author: Justice YÁÑEZ.

text:
    Richard L. FUQUA, Appellant, v. Thomas GRABER and Hopkins & Sutter, Appellees.
    No. 13-03-135-CV.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    March 3, 2005.

      Richard L. Fuqua, Fuqua & Keim, Houston, pro se.
    Robert H. Mow Jr., Jaime Levergen Bryan, Walter G. Pettey, III, Hughes & Luce, Dallas, Raymond L. Thomas, Rebecca Vela, Kittleman, Thomas, Ramirez & Gonzalez, McAllen, for appellees.
    Before Justices HINOJOSA, YÁÑEZ, and CASTILLO.
   OPINION

Opinion by

Justice YÁÑEZ.

Appellant, Richard L. Fuqua, filed this malicious prosecution suit in state court against appellees, Thomas Graber, an attorney, and Graber’s law firm, Hopkins and Sutter. Fuqua contends that appel-lees, acting on behalf of a client, Sunbelt Savings, wrongfully filed an adversary proceeding in Fuqua’s then-pending bankruptcy case. Appellees filed a plea to the jurisdiction, contending that because Fu-qua’s claim is premised on an adversary proceeding in a bankruptcy case, it is preempted by federal bankruptcy law. The trial court granted appellees’ plea to the jurisdiction and dismissed Fuqua’s claim. In a single issue, Fuqua contends the trial court erred in granting the plea to the jurisdiction. We agree, and reverse and remand to the trial court for proceedings consistent with this opinion.

I. BACKGROUND

In 1987, Fuqua (also an attorney) represented a purchaser in a transaction to purchase a horse farm in Kentucky. To finance the purchase, Fuqua’s client and several associates structured a separate real estate transaction designed to generate excess funding in an amount equal to the purchase price of the horse farm.

In 1988, for reasons unrelated to the horse-farm transaction, Fuqua filed for bankruptcy. In 1989, appellees (representing Sunbelt) filed an adversary proceeding in Fuqua’s bankruptcy case, alleging fraud in connection with the horse-farm transaction. Fuqua alleges that ap-pellees provided false and misleading information about him to the Justice Department and that they participated in a criminal referral to the Justice Department. The Justice Department began investigating the allegations and intervened in the adversary proceeding. As a result, the bankruptcy judge stayed any actions by Fuqua in the adversary proceeding pending completion of the investigation. The criminal investigation resulted in Fu-qua’s indictment in 1992. Between his indictment in 1992 and his 1994 trial (in which he was acquitted of any criminal wrongdoing), Fuqua was discharged by the bankruptcy court in 1993 and his bankruptcy case was closed. The adversary proceeding remained pending in the bankruptcy court. Following Fuqua’s acquittal on the criminal charges, the adversary proceeding went to trial. The bankruptcy court granted a directed verdict in Fuqua’s favor in the adversary proceeding and judgment was entered in his favor on May 13,1997.

In September 2000, Fuqua filed this suit for malicious prosecution in state district court. Appellees filed a plea to the jurisdiction, contending that because Fuqua’s claim was premised on the prior adversary proceeding, it was preempted by federal bankruptcy law. Following a hearing, the trial court granted appellees’ plea to the jurisdiction and dismissed the suit. Fuqua filed a motion for new trial, which the trial court denied. This appeal ensued.

II. STANDARD OF REVIEW

Whether a trial court has subject-matter jurisdiction is a legal question that we review de novo When reviewing a trial court order dismissing a cause for want of jurisdiction, Texas appellate courts “construe the pleadings in the plaintiffs favor and look to the pleader’s intent.”

The purpose of a plea to the jurisdiction is to defeat a cause of action without regard to whether the claims asserted have merit. “In deciding a plea to the jurisdiction, a court may not weigh the claims’ merits but must consider only the plaintiffs’ pleadings and the evidence pertinent to the jurisdictional inquiry.” The court must presume in favor of jurisdiction unless lack of jurisdiction affirmatively appears on the face of the petition. If a claim is not within a court’s jurisdiction, and the impediment to jurisdiction cannot be removed, then it must be dismissed.

III. ANALYSIS

A. Fuqua’s Pleadings

“To prevail in a suit alleging malicious prosecution of a civil claim, the plaintiff must establish: (1) the institution or continuation of civil proceedings against the plaintiff; (2) by or at the insistence of the defendant; (3) malice in the commencement of the proceeding; (4) lack of probable cause for the proceeding; (5) termination of the proceeding in plaintiffs favor; and (6) special damages.”

We begin by addressing the allegations in Fuqua’s pleadings. In his second amended petition, Fuqua alleges that ap-pellees “knowingly, maliciously, and wantonly acted without probable cause in initiating” a civil adversary proceeding against him. He contends that during the course of the proceeding, appellees provided false and misleading information to the Justice Department, which eventually resulted in his indictment for bank fraud and tax fraud. He also alleges appellees acted maliciously in initiating a criminal proceeding against him as an adjunct to the civil proceeding. Fuqua contends that the civil and subsequent criminal actions were all terminated in his favor. Fuqua alleges that as a result of appellees’ conduct, he suffered damages in the form of injury to his reputation and costs associated with his defense. He alleges he suffered special damages in that as a result of appellees’ conduct, he was indicted and subsequently tried for bank fraud. We conclude Fuqua has alleged a cause of action for malicious prosecution based on appellees’ allegedly improper conduct in Fuqua’s bankruptcy proceeding.

B. Preemption

The issue before us is apparently one of first impression in Texas: whether Fuqua’s claim for malicious prosecution is preempted by federal bankruptcy law. Appellees contend federal law preempts Fuqua’s claim “by implication.”

Federal preemption of state law causes of action is appropriate if Congress expressly legislates such preemption, or if Congressional intent can be implied from the federal legislation. If Congress has legislated comprehensively and occupied an entire field of regulation, leaving no room for supplemental state regulation, preemption is implied. State law is also preempted to the extent it actually conflicts with federal law or interferes with the accomplishment and execution of Congressional objectives. Appellees argue that the bankruptcy code includes remedial provisions and sanctions designed to deter and punish improper use of the bankruptcy process. Because Fuqua’s claim alleges improper use of the bankruptcy courts to file and prosecute an adversary proceeding, appellees argue the extensive scheme of remedies in the bankruptcy code preempts his state law claim.

Although Congress has given the federal district courts “original and exclusive jurisdiction of all cases under title 11,” the district courts do not have “exclusive jurisdiction of all civil proceedings arising under title 11 or arising in or related to cases under title 11.” Thus, the district courts and their bankruptcy units have exclusive jurisdiction only over “the bankruptcy petition itself.” In other matters “arising in” or “related to” title 11 cases, unless the bankruptcy code provides otherwise, state courts have concurrent jurisdiction.

This Court has previously held that “the mere pendency of a bankruptcy action does not automatically deprive a State court of all jurisdiction.” “In order to preclude a State court’s jurisdiction, the state claim must interfere with the jurisdiction of the Bankruptcy Court.” In Dunn, we held that a trial court did not err in failing to abate a state court action because of the pendency of a bankruptcy where the bankruptcy was concluded sixteen months before the trial of the state action and before the hearing on the plea in abatement.

Here, Fuqua was discharged by the bankruptcy court in 1998. Judgment was entered in Fuqua’s favor in the adversary proceeding on May 13, 1997. Sunbelt appealed and the appeal was dismissed on September 8, 1998. Thus, Fuqua’s cause of action for malicious prosecution did not become final until September 8, 1998, when the appeals process in the adversary proceeding was exhausted. Thus, Fu-qua’s malicious prosecution claim did not accrue until five years after he was discharged in bankruptcy.

We conclude that Fuqua’s state law claim for malicious prosecution cannot interfere with the bankruptcy court’s jurisdiction and that the state court’s jurisdiction is therefore not precluded.

We have found no Texas or Fifth Circuit authority directly addressing whether state claims for malicious prosecution are preempted by the bankruptcy code. In support of their argument in favor of preemption, appellees urge us to adopt the reasoning and holdings in: MSR Exploration, Ltd. v. Meridian Oil, Inc., 74 F.3d 910, 916 (9th Cir.1996); Gonzales v. Parks, 830 F.2d 1033, 1035 (9th Cir.1987); Miles v. Okun (In re Miles), 294 B.R. 756, 761 (9th Cir. BAP 2003); Glannon v. Garrett & Assoc., 261 B.R. 259, 266 (D.Kan.2001); Ross v. Universal Studios Credit Union, 95 Cal.App.4th 537, 115 Cal.Rptr.2d 712 (2002); Pauletto v. Reliance Ins. Co., 64 Cal.App.4th 597, 75 Cal.Rptr.2d 334 (1998); and Shiner v. Moriarty, 706 A.2d 1228, 1238 (Pa.Super.1998).

Appellees rely on several grounds for their contention that state law claims for malicious prosecution are preempted by the bankruptcy code. First, “Congress has expressed its intent that bankruptcy matters be handled in a federal forum by placing bankruptcy jurisdiction exclusively in the district courts as an initial matter.” “The fact that federal courts have exclusive jurisdiction over bankruptcy matters indicates Congressional intent to preempt state remedies.” Second, the comprehensive nature of the bankruptcy code “demonstrates Congress’s intent to create a whole system under federal control which is designed to bring together and adjust all of the rights and duties of creditors and embarrassed debtors alike.” “Congress’[s] authorization of certain sanctions for the filing of frivolous bankruptcy petitions should be read as an implicit rejection of other penalties, including the kind of substantial damage awards that might be available in state court tort suits.” Third, preemption of state law malicious prosecution claims furthers Congress’s policy of creating uniformity in the bankruptcy code. “[T]he unique, historical, and even constitutional need for uniformity in the administration of the bankruptcy laws is another indication that Congress wished to leave the regulation of the parties before the bankruptcy court in the hands of the federal courts alone.” Finally, “allowing state court remedies for wrongful filings could discourage entry into the bankruptcy system.”

We recognize that a majority of courts that have considered the preemptive nature of bankruptcy law in the context of state tort claims alleging violations of the bankruptcy process have found such claims to be preempted.

In Gonzales, the Ninth Circuit held that a state court lacked subject matter jurisdiction to hear a claim that a debtor’s filing of a voluntary bankruptcy petition was an abuse of process. In Gonzales, the plaintiffs defaulted on an obligation, and the defendants sought to foreclose a deed of trust on their property. Plaintiffs filed a voluntary bankruptcy petition, halting the sale. The defendants filed an action in state court, claiming that the plaintiffs’ bankruptcy filing was an abuse of process. After the state court granted a default judgment against the plaintiffs, they filed an adversary proceeding in the bankruptcy court, seeking relief from the state court judgment. The bankruptcy court declared the state court judgment void as violative of the automatic stay provision of the bankruptcy code. On appeal, the Ninth Circuit held the state judgment was void because the grant of exclusive jurisdiction to federal courts over bankruptcy petitions precluded collateral attacks on such petitions in state courts. Thus, unlike the present case, the state court action at issue in Gonzales was instituted during the pendency of the bankruptcy.

In MSR, certain creditors of MSR filed claims against it in MSR’s bankruptcy proceeding. The bankruptcy court disallowed the creditors’ claims. After MSR’s reorganization plan was confirmed, it brought a claim for malicious prosecution in federal district court, based on the creditors’ disallowed claims. Citing Gonzales, the Ninth Circuit held that MSR’s claim for malicious prosecution was preempted by the bankruptcy code and should have been brought in the bankruptcy court itself, not as a separate action.

In Miles, a bankruptcy panel for the Ninth Circuit held that section 303(i) of the bankruptcy code, which provides for fees, costs, and damages to be awarded against a bad-faith involuntary petitioner, preempts state tort actions premised on the filing and prosecution of involuntary bankruptcies. In Miles, a feud between neighbors resulted in the filing of involuntary bankruptcy petitions against the alleged debtors. The bankruptcy court ruled that one of the petitions was filed in bad faith, dismissed the petitions, and awarded costs and attorneys’ fees to the alleged debtors. After the petitions were dismissed, one of the alleged debtors and her children filed tort actions in state court seeking damages for the filing and prosecution of the involuntary petitions. After the defendants removed the actions to bankruptcy court, the bankruptcy court dismissed the complaints, holding that the plaintiffs’ claims were preempted by section 303(i) of the bankruptcy code. The Ninth Circuit panel affirmed the dismissal of the plaintiffs’ state law claims. The court held that the plaintiffs’ claims for damages were “inextricably part of the parent bankruptcy case.” Thus, we find the circumstances in Miles, where the plaintiffs were seeking state tort damages in addition to the fees and costs already awarded by the bankruptcy court for the bad-faith filing of involuntary petitions, distinguishable from the present case.

Following the Ninth Circuit’s decisions in Gonzales and MSR, a California appellate court held, in Pauletto, that the plaintiffs’ state law claims for malicious prosecution (based on allegedly malicious filings in a bankruptcy proceeding) were preempted by federal bankruptcy law. In that case, the Paulettos, owners of a construction business, filed a voluntary bankruptcy proceeding. The Paulettos’ sureties filed an adversary proceeding for a determination that the Paulettos’ indebtedness to them was not dischargeable. The bankruptcy court entered judgment in favor of the Paulettos. The Paulettos then filed suit in state court for malicious prosecution and abuse of process based on the allegedly improper filing of the adversary proceeding. The state court held that it lacked subject matter jurisdiction over the Paulettos’ claims. The California appellate court affirmed, holding that “no authorized bankruptcy proceeding can properly support a state-law claim for malicious prosecution or abuse of process.” The Pauletto court noted that “[t]he essential preemption question is not whether the particular state-law remedy the Paulettos seek could be obtained in bankruptcy court, but whether the availability of other remedies under the federal scheme precludes their pursuit of a state-law remedy outside the bankruptcy system.” It is unclear in Pauletto whether the Paulettos’ bankruptcy proceeding was already dismissed when they filed them claim in state court for malicious prosecution. We recognize, however, that the Pauletto court’s holding did not address whether any remedy remained available to the Paulettos. Rather, the court held, without qualification, that “[a] party aggrieved by bad faith and malicious filings in bankruptcy court is limited to the remedies provided by the Federal Bankruptcy Code and the Federal Rules of Bankruptcy Procedure.”

In Ross, another California appellate court, addressing a matter “on all fours with Pauletto,” held that the appellant’s state-law claims of malicious prosecution were preempted by federal bankruptcy law. After Ross filed for bankruptcy, a creditor filed an adversary proceeding requesting a determination that its judgment against him be declared nondischargeable. After the bankruptcy court granted judgment in Ross’s favor, he sued in state court alleging malicious prosecution and abuse of process based on the bankruptcy court’s judgment. The state trial court held it had no jurisdiction and the appellate court affirmed. The Ross court held that Ross’s remedy was “limited to such satisfaction afforded to him in the bankruptcy court.” The court further noted that “Ross chose not to invoke the remedies available to him in the bankruptcy court and he may not circumvent them by filing a malicious prosecution action in state court.”

In Shiner, the Pennsylvania Superior Court held that the Shiners’ state law claims, based on the defendants’ allegedly improper filings in the bankruptcy court, were preempted by federal law. The Shiner court concluded that “[t]he Bankruptcy Code permits no state law remedies for abuse of its provisions.”

In Glamion, a Kansas federal district court held that the plaintiffs state law malicious prosecution and abuse of process claims, based on the filing of an involuntary bankruptcy petition, the filing of an adversary proceeding, and the violation of an automatic stay, were preempted by the bankruptcy code.

In addition to the cases cited by appel-lees, we note that a majority of courts that have considered the preemptive nature of bankruptcy law in the context of state tort claims alleging violations of the bankruptcy process have found such claims to be preempted. In contrast, only a few courts have held that the bankruptcy code permits state law remedies for abuse of its provisions.

In Mullin, the Florida District Court of Appeals relied on its decision in R.L. LaRoche, Inc. v. Barnett Bank of South Florida, 661 So.2d 855, 857 (Fla.Dist.Ct.App.1995) (holding state courts had jurisdiction to hear and determine debtor’s state law claims related to alleged bad faith filing of an involuntary bankruptcy petition), in holding that the state court had jurisdiction to consider Muhin’s malicious prosecution claim following the bankruptcy court’s dismissal of an involuntary petition for bankruptcy filed against her. After an involuntary bankruptcy petition was filed against her, Mullin sought a dismissal of the petition from the bankruptcy court, but did not request or plead for punitive damages or any other damages associated with the bad-faith filing of the petition, other than for attorneys’ fees and costs. The bankruptcy court dismissed the petition, stating it had been prosecuted “in bad faith and for an inappropriate purpose.” Muhin filed a malicious prosecution complaint in state court, seeking damages associated with the bad-faith filing of the petition. The defendants moved for summary judgment, contending the state court lacked jurisdiction due to federal preemption of Muhin’s claims. The trial court granted summary judgment in favor of the defendants, based on its finding that Muhin’s “claims were available in the previous bankruptcy action.” Relying on its holding in LaRoche, the Florida Court of Appeals reversed the summary judgment. In a separate concurring opinion, Justice Gross noted that since the court’s decision in LaRoche, the majority of courts considering the issue have held in favor of preemption. Justice Gross concluded by expressing his preference that the court “recede from [its] decision in LaRoche and hold that Muhin’s state tort law claim is preempted by the Bankruptcy Code.”

LaRoche involved facts very similar to those in Mullin: following the bankruptcy court’s dismissal of an involuntary bankruptcy petition filed against LaRoche (the debtor), it filed suit in state court for malicious prosecution arising from the filing of the petition. The trial court dismissed the claims on the grounds that the bankruptcy court had exclusive jurisdiction over such claims. After noting that there is “no clear authority in the federal courts directly on point,” the LaRoche court questioned some of the arguments supporting preemption. In response to the argument that state court adjudication of malicious prosecution claims would impair the right of access to the bankruptcy court, the court noted that it could not discern “how Gonzales concluded that good faith petitioners would also be discouraged by state court adjudications, of bad faith.” The court continued:

It is not immediately obvious to us how damage awards against creditors who have filed involuntary petitions in bad faith — which we take to mean dishonestly and without any pretense of a legal and factual basis for so doing — would deter creditors who have a good faith basis in law and fact to seek such relief. Concededly, such awards would dissuade bad faith creditors, but that seems a result that Congress itself intended. After all, section 303(i)(2) quite specifically allows the bankruptcy court to assess costs, fees and punitive damages against a creditor whom the court has found to have filed an involuntary petition in bad faith. It is thus indisputable that Congress contemplated, at least to that extent, to engage in some deterrence of bad faith involuntary filings.
All creditors who contemplate filing an involuntary petition under section 303, therefore, already face the prospect that a court may determine that they acted in bad faith. Gonzales did not explain why bankruptcy court adjudications of bad faith filings under section 303(i)(2) would not hinder good faith creditor access, but that state court adjudications would necessarily do so. Stated conversely, it is not immediately apparent how the prospect of state courts doing what the bankruptcy courts already can do might deter good faith filers. We are simply unable to discern a rationale for the dictum in Gonzales. ,

In response to the argument that the need for uniformity in the administration of bankruptcy laws reflects Congress’s intent to leave the regulation of parties before the bankruptcy court in the hands of the federal courts alone, the court noted that

Congress may simply have believed that any resulting mosaic [of jurisprudence], an inevitable feature of our system under the Tenth Amendment, is not necessarily undesirable.... It is not farfetched to assume that Congress intended that the several states be free to punish [creditors who have abused the system] under their own laws, in then-own courts. And, in any event, there is a single overseer for the system in the United States Supreme Court, which can always narrow such causes of action to specific elements and proof if state decisions have the effect of interfering with the primacy of federal bankruptcy law.

Finally, the LaRoche court noted that “[t]he Supreme Court has long applied a rebuttable presumption that, when Congress is silent on whether federal court jurisdiction is exclusive, state courts have concurrent jurisdiction of claims arising under federal law.” Thus, the LaRoche court concluded that “because there is no express grant of exclusive jurisdiction for these claims to the bankruptcy court and no strong reason to suppose that Congress gave such power by implication,” the state court therefore has jurisdiction over state law claims for malicious prosecution based on the bad-faith filing of an involuntary petition.

We recognize that the LaRoche court’s analysis turns primarily on the question of jurisdiction, in contrast to the issue of preemption. We emphasize that several courts have accurately noted the distinction. In Shiner, the court stated:

The trial court concluded that the wrongful use of process claim for damages resulting from the filing of certain papers in the U.S. Bankruptcy Court was properly brought in state court. Opinion, dated May 21, 1997, at 10-11. We must first note that the trial court has misstated the issue. The issue is not whether the trial court could exercise jurisdiction over the controversy. Rather, the issue is whether the application of state tort law to the particular issue was pre-empted by the Bankruptcy Code. ... The issue is whether a wrongful use claim exists, or is it preempted by the remedies available under the Bankruptcy Code.

Similarly, in Pauletto, the California Court of Appeals noted:

The issue before us is not whether the jurisdictional language of section 1334 of title 28 of the United States Code technically or theoretically would allow a state court malicious prosecution claim based on an underlying bankruptcy proceeding, but whether allowance of such a claim conflicts with the Bankruptcy Code’s overall scheme of remedies and threatens Congress’s objectives of uniformity in bankruptcy law and exclusive federal jurisdiction over bankruptcy proceedings. The general jurisdictional provisions of section 1381 of title 28 of the United States Code are immaterial to our implied preemption analyses based on Gonzales, Gene R. Smith Corp. [v. Terry’s Tractor, Inc.], [209 Cal.App.3d 951, 257 Cal.Rptr. 598 (1989)] Idell [v. Goodman], [224 Cal.App.3d 262, 273 Cal.Rptr. 605 (1990)] Koffman [v. Osteoimplant Technology, Inc.], [182 B.R. 115 (1995)] and MSR Exploration, Ltd.

The narrow issue before us in the present case is whether the trial court erred in: (1) holding that it lacked jurisdiction over Fuqua’s claim for malicious prosecution because such claims are preempted by federal bankruptcy law; and (2) dismissing his claim. As noted above, Fuqua’s malicious prosecution claim did not accrue until five years after he was discharged in bankruptcy. Relying on our holding in Dunn, we have concluded that Fuqua’s malicious prosecution claim could not have interfered with the bankruptcy court’s jurisdiction, and that the state court’s jurisdiction is therefore not precluded. Thus, the state court has jurisdiction over Fuqua’s malicious prosecution claim unless we determine that it is preempted by the bankruptcy code.

In the absence of any binding authority, on the facts of the present case, we decline to speculate that Congress intended Fu-qua’s claim for malicious prosecution to be preempted by federal bankruptcy law. We agree with the LaRoche court that “the mere fact that Congress might have decided to allow bankruptcy court monetary awards against creditors who file in bad faith does not necessarily produce the conclusion that Congress intended to give these claims exclusively to the bankruptcy courts.” We also share the LaRoche court’s view that “[i]f [our] reading of the bankruptcy jurisdictional statute is incorrect, we are comforted by the knowledge that the Supreme Court can tell us so, or Congress can make its wishes express.”

We REVERSE the trial court’s order granting appellees’ plea to the jurisdiction and REMAND the cause to the trial court for proceedings consistent with this opinion.

      . The trial court set a hearing on appellees’ plea to the jurisdiction for November 25, 2002. On November 12, 2002, Fuqua filed a motion for continuance on grounds that he was scheduled to be in trial in another case on that date and was unable to attend the hearing. The trial court denied Fuqua's motion for continuance and proceeded with the hearing in his absence. No record of the hearing is included in the record before us. Following the trial court’s granting of appel-lees’ plea and dismissal of the case, Fuqua filed a motion for new trial, arguing that he was denied an opportunity to be heard. The trial court denied the motion.

      . State v. Gonzalez, 82 S.W.3d 322, 327 (Tex.2002); see also Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.2002).

      . County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.2002); Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993).

      . Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000).

      . Brown, 80 S.W.3d at 555.

      . Peek v. Equip. Serv. Co., 779 S.W.2d 802, 804 (Tex.1989).

      . Am. Motorists Ins. Co. v. Fodge, 63 S.W.3d 801, 805 (Tex.2001).

      . Tex. Beef Cattle Co. v. Green, 921 S.W.2d 203, 207-08 (Tex.1996).

      . We are mindful of our limited role here. Our task is not to determine whether the plaintiff ultimately wins or loses on judicial review; rather, this Court’s task is to examine the facts pleaded and to determine whether those facts support jurisdiction in the trial court. See Univ. of Tex. Med. Branch v. Hohman, 6 S.W.3d 767, 771 (Tex.App.-Houston [1st Dist.] 1999, pet. dism’d w.o.j.).

      . See English v. Gen. Elec. Co., 496 U.S. 72, 78-79, 110 S.Ct. 2270, 110 L.Ed.2d 65 (1990).

      . See id. at 79, 110 S.Ct. 2270; see also Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 372, 120 S.Ct. 2288, 147 L.Ed.2d 352 (2000) (stating when Congress intends federal law to "occupy the field,” state law in that area is preempted).

      . English, 496 U.S. at 79, 110 S.Ct. 2270.

      . The law relating to bankruptcy is codified and enacted as title 11 of the United States Code. See generally 11 U.S.C. § 101 (2004).

      . See 28 U.S.C.A. §§ 1334(a), (b) (West 2004) (emphasis added); In re Brady, Mun. Gas Corp., 936 F.2d 212, 218 (5th Cir.1991); see also In re Epstein, 314 B.R. 591, 599-600 (Bkrtcy.S.D.Tex.2004).

      . See In re Wood, 825 F.2d 90, 92 (5th Cir.1987).

      . In re Brady, 936 F.2d at 218; In re Epstein, 314 B.R. 591 at 599-600 (quoting Brady).

      . Dunn v. Menassen, 913 S.W.2d 621, 623 (Tex.App.-Corpus Christi 1995, writ denied).

      . Id. at 624.

      . Id.

      . See Tex. Beef Cattle Co., 921 S.W.2d at 208 (holding that “an underlying civil suit has not terminated in favor of a malicious prosecution plaintiff until the appeals process for that underlying suit has been exhausted.”).

      . See id. at 207-08 (holding termination in plaintiff’s favor is element of cause of action for malicious prosecution); see also Toranto v. Wall, 891 S.W.2d 3, 6 (Tex.App.-Texarkana 1994, no writ) (noting that cause of action for malicious prosecution accrues when underlying civil suit terminates).

      . See Dunn, 913 S.W.2d at 623-24.

      . Glannon v. Garrett & Assoc., 261 B.R. 259, 264 (D.Kan.2001) (quoting MSR Exploration, Ltd. v. Meridian Oil, Inc., 74 F.3d 910, 913 (9th Cir.1996)).

      . See id.

      . Id. (quoting MSR Exploration, 74 F.3d at 913).

      . Id. at 264-65 (quoting Gonzales v. Parks, 830 F.2d 1033, 1036 (9th Cir.1987)).

      . Id. at 265 (quoting MSR Exploration, 74 F.3d at 915).

      . Id. (citing Gonzales, 830 F.2d at 1036 ("Even the mere possibility of being sued in state court could in some instances deter persons from exercising their rights in bankruptcy.”)).

      . See, e.g., MSR Exploration, 74 F.3d at 916; Gonzales, 830 F.2d at 1035; Miles v. Okun (In re Miles), 294 B.R. 756, 761 (9th Cir. BAP 2003); Glannon, 261 B.R. at 266; Ross v. Universal Studios Credit Union, 95 Cal.App.4th 537, 115 Cal.Rptr.2d 712 (2002); Pauletto v. Reliance Ins. Co., 64 Cal.App.4th 597, 75 Cal.Rptr.2d 334 (1998); Shiner v. Moriarty, 706 A.2d 1228, 1238 (Pa.Super.1998).

      . Gonzales, 830 F.2d at 1035.

      . Id. at 1033.

      . Id.

      . Id. at 1033-34.

      . Id.

      . Id.

      . Id. at 1035.

      . Id. at 1033-34.

      . MSR Exploration, 74 F.3d at 912.

      . Id.

      . Id.

      . Id. at 916.

      . See 11 U.S.C. § 303(i) (2005).

      . Miles, 294 B.R. at 762-63.

      . Id. at 758.

      . Id.

      . Id.

      . Id.

      . Id.

      . Id. at 762.

      . See Pauletto, 64 Cal.App.4th at 605-06, 75 Cal.Rptr.2d 334.

      . Id. at 599, 75 Cal.Rptr.2d 334.

      . See id.

      . See id.

      . See id. at 603, 75 Cal.Rptr.2d 334.

      . Id. at 600, 75 Cal.Rptr.2d 334.

      . Id. at 605, 75 Cal.Rptr.2d 334.

      . Id. at 606, 75 Cal.Rptr.2d 334.

      . See id. at 599, 75 Cal.Rptr.2d 334.

      . Id. at 606, 75 Cal.Rptr.2d 334.

      . See Ross, 95 Cal.App.4th at 539, 115 Cal.Rptr.2d 712.

      . Id.

      . Id.

      . Id. at 538-39, 115 Cal.Rptr.2d 712.

      . Id. at 542, 115 Cal.Rptr.2d 712.

      . Id.

      . Shiner, 706 A.2d at 1238.

      . See id.

      . See Glannon, 261 B.R. at 265.

      . See, e.g., Lewis v. Chelsea G.C.A. P’ship, L.P., 86 Conn.App. 596, 604, 862 A.2d 368 (2004) (citing cases); see also Mullin v. Orthwein, 772 So.2d 30, 32-33 (Fla.Dist.Ct.App.2000) (per curiam) (Gross, J., concurring) (citing cases, noting that "judicial landscape in this area of law has considerably developed.").

      . See, e.g., Mullin, 772 So.2d at 34-35 (listing cases); see also Powell v. Wash. Land Co., Inc., 684 A.2d 769, 772 n. 9 (D.C.1996) (listing cases).

      . Mullin, 772 So.2d at 30.

      . Id. at 32 (Gross, J., concurring).

      . Id. at 31.

      . Id.

      . Id.

      . Id. at 32.

      . Mullin, 772 So.2d at 30.

      . Id. at 32-33 (Gross, J., concurring).

      . Id. at 35.

      . LaRoche, 661 So.2d at 857.

      . Id.

      . See id. at 859.

      . Id. at 862 (emphasis in original).

      . Id.

      . Id. at 863.

      . Id.

        . Id. at 864.

      . Shiner, 706 A.2d at 1237 (emphasis added).

      . Pauletto, 64 Cal.App.4th at 606, 75 Cal.Rptr.2d 334 (emphasis added).

      . See Dunn, 913 S.W.2d at 623-24.

      . LaRoche, 661 So.2d at 863.

      . Id. at 864.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Delair WATSON, Appellant, v. The STATE of Texas, Appellee.
    No. 10-03-00216-CR.
    Court of Appeals of Texas, Waco.
    March 9, 2005.
    Stan Schwieger, Waco, for appellant.

      John W. Segrest, McLennan County Dist. Atty., Waco, for appellee.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   ORDER

PER CURIAM.

This Court reversed Delair Watson’s conviction due to the factual insufficiency of the evidence. See Watson v. State, No. 10-03-00216-CR, 160 S.W.3d 627, 2005 WL 428438, 2005 Tex.App. LEXIS 1505 (Tex.App.-Waco Feb. 23, 2005, no pet. h.). Watson has filed a motion asking this Court to set his bail under article 44.04(h) of the Code of Criminal Procedure. We will grant the motion in part and set the amount of bail at $10,000.

Article 44.04(h) provides in pertinent part,

If a conviction is reversed by a decision of a Court of Appeals, the defendant, if in custody, is entitled to release on reasonable bail, regardless of the length of term of imprisonment, pending final determination of an appeal by the state or the defendant on a motion for discretionary review. If the defendant requests bail before a petition for discretionary review has been filed, the Court of Appeals shall determine the amount of bail.

Tex.Code Crim. Proc. Ann. art. 44.04(h) (Vernon Supp.2004-2005).

For setting the amount of bail pending appeal, the Court of Criminal Appeals has determined that the “primary factors” to consider are “the length of the sentence and the nature of the offense.” Ex parte Rubac, 611 S.W.2d 848, 849 (Tex.Crim.App. [Panel Op.] 1981) (citations omitted); accord Aviles v. State, 26 S.W.3d 696, 698-99 (Tex.App.-Houston [14th Dist.] 2000, order); Perez v. State, 897 S.W.2d 893, 895 (Tex.App.-San Antonio 1995, no pet.). Other factors to consider include the defendant’s: “work record, family ties, ... length of residency, ability to make the bond, prior criminal record, conformity with previous bond conditions, other outstanding bonds, and aggravating factors involved in the offense.” Rubac, 611 S.W.2d at 849-50 (citations omitted); accord Aviles, 26 S.W.3d at 698; Perez, 897 S.W.2d at 895.

The Fourteenth Court in Aviles concluded that there are different considerations when a conviction is reversed and the defendant requests the setting of bail under article 44.04(h). Thus, that court concluded that when setting bail under article 44.04(h) an appellate court should consider: “(1) the fact that the conviction has been overturned; (2) the State’s ability, if any, to retry the appellant; and (3) the likelihood that the decision of the court of appeals will be overturned.” Aviles, 26 S.W.3d at 699.

We agree that these are important considerations. Yet we also must bear in mind that the primary purpose of bail, whether pretrial or posttrial, “is to secure the presence of the accused.” Id. at 698.

Here, Watson does not request that bail be set in a particular amount, but he does ask this Court to grant a personal bond. The State asks that bail be set in the amount of $20,000.

According to a motion to reduce bail filed early in the proceedings below, a magistrate set Watson’s pretrial bail at $10,000. The trial court denied Watson’s request to reduce bail to $2,000.

Regarding the factors set out in Aviles, (1) Watson’s conviction has been overturned; (2) the State has filed a response indicating that it intends to retry Watson for the offense charged; and (3) our reversal of Watson’s conviction is unlikely to be overturned because the State has indicated in its response that it will not file a petition for discretionary review. Therefore, we will focus on setting bail in an amount sufficient to secure Watson’s presence at his retrial.

The trial court determined that $10,000 was an appropriate amount of bail to secure Watson’s presence at his first trial. Because little has changed since that time, we conclude that $10,000 remains an appropriate amount of bail.

Regarding Watson’s request for a personal bond, this Court does not have the authority to grant such relief. According to article 44.04(h), “[t]he sureties on the bail must be approved by the court where the trial was had.” Tex.Code Crim. Proc. Ann. art. 44.04(h). A personal bond is a bond with no sureties. Id. 17.04 (Vernon Supp.2004-2005). Therefore, because a trial court retains authority to approve the sureties on a bond following the reversal of a conviction, we hold that the trial court must likewise approve any request for a personal bond.

Bail is set at $10,000. Watson’s request for a personal bond is denied.

IT IS SO ORDERED.

Chief Justice GRAY dissents without a separate opinion.

      . Actually, Watson requests a "personal recognizance” bond. Although this is a commonly-used term, the pertinent statutes use the term "personal bond.” See Tex.Code Crim. Proc. Ann. arts. 17.03, 17.031, 17.032, 17.04 (Vernon Supp.2004-2005). Article 17.04 defines a "personal bond” as a bail bond with no sureties. Id. art. 17.04.


author: WANDA McKEE FOWLER, Justice.

text:
    Samuel Kenneth BANKS, Appellant, v. The STATE of Texas, Appellee.
    No. 14-03-01072-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    March 10, 2005.

      James M. Leitner, Houston, for appellant.
    Eric Kugler, Houston, for appellee.
    Panel consists of Chief Justice HEDGES and Justices FOWLER and SEYMORE.
   SUBSTITUTE OPINION ON REHEARING

WANDA McKEE FOWLER, Justice.

We deny the State’s Motion for Rehearing, withdraw our previous opinion of November 30, 2004, and issue this substitute opinion reversing and remanding appellant’s case. Appellant Banks was convicted of failing to register as a sex offender and received a twenty-five year prison sentence after the jury found that two enhancement paragraphs were true. Appellant contends (1) his prior conviction was improperly admitted, (2) his sentence should not have been enhanced, (3) the trial court erred in refusing his request for a limiting instruction, and (4) the evidence was legally and factually insufficient to convict him. Because we find the trial court erred in admitting appellant’s penitentiary packet to prove appellant had been convicted of an offense that required appellant to register as a sex offender, we reverse and remand on that ground.

Background

Appellant was convicted of failing to register as a sex offender under article 62.10 of the Texas Code of Criminal Procedure. This article requires a person with a reportable offense to register with the appropriate local authority if he or she has resided or intends to reside in a Texas county for more than seven days. Tex.Code Crim. Proc. art. 62.02. To support a conviction, appellant must have 1) been finally convicted of a reportable offense, 2) resided in Harris County for seven days, and 3) failed to register. Id. To prove appellant was finally convicted of a reportable offense, the State introduced an Illinois “penitentiary packet,” purportedly evidencing appellant’s final conviction for aggravated criminal sexual assault in Illinois, a reportable offense. For the reasons that follow, we conclude the evidence of his prior conviction was improperly admitted. Because we sustain appellant’s first point of error and remand on that ground, we do not address appellant’s other contentions.

Analysis

A. Texas law determines whether the State offered sufficient documentary proof of a final conviction.

Appellant’s purported prior conviction is from another state, Illinois. Unless the State establishes that another state’s laws differ, we presume that state’s law is the same as Texas law regarding what constitutes sufficient documentary proof of a final conviction. See Langston v. State, 776 S.W.2d 586, 587-88 (Tex.Crim.App.1989) (en banc). Here, the State offered no proof that Illinois requires different documentary proof than Texas to prove a prior conviction. Therefore, we will apply the Texas standards to determine whether the State proved appellant had a prior conviction for a reportable offense.

B. In Texas, to establish a defendant’s final conviction, the State must bring forth admissible evidence that shows a final conviction exists and that the defendant is the person who was convicted.

To prove a defendant has been convicted previously, the State must come forward with two categories of proof — the first proving the conviction and the second linking the defendant to that conviction. See Beck v. State, 719 S.W.2d 205, 210 (Tex.Crim.App.1986) (en banc) (“[Certified copies of a judgment and sentence] are not normally sufficient standing alone to prove the prior convictions.... It is incumbent on the State to go forward and show by independent evidence that the defendant is the person so previously convicted.”); Fontenot v. State, 704 S.W.2d 126, 127 (Tex.App.-Houston [1st Dist.] 1986) (listing four methods of proving “a defendant is the same person previously convicted”), habeas corpus dism’d sub nom Ex Parte Fontenot, 3 S.W.3d 32 (Tex.Crim.App.1999)(en banc); Dorton v. State, No. 14-99-00941-CR, 2001 WL 253700, at *2 (Tex.App.-Houston [14th Dist.] March 15, 2001, no pet.) (not designated for publication) (holding that, in addition to establishing a final conviction, the State “must show by independent evidence that the defendant is the person who was convicted”). In appellant’s case, the State’s admissible evidence linked appellant to the purported conviction but failed to prove the conviction was valid and final. And, as we discuss below, the only evidence the State relied upon to prove the final conviction itself was not authenticated and should not have been admitted.

1.The State can use ‘penitentiary packets to show a valid final conviction.

To satisfy the first proof requirement — proof of a valid final conviction— the State regularly introduces “penitentiary packets” or “pen packets,” as the State did in appellant’s case. The Texas Court of Criminal Appeals has held that, “to be considered as evidence of a final conviction, a pen packet must contain a judgment and sentence, properly certified.” Langston, 776 S.W.2d at 587. A document that is the “functional equivalent of the judgment and sentence required by Texas law to prove up a valid conviction” may be used in the absence of a judgment and sentence. Id. at 588; Williams v. State, No. 14-97-00998-CR, 1999 WL 442010, at *4 (Tex.App.-Houston [14th Dist.] July 1, 1999, pet. ref'd) (not designated for publication) (“If the State relies on documents other than a judgment, it must show that the documents offered are the functional equivalents of the judgment and sentence.”) (citing Langston, 776 S.W.2d at 587).

2.Penitentiary packets must satisfy the usual authentication requirements.

As with any other piece of documentary evidence, the State must authenticate the documents as a prerequisite to their admissibility. Tex.R. Evid. 901(a); Cortez v. State, 571 S.W.2d 308, 311 (Tex.Crim.App.1978) (en banc) (noting that an out-of-state judgment is inadmissible without proper authentication) (citing Hutchins v. Seifert, 460 S.W.2d 955 (Tex.Civ.App.-Houston [14th Dist.] 1970, writ ref'd n.r.e.)); see also Mega Child Care, Inc. v. Tex. Dep’t of Protective & Regulatory Servs., 29 S.W.3d 303, 308 (Tex.App.-Houston [14th Dist.] 2000, no pet.) (“The Texas rules of evidence require, as a predicate to admissibility, that evidence be properly authenticated or identified.”). Without some proof that the documents in the packet are genuine, the packet is inadmissible. Tex.R. Evid. 901(a); Mega Child Care, 29 S.W.3d at 308 (noting that the proponent of the evidence must show the document is what it purports to be as a predicate to admissibility). Therefore, before deciding whether the documents in appellant’s penitentiary packet were sufficient to prove a final conviction, we must address appellant’s contention that the packet was not properly authenticated.

3.Appellant’s penitentiary packet should not have been admitted because the State failed to prove its authenticity.

Appellant’s Illinois penitentiary packet contains three single-page documents: 1) an “Order of Sentence and Commitment to Illinois Department of Corrections,” (see Exhibit A) 2) a fingerprint card, and 3) an “Illinois Department of Corrections Bureau of Identification Offender Report.” It does not contain any certification by an Illinois official, nor does it bear an Illinois seal. Because the packet lacks certification and a seal, appellant’s penitentiary packet was not self-authenticating under Texas Rule of Evidence 902. Tex.R. Evid. 902(1) (providing for self-authentication when domestic public documents are under seal); Tex.R. Evid. 902(2) (providing for self-authentication when domestic public documents are not under seal but bear an officer or employee’s signature and are accompanied by a certification under seal that the signer has official capacity and the signature is genuine); Tex.R. Evid. 902(4) (providing for self-authentication of certified copies of public records).

The only evidence of authenticity the State points to on appeal is the testimony it elicited that appellant’s fingerprints matched those found in the packet. The State’s reliance on the fingerprint match to authenticate the entire penitentiary packet is misplaced. The fingerprint match goes to the second category of proof — proving the defendant is the person previously convicted — and fails to prove that the documents in the packet are what the State asserts them to be. See Cole v. State, 484 S.W.2d 779, 784 (Tex.Crim.App.1972) (“The fingerprints are used as a means of insuring that the person on trial is the same one to whom the packet refers.”). In the absence of any other proof that the documents in the packet are what the State claims — evidence of a valid and final conviction — we find the documents were not properly authenticated and should not have been admitted.

A The erroneous admission of the penitentiary packet requires reversal because it affected appellant’s substantial rights.

Because we find the packet should not have been admitted, we do not address whether the documents are the functional equivalent of a judgment and sentence, such that they prove a valid and final conviction. We do note, however, that the State has cited no case, nor have we located one, holding that a similar penitentiary packet — completely lacking a judgment and sentence and devoid of any indicia of authenticity — can sufficiently prove a prior conviction. Cf., e.g., Johnson v. State, 740 S.W.2d 868, 871 (Tex.App.-Houston [14th Dist.] 1987, pet. ref'd) (holding that New York certificate of commitment, when accompanied by certification of authenticity, performed the same function as the judgment and sentence in Texas and was sufficient to prove a prior conviction); Williams, 1999 WL 442010, at *5-6 (not designated for publication) (holding that certified copies of records from the Florida Division of Corrections were the functional equivalent of a judgment and sentence and were sufficient to prove a prior conviction).

Proof of a prior conviction for a reportable offense is an essential element of failing to register in violation of article 62.02. Tex. Code Crim. Proc. art. 62.02. As the penitentiary packet was the only evidence the State relied upon to prove appellant was previously convicted of a reportable offense, we have no doubt that its improper admission affected appellant’s substantial rights. Tex.R.App. P. 44.2(b); cf. King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997) (holding appellant’s substantial rights not affected when other evidence of future dangerousness was properly admitted and the State did not emphasize the complained of documents). Therefore, we withdraw our previous opinion, deny the State’s motion for rehearing, sustain appellant’s first point of error and grant his request to reverse his conviction and remand for a new trial.

      . The State urges in its first issue in its motion for rehearing that this court must address appellant’s legal sufficiency challenge. Ordinarily, a reviewing court must address a legal sufficiency challenge because, if sustained, the appellant receives an acquittal. Rankin v. State, 953 S.W.2d 740, 743-44 (Tex.Crim.App.1996) (en banc) (on state's motion for rehearing) (Baird, J., dissenting) ("It is axiomatic that an appellate court must always address challenges to the sufficiency of the evidence, even though a reversal may be required on other grounds. This is because a successful challenge to the sufficiency of the evidence bars retrial and requires the entry of a judgment of acquittal.”) (citations omitted); Garza v. State, 715 S.W.2d 642, 645 (Tex.Crim.App.1986) (en banc) (on state's petition for discretionary review); Hall v. State, 843 S.W.2d 190, 191 (Tex.App.-Houston [14th Dist.] 1992, no pet.). However, this court also cannot grant more relief than appellant has requested. See, e.g., Board of Firemen's Relief and Ret. Fund Trustees v. Stevens, 372 S.W.2d 572, 574 (Tex.Civ.App.-Houston 1963, no writ) ("It is well settled that the court may not grant relief not supported by pleadings or prayer.”). In his original briefing, the only relief for which appellant prayed was for this court to reverse and remand his case, not that we render a judgment of acquittal. Further, in response to the State's motion for rehearing, appellant waived any further review of his legal sufficiency challenge. Therefore, we do not address appellant’s legal sufficiency challenge.

      . We initially rejected the State’s contention that appellant failed to preserve error with respect to his complaints that the penitentiary packet was not properly authenticated and failed to prove a final conviction. The record reveals appellant objected to the packet’s authenticity and further objected the packet contained no final judgment of conviction. In denying the State’s motion for rehearing, we again decline to find that Ortiz v. State requires an appellant to do more to preserve error with respect to the authentication of a document purportedly proving a prior conviction. 144 S.W.3d 225 (Tex.App.-Houston [14th Dist.] 2004, pet. ref'd) (en banc). In Ortiz, we stated that an appellant had the burden "to develop the record to show the nature and source of an error and, in some cases, its prejudice to him.” Id. at 230. In its second issue in its motion for rehearing, the State urges us to find appellant did not preserve error because he did not ensure that the affidavit — which the State initially offered but then voluntarily withdrew — was included in the appellate record. On appeal, the State asserted that the affidavit might have properly authenticated appellant’s penitentiary packet and the trial court might have considered the affidavit in making its ruling that the penitentiary packet was admissible. We decline to hold that appellant could not have preserved error without obtaining the State’s affidavit, which the State withdrew and which apparently remains in the State's possession. Ortiz does not require this, nor has the State suggested any method by which appellant could have done this, even if it were required.

      . In its third and final issue in its motion for rehearing, the State sirgues that any error did not affect appellant’s substantial rights. See Tex.R.App. Proc. 44.2(b). The State urges us to find that other evidence of appellant's guilt was overwhelming. See Motilla v. State, 78 S.W.3d 352, 359-60 (Tex.Crim.App.2002) (finding relevant factors for harm analysis under Rule 44.2(b) include the character of the alleged error considered in the context of the other evidence of defendant’s guilt in the case). In support of that assertion, the State points to the following testimony. Officer Frederickson stated she discovered appellant failed to register despite a duty to do so. Sergeant Roberts stated he notified appellant of his duty to register. Detective Pratt stated that he examined the out-of-state conviction and determined appellant had a duty to register. And appellant signed a document indicating he had a duty to register. However, this testimony proves only that these individuals believed there was a duty to register and not that appellant had been finally and validly convicted of a reportable offense. Moreover, the State did not rely on this testimony to show appellant was convicted of a reportable offense. We do not find that the improper admission of the penitentiary packet “did not influence the jury, or had but a slight effect” when the record reveals the State, in its closing argument, relied exclusively upon the penitentiary packet to show appellant was previously convicted of a reportable offense and, thus, required to register. See Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App.1998) (stating criminal convictions should not be overturned when the "appellate court ... has fair assurance that the error did not influence the jury or had but a slight effect”).


author: Justice LANG.

text:
    Reynaldo C. PATINO, Appellant, COMPLETE TIRE, INC., Appellee.
    No. 05-04-00561-CV.
    Court of Appeals of Texas, Dallas.
    March 10, 2005.

      Kent Wade Starr, Star <& Associates, Dallas, for Appellant.
    John Walter Reeder, Plano, for Appel-lee.
    Before Justices BRIDGES, RICHTER, and LANG.
   OPINION

Opinion by

Justice LANG.

In two issues, Reynaldo C. Patino challenges the summary judgment and discovery sanctions granted in favor of Complete Tire, Inc. For the reasons below, we resolve Patino’s two issues against him and affirm the trial court’s summary judgment.

I. BACKGROUND

Complete Tire, Inc. hired Patino in May 2002 to remove and repair flat truck tires. According to the allegations in Patino’s original petition, on June 10, 2002, while removing a large flat tire from the rim, he was struck in the head by a piece of pipe and was injured. He received medical attention. Complete Tire, Inc. terminated Patino on July 3, 2002. Patino alleged that Complete Tire, Inc., was negligent in failing to provide training and supervision on the proper method and safety hazards of removing and repairing flat tires and that, as a result of these failures, he was injured.

Complete Tire, Inc. served discovery requests upon Patino, to which Patino served objections and responses. After Patino failed to supplement his answers, Complete Tire, Inc. filed a combined motion to compel and motion for sanctions, asserting that Patino’s answers were deficient. Pa-tino responded to the motion to compel and motion for sanctions and supplemented his discovery responses. After a hearing, the trial court granted the motion to compel. Subsequently, the trial court heard the motion for sanctions and ordered Patino to pay $1,500 in attorney’s fees to Complete Tire, Inc.

Complete Tire, Inc.’s initial motion for no-evidence summary judgment was denied as premature. Subsequently, Complete Tire, Inc. filed a “reasserted” no-evidence motion for summary judgment. Patino responded and supported his response with evidence. The trial court granted the motion for summary judgment. The prior order on discovery sanctions was specifically made a part of the order granting summary judgment. This appeal timely followed.

II. PROPRIETY OF SUMMARY JUDGMENT

In his first issue, Patino contends the trial court erred in granting Complete Tire, Inc.’s no-evidence motion for summary judgment.

A. Standard of Review and Applicable Law

When a motion for summary judgment is presented under rule of civil procedure 166a(i) asserting there is no evidence of one or more essential elements of the nonmovant’s claims upon which the non-movant would have the burden of proof at trial, the burden shifts to the nonmovant to present enough evidence to be entitled to a trial, that is, evidence that raises a genuine fact issue on the challenged elements. Tex.R. Civ. P. 166a(i) & cmt.; Southwestern Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.2002); Gen. Mills Rests., Inc. v. Tex. Wings, Inc., 12 S.W.3d 827, 832 (Tex.App.-Dallas 2000, no pet.). If the nonmovant is unable to provide enough evidence, the trial judge must grant the motion. Gen. Mills Rests., Inc., 12 S.W.3d at 832.

Because a no-evidence summary judgment is essentially a pretrial directed verdict, we apply the same legal sufficiency standard in reviewing a no-evidence summary judgment as we apply in reviewing a directed verdict. Id. at 832-33. Thus, our task as an appellate court is to determine whether the nonmovant produced any evidence of probative force to raise a fact issue on the material questions presented. Id. at 833. We consider all the evidence in the light most favorable to the party against whom the no-evidence summary judgment was rendered, disregarding all contrary evidence and inferences. Id.

Because it is undisputed that Complete Tire, Inc. is a workers’ compensation nonsubscriber, Patino must establish negligence by Complete Tire, Inc. in order to recover. See Werner v. Colwell, 909 S.W.2d 866, 868 (Tex.1995); Tex. Lab.Code Ann. § 406.033(d) (Vernon 2004-05) (providing that, in action against employer who lacks workers’ compensation insurance coverage, “the plaintiff must prove negligence of the employer”). The elements of a negligence cause of action are: (1) the defendant owed a particular duty to the plaintiff; (2) the defendant breached that duty by failing to adhere to a recognized standard of care; and (3) the breach of duty proximately caused the plaintiff injury. See Van Horn v. Chambers, 970 S.W.2d 542, 544 (Tex.1998).

B. Discussion

Initially, we address Patino’s argument in his response and on appeal that Complete Tire, Inc.’s motion for summary judgment was conclusory and did not attack any of the essential elements of his negligence cause of action. If a no-evidence motion for summary judgment is not specific in challenging a particular element or is conclusory, the motion is legally insufficient as a matter of law. Callaghan Ranch, Ltd., v. Killam, 53 S.W.3d 1, 3 (Tex.App.-San Antonio 2000, pet. denied) (citing McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 342 (Tex.1993)); see Cimarron Hydrocarbons Corp. v. Carpenter, 143 S.W.3d 560, 563 (Tex.App.-Dallas 2004, pet. filed).

After stating the elements of a negligence cause of action and the no-evidence summary judgment standard, Complete Tire, Inc.’s “Reasserted No-Evidence Motion for Summary Judgment” states:

Therefore, Defendant is entitled to summary judgment because Plaintiff cannot demonstrate any evidence to support his negligence claims. Specifically, Plaintiff cannot prove the existence of a specific legal duty owned to him, the breach of that duty, that any such breach caused him injury, and that his alleged continuing medical problems are causally related to any alleged injury he suffered as a result of Defendant’s negligence.

We conclude the motion states the elements of Patino’s negligence claim as to which there is no evidence as required by rule 166a(i). See Tex.R. Civ. P. 166a(i); cf. Killam, 53 S.W.3d at 3-4 (concluding that motion stating defendants “are entitled to summary judgment because the Plaintiffs cannot by pleading, deposition, answers to interrogatories or other admissible evidence demonstrate there is any evidence to support the declaratory judgment seeking to declare the road in question a public thoroughfare” and generally challenging plaintiffs factual allegations failed to state elements of causes of action as to which there was no evidence and was legally insufficient). Accordingly, we reject Pati-no’s argument that the motion for summary judgment was legally insufficient.

Next, we address Patino’s argument that the trial court erred in granting the no-evidence motion for summary judgment because he brought forth more than a scintilla of evidence to prove his negligence claim.

1. Standard of Care

An employer has a duty to adequately hire, train, and supervise employees. Allen v. A & T Transp. Co., 79 S.W.3d 65, 70 (Tex.App.-Texarkana 2002, pet. denied). The negligent performance of those duties may impose liability on an employer if the complainant’s injuries result from the employer’s failure to take reasonable precautions to protect the complainant from the misconduct of its employees. Id. Although an employer is not an insurer of its employees’ safety at work, it has a duty to use ordinary care in providing a safe workplace. Id. This includes providing rules and regulations for the safety of employees, warning employees of the hazards of their employment, and supervising their activities. Id. The age and experience of the employee should be considered in measuring the duty of the employer. Id.

As an offshoot of this duty, the employer is also required to instruct employees in the safe use and handling of products and equipment used in and around an employer’s premises or facilities. Id. However, an employer has no duty to adopt safety rules where its business is neither complex nor hazardous or where the dangers incident to the work are obvious or are of common knowledge and fully understood by the employee. Id.

The duty to warn or caution an employee of a danger arises when: (a) the employment is of a dangerous character requiring skill and caution for its safe and proper discharge, and (b) the employer is aware of the danger and has reason to know the employee is unaware of the danger. Id. However, an employer’s duty to instruct applies to an inexperienced employee, but not to one who is experienced in the work he is assigned. Id.

In his response, Patino stated that he had “retained an expert with S3 years of experience in the tire industry who will be testifying regarding training necessary to prevent injuries and deaths of individuals charged with changing large diesel tires.” Patino did not identify the alleged expert. Patino did not attach to his response an affidavit from any person setting forth the standard of care regarding training and supervision of a person with Patino’s experience in tire changing. Patino did not produce any evidence as to his experience or knowledge, Complete Tire, Co.’s knowledge of his experience at the time of the incident, or the specific equipment or procedure for which he lacked training or supervision. Accordingly, we conclude that Patino failed to bring forth any evidence as to the challenged element of standard of care. See Tex.R. Civ. P. 166a(i).

2. Breach of Duty

Patino argues that a breach of an employer’s duty to provide a safe work place for its employees can be established when evidence is provided that training beyond that given by the employer would be necessary or proper by a reasonably prudent employer. See Allsup’s Convenience Stores, Inc. v. Warren, 934 S.W.2d 433, 437 (Tex.App.-Amarillo 1996, writ denied). Here, Patino points to the affidavits of two former co-workers, who stated that they never received any type of training. This is no evidence as to the absence of any training as to Patino.

Patino’s summary judgment evidence included Complete Tire, Inc.’s interrogatory response, in which it stated that, for the first two days of employment, Patino was sent out on calls with an experienced tire technician and “at that time his tire changing technique would have been observed and any necessary comments made concerning adjustments that may have been necessary in his tire changing technique and examples of proper tire changing techniques would have been shown to him” and that “[a] few times after that initial two day period, [Patino] accompanied a more experienced tire technician on an assigned job.” However, Patino presented no evidence showing that training and supervision beyond that given by Complete Tire, Inc. would be necessary or proper by a reasonably prudent employer, that is, the training and supervision Complete Tire, Inc. negligently failed to provide. See id. We conclude that Patino failed to bring forth any evidence showing a breach of any standard of care. See Tex.R.App. P. 166a(i).

3. Causation

Proximate cause comprises two elements: cause in fact and foreseeability. Excel Corp. v. Apodaca, 81 S.W.3d 817, 820 (Tex.2002). The test for cause in fact, or “but for cause,” is whether the act or omission was a substantial factor in causing the injury “without which the harm would not have occurred.” Id. (quoting Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex.1995)). Although it appears that Complete Tire, Inc. acknowledges that Patino was injured while using a tire iron, Patino provided no evidence as to what actually happened and how he was injured. Thus, he provided no evidence linking his injuries to anything Complete Tire, Inc. did or failed to do. See id. at 822. Patino argues that he provided the injury reports of two former employees who were injured “in the exact same’ manner” as he was. But evidence of work-place injury is no evidence that, if Complete Tire, Inc. “had done something different,” Patino would not have been injured or would not have received the specific injuries he claimed. See id. at 820. Accordingly, Patino failed to bring forth any evidence as to the element of causation. See Tex.R.App. P. 166a(i).

Having concluded that Patino failed to bring forth any evidence as to the challenged elements, we resolve his first issue against him.

III. PROPRIETY OF SANCTIONS

In his second issue, Patino contends the trial court erred in granting Complete Tire, Inc.’s, motion for discovery sanctions.

A. Standard of Review and Applicable Law

A trial court’s ruling on a motion for sanctions is reviewed under an abuse of discretion standard. Cire v. Cummings, 134 S.W.3d 835, 838 (Tex.2004). The test for an abuse of discretion is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court’s action, but “whether the court acted without reference to any guiding rules and principles.” Id. at 838-39 (citation omitted). The trial court’s ruling should be reversed only if it was arbitrary or unreasonable. Id. at 839. Sanctions are used to assure compliance with discovery and deter those who might be tempted to abuse discovery in the absence of a deterrent. Id. However, a trial court may not impose a sanction that is more severe than necessary to satisfy its legitimate purpose. Id.; see TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex.1991) (holding that rule of civil procedure 215 requires that any sanctions imposed be just, meaning that they must relate directly to the abuse found and not be excessive).

Texas Rule of Civil Procedure 215.2 allows a trial court to sanction a party for failure to comply with a discovery order or request. Tex.R. Civ. P. 215.2. Pursuant to rule 215.2(b), a trial court may order the disobedient party to pay reasonable expenses, including attorney’s fees, caused by the failure to obey the order. Tex.R. Civ. P. 215.2(b)(8).

B. Discussion

On June 27, 2003, Complete Tire, Inc. sent a request for disclosures, interrogatories, and requests for production to Patino. The parties entered a Rule 11 agreement allowing Patino until August 13, 2003 to respond to the discovery. On August 8, Complete Tire, Inc. received Patino’s responses to discovery. On August 13, Complete Tire, Inc. notified Patino by letter that the discovery responses were “inadequate and incomplete” and required immediate supplementation within ten days. On August 29, when no response was received, Complete Tire, Inc. filed a motion to compel Patino to respond more fully to discovery requests and motion for sanctions.

A hearing on the motion to compel was set for October 10. On October 3, Patino sent amended discovery responses to Complete Tire, Inc. In its order on the motion to compel, the trial court found that Pati-no’s responses were “incomplete and evasive”; the motion to compel was filed after Patino failed to serve supplemental responses within the ten-day deadline; the discovery responses were not amended until October 6, four days before the hearing; and, the amended responses, “while an improvement in some areas,” were incomplete and evasive in other areas. The trial court granted the motion to compel as to many of the responses.

After a hearing on the motion for sanctions, the trial court signed a supplemental order on the motion to compel discovery and motion for sanctions, in which it “reference[d] the findings it made in its prior order” on the motion to compel and found that an award of $1,500 in attorney’s fees associated with compelling responses to discovery was appropriate.

Patino argues that the discovery requests were overly broad and were not limited as to a time period. However, as detailed above, the record shows that Pati-no asked for and was granted additional time to answer, provided insufficient answers, and developed his answers further only in response to a motion to compel. Even after providing supplemental answers, the trial court found those answers to be “incomplete and evasive.” On this record, we conclude the trial court did not abuse its discretion in granting Complete Tire, Inc.’s motion for sanctions. See Cire, 134 S.W.3d at 838-39. We resolve Pati-no’s second issue against him.

IV. CONCLUSION

Having resolved Patino’s two issues against him, we affirm the trial court’s summary judgment.


author: Justice CASTILLO.

text:
    Silverio ZUNIGA and Refugia Zuniga, Appellants, v. NAVARRO & ASSOCIATES, P.C. and Rashay A. Koster Chapa, Individually, Appellees.
    No. 13-01-00852-CV.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    March 10, 2005.
    Rehearing Overruled April 7, 2005.

      Randall P. Crane, Law Office of Randall P. Crane, San Benito, for appellants.
    Ruben R. Pena, Law Office of Ruben R. Pena, P.C., Harlingen, for appellees.
    Before Justices HINOJOSA, YÁÑEZ, and CASTILLO.
   OPINION

Opinion by

Justice CASTILLO.

Appellants Silverio Zuniga and his wife Refugia Zuniga sued appellees Navarro & Associates, P.C., and Rashay A. Koster Chapa, an associate in the Navarro law firm. The trial court granted Navarro and Chapa’s traditional motion for summary judgment on their affirmative defenses of governmental and official immunity. This appeal ensued. In five issues, appellants complain that Navarro and Chapa: (1) failed to prove that they were employees of a governmental entity; (2) exceeded the scope of their authorized employment; (3) failed to prove performance of discretionary acts; (4) failed to prove good faith; and, (5) filed a conclusory summary-judgment affidavit. Because Navarro and Chapa did not prove the elements of agency and good faith necessary to their affirmative defense, we reverse the summary judgment and remand the case to the trial court.

I. BACKGROUND

In the summer of 1999, the San Benito Consolidated Independent School District (“SBCISD”) advertised a foreclosed-upon home in Cameron County to be sold in a tax sale. SBCISD had contracted with Navarro to “enforce by suit or otherwise the collection of all delinquent taxes, penalties, and interest” related to the school district. Interested in purchasing the home and claiming they were inexperienced in the workings of a sheriffs sale for delinquent taxes, the Zunigas contacted Chapa to determine whether the home could be safely purchased. According to the Zunigas, Chapa informed the Zunigas that the property could be safely purchased as a title search had revealed no outstanding liens or other title defects. The Zunigas eventually purchased the home, paying $90,000.00 for the property in question. After the purchase, the Zuni-gas learned that excess proceeds from the sale were deposited in the court’s registry. The trial court authorized the former owner, Saul Carbajal, to withdraw the excess funds, totaling $83,467.63, from the court’s registry. Although the trial court subsequently ordered the funds returned to the registry, Carbajal filed for bankruptcy relief and did not return the funds.

Meanwhile, the Zunigas discovered that Associates Financial Corporation of Delaware (“AFCD”) held a lien on the property in excess of $120,000. AFCD foreclosed on the property. The Zunigas sued Navarro, Chapa, and AFCD to recover their investment.

In their live pleading, the Zunigas alleged various causes of action including misrepresentation, deceptive trade practices, consumer protection violations, and statutory and common law fraud. In their unverified answer, Navarro and Chapa asserted their affirmative defenses of sovereign or official immunity and capacity. They subsequently filed a traditional motion for summary judgment on their affirmative defenses of governmental and official immunity. The Zunigas filed their response. The trial court granted the motion. The Zunigas filed a motion for new trial as well as a motion to sever, requesting the causes of action against Navarro and Chapa be severed from the cause of action against AFCD. The court granted the motion to sever but denied the Zuni-gas, motion for new trial. This appeal ensued.

II. JURISDICTION

The initial inquiry for our court is always whether we have jurisdiction over an appeal. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex.1993). The question of jurisdiction is a legal issue. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998). Therefore, we follow the de novo standard of review. Id. A court’s jurisdiction is never presumed. Alaniz v. Hoyt, 105 S.W.3d 330, 335 (Tex.App.-Corpus Christi 2003, no pet.) (citing El-Kareh v. Tex. Alcoholic Beverage Comm’n, 874 S.W.2d 192, 194 (Tex.App.-Houston [14th Dist.] 1994, no writ)). If the record does not affirmatively demonstrate the appellate court’s jurisdiction, the appeal must be dismissed. Id. Absent an express grant of authority, we do not have jurisdiction to review an interlocutory order. Steeple Oil & Gas Corp. v. Amend, 394 S.W.2d 789, 790 (Tex.1965) (per curiam); see Tex. Civ. Prac. & Rem.Code Ann. § 51.014 (Vernon Supp.2003). Therefore, before we consider the issues, we first must determine if the order granting summary judgment is a final judgment.

The order granting summary judgment reads as follows:

On this 20th day of September, 2001, [the] Motion for Summary Judgment was considered. Upon consideration of the pleadings, argument and authority submitted by the parties, this Court is of the opinion that the Defendants’] Motion for Summary Judgment should be GRANTED.
IT IS THEREFORE, ORDERED AD-JUDED [sic] AND DECREED, that the Defendant[s’] Motion for Summary Judgment is hereby GRANTED in its entirety.

After examining the pleadings and summary-judgment record, we conclude that the order disposes of all pending parties and claims. See Guajardo v. Conwell, 46 S.W.3d 862, 863-64 (Tex.2001) (per curiam). Accordingly, we find that the order is a final judgment over which we have jurisdiction. See id. We turn to the issues on appeal.

III. STANDARD OF REVIEW

The function of summary judgment is to eliminate patently unmeritorious claims and defenses, not to deprive litigants of the right to a jury trial. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 n. 5 (Tex.1979); Swilley v. Hughes, 488 S.W.2d 64, 68 (Tex.1972). On appeal, the standard of review for the grant of a motion for summary judgment is determined by whether the motion was brought on no-evidence or traditional grounds. Tex.R. Civ. P. 166a(i), (c); Ortega v. City Nat’l Bank, 97 S.W.3d 765, 771 (Tex.App.-Corpus Christi 2003, no pet. h.) (op. on reh’g). We review de novo a trial court’s grant or denial of a traditional motion for summary judgment. Ortega, 97 S.W.3d at 772. The movant bears the burden of showing both no genuine issue of material fact and entitlement to judgment as a matter of law. See Tex.R. Civ. P. 166a(e); see also Ortega, 97 S.W.3d at 771. In deciding whether there is a genuine issue of material fact, we take evidence favorable to the non-movant as true. Ortega, 97 S.W.3d at 771. We make all reasonable inferences and resolve all doubts in favor of the non-movant. Id.

When a defendant moves for summary judgment based on an affirmative defense such as official immunity, the movant must prove all elements of the defense. City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex.1994). In making this determination, we apply the well-established standards for review of summary judgment. See Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985). If a summary judgment is granted generally, without specifying the reason, it will be upheld if any ground in the motion for summary judgment can be sustained. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989); Weakly v. East, 900 S.W.2d 755, 758 (Tex.App.-Corpus Christi 1995, writ denied).

IV. THE RECORD

A. The Motion and Evidence

As grounds in their motion for summary judgment, Navarro and Chapa asserted they were immune from any claim because of the doctrine of sovereign or governmental immunity and official immunity. Navarro and Chapa pointed to section 101.055 of the civil practice and remedies code as providing statutory protection from liability because they were delinquent tax attorneys performing a governmental function for a governmental unit and the attorney-client relationship was an agency relationship. Their sole summary judgment evidence was Chapa’s affidavit, which states:

Navarro & Associates, P.C., is employed by the San Benito Consolidated Independent School District to enforce the collection of the School Districts’ [sic] ad valorem taxes. In the scope of that employment, Navarro and Associates, P.C. is the agent for the San Benito School District’s delinquent tax collection.
On December 3, 1998, a law suit was filed on behalf of the San Benito CISD, case number 98-12-4836-C, against Saul Carbajal as the owner of [the property in question].
Thereafter on May 19, 1999, the San Benito CISD recovered a judgment in suit number 98-12-4836-C, and subsequently an order of sale was issued on July 8, 1999, to foreclose the tax lien.
The Cameron County Sheriffs Department levied upon the property on July 8, 1999, and the property was advertised for sale at public auction in accordance with the law. Thereafter on August 1, 1999, the property securing the tax lien was sold by the Cameron County Sheriffs Department to the highest bidder for $90,000. The sale produced excess proceeds of $83,467.63 which were deposited with the district clerk who issued the order of sale, as provided by law.
On September 8, 1999, without notice to any of the parties as required by law, the Court ordered the release of the excess proceeds to the prior owner/defendant Saul Carbajal. Subsequently, the Court ordered Saul Carbajal to return the excess proceeds to the clerk of the court in the amount of $83,467.63. Saul Carbajal has not yet returned the excess proceeds to the Court as ordered, but has filed for Bankruptcy instead.
At all times relevant to the filing of the lawsuit and foreclosure of the tax lien of the property in question, I, Ra-shay Koster Chapa, was acting in the scope of my authority as an associate attorney for Navarro & Associates, P.C., and in the scope of my employment with the San Benito CISD as their delinquent tax attorney. At all times relevant, Navarro & Associates, P.C., was employed by the San Benito CISD as their delinquent tax attorneys.

C. The Zunigas’ Response

We note that a non-movant in a summary judgment proceeding is not required to produce summary judgment evidence until after the movant establishes it is entitled to summary judgment as a matter of law. Casso v. Brand, 776 S.W.2d 551, 556 (Tex.1989). In fact, the non-movant “needs no exception, answer or response to the motion to contend on appeal that the grounds expressly presented to the trial court by the movant’s motion are insufficient as a matter of law to support the summary judgment.” McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 342 (Tex.1993). In addition, a plaintiff can bar a defendant’s entitlement to a summary judgment by responding with evidence that creates a fact question on at least one element of each affirmative defense advanced by the defendant. Poncar v. Mission, 797 S.W.2d 236, 239 (Tex.App.-Corpus Christi 1990, no writ); see also Payne v. City of Galveston, 772 S.W.2d 473, 475 (Tex.App.-Houston [14th Dist.] 1989, writ denied); Byrd Int’l of Dallas, Inc. v. Elec. Data Sys. Corp., 629 S.W.2d 177, 178 (Tex.App.-Dallas 1982, writ refd n.r.e.).

In their response, the Zunigas stated that governmental immunity did not apply because: (1) they did not sue Navarro and Chapa for their acts in foreclosing on or selling the property; (2) they based their claims on misrepresentations made outside of the foreclosure or tax collection process; (3) as governmental immunity applies only to a sovereign or an official, and a law firm is neither, governmental immunity provided no defense for Navarro; (4) Navarro’s contract with SBCISD neither authorized Chapa to make representations concerning the property nor authorized her to provide information to potential purchasers; and, (5) Navarro and Chapa exceeded the scope of their authority.

To their response, the Zunigas attached two verified exhibits: (1) the flyer posted to advertise the tax sale of the property in question; and, (2) the contract between SBCISD and Navarro. The Zunigas also attached a joint affidavit. In their affidavit, the Zunigas stated: (1) they received a flyer sent out by SBCISD and became interested in one of the properties to be sold; (2) they were not familiar with matters pertaining to real estate and attempted to gain information from SBCISD; (3) school district personnel would not or could not answer their questions and referred them to Chapa; (4) they contacted Chapa and asked her “several legal questions about the property”; (5) those questions included “whether or not it was safe” for the Zunigas to invest their life savings in the property; (6) Chapa informed them that “title to the property had been checked for liens and there were none”; (7) when they spoke to Chapa immediately before the tax sale, she once again assured them that they would be safe buying the property “since there were no outstanding Hen holders who had not been notified of the sale;” (8) they rehed on this information when they bid on and purchased the property; (9) they were notified approximately a year after their purchase of AFCD’s outstanding lien in excess of $100,000 on the property; and, (10) at about the same time, they learned that their $90,000 was used to pay the delinquent taxes owed, the remaining funds were deposited into the court’s registry, and the court allowed Carbajal to withdraw the excess funds.

V. IMMUNITY

Navarro and Chapa moved for summary judgment based on the affirmative defenses of governmental and official immunity. Governmental immunity encompasses two principles: immunity from liability and immunity from suit. Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 405 (Tex.1997). Immunity from suit protects the state from being sued without its consent. Texas DOT v. Jones, 8 S.W.3d 636, 638 (Tex.1999). Absent the state’s, or in this case the school district’s agent’s consent to suit, a trial court lacks subject matter jurisdiction. See id.

It is well settled that a motion for summary judgment may be based on the affirmative defense of governmental immunity. Shives v. State, 743 S.W.2d 714, 715 (Tex.App.-El Paso 1987, writ denied); see also Davis v. City of San Antonio, 752 S.W.2d 518, 519-20 (Tex.1988). A trial court should grant a defendant’s motion for summary judgment if it either disproves at least one essential element of each of the plaintiffs causes of action or establishes all the elements of an affirmative defense. Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997). In the latter instance, every factual element of an affirmative defense must be conclusively estabHshed. Poncar, 797 S.W.2d at 239; Emmer v. Phillips Petroleum Co., 668 S.W.2d 487, 490 (Tex.App.-Amarillo 1984, no writ); see also Montgomery v. Kennedy, 669 S.W.2d 309 (Tex.1984). Therefore, a defendant must establish each element of official immunity conclusively in order to obtain summary judgment on that defense. City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex.1994). A defendant asserting sovereign or governmental immunity must prove conclusively that they are eligible to take advantage of that affirmative defense as well. Cameron County v. Carrillo, 7 S.W.3d 706, 709 (Tex.App.-Corpus Christi 1999, no pet.) and Herrera v. Spencer, No. 13-02-386-CV, 2003 WL 22349599, at *1 (Tex.App.-Corpus Christi Oct. 16, 2003, no pet.) (citing Shah v. Moss, 67 S.W.3d 836, 842 (Tex.2001)).

A. Official Immunity

Official immunity inures to all governmental employees who perform discretionary functions in good faith and within their authority. City of Lancaster, 883 S.W.2d at 653. In order to obtain summary judgment on the basis of governmental immunity, the movant must conclusively establish that the employee in question was: (1) performing discretionary duties; (2) that were within the scope of the employee’s authority; and (3) the employee acted in good faith. Telthorster v. Tennell, 92 S.W.3d 457, 461 (Tex.2002); Kassen v. Hatley, 887 S.W.2d 4, 9 (Tex.1994). If we find that the movant established the affirmative defense of official immunity as a matter of law, we then must consider whether the non-movant produced summary judgment proof raising a fact issue that would defeat summary judgment on that basis. See Gonzalez v. City of Harlingen, 814 S.W.2d 109, 112 (Tex.App.-Corpus Christi 1991, writ denied).

B. Sovereign Immunity

Sovereign immunity and official immunity are not synonymous. Official immunity protects individual officials from liability DeWitt v. Harris County, 904 S.W.2d 650, 653 (Tex.1995). Sovereign immunity protects the state, state agencies, and other governmental entities from lawsuits for damages. Gen. Servs. Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591, 594 (Tex.2001). The law is well settled in this state that an independent school district is an agency of the state and, while exercising governmental functions, is not answerable for its negligence in a suit sounding in tort. Barr v. Bernhard, 562 S.W.2d 844, 846 (Tex.1978); see, e.g., Braun v. Trs. of Victoria Indep. School Dist., 114 S.W.2d 947 (Tex.Civ.App.-San Antonio 1938, writ ref'd); Coleman v. Beaumont Indep. School Dist., 496 S.W.2d 245 (Tex.Civ.App.-Beaumont 1973, writ ref'd n.r.e.).

VI. ANALYSIS

Navarro and Chapa asserted that they were immune from liability under the doctrines of sovereign and official immunity. The trial court agreed.

A. Official Immunity

In deciding whether summary judgment proof conclusively establishes the official-immunity defense, we must determine whether there are disputed facts material to its elements. See Tennell, 92 S.W.3d 457 at 461. In this case, in their first issue, the Zunigas dispute that Navarro and Chapa were employees or agents of a governmental entity. In their second issue, the Zunigas complain Navarro and Chapa exceeded the scope of their authority. In their third issue, the Zunigas dispute that Navarro and Chapa were performing discretionary acts. In their fourth issue, the Zunigas state Navarro and Chapa provided no evidence of good faith.

1. The Agent-Employee Question

In their first issue, the Zunigas complain that Navarro and Chapa failed to prove they were agents or employees of a governmental entity and, thus, entitled to immunity. As grounds for summary judgment, Navarro and Chapa relied on their contractual relationship with SBCISD to prove that they are immune to liability in this case. They asserted that Chapa’s summary-judgment affidavit established the “employment-agency relationship” between Navarro and SBCISD. They added that Chapa could not be held liable in her individual capacity as Navarro’s employee. Navarro and Chapa pointed to section 101.001 of the civil practice and remedies code, asserting that they were “attorneys-agents” of the school district entitled to sovereign or governmental immunity. See Tex. Civ. P. & Rem.Code § 101.001 et seq. (Vernon Supp.2004-2005).

“Employee” means a person, including an officer or agent, who is in the paid service of a governmental unity by competent authority, but does not include an independent contractor, an agent or employee of an independent contractor, or a person who performs tasks the details of which the governmental unit does not have the legal right to control. Tex. Civ. Prac. & Rem.Code § 101.001(2) (Vernon Supp.2004-05). In general, a “governmental unit” is an agency or political subdivision of the state. Tex. Civ. Prac. & Rem.Code § 101.001(3)(A) and (B) (Vernon Supp.2004-2005). Thus, to be an employee, a person must be under the control and direction of the alleged employer. Rodriguez v. Texas Dept. of MHMR, 942 S.W.2d 53, 56 (Tex.App.-Corpus Christi 1997, no writ) (writing in the context of the Texas Torts Claims Act and sovereign immunity).

An independent contractor, on the other hand, is only responsible to its employer for the result of the work to be performed. Clark v. Texaco, 382 S.W.2d 953, 958 (Tex.App.-Dallas 1964, writ ref. n.r.e.); see also Sherard v. Smith, 778 S.W.2d 546, 548 (Tex.App.-Corpus Christi 1989, writ denied). The test to determine whether a worker is an employee rather than an independent contractor is whether the employer has the right to control the progress, details, and methods of operations of the work. Limestone Prods. Distrib. v. McNamara, 71 S.W.3d 308, 312 (Tex.2002); (citing Thompson v. Travelers Indem. Co., 789 S.W.2d 277, 278 (Tex.1990)); see also Farrell v. Greater Houston Transp. Co., 908 S.W.2d 1, 3 (Tex.App.-Houston [1st Dist] 1995, writ denied). The party who relies on the existence of an alleged relationship has the burden of proving that such an agency relationship exists. Bernsen v. Live Oak Ins. Agency, 52 S.W.3d 306, 309 (Tex.App.-Corpus Christi 2001, no pet.). If a firm is found to be an independent contractor, it is not entitled to the defense of sovereign immunity. Gonzalez v. Heard, Goggan, Blair, & Williams, 923 S.W.2d 764, 765 (Tex.App.-Corpus Christi 1996, writ denied).

Here, Chapa’s affidavit comprised the only proof to show Navarro and Chapa were “employee-agents” of SBCISD entitled to immunity. Chapa’s affidavit claimed: (1) Navarro was the agent for SBCSD; and (2) she was an associate of Navarro. Essentially, Navarro and Cha-pa’s theory in their motion and now on appeal is that the law firm representing a governmental entity is shielded from suit by the same immunity that protects the unit of government. See Gonzalez, 923 S.W.2d at 765.

Affidavits consisting only of conclusions are insufficient to raise an issue of fact. Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex.1984). An affidavit supporting a motion for summary judgment must set forth facts, not legal conclusions. See Krishnan v. Law Offices of Preston Henrichson, P.C., 83 S.W.3d 295, 299 (Tex.App.-Corpus Christi 2002, pet. denied). However, this does not mean that logical conclusions based on stated underlying facts are improper. Montemayor v. Cha pa, 61 S.W.3d 758, 764 (Tex.App.-Corpus Christi, 2001, no pet.).

Chapa’s affidavit provides no underlying facts to support the conclusion that Navarro was an agent of a governmental entity. The affidavit provides no facts to support the conclusion that she was an employee-agent of the same sovereign. Indeed, left unaddressed is whether SBCISD, the governmental unit, retained the legal right to control. Tex. Civ. Prac. & Rem.Code § 101.001(2) (Vernon Supp.2004-05).

This court’s decision in Gonzalez addressed a situation very similar to the case at hand. Gonzalez, 923 S.W.2d at 765. In that case, Cameron County, the City of Harlingen, and the Harlingen Independent School District employed a law firm to collect ad valorem taxes on their behalf. Similar to this case, the summary judgment evidence offered by the law firm consisted of copies of the contracts between the law firm and the city. The court found that the law firm did not prevail on their theory of immunity because the firm failed to prove that the “taxing authorities had the right to control the details of the work or other criteria that would distinguish the relationship of employee from that of independent contractor.” Gonzalez, 923 S.W.2d at 766. This court found that there was at the very least a question of fact as to the status of the appellee law firm, namely, whether or not the firm was an independent contractor or an agent-employee. We found that the law firm did not establish as a matter of law that it was the agent of the taxing authorities and reversed the summary judgment granted in favor of the law firm. Id.

We hold that Navarro and Chapa did not establish as a matter of law that they were agents-employees of SBCISD.

2. The Good Faith Element

In their fourth issue, the Zunigas complain that Navarro and Chapa failed to prove the good faith element of their immunity defense. Even assuming that Navarro and Chapa established the agency-employee relationship with SBCISD, Navarro and Chapa were required to prove good faith. Telthorster, 92 S.W.3d at 461; Kassen v. Hatley, 887 S.W.2d at 9.

Good faith may be established by the official’s own affidavit. Vela v. Rocha, 52 S.W.3d 398, 405 (Tex.App.-Corpus Christi 2001, no pet.). The testimony must be clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and must be readily controvertible. Id. Good faith in official immunity cases must be measured against a standard of objective legal reasonableness, without regard to the actor’s subjective state of mind. Hidalgo County v. Gonzalez, 128 S.W.3d 788, 794 (Tex.App.Corpus Christi 2004, no pet.). Mere con-clusory statements by an affiant that a reasonable official could have taken the same action are insufficient to establish good faith. Wadewitz v. Montgomery, 951 S.W.2d 464, 466-67 (Tex.1997).

Chapa’s affidavit does not provide facts to support the element of good faith. Indeed, it does not address the element. Thus, Navarro and Chapa did not establish as a matter of law the element of good faith.

B. Sovereign Immunity

In their summary judgment response, the Zunigas clarify that they sued Navarro for its own actions involving information provided the Zunigas and not for the actions of the taxing entity SBCISD. The summary-judgment affidavit does not address this critical distinction. Nevertheless, sovereign immunity is the doctrine through which the government is not answerable to suit or to damages in its own courts unless it consents to be sued. Gonzalez, 923 S.W.2d at 765-66. The immunity is that of a government or its subdivision and is an incident of sovereignty; that is, the power and right to govern. Id. Sovereignty has not resided in a person in Texas since independence from the Spanish monarchy in 1821. Id. The immunity from suit that applies to individuals who are officials of the government is official immunity not sovereign immunity. Id. The law firm is not a state, state agency, or other governmental entity. Tex. Civ. Prac. & Rem.Code § 101.001(8) (Vernon Supp.2004-2005). Neither is an associate of the law firm. Id. Thus, Navarro and Chapa, a law firm and an associate in that law firm, are not sovereigns entitled to immunity. See Gonzalez, 923 S.W.2d at 765-66. Sovereign immunity protects governmental entities from lawsuits for damages. Gen. Servs. Comm’n, 39 S.W.3d at 594; see Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 695 n. 3 (Tex.2003). Accordingly, Navarro and Chapa did not show they were entitled to sovereign immunity as a matter of law. We conclude summary judgment on the ground of sovereign immunity was improper.

VII. DISPOSITION

The summary-judgment evidence fails to definitively establish that Navarro and Chapa were agents or employees of a governmental entity acting in good faith. Thus, we conclude that Navarro and Cha-pa did not establish as a matter of law that they were entitled to official immunity. Because neither is a sovereign, and, indeed, the Zunigas sued on other than the acts of a sovereign, summary judgment was improper on the ground of sovereign immunity. Having reviewed, as we must, the summary judgment de novo, we sustain the Zunigas’ first and fourth issues. We need not address the remaining issues presented. See Tex.R.App.P. 47.1.

VIII. CONCLUSION

We reverse the summary judgment and remand the case to the trial court.

      . By our recitation of the facts as they appear in the appellate record of this case, we do not resolve any factual disputes that may exist.

      . Civil Practice and Remedies Code § 101.055 states:
      This chapter does not apply to a claim arising:
      (1) in connection with the assessment or collection of taxes by a governmental unit. (Vernon 1997).