insulin. The defendant was both a nurse and a diabetic with her own supply of insulin. Although she contended that the shots were of Toradol and Phenergan, the defendant admitted to hospital staff that she had given the victim injections prior to his emergency room visits. At one point, the defendant stated to Charlotte Hunt that she had given the victim an insulin injection. The victim’s death coincided with the employment availability date that the defendant had given Michael Barbour. The defendant expressed a desire to cremate the victim although he had a burial plot. There was proof that she opposed an autopsy on the body. In our view, a rational jury could have found beyond a reasonable doubt that the defendant intentionally killed the victim after the exercise of reflection and judgment. The evidence was sufficient.

Accordingly, the judgment of the trial court is affirmed.


author: Justice O’NEILL

text:
    TEXAS NATURAL RESOURCE CONSERVATION COMMISSION, Petitioner, v. LAKESHORE UTILITY COMPANY, INC., Sentry Title Company, Inc., Alan D. Whatley, and Thelma J. Whatley, Respondents.
    No. 02-0988.
    Supreme Court of Texas.
    Argued Nov. 19, 2003.
    Decided April 8, 2005.
    Rehearing Denied June 24, 2005.

      Philip Dale Mockford, Leonard H. Dou-gal, George Breck Harrison, Jackson & Walker, L.L.P., J. Stephen Dillawn, Atwood & Associates, Austin, J. Albert Kroemer, Prager Metzger & Kroemer, Dallas, for Petitioner.
    Greg Abbott, Jane Elizabeth Atwood, Office of Atty. Gen., Howard G. Baldwin, First Asst. Atty. Gen., Jeffrey S. Boyd, Thompson & Knight, Karen Watson Kor-nell, Office of Atty. Gen., Barry Ross McBee, Office of Atty. Gen., and Linda B. Secord, Office of Atty. Gen., Natural Resource Div., Austin, for Respondent.
   Justice O’NEILL

delivered the opinion of the Court.

In this case arising from a Texas Natural Resource Conservation Commission enforcement action, we must decide whether the evidence is legally sufficient to support the trial court’s determination that a utility company knowingly violated the Water Code by charging its customers unauthorized fees, and whether the Water Code authorizes the Attorney General, at the Commission’s request, to seek customer refunds in district court to compel compliance with the Water Code’s statutory provisions. Answering both questions in the affirmative, we affirm in part and reverse in part the court of appeals’ judgment.

I. Facts

Lakeshore Utility Company, Inc., is a water and sewer public utility providing service to customers in two residential subdivisions, Point La Vista and Esquire Estates II, adjacent to Cedar Creek Lake in Henderson County, Texas. Because Lakeshore’s customers reside on property just above the lake, a typical gravity- or gradient-flow sewer system cannot be used in the subdivisions. Instead, a more complex and expensive “pressure-effluent system” is used.

As a public utility, Lakeshore is subject to the jurisdiction of the Commission, which is charged with exercising regulatory authority over public utilities and fixing and regulating utility rates. See Tex. Water Code §§ 13.041(a) (providing that the Commission “may regulate and supervise the business of every water and sewer utility”), 13.181(b) (authorizing the Commission to fix and regulate utility rates), 13.190(a) (mandating that utilities cannot “charge, demand, collect, or receive” a rate for service that is not authorized). Lake-shore’s monthly utility rates and tap fees — the fees charged to install water and sewer utility services — must be listed on its approved tariff schedule, or schedule of rates, that is filed with the Commission. Id § 13.136.

In 1977, the Commission accepted a tariff application from Lakeshore and approved monthly rates for both subdivisions as well as tap fees at a flat rate of $200 for water “Tap and Meter Installation” and $600 for sewer “Tap & Installation” at locations requiring “heavy-duty pump[ing] or excessive lift[ing].”

Between 1981 and 1989, Lakeshore submitted numerous tariff applications to the Commission requesting various changes to the Commission’s 1977 approved rates and tap fees. Relevant to this case are the tariff applications Lakeshore made in 1981 and 1989 to increase the amounts approved by the Commission in its original 1977 tariff. These applications requested that the Commission approve monthly rate and tap-fee increases at each subdivision. In each instance, while awaiting the Commission’s decision, Lakeshore charged its customers the increased amounts that it was requesting the Commission approve. In response to each application, the Commission signed an order dismissing Lake-shore’s request and directing Lakeshore to refund the increased fees collected from its customers while the application was pending. Because of the importance of the 1981 and 1989 tariff applications — particularly the resulting Commission orders that required Lakeshore to refund its customers' — we detail the events surrounding each application below.

A. The 1981 Tariff Application and Resulting 1983 Orders

In 1981, Lakeshore sought the Commission’s authorization to increase its monthly utility rates and to increase its tap fees to $375 for water and $1,150 for sewer services. Lakeshore’s request noted parenthetically that the new sewer rate would include “pump[sj, tanks, valves, fittings, & controls.” Lakeshore charged its customers the increased amounts pending the Commission’s decision. In January 1983, the Commission issued an order denying the requested rate and fee increase and directing Lakeshore to charge tap fees no higher than “actual cost, not to exceed $200.00” for water and “actual cost, not to exceed $600.00” for sewer installation services. Accordingly, Lakeshore was not to charge amounts exceeding those formerly approved on its 1977 tariff. The Commission also ordered Lakeshore “to refund to its customers all monies collected in excess of the rates set forth [in its 1977 tariff],” and to provide the Commission with the name of each customer refunded and the amount within the next two months. Lakeshore was told its failure to comply would result in referral to the Attorney General’s office for prosecution. As will be seen, however, Lakeshore continued to charge customers the disapproved amounts.

Just two months after the Commission’s January 1983 Order denying Lakeshore’s requested increase, Lakeshore was involved in a dispute concerning the Commission’s certification of another public utility called the St. Paul Industrial Training School. As part of the certification process, the Commission undertook an examination and inquiry into Lakeshore’s tap fee charges and issued an order in March 1983 called the St. Paul Order. In the St. Paul examiner’s report, which was adopted by the Commission in its order, the examiner found that Lakeshore had been charging its customers sewer tap fees of $1,150 when the Commission had refused to approve this amount. The examiner noted that Lakeshore’s overcharges constituted a violation of the statutory provision providing that “[n]o public utility may, directly or indirectly by any device whatsoever or in any manner; [sic] charge, demand, collect, or receive from any person” any amount other “than that prescribed in the schedule of rates of the public utility.” See Tex. Water Code § 13.190(a). The examiner concluded that the Commission should monitor Lakeshore’s tap fee charges and “request the Attorney General to bring an action in District Court, in the Commission’s behalf’ to require Lakeshore’s compliance with the provision if the Commission’s monitoring revealed that rates other than tariffed rates were charged. It is unclear, though, whether the Commission took any further action to ensure Lake-shore’s compliance with either the Commission’s January 1983 Order or the St. Paul Order.

B. The 1989 Rate Application and Resulting Order

In January 1989, Lakeshore filed another request for authorization from the Commission to increase its monthly rates and to increase tap fees for both residential subdivisions to $375 for water and $1,350 for sewer services. While the request was pending, Lakeshore again charged its customers the proposed fees. On December 21, 1989, the Commission denied Lake-shore’s application and ordered Lakeshore to refund approximately $29,000 in overcharges collected during the pendency of Lakeshore’s request by crediting customers’ future bills. The refund was ordered pursuant to Texas Water Code section 13.187, which provides: “[A] utility shall refund or credit against future bills all sums collected during the pendency of [a] rate proceeding in excess of the rate finally ordered plus interest as determined by the regulatory authority.” Id. § 13.187(c). The Commission additionally ordered Lakeshore to provide an accounting to the Commission of all tap fees that Lakeshore customers paid from December 8, 1981, through December 14, 1989. Because the Commission denied Lakeshore’s requested increase, Lakeshore’s approved tap fee amounts remained the same as those approved in 1977.

C. The Lawsuit

Both Lakeshore and the Commission brought suit in district court concerning the 1989 Order. Believing the Commission’s continued refusal to increase rates and tap fee amounts was unfair, Lakeshore sought judicial review of the Commission’s decision denying its 1989 application. The Commission, concerned that Lakeshore was refusing to comply with the 1989 Order, sought to enforce the order under sections 13.411 and 13.414 of the Water Code. The Commission specifically alleged that Lakeshore was actively violating the 1989 Order by failing to refund customers for overcharges and by continuing to charge fees in excess of those approved by the Commission. The Commission sought civil penalties “for each day Lakeshore ... has been in violation of the Water Code and the Commission’s order since December 21, 1989,” and to enjoin Lakeshore from future violations. The court consolidated the cases and, in a single judgment, found in favor of Lakeshore, reversed the Commission’s 1989 Order, and dismissed the Commission’s enforcement action.

D. First Appeal and Remand

The court of appeals reversed the district court’s judgment and reinstated the Commission’s 1989 order, which required Lakeshore to charge no more then $600 for sewer and $200 for water installation services, and to refund its customers approximately $29,000 in overcharges made during the pendency of Lakeshore’s 1989 tariff application. The Commission’s reinstated enforcement action was remanded to the district court for further proceedings. Tex. Water Comm’n v. Lakeshore Util. Co., 877 S.W.2d 814 (Tex.App.-Austin 1994, writ denied).

On remand, the Commission amended its original pleadings in the district court to seek customer refunds for overcharges dating back to 1981, when Lakeshore began to charge its customers amounts the Commission had not approved. The Commission claims it amended the original pleadings because it had learned through discovery that Lakeshore had been overcharging its customers for water and sewer services for that period of time.

After a bench trial, the district court found that between 1981 and 2001 Lake-shore had knowingly violated the Texas Water Code by overcharging its customers and assessed civil penalties in the amount of $126,400, which related to tap fee overcharges that occurred both before and after the 1989 Commission proceedings. The court also ordered Lakeshore to refund $106,417.66 to its customers for equipment, tap fee, and monthly rate overcharges between 1981 and 2001, and to pay its customers $68,851.43 in interest on overcharged amounts, plus attorneys’ fees and court costs.

E. The Second Appeal

Lakeshore appealed only the parts of the trial court’s judgment that ordered it to (1) pay civil penalties for “knowing” Water Code violations that occurred prior to the 1989 Order, and (2) refund unauthorized charges to customers beyond those Lakeshore was obligated to refund by the 1989 Order. The court of appeals affirmed the civil-penalties portion of the judgment, concluding there was legally sufficient evidence in the record to support the trial court’s finding that Lakeshore knowingly violated the Water Code before the 1989 proceedings. 92 S.W.3d 556, 563. But the court of appeals reversed that part of the judgment requiring Lakeshore to refund customer overcharges that occurred before the 1989 proceedings, holding that, absent a Commission order directing a utility to refund or credit unauthorized charges, the Water Code does not authorize a district court action to recover those charges. Id. at 563-65.

Both the Commission and Lakeshore petitioned this Court to reverse portions of the court of appeals’ judgment. Lake-shore contends the court of appeals erred in holding there was legally sufficient evidence that Lakeshore knowingly violated the Water Code before 1989. The Commission argues the court of appeals erred in reversing the trial court’s refund order. We granted both petitions for review to consider the issues presented.

II. Water Code Violations

We first consider whether there is legally sufficient evidence to support the trial court’s finding that Lakeshore knowingly violated sections 13.135 and 13.190 of the Texas Water Code before 1989 by charging customers fees higher than those the Commission approved. Section 13.135 provides that “[a] utility may not charge, collect, or receive any rate for utility service ... other than as provided in this chapter.” Tex. Water Code § 13.135. Section 13.190 provides that “[a] water and sewer utility may not directly or indirectly ... charge, demand, collect, or receive from any person a greater or lesser compensation for any service rendered or to be rendered by the utility than that prescribed in the schedule of rates of the utility applicable to that service when filed in the manner provided in this chapter.” Id. § 13.190. At the relevant time, section 13.414(a) of the Water Code provided that “any utility or affiliated interest that knowingly violates [chapter 13 of the Water Code] ... is subject to a civil penalty” of up to $5,000 a day. Act of May 26, 1985, 69th Leg., R.S., ch. 795, § 3.005, 1985 Tex. Gen. Laws 2789, 2802 (emphasis added).

The Water Code does not define “knowingly,” and we have never interpreted the term as it is used in section 13.414(a); however, “ ‘unless the text of a statute dictates a different result, the term “knowingly” merely requires proof of knowledge of the facts,’” and not knowledge of the law. United States v. Ho, 311 F.3d 589, 605 (5th Cir.2002) (quoting Bryan v. United States, 524 U.S. 184, 193, 118 S.Ct. 1939, 141 L.Ed.2d 197 (1998)); see also Osterberg v. Peca, 12 S.W.3d 31, 38 (Tex.2000) (holding as a general proposition that ignorance of the law is not a defense to a statute’s violation; the term “knowingly” in the Election Code refers only to a person’s knowledge of the act of making or accepting a contribution, and not to whether the contribution violated the Election Code). Our Penal Code recognizes this principle in providing that “[a] person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist.” Tex. Pen.Code § 6.03(b). Federal courts construing knowledge requirements in environmental regulatory statutes — which provide for criminal sanctions very similar to the Water Code’s civil penalty provision — have concluded that the proof necessary to establish a “knowing violation” of a regulation is merely proof that the violator had knowledge of the facts comprising the violation. E.g., Ho, 311 F.3d at 606 (citations omitted). We see no reason to depart from this principle when interpreting the proof required to show a knowing violation under section 13.414(a) of the Water Code. If we held otherwise, enforcement of the Water Code would be problematic because the focus would be on whether the person violating the code knew about the specific code provisions and was operating under a correct legal interpretation. See Osterberg, 12 S.W.3d 31 at 38. Thus, to prove a “knowing” Water Code violation, the Commission needed to establish only that Lakeshore knew the facts that comprised a violation of the Water Code’s provisions — namely, that Lakeshore knew it was charging fees that were not approved on Lakeshore’s tariff schedule by the Commission.

Lakeshore admits it routinely charged customers amounts that exceeded the tap fees filed with and approved by the Commission. But relying on General Electric Co. v. United States Environmental Protection Agency, 53 F.3d 1324, 1329 (D.C.Cir.1995), Lakeshore contends it did not knowingly violate the Water Code in charging these amounts because it was not given “fair notice” that the tanks, pumps, and equipment necessary to effectively transfer wastewater from each home within its pressure-effluent system were included within its designated “tap fee,” nor did it know that the Water Code prohibited charging separately for these items. Specifically, Lakeshore claims it lacked “fair notice” because prior to 1987, the Commission’s rules failed to define the term “tap fee” and Lakeshore could not “knowingly” violate Commission rules that did not exist during the relevant time period. Lakeshore further argues that the definition of “tap fee,” once adopted, was unclear because it provided that a utility company could charge customers for “extraordinary expenses” in addition to their approved tap fee amounts, but the definition failed to explicitly define what “expenses” qualified as “extraordinary.” As a result, Lakeshore argues it mistakenly believed that the pumps and equipment necessary to operate its pressure-effluent system qualified as “extraordinary expenses”; therefore, Lakeshore did not “knowingly” violate the Water Code in charging for these items in addition to its approved tap fee.

Lakeshore makes a similar argument about an emergency regulation the Commission adopted in 1986 that allowed utility companies to charge residential customers for “unique” and “non-standard” costs in addition to their approved tap fees under certain exceptional circumstances. 11 Tex. Reg. 1266 (1986) (emerg. rule 31 Tex. Admin. Code § 291.84 (adopted March 5, 1986, expired July 3, 1986)). Lakeshore claims that, because the regulation did not define the terms “unique” and “non-standard,” Lakeshore “reasonably believed” that the costs associated with its pressure-effluent system qualified as “unique” and “non-standard” and could therefore be charged to customers in addition to its approved tap fees.

We find Lakeshore’s argument unpersuasive. Lakeshore admits knowing that it was charging rates and fees that the Commission had not approved, and as we have stated, its subjective interpretation of the Water Code’s provisions is immaterial. See Ho, 311 F.3d at 606. To prove a knowing violation of the Water Code, the Commission needed to prove only that Lakeshore knew that it was charging more than its approved tariff. We hold that the evidence is legally sufficient to support the trial court’s finding that Lakeshore knew it was charging unapproved amounts. To begin, since the inception of Lakeshore’s pressure-effluent system in 1977, every Lakeshore customer within the system has been required to install the same or similar pumps and equipment. Lakeshore’s approved 1977 tariff listed its “Tap and Meter Installation” fee at $200 for water and “Tap & Installation” fee at a “maximum” of $600 for sewer locations “requiring heavy-duty pump or excessive lift.” Because Lake-shore’s approved amounts were for “Tap & Installation” and “Tap and Meter Installation” and specifically included a maximum amount to be charged in areas requiring “heavy-duty pumpfing] or excessive lifting],” Lakeshore must have understood that the $200 and $600 amounts were meant to include all installation costs— including those for the specialized pumps and equipment necessary to operate its pressure-effluent system — within a single installation fee.

In 1981, Lakeshore sought to increase its water and sewer tap installation fees to $375 and $1,150, respectively. Lake-shore’s rate application specifically stated that the $1,150 sewer installation amount was for “pump[s], tanks, valves, fittings, & controls.” Lakeshore, therefore, .must have understood its tap fee was meant to include each of these costs. In 1983, the Commission rejected Lakeshore’s proposed increases, ordered Lakeshore to charge a maximum of $200 for water and $600 for sewer installation services, and ordered Lakeshore to refund customers any charges it had received for unapproved amounts. Because the Commission specifically ordered Lakeshore to refund any unauthorized charges above approved amounts, specified the maximum amounts that could be charged, and rejected any additional charges for “pump[s], tanks, valves, fittings, & controls,” Lakeshore must have known the Commission disapproved of any charges above those explicitly stated and was prohibited from charging separately for the “pump[s], tanks, valves, fittings, & controls” necessary to operate its pressure-effluent system. Nevertheless, the record reflects that Lakeshore continued to overcharge customers exactly the prohibited amounts at least through 1989, despite a specific warning from the examiner in the St. Paul Order that “charging a tap fee of $1,150, despite the fact that a fee of that magnitude ha[d] not been approved by the Commission!,] ... constitutes a violation of [the Water Code’s provisions].”

We agree with the court of appeals that there is legally sufficient evidence in the record to support the trial court’s finding that Lakeshore knew it was charging fees that were not approved on Lakeshore’s tariff schedule by the Commission. 92 S.W.3d at 563. Accordingly, legally sufficient evidence supports the trial court’s conclusion that Lakeshore knowingly violated the Water Code.

III. Customer Refunds

We next consider the scope of relief the Attorney General may seek in an enforcement action brought at the Commission’s request under section 13.411(a) of the Water Code. Section 13.411(a) defines the nature of that relief as follows:

If the commission has reason to believe that any retail public utility or any other person or corporation is engaged in or is about to engage in any act in violation of this chapter or of any order or rule of the commission entered or adopted under this chapter or that any retail public utility or any other person or corporation is failing to comply with this chapter or with any rule or order, the attorney general on request of the commission, in addition to any other remedies provided in this chapter, shall bring an action in a court of competent jurisdiction in the name of and on behalf of the commission against the retail public utility or other person or corporation to enjoin the commencement or continuation of any act or to require compliance with this chapter or the rule or order.

Tex. Water Code § 13.411(a) (emphasis added). The parties agree, and the court of appeals recognized, that the plain statutory language authorizes both (1) requests to enjoin present or future violations, and (2) requests to compel compliance with the Water Code, an agency rule, or an order. It is the scope of the latter power — to compel compliance with the Water Code— that lies at the heart of the parties’ dispute.

The court of appeals held that, although refunds were recoverable under section 13.411(a), before requesting refunds in district court -the Commission had to first issue its own administrative order compelling refunds. Specifically, the court of appeals held that “[a]t most the code gives the Commission, through the attorney general, the authority to seek a district court judgment enforcing a Commission order commanding refunds.” 92 S.W.3d at 565.

The Commission contends the court of appeals’ holding was erroneous. First, the Commission argues that it did issue its own administrative order compelling refunds in 1983 and 1989, and that the district court could, and did, enforce these orders by its judgment. Those orders required Lakeshore to refund customer overcharges made during the pendency of Lakeshore’s rate applications and either explicitly or implicitly forbade Lakeshore from charging amounts exceeding those that the Commission had approved. Accordingly, the Commission claims, the 1983 and 1989 Orders are sufficiently broad to support the district court’s judgment ordering refunds from 1981 to 2001. Lake-shore, on the other hand, argues that the 1983 and 1989 Orders were not broad enough to encompass overcharges from 1981 to 2001 because the orders only required Lakeshore to refund the unapproved amounts Lakeshore had charged during the pendency of its rate applications.

The Commission next contends that, even if the 1983 and 1989 Orders were not sufficiently broad to cover customer refunds for the twenty-year time period in issue, the court of appeals was wrong in making the district court’s power to “require compliance with [the Water Code]” entirely dependent on a prior agency refund order. See Tex. Water Code § 13.411(a). The Commission acknowledges that an agency order may be a necessary prerequisite to establishing subject-matter jurisdiction in the district court when a case is filed by a utility challenging an agency action. The Commission contends, however, that a prior agency order is not necessary for the Commission to bring an original enforcement proceeding in district court to “require compliance” with the Water Code under section 13.411(a). Id. According to the Commission, “this is the first time that a district court’s original jurisdiction in an enforcement case has been made dependent on an agency order.” Lakeshore responds that the Commission lacks statutory authority under section 13.411(a) to pursue a refund action in district court absent a prior Commission order specifically directing such refunds, in essence arguing that the district court’s enforcement power is derivative of the Commission’s.

We conclude that, whether or not the 1983 or 1989 Orders were sufficiently broad to cover refunds for the entire twenty-year time period in dispute, the Commission has statutory authority to pursue an enforcement action in district court to “require [a utility’s] compliance with [the Water Code],” and that authority includes the ability to seek refunds when a utility charges fees that the Water Code prohibits. See id.

We begin with the well-established principle that, as an administrative agency, the Commission may exercise only those powers that the Legislature confers upon it in clear and express language, and cannot erect and exercise what really amounts to a new or additional power for the purpose of administrative expediency. Pub. Util. Comm’n v. City Pub. Serv. Bd. of San Antonio, 53 S.W.3d 310, 316 (Tex. 2001); see Pub. Util. Comm’n v. GTE-Southwest, Inc., 901 S.W.2d 401, 407 (Tex.1995). This is because, as an administrative agency, the Commission is a creature of the Legislature with no inherent authority of its own. See City Pub. Serv. Bd. of San Antonio, 53 S.W.3d at 316; GTE-Southwest, 901 S.W.2d at 406; see also State v. Pub. Util. Comm’n, 883 S.W.2d 190, 194 (Tex.1994). In deciding whether an agency has acted within its powers, a court should also determine whether an agency’s power is implied in the statute. When the Legislature expressly confers a power on an agency, it also impliedly intends that the agency have whatever powers are reasonably necessary to fulfill its express functions or duties. City Pub. Serv. Bd. of San Antonio, 53 S.W.3d at 316; GTE-Southwest, 901 S.W.2d at 407; Tex. Workers’ Comp. Comm’n v. Patient Advocates, 136 S.W.3d 643, 652 (Tex.2004).

One of the Legislature’s express purposes in enacting the Water Code was to ensure rates, operations, and services that are just and reasonable to consumers:

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

Tex. Water Code § 13.001(c). To this end, the Legislature vested the Commission with the power and authority to “regulate and supervise the business of every water and sewer utility,” and to “fix and regulate rates of utilities.” Id. §§ 13.041(a), 13.181(b). Utilities under the Code cannot charge, collect, or receive a rate for services not authorized by the Commission. Id. §§ 13.135, 13.190. If a utility charges more than its authorized rates, the Legislature has provided the Commission with a mechanism for enforcement; by its clear and express language, section 13.411(a) authorizes the Commission to request that the Attorney General bring an action in court “to require compliance with [the Water Code].” Id. § 13.411(a) (emphasis added). The Legislature neither specified nor limited the types of relief the Attorney General might seek in district court to effect a utility’s compliance with the Water Code. For instance, the Legislature did not say that any such relief must be prospective only or that it must be confined to the imposition of civil penalties. Nor did the Legislature say that the Commission had to first issue its own order before it could seek to compel compliance through the district court. The Legislature simply stated that the Attorney General, at the Commission’s request, may bring suit “to require compliance” with the Water Code. See id. We must therefore determine whether the relief that the Commission sought here — a refund of customer overcharges — is a remedy consistent with its power to compel Lakeshore’s compliance with the Water Code through the district court. We hold that it is.

Our primary objective in construing the proper scope of an enforcement action under section 13.411(a) is to ascertain and give effect to the Legislature’s intent by first looking at the statute’s plain and common meaning. Tex. Workers’ Comp. Comm’n, 136 S.W.3d at 652; see also Tex. Gov’t Code § 312.005. We determine legislative intent by reading the statute as a whole and interpreting the legislation to give effect to the entire act and not just its isolated portions. City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex.2003).

As we have said, the Legislature’s intent in conferring enforcement power through the district court was, at least in part, to ensure that consumers would not be charged unapproved rates. See Tex. Water Code § 13.001(a). When a utility has violated the Water Code by overcharging its customers, refunds may be necessary to effect compliance with Water Code provisions mandating that customers be charged only approved amounts. See id. §§ 13.135, 13.190. In this case, for instance, the total amount Lakeshore collected from its customers far exceeded the amount Lakeshore was authorized to collect under the Code’s provisions; thus, refunds were necessary to bring Lake-shore into statutory compliance and ensure that it did not retain the benefit of unlawful overcharges. In seeking refunds, then, the Commission is not crafting a new or additional power; on the contrary, it is exercising its explicit power to require a utility’s compliance with Water Code provisions and thereby vindicate the regulatory process. In seeking the refund, the Commission might have chosen to pursue an agency-level enforcement proceeding before requesting the Attorney General to bring a judicial action, but nothing in section 13.411(a) says that an administrative order is a prerequisite to a judicial one in an action brought to “require [a utility’s] compliance with [the Water Code].” Id. § 13.411(a).

In sum, we agree with the Commission that the customer refunds it sought were within its express statutory enforcement powers. Accordingly, we reverse that portion of the court of appeals’ judgment restricting refunds to only those amounts specifically provided for in the Commission’s January 21, 1983 and December 21, 1989 orders.

IV. Conclusion

We affirm that portion of the court of appeals’ judgment that imposes civil penalties based on Lakeshore’s knowing violations of the Water Code. We reverse that portion of the court of appeals’ judgment disallowing customer refunds and otherwise affirm the court of appeals’ judgment.

      . We refer to the Public Utility Commission and the Texas Water Commission, both predecessors to the Texas Natural Resource Conservation Commission in the regulation of wastewater services, as "the Commission.” Effective September 1, 2002, the Texas Natural Resource Conservation Commission changed its name to the Texas Commission on Environmental Quality. 27 Tex. Reg. 8340 (2002); see Act of May 28, 2001, 77th Leg., R.S., ch. 965, § 18.01, 2001 Tex. Gen. Laws 1933, 1985.

      . The Commission’s amended enforcement action also named as defendants Sentry Title Company, Inc., Lakeshore’s parent company, which owns the physical plant and facilities Lakeshore uses, Alan Whatley, the president and a director of both Sentry and Lakeshore, and Thelma Whatley, who at relevant times was vice-president of both entities. For convenience, we refer to these parties collectively as "Lakeshore.”

      . The pressure-effluent system requires that a holding tank, similar to a septic tank, be installed at each home together with one or two specialized cycling pumps to pump a home's wastewater from its holding tank into a utility’s sewer mains for transport to a treatment plant. In this case, Lakeshore’s pressure-effluent system pumps sewage uphill to Lakeshore’s sewer mains at the roadway level.

      . The relevant provisions were codified in 1985. See Act of May 26, 1985, 69th Leg., R.S., ch. 795, § 3.005, 1985 TEX. GEN. LAWS 2789, 2789-804. The statutory predecessors to these provisions were in effect when Lakeshore began overcharging its customers. Act of May 29, 1975, 64th Leg., R.S., ch. 721, §§ 31, 46, 1975 Tex. Gen. Laws 2327, 2339, 2344. However, the predecessor statutes do not materially differ, and we cite the current provisions throughout this opinion for convenience.

      . The act was amended in 1991 to remove "knowingly” from the provision and to reduce the amount of the penalty per violation. Act of May 27, 1991, 72d Leg., R.S., ch. 678, § 14, 1991 Tex. Gen. Laws 2463. Lakeshore only contests the civil penalty it was ordered to pay for customer overcharges that the trial court determined it made "knowingly” prior to the Commission’s 1989 Order.

      . In 1987, the Commission, for the first time, defined "tap fee”:
      Tap fee — A tap fee is the charge to new customers for initiation of service where no service previously existed. A tap fee may include the cost of physically tapping the main and installing meters, meter boxes, fittings and other materials, labor, setting up the new customer’s account, and allowances for equipment and tools used. Extraordinary expenses such as road bores and street crossing may be added. Other charges, such as extension fees or contributions in aid of construction (CIAC) are not to be added in a tap fee.
      12 Tex. Reg. 3121 (1987) (emerg. rule 31 TEX. ADMIN. CODE § 291.3) (adopted Sept. 2, 1987, expired Dec. 31, 1987). The definition of tap fee has been modified since its 1987 adoption, but these modifications are not relevant to our analysis. See 30 TEX. ADMIN. CODE § 291.3(45).

      . The regulation that Lakeshore refers to has been modified from its original version enacted in 1986. The current regulation provides that:
      [cjontributions in aid of construction shall not be required of individual residential service applicants for production, storage, treatment, or transmission facilities unless that residential customer places unique, non-standard service demands upon the system, in which case, the customer may be charged the additional cost of extending service to and throughout his property ....
      30 TEX. ADMIN. CODE § 291.86(c)(1). Because the current provision does not differ substantially from the 1986 version that Lake-shore relies upon, we cite the current provision for convenience.


author: PER CURIAM.

text:
    In re CERBERUS CAPITAL MANAGEMENT, L.P., Cerberus Partners, L.P., Cerberus Associates LLC, Craig Court, Inc., CRT Satellite Investors LLC, and Stephen A. Feinberg, Relators.
    No. 04-0732.
    Supreme Court of Texas.
    May 13, 2005.

      Harry M. Reasoner, Marie R. Yeates, Kenneth Prager Held, Sarah Beth Landau, Gwen J. Samora, Vinson & Elkins L.L.P., Charles W. Schwartz, Skadden Arps Slate Meagher & Flom LLP, Houston, for Rela-tors.
    R. James George Jr., Gary L. Lewis, George & Brothers, L.L.P., David E. Dun-ham, Donald R. Taylor, Taylor & Dunham, L.L.P., Austin, D. Douglas Brothers, Brothers & Thomas, L.L.P., Broadus A. Spivey, Spivey & Ainsworth, P.C., and Miguel Sergio Rodriguez, Austin, for Real Party In Interest.
    W. Wade Porter, Allensworth & Porter, LLP, John J. McKetta III, Richard Douglas Yeomans, Graves Dougherty, Hearon & Moody, P.C., Roy Q. Minton, Minton Burton Foster & Collins, P.C., Austin, Wayne Barr, TechOne Capital Group, L.L.C., Albany, N.Y., Patton G. Lochridge, Scott Patrick Baker, McGinnis Lochridge & Kilgore, L.L.P., Austin, for Others.
   PER CURIAM.

The issue in this original proceeding is whether the trial court abused its discretion in disqualifying the relators’ counsel based on a conflict of interest. Because the real party in interest executed a written waiver of any potential conflict of interest, we hold that the trial court abused its discretion and we therefore conditionally grant mandamus relief.

On January 26, 2001, WSNet Holdings, Inc., hired Vinson & Elkins (“V & E”) attorney Patrick Breeland to draft an asset purchase agreement for certain assets of Classic Communications, Inc. Breeland prepared an asset purchase agreement and, on January 28, 2001, forwarded it to WSNet. The next day, WSNet instructed V & E that all work on the purchase agreement should cease.

In February 2002, a WSNet shareholder instituted a shareholder derivative suit against the relators and others, alleging that the relators had usurped WSNet’s corporate opportunity to purchase assets of Classic Communications and another company, Galaxy Telecom Inc. At the inception of the derivative action, the rela-tors contacted V & E regarding representation. Before appearing in the case, Charles Schwartz, then a partner at Y & E and now a partner at Skadden, Arps, Slate, Meagher & Flom LLP, contacted WSNet’s general counsel to inquire whether WSNet would waive any potential conflict arising from V & E’s prior work for WSNet. At the time of the request, Schwartz disclosed to WSNet’s general counsel the factual basis of the potential conflict. WSNet’s general counsel verbally agreed to waive any potential conflict of interest.

Schwartz subsequently sent a letter to WSNet’s general counsel summarizing their discussion and commemorating that WSNet had “agreed ... to waive any conflict of interest arising from” the representation of the relators in this action. The letter stated in part:

I write to confirm that, as you stated during our conversation last week, you have agreed, on behalf of WSNet Holdings, Inc. (‘WSNet”), to waive any conflict of interest arising from representation of [the defendants] in the above-titled matter based on the fact that Vinson & Elkins LLP (“V & E”) previously represented WSNet, Inc. in the matter described below. After full disclosure of relevant facts, you have consented to V & E representing the Defendants in the above-titled action.
WSNet engaged V & E in a limited capacity in connection with WSNet’s proposed (but not consummated) acquisition of certain cable TV systems of Classic Communications, Inc. WSNet’s proposed acquisition of these systems is described on pages 11 and 12 of the Petition in this matter. Cary Ferchill, then CEO of WSNet, contacted V & E attorney Patrick Breeland on a Friday in late January 2001 and requested that Mr. Breeland prepare a generic asset purchase and sale agreement in connection with WSNet’s proposed acquisition of these systems. Mr. Ferchill requested that Mr. Breeland prepare this documentation over the weekend. On the following Monday, however, Mr. Ferchill informed Mr. Breeland that WSNet would not be acquiring any assets from Classic Communications, Inc. Mr. Bree-land’s and V & E’s only participation in the transaction was to draft generic transaction documents. Mr. Breeland did not participate in any negotiations concerning the proposed transaction.

WSNet’s Chief Financial Officer and Executive Vice President, Randall Jonkers, signed the letter agreement at the behest of WSNet’s general counsel, to whom the letter was addressed. It is undisputed that Jonkers had reviewed the petition in the derivative action and chose not to consult with WSNet’s outside counsel before signing the waiver. V & E appeared on behalf of the relators in March 2002.

In October 2002, WSNet filed a Chapter 11 bankruptcy petition, and a trustee was appointed. The trustee replaced the original plaintiff in the derivative suit but retained the same law firm to continue prosecuting the shareholder derivative suit. The derivative suit was removed to the bankruptcy court in January 2003, and later remanded to state court in August 2003. An automatic stay was imposed until October 6, 2003.

On November 14, 2003, twenty months after V & E appeared on the relators’ behalf, the trustee sought V & E’s disqualification based on its prior work for WSNet. The trial court ordered V & E’s disqualification, holding that V & E’s prior representation of WSNet was substantially related to the representation in this case, the bankruptcy trustee did not waive the right to seek V & E’s disqualification, and any purported prior waiver of a conflict by WSNet was ineffective. The court of appeals denied the relators’ request for mandamus relief, and the relators now seek mandamus relief in this Court.

A writ of mandamus will issue only if the trial court has committed a clear abuse of discretion and the relators have no adequate remedy by appeal. A trial court abuses its discretion if “ ‘it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law or if it clearly fails to correctly analyze or apply the law.

The Disciplinary Rules, although promulgated as disciplinary standards rather than rules of procedural disqualification, provide guidelines relevant to a disqualification determination. Rule 1.05 prohibits the use of a former client’s confidential information to that client’s disadvantage, unless the client consents or the information has become generally known. Rule 1.09(a) provides:

Without prior consent, a lawyer who personally has formerly represented a client in a matter shall not thereafter represent another person in a matter adverse to the former client:
(1)in which such other person questions the validity of the lawyer’s services or work product for the former client; or
(2) if the representation in reasonable probability will involve a violation of Rule 1.05.[sic]
(3) if it is the same or a substantially related matter.

We have recognized that “[disqualification is a severe remedy” that can cause immediate and palpable harm by depriving the party of its chosen counsel and disrupting court proceedings. Therefore, “[m]ere allegations of unethical conduct or evidence showing a remote possibility of a violation of the disciplinary rules will not suffice” to merit disqualification.

The relators argue that disqualification was improper because V & E obtained valid oral and written waivers before appearing in this lawsuit on the relators’ behalf. The bankruptcy trustee contends that the waiver letter signed by Jonkers, WSNet’s Executive Vice President and Chief Financial Officer, at the behest of the company’s general counsel was ineffective because it did not fully and accurately disclose the conflict. We disagree. Comment 10 to Rule 1.09 provides that “[a] waiver is effective only if there is consent after disclosure of the relevant circumstances, including the lawyer’s past or intended role on behalf of each client, as appropriate.” The waiver letter in this case disclosed V & E’s proposed representation of the relators in the shareholder derivative suit, the subject matter of its prior work for WSNet, the time period involved, the attorney involved, the nature of the discussion with WSNet’s general counsel, and how the prior representation concluded. This disclosure meets the requirements set forth in comment 10 of Rule 1.09. Furthermore, it is undisputed that Jonkers signed the waiver letter after reviewing the petition and chose not to consult WSNet’s outside counsel before signing the waiver. The record reveals that WSNet’s files contained information regarding V & E’s prior work for WSNet, including an email from V & E partner Patrick Breeland to a WSNet representative disclosing his work for WSNet and a draft of the asset purchase agreement. In addition, it is undisputed that WSNet’s general counsel verbally agreed to waive any potential conflict of interest, which is a permissible, albeit inadvisable, manner of providing disclosure and obtaining consent under the Disciplinary Rules. Accordingly, WSNet was adequately informed of V & E’s prior representation and knowingly waived any conflict.

“Mandamus is appropriate to correct an erroneous order disqualifying counsel because there is no adequate remedy by appeal.” Accordingly, without hearing oral argument, we conditionally grant a writ of mandamus and order the trial court to vacate its order disqualifying the relators’ counsel. We have every confidence the trial court will act in accordance with this opinion.

Justice JOHNSON did not participate in the decision.

      . Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex.1992).

      . Id. at 839 (quoting Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985)).

      . Id. at 840.

      . Anderson Producing Inc. v. Koch Oil Co., 929 S.W.2d 416, 421 (Tex.1996); Spears v. Fourth Court of Appeals, 797 S.W.2d 654, 656 (Tex.1990).

      . Tex Disciplinary R. Prof’l Conduct 1.05(b)(3), reprinted in Tex. Gov't Code, tit. 2, subtit. G app. A (Tex State Bar R. art. X, § 9).

      . Id. 1.09(a) (emphasis added).

      . Spears, 797 S.W.2d at 656.

      . In re Nitla S.A. de C.V., 92 S.W.3d 419, 423 (Tex.2002).

      . Spears, 797 S.W.2d at 656.

      . Tex. Disciplinary R. Prof’l Conduct 1.09 cmt. 10.

      . Id.; see also In re B.L.D., 113 S.W.3d 340, 346 n. 5 (Tex.2003) (discussing waiver for joint representation), cert. denied, 541 U.S. 945, 124 S.Ct. 1674, 158 L.Ed.2d 371 (2004).

      . See Tex. Disciplinary R. Prof'l Conduct 1.06 cmt. 8 ("While it is not required that the disclosure and consent be in writing, it would be prudent for the lawyer to provide potential dual clients with at least a written summary of the considerations disclosed.”).

      . In re Sanders, 153 S.W.3d 54, 56 (Tex.2004) (orig.proceeding).

      . Tex.R.App. P. 52.8(c).


text:
    Dr. Salah El HAFI and Cardiology Clinic, P.A., Petitioners, v. Keith BAKER, Individually, Ian Baker, Individually and as Representative of the Estate of Jean Baker, Respondents.
    No. 04-0926.
    Supreme Court of Texas.
    May 13, 2005.

      Trace Jeffrey Sherer, Christopher L. Farmer, Hilburn Sherer, P.L.L.C., Houston, TX, for Petitioner.
    Jack E. McGehee, James V. Pianelli, McGehee & Pianelli, L.L.P., Timothy D. Riley, Riley Law Firm, Houston, TX, for Respondents.
   PER CURIAM.

The question in this case is whether a veniremember was biased as a matter of law. The court of appeals held that the veniremember was biased. 2004 WL 1921232. We disagree.

Keith and Ian Baker sued Dr. Salah El Hafi and Cardiology Clinic, P.A., alleging medical malpractice that caused the death of their mother, Jean Baker. During voir dire, the following exchange occurred:

Counsel: Okay. Is there anybody here that feels that you could not sit on a medical case and make a decision as to whether the doctor acted within or below the standard of care? ...
How about on the third row? ... No. 25 [hand raised] ...
Juror 25: I’m not saying I want to [sic] be impartial. If I were in your shoes, I would want to know that I have spent most of my professional career on the defense side.
Counsel: Are you a lawyer?
Juror 25: Yes.
Counsel: Who are you with?
Juror 25: Preston and Calvert.
Counsel: Okay. And you actually defend health care operations?
Juror 25: Correct.
Counsel: Let me ask you: in all fairness, do you think that if this were a horse race so to speak, the plantiffs [sic] are starting a little bit behind in your eyes?
Juror 25: I mean — I’m not saying that — I would do my best to be objective. I’m just saying that if I were in your shoes I might consider you towards as the attorney who spend [sic] most of his career defending malpractice lawsuits.
Counsel: You feel like you can relate very much to the defendant’s [sic] lawyers in this case? Is that fair?
Juror 25: That’s correct.
Counsel: You feel like you would tend to look at it from them perspective as more of the plaintiff’s [sic] perspective?

Juror 25: I think it would be natural. The trial court denied the Bakers’ challenge for cause to veniremember 25, as well as challenges to veniremembers 31 and 34. The trial court rendered judgment on the jury’s take-nothing verdict in favor of Dr. El Hafi.

On appeal, the Bakers argued that veniremembers 25, 31, and 34 were biased as a matter of law and should have been excluded for cause. The court of appeals agreed that veniremember 25 was biased as a matter of law, reversed the trial court’s judgment, and remanded the case for a new trial. 2004 WL 1921232. The court of appeals did not consider whether veniremembers 31 and 34 were also biased.

A bias is disqualifying if “it [] appear[s] that the state of mind of the juror leads to the natural inference that he will not or did not act with impartiality.” Compton v. Henrie, 364 S.W.2d 179, 182 (Tex.1963). “[T]he relevant inquiry is not where jurors start but where they are likely to end.” Cortez v. HCCI-San Antonio, Inc., 159 S.W.3d 87, 93 (Tex.2005). We therefore recently held in Cortez that a veniremember was not disqualified merely for having a better understanding of the defendant’s side, even though he stated that “in a way,” the defendant was “starting out ahead.” Id. at 94.

Here, the veniremember protested when counsel suggested that perhaps, in his mind, the plaintiffs were “starting out a little behind.” He further explained that he “would do [his] best to be objective.” The veniremember’s most “biased” statements were his affirmative answers to leading questions suggesting that because of his career as a defense attorney, he could relate to the defendants’ attorneys and might see things more from the defendants’ perspective. Having a perspective based on “knowledge and experience” does not make a veniremember biased as a matter of law. See Cortez, 159 S.W.3d at 93. Taken as a whole, veniremember 25’s statements reflect more of an attempt to “speak the truth” so that the examining counsel could intelligently exercise peremptory challenges rather than any genuine bias. He twice reminded the examining counsel, “[i]f I were in your shoes, I would want to know that I have spent most of my professional career on the defense side.”

The Bakers argue that Shepherd v. Ledford, 962 S.W.2d 28 (Tex.1998) is indistinguishable. In Shepherd, counsel asked the venire panel whether anyone, “based upon your past experience, you could not be fair and objective....” Id. at 34. Venire-member Somerville answered in the affirmative and was struck. Then, venire-member Guerra stated, “I feel the same way.” Id. We held that the trial court erred in denying the motion to strike Guerra. As we explained in Cortez, it was Guerra’s agreement with counsel’s suggestion that he could not be fair and objective that proved his bias. See Cortez, 159 S.W.3d at 94. His other comments merely explained the reasons behind his bias. Here, the veniremember disagreed with every suggestion that he could not be fair and objective. His answers do not reflect a disqualifying bias.

Therefore, without hearing oral argument, we reverse the judgment of the court of appeals and remand the cause to that court for consideration of the Bakers’ remaining issues. See Tex.R.App. P. 59.1.

Justice JOHNSON did not participate in the decision.