author: PER CURIAM.

text:
    Ex parte Steven Kenneth STALEY, Applicant.
    No. WR-37034-02.
    Court of Criminal Appeals of Texas.
    April 27, 2005.

      Jack Strickland, Fort Worth, for appellant.
    C. James Gibson, Assist. DA, Fort Worth, Matthew Paul, State’s Attorney, Austin, for state.
   ORDER

PER CURIAM.

Pursuant to the provisions of Article 11.071 of the Texas Code of Criminal Procedure, applicant filed an application for writ of habeas corpus seeking relief from his death sentence. We have reviewed that application and conclude that it must be dismissed as a subsequent application that does not satisfy the requirements of Section 5(a)(1) of Article 11.071; thus, consideration of the merits of applicant’s claim is barred.

I.

In January 1991, applicant was convicted of the capital murder of Robert Read during a robbery in Tarrant County. Based upon the jury’s responses to four special issues, the trial judge sentenced him to death. His conviction was affirmed on direct appeal. Staley v. State, 887 S.W.2d 885 (Tex.Crim.App.1994). Applicant’s writ of certiorari to the Supreme Court on direct appeal was denied on March 20, 1995. Staley v. Texas, 514 U.S. 1020, 115 S.Ct. 1366, 131 L.Ed.2d 222 (1995). He then filed his original application for a writ of habeas corpus with the convicting court on October 14, 1997, and this Court denied relief on September 16, 1998. Ex parte Staley, No. 37,034-01 (Tex.Crim.App. Sept. 16, 1998) (not designated for publication). Applicant’s request for federal habeas corpus relief was denied by the federal district court on September 19, 2003. Staley v. Dretke, No. 4.-99-CV-186-Y, 2003 WL 22290536 (N.D.Tex. Sept. 19, 2003). The trial court set applicant’s execution date for March 23, 2005. On March 22, 2005, one day before that scheduled execution, this Court received a second, subsequent writ application. We granted applicant’s motion for a stay of execution so that we would have sufficient time to determine whether his current Penry claim meets the requirements of Section 5(a)(1) of Article 11.071.

II.

Applicant’s trial took place in April 1991. In June 1989, the United States Supreme Court had delivered its opinion in Penry v. Lynaugh (Penry I ). Penry I held that, although the Texas statutory special issues are a facially constitutional and sufficient framework for death-penalty punishment decisions, those special issues may sometimes be insufficient to protect a defendant’s right to have the jury consider and give effect to certain types of mitigating evidence.

The 1989 Penry I decision created a dilemma for Texas trial courts in capital-murder cases. As the Fifth Circuit has noted, Texas trial courts “could not craft entirely new jury interrogatories, as the precise questions had been written by the state legislature. Nor could they suspend the trials in anticipation of legislative remediation, as the legislature would not meet again until 1991 and its reaction was unknown.” Thus, Texas state courts attempted to provide timely trials that complied with Penry I by drafting extra-statutory jury instructions or supplemental special issues until the Texas Legislature enacted a statutory mitigation special issue which went into effect on September 1, 1991.

In this particular case, the trial judge submitted to the jury a fourth special issue, styled “the Question,” during the punishment phase which read:

Do you find from the evidence beyond a reasonable doubt, after considering all mitigating evidence, if any there be, and considering the defendant’s level of culpability, character and background and the circumstances of the offense, that the penalty of death is the appropriate punishment?
In your verdict, you will answer ‘Tes” or “No.”
ANSWER:_

On the page before the Question, the trial court had instructed the jury that

“Mitigating evidence” may be evidence about any aspect of the defendant’s background, character or the circumstances of the crime of which you have convicted the defendant, which you believe makes the penalty of death inappropriate. Under our law mitigating factors are not set out or limited by law.
If there is mitigating evidence, you must consider such evidence and decide how much weight to give any such evidence. You are the sole judges of how much weight any such evidence, if any, deserves.
Therefore, in light of the foregoing instructions, if evidence has been presented to you by either side in mitigation of the death penalty, and after considering such evidence, if any there be, you are not persuaded beyond a reasonable doubt that death is the appropriate sentence, you will answer the following question “No.” If you are persuaded beyond a reasonable doubt that death is the appropriate sentence, you will answer the following question ‘Tes.” If you have a reasonable doubt as to whether the question should be answered “No” or ‘Tes,” you must resolve the matter in favor of the defendant and answer the question “No.”

Earlier in the punishment charge, in reference to the statutory special issues, the trial court had instructed the jury:

During your deliberations you shall consider mitigating circumstances, if any, presented by either party, that was [sic] admitted for your consideration in both phases of the trial.
A mitigating circumstance may be any aspect of the defendant’s character, background or the circumstances of the crime for which you have found the defendant guilty, which you believe makes a sentence of confinement for life appropriate.

Thus, the trial judge instructed the jury to consider mitigating circumstances both as those circumstances might apply to the answers to the three statutorily authorized special issues and, with a lengthier definition and greater explanation, to the extra, non-statutory Question. These instructions and the Question required the State to prove beyond a reasonable doubt that there were insufficient mitigating circumstances to call for a sentence of life imprisonment.

The jurors in applicant’s case answered the Question ‘Tes.” They unanimously found, beyond a reasonable doubt, that, even considering all of the mitigating evidence and applicant’s level of culpability, “the penalty of death is the appropriate punishment.”

Applicant’s concern, however, is not with the mitigation instructions or the Question per se. Rather, his claim deals with the judge’s instructions concerning what the jury should do if it had answered the Question “No,” finding that it was not convinced, beyond a reasonable doubt, that the penalty of death was the appropriate punishment. Under the answer line for the Question, the trial judge included the following instruction, which applied only if the jury answered the Question “No”:

If you have answered the foregoing question “No,” you are instructed to draw a single line through the word “Yes” which you have previously written as your answer to Special Issue No. 1, and to answer Special Issue No. 1, “No.”

That is, if the jury had found, based on the mitigating evidence and applicant’s level of culpability, that the death penalty was not the appropriate sentence, then it should go back to the “future dangerousness” special issue, cross out its original answer of ‘Tes” and instead answer that issue with a “No.”

On the preceding page of the jury instructions, immediately before the Question, the jury was also instructed that if it could not answer the Question, it should leave the answer line blank, and it should also “draw a single line through the word “Yes’ which you have previously written on your verdict form for Special Issue No. 1, leaving no answer for Special Issue No. 1.” That is, if the jury could not answer the Question, it should return to the first special issue and cross out its “Yes” answer to that special issue. Although the jury was not informed of the effect of crossing out its answer to the first special issue, under article 37.071 the legal effect was that the defendant would be sentenced to life imprisonment, not death. However, because the jury unanimously found that, despite its consideration of the mitigating evidence and applicant’s level of culpability, “the penalty of death was the appropriate punishment,” it never reached any issue of crossing out the ‘Tes” answer to the first special issue.

On direct appeal, applicant raised a Pen-nj I claim and argued that the jury was not provided with “a proper jury instruction on how to apply mitigating evidence offered during trial[.]” At trial, however, it was the State, not applicant, who objected to the submission of the Question and the accompanying instructions. Applicant’s “only objection to the charge as given was a general objection to the constitutionality of Article 37.071.” Applicant now contends that the Question and the instructions to the jury as to what it should do if it answered the Question “No,” compelled the jurors “to act dishonestly in order to give effect to mitigating evidence.”

Neither we nor the trial court can consider the merits of that claim unless we first find that applicant’s current application “contains sufficient specific facts establishing” that his claim is both cognizable under current constitutional law and was legally “unavailable” at the time he filed his original writ. Therefore, we turn to that question.

III.

Section 5 of Article 11.071 of the Code of Criminal Procedure statutorily controls the authority of Texas state courts to consider new claims raised on any subsequent writ of habeas corpus in a death-penalty case. It states, in pertinent part:

(a) If a subsequent application for a writ of habeas corpus is filed after filing an initial application, a court may not consider the merits of or grant relief based on the subsequent application unless the application contains sufficient specific facts establishing that:
(1) the current claims and issues have not been and could not have been presented previously in a timely initial application or in a previously considered application filed under this article or Article 11.07 because the factual or legal basis for the claim was unavailable on the date the applicant filed the previous application;
(d) For purposes of Subsection (a)(1), a legal basis of a claim is unavailable on or before a date described by Subsection (a)(1) if the legal basis was not recognized by or could not have been reasonably formulated from a final decision of the United States Supreme Court, a court of appeals of the United States, or a court of appellate jurisdiction of this state on or before that date.

Under this legislative enactment, no Texas court is permitted to consider the merits of a subsequent writ claim unless the legal basis for that claim was “unavailable” at the time the applicant filed his original writ application. Section 5(d) defines an unavailable claim as one whose legal basis had not been “recognized by” or could not be “reasonably formulated from” a decision by the Supreme Court, the federal circuit courts, or this Court on the date the original (or any other previously considered) habeas writ application was filed in the convicting court. Thus, if applicant could have “reasonably formulated” his present claim from Supreme Court, federal circuit court, or this Court’s precedent that existed when he filed his original writ application in 1997, we are barred, under Texas statutory procedures, from considering that claim in a subsequent writ.

Applicant claims that the punishment-phase jury instructions in his case were the functional equivalent of the constitutionally defective nullification instructions given in Penry v. Johnson (Penry II), Tennard v. Dretke, and Smith v. Texas. Applicant further asserts that these three Supreme Court decisions set out a new rule of law, and, therefore, his present claim was “unavailable” at the time he filed his initial habeas application. It was not until “[t]hese eases expressly held that the state and federal courts in Texas have repeatedly applied an improper legal standard in assessing Penry claims” that his claim concerning the Question and its jury instructions became available. He relies upon this. Court’s recent remand order in Ex parte Robertson as support for his contention that he could not have formulated his present legal claim until this trio of cases was delivered by the United States Supreme Court.

The State, on' the other hand, argues that applicant’s claim is procedurally barred because’ the legal basis for that claim was “available” at the time he filed his first writ application in 1997. The State notes that, in fact, applicant did raise a Penry jury-charge claim in his direct appeal and it was rejected. The State argues that, because applicant was able to recognize and raise a Penry claim on direct appeal in 1994, he cannot now complain that his claim was “unavailable” when he filed his first writ in 1997.

The State also contends that, even if applicant’s claim is considerably more narrow — “that the mitigation issue contained a prohibited nullification instruction in violation of Penry II” — that specific claim was also available before applicant filed his 1997 writ application. The State cites cases from this Court in which that issue had been raised by other capital-murder defendants in 1993 and 1994. Accordingly, argues the State, “[wjhere the basis of a constitutional claim is available, and other defense counsel have perceived and litigated that claim, the demands of comity and finality counsel against labeling alleged unawareness of the objection as cause for a procedural default.”

We need not, however, decide whether applicant’s claim was legally available at the time he filed his original writ because we conclude that his application does not “contain sufficient specific facts establishing that” his claim is cognizable even if Penry II, Tennard, and Smith created a new and previously unavailable legal claim.

Under both Article 11.07 and Article 11.071, an original or subsequent application for a writ of habeas corpus must state specific, particularized facts which, if proven true, would entitle him to habeas relief. These facts must be sufficient to enable a court to determine, from the face of the application itself, whether the application merits further inquiry. That is, the facts must establish a cognizable claim based on formerly “unavailable law.” Thus, it is not sufficient to allege that a legal claim was unavailable at the time of the applicant’s original filing if the facts alleged in the subsequent application do not bring the constitutional claim under the umbrella of that “new” legal claim. For example, Ring and Apprendi may have been delivered after a death-row inmate had filed his original writs. That law was unavailable at the time of the original filing, but we have already held that Ring and Apprendi do not require the State, in a death-penalty case, to bear the burden of proving beyond a reasonable doubt that the mitigation issue should be answered in the negative. Thus, a subsequent writ based upon a Ring or Apprendi claim alleging that the State failed to disprove the mitigation issue beyond a reasonable doubt does not contain “sufficient specific facts establishing” a cognizable constitutional claim based upon formerly “unavailable” law. Similarly, a death-row inmate may file a subsequent writ application based upon the newly available legal claim of mental retardation under Atkins v. Virginia, but if his application states that his I.Q. has repeatedly been tested at 120-130, he has failed to state sufficient specific facts establishing a cognizable claim under Atkins. We turn, then, to the question of whether the specific facts alleged in applicant’s subsequent writ — the wording of the punishment jury charge — establish a cognizable constitutional claim based on formerly “unavailable” law.

The jury charge in applicant’s trial, unlike the jury instructions in Penry II, Tennard, and Smith, contained a fourth special issue, the Question, which focused exclusively upon mitigating evidence. In this case, the jury was specifically asked whether the mitigating evidence and jury’s assessment of applicant’s moral culpability raised any reasonable doubt as to whether the death penalty was the appropriate punishment. Here, before the jury could ever even consider any “nullification” action, it was asked an affirmative, highly focused question: After considering any and all mitigating evidence and the applicant’s level of culpability, his character, background, and the circumstances of the offense, is the penalty of death the appropriate punishment? With its “Yes” answer, the jury unanimously found, beyond a reasonable doubt, that death was the appropriate penalty. This jury, therefore, was clearly and unequivocally capable of giving effect to mitigating evidence in its answer to the Question. The “nullification” problem identified in Penry II never came into play because the jury had already explicitly found that, regardless of any and all mitigating evidence, death was the appropriate punishment. In Penry II, the Supreme Court held that “the key under Penry I is that the jury be able to ‘consider and give effect to [a defendant’s mitigating] evidence in imposing sentence.’ ” In Penry II, the Supreme Court disapproved of an instruction that the jury simply “nullify” special issues within a verdict form rather than specifically consider mitigation evidence on its own merits.

That problem simply does not exist in this case. Although the constitutional concerns set out in Penry II could have arisen in this case had the jury answered the Question with “No,” it did not do so. Any claim that the jurors would have faced a dilemma in answering the first special issue “falsely” simply to give effect to applicant’s mitigating evidence never arose. There is no reasonable likelihood that the jury in this particular case was, in fact, faced with the dilemma denounced in Pen-ry II, Tennard, or Smith.

A habeas applicant cannot establish a constitutional violation simply by demonstrating that an allegedly erroneous jury instruction could have or might have affected some hypothetical jury. As the Supreme Court explained in Boyde v. California:

We think the proper inquiry in such a case is whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence. Although a defendant need not establish that the jury was more likely than not to have been impermissibly inhibited by the instruction, a capital sentencing proceeding is not inconsistent with the Eighth Amendment if there is only a possibility of such an inhibition. This “reasonable likelihood” standard, we think, better accommodates the concerns of finality and accuracy than does a standard which makes the inquiry dependent on how a single hypothetical “reasonable” juror could or might have interpreted the instruction .... Jurors do not sit in solitary isolation booths parsing instructions for subtle shades of meaning in the same way that lawyers might. Differences among them in interpretation of instructions may be thrashed out in the deliberative process, with commonsense understanding of the instructions in the light of all that has taken place at the trial likely to prevail over technical hairsplitting.

The simple, commonsense understanding of the Question and the jury’s unanimous “Yes” response to the Question compel us to conclude that the jury could and did have an adequate vehicle to express its consideration of applicant’s mitigating evidence. Only if we could conclude that a reasonable jury would have falsely answered the fourth special issue with a Wes” response — even though it had found that the mitigating evidence raised a reasonable doubt that the death penalty was the appropriate punishment — because it was unwilling to “falsely” change its answer to the first special issue could we conclude that this special issue and the accompanying instructions are covered by and possibly infirm under Penry II, Ten-nard, and Smith. Therefore, we hold that, as a matter of Texas statutory law, this subsequent application does not contain “sufficient specific facts” that establish that applicant’s current claim is cognizable under the Penry II, Tennard, and Smith line of cases even if we were to decide that this trio of cases created a new legal claim that was unavailable on the date applicant filed his previous writ application. Under Texas statutory law, we are barred from considering the merits of applicant’s subsequent writ.

We therefore dismiss the present application for a writ of habeas corpus under Article 11.071, § 5(a)(1), and lift the stay of execution previously entered by this Court on March 23, 2005.

PRICE, J., filed a dissenting statement in which HOLCOMB, J., joined.

WOMACK, J., dissented.

PRICE, J., filed a statement dissenting to the dismissal of the application, in which HOLCOMB, J., joined.

STATEMENT

The applicant filed a subsequent application for a writ of habeas corpus seeking relief from his capital murder sentence on the basis that the mitigation instruction submitted to the jury in his case violated the Eighth Amendment to the United States Constitution. The majority concludes that the applicant has not met the requirements of Article 11.071 Section 5.

Because I disagree with the majority’s conclusion, I respectfully dissent.

Under the circumstances of this case, Article 11.071 requires that the applicant present sufficient specific facts establishing that the claim is cognizable and was legally unavailable. The majority disposes of the application by dismissing it on the basis that the applicant has not met section 5. It concludes that the jury in this case was not presented with the same nullification problem as the jury in Penry II.

There is no functional difference between the instruction given in this case and the instructions that the Supreme Court held to be unconstitutional in Penry II. The jury was instructed to render a true verdict and was also instructed to change its true verdict under certain circumstances. The trial court submitted to the jury a mitigation question.

Do you find from the evidence beyond a reasonable doubt, after considering all mitigating evidence, if any there be, and considering the defendants level of culpability, character and background and the circumstances of the offense, that the penalty of death is an appropriate punishment?

The jury was instructed that if it answered the mitigation question no, it should cross out its yes answer to special issue number one and write no. It was also instructed that if it could not reach a verdict on the mitigation question, it should also cross out its answer to special issue l.

The fact that the jury answered the mitigation question yes does not end the inquiry. During voir dire, the State explained the process to the venire members. Here is an example of an exchange between the State and one of the venire members:

[State] And then after you consider all this evidence, the Court will tell you that if you believe from all the evidence that the mitigating evidence— the stuff that you think, it in your own mind, lessens the [appellant’s] personal moral culpability, you think there’s enough of that, that you believe that he should be spared the death penalty, even though you’ve decided the answer to all these questions is yes, that you would be instructed that you were then under an obligation to answer two [sic] or more of the questions no.
[Answer] To be instructed to answer them no?
[State] Yes. Because you would believe that the personal, moral culpability of the [appellant] of the defendant was lessened by this mitigating evidence that you had heard to the point where, in this case, that he deserved the death penalty, okay?
[Answer] Okay.
[State] And under the circumstances, then, you would be told to answer one or more of those questions no, even though by the explicit terms the answer was yes. And you see the result of answering it no if ten or more of you agreed that the answer was no would be life instead of death. Do you see that?
[Answer] That’s right.

Venire members were told that they would be required, under certain circumstances, to change their true verdict on one or more of the special issues if they found that the mitigating evidence warranted a sentence other than death. The seeds of the internally inconsistent jury charge were planted during voir dire.

One conclusion that we can reach is that the jury reached its answer to the mitigation question because it gave effect to its reasoned moral response to the evidence. This is not the only conclusion we can reach based on this record. It is also possible that the jurors answered the mitigation yes to avoid violating its oath to render a true verdict. We cannot know. Under these circumstances, we cannot be reasonably certain that the nullification problem never came into play.

In this case, the majority does not address whether the claim was legally unavailable or whether the claim was procedurally defaulted, but I address these questions in the interest of a full hearing of the applicant’s claims. The applicant claims that Penry II was unavailable when he filed his initial application under Article 11.071. His initial application was filed on October 14, 1997. The Supreme Court delivered Penry II in 2001. By the time the applicant filed his initial application, we had held that jury nullification instructions met the constitutional requirements announced by the Supreme Court in Penry I.

In fact, the applicant raised this claim on direct appeal, though it was not directly addressed in our opinion affirming his conviction. In his brief on direct appeal, the appellant argued that the trial court erred in submitting the mitigation question to the jury.

The trial court in this case concocted an instruction which instructs the jury to ignore their oath and answer a submitted question falsely if they want to show mercy. The instruction is irrational and contradictory but better than nothing in the charge to guide the jury’s consideration.... Although it was a noble attempt at judicial legislation, the instruction failed to allow meaningful consideration of the factor’s in [the appellant’s] trial.

In response to this argument, we said only that, “The jury answered the question in the affirmative. This ‘fourth special issue’ is sufficient to meet the commands of Pen-ry.” The claim was presented before, and we summarily disposed of it because we did not have the benefit of Penry II.

The State claims that the applicant procedurally defaulted his claim because his trial counsel did not object to the jury charge on this basis at trial. First, I would say that this was not an issue in Ex parte Smith to the majority of this Court. Although the concurring judges would have ruled on this basis, the majority addressed the merits of the claim. Also, the fact that Smith did not object at trial was not considered by the United States Supreme Court when it granted relief.

Moreover, the State’s objection to the charge made the trial court aware of the problem with the charge. One of the main purposes of a timely and specific objection is to make the trial court aware of the objection so that it may rule on it. That purpose was satisfied in this case.

I want to make one final point. I have no doubt that the trial court in this case was trying to make the best of a bad situation. The Supreme Court had delivered Penry I, but the legislature had not yet provided for a procedure to incorporate the requirements of the decision. And at the time, Article 37.071 required the trial court to impose a death sentence if the jury answered the special issues in a certain way. There was no room for the trial court to simply add another question without also directing the jury to change its answer to one of the special issues. The trial court was definitely caught between a rock and a hard spot. I think we can all agree that the trial court did its best under these difficult circumstances.

I disagree with the majority’s conclusion that the applicant has not met the requirements of Article 11.071, Section 5. I respectfully dissent.

      . This Court does not condone the filing of eleventh hour writs or motions in any case, much less death-penalty cases in which the stakes are so high, absent a showing of good cause. We will not reject a death-row inmate’s last-minute application merely because it is untimely, but we will not hesitate to reject it expeditiously if we conclude that it is frivolous or filed solely as an attempt to delay.

      . 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989).

      . Id. at 315-17, 328, 109 S.Ct. 2934.

      . Robertson v. Cockrell, 325 F.3d 243, 248 (5th Cir.)(en banc), cert. denied, 539 U.S. 979, 124 S.Ct. 28, 156 L.Ed.2d 691 (2003); see also State v. McPherson, 851 S.W.2d 846, 849-50 (Tex.Crim.App.1992) (noting that this Court had “grappled with the application of Penry ” for some time; upholding the submission of an extra-statutory special mitigation issue).

        .See Robertson, 325 F.3d at 249 (noting that “dozens” of capital-murder trials were conducted during this "hiatus” using extra-statutory Penry I instructions).

      . These instructions and the extra-statutory special issue were considerably more favorable toward applicant than current Texas law requires.
      First, the current statute, TexCode Crim. Proc. art. 37.071, § 2(d)(1), requires jurors to be instructed that, in answering the "future dangerousness” and "anti-parties” special issues, they shall consider all evidence admitted at the guilt stage and the punishment stage, including evidence of the defendant's background or character or the circumstances of the offense that militates for or mitigates against the imposition of the death penalty. The jury in this case was not instructed that it must consider evidence about the defendant’s background or character that "militates for” the death penalty. It was told only that it must consider "mitigating circumstances” about the defendant’s character, background or circumstances of the crime.
      Second, the jury was explicitly required to find, beyond a reasonable doubt, that, even after considering all mitigating evidence and applicant’s level of culpability, the penalty of death was still the "appropriate punishment.” The jury was informed that any reasonable doubt must be resolved in applicant’s favor. Under current law, Tex.Code Crim. Proc. art. 37.071, § 2(e)(1), the State has no burden of proof, much less a burden of proof “beyond a reasonable doubt,” to disprove the mitigation value of evidence.

      . This methodology was intended to ensure that both Penry I and Texas statutory law were followed. The Texas statute, at that time, allowed for only three special issues. The death penalty was or was not imposed based upon the answers to those — and only those — special issues. TexCode Crim. Proc. Art. 37.071 (Vernon 1990). Under the Texas law then in effect, the trial judge “shall submit the following three issues to the jury”— those being the “deliberateness,” "future dangerousness,” and, if raised by the evidence, "provocation” special issues. Id. art. 37.071(b). The State was required to prove each issue beyond a reasonable doubt, and the jury "shall return a special verdict of 'yes’ or 'no' on each issue submitted.” Id. art. 37.071(c). Then, "[i]f the jury returns an affirmative finding on each issue submitted under this article, the court shall sentence the defendant to death.” Id. art. 37.071(e). Thus, under then-existing Texas law, if the jury answered each of the statutorily required special issues affirmatively, the trial judge was required to sentence the defendant to death, regardless of whatever other, extra-statutory issues or questions might also be submitted to the jury. The sentence in a capital-murder case depended solely upon the answers to those three statutorily required special issues. See Stewart v. State, 686 S.W.2d 118, 124 (Tex.Crim.App.1984) (stating that "[ojther than the provisions in Article 37.071, V.A.C.C.P., Texas jurisprudence has no authority allowing the submission of special issues to a jury in a criminal case”).
      Thus, any judicial efforts to comply with the Supreme Court mandate in Penry I also had to comply with the legislatively mandated procedure set out in article 37.071. Both the convoluted instructions rejected in Penry II and the present trial court’s submission of the extra-statutory Question, coupled with an instruction to change a "Yes” answer to the • first special issue to a "No” if the jury had answered the Question “No,” were judicial attempts to comply with Texas statutory mandates as well as constitutional standards. See generally, State v. McPherson, 851 S.W.2d 846 (Tex.Crim.App.1992). In McPherson, this Court upheld the imposition of a life sentence when the jury in a capital-murder punishment stage answered the fourth, extra-statutory, special issue "No," reasoning that the Supremacy Clause required that the mandate of Penry I take precedence over the possible conflict with Texas statutory requirements. McPherson, 851 S.W.2d at 850. Judge Clinton, in his concurring opinion in McPherson, cogently set out the dilemma facing Texas judges at that time:
      After Penry, failure of a trial court to inform the jury that it could consider and give effect to mitigating circumstances violates rights of defendant under the Eighth Amendment and renders our capital punishment scheme mandated by former Article 37.071 unconstitutional....
      The judge of the court below manifested his understanding and appreciation of the situation when he caused the court to give the instruction and to submit the fourth special issue to the jury. And ... the trial judge also understood and appreciated the dilemma thus created by affirmative answers to statutory issues and the negative answer to the constitutional issue: on one horn, the statutory mandate that the trial court sentence appellant to death because the jury returned an affirmative finding on each of the only three legislatively prescribed special issues; on the other horn, the absence of an explicit statutory mandate to implement the implicit constitutional dictate that bars the State of Texas from executing appellant because the jury returned a negative finding on special issue four, i.e., that the death penalty is not a reasoned moral response to mitigating evidence favoring appellant.

        Id. at 853 (Clinton, J., concurring).

      . The jurors were instructed that they must be unanimous to answer the mitigation Question "Yes” and that at least ten jurors had to agree before they could answer the Question "No.” If, after due deliberation, they could do neither, then they were not to answer the Question at all.

      . Tex.Code Crim. Proc. Art. 37.071(e) (Vernon 1990) ("If the jury returns a negative finding on or is unable to answer any issue submitted under this article, the court shall sentence the defendant to confinement in the Texas Department of Corrections for life”). The statute addresses only the effect of answers to the statutory special issues "submitted under this article.”

      . Staley v. State, 887 S.W.2d 885, 897 (Tex.Crim.App.1994).

      . Id. at 895 & n. 9.

      . Id.

      . 532 U.S. 782, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001).

      . 542 U.S. 274, 124 S.Ct. 2562, 159 L.Ed.2d 384 (2004).

      . -U.S.-, 125 S.Ct. 400, 160 L.Ed.2d 303 (2004).

      . Ex parte Robertson, AP-74,720, slip op. at 2 (Tex.Crim.App., March 16, 2005) (not designated for publication).

      . Staley, 887 S.W.2d at 897.

      . For this argument, the State relies upon Selvage v. Collins, 975 F.2d 131, 133 (5th Cir.1992) ("we have held that the unsuccessful advancement of Penry claims by defense counsel as early as 1980 demonstrates that such claims were reasonably available at that time”).

      . See Coble v. State, 871 S.W.2d 192, 207 & n. 18 (Tex.Crim.App.1993) (rejecting defendant’s claim that "nullification” jury instruction did not provide an adequate means to give effect to mitigating evidence and noting that defendant had objected to instruction "claiming it shifted the burden of proof to appellant to establish mitigating evidence, it was confusing and did not give the jury a clear means to give mitigating effect to any mitigating circumstances, and it violated the jury’s oath to answer the special issues truthfully”); Robertson v. State, 871 S.W.2d 701, 710-11 (Tex.Crim.App.1993) (rejecting defendant's contention that "nullification” instruction was insufficient vehicle to avoid the constitutional infirmity in Penry); see also Bigby v. State, 892 S.W.2d 864, 890 (Tex.Crim.App.1994) (rejecting defendant’s claim that "nullification” instruction did not satisfy commands of Penry)-, Wheatfall v. State, 882 S.W.2d 829, 840-41 (Tex.Crim.App.1994) (rejecting defendant’s claim that "nullification” instruction "calls for the jurors to act against their natural inclinations by asking them to alter one of their answers to the special issues”).

      . Engle v. Isaac, 456 U.S. 107, 134, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982); see also Smith v. Murray, 477 U.S. 527, 536-37, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986) (rejecting applicant’s contention that he was entitled to rely on the novelty of his constitutional claim as a sufficient cause for his failure to raise that issue in his direct appeal; stating that "the question is not whether subsequent legal developments have made counsel’s task easier, but whether at the time of the default the claim was ‘available’ at all” and noting that “various forms of the claim he now advances” had been percolating in lower courts for years before the time of procedural default).

      . See Ex parte Sowell, 956 S.W.2d 39, 40 (Tex.Crim.App. 1997) (per curiam) (consideration of merits of subsequent writ filed under art. 11.07 barred when applicant failed to include "sufficient specific facts establishing” one of the exceptions to § 4).

      . Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).

      . Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

      . Paredes v. State, 129 S.W.3d 530, 541 (Tex.Crim.App.2004); Resendiz v. State, 112 S.W.3d 541, 550 (Tex.Crim.App.2003).

      . 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002).

      . Penry II, 532 U.S. at 797, 121 S.Ct. 1910 (quoting Penry I, 492 U.S. at 319, 109 S.Ct. 2934).

      . In Penry II, the Supreme Court stated: We generally presume that jurors follow their instructions. Here, however, it would have been both logically and ethically impossible for a juror to follow both sets of instructions. Because Penry's mitigating evidence did not fit within the scope of the special issues, answering those issues in the manner prescribed on the verdict form necessarily meant ignoring the command of the supplemental instruction. And answering the special issues in the mode prescribed by the supplemental instruction necessarily meant ignoring the verdict form instructions. Indeed, jurors who wanted to answer one of the special issues falsely to give effect to the mitigating evidence would have had to violate their oath to render a "true verdict.”
      The mechanism created by the supplemental instruction thus inserted "an element of capriciousness” into the sentencing decision, "making the jurors’ power to avoid the death penalty dependent on their willingness” to elevate the supplemental instruction over the verdict form instructions. There is, at the very least, "a reasonable likelihood that the jury ... applied the challenged instruction in a way that prevented the consideration” of Penry’s mental retardation and childhood abuse. The supplemental instruction therefore provided an inadequate vehicle for the jury to make a reasoned moral response to Penry’s mitigating evidence.

        Penry II at 799-800, 121 S.Ct. 1910 (citations omitted).

      . 494 U.S. 370, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990)'.

      . Id. at 380-81, 110 S.Ct. 1190.

      . Tex.Code Crim. Proc. art. 11.071, § 5(a)(1).

      . We also need not address the question of whether, under Texas state law, applicant procedurally defaulted this claim by failing to make a contemporaneous objection in the trial court to the “nullification” instructions accompanying the Question. See, e.g., Ex parte Smith, 132 S.W.3d 407, 423-24 (Tex.Crim. App.2004) (Hervey, J., concurring) and id. at 428 (Holcomb, J., concurring), rev’d on other grounds sub nom Smith v. Texas, - U.S. -■, 125 S.Ct. 400, 160 L.Ed.2d 303 (2004).

      . Penry v. Johnson, 532 U.S. 782, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001).

      . It is not relevant that the instructions may have been more favorable to the applicant in some aspects. The only relevant question for our purposes is whether the instructions caused the applicant to be sentenced in violation of the Eighth Amendment.

      . Fuller v. State, 829 S.W.2d 191, 209 (Tex.Crim.App.1992), cert. denied 508 U.S. 941, 113 S.Ct. 2418, 124 L.Ed.2d 640 (1993).

      . Staley v. State. 887 S.W.2d 885, 897 (Tex.Crim.App.1994).

      . Ex parte Smith, 132 S.W.3d 407, 417 (Tex.Crim.App.2004).

      . Ibid. (Hervey, J., concurring); id., at 428 (Holcomb, J., concurring).

      . See Smith v. Texas, ■— U.S.-, 125 S.Ct. 400, 160 L.Ed.2d 303 (2004).

      . Garza v. State, 126 S.W.3d 79, 82 (Tex.Crim.App.2004).


source: Caselaw Access Project

author: DAVID L. RICHARDS, Justice (Assigned). TOM GRAY, Justice,

license: Public Domain

text:
    Robert BLACK, Appellant, v. DELTA AIRLINES, INC., A1 Perez, and Abe Haddad d/b/a Smith Travel & Limousine, Appellees.
    No. 10-00-156-CV.
    Court of Appeals of Texas, Waco.
    Jan. 30, 2002.

      Ronald E. Harden, Dorothy Harden, Harden Law Firm, L.L.P., Terrell, for appellant.
    Jimmy C. Bailey, Jimmy C. Bailey & Associates, P.C., Dallas, Dan K. Horn, John M. Weaver, Maloney, Bean & Horn, P.C., Irving, for appellees.
    Before Justice VANCE, Justice GRAY, and Justice RICHARDS (Sitting by Assignment).
   OPINION

DAVID L. RICHARDS, Justice (Assigned).

This is an appeal from two take nothing summary judgment orders entered against Robert Black [“Black”], a Dallas resident, in connection with his suit for damages arising from a planned airline flight to Las Vegas from Dallas/Fort Worth International Airport. The summary judgment motions were filed pursuant to TEX. R. CIV. P. 166a(b). Delta Airlines, Inc. [“Delta”], A1 Perez [“Perez”], and Abe Haddad d/b/a Smith Travel & Limousine [“Smith Travel”] were defendants in the court below. We will reverse the district court’s summary judgment orders and remand the case for trial.

I. Factual Background

On June 23, 1995, Black purchased two airline tickets for seats on Delta Airlines for an afternoon flight to Las Vegas, Nevada. According to Black, he intended the trip to be a surprise present for his wife, Mary. Black hoped that the trip would help repair his damaged marriage and, to that end, he attempted to ensure a romantic weekend by arranging for, among other things, first-class airline seats, a leisurely dinner, and tickets to a Tom Jones concert on the evening of their arrival. Viewed in the light most favorable to Black, the non-movant in the district court, the record reflects the following events:

Black purchased the airline tickets on June 23, 1995 from Smith Travel, a Dallas travel agency. The cost for the two, round-trip, first-class tickets was $2,384, an amount Black charged on a credit card. The written invoices appellant received from Smith Travel reflected two first-class reservations on Delta Airlines Flight 661 to Las Vegas, scheduled to depart that same day, June 23, at 3:18 p.m. The invoices also reflected the details of a scheduled return flight to Dallas on June 25. Close inspection of the invoices shows seat assignments for “Robert Black” for both directions, however, Mary Black’s invoice reflects a seat assignment only for the return flight. Nevertheless, her invoice reflects first-class reservations both directions. According to Black, Melissa Shinn, the manager of Smith Travel, personally represented to him that both tickets were confirmed for first-class travel. Two round-trip tickets accompanied the itinerary/invoices. Each ticket indicates, “Issued by DELTA AIRLINES INC,” and reflects first-class travel for each of the Blacks on flight 661 to Las Vegas, and flight 1800 on the return trip.

The Blacks arrived at the gate prior to departure and informed the gate agent that they desired to sit together. The agent said, “I’ll see what I can do.” As the plane boarded, a Delta supervisor, A1 Perez, appeared and told the Blacks that there was a problem with their reservations and that one of the tickets was, in fact, not confirmed for first-class travel. According to Delta, Black’s ticket was confirmed for first-class, but the ticket for Mary was merely a confirmed ticket for a seat in coach, which had been placed on a “priority wait list for first-class.” Because first-class was completely filled, Mary would have to fly in coach. Perez spoke on the phone to Shinn, then told the Blacks that Shinn’s computer indicated that the tickets were confirmed for first-class. Perez told them that Delta’s computer indicated Mary’s ticket was not confirmed. The Blacks presented summary judgment evidence that this situation is routinely encountered by Delta and that hundreds of times passengers arrive at the gate with confirmed tickets that are somehow not reflected in the SABRE reservation system used by Delta. In response to the Blacks plight, several alternatives were offered by Perez: the Blacks could sit together in coach; fly separately, one in coach, one in first-class; or take a later flight. Black presented evidence that the offered alternatives were unacceptable given the purpose of the trip: a first-class romantic flight, and the tight schedule for attending already paid-for functions in Las Vegas, including the Tom Jones concert that evening.

After rejecting Delta’s proposed alternatives Black made other flight arrangements. At a cost of $13,150, Black hired a private air carrier to transport them to Las Vegas.

II. Procedural Background

Black sued Delta under theories of breach of contract, intentional misrepresentation, and negligent misrepresentation. He sued Haddad, in his capacity as owner of Smith Travel, under theories of breach of contract, intentional misrepresentation, negligent misrepresentation, violations of the Texas Deceptive Trade Practices Act, and negligence. Black sued Perez, the Delta flight supervisor, for intentional misrepresentation and negligent misrepresentation.

Delta and Perez moved for summary judgment on four grounds: (1) preemption under the Airline Deregulation Act of 1978 [“ADA”]; (2) lack of causation; (3) avoidable consequences; and (4) Smith Travel’s lack of an agency relationship with Delta. That motion for summary was granted. Haddad moved for summary judgment on similar grounds, save for the agency claim. In addition, Haddad alleged that summary judgment was proper because he was not the owner of Smith Travel at the time Black purchased the tickets. His motion for summary judgment was also granted.

III. Discussion

A. Standard of review

In a summary judgment case, the issue on appeal is whether the movant met his summary judgment burden by establishing that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex.1999); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979). The burden of proof is on the movant, and all doubts about the existence of a genuine issue of material fact are resolved against the mov-ant. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex.1999); Friendswood Dev. Co. v. McDade + Co., 926 S.W.2d 280, 282 (Tex.1996); Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965). Therefore, we must view the evidence and its reasonable inferences in the light most favorable to the nonmovant. Great Am., 391 S.W.2d at 47.

In deciding whether there is a material fact issue precluding summary judgment, all conflicts in the evidence are disregarded and the evidence favorable to the non-movant is accepted as true. Rhone-Poulenc, 997 S.W.2d at 223; Harwell v. State Farm Mut. Auto. Ins. Co., 896 S.W.2d 170, 173 (Tex.1995). Evidence that favors the movant’s position will not be considered unless it is uncontroverted. Great Am., 391 S.W.2d at 47.

The summary judgment will be affirmed only if the record establishes that the mov-ant has conclusively proved all essential elements of the movant’s cause of action or defense as a matter of law. Clear Creek Basin, 589 S.W.2d at 678. Where, as here, the trial court grants summary judgment in a general order without specifying the ground or grounds relied on for its ruling, summary judgment will be affirmed on appeal if any of the theories advanced are meritorious. Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex.1995).

B. Preemption Analysis

We begin by considering whether the ADA prevents Black from advancing his causes of action in state court. Under the supremacy clause of the United States Constitution, federal law may preempt state law either by express provision, by implication, or by a conflict between federal and state law. N.Y. State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 653-55, 115 S.Ct. 1671, 1676, 131 L.Ed.2d 695 (1995), see also U.S. CONST. ART. VI. The manifest intent of the ADA’s preemption provision is to “ensure that the States would not undo federal deregulation with regulation of their own.” American Air lines v. Wolens, 513 U.S. 219, 222, 115 S.Ct. 817, 821, 130 L.Ed.2d 715 (1995) (quoting Morales v. Trans World Airlines, Inc., 504 U.S. at 378, 112 S.Ct. at 2034,119 L.Ed.2d 157 (1992)); see also Legend Airlines, Inc. v. City of Fort Worth, 23 S.W.3d 83 (Tex.App.-Fort Worth 2000, pet. denied). The ADA prohibits States from “enactfing] or enforc[ing] any law ... relating to [air carrier] rates, routes, or services.” 49 U.S.C. § 40101, et seq. (1995). This language has been interpreted by the United States Supreme Court as preempting, and thus barring, state-imposed regulations of air carriers. American Airlines, Inc. v. Wolens, 513 U.S. at 222, 115 S.Ct. 817. Claims for breach of contract, however, do not constitute “state imposed regulations,” where parties seek redress in state court for the violation of contract terms set by the parties themselves. Id. at 232, 115 S.Ct. 817. The specific issues addressed in Wolens involved claims brought in Illinois state court alleging that American Airlines’ action in changing mileage credits in its frequent flier program for credits passengers had already accumulated, constituted a breach of contract and a violation of the Illinois Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act), 815 Ill. Comp. Stat. Sec 505/1 et seq. (1992). Id. at 224, 115 S.Ct. 817.

Because the Illinois Consumer Fraud Act controlled the primary conduct of those parties falling within its governance, the United States Supreme Court held that the Illinois statute might be used as a means to guide and police the marketing practices of airlines. Id. at 232, 115 S.Ct. 817. Noting that the purpose of the Airline Deregulation Act was to prohibit the states from controlling the selection and design of marketing mechanisms appropriate to the furnishing of air transportation services, the Supreme Court held the ADA preempted the plaintiffs claims under the Illinois Consumer Fraud Act. Id. at 228-232,115 S.Ct. 817.

A different result was reached by the high court on the question of whether breach of contract claims are preempted. Reasoning that the Airline Deregulation Act was not intended to regulate contracts between individual parties, the court held it would not read the preemption clause, 49 U.S.C.S. § 1305(a)(1), to “shelter airlines from suits alleging no violation of state-imposed obligations, but seeking recovery solely for the airline’s alleged breach of its own, self-imposed undertakings,” and ruled breach of contract causes of action were not subject to federal preemption. Id. at 229, 115 S.Ct. at 824. The Supreme Court clarified its ruling by noting the disparate treatment of statutory causes of action as opposed to those arising out of contractual agreements:

This distinction between what the State dictates and what the airline itself undertakes confines courts, in breach of contract actions, to the parties’ bargain, with no enlargement or enhancement based on state laws or policies external to the agreement.

Id. at 238,115 S.Ct. 817 (footnote omitted).

A rote application of the ruling in Wol-ens would require us to hold that Black’s breach of contract claim against Delta is permissible because it involves alleged violations of “the parties bargain,” rather than state laws external to the agreement. Nevertheless, we cannot overlook the fact that the alleged contractual violation at issue in this appeal involves a common condition unique to the airline industry-the failure to seat an allegedly confirmed ticket holder because of overbooking-and that unlike the frequent-flier agreements at issue in Wolens, specific federal regulations govern compensation for air passengers who are involuntarily prevented from boarding a flight due to overbooking. See 14 C.F.R. §§ 250.4, 250.5, 250.6 (1984).

In other contexts, the Supreme Court has held that when the statute is silent or ambiguous courts should turn to agency regulations for clarification. West v. Northwest Airlines, Inc., 995 F.2d 148, 151 (9th Cir.1993). If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to provide a specific provision of the statute by regulation. Federal regulations provide for compensation for passengers whose confirmed reservations are not honored, without requiring that the passenger prove economic damages or physical injury. 14 C.F.R. §§ 250.4, 250.5, 250.6 (1984). The regulations provide for a maximum compensation of $400, which is halved if the carrier provides alternate transportation that is planned to arrive at the passenger’s next destination within a designated time of the arrival time of the original flight from which the passenger is bumped for flights within the United States and its territories. Significantly, 14 C.F.R. § 250.2a states that the policy behind its creation is to ensure that every air carrier ensure that the smallest practicable number of persons holding confirmed reserved space on flights are denied boarding involuntarily. The regulations provide a uniform system of compensation that may be enforced by the ticket holders, or declined by the ticket holders, at their discretion, in favor of damages to be decided “in a court of law or in some other manner.” See 14 C.F.R. § 250.9(b) (1984). By Black’s own admission Delta attempted to placate him with alternatives, but none were acceptable.

As noted above the regulations provide that the “bumped passenger has the right to decline the compensation provided for in the regulation and seek to recover damages in a court of law.” See 14 C.F.R § 250.10 (1984) (Emphasis added). Delta argues Black was not bumped because she was offered $60 compensation for sitting in the flight’s coach cabin, rather than in the first class cabin. According to Delta, all other remedies are preempted because § 250.6, provides that, among other exceptions to eligibility for “denied boarding compensation,” are passengers “... seated in a section for which a lower fare is charged shall be entitled to an appropriate refund.” Black produced summary judgment evidence showing she held a confirmed, first-class ticket. Delta produced summary judgment evidence showing the ticket was confirmed only for coach. As noted above, settled summary judgment law requires us to construe the evidence in the light most favorable to Black, the nonmovant. Under this standard, we assume that Black was denied her “confirmed reserved space” on Flight 661 due to airline overbooking. Addressing Delta’s claim that Black was entitled to only $60 because she was offered seating in coach, we note that 14 C.F.R. § 250.6 does not specifically preempt Black’s claim. It merely lists Black’s situation (denied first class boarding with an offer for coach boarding) as an “exception” to “eligibility for denied boarding compensation.” We therefore agree with Delta’s contention that, because Mary was offered coach seating, Black would not be entitled to demand the federally required damages available to “bumped” passengers choosing compensation under the regulations of “200 percent of the sum of the values of the passenger’s remaining flight coupons up to the passenger’s next stopover, or if none, to the passenger’s final destination, with a maximum of $400.” 14 C.F.R. § 250.5. However, to say the Black cannot claim damages outside the regulation’s compensation system would be incorrect. In fact, nothing in the code of federal regulations bars anyone from foregoing regulation remedies and seeking damages in state court. 14 C.F.R. § 250.9 (1984) requires the airlines to inform passengers paid compensation that “[ajcceptance of the compensation may relieve (name of air carrier) from any further liability to the passenger caused by its failure to honor the confirmed reservation. However, the passenger may decline the payment and seek to recover damages in a court of law or in some other manner.” (Emphasis added). Because federal airline regulations allow passengers whose airline reservations are not honored due to overbooking to seek recovery for damages “in a court of law or in some other manner,” we hold that Black’s breach of contract cause of action against Delta is not preempted by the ADA. Moreover, even if Delta were correct in its contention that passengers in Black’s situation can recover only an “appropriate refund” for involuntary seating in coach while holding a reserved, first class ticket, Delta has not shown that the $60 tendered to Black was “appropriate.”

Federal regulations provide that a person offered accommodations in a section of the aircraft other than as specified on their ticket gives up his or her right to compensation under scheme available in the regulations, but no such waiver is stated for persons who choose the “passenger option” of “recovering damages in a court of law.” See 14 C.F.R. § 250.9 (1984). We additionally note that Black contends no Delta employee requested other first-class passengers holding reservations to volunteer for a payment of Delta’s choosing in return for sitting in coach. If Mary’s ticket was confirmed for first-class and Delta did not request volunteers from other ticketed passengers to give up their seat assignment in exchange for an airline incentive, Delta itself was in violation of the very federal regulations it contends foreclose Black from recovering in a court of law. 14 C.F.R. § 250.9 (1984) provides:

Written explanation of denied boarding compensation and boarding priorities.
(a) Every carrier shall furnish passengers who are denied boarding involuntarily from flights on which they hold confirmed reserved space immediately after they are denied boarding occurs, a written statement explaining the terms, conditions, and limitations of denied boarding compensation....
(b) The statement shall read as follows:
If a flight is oversold (more passengers hold confirmed reservations than there are seats available), no one may be denied boarding against his or her will until airline personnel first ask for volunteers who will give up their reservation willingly, in exchange for a payment of the airline’s choosing. If there are not enough volunteers, other passengers may be denied boarding involuntarily in accordance with the following boarding priority of (name of air carrier): (In this space carrier inserts its boarding priority rules or a summary thereof, in a manner to be understandable to the average passenger).

To be sure, Delta offered summary judgment evidence that Al Perez did seek volunteers from other first-class passengers and that, in fact, he offered the generous incentive of an additional round-trip ticket to anywhere in the United States to any first-class passenger who would give up their seat to Mary and agree to fly on the same flight in coach. According to Perez, only after no passenger volunteered did he deny Mary first-class seating. However, other evidence suggested that was not true. Every reasonable inference must be indulged in favor of the non-movant and every doubts resolved in its favor. See, e.g., Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). Black offered summary judgment evidence that he and his wife arrived at the departure gate between one hour and forty-five minutes in advance of boarding, that he did not witness Perez seeking volunteers from the other first-class passengers, and that, in fact, the flight was already in the process of boarding when Mary was first informed that her reservation for first-class would not be honored. Significantly, Black also averred that Perez did not appear at the gate until the gate agents were in the process of boarding passengers for the flight. It is reasonable to infer that if Perez had asked every first-class passenger to volunteer to give up their ticket, he would have done so over the gate public address system. Because Black was present when Perez arrived at the gate and did not witness Perez make any offer seeking volunteers from the other first-class passengers, in viewing the evidence in the light favorable to Black, a reasonable inference is that Delta did not seek volunteers before denying Mary first-class seating.

Whether Black’s claims against Delta for intentional and negligent misrepresentation are preempted by the ADA presents a closer question. In both Morales and Wolens, the United State’s Supreme Court held that causes of action based on state consumer protection statutes are preempted under the ADA. The Texas Supreme Court accurately predicted in Continental Airlines v. Kiefer that this very question would one day be presented to a reviewing court:

An action for negligent misrepresentation might be argued to be indistinguishable from the statutory consumer protection actions [held preempted] in Morales and Wolens. Strict products liability could be argued to embody State policies to a degree prohibited by ADA regulation policy. These are but two examples. We need not address these issues here but leave them for “a closer working out” in future cases. We hold only that the ADA does not preempt common-law personal injury cases negligence claims against air carriers, subject to the reservations we have expressed as to damages.

Continental Airlines v. Kiefer, 920 S.W.2d 274, 283 (Tex.1996).

We now proceed to the “closer working out,” anticipated in Kiefer. We begin by noting that while Black seeks relief under the Texas consumer protection law corollary to the state laws held preempted by the ADA in Morales and Wolens-the Texas Deceptive Trade Practices Act -he does so only in relation to his claims against Haddad, the owner of the travel agency. A claim against Delta for alleged violations of the Deceptive Trade Practices Act would be preempted by the ADA, in order to prevent our state legislature from controlling, through consumer protection acts, “the design and implementation of marketing mechanisms appropriate to the furnishing of air transportation services.” See American Airlines v. Wolens, 513 U.S. 219, 115 S.Ct. 817, 130 L.Ed.2d 715 (1995); See also Shupe v. American Airlines, Inc., 893 S.W.2d 305, 307-308 (Tex.App.-Fort Worth 1995), affirmed 920 S.W.2d 274. However, the, theories of intentional and negligent misrepresentation actually pleaded by Black do not turn on any requirement imposed on Delta by any Texas legislative body. Instead they turn on representations alleged by Black to have been personally made to him by Delta through Perez, and Delta’s alleged agent, Haddad. This makes the misrepresentation causes of action more similar to the breach of contract claims historically held not to be preempted by the ADA, than the consumer protection act causes of action determined by courts to be preempted, because the misrepresentation claims involve actions between the parties in connection with “self-imposed undertakings,” a factor deemed significant by the Supreme Court in Wolens. cite. For this reason, we hold that Black’s causes of action against Delta for intentional and negligent misrepresentation are not preempted by the ADA.

Because Delta flight supervisor A1 Perez’s summary judgment claims are based on the same grounds advanced by Delta, including the preemption claims, we find that Black’s causes of action against Perez for intentional and negligent misrepresentation are also not preempted by the ADA. Our disposition of the preemption issue against Delta and Perez is similar, except that we must also determine whether travel agencies are covered under the ADA.

Haddad maintains that as a travel agency marketing airline tickets, Black’s cause of action against his business for alleged violations of the Texas Deceptive Trade Practices Act is preempted by the ADA for the same reason such a cause of action would not be permitted against an airline. Haddad specifically argues that the ADA preempts claims, “directly related to services provided by an air carrier and those that make reservations for service for an air carrier.” We disagree. The ADA provides that no state “shall enact or enforce any law, rule, regulation, standard, or other provision having the force and effect of law relating to rates, routes, or services of any air carrier.” 49 U.S.C. § 41713(b)(1) (1994) (emphasis added). The burden of demonstrating preemption is on the party who asserts it. See Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 255, 104 S.Ct. 615, 78 L.Ed.2d 443 (1984). Haddad has not demonstrated on appeal, nor in the court below, a congressional intent to shield travel agencies from state consumer protection laws through the ADA. We agree with Black’s assertion that his claims against Haddad involve privately-ordered undertakings that affect the airlines, if at all, in too tenuous, remote, or peripheral a manner to have preemptive effect. See Morales v. Trans World Airlines, 504 U.S. at 390,112 S.Ct. 2031. We therefore hold that Black’s causes of action against Haddad, including the claimed violation of the Texas Deceptive Trade Practices Act, are not preempted by the ADA.

C. Causation

Summary judgment was also sought on grounds that the damages Black suffered were not caused by any wrongdoing on the part of any appellee. The specific argument made by Delta, Perez, and Haddad in their summary judgment motion in the district court follows:

The undisputed evidence shows that plaintiff and his wife could have traveled on flight 661, with one passenger in first-class and the other in coach. Even if Mrs. Black was wrongfully denied a seat in first-class, the ultimate result of that alleged wrongdoing is that Mrs. Black would sit in coach for the 2½ hour flight, just like 185 other passengers on this particular Boeing 767. Because the Blacks were not denied transportation on flight 661, alternate flight arrangements were not necessary.... At most, the Blacks would have suffered “mental anguish” from the moral, social, or marital humiliation of travel in coach rather than first-class. As the Blacks are probably aware, of course, such a claim would not have a significant legal value.

Put another way, the movants contend that the Blacks were, as a matter of law, required to fly on Flight 661 to avoid having their claim dismissed on grounds of causation. We do not agree. Although the economic damages allegedly suffered by Black when he chartered a private jet to fly him to Las Vegas to ensure his arrival for dinner and the Tom Jones concert were substantial, we cannot say, as a matter of law, that a rational jury could not find that Black suffered at least some damage as a result of the appellee’s conduct. “[T]he question of causation (foreseeability) which controls liability should be determined from the facts and circumstances of each particular case, and except where reasonable minds cannot differ, the issue is one for the jury.” Strakos v. Gehring, 360 S.W.2d 787, 792 (Tex.1962). We hold that there is at least some evidence that the allegedly improper conduct of the defendants caused Black damages.

D. Avoidable Consequences

Delta, Perez and Haddad, contend that Black could have avoided the damages he allegedly suffered if he had mitigated his damages through other available travel alternatives. As a general rule, whether a party has mitigated his damages is a question of fact reserved to the fact finder at trial. Walker v. Salt Flat Water Co., 128 Tex. 140, 96 S.W.2d 231, 233 (Tex.1936). Black presented evidence that he could not take a later Delta flight to Las Vegas because his already scheduled post-arrival plans, including pre-purchased tickets to the Tom Jones concert, would not permit a later arrival. He also presented evidence that sitting in coach would conflict with the reason for the trip: a demonstration, through first-class accommodations, of his love for his wife and a desire to strengthen his weakening marriage. Whether Black could have avoided the expense of a privately chartered jet is an issue we believe is best left to the trier of fact. Appellate courts are particularly ill-equipped to determine, as a matter of law, whether particular actions undertaken to advance interests in “affairs of the heart,” such as Black’s stated motivation here, are reasonable. Such issues are better left to the trier of fact to resolve. We therefore hold that summary judgment in favor of appellees is not proper under the theory of “avoidable consequences.”

E. Agency

Delta and Perez contend that summary judgment was appropriate because Smith Travel was, as a matter of law, not acting as their agent at the time Black purchased his tickets. In other words, Delta and Perez claim that they were not parties to the travel contract made between Black and Smith Travel. We hold that like the issues of causation and avoidable consequences, the agency question presented in this case cannot be resolved as a matter of law.

Delta and Perez moved for summary judgment under this defensive theory based solely on the affidavit of Linda Wilson, a Reservation Sales Supervisor for Delta. In her affidavit, Wilson averred she has been employed in Delta’s reservation department for twenty-nine years and that Smith Travel, “like all U.S. travel agencies,” is authorized by a separate corporation, the Airline Reporting Corporation (“ARC”), to issue tickets on airlines, but that it does not act as an agent for Delta. She also avers that the ARC does not authorize travel agents to confirm or accept a reservation on an airline flight and that when requesting reservations on Delta travel agents act exclusively on behalf of the passenger. In response to Wilson’s affidavit, Black presented the affidavit of James Hargis, a former Delta passenger service agent with twenty five years’ experience. In connection with the question of agency, Hargis directly contradicted Wilson and stated that “when a travel agent issues a ticket, the travel agent acts on behalf of the air carrier, which in this case is Delta.” The written disclaimer on the travel documents Black received from the travel agency at the time of ticketing similarly states that Smith Travel & Limousine is acting as an agent for Delta. Under these disputed facts we hold that Delta and Perez have not established, as a matter of law, that Smith Travel & Limousine was not acting as Delta’s agent.

F. Ownership of Smith Travel & Limousine

Haddad moved for summary judgment on the additional ground that he was not the owner of Smith Travel & Limousine on June 23, 1995. In support of that claim, Haddad signed an affidavit in which he averred that on April 1, 1995, he sold Smith Travel & Limousine, to a corporation, Around the Glop, Inc. A written purchase agreement documenting the sale was attached to his affidavit. In response, Black produced a certified record from the Dallas County Clerk’s Office certifying Abe Haddad began doing business as “Smith Travel & Limousine,” on June 10, 1991, and that he was still on record in that same capacity as of August 22, 1997. Black also tendered an affidavit certified by the office of the Texas Secretary of State indicating that there was no record of entry indicating any assumed names certificates on file for the corporation known as Around the Glop, Inc. We hold that because of this conflicting evidence, that it was not established, as a matter of law, that Abe Haddad was not doing business as Smith Travel & Limousine on the date Black purchased his airline tickets.

Having determined that summary judgment was not proper on any of the grounds advanced by appellees in the district court, we sustain issues one and two. Given our disposition of those issues, it is not necessary that we address the remaining issues advanced by Black on appeal. We reverse the district court’s orders granting summary judgment and remand the case for trial.

Justice GRAY concurring.

TOM GRAY, Justice,

concurring.

This case is being reversed and remanded. With that I agree. But the only issue which we needed to decide to reach that result is the question of whether Haddad is the agent for Delta. Black presented some evidence that Haddad is the agent of Delta. Accordingly the motions for summary judgment of Delta and Perez must be reversed for a determination of that issue. Haddad’s motion must also be reversed because of the same issue and for the additional reason that Black introduced some evidence from which it could be inferred that Haddad was the owner of the unincorporated travel agency at the time that Black purchased the tickets.

Once the issue of agency is determined on remand, many of the other issues purportedly decided in this opinion will be advisory opinions because they will no longer be necessary to a disposition of this case. The answer to the agency question will control the causes of action that Black can assert and against whom, the nature of the damages that can be recovered (tort versus contract — general versus special ), what evidence can be considered against which defendants, and a multitude of other “ripple effects” in the manner in which some of the issues presented in this appeal should ultimately be decided.

The majority gets trapped into attempting to resolve many of these issues prematurely because this is a very complex area of the law and the parties have failed to appreciate the conflicts in the various arguments they have made in their briefs. This problem is compounded because the briefs of the parties have failed to clearly present what allegations were made in the alternative and the consequences of “proving” one alternative or the other. On these briefs, and because on remand there may be additional factual development that would assist us, I would not attempt to decide whether Black’s claims for intentional misrepresentation (fraud) and negligent misrepresentation are preempted by the Airline Deregulation Act.

Finally, because I believe any decision regarding the preemption issue to be premature, I express only my reservations about the majority’s conclusion that the torts of fraud and negligent misrepresentation are more similar to breach of contract claims than they are to consumer protection statutes and therefore are not covered by the Airline Deregulation Act’s preemption of efforts by the various states to regulate the airline industry.

With these comments, I concur in the judgment.

      . See TEX. BUS. & COM. CODE ANN. § 17.45 (Vernon Supp.2001).

      . Other parties originally included in the suit were either non-suited by Black or had default judgments entered against them.

        . See 49 U.S.C. § 1305 (1994).

      .The Federal Aviation. Act cited by the parties was repealed, revised, and recodified in July 1994, prior to the date Black purchased his tickets. Congress enacted 49 U.S.C. § 40101, et seq (1995), which replaced section 1305 without substantive change. The new law includes section 41713 entitled "Preemption of authority over prices, routes, and services,” intended to replace section 1305. The revised section contains only a few minor changes in the language, but the substance is left intact. Section 41713(b)(1) in part provides: "a State ... may not enact or enforce a law ... having the force and effect of law related to price, route, service of an air carrier ...” This is substantially the same as the old section 1305 cited by the parties. The legislative history indicates that the "purpose of [the revision] is to restate in comprehensive form, without substantive change, certain general and permanent laws related to transportation and .. .to make other technical improvements in the Code.” H.R.Rep. No. 180, 103rd Cong., 2nd Sess. 1 (1993) reprinted in 1994 U.S.Code Cong, and Admin. News at 818.

      . A claim for a breach of contract requires proof that (1) a binding contract existed; (2) defendants breached the contract; (3) plaintiffs suffered damages caused by the defendant’s alleged breach. East Tex. Med. Center Cancer Inst. v. Anderson, 991 S.W.2d 55, 62 (Tex.App.-Tyler 1998, pet. denied); Ryan v. Superior Oil Co., 813 S.W.2d 594, 596 (Tex. App.-Houston [14th Dist.] 1991, writ denied).

      . In Morales, the high court held the ADA precluded state attorneys general from seeking to compel air carriers to comply with guidelines adopted by the National Association of Attorneys General. Morales, 504 U.S. at 383-90, 112 S.Ct. at 2036-40. American Airlines v. Wolens stands for the proposition that the ADA does not preclude state courts from entertaining certain common law tort and contract actions based on the actions of air carriers. See American Airlines v. Wolens, 513 U.S. at 232-34, 115 S.Ct. at 826.
      Using those benchmark cases as guides, reviewing courts of this state have carefully examined the nature of the plaintiff’s cause of action in order to determine whether the claim is preempted by the ADA. See Continental Airlines, Inc. v. Kiefer, 920 S.W.2d 274, 284 (Tex. 1996) (claims for simple negligence held not preempted by the ADA); The Boon Insurance Agency, Inc. v. American Airlines, Inc., 17 S.W.3d 52 (Tex.App.-Austin 2000) cert, denied 148 L.Ed.2d 772, 121 S.Ct. 858, 148 L.Ed.2d 772 (2000) (class-action suit challenging penalties imposed by the airline when the holder of an economy-class ticket fails to travel according to the ticket’s original terms, held barred by preemption doctrine because claim sought to modify terms of the contract by relying on state law); Legend Airlines, Inc. v. City of Fort Worth, 23 S.W.3d 83 (Tex.App.-Fort Worth 2000, pet. denied) (enforcement of bond ordinance restrictions to prevent long-haul air service at Dallas Love Field held preempted by the ADA); Shupe v. American Airlines Airlines, Inc. 893 S.W.2d 305 (Tex.App.-Fort Worth 1995), aff’d 920 S.W.2d 274 (Tex.1996) (breach of contract cause of action for failure to comply with agreement to provide a "meet and assist” service at airport terminal gate held not preempted).

      . See 14 C.F.R. § 250.1 (1983). " ‘Confirmed, reserved space’, means space on a specific date and on a specific flight and class of service of a carrier which has been requested by a passenger and which the carrier or its agent has verified, by appropriate notation on the ticket or in any other manner provided therefor by the carrier, as being reserved for the accommodation of the passenger.”

      . We here address only the issue of preemption. Whether the facts could support a claim under either of these theories was not presented to the trial court.

      . TEX. BUS. & COM. CODE ANN. § 17.46 (Vernon Supp.2001).

      . Haddad took no position in his summaiy judgment motion on the question of whether he was acting as an agent of Delta in issuing the tickets to Black. We therefore are not presented with (and do not address) whether Haddad is entitled to protection from Black's deceptive trade practices cause of action if Haddad is proven to be Delta’s agent.

      . An agent is one who consents to act on behalf of, and subject to, the control of the principal, who has manifested consent that the agent so act. Hand v. Dean Witter Reynolds, Inc., 889 S.W.2d 483, 493 (Tex.App.Houston [14th DistJ 1994, writ denied). Each side tendered summary judgment affidavits which purported to establish whether Haddad was Delta’s agent. To the extent that each respective affidavit, in addition to providing facts pertinent to that issue, addressed the ultimate question of whether an agency relationship existed, the affidavits were improper. See Watkins v. Hammerman & Gain

        er, 814 S.W.2d 867, 870 (Tex.App.-Austin 1991, no writ).

      . See Weber v. Domel, 48 S.W.3d 435 (Tex. App.-Waco 2001, no pet. h.).

      . See Hadley v. Baxendale, 9 Exch. 341, 156 Eng. Rep. 145, 5 Eng. Rui. Cas. 502, 1854 WL 7208 (1854).


author: BILL VANCE, Justice.

text:
    In re NEATHERLIN HOMES, INC.
    No. 10-03-391-CV.
    Court of Appeals of Texas, Waco.
    Feb. 11, 2004.
    Theodore J. Riney, Catherine C. Kays, Geary, Porter & Donovan, P.C., Dallas, for relator.
    Timothy C. Anderson, Austin, for interested party.
    Before Chief Justice GRAY, Justice BILL VANCE, and Justice REYNA.
   OPINION

BILL VANCE, Justice.

Claude Nealy sued Neatherlin Homes over defects in a home he purchased. The retail installment contract contained an arbitration provision. Neatherlin Homes moved to compel arbitration “under the Civil Practice and Remedies Code,” ie., the Texas Arbitration Act. Tex. Civ. Prac. & Rem. Code Ann. Ch. 171 (Vernon Supp. 2004). The court denied the motion. Neatherlin Homes petitioned us for a writ of mandamus, citing the Federal Arbitration Act (“FAA”). 9 U.S.C.A. §§ 1-16 (West 1999). Because Neatherlin Homes did not “invoke” the FAA or raise its applicability in the trial court, we deny the petition. In re L & L Kempwood Assoc., L.P., 9 S.W.3d 125, 127 (Tex. 1999) (invoking the FAA); In re American Optical Carp., 988 S.W.2d 711, 714 (Tex. 1998) (raising argument in trial court).

      . The Texas Arbitration Act provides for an interlocutory appeal of the denial of a motion to compel arbitration. Tex.Civ.Prac.&Rem. Code Ann. § 171.098 (Vernon Supp. 2004). However, "[a] party denied the right to arbitrate under the Federal Arbitration Act by a state court has no adequate remedy by appeal and is entitled to mandamus relief to correct a clear abuse of discretion.” InreL & L Kemp-wood Assoc., L.P., 9 S.W.3d 125, 128 (Tex. 1999).


author: PER CURIAM. TOM GRAY, Chief Justice,

text:
    In re Milton Louis WILLIAMS.
    No. 10-03-00402-CR.
    Court of Appeals of Texas, Waco.
    May 26, 2004.
    Milton Louis Williams, pro se.
    John C. Paschall, Hearne, for respondent.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   MEMORANDUM OPINION

PER CURIAM.

Milton Louis Williams seeks a writ of mandamus compelling Respondent, the Honorable Robert Stem, Judge of the 82nd District Court of Robertson County, to appoint counsel and to grant his motion for post-conviction DNA testing filed under Chapter 64 of the Code of Criminal Procedure.

To prevail in a mandamus proceeding, the petitioner must establish that: (1) the act sought to be compelled is purely ministerial; and (2) he has no adequate remedy at law. State ex rel. Rosenthal v. Poe, 98 S.W.3d 194, 198 (Tex.Crim.App.2003) (orig.proceeding). Respondent has appointed counsel for Petitioner. The Legislature has provided for an appeal from the denial of a motion for DNA testing. See Act of Apr. 3, 2001, 77th Leg., R.S., ch. 2, § 2, 2001 Tex. Gen. Laws 2, 4 (amended 2003) (current version at Tex.Code Crim. PROC. Ann. art. 64.05 (Vernon Supp.2004)). However, the pendency of this original proceeding has delayed the commencement of an appeal by Petitioner.

To ensure that Petitioner’s appellate remedy is an adequate legal remedy, we reset the appellate timetable such that Petitioner’s notice of appeal is due within thirty (30) days after the date of this opinion, and if notice of appeal is filed, the record shall be due within ninety (90) days after the date of this opinion. See Whitehead v. State, 130 S.W.3d 866, 880 (Tex.Crim.App., 2004).

Because Petitioner has an adequate remedy at law, the petition is denied. See Rosenthal, 98 S.W.3d at 198 n. 3.

Chief Justice GRAY concurring and dissenting.

TOM GRAY, Chief Justice,

concurring and dissenting.

I agree with the majority in deciding that Williams has an adequate remedy by appeal and in denying his petition for writ of mandamus. But, this is where the agreement ends.

The majority has used Whitehead, a Court of Criminal Appeals opinion from March of this year, as the sole authority to reset the appellate timetable “[t]o ensure the Petitioner’s appellate remedy is an adequate legal remedy.” Maj. op. at 83; Whitehead v. State, 130 S.W.3d 866 (Tex.Crim.App.2004). Whitehead was not a mandamus proceeding. It was a direct appeal from an indigence hearing where the trial court denied a finding of indigence, denied a free record, and denied a retained attorney’s request to withdraw.

The Court of Criminal Appeals said the trial court could have believed the defendant was not indigent for the purpose of appointing counsel and did not abuse its discretion in denying a free record when the defendant did not put on any evidence as to how much the record would cost. The Court agreed that the trial court abused its discretion in denying the retained attorney’s motion to withdraw. It then set the timetable for the notice of appeal for the underlying conviction and the record if a notice of appeal was filed.

Whitehead does not give us the authority to set an appellate timetable through the denial of a mandamus. If the majority believes Williams’s remedy by appeal is inadequate because Williams has now missed the time period to file an appeal, then the majority should grant the petition. But, it cannot. Williams’s appellate remedy is not inadequate simply because he chose to file a petition for writ of mandamus rather than an appeal. See City of Houston v. Meister, 882 S.W.2d 29, 32 (Tex.App.-Houston [14th Dist.] 1994, writ denied). The party seeking review by mandamus must demonstrate that the remedy offered by an ordinary appeal is inadequate. Walker v. Packer, 827 S.W.2d 883, 842 (Tex.1992). Williams has made no such showing.

So, the majority chooses to deny the petition, like it should, and grant Williams an out of time appeal. We cannot grant out of time appeals. See Slaton v. State, 981 S.W.2d 208, 210 (Tex.Crim.App.1998); Olivo v. State, 918 S.W.2d 519 (Tex.Crim.App.1996). Not even with Rule 2. Slaton, 981 S.W.2d at 210; Tex.R.App. P. 2. And the case the majority cites to does not give us that authority either.

Thus, I concur with the denial of the petition for writ of mandamus. But because the majority resets the appellate timetable, I respectfully dissent.