author: Justice WRIGHT.

text:
    In re SIEMENS CORPORATION, Siemens Aktiengesellschaft, Siemens Information and Communication Networks, Inc., and Efficient Networks, Inc., Relators.
    No. 05-04-01560-CV.
    Court of Appeals of Texas, Dallas.
    Jan. 14, 2005.

      George Walter Bramblett, Jr., W. Alan Wright, Haynes & Boone, L.L.P., Dallas, Gregg F. LoCascio, Elizabeth Petrela Pa-pez, Kirkland & Ellis LLP, Washington, DC, for Relators.
    G. Michael Gruber, Godwin Gruber LLP, Dallas, for Real Party In Interest.
    Before Justices WRIGHT, O’NEILL, and LANG.
   OPINION

Opinion by

Justice WRIGHT.

In this original proceeding, we must decide whether the trial court abused its discretion by declaring invalid Dallas County local rules that allow the transfer of cases from district courts to statutory county courts. The trial court determined such transfers are not authorized by statute and violate the Texas Constitution.

Because we conclude the trial court abused its discretion by declaring the Dallas County local rules invalid, we conditionally grant the writ on that ground. We remand to the trial court the question of whether this case should be transferred to the County Court at Law Number 5 pursuant to the local rules.

Background

The real parties in interest, a group of former and current employees of Efficient Networks, Inc., sued relators Siemens Corporation, Siemens Aktiengesellschaft, Siemens Information and Communication Networks, Inc., and Efficient Networks, Inc. (collectively Siemens) in the 193rd District Court for breach of contract and fraud. Because a similar case was pending in the County Court at Law Number 5, Siemens asked the county court to transfer this case from the district court to the county court pursuant to the Dallas County local rules. After some discussion, the county court judge determined that if the parties could not agree to consolidate the case, Siemens should seek permission to transfer the case from the district court judge before the county court judge would transfer the case. Siemens then filed its motion to transfer in the district court, asking the judge to.either (1) transfer the case to the county court or (2) deny the motion and defer to the county court the decision to transfer in accordance with the local rules.

After a hearing, the district court denied Siemens’ motion and made findings of fact and conclusions of law. The trial court determined, among other things, Dallas County’s local rules allowing transfer of a case from district court to a statutory county court are invalid because they are not authorized by statute and they violate the constitutional right to a twelve-person jury. This original proceeding followed.

Statutory Authority

We begin our discussion with the first of the trial court’s determinations, i.e., that the Dallas County local rules allowing transfer of a case from district court to a statutory county court are not authorized by statute. In making this determination, the trial court considered sections 74.093 and 74.121 of the government code. Respectively, these statutes provide for (1) the adoption of local rules governing transfer of cases, and (2) the transfer of cases and exchange of benches between certain courts.

The trial court reasoned that although section 74.121(b)(1) does not expressly authorize or prohibit transfer of cases from district courts to county courts, subsection (b)(2), a special statute governing the transfer of cases and exchange of benches in Midland County, shows the legislature did not intend to allow local district and county judges to adopt rules allowing for the transfer of cases from district courts to statutory county courts. The trial court explained “if Midland County could just adopt local rules pursuant to section 74.093, there would have been no need for section 74.121(b).” We disagree.

It is a cardinal rule of statutory construction that we are to give effect to the intent of the legislature. Fleming Foods of Tex. v. Rylander, 6 S.W.3d 278, 284 (Tex.1999). If the language in a statute is unambiguous, we must seek the intent of the legislature as found in the plain and common meaning of the words and terms used. Sorokolit v. Rhodes, 889 S.W.2d 239, 241 (Tex.1994). In applying the plain and common meaning of the language in a statute, courts may not by implication enlarge the meaning of the statute beyond its ordinary meaning; such implication is inappropriate when legislative intent may be gathered from a reasonable interpretation of the statute as it is written. See id.

Section 74.093 of the Texas Government Code provides that the district and statutory county court judges in each county shall, by majority vote, adopt local rules of administration. The local rules must provide for, among other things, the assignment, docketing, transfer, and hearing of all cases, subject to the jurisdictional limitations of the district courts and statutory county courts. See Tex. Gov’t Code Ann. § 74.093 (Vernon 1998). Thus, under the statute, the only limitation on local rules governing transfer of cases within a county is that the case must be transferred to a court that has jurisdiction over the case.

Section 25.0003 of the government code sets out the jurisdiction of statutory county courts in Texas. Tex. Gov’t Code Ann. § 25.0003 (Vernon 2004). Section 25.0592, however, specifically addresses jurisdiction of Dallas County’s statutory county courts. Under that provision, a county court at law in Dallas County has “concurrent jurisdiction with a district court in civil cases regardless of the amount in controversy.” Tex. Gov’t Code Ann. § 25.0592(a) (Vernon 2004). Because the two courts now have concurrent jurisdiction, the jurisdictional limitation on transfers contained in section 74.093 is not implicated in this case. Accordingly, we conclude section 74.093 authorizes the adoption of local rules of administration providing for the transfer of cases from district courts in Dallas County to statutory county courts in Dallas County. See In re Stark, 126 S.W.3d 635, 639 (Tex.App.-Beaumont 2004, orig. proceeding) (finding local rules may provide transfer from district courts to county courts when county court has jurisdiction and is authorized by local rules).

In reaching this conclusion, we necessarily reject the trial court’s reliance on section 74.121(b)(2) to reach a different result. Section 74.121(b)(2) is a special statute enacted solely for Midland County. The statute authorizes statutory county court judges and district court judges in Midland County to exchange benches and transfer cases under the same rules applicable to district court judges. Granting the courts in Midland County the special ability to transfer cases and exchange benches in a manner not otherwise permitted does not preclude the district to county court transfers allowed under Dallas County’s local rules; and we will not, by implication, enlarge the meaning of the statute beyond its ordinary meaning. Because section 74.121(b)(2) makes no reference to, and is not a restriction on, a district court’s authority to transfer a case to a statutory county court under Dallas County’s local rules, it does not invalidate the local rules governing case transfers.

Constitutional Validity

The trial court also determined the local rules violated the Texas Constitution. In particular, the trial court found that allowing the transfer of cases from district courts to statutory county courts “strips a party of its constitutional right to a ‘minimum 9 person jury.’ ” We disagree with the trial court for two reasons.

First, we cannot agree that a party, by filing a case in district court, is automatically vested with a constitutional right to a twelve-person jury revocable only at the party’s pleasure. Although the Texas Constitution’s Bill of Rights provides that “[t]he right of jury trial shall remain inviolate,” it also mandates that the legislature “shall pass laws as may be needed to regulate same, and to maintain purity and efficiency.” Tex. Const, art. I, § 15. Article V, section 13 of the Texas Constitution provides that juries in district courts shall be composed of twelve persons, and that in trials of civil cases, “nine members of the jury, concurring, may render a verdict. ...” Tex. Const, art. V, § 13. Thus, article V, section 13 governs the number of jurors in trials conducted in district court. We will not enlarge its meaning to include an irrevocable right to a twelve-person jury in every case filed (but not heard) in district court. There is nothing in the language of article V, section 13 prohibiting the transfer of a case out of the district court to a statutory county court, and the trial court’s finding to the contrary is erroneous.

Second, the size of a jury is not a jurisdictional matter. “Jurisdiction” refers to a court’s authority to adjudicate a case. Reiss v. Reiss, 118 S.W.3d 439, 443 (Tex.2003); Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 75 (Tex.2000); Kshatrya v. Tex. Workforce Comm’n, 97 S.W.3d 825, 829 (Tex.App.-Dallas 2003, no pet.). Jurisdiction deals with the power of a court to determine an action involving a particular subject matter as between the parties and render a certain judgment. Dubai, 12 S.W.3d at 75. Here, there is no allegation that the present case is not within the subject-matter jurisdiction of the statutory county court. As stated previously, the county courts in Dallas County have concurrent jurisdiction with district courts in Dallas County regardless of the amount in controversy. See Tex. Gov’t Code Ann. § 25.092(a) (Vernon 2004). The size of a jury has no impact upon a trial court’s power to act in a particular case when jurisdiction has otherwise been conferred upon it. Therefore, we cannot agree with the trial court’s determination to the contrary.

Adequate Remedy

Having concluded that the Dallas County local rules allowing for transfer of cases from district court to statutory county courts are neither statutorily nor constitutionally infirm, we turn to whether Siemens is entitled to relief by mandamus. Siemens must meet two requirements. One is to show that the trial court clearly abused its discretion. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135 (Tex.2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex.1992) (orig. proceeding). Because a trial court has no “discretion” in determining the law or the application of the law to the facts, the trial court’s determination that the Dallas County local rules were invalid was a clear abuse of discretion. See Prudential, 148 S.W.3d at 135. Thus, Siemens has met the first requirement.

Siemens must also show that it has no adequate remedy by appeal. Id. at 135-36. The operative word “adequate” has no comprehensive definition; it is simply the careful balance of jurisprudential considerations that determine when appellate courts will use original mandamus proceedings to review the actions of lower courts. Id. at 136. These considerations implicate both public and private interests. Id. Mandamus review of incidental, interlocutory rulings by the trial courts unduly interferes with trial court proceedings, distracts appellate court attention to issues that are unimportant both to the ultimate disposition of the case at hand and to the uniform development of the law, and adds unproductively to the expense and delay of civil litigation. Id. However, mandamus review of significant rulings in exceptional cases may be essential to preserve important substantive and procedural rights from impairment or loss, allow the appellate courts to give needed and helpful direction to the law that would otherwise prove elusive in appeals from final judgments, and spare private parties and the public the time and money utterly wasted enduring eventual reversal of improperly conducted proceedings. Id. We conclude this is such an exceptional case.

The issue — whether the local rules allowing transfer of cases from district courts to statutory county courts — fits well within the types of issues for which mandamus review is not only appropriate but necessary. It is an issue of law, one of first impression for this Court, but likely to recur. All cases pending in Dallas County are governed by the local rules and potentially affected by this decision. In addition, other Texas counties may have the same or similar local rules and may face a similar issue. Because the trial court’s erroneous ruling has a far-reaching and imminent impact on the operation of courts in Dallas County and beyond, we conclude mandamus relief is appropriate. See Prudential, 148 S.W.3d at 135-140; CSR Ltd. v. Link, 925 S.W.2d 591, 596 (Tex.1996) (orig. proceeding) (a pretrial ruling for which an appeal is usually an adequate remedy may not be remediable by appeal due to extraordinary circumstances).

Having concluded the trial court abused its discretion in holding the Dallas County local rules allowing transfer from district court to a statutory county court statutorily and constitutionally invalid, we conditionally grant the writ. The trial court is ordered to vacate its orders and findings of fact and conclusions of law signed October 6 and 7, 2004. The trial court is ordered to file a certified copy of its order in compliance with this opinion with this Court within thirty days of the date of this opinion. Should the trial court fail to do so, the writ will issue. We make no ruling on whether any motion to transfer pursuant to the Dallas County local rules should be granted in this case.

      . Dallas County Local Rule 1.06 provides as follows:
      Whenever any pending case is so related to another case previously filed in or disposed of by another Court of Dallas County having subject matter jurisdiction that a transfer of the later case to such other Court would facilitate orderly and efficient disposition of the litigation, the Judge of the Court in which the earlier case is or was pending may, upon notice to all affected parties and Courts and hearing, transfer the later case to such Court.
      Dallas (Tex.) Civ. Dist. Ct. Loe. R. 1.06.
      Dallas County Local Rule 1.07 provides that, among others, ”[a]ny case arising out of the same transaction or occurrence as an earlier case, particularly if the earlier case was dismissed by plaintiff before final judgment” shall be subject to transfer under Local Rule 1.06. Dallas (Tex.) Civ Dist. Ct. Loe. R. 1.07.

      . Section 74.121(b)(2) provides:
      Notwithstanding Subdivision (1), in matters of concurrent jurisdiction, a judge of a statutory county court in Midland County and a judge of a district court in Midland County may exchange benches and courtrooms with each other and may transfer cases between their dockets in the same manner that judges of district courts exchange benches and transfer cases under Section 24.303.
      Tex. Gov't Code Ann. § 74.121(b)(2) (Vernon 1998).

      . To the extent the real parties in interest contend the trial court also ruled on the merits of the transfer request, we cannot agree. We recognize that the order denying the motion to transfer contains language suggesting the trial court ruled on the merits; however, the discussion at the hearing on the motion and the trial court's findings of fact and con-elusions of law show the trial court's denial of the motion to transfer was based on its determination that the local rules were statutorily and constitutionally invalid.


source: Caselaw Access Project

author: PER CURIAM. TOM GRAY, Chief Justice,

license: Public Domain

text:
    Kenneth LATTIN, Charles Rice, Douglas Benson, and Ravin Venture Capital Fund, L.L.C., Appellants, v. Ellwood T. BARRETT and Ellwood T. Barrett, II, Appellees.
    No. 10-03-00287-CV.
    Court of Appeals of Texas, Waco.
    Jan. 19, 2005.

      John R. Crews, C. Glen Morris and Suellen Ratliff, Gibson, Dunn & Crutcher, L.L.P., Dallas, for Appellants.
    James D. Pierce, Timothy F. Lee and B. Lee Ware, Ware, Snow, Fogel & Jackson, L.L.P., Houston, for Appellees.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   ABATEMENT ORDER

PER CURIAM.

The trial court denied special appearances filed by Appellants in the above cause. This Court affirmed the court’s order in part and reversed it in part by opinion dated November 17, 2004. Lattin v. Barrett, 154 S.W.3d 169, 2004 WL 2610452 (Tex.App.-Waco Nov. 17, 2004, no pet. h.). Appellant Kenneth Lattin filed a motion for rehearing in this Court on December 3. Lattin and Appellant Douglas Benson then filed a notice of removal of the claims against them to bankruptcy court on December 9. Because this Court denied Lattin’s motion for rehearing before receiving notice of removal, the order denying rehearing is not affected by the removal. Because of the removal, we will abate this proceeding, subject to reinstatement when and if the bankruptcy court executes a remand order and the clerk of that court mails a certified copy to this Court. See 28 U.S.C.A. 1447(c) (West Supp.2004); Quaestor Invs., Inc. v. State of Chiapas, Mex., 997 S.W.2d 226, 229 (Tex.1999) (per curiam); cf. In re McDaniel, 149 S.W.3d 860, 860-61 (Tex.App.-Waco 2004, order) (abating mandamus proceeding stayed by bankruptcy).

According to the exhibits attached to the notice of removal Lattin and Benson filed with this Court, the claims against them are related to a bankruptcy case filed by a California corporation. See 28 U.S.C.A. § 1334(b) (West 1993), § 1452(a) (West 1994); Stewart Title Co. v. Street, 731 S.W.2d 737, 739 (Tex.App.-Fort Worth 1987, orig. proceeding). Title 28, section 1446 governs the removal of an action from state to federal court. 28 U.S.C.A. § 1446 (West 1994 & Supp.2004). Subsection (d) of that statute provides:

Promptly after the filing of such notice of removal of a civil action the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the notice with the clerk of such State court, which shall effect removal and the State court shall proceed no further unless and until the case is remanded.

Id. § 1446(d).

The Fifth Circuit has construed this provision to mean that a state court may continue to exercise jurisdiction in a case removed to federal court “until it has been given actual or constructive notice of removal.” Murray v. Ford Motor Co., 770 F.2d 461, 463 (5th Cir.1985) (quoted in Davis v. Est. of Harrison, 214 F.Supp.2d 695, 698 (S.D.Miss.2002)).

Here, this Court denied Lattin’s motion for rehearing on December 14. The cover letter accompanying the notice of removal filed in this Court is dated December 16. The notice was received by this Court and filed on December 20.

Because this Court did not receive actual or constructive notice of the removal until December 20, the December 14 order denying Lattin’s motion for rehearing is valid and effective. Rule of Appellate Procedure 19.1(b) provides that the plenary jurisdiction of this Court extends for thirty days after the denial of the motion for rehearing. Six of those thirty days had elapsed when this Court received notice of removal. The remaining twenty-four days will commence to run when and if the bankruptcy court executes a remand order and the clerk of that court mails a certified copy to this Court. See 28 U.S.C.A. 1447(c); Quaestor Invs., 997 S.W.2d at 229. Until such time, this cause is abated. Cf. McDaniel, 149 S.W.3d at 863.

Chief Justice GRAY dissenting.

TOM GRAY, Chief Justice,

dissenting.

We are not determining our jurisdiction. To the extent that the Court discusses jurisdiction after the notice of removal is received by the Court, you would expect the Court to conclude that we now have no jurisdiction. This is because we have received actual notice of the removal of this case to federal court. You may then wonder: under what authority does the Court render any order other than a determination that we have no jurisdiction to take some action sought by the parties? I did too. I was referred only to cases that hold we have jurisdiction to determine our jurisdiction but no jurisdiction to take any other action if we determine we have no jurisdiction and to other cases that support the notion we could possibly abate a collateral matter until an automatic bankruptcy stay in a related matter is lifted. In re McDaniel, 149 S.W.3d at 863 (Tex.App.Waco 2004, order) (order abating an original proceeding when the related matter was stayed by bankruptcy).

I have found no authority that gives us jurisdiction to render an abatement order when it is undisputed that we no longer have jurisdiction of the case.

To the extent the Court expresses an opinion on conditional circumstances and events that have not yet occurred, I have always thought that was an advisory opinion; something we do not have authority to do. See Armstrong v. State, 805 S.W.2d 791, 794 (Tex.Crim.App.1991) (the courts are without authority to render advisory opinions).

I have been unable to determine what this order accomplishes or why it is necessary.

I dissent.

      . 28 U.S.C.A. § 1334(b) provides:
      Notwithstanding any Act of Congress that confers exclusive jurisdiction on a court or courts other than the district courts, the district courts shall have original but not exclusive jurisdiction of all civil proceedings arising under title 11, or arising in or related to cases under title 11.

      . 28 U.S.C.A. § 1452(a) provides:
      A party may remove any claim or cause of action in a civil action other than a proceeding before the United States Tax Court or a civil action by a governmental unit to enforce such governmental unit's police or regulatory power, to the district court for the district where such civil action is pending, if such district court has jurisdiction of such claim or cause of action under section 1334 of this title.


author: Justice MORRIS.

text:
    Murray MARCUS and Barbara Marcus, Appellants, v. WHISPERING SPRINGS HOMEOWNERS ASSOCIATION, INC., Appellee.
    No. 05-04-00097-CV.
    Court of Appeals of Texas, Dallas.
    Jan. 20, 2005.

      Anthony A. Petrocchi, Teresa M. Robbins, Christopher M. Weil, Weil & Petroc-chi, P.C., Dallas, for Appellants.
    Carl David Adams, Dallas, for Appellee.
    Before Justices MORRIS, WHITTINGTON, and O’NEILL.
   OPINION

Opinion by

Justice MORRIS.

In this appeal from a temporary injunction, Murray and Barbara Marcus contend the trial court erred in enjoining them from constructing a home on their property pending the outcome of this suit on the merits. The Whispering Springs Homeowners Association, Inc. responds that the Marcuses had no approval from the neighborhood’s architectural review committee to build their proposed home and, therefore, any construction of the house would be in violation of the property’s restrictive covenants. After reviewing the evidence, we conclude the trial court did not abuse its discretion in issuing the temporary injunction. We affirm the trial court’s order.

I.

Murray and Barbara Marcus are the owners of an unimproved lot in a neighborhood development known as Whispering Springs. All the lots in the Whispering Springs development were originally owned by the Dale Poe Development Corporation. As developer, Poe executed a “Declaration of Covenants and Restrictions and Homeowners’ Agreement on and for Whispering Springs.” The declaration created both a homeowners association, consisting of all owners of lots in the development, and an Architectural Review Committee (“ARC”), consisting of three members appointed by Poe. Poe retained the right to appoint and remove a majority of the members of the ARC until all the lots in the development had been sold and a single family building on each lot had been approved by the ARC.

The purpose of the ARC is to “review and approve, conditionally approve, or disapprove all plans submitted to it for any proposed improvement, alteration or addition solely on the basis of aesthetic considerations and the overall benefit or detriment which would result to the immediate vicinity and the Property generally.” In making its decisions the ARC is to consider “the aesthetic aspects of the architectural designs, placement of buildings, landscaping, color schemes, exterior finishes and materials and similar features.” The ARC’S decision must be given to the applicant within sixty days after the committee receives “all the materials required by the ARC.” If written disapproval or a request for additional information is not sent to the applicant within sixty days, the plans are deemed approved.

In addition to the ARC approval process, the declaration of covenants and restrictions also sets forth specific requirements for any improvement to be built on a neighborhood lot. These requirements include minimum square footage, minimum setbacks, permissible materials for the construction of roofs, chimneys, and mailboxes, and limitations on garage entries, fences, hedges, and walls. Finally, the declaration requires that an owner of a lot begin construction of a dwelling no later than six months after the date on which the deed conveying the lot to the owner is recorded.

The Marcuses purchased their lot in Whispering Springs in December 1998. The Marcuses admit they were aware of the covenants and restrictions placed on the property at the time they purchased the lot. The Marcuses contend they submitted proposed house plans for approval to a member of the ARC in July 1999. According to Barbara Marcus, she received a phone call from a man who identified himself as a member of the Association telling her, in essence, that their plans were unacceptable.

In June 2002, the Marcuses submitted a new set of plans to the ARC for its approval. The Association claims the ARC asked the Marcuses for additional information to make the plans “more complete.” After the plans were supplemented, the Marcus-es and the members of the ARC met to discuss them. The ARC informed the Marcuses there were several aspects of the plans it found unacceptable including the fact that the design of the home included garage doors facing the street in violation of the requirements for garages set forth in the declaration. By letter dated August 22, 2002, the Association informed the Marcuses their plans had been denied approval.

In October 2002, the Marcuses submitted another set of plans to the ARC. The Association contends the October plans contained many of the elements the ARC had already rejected in the earlier plans including garage doors facing the street. Although the Association and the Marcus-es communicated with each other after the October plans were submitted, the ARC did not formally reject the new plans until February 2003. Because the ARC did not send a written denial within sixty days after the plans were submitted, the Mar-cuses contend the plans were deemed approved.

Based on their contention that the plans were deemed approved, the Marcuses began preparations to build their home. As part of these preparations, they submitted plans to the City of Dallas and obtained a permit for construction. The Association became aware of the Marcuses intent to begin construction when their lot was surrounded by a construction fence and a building permit was posted. In response to the imminent construction, the Association filed this suit and request for a temporary restraining order.

At the hearing on the temporary restraining order, the Association urged the court to issue an order preventing construction of any improvements on the Mar-cuses lot because the plans upon which the Marcuses received their permit to build were never approved by the ARC. Indeed, according to the Association, the plans submitted to the city and upon which the permit was issued were different than any of the plans the Marcuses submitted to the ARC. Finally, the Association argued the Marcuses were in violation of the covenants and restrictions on their property because they failed to begin construction of an approved structure within six months of purchasing the property. The Marcuses responded that they fulfilled all the requirements for submitting plans to the ARC and the ARC failed to respond within the allowable time thus rendering their plans approved.

After hearing the evidence, the trial court granted the temporary injunction and ordered that the Marcuses refrain from constructing any improvements on their property without obtaining advance approval from the ARC. The trial court further held, however, that the Association’s request for an injunction on the basis that the Marcuses did not begin construction within six months of buying the property was denied. The Marcuses brought this interlocutory appeal challenging the propriety of the restraining order.

II.

The only issue before the trial court on a request for a temporary injunction is whether the applicant is entitled to preserve the status quo of the subject matter of the suit pending a trial on the merits. Gettysburg Homeowners Ass’n, Inc. v. Olson, 768 S.W.2d 369, 371 (Tex.App.-Houston [14th Dist.] 1989, no writ). The trial court has broad discretion in deciding this issue. See Bankler v. Vale, 75 S.W.3d 29, 32 (Tex.App.-San Antonio 2001, no pet.). On appeal, we review only whether the trial court clearly abused its discretion in granting or denying the temporary injunction. Id.

In general, temporary injunctive relief is warranted when a movant shows: (1) a probable right of recovery; (2) imminent, irreparable harm will occur if the request is denied; and (3) no adequate remedy at law exists. See Munson v. Milton, 948 S.W.2d 813, 815 (Tex.App.-San Antonio 1997, pet. denied). When an injunction is sought to enforce a restrictive covenant, however, the movant is not required to show proof of irreparable injury. Id. Instead, the movant need show only that the defendant intends to do an act that would breach the covenant. Id.

In several of the issues presented on appeal, the Marcuses argue the trial court erred in granting the injunction because the ARC wrongfully refused to approve the home design plans they submitted to it. The Marcuses contend the ARC’S refusals to approve their proposed plans were improper because they were arbitrary and capricious as well as untimely under the declaration of covenants and restrictions. The Marcuses further contend the ARC had no power to deny the proposed plans because the members were not properly empaneled under the declaration. Finally, the Marcuses argue the Association is not entitled to the equitable remedy of an injunction because the manner in which it handled the approval process was unauthorized and malicious giving the association “unclean hands.” These arguments all support the contention that the trial court erred in granting the injunction because the Marcuses have a legal right to build a house based on plans submitted to, and wrongfully refused by, the ARC. The Association contends, and the tidal court found, however, that the plans upon which the Marcuses received a budding permit were never submitted to the ARC. Therefore, according to the Association, the house upon which construction was beginning was never wrongfully rejected by the ARC or deemed approved.

In response to the Association’s argument, the Marcuses contend that the plans upon which they received the building permit were essentially identical to the last set of plans submitted to the ARC. The Marcuses point to the testimony of Barbara Marcus in which she stated that the plans approved by the city were the same in all material ways as the plans submitted to the ARC. This testimony was contradicted, however, by the testimony of Gary Pickens, a member of the ARC. In response to a direct question by the trial court, Pickens stated the plans approved by the city for construction were different from the plans submitted to the ARC. The trial court does not abuse its discretion when it bases its decision on conflicting evidence. Davis v. Huey, 571 S.W.2d 859, 862 (Tex.1978). Because there is evidence to support the trial court’s finding that the Marcuses were attempting to build a home based on plans never submitted to the ARC for approval, the Marcuses’ arguments for dissolving the temporary injunction based on the alleged improper actions of the ARC during the plan approval process cannot form the basis for overturning the trial court’s temporary injunction.

The Marcuses also argue in several of their issues that the restrictive covenants relied upon by the Association are unenforceable because they are vague, ambiguous, and unreasonably restrict the use and enjoyment of the land. The Mar-cuses contend the ARC’s ability to disapprove proposed home plans “solely on the basis of aesthetic considerations” is overly broad and grants the ARC the power to arbitrarily deny them the right to build a home on their property. Restrictive covenants are interpreted according to the rules that govern contract construction. Air Park—Dallas Zoning Comm. v. Crow Billingsley Airpark, Ltd., 109 S.W.3d 900, 909 (Tex.App.-Dallas 2003, no pet.). Covenants are unambiguous as a matter of law if they can be given a definite or certain legal meaning. Id. Approval covenants are valid to the extent they furnish adequate notice to the property owner of the specific restriction sought to be enforced. See Whiteco Metrocom, Inc. v. Indus. Props. Corp., 711 S.W.2d 81, 82 (Tex.App.-Dallas 1986, writ ref'd n.r.e.).

Although the language in the approval covenant contained in the declaration of covenants and restrictions is broad, the declaration also contains specific limitations on the design of homes permitted in the neighborhood. In its rejection of the plans submitted by the Marcuses, the ARC referenced the proposed plans’ violation of the restriction on garage entries. The declaration prohibits front entry garages and requires that any side entry garage be set back a minimum of thirty feet from the street and be screened from view. This restriction is clear and unambiguous. There was evidence presented at the hearing that the design plans submitted by the Marcuses to the ARC, as well as the plans approved by the city for construction, included plans for a garage entry that would violate the restrictions applicable to the property. We conclude the trial court did not err in granting a temporary injunction based on evidence that the Marcuses intended to build a home with a feature violative of a clear and unambiguous restriction on their property.

We note that in its petition and application for a temporary injunction, the Association relied not only on the Marcuses’ alleged intent to build a home in violation of restrictions applicable to building design and approval, but also on the declaration’s requirement that property owners begin construction on their lot within six months after purchasing the property. The Mar-cuses contend this requirement is an unreasonable restriction on the use and enjoyment of their property because there is no provision to extend this deadline when the ARC refuses to approve design plans within the six month period. It is unnecessary for us to address the validity of this restriction, however, because the trial court specifically denied the Association’s request for a temporary injunction on this basis.

In their second issue, the Marcus-es challenge the Association’s standing to bring this suit “because the Architectural Review Committee was not constituted in accordance with the declarative instruments.” Although the issue of whether the ARC was properly empaneled may effect the committee’s power to approve or disapprove proposed home design plans, it does not effect the Association’s standing to enforce the provisions of the declaration relating to the design of homes to be built in the neighborhood. The Texas Property Code states that “[a] property owner’s association or other representative designated by an owner of real property may initiate, defend, or intervene in litigation or an administrative proceeding affecting the enforcement of a restrictive covenant or the protection, preservation, or operation of the property covered by the dedicatory instrument.” Tex. Peop.Code Ann. § 202.004 (Vernon 1995). Similarly, the declaration of covenants and restrictions for Whispering Springs . states that “[b]reach of any of the provisions contained in the Declaration and the continuation of any such breach may be enjoined, abated, or remedied by appropriate legal proceedings instituted by any Owner, ..., by the Association or the successors-in-interest of the Association.” Because the Association was granted the authority to enforce the covenants and restrictions applicable to the Marcuses property both by statute and by the declaration, we conclude the Association had standing to bring this suit. See Anderson v. New Property Owners’ Ass’n of Newport, Inc., 122 S.W.3d 378, 385-88 (Tex.App.-Texarkana 2003, pet. denied).

In the Marcuses’ final issue they contend “the trial court erred by granting the Association’s application for injunction because the trial court ignored the undisputed facts, basing its findings of fact on no or insufficient evidence, thus divesting the Marcuses’ property rights without a trial and granting all relief sought in [sic] principal litigation.” Many of the Marcuses’ arguments under this issue have been addressed above. To the extent the Marcuses are contending there is no evidence or insufficient evidence to support some of the trial court’s findings not addressed above, the Marcuses do not provide argument, authority, or record references to support this contention.

Finally, the Marcuses appear to suggest the relief granted by the trial court was improper because it granted the Association all the relief sought in the litigation without a full trial on the merits. The temporary injunction clearly states, however, that the Marcuses are enjoined only until a final hearing on the cause. The injunction does not prohibit the Mar-cuses from building on them lot but prohibits them from constructing any improvements without advance approval from the ARC until the claims brought by the ARC are resolved. The scope of the injunction is appropriate to preserve the status quo until the merits of the case are finally decided. We resolve the Marcuses’ last issue against them.

We affirm the trial court’s order.

      . Most of these specifications were amended in the First Amendment to Declaration of Covenants Restrictions and Homeowners Agreement on and for Whispering Springs filed April 4, 1990. Although the Marcuses state in their brief they have "denied the genuineness of the assignment of the First Amendment,” there was no argument before the trial court and no argument on appeal supporting this contention.

      . The declaration specifies ''[t]here shall be a minimum thirty (30) foot setback from the street for side entry garages. There shall be no front entry garages on any Lot. If entry is from a street other than the street fronting the dwelling unit, then the garage entry must be screened from view of the entry street.”

      . In addition, assertions of insufficient evidence are improper in an appeal from an order granting or denying a temporary injunction. See Matuszak v. Houston Oilers, Inc. 515 S.W.2d 725, 728 (Tex.Civ.App.-Houston [14th Dist.] 1974, no writ).


author: Justice LANG.

text:
    Vester T. HUGHES, as Sole Independent Executor of the Estate of W.W. Caruth, Jr., Deceased, Appellant, v. CITY OF ROCKWALL, Texas, Appellee.
    No. 05-04-01562-CV.
    Court of Appeals of Texas, Dallas.
    Jan. 20, 2005.

      Robert H. Mow, Jr., R. Matthew Mo-lash, Dwight A. Shupe, Evan S. Tilton, Hughes & Luce, L.L.P., Dallas, for Appellant.
    Terry D. Morgan, Terry D. Morgan & Associates, P.C., Pete Eckert, Caso, Egel-ston & Eckert, James W. Morris, Jr., Goins Underkofler Crawford & Langdon, Dallas, for Appellee.
    Before Justices WRIGHT, O’NEILL, and LANG.
   OPINION

Opinion by

Justice LANG.

In this expedited appeal, we address a case of first impression in municipal annexation law. We must interpret section 43.052®, to determine whether it permits a landowner to seek arbitration absent intervention by the State. Tex. Local Gov’t Code Ann. § 43.052® (Vernon 2004). Our conclusion is that it does. We reverse the trial court’s order granting the City of Rockwall’s plea to the jurisdiction and remand for entry of orders in compliance with this opinion.

I. Factual Context and Issues

Rockwall proposed annexing two tracts of land owned by the Estate of W.W. Caruth, Jr. under section 43.052(h)(1) of the local government code. The Estate objected to the annexation proposal and pursuant to section 43.052®, petitioned Rockwall to include the land in a three-year annexation plan provided for by section 43.052(c). Rockwall denied the request. The Estate then requested arbitration under section 43.052®. Rockwall declined to arbitrate asserting arbitration was not “appropriate” and that it had not violated the statute.

In response to Rockwall’s position, the Estate filed suit in district court requesting a temporary restraining order, temporary injunction, and order for arbitration. The Estate claimed Rockwall was seeking to circumvent the requirements of section 43.052(c), which requires the city to proceed with annexation pursuant to a three-year annexation plan, by pursuing a series of separate annexations under section 43.052(h)(1), an exception to the general requirement. The Estate asked the trial court to compel arbitration under section 43.052(f) and enjoin Rockwall from proceeding with its intended annexation of the Estate’s land. Rockwall responded by filing a plea to the trial court’s jurisdiction, alleging: 1) the Estate had no standing to attack what Rockwall claimed was a matter of annexation procedure, and 2) the only means to attack Rockwall’s annexation procedure was through quo warran-to, which can be brought only by the State. On stipulated facts, the trial court granted the plea to the jurisdiction and dismissed the case. The Estate appealed.

We granted the Estate’s request for a stay of Rockwall’s annexation pending appeal. The Estate claims, in three issues, that the trial court: 1) erred in granting Rockwall’s plea to the jurisdiction, 2) should have ordered arbitration, and 3) should have enjoined Rockwall’s proposed annexation. For the reasons set forth below, we decide the Estate’s issues in its favor, reverse the trial court’s order of dismissal and remand with directions that the trial court order arbitration and enjoin Rockwall from proceeding with annexation pending the outcome of the arbitration process provided by section 43.052(i).

II. Standard of Review

This Court reviews orders granting pleas to the jurisdiction de novo. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553-54 (Tex.2000); City of Balch Springs v. Lucas, 101 S.W.3d 116, 119 (Tex.App.-Dallas 2002, no pet.). In determining a plea to the jurisdiction, the trial court looks at the pleadings and evidence related to the jurisdictional issues. Bland, 34 S.W.3d at 554-55.

III. Annexation Law

Section 43.052(c) requires a municipality to create and make known to the public a formal three-year annexation plan. Tex. Local Gov’t Code Ann. § 43.052(c) (Vernon Supp.2004). The plan gives three-year’s advance notice of the municipality’s intention to annex to persons whose land is described in the plan. Id. An exception to this rule, section 43.052(h)(1), provides that, for sparsely populated and predominately unimproved land, a municipality is not required to include such land in its three-year plan. Further, when proceeding pursuant to that exception, the municipality may annex the land as directed by sections 43.061-065, which require substantially shorter notice than three-years. Tex. Local Gov’t Code Ann. § 43.052(h)(1) (annexation outside a three-year plan is permitted if the area contains “fewer than 100 separate tracts of land on which one or more residential dwellings are located on each tract”); Tex. Local Gov’t Code Ann. §§ 43.061-065 (section 43.063 requires advance notice of intention to annex of only thirty days and section 43.064 requires completion of annexation within ninety days.). When a landowner is notified that a municipality intends to annex his property using section 43.052(h)(1) annexation procedures and believes the procedure to be in violation of section 43.052(c), he may petition the municipality under section 43.052® for inclusion of the land in a three-year annexation plan. Tex. Local Gov’t Code Ann. § 43.052®. Section 43.052® provides:

A municipality may not circumvent the requirements of this section by proposing to separately annex two or more areas described by Subsection (h)(1) if no reason exists under generally accepted municipal planning principles and practices for separately annexing the areas. If a municipality proposes to separately annex areas in violation of this section, a person residing or owning land in the area may petition the municipality to include the area in the municipality’s annexation plan. If the municipality fails to take action on the petition, the petitioner may request arbitration of the dispute. The petition must request the appointment of an arbitrator in writing to the municipality. Sections 43.0564(b), (c), and (e) apply to the appointment of an arbitrator and the conduct of an arbitration proceeding under this subsection. Except as provided by this subsection, the municipality shall pay the cost of the arbitration. If the arbitrator finds that the petitioner’s request for arbitration was groundless or requested in bad faith or for the purposes of harassment, the arbitrator shall require the petitioner to pay the costs of the arbitration.

Tex. Local Gov’t Code Ann. § 43.052(i) (emphasis added).

The central issue before us is whether, under section 43.052®, the landowner may request and is entitled to arbitration if the municipality refuses to include his land in the three-year plan.

IV. Standing

Rockwall contends that the Estate has no standing to request or compel arbitration because the issues of what land is to be included in an annexation plan and whether the annexation under section 43.052(h)(1) merely circumvents the section 43.052(c) requirement are questions of procedure, not substance. Further, Rock-wall claims that, although it may, at its election, engage in arbitration as described in section 43.052®, it had no obligation to do so unless compelled by a ruling in a quo warranto suit brought by the State. Finally, Rockwall claims it is exclusively the State which may attack an annexation procedure and only by means of quo warran-to. On the other hand, the Estate claims that section 43.052® creates a clear right to arbitration when demanded by a landowner and Rockwall’s interpretation of the statute is contrary to the plain language of the statute.

In support of its position, Rockwall claims that our decision in City of Batch Springs v. Lucas, dictates that the Estate has no standing to compel arbitration under this statute. Rockwall tells us that in Lucas, the landowner raised issues regarding the impropriety of annexing under an exception to the general rule and as to the City of Baleh Springs’s refusal of the landowner’s demand to arbitrate. Lucas, 101 S.W.3d at 116. In that case, we decided that the City’s plea to the jurisdiction should have been granted by the trial court and the landowner’s points were not meritorious. However, we disagree with Rockwall’s analysis of that case.

While it is true that the landowner in Lucas made claims similar to those raised here by the Estate, and we stated in Lucas that section 43.052 is procedural in nature making it subject to attack only by quo warranto, we concluded that the requirement to annex pursuant to a three-year plan under section 43.052(c) was not yet effective and binding on the City of Baleh Springs. Id. at 122. Rather, a transitional provision was included in the 1999 legislation whereby a municipality was not required to wait for three-years to annex after a plan was created, but could proceed with annexations under the prior statutory procedure until three-years had transpired from the effective date of the amended statute. Id. Accordingly, we concluded the actions of the City of Baleh Springs were not restricted as argued by Lucas.

The case before us is markedly different. First, there is no claim that the transitional provisions of section 43.052 apply. It is clear that this controversy arose more than three-years after the statute became effective. Hence, section 43.052(c) is fully effective and applicable to these parties. Second, although we acknowledge the authority of the general rule that procedural irregularities in a municipality’s annexation process may be attacked only by quo warranto, section 43.052(i) was created by the legislature subsequent to the enumeration of that rule by our courts. See Alexander Oil Co. v. City of Seguin, 825 S.W.2d 434, 436 (Tex.1991). We agree with the observation of the Fort Worth Court of appeals when it said: “[ajbsent specific legislative authorization, the only proper method for attacking the validity of a city’s annexation of territory is through a quo warranto proceeding, unless the annexation is wholly void.” City of Wichita Falls v. Pearce, 38 S.W.3d 415, 417 (Tex.App.-Fort Worth 2000, no pet.) (emphasis added). The plain language of section 43.052(i) provides “specific legislative authorization” for a private person to seek arbitration where it directs that

[i]f a municipality proposes to separately annex areas in violation of this section, a person residing or owning land in the area may petition the municipality to include the area in the municipality’s annexation plan. If the municipality fails to take action on the petition, the petitioner may request arbitration of the dispute.

Tex. Local Gov’t Code Ann. § 43.052(i) (emphasis added). The very language of the section makes it clear that the issue of whether certain annexations under section 43.052(h)(1) circumvent the requirement of section 43.052(c) is subject to arbitration between a landowner and the municipality. Having so concluded, we must determine when and how that election to arbitrate may arise.

Y. Arbitration

Rockwall launches this part of its argument by suggesting that the language in section 43.052(i), “fails to take action on the petition,” means that the right of arbitration arises only if Rockwall “does nothing” in the face of the petition of the landowner to include its property in a three-year plan. Rockwall claims that it did not “fail to take action.” Rather, it says it acted upon the petition by denying it. Accordingly, Rockwall contends it is not required to arbitrate. Further, Rock-wall claims the State alone can seek to compel the city to arbitrate by bringing a quo warranto action attacking the propriety of Rockwall’s annexation procedure on the discrete issue framed by section 43.052(f): whether a municipality has circumvented the requirement of a three-year plan by annexing under section 43.052(h)(1) if no reason exists under generally accepted municipal planning principles and practices for separately annexing the areas. We disagree with Rockwall’s interpretation and conclude that it does not comport with the plain language of the section.

First, if Rockwall’s interpretation is correct, we would have to read the statute to provide that a landowner could not actually initiate arbitration. All it could do is ask. A landowner would be at the mercy of the unilateral decisions of two government entities as to whether there would be any arbitration. Rockwall could unilaterally elect to arbitrate or if it did not desire to do so, a landowner must convince the State to sue Rockwall by way of quo war-ranto. Instead, we read the plain language of the statute to provide that, if Rockwall fails to take action on the petition to include the area in the annexation plan, the landowner may request arbitration of the dispute. That request will cause Rockwall to engage in the arbitration. Tex. Local Gov’t Code Ann. § 43.062(i).

Obviously, arbitration is implanted in the section as a means to resolve a “dispute.” Id. (“... the petitioner may request arbitration of the dispute”) (emphasis added). It is also obvious that no “dispute” will exist where a municipality grants the petition of the landowner and includes the land in the annexation plan. However, a “dispute” will exist when a municipality takes no action or denies the petition. Nowhere in the statute can we find language providing Rockwall with the unilateral right to refuse arbitration and thereby block the landowner from arbitration. Further, there is no provision directing the parties to await action by the State. The statute’s language states arbitration may be elected by the landowner after it has met with no success on its petition that the municipality include the area in the annexation plan. Then the landowner and the municipality shall proceed with arbitration as specified by section 43.052(i) pursuant to section 43.0564(b), (c), and (e) which addresses appointment of the arbitrator and the conduct of the arbitration. Tex. Local Gov’t Code Ann. § 43.0564.

Second, we are not persuaded by Rockwall’s argument that allowing a landowner to pursue arbitration without intervention of the State by way of quo warran-to will create confusion and excessive cost through a series of duplicative and expensive individual landowner arbitrations. Indeed, we recognize a general policy behind the rule prohibiting individual suits attacking a municipality’s annexation procedure is to avoid duplicative and expensive litigation. Alexander, 825 S.W.2d at 437. However, section 43.052(i) does not frustrate that policy. The legislature did not open the door for seriatim arbitrations respecting all actions of the municipality in its annexation process. The statute sets out an arbitration procedure which was meant, by its plain language, to afford each landowner the opportunity to arbitrate only the narrow issue provided for in the statute: “[I]f a municipality proposes to separately annex areas in violation of this section, a person residing or owning land in the area may petition the municipality to include the area in the municipality’s annexation plan.” Tex. Local Gov’t Code Ann. § 43.053®.

VI. Conclusion

We conclude the trial court erred in granting Rockwall’s plea to the jurisdiction and decide the Estate’s issues in its favor. Accordingly, we reverse the trial court’s order of dismissal and remand the case to the trial court directing that it enter an order compelling arbitration in accordance with section 43.052®, granting a temporary injunction against Rockwall prohibiting it from proceeding with annexation of Estate’s land during the pendency of the arbitration, and that the Estate or any agent or anyone acting in concert with it is enjoined from seeking, supporting, encouraging, or participating in any way in any request or other activity to seek or procure a CNN from TCEQ or any other agency or governmental body having jurisdiction thereon during the pendency of the arbitration.


author: Justice MAZZANT.

text:
    Suhas MANTRI, M.D., Appellant v. Andrew A. BERGMAN, Bergman & Bird, L.L.P., and Angela Allen, Appellees.
    No. 05-04-00164-CV.
    Court of Appeals of Texas, Dallas.
    Jan. 20, 2005.

      Carl David Adams, Dallas, for Appellant.
    Andrew A. Bergman, Paul A. Sartin, Bergman, Stein & Bird, L.L.P., Dallas, for Appellees.
    Before Justices RICHTER, LANG, and MAZZANT.
   OPINION

Opinion by

Justice MAZZANT.

In this case, we must determine whether a claim under chapter 10 of the Texas Civil Practice and Remedies Code for sanctions for frivolous litigation may be brought in an independent lawsuit in a different court and county from the underlying litigation. The Dallas County trial court concluded it lacked jurisdiction over a frivolous litigation claim concerning a lawsuit filed in Denton County, and the Dallas County court dismissed the claim for lack of subject matter jurisdiction. Suhas Mantri, M.D. appeals the dismissal of his claim, and we affirm.

BACKGROUND

In 2002, Angela Allen, represented by Andrew A. Bergman and Bergman & Bird, L.L.P., sued Mantri and other health care providers in Denton County district court for medical malpractice. Allen nonsuited Mantri, the last of the defendants in the Denton County suit, in December 2002. No other action occurred in Denton County. In August 2003, Mantri sued appellees in district court in Dallas County, asserting as his sole cause of action a violation of chapter 10 of the Texas Civil Practice and Remedies Code. Initially, Mantri obtained a default judgment against appellees, but they timely filed a motion for new trial and plea to the jurisdiction. After a hearing, the trial court granted the motion for new trial, sustained the plea to the jurisdiction, and dismissed Mantrfs suit for want of jurisdiction.

STANDARD OF REVIEW

A plea to the jurisdiction is a dilatory plea by which a party challenges a court’s authority to determine the subject matter of the action. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000); Osburn v. Denton County, 124 S.W.3d 289, 292 (Tex.App.-Fort Worth 2003, pet. filed). “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.” County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.2002) (citing Tex. Natural Res. Conservation Comm’n v. White, 46 S.W.3d 864, 868 (Tex.2001); Blue, 34 S.W.3d at 554-55). The existence of subject matter jurisdiction is a question of law; thus, we review de novo the trial judge’s ruling on a plea to the jurisdiction. Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.2002).

SANCTIONS AS A CAUSE OF ACTION

In his second issue, Mantri asserts the trial court erred by concluding that a party seeking sanctions for frivolous litigation under chapter 10 of the Texas Civil Practice and Remedies Code had to bring the motion for sanctions in the same action as the frivolous litigation and could not seek sanctions as an independent cause of action in a separate lawsuit.

Section 10.001 of the Texas Civil Practice and Remedies Code provides that a person signing a motion or pleading certifies that “to the signatory’s best knowledge, information, and belief, formed after reasonable inquiry”: (1) the motion or pleading is not presented for an improper purpose, (2) each legal contention is warranted, (B) each factual contention is likely to have evidentiary support, and (4) each denial of a factual contention is warranted. Tex. Civ. Prac. & Rem.Code AnN. § 10.001 (Vernon 2002). If there has been a violation of section 10.001, then “[a] party may make a motion for sanctions” or the court on its own initiative may issue a show cause order. Id. § 10.002. “A court that determines that a person has signed a pleading or motion in violation of Section 10.001 may impose a sanction on the person, a party represented by the person, or both.” Id. § 10.004(a). “The sanction must be limited to what is sufficient to deter repetition of the conduct or comparable conduct by others similarly situated.” Id. § 10.004(b). The sanction may include “(1) a directive to the violator to perform, or refrain from performing, an act; (2) an order to pay a penalty into court; and (3) an order to pay to the other party the amount of the reasonable expenses incurred by the other party because of the filing of the pleading or motion, including reasonable attorney’s fees.” Id. § 10.004(c). If the court determines that section 10.001 has been violated and that a sanction should be imposed, then the “court shall describe in an order imposing a sanction under this chapter the conduct the court has determined violated Section 10.001 and explain the basis for the sanction imposed.” Id. § 10.005.

Mantri asserts chapter 10 provides a litigant with an independent cause of action that may be asserted against an opposing party who files a frivolous lawsuit. We disagree. Section 10.002 specifically states that a party may file a “motion” for sanctions. Tex. Civ. Prac. & Rem. Code Ann. § 10.002(a). Nowhere does chapter 10 permit a party to bring an independent cause of action for sanctions. See Martin v. Tex. Dept. of Family & Protective Servs., No. 01-03-01111-CV, 2004 WL 1945255, at *2 (Tex.App.-Houston [1st Dist.] Aug. 31, 2004, no pet.) (observing that chapter 105 of Texas Civil Practice & Remedies Code “allow[s] a ‘motion’ for sanctions, not an affirmative ‘claim’ ”).

The Texas courts have treated proceedings for sanctions as motions, not as independent causes of action. Unlike a pending cause of action, a pending motion for sanctions does not make interlocutory an otherwise-final judgment. See Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 312 (Tex.2000) (“a judgment does not have to resolve pending sanctions issues to be final”); In re T.G., 68 S.W.3d 171, 179 (Tex.App.-Houston [1st Dist.] 2002, pet. denied) (opinion on mtn. for reh’g) (citing Lane Bank Equip. Co.). If a motion for sanctions is pending when a final judgment is signed, the trial court has until the expiration of its plenary power, 30 to 105 days, to enter an order on the motion or it loses jurisdiction to do so. See Scott & White Mem. Hosp. v. Schexnider, 940 S.W.2d 594, 596 (Tex.1996) (per curiam) (trial court had jurisdiction to impose sanctions under rule 13 during its plenary power); Martin, 2004 WL 1945255, at *2 (trial court lost jurisdiction to rule on motion for sanctions under chapter 105 of Texas Civil Practice & Remedies Code 30 days after final order granting nonsuit); Kenseth v. Dallas County, 126 S.W.3d 584, 599-600 (Tex.App.-Dallas 2004, pet. denied) (vacating sanctions imposed after trial court lost plenary jurisdiction 105 days after final judgment). When a motion for sanctions is filed following the entry of a final judgment, the motion is treated as a motion to modify, correct, or reform the existing judgment within the meaning of rule of civil procedure 329b(g). Lane Bank Equip. Co., 10 S.W.3d at 312.

As these authorities show, there is no precedent in Texas for treating motions for sanctions as independent causes of action. As this Court stated in Kenseth,

A sanctions order must be tied to the portion of the proceedings in which the sanctionable conduct occurred. In this instance, all the conduct sanctioned by the trial court in Essenbhrg Order No. 9 occurred prior to the entry of the court’s final order, Essenburg Order No. 8. Therefore, both the conduct and the resulting sanctions were tied to the court’s power to issue the order disbursing the funds in its registry as required by its mandate. Once the court’s plenary power over that portion of the postjudgment proceedings had expired, the court had no more power to sanction for conduct within those proceedings.

Kenseth, 126 S.W.3d at 600 (footnote omitted). Likewise, a motion for sanctions for frivolous litigation under chapter 10‘ must be tied to the allegedly frivolous litigation and cannot be brought as an independent cause of action. We resolve Mantri’s second issue against him.

In his first issue, Mantri asserts the trial court erred in granting appellees’ plea to the jurisdiction because the court had subject matter jurisdiction over the motion for sanctions. Mantri argues that appellees’ arguments went to the merits of the motion and not to the trial court’s jurisdiction to rule on the motion. We disagree. Ap-pellees asserted the proceeding for sanctions could not be brought as an independent cause of action separate from the allegedly frivolous litigation. Thus, appel-lees challenged the court’s authority to rule on the motion.

The only court with jurisdiction over a request for sanctions (whether styled as a, motion or otherwise) under chapter 10 is the court where the allegedly frivolous litigation was pending, and then only while that court has plenary jurisdiction over the cause in which the' allegedly frivolous litigation was pending. In this case, the allegedly frivolous litigation was before the" Denton County district court. Appellant, however, did not file a motion for sanctions before the Denton County court but attempted to pursue sanctions in Dallas County district court. Because the allegedly frivolous litigation in this case was never before the Dallas County district court, that court lacked jurisdiction over any proceeding for sanctions concerning the allegedly frivolous litigation. We conclude the trial court did not err by sustaining appellees’ plea to the jurisdiction. We resolve Mantri’s first issue against him.

We affirm the trial court’s judgment.


author: Justice MOSELEY.

text:
    Harry JONES, Appellant v. AMERICAN FLOOD RESEARCH, INC., Appellee.
    No. 05-03-01023-CV.
    Court of Appeals of Texas, Dallas.
    Jan. 20, 2005.

      Richard Abernathy, Abernathy Roeder Robertson & Joplin, McKinney, for Appellant.
    John R. Roach, Jr., William D. Cramer, Roach, LLP, Plano, for Appellee.
    Before Justices MOSELEY, BRIDGES, and LANG-MIERS.
   OPINION

Opinion by

Justice MOSELEY.

This is an appeal of a discovery sanction entered against attorney Harry Jones. Jones represented three former employees (“the employees”) of American Flood Research, Inc. in a trade secret and employment discrimination dispute with their former employer. On Jones’s motion, the trial court severed the sanction order into a separate cause number and Jones perfected this appeal. Although we conclude the severance was improper, we have jurisdiction to consider this appeal. We also conclude that because the trial court found that the employees did not engage in any discovery abuse, its sanctioning of Jones under Texas Rule of Civil Procedure 215.3 constituted an abuse of discretion. We reverse the trial court’s sanction order and dismiss the case.

Background

While still employed by American Flood, the employees made a written complaint of employment discrimination to the company and threatened to file a charge of discrimination with the Equal Employment Opportunity Commission. Three days later, they either abandoned their jobs or were terminated. They filed a charge with the EEOC and notified American Flood. The same day, American Flood sued the employees in state court for trade secret violations and for allegedly destroying American Flood’s computer systems.

The state court suit was abated by mutual agreement for several months while federal authorities investigated a number of the parties’ allegations. After the state court suit was reinstated, the employees received their right to sue letter from the EEOC and filed a discrimination suit against American Flood in federal court. Jones represented the employees in both the state court suit and the federal discrimination suit.

From the outset, there were several disputes regarding discovery. After the state court case was reinstated, the discovery disputes escalated in both state and federal court. The parties jockeyed over whose depositions would be taken first, as well as issues concerning written discovery, document production, and privilege logs. Both sides filed motions to compel discovery and motions to quash depositions.

In November 2002, American Flood requested depositions of the employees in December. On behalf of the employees, Jones rejected the proposed dates and argued that the trial court had said no depositions would be taken until documents were produced and privilege claims resolved. American Flood then noticed the employees’ depositions for December. The next day, the employees filed a motion to quash and a motion to compel production of documents. The employees objected to the time and place designated in the notices and the depositions were stayed under rule 199.4. Tex.R. Civ. P. 199.4. The motions were set for hearing, but, according to Jones, American Flood agreed to produce documents and the employees canceled the hearing.

Shortly after this, American Flood moved to compel the employees’ depositions and set a hearing for December 20, 2002. Sometime before this hearing, the employees noticed the depositions of American Flood in the federal lawsuit for January 7, 2003.

Several discovery matters were heard at the December 20 hearing, including the order and timing of depositions. American Flood argued that the trial court had ruled in an earlier hearing that American Flood could take the employees’ depositions first and that American Flood would produce a privilege log by a certain date. American Flood claimed it produced the privilege log, but that the employees refused to agree to dates for their depositions. Instead, American Flood argued, the employees filed the federal lawsuit and immediately noticed depositions for American Flood’s representatives. American Flood characterized this conduct as an “end-around” the trial court’s earlier ruling that American Flood would take depositions first. American Flood asked the trial court to allow it to take the employees’ depositions in state court before the American Flood’s representatives were deposed in the federal court. After hearing arguments from Jones, the trial court stated that American Flood could start depositions on January 6, and told the attorneys to work out a time by agreement or come back to the court to set a time. When asked if the court would order the depositions for the sixth, seventh, and eighth of January, the trial court stated, “I’m assuming that deposition notices will say the 6th, and they will run until they’re concluded.” This oral pronouncement, which apparently envisioned the issuance of deposition notices, was not reduced to a written order. Moreover, American Flood did not serve notices to depose the employees on January 6, and the parties did not agree to a time or place for those depositions.

On December 30, 2002, the employees filed a motion to reconsider the rulings at the December 20 hearing. They also filed a motion to recuse the trial judge because of the judge’s alleged bias against Jones in prior hearings and favor toward American Flood’s newly retained counsel. Jones notified American Flood’s counsel that the employees would not appear for depositions until the motions had been decided. The employees did not appear for depositions on January 6.

The motion to recuse was set for hearing on January 13, but the employees filed a motion for continuance in order to obtain transcripts of hearings and additional evidence. The motion for continuance was set for the same day as the recusal hearing. On January 10, the employees withdrew the motion to recuse because Jones was unable to “meaningfully review the (incomplete) hearing transcripts and obtain other necessary evidence of judicial conduct.” The motion to recuse was never refiled and the motion to reconsider was never set for hearing. On January 15, Jones was discharged by the employees as their attorney, and he moved to withdraw.

American Flood filed a motion for sanctions against the employees and Jones for alleged discovery abuse under rule 215.3, and for violations of civil practice and remedies code sections 9.011 and 10.001 and rule 13. Tex.R. Civ. P. 13, 215.3; Tex. Civ. Prac. & Rem.Code ÁNN. §§ 9.011, 10.001 (Vernon 2002). After an evidentiary hearing before a visiting judge, the trial court granted the motion against Jones for “egregious discovery abuse” and ordered Jones to pay a sanction of $15,000 to American Flood. However, the trial court denied the motion for sanctions against the employees. The trial court’s conclusions of law state that the actions in connection with the November 2002 motion to quash, with the motion to recuse, and with the employees’ failure to appear for the January 6 depositions — considered separately and “in toto” — constituted abuse of the discovery process under rule 215.3 by Jones. However, the trial court expressly found that the same actions did not constitute abuse of the discovery process .by each of the employees. The trial court also found that none of the same actions, considered separately or in total, constituted violations of sections 9.011, 10.001, or rule 13 by either the employees or by Jones.

Jones, who was not a party and no longer represented a party in the lawsuit, filed a motion to sever the sanction order so that he could appeal the order. The trial court granted the motion and severed the sanction order into a new cause number. Jones appeals claiming the trial court abused its discretion in finding that he abused the discovery process and in the amount of the sanction.

Jurisdiction and Severance

Although the severance order is not challenged by the parties, we briefly address the propriety of the severance order because of a conflict in the courts of appeal as to whether an improper severance order affects the court’s jurisdiction over the appeal. Some courts hold that an improper severance is trial court error and does not deprive the appellate court of jurisdiction to consider the appeal. See Rucker v. Bank One Tex., N.A., 36 S.W.3d 649, 652 (Tex.App.-Waco 2000, pet. denied); Nicor Exploration Co. v. Fla. Gas Transmission Co., 911 S.W.2d 479, 482-83 (Tex.App.-Corpus Christi 1995, writ denied). Other courts have concluded that pretrial discovery and sanction orders are not severable because they cannot stand alone as independent suits and are interwoven with the merits of the main lawsuit. H.E. Butt Grocery Co. v. Currier, 885 S.W.2d 175, 177 (Tex.App.-Corpus Christi 1994, no writ). Such orders are not “claims” that may be severed under rule 41 and absent a valid severance, the appellate court lacks jurisdiction. Id. See also Tex.R. Civ. P. 41; Dalisa, Inc. v. Bradford, 81 S.W.3d 876, 882 (Tex.App.-Austin 2002, no pet.) (holding severance improper and dismissing appeal for want of jurisdiction); Cass v. Stephens, 823 S.W.2d 731, 733 (Tex.App.-El Paso 1992, no writ) (same), overruled in part by In re Hoover, Bax & Slovacek, L.L.P., 6 S.W.3d 646, 649 (Tex.App.-El Paso 1999, orig. proceeding).

This question was settled by the supreme court in Pierce v. Reynolds, 160 Tex. 198, 329 S.W.2d 76 (1959). See also Schieffer v. Patterson, 433 S.W.2d 418 (Tex.1968). The court concluded that a final judgment in a severed action was appealable even if the severance was improper: “No matter how erroneous its conclusion and action may have been, it was within the judicial power of the court to determine that the cause was severable and to sever the same accordingly.” Pierce, 160 Tex. at 202, 329 S.W.2d at 78. As this Court has recognized, Pierce and Schiejfer hold “that the granting of a severance makes the judgment in the severed portion of the case final for purposes of appellate jurisdiction regardless of whether the severance was proper.” Rutherford v. Whataburger, Inc., 601 S.W.2d 441, 443 (Tex.Civ.App.-Dallas 1980, writ ref'd n.r.e.). We have followed this rule and have considered the merits of the appeal even where the severance order was improper and done merely to obtain immediate appellate review. Id.

We emphasize that severance should not be used to obtain advisory opinions from the appellate court. See Rutherford, 601 S.W.2d at 443. However, consistent with current supreme court jurisprudence, a judgment that purports to be final, even if erroneously so, is final for purposes of appeal and we have jurisdiction to review the issues presented by the appeal. See Ritzell v. Espeche, 87 S.W.3d 536, 538 (Tex.2002); Lehmann v. Har-Con Corp., 39 S.W.3d 191, 206 (Tex.2001); Pierce, 160 Tex. at 202, 329 S.W.2d at 79.

Because it affects our disposition of this case, we conclude that the severance was an abuse of discretion because a discovery sanction against an attorney for a party to litigation cannot stand as an independent lawsuit and the basis for the sanction order is interwoven with the other claims pending in the original lawsuit. However, the improper severance does not deprive us of jurisdiction over this appeal.

DiscoveRY Sanctions

A trial court’s ruling on a motion for sanctions is reviewed for an abuse of discretion. Cire v. Cummings, 134 S.W.3d 835, 838 (Tex.2004). The test for an abuse of discretion is whether the trial court acted without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex.1985). A trial court has no discretion to determine what the law is or in applying the law to the facts. See Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992).

Jones requested and the trial court filed findings of fact and conclusions of law regarding the sanctions order. The trial court did not file additional findings of fact and conclusions of Jaw as requested by Jones. Findings of fact and conclusions of law filed in conjunction with a discovery sanction may be “helpful” in determining if the trial court exercised its discretion in a reasonable and principled fashion. See Chrysler Corp. v. Blackmon, 841 S.W.2d 844, 852 (Tex.1992) (orig. proceeding). However, they do not carry the same weight on appeal as findings made under rule 296, and are not binding on an appellate court reviewing the trial court’s exercise of discretion. See IKB Indus., Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 442 (Tex.1997) (stating order imposing discovery sanctions may be reversed for an abuse of discretion even if findings and evidence support it). Therefore, we reject American Flood’s argument that Jones waived his complaints by not specifically challenging the trial court’s conclusion that all of the actions “considered in toto” constituted an abuse of the discovery process by Jones. See Mueller v. Beamalloy, Inc., 994 S.W.2d 855, 859 (Tex.App.-Houston [1st Dist.] 1999, no pet.).

We look to the order and the trial court’s findings to determine the rule under which the trial court exercised its discretion to impose sanctions. See Ford Motor Co. v. Tyson, 943 S.W.2d 527, 533 (Tex.App.-Dallas 1997, orig. proceeding), mand. granted in part on other grounds, In re Ford Motor Co., 988 S.W.2d 714 (Tex.1998). When the order or the findings refer to a specific rule, either by citation or by tracking its language, we are confined to determining whether the sanction was authorized and appropriate under that particular rule. Id.

Here American Floor moved for sanctions based on alleged discovery abuse under rule 215.3, and for violations of civil practice and remedies code sections 9.011 and 10.001 and rule 13. The order only imposed sanctions against Jones for “egregious discovery abuse.” Moreover, the trial court’s findings of fact and conclusions of law specifically state that , Jones’s actions constituted abuse of the discovery process under rule 215.3. Thus, our determination is limited to whether the trial court abused its discretion in imposing sanctions under rule 215.3.

Rule 215.3 requires a finding that a party is abusing the discovery process:

If the court finds a party is abusing the discovery process in seeking, making or resisting discovery ... then the court in which the action is pending may, after notice and hearing, impose any appropriate sanction authorized by paragraphs (1), (2), (3), (4), (5), and (8) of Rule 215.2(b).

Tex.R. Civ. P. 215.3 (emphasis added). The sanctions available under rule 215.3 are limited to the specific subsections of rule 215.2(b) fisted in rule 215.3. Ford Motor, 943 S.W.2d at 534. But if the court finds a party has abused the discovery process, two of the sanctions available in rule 215.2(b) allow the court to sanction the attorney advising the disobedient party: rule 215.2(b)(2) allows the court to charge either the disobedient party or the attorney advising him with the expenses of discovery or taxable court costs; and rule 215.2(b)(8) allows the court to require the disobedient party or the.attorney advising him, or both, to pay the reasonable expenses, including attorney fees, caused by the failure. Tex.R. Civ. P. 215.2(b).

In this case, the trial court refused to find that a party was abusing the discovery process. In fact, it expressly found that the employees — Jones’s clients — did not abuse the discovery process by fifing the motion to quash, the motion to recuse, or by failing to appear for depositions on January 6. The trial court did find that Jones abused the discovery process under rule 215.3 by each of these actions or failures singularly and in combination. However, a finding that the attorney rather than a party abused the discovery process is not a basis for sanctions under rule 215.3. Tex.R. Civ. P. 215.3. Therefore, the trial court acted without reference to guiding rules and principles in awarding sanctions against Jones under rale 215.3 absent a finding that a party was abusing the discovery process, as required by that rule. See Walker, 827 S.W.2d at 840 (stating trial court has no discretion to determine what law is or in applying law to facts).

Accordingly, the trial court abused its discretion in ordering the sanctions against Jones. We resolve Jones’s first issue in his favor and reverse the trial court’s sanction order. We need not address Jones’s remaining issues. Because the severed case only involves the sanction order and cannot stand alone as an independent suit, we dismiss the case. Tex.R.App. P. 43.2(e).

      . We do not have a record of the earlier hearing and this ruling is not reflected in a written order of the trial court.

      . A trial court has discretion to sever a cause of action where the (1) the controversy involves more than one cause of action, (2) the severed claim is one that would be the proper subject of a lawsuit if independently asserted, and (3) the severed claim is not so interwoven with the remaining action that they involve the same facts and issues. Guar. Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 658 (Tex.1990); see also Tex.R. Civ. P. 41.


author: Justice FITZGERALD.

text:
    The STATE of Texas, Appellant, v. James VASILAS, Appellee.
    No. 05-04-00328-CR.
    Court of Appeals of Texas, Dallas.
    Jan. 21, 2005.
    John R. Roach, Collin County Dist. Atty., McKinney, for appellant.
    Peter Barrett, Moore & Gunter & Barrett, Dallas, for appellee.
    Katharine K. Decker, McKinney, for state.
    Before Justices MOSELEY, FITZGERALD, and FRANCIS.
   OPINION

Opinion by

Justice FITZGERALD.

The State appeals the quashing of one of the four counts in an indictment charging James Vasilas with tampering with a governmental record under section 37.10(a)(5) of the penal code. In two issues, the State argues that the trial court erroneously concluded that section 37.10(a)(5) of the penal code is in pari materia with rule of civil procedure 13 and that a petition for expunction is not a “governmental record” under chapter 37 of the penal code. We conclude the petition for expunction was not a governmental record within the contemplation of chapter 37. Accordingly, we conclude the trial court correctly granted the motion to quash, and we affirm the trial court’s order.

BACKGROUND

Appellee is an attorney who represented Justin Goff, who was charged with delivery of marijuana. Goff, while represented by appellee, was convicted of the lesser-included offense of possession of marijuana. Subsequently, appellee, representing Goff, signed and filed a petition for expunction of Goffs arrest on the delivery charge. The State then charged appellee in a four-count indictment for making three false entries in a governmental record, the petition for expunction, with the intent to harm and defraud the State of Texas. The fourth count alleged appellee made, presented, and used a governmental record, the petition for expunction, with knowledge of its falsity, intending to defraud and harm the State of Texas. Appellee filed a nonsuit of the expunction lawsuit.

Appellee filed a motion to quash the indictment, asserting (1) section 37.10 of the penal code and rule of civil procedure 13 are in pari materia, and rule 13 controls over section 37.10; and (2) pleadings in civil suits are not “governmental records.” After hearing oral argument on the motion, the trial court granted the motion to quash .without explaining its reasons. The State timely filed its notice of appeal.

At submission of this cause, the State abandoned its appeal of the trial court’s granting of the motion to quash as to the first three counts of the indictment. Therefore, the sole issue before us is whether the trial court erred in granting the motion to quash Count IV, which alleged appellee did “with intent to defraud and harm another, namely, the State of Texas, make, present, and use a governmental record, to wit: a Petition for Ex-punction of Records, with knowledge of its falsity.”

Standard of Review

The sufficiency of an indictment is a question of law. State v. Moff, 154 S.W.3d 599, 601, No. 458-03, 2004 WL 2248097, *2 (Tex.Crim.App. Oct.6, 2004). When the resolution of a question of law does not turn on an evaluation of the credibility and demeanor of a witness, then the trial court is not in a better position to make the determination, and appellate courts should conduct a de novo review of the issue. Id.; see Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). The trial court’s decision in this case was based on appellee’s motion to quash, the State’s response, and the argument of counsel. See Moff, at -, 2004 WL 2248097, at *2; see State v. Rosenbaum, 910 S.W.2d 934, 948 (Tex.Crim.App.1994) (dissenting op. adopted on reh’g) (sufficiency of indictment at pretrial motion to quash cannot be supported or defeated by evidence). Accordingly, we conduct a de novo review of the trial court’s ruling.

Governmental Records

In its second issue, the State asserts the trial court erred by concluding the petition for expunction was not a governmental record. For purposes of construing section 37.10 of the penal code, “governmental record” means “anything belonging to, received by, or kept by government for information, including a court record.” Tex. Pen.Code Ann. § 37.01(2)(A) (Vernon Supp.2004-05). The final four words of that definition — “including a court record” — were added by the legislature in 1997. The legislature went on to define “court record” to mean “a decree, judgment, order, subpoena, warrant minutes, or other document issued by a court ■...” Id. § 37.01(f) (emphasis added).

The argument can be made that when the petition for expunction was “received by” the court and kept as a source of information concerning the civil proceeding, it became a “governmental record.” See id. § 37.01(2)(A). This argument is weakened, however, by the 1997 legislative amendments to section 37.01(1). The 1997 amendments narrowed the extremely broad definition of “governmental record” insofar as that definition addressed records associated with a court: a “court record” is now limited to a document actually issued by a court. By defining so narrowly what was in the category of “court records,” the legislature effectively defined out of the scope of “governmental records” the many other types of records- — including pleadings — that are created by a party or attorney and merely filed with a court. In other words, to give meaning to the definition of “court record” added by the legislature, we must read it to exclude documents filed with a court by a party.

We conclude the petition for expunction filed by appellee was not a governmental record within the meaning of chapter 37 of the penal code. We resolve the State’s second issue against it.

Conclusion

Given this resolution of the State’s second issue, we need not address the issue of whether the statutes are in pari materia. The trial court correctly granted appellee’s motion to quash on Count TV of the indictment. Because the State has abandoned its appeal of the first three counts of the indictment, we do not reach those counts. We affirm the trial court’s order granting appellee’s motion to quash.


author: Justice BRIDGES.

text:
    Juan Pablo ALMENDAREZ, Appellant, v. The STATE of Texas, Appellee.
    No. 05-03-01204-CR.
    Court of Appeals of Texas, Dallas.
    Jan. 21, 2005.
    Adam Seidel, Dallas, for Appellant.
    John R. Roach, Collin County Dist. Atty., M. Emily Johnson-Liu, McKinney, for State.
    Before Justices WHITTINGTON, BRIDGES, and FRANCIS.
   OPINION

Opinion By

Justice BRIDGES.

Juan Pablo Almendarez appeals his indecency with a child conviction. A jury convicted appellant and assessed punishment at five years’ confinement and a $5000 fine. The jury further recommended that appellant be placed on community supervision, and the trial court placed appellant on community supervision for five years. In a single issue, appellant argues the trial court erred in admitting the testimony of a clergyman over appellant’s claim of privilege under rule of evidence 505. We overrule appellant’s sole issue and affirm the trial court’s judgment.

In October 2000, appellant’s ten-year-old stepdaughter made an outcry that appellant had been touching her “private parts.” Subsequent to the outcry, appellant and his wife conferred with elders from their church. Appellant’s wife also reported the outcry to the police, and appellant was charged with indecency with a child. At trial, appellant asserted his statements to Thomas Bravo, an elder in appellant’s church, were privileged communications to a member of the clergy under rule of evidence 505. The trial court overruled appellant’s objections, the jury convicted appellant, and this appeal followed.

In his sole issue, appellant argues the trial court erred in permitting Bravo to testify over appellant’s objection that the substance of Bravo’s testimony was privileged. In general, a person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to a member of the clergy in the member’s professional character as spiritual adviser. Tex.R. Evtd. 505(b); Kos v. State, 15 S.W.3d 633, 639 (Tex.App.-Dallas 2000, pet. ref'd). However, in a proceeding regarding the abuse or neglect of a child, evidence may not be excluded on the ground of privileged communication except in the case of communications between an attorney and client. Tex. Fam.Code Ann. § 261.202 (Vernon 2002). The family code’s definition of “abuse” specifically includes “sexual conduct harmful to a child’s mental, emotional, or physical welfare, including conduct that constitutes the offense of indecency with a child under Section 21.11” of the penal code. Tex. Fam.Code Ann. § 261.001(1)(E) (Vernon 2002). Further, the legislature chose the broad term “proceeding” rather than the more specific term “suit,” indicating the applicability of section 261.202 to any proceeding, criminal or civil. See Tex. Fam.Code Ann. § 261.202.

The court of criminal appeals, in Gonzalez v. State, 45 S.W.3d 101, 107 (Tex.Crim.App.2001), discussed the clergyman privilege under Texas law. The court addressed whether the First District Court of Appeals correctly determined that California law governed the admissibility of statements made to a clergyman. Id. at 106-07. In concluding the court of appeals correctly applied California law to the facts of the case, the court declined to view the clergy communication privilege as “so deeply rooted in [Texas’] jurisprudential history that application of another state’s version of the privilege, under the facts of [that] case, would be abhorrent to [Texas’] public policy.” Id. at 107. In reaching this decision, the court discussed exceptions to the apparently absolute privilege afforded clergy communications under rule of evidence 505. Id. The court cited the Texas Family Code’s provision limiting the clergy communication privilege and providing that, with the exception of the attorney-client privilege, evidence will not be excluded on the ground that it is a privileged communication in proceedings regarding abuse and neglect of a child. Id.

We also note the rules of evidence provide a hierarchy in criminal proceedings where the code of criminal procedure takes precedence over civil statutes, which take precedence over the rules of evidence. Tex.R. Evid. 101(c). Here, the code of criminal procedure has no provision for a clergyman privilege; thus, the family code statute takes precedence over rule 505. See id.

Although few courts have addressed the applicability of section 261.202 to a claim of clergyman privilege, the court in Bordman v. State, 56 S.W.3d 63, 68 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd), held that, in a prosecution for aggravated sexual assault of three children, the trial court did not err in denying appellant’s claim of clergy-communication privilege because section 261.202 excepts the privilege in child abuse cases. We find the reasoning of the court in Bordman persuasive. Because this case involved abuse of a child, we conclude the trial court was correct in overruling appellant’s objection that Thomas’ testimony involved privileged matters under rule of evidence 505. See Tex. Fam.Code Ann. § 261.202 (Vernon 2002); Bordman, 56 S.W.3d at 68. We overrule appellant’s sole issue.

We affirm the trial court’s judgment.

      . The court in Simpson v. Tennant, 871 S.W.2d 301, 310 (Tex.App.-Houston [14th Dist.] 1994, no writ), stated: "We perceive a clear intent to afford Texans the opportunity for spiritual counseling in 'total and absolute confidence,’ ” quoting Trammel v. United States, 445 U.S. 40, 51, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980).

      . The Texas Legislature has determined that any communication involving the abuse or neglect of a child, defined as "a person under 18 years of age who is not and has not been married” will not be afforded protection under any circumstances other than the attorney-client privilege. Tex. Fam.Code Ann. §§ 101.003(a), 261.202 (Vernon 2002). As a result, there is no privilege protecting communications with a clergyman in his professional capacity as a spiritual adviser regarding the abuse or neglect of a child. See Tex.R. Evid. 505(b).