author: LEE DUGGAN, Jr., Justice (Retired).

text:
    The ASSOCIATED PRESS, Houston Chronicle Publishing Co., Mike Cochran, Mark Smith, and Terry Keel, Appellants, v. Maurice COOK, Appellee.
    No. 01-98-00773-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    May 11, 2000.

      David H. Donaldson, Jr., Austin, William W. Ogden, Joel R. White, John Phillips, Houston, Roger Neil Moss, Lufkin, She-rine Elizabeth Thomas, Amy Carter Uren, Martin Joseph Thompson, Austin, for Appellants.
    Charles E. Soechting, Brian Lee Baker, San Marcos, for Appellee.
    Panel consists of Chief Justice SCHNEIDER and Justices ANDELL and DUGGAN.*
   OPINION

LEE DUGGAN, Jr., Justice (Retired).

This libel case is an interlocutory appeal from the trial court’s order denying summary judgment to news media defendants and their sources. Maurice Cook (“Cook”), the former Senior Ranger Captain of the Texas Rangers, sued the appellants, The Houston Chronicle Publishing Company (“the Chronicle”) and its reporter Mark Smith (“Smith”), together with The Associated Press (the “AP”) and its reporter Mike Cochran (“Cochran”), because of several articles that were published about him. Cook also sued Terry Keel (“Keel”), the former Travis County Sheriff who was quoted in the articles. We reverse and render judgment in favor of the appellants.

1. JURISDICTION

As a preliminary matter, this Court has jurisdiction under Civil Practice and Remedies Code section 51.014a(6).

II. BACKGROUND

The underlying story of the news articles referring to Cook concerns the Texas Rangers’ investigation of the 1990 killings of David Joost, his wife Susan, and their two small children. The Rangers theorized that David Joost killed his family in anger after discovering an affair by his wife, and then committed suicide. Relatives of the Joost family did not accept this theory.

Because the Rangers resisted disclosing their investigative file, the relatives of the Joost family filed a lawsuit seeking access to it under the Texas Open Records Act. The disclosure would be permitted only if the investigation was inactive. Initially, disclosure of the file was ordered by the court. However, on February 25, 1993 (nearly three years after the shootings), the court conducted another hearing to reconsider its ruling.

At the hearing, Cook testified as Ranger Chief and Custodian of DPS records. He said the Rangers were still investigating evidence in support of the murder/suicide theory. This theory involved the assumption that Susan Joost was having an affair with Jerry Hill, her former employer, and that the affair somehow came to light during a lengthy, late night telephone call between the Joost and Hill residences immediately before the shootings. Cook specifically testified that “there was a lengthy phone call between the Joost residence and the attorney [Hill]” that occurred “the night before [the shootings] at about 12:00 midnight,” but that the Rangers did not know the identity of the parties to the conversation because “it doesn’t say who is talking. It just has two numbers talking.” According to Cook, the Rangers theorized that the phone call may have disclosed the alleged affair, causing David Joost, in anger, to kill his family and then himself.

Following Cook’s testimony at the hearing, the Joost family’s request for disclosure of the Rangers’ investigative file was denied. The Joost case was officially closed by the Rangers in 1995, at which time the investigative file was officially released. After it was released, Phillips learned that Cook falsely testified about the non-existent “late night telephone call.” Therefore, Phillips filed a complaint with the Hays County District Attorney alleging that Cook committed perjury. Ultimately, Cook was not indicted by the grand jury. However, articles were published reporting the grand jury proceedings. Keel and Phillips were quoted in the articles.

III. Standard of Review

When the denial of summary judgment is appealed, we apply the same standard of review that governs the granting of summary judgment. Evans v. Dolcefino, 986 S.W.2d 69, 75 (Tex.App.— Houston [1st Dist.] 1999, no pet.). The movant for summary judgment must show there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.1995). A defendant who eonclu-sively negates at least one of the essential elements of a cause of action is entitled to summary judgment on that cause of action. Id. Likewise, a defendant who conclusively establishes each element of an affirmative defense is entitled to summary judgment. Id.

Once the movant has established a right to a summary judgment, the burden shifts to the nonmovant. Marchal v. Webb, 859 S.W.2d 408, 412 (Tex.App.—Houston [1st Dist.] 1993, writ denied). The nonmovant must respond to the motion for summary judgment and present to the trial court any issues that would preclude summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979); Marchal, 859 S.W.2d at 412. We must accept as true evidence in favor of the non-movant, indulging every reasonable inference and resolving all doubts in his or her favor. Evans, 986 S.W.2d at 75.

On appeal, we cannot consider any ground for reversal that was not expressly presented to the trial court by written motion, answer, or other response to the motion for summary judgment. Clear Creek Basin Auth., 589 S.W.2d at 677; Hussong v. Schwan’s Sales Enter., Inc., 896 S.W.2d 320, 323 (Tex.App.—Houston [1st Dist.] 1995, no writ). We will affirm the summary judgment if any of the theories advanced in the motion for summary judgment is meritorious. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 (Tex.1996); Cigna Ins. Co. v. Rubalcada, 960 S.W.2d 408, 411 (Tex.App.—Houston [1st Dist.] 1998, no pet.).

IY. The Houston ChRONicle and MaRK Smith

A. Analysis

In the Chronicle and Smith’s point of error one, they argue the trial court erred in denying their motion for summary judgment because they negated at least one element of each of Cook’s libel claims. For the reasons that follow, we agree.

To maintain a defamation cause of action, the plaintiff must prove that the defendant: (1) published a false statement about the plaintiff; (2) that was defamatory; (3) while acting with either actual malice, if the plaintiff was a public official or public figure, or negligence, if the plaintiff was a private individual, regarding the truth of the statement. See Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989). It is undisputed that Cook, as Captain of the Rangers, was a public official.

Under Civil Practice and Remedies Code section 73.005, “The truth of the statement in the publication on which an action for libel is based is a defense to the action.” Tex. Civ. Prac. & Rem.Code § 73.005. Similarly, a showing of substantial truth in a summary judgment case will defeat a defamation claim. McIlvain v. Jacobs, 794 S.W.2d 14, 15-16 (Tex.1990); Evans, 986 S.W.2d at 76. To determine substantial truth, we consider whether the defamatory statement was more damaging to the plaintiff in the mind of the average reader than a true statement would have been. McIlvain, 794 S.W.2d at 16; Barbouti v. Hearst Corp., 927 S.W.2d 37, 65 (Tex.App.—Houston [1st Dist.] 1996, writ denied). This evaluation involves looking at the “gist” of the broadcast. McIlvain, 794 S.W.2d at 16; KTRK Television v. Felder, 950 S.W.2d 100, 105-106 (Tex.App.—Houston [14th Dist.] 1997, no writ). If the underlying facts as to the gist of the libelous charge are undisputed, then we can disregard any variance with respect to items of secondary importance and determine substantial truth as a matter of law. McIlvain, 794 S.W.2d at 16; Felder, 950 S.W.2d at 106. Moreover, this Court has held “the implication of a true statement, however unfortunate, does not vitiate the defense of truth.” Hardwick v. Houston Lighting & Power Co., 943 S.W.2d 183, 185 (Tex.App.—Houston [1st Dist.] 1997, no writ).

B. The Disputed Statements

Cook’s claims against the Chronicle and Smith are limited to four statements printed in three articles. The disputed statements refer to (1) the late night telephone call; (2) Cook’s Fifth Amendment right; (3) Keel’s statement that Cook was a “blight on law enforcement”; and (4) attorney John Phillips’ statement that there was “probable cause” to indict Cook.

1. The Chronicle’s February 8, 1996 article: “Embattled Rangers Chief Cook to Retire”

The first Chronicle article, published February 8,1996, stated:

The Chronicle investigation also found that Cook may have embellished or misstated facts during closed-session court testimony when he claimed he had telephone records proving a “lengthy” late-night telephone call from the Joost home to the home of Susan Joost’s boss the night of the killings.
In fact, phone records show no such call was made.

This disputed statement was repeated in two subsequent articles.

The summary judgment evidence produced by the Chronicle and Smith establishes that this statement is substantially true. A copy of Cook’s closed-court testimony at the February 25, 1993 hearing— which was the subject of the Chronicle’s articles — shows Cook testified as follows:

A: But the thing that bothered us about this was the night before [the killings] at about 12:00 midnight or late at night, there was a lengthy phone call between the Joost residence and the attorney [Hill],
A: ... And with that possible affair and a conversation from the telephone, you know, one night before this, a lengthy call from one house to the other house—
Q: What time of night are we talking about?
A: We’re talking about 11:00 or 12:00, if I’m not mistaken, a little unusual, and it was reasonably late.

The Chronicle’s report summarizing Cook’s testimony was accurate, because it was later shown that there was no late night telephone call between the Joost and Hill residences on the night before the killings. The telephone records from the Joost and Hill residences support the conclusions published in the Chronicle, and, more importantly, Cook now admits there are no telephone records corroborating his testimony. Indeed, he has explained that his testimony was based on misinformation or a misunderstanding of the facts as relayed to him by other Rangers. However, Cook’s explanation for the testimony is irrelevant to whether the Chronicle accurately reported that Cook misstated the facts. Finally, Cook’s contention that someone might assume from these true facts that he committed perjury is also irrelevant, because Cook cannot assert a cause of action for libel by the implication of true facts. See Hardwick, 943 S.W.2d at 185.

As to the first statement in dispute, we hold the Chronicle and Smith established the substantial truth of these articles as a matter of law; therefore, the trial court erred in denying summary judgment on this claim.

2. The Chronicle’s February 9, 1996 article: “Sources Say Top Ranger Got the Boot

Terry Keel was the Travis County Sheriff when Cook was subpoenaed by the grand jury in February 1996. Keel was quoted in the last three paragraphs of the Chronicle’s February 9, 1996 article, headlined as, “Sources Say Top Ranger Got the Boot”:

“He is a blight on law enforcement,” charged Travis County Sheriff Terry Keel.
Asserting that he had “no ax to grind,” Keel, a candidate for the Texas House, said he doubts that Cook’s pending departure stems from any specific act or misdeed.
“I really honestly believe it was a culmination of a lot of things, things too numerous to discuss,” he said. “... Cook has caused unbelievable problems.”

Keel was accurately quoted. The gist of the article containing these statements was a report that Cook was forced to resign. Cook does not dispute that he was given an ultimatum—he could choose between retiring, being fired, or transferring to another Ranger division.

We do not reach the question of whether Keel’s statements are true or substantially true because they are assertions of opinion—not statements of fact. All assertions of opinion are protected by the First Amendment of the United States Constitution and article I, section 8 of the Texas Constitution. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40, 94 S.Ct. 2997, 3006-07, 41 L.Ed.2d 789 (1974); Carr, 776 S.W.2d at 570; Evans, 986 S.W.2d at 78. "Whether a statement is an assertion of fact or opinion is a question of law to be decided by the court. Schauer v. Memorial Care Sys., 856 S.W.2d 437, 446 (Tex.App.—Houston [1st Dist.] 1993, no writ).

In the present case, we hold that Keel’s statements are an expression of opinion. While Keel’s statements may be objectionable to Cook, they are little more than name calling. Keel’s statement that Cook was a “blight on law enforcement” is not unlike a statement that a political opponent is “widely considered an embarrassment to the judiciary and Republican party”—a statement that was considered constitutionally protected opinion, not a statement of fact. See Howell v. Hecht, 821 S.W.2d 627, 631 (Tex.App.—Dallas 1991, writ denied). Thus, the Chronicle and Smith cannot be held liable for publishing Keel’s opinions, no matter how objectionable they are to Cook.

As to the second statement in dispute, we hold the trial court erred in denying the Chronicle and Smith summary judgment.

3. The Chronicle’s February 24, 1996 Article: “Former Ranger Cleared of Lying; Cook May Have Invoked the Fifth”

The third article containing disputed statements reported on the grand jury proceedings that were prompted by Phillips’ (the Joost family’s attorney) fifing a complaint against Cook with the Hays County District Attorney. Phillips’ complaint alleged that Cook committed perju-

ry when he testified at the February 25, 1993 hearing. Cook specifically complains of the following:

Former Ranger cleared of lying; Cook may have invoked Fifth
A Hays County grand jury has refused to indict [Cook], who had been accused of lying during a court hearing involving the mysterious 1990 slayings of a former racing commission official and his family.
Sources said Cook invoked his Fifth Amendment right to testify before the grand jury ..., refusing to testify on the grounds that he might incriminate himself. Cook’s attorney, Dick De-Guerin of Houston, refused to confirm that....

The summary judgment evidence establishes that the gist of the article is substantially true. The Chronicle and Smith presented the trial court with the affidavit of Marcos Hernandez, Jr., the Hays County District Attorney who was present in the grand jury room. Hernandez said Cook and three other members of the Texas Rangers were subpoenaed by the grand jury. Cook appeared with his attorney, Dick DeGuerin. When the grand jury called Cook to the grand jury room to testify, he did not. Instead, with Hernandez’ permission, DeGuerin addressed the grand jury on Cook’s behalf.

According to Hernandez’ affidavit, De-Guerin told the grand jury Cook was advised not to testify, and that, if brought into the grand jury room, Cook would not testify. Although DeGuerin did not specifically refer to the Fifth Amendment by name when he áddressed the grand jury, Hernandez was under the impression that Cook intended to invoke this right. After DeGuerin and the other Texas Rangers addressed the grand jury, Hernandez discussed with the grand jury Cook’s refusal to testify. He informed them that they could require Cook to come into the room and refuse to testify in their presence. The consensus of the grand jury was that they did not want to go through with that formality.

Hernandez said the only legal basis he knew for Cook’s refusal to testify was by exercise of his Fifth Amendment right. Hernandez also told Phillips, after the fact, that Cook had invoked his Fifth Amendment right. ■

The gist of the Chronicle’s article is that Cook refused to testify before the grand jury by invoking his Fifth Amendment right, he was not indicted for perjury, and he was cleared by the grand jury. Nonetheless, Cook argues the statement that “Sources said [he] invoked his Fifth Amendment right to testify before the grand jury ..., refusing to testify on the grounds that he might incriminate himself” is false because (1) he did not personally appear before the grand jury, (2) he was never in a position to invoke his Fifth Amendment right, (3) he did not lie during his in camera testimony, and (4) he had no reason to refuse to testify on the grounds that he might incriminate himself because he had not committed perjury. Cook’s argument is without merit. See Swate v. Schiffers, 975 S.W.2d 70, 75 (Tex.App.—San Antonio 1998, pet., denied) (finding statement that “assault” on investigator was substantially true, despite a not guilty judgment on charge, because a truthful statement would not have changed the effect of article in the average' reader’s mind); Castillo v. State, 901 S.W.2d 550, 551-52 (Tex.App.—El Paso 1995, pet ref d) (stating that when party’s counsel informs court that’ party intends to invoke the Fifth Amendment, that is sufficient to keep the party from testifying).

Statements made by DeGuerin in representing Cook to the grand jury are attributable to Cook. See Gavenda v. Strata Energy, Inc., 705 S.W.2d 690, 693 (Tex.1986) (stating attorney-client relationship is agency; thus, attorney’s acts are client’s acts). Thus, when DeGuerin appeared before the grand jury as counsel representing Cook, Cook also appeared before the grand jury; when DeGuerin told the grand jury Cook would refuse to testify, Cook refused to testify. See Castillo, 901 S.W.2d at 552.

The only possible conclusion is that Cook’s refusal to testify was based on the Fifth Amendment, even if it was not mentioned by name. If it is false that Cook did not invoke his Fifth Amendment right, Cook had the burden to prove its falsity, which he did not; indeed, he has never even suggested that he had some other legal basis for his refusal to testify.

We conclude that the statement that Cook refused to testify on the grounds that he might incriminate himself is substantially true.

Phillips was quoted in the February 24, 1996 article about the perjury investigation. The relevant portion of the article states:

“What Maurice Cook testified to three years ago was what he had been told or seen in written reports,” said DeGuerin. “It’s clear he got his understanding of the events from (Texas Ranger) Ron Stewart. All he knew is what Stewart told him ... through oral and written reports.”
DeGuerin said a transcribed report from an interview Stewart conducted with Jerry Hill included discussion of a possible call shortly before the Joosts’ deaths. DeGuerin argued that Cook, reading the interview transcript, would have reason to believe there was such a late-night call.
John Phillips, attorney for the Joost family who presented information to the grand jury, took a harsher view: “There is no doubt (Cook) was lying. He gave specific details of a phone conversation, specific times and a specific day. There was more than probable cause to indict Cook.”

Cook is not claiming that the Chronicle misquoted Phillips. Indeed, Phillips still believes Cook was lying, and that there was probable cause to indict Cook for perjury. Instead, Cook claims that “Phillips said [I] committed perjury and Smith knew at the time he published the statement it was false.”

As stated before, the gist of the Chronicle’s February 24,1996 article is that Cook refused to testify before the grand jury, he was not indicted for perjury, and he was cleared by the grand jury. The article contained statements by Cook’s attorney, and by Phillips, the person who brought the complaint against Cook and who testified before the grand jury. Phillips was quoted on his opinion concerning the grand jury proceedings, which is that he believed Cook lied. It would not be surprising to the average reader that Phillips, the person who filed the perjury complaint, believed Cook was lying. Moreover, Phillips’ statement concerning the phone call is both literally and substantially true — at the February 25, 1993 hearing regarding the Rangers’ investigative file, Cook’s closed-session testimony includes specific details of a time (11:00 p.m. to midnight) and a day for the phone call (March 4, 1990, the day before the Joost shootings).

Cook also complains of the following statement in the Chronicle’s February 24,1996 article:

The issue that brought Cook before the grand jury was whether the Rangers captain committed perjury in a February 23, 1993, closed court hearing. ...
Cook told the judge he had telephone records proving a “lengthy” late call “the night before” the murders to the home of Jerry Hill, Susan Joost’s boss and longtime friend.

Cook argues that this statement is false because he did not specifically tell the judge he had telephone records to prove the late night phone call took place. Although Cook may not have specifically said he had telephone records, it was implied by his testimony that such phone records existed and that he had seen them. Indeed, Cook testified as the Rangers’ custodian of records, which inherently suggests he had the records. Cook said “there was a lengthy phone call between the Joost residence and [the Hill residence]." When asked whether he knew if the “late night telephone call” was between Susan Joost and her friend, Kathy Hill, Cook responded:

A: There’s no way of knowing because it doesn’t say who is talking. It just has two numbers talking.

Clearly, “it” refers to a tangible telephone record that shows (1) a sending and receiving telephone number, (2) the date of the call, and (3) the time of the call. Cook does not offer any other explanation for what “it” refers to; instead, he claims, rather disingenuously, that he does not know what “it” refers to. This statement is not more damaging to Cook’s reputation than his current version of the facts, which is that he repeatedly and inaccurately testified to a telephone call that was never made, and to the contents of records that he now claims he had never seen and knew nothing about. Thus, we hold the Chronicle’s February 24, 1996 article is substantially true as a matter of law, and the trial court erred in denying summary judgment on this claim.

We sustain the Chronicle and Smith’s point of error one. We render judgment for the Chronicle and Smith on Cook’s claims for libel.

V. The Associated Press and Mike Coch-RAN

In point of error one, the AP and Cochran argue the trial court erred in denying their motion for summary judgment on Cook’s claims for libel. Cook’s libel claims against the AP and Cochran are now limited to two articles: (1) a February 8, 1996 AP wire story accurately quoting Keel’s criticisms; and (2) a June 7, 1996 AP wire story that incorrectly stated Cook owned 12,000 acres of land in Trinity County (he owned only 12 acres).

A. Quoting Keel

As explained in section IV. B. (2) of this opinion, we hold Keel’s statements are assertions of his opinion, protected by the Constitution. The AP and Cochran, like the Chronicle and Smith, cannot be held liable for publishing his criticisms.

B. Cook’s Land Ownership

It is undisputed that the AP made a mistake. However, the AP argues that Cook did not establish, by clear and convincing evidence, that the misstatement was published with actual malice. Therefore, it argues it was entitled to summary judgment as a matter of law. We agree.

A libel defendant is entitled to summary judgment under Texas law if it can negate actual malice as a matter of law.. WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 574 (Tex.1998). A libel defendant can negate actual malice by presenting evidence that shows it did not publish the alleged defamatory statement with actual knowledge of any falsity or with reckless disregard for its truth. Id. It is insufficient to show the defendant made an error in judgment. Carr, 776 S.W.2d at 571; See Casso, 776 S.W.2d at 558.

The defendant’s burden to negate actual malice is by clear and convincing evidence. McLemore, 978 S.W.2d at 574. An uncontroverted affidavit by the person publishing the statement that indicates the statement was not made with actual malice is sufficient to meet the burden to negate actual malice as a matter of law. Id.

To negate actual malice, the AP presented summary judgment evidence to the trial court that includes an affidavit from Terri Langford, the AP reporter who wrote the article containing this statement. She said that after Cook held a press conference to announce the filing of this lawsuit, she was sent to Trinity County to get a copy of the petition. Langford wanted to determine why Cook had filed the suit in Trinity County, far away from the Austin area where he lived and worked. While waiting for a copy of the petition, Langford also reviewed property tax records showing that Cook owned “12.000” acres of land in Trinity County. Initially, she understood the figure to mean “12,000,” and this information was reported in the AP’s story. She said that at the time she reported this article, she believed the statements to be true and accurate.

To negate actual malice, the AP also presented an affidavit from John Lump-kin, the AP Dallas Bureau Chief, as summary judgment evidence. Lumpkin said that he believed the 12,000 acre statement was true when the article was published. He said he was comfortable relying on Langford’s work because she’ is a skilled investigative reporter. However, after the article was published, and on his own initiative, Lumpkin asked for the 12,000 acre figure to be double-checked. The AP ran a correction immediately after it determined Cook owned only 12 acres.

We find that the AP met its summary judgment burden to negate actual malice. See, e.g., McLemore, 978 S.W.2d at 574; Casso, 776 S.W.2d at 558; Rogers v. Cassidy, 946 S.W.2d 439, 446 (Tex.App.—Corpus Christi 1997, no writ);, Morris v. Dallas Morning News, Inc., 934 S.W.2d 410, 421 (Tex.App.—Waco 1996, writ denied) (holding actual malice negated by uncon-troverted affidavits supporting summary judgment). Once the AP met its summary judgment burden with this evidence, the burden shifted to Cook. Cook had to offer specific, affirmative evidence showing the AP either knew the publication was false or entertained serious doubts as to its. truth. See Howell, 821 S.W.2d at 631.

Cook does not point this Court to any summary judgment evidence in the record as evidence of actual malice. Instead, he argues that we should examiné' the relationship between the parties, Cook, the AP, and Cochran, and from this relationship we should find that the personal animosity between Cook and Cochran is evidence of actual malice. However, actual malice in defamation is a term of art that does not include ill will, evil motive, or spite. Cook’s argument, therefore, is insufficient to overcome the AP’s summary judgment evidence negating actual malice. See Schauer, 856 S.W.2d at 450 (holding that mere surmise or suspicion of malice does not carry the probative force necessary to form the basis of a legal inference of malice).

Because Cook presented no controverting summary judgment evidence that the AP believed that the statement in question was false or published with reckless disregard for the truth, the trial court erred in denying summary judgment to AP on this claim. Therefore, we sustain the AP and Cochran’s point of error one.

We reverse and render judgment for the AP and Cochran on Cook’s libel claims.

VI. Terry Keel

In points of error one and two, Keel argues the trial court erred in denying his motion for summary judgment on Cook’s claims for libel, tortious interference with a contract, and intentional infliction of emotional distress.

A. Libel

Keel was sued for his criticisms that were re-published by the Chronicle and the AP. As explained in section IV. B. (2) of this opinion, we hold Keel’s statements are assertions of his opinion, protected by the Constitution.

B. Claims against Keel for Tortious Interference with a Contract and Intentional Infliction of Emotional Distress Keel was sued for tortious interference with a contract and intentional infliction of emotional distress. Keel argues he is entitled to absolute and official immunity because he was sued in his capacity as an elected representative to the House of Representatives. Although Keel is not entitled to absolute legislative immunity, we hold that he is entitled to official immunity.

1. Relevant Facts

After Cook retired from the Rangers, he wanted to be the committee clerk for the House Public Safety Committee. He expressed this interest to State Representative Keith Oakley, who chaired the committee during the 74th Regular Session and expected to be re-appointed to chair the committee during the 75th Regular Session. Cook said he told Oakley he was involved in litigation against Keel, but that Oakley did not express any concerns and did not think it would be a problem. However, because Cook approached Oakley before the legislature had convened, and before the committee was even selected, Oakley told Cook it would not be appropriate to have a committee clerk on staff before the committee chairs were named.

When the 75th Regular Session convened on January 14, 1997, Keel was a newly elected State Representative. Keel expected to be on the House Public Safety Committee. On the second day of the session, and before committee appointments were made, Keel approached Oakley and asked him whether he intended to hire Cook and whether he was aware of the ongoing litigation between them. When Oakley responded that he was, Keel ended the conversation by saying he did not know whether Oakley was aware of it.

Oakley was re-appointed to chair the committee on January 23, 1997. As chair of the committee, Oakley was authorized to employ and discharge the staff arid employees authorized for the committee. On the day before committee assignments were made, Keel approached Oakley again,on the House floor, and asked about Oakley’s plans to hire Cook. When Oakley said he still intended to hire Cook, Keel told him that hiring Cook would not be good for the committee because of things that might come to light during the lawsuit. Sometime thereafter, Cook went to Oakley’s office, at which time Oakley told Cook he would not be able to have the job because, with Keel on the committee, he did not think the tension would be good for the committee. Cook was never listed as a government employee in any public documents, nor was Cook ever paid for any work as committee clerk.

2. Absolute Legislative Immunity

Keel argued that he was entitled to absolute legislative immunity from Cook’s claims. To be entitled to legislative immunity, Keel was required to show that his actions were functionally legislative. See Lopez v. Trevino, 2 S.W.3d 472, 473 (Tex.App.—San Antonio 1999, pet. dism’d w.o.j.). Courts have applied two tests in determining whether an action is legislative. See id. Under the first test, the court considers whether the underlying facts on which a decision is made are “legislative facts,” such as generalizations concerning a policy or state of affairs, or whether the underlying facts are more specific, such as those that relate to particular individuals or situations. Id. If the underlying facts are generalizations, the action is legislative; if they are specific, the decision is administrative. Id. Under the second test, the court focuses on the impact of the action. Lopez, 2 S.W.3d at 474. If the action involves the establishment of a general policy, it is legislative; if it singles out specific individuals, it is administrative. Id.

Courts generally consider employment and personnel decisions to be administrative in nature, because they affect a single individual. See Lopez, 2 S.W.3d at 474 (citations omitted). For example, where the action involves the elimination of a position due to budgetary considerations, the decision is legislative because it involves policy considerations and affects the position, not simply the individual. Bogan v. Scott-Harris, 523 U.S. 44, 118 S.Ct. 966, 973, 140 L.Ed.2d 79 (1998). However, where the action involves the termination of a particular employee, the action is administrative. Id.

Applying the two tests to this case and assuming Cook was employed by the House, we conclude that Keel did not establish that he is entitled to absolute legislative immunity — the underlying facts singled out and related to a specific individual, Cook, rendering the action administrative.

3. Official Immunity

In the motion for summary judgment, Keel also argued that he was entitled to official immunity. As a government official, Keel is immune from suit for the performance of discretionary duties within the scope of his authority, as long as he acted in good faith. See City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex.1994); City of Columbus v. Barnstone, 921 S.W.2d 268, 272 (Tex.App.—Houston [1st Dist.] 1995, no writ). To be entitled to summary judgment, Keel had to conclusively establish each of these elements as a matter of law.

We find that Keel is entitled to official immunity, because he established that his communications to Oakley were part of a discretionary duty, -within the scope of his authority, and that he acted in good faith. A discretionary duty requires the exercise of personal deliberation, decision, and judgment, whereas ministerial duties are defined with precision and certainty, leaving nothing to the individual’s judgment or discretion. Chambers, 883 S.W.2d at 654; Barnstone, 921 S.W.2d at 272. Whether an action is discretionary or ministerial is a question of law. Johnson v. Texas Dep’t. of Transp., 905 S.W.2d 394, 397 (Tex.App.—Austin 1995, no writ).

We find that Keel’s communicating to Oakley was part of a discretionary duty, because it required the exercise of his personal deliberation, decision, and judgment. He reasonably believed it was within his duties to report a possible staffing problem to the chairman of a legislative committee, and apparently the chairman agreed it would be problematic for the two men to work on the same committee. Cook did not offer any controverting proof to show this was not discretionary, or that this was not within the scope of Keel’s duties.

Finally, the parties dispute whether Keel acted in good faith. The test for whether an official acted in “good faith” is whether a reasonably prudent official, under the same or similar circumstances, could have believed that his actions were reasonable. Chambers, 883 S.W.2d at 654. Once the defendant has met his burden of proof on good faith, the burden shifts to the plaintiff to produce controverting evidence — that is, the plaintiff must show that no reasonable person in the defendant’s position could have thought the facts were such that they justified the defendant’s acts. Id. at 657.

Keel argues that, when he communicated with Oakley, he was acting in good faith because a reasonable state representative could have believed he had a duty to communicate a potential conflict and staffing problem to the committee chairman. He argues that obviously Oakley agreed that it might cause tension and negatively influence the effectiveness of the committee. We agree.

As supporting evidence to negate good faith, Cook offered Keel’s deposition testimony regarding a long and tortured history between the two, beginning with when Cook was designated to testify as an expert witness in a case alleging civil rights violations' against Keel. However, Cook did not show that a reasonable person in Keel’s position could not have believed communicating with the chairman was justified. In fact, the chairman agreed, which indicates Keel’s concerns were reasonable.

We conclude that Keel was entitled to official immunity. The trial court erred in denying summary judgment on this ground.

We sustain Keel’s points of error one and two, and reverse and render judgment in favor of Keel on Cook’s claims for libel, tortious interference with a contract, and intentional infliction of emotional distress.

VII. Summary

We sustain the Chronicle and Smith’s point of error one, the AP and Cochran’s point of error one, and Keel’s points of error one and two. We reverse and render judgment that Maurice Cook take nothing by way of his libel claims against the Chronicle, Smith, the AP, Cochran, and Keel, and his claims for tortious interference with a contract and intentional infliction of emotional distress against Keel.

       The Honorable Lee Duggan, Jr., retired Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.

      . Cook sued other defendants who are not parties to the appeal, the Amarillo News-Globe and John Phillips, another source named in the articles. Cook nonsuited the Globe and Phillips.

      . Section 51.014(a)(6) provides,
      A person may appeal from an interlocutory order of a district court ... that denies a molion for summary judgment that is based in whole or in part upon a claim against or defense by a member of the electronic or print media, acting in such capacity, or a person whose communication appears in or is published by the electronic or print media, arising under the free speech or free press clause of the First Amendment to the United States Constitution, or Article 1, Section 8, of the Texas Constitution, or Chapter 73.

      . They suspected the killings were hired murders because David Joost may have discovered corruption at the Texas Racing Commission. His body was discovered on the morning that he was expected to brief the commission on a controversial contract. The family also grew suspicious because of the way the Rangers maintained tight control over the case, refusing them access to autopsy and lab reports, crime scene photographs, and other evidence. If the deaths were determined to be murder, rather than a murder suicide, the Joost family’s relatives could have gained $214,000 in insurance proceeds.

      . Cook’s testimony was incorporated as an exhibit to the Chronicle’s motion for summary judgment.

      . The Chronicle and Smith's motion for sum-maty judgment was based on five different theories: (1) the articles are substantially true; (2) the articles in dispute are privileged; (3) the articles included protected opinion, and, as a matter of law, are not defamatory; (4) the articles were published without actual malice; and (5) there is no evidence to support Cook's claims.

      . The second Chronicle article, published February 9, 1996, stated:
      A Houston Chronicle investigation of the [Joost] case flies after the case was officially closed last year showed ... that Cook may have embellished or misstated facts during closed-session court testimony.
      The third Chronicle article, published February 24, 1996, stated:
      Cook told the judge he had telephone records proving a “lengthy” late call "the night before” the murders to the home of Jerry Hill, Susan Joost’s boss and longtime friend. Cook said that phone call gave credence to the theory that Joost flew into a rage and killed his wife after discovering her on the phone with her boss.
      In fact, the Joost phone records show no such call was made. It is possible Cook was referring to a 9:06 p.m. call from Hill’s home to the Joosts about three weeks before the killings. Hill said that call, on Feb. 15, 1990, was made on the day his son was born. He denied having an affair with Susan Joost.

      . Even the lead investigator for the Texas Rangers, Ron Stewart, testified that Cook’s testimony was not accurate, and that he "overstated” the facts.

      . Even if it is not substantially true that Cook invoked his Fifth Amendment right, exercising a legal right is not defamatory as a matter of law. See Banfield v. Laidlaw Waste Sys., 977 S.W.2d 434, 439 (Tex.App.—Dallas 1998, pet. denied) (finding statements that plaintiffs were "troublemakers” and "ringleaders" was not defamatory as a matter of law because union organizing is a federal right). A statement is defamatory if the. words tend to injure a person’s reputation, exposing the person to public hatred, contempt, ridicule, or financial injury. Einhorn v. LaChance, 823 S.W.2d 405, 410-11 (Tex.App.—Houston [1st Dist.] 1992, writ dism’d w.o.j.). Whether words are capable of the defamatory meaning the plaintiff attributes to them is a question of law for the court. Id. at 411. The court construes the statement as a whole in light of surrounding circumstances based upon how a person of ordinary intelligence would perceive the entire statement. Id. Here, a person of ordinary intelligence would not construe the article any differently if it had said that DeGuerin addressed the grand jury on Cook’s behalf, and that Cook did not testify, because such a person knows the only legal basis for Cook’s refusal to testify was by exercise of his Fifth Amendment right.

      . We note that in his Third Amended Petition, the last live pleading before the trial court, Cook abandoned his non-libel claims against the Chronicle and Smith.

      . Cook’s claim against Cochran for the land ownership misstatement must fail for the simple reason that he cannot be held liable for an article that he neither wrote nor published. See Carr, 776 S.W.2d at 569 (slating publication is an essential element of a libel action). It is undisputed that' he did not write or contribute to the article in any way. Thus, Cochran was entitled to summary judgment on this claim.

      . In his brief, even Cook acknowledges that the reporter "inexplicably” reported that he owned 12,000 acres, because the reporter was "apparently totally unaware that land ownership can be quantified in fractional sections of an acre.” This acknowledges that the statement was merely a mistake, made without actual malice. Interestingly enough, not only did Cook not sue Langford for making the statement, he did not even depose her.

      . The parties dispute our jurisdiction over Cook’s defamation claim against Keel. Because Keel’s statements were quoted in the print media, we have jurisdiction over this claim under Civil Practice and Remedies Code section 51.014(a)(6).

      . We have jurisdiction over these claims under Civil Practice and Remedies Code section 51.014(a)(5), which states that a parly may pursue an interlocutory appeal when the trial court denies a motion for summary judgment that is based on an assertion of immunity by an individual who is an officer or employee of the state. Even though Keel urged other theories to support summary judgment on these claims, we may consider only whether he was entitled to summary judgment based on his immunity defenses. See Boozier v. Hambrick, 846 S.W.2d 593, 596 (Tex.App.—Houston [1st Dist.] 1993, no writ) (explaining that the legislative intent was to provide interlocutory appellate review only of the merits of immunity defense).

      .We note that employees of the House are at-will employees, who do not have a long-term contractual relationship with the House.

      . Cook says he told the plaintiffs lawyer in that case that he would not testify unless he was subpoenaed; he was never subpoenaed and he never testified.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Julie MILLS and Multimortgage Bancorp., Inc., Appellants, v. Mittie Louise HAGGARD, et al., Appellees.
    No. 10-00-122-CV.
    Court of Appeals of Texas, Waco.
    May 31, 2000.
    Lester R. Buzbee, III, Humble, for appellants.
    Barbara Moe, Moe & York, P.L.L.C., Corsicana, for appellees.
    Before Chief Justice DAVIS, Justice VANCE, and Justice GRAY.
   ORDER

PER CURIAM.

Julie Mills and Multimortgage Bancorp, Inc. (Mills) appealed a judgment in favor of Mittie, James, Rex and Robbie Haggard (the Haggards). A dispute has now arisen between Mills and the court reporters who are preparing the record for appeal. We abate the appeal and refer the cáse to the’ trial court for an evidentiary hearing to resolve this dispute.

This Court received notification from one of the court reporters that the record had not been filed because Mills had not made arrangements to pay for the record’s preparation. ■ TEX. R. APP. P. 35.3(b). Two weeks later, Mills filed a motion for show cause alleging that arrangements had been made for the payment of the record and that the record was paid in full. Mills alleges that the funds paid for the preparation of the record had been used to offset bills created by the trial attorney in this cause. The reporter’s record is now past due. Id. 35.1.

Mills asks us to order the court reporters in this cause to appear before us and show cause why they should not be ordered to file the record and to pay costs for the fifing of the motion. Courts of appeals are not properly equipped for evi-dentiary hearings. Bivins v. Bivins, 709 S.W.2d 374, 376 (Tex.App.—Amarillo 1986, no writ). The trial court is an appropriate forum for this matter.

Rule 2 of the Texas Rules of Appellate Procedure allows appellate courts to suspend the operation of a rule for good cause and order a different procedure. TEX. R. APP. P. 2. The rule is reserved for cases where suspending a rule will actually facilitate processing the case through the appellate court. See Oldham v. State, 977 S.W.2d 354, 359 (Tex.Crim.App.1998). As noted previously, the record has not been filed because there is a dispute about whether arrangements or payment for it has been made. This dispute will needlessly delay the processing of this case until it is resolved. Thus, there is good cause to suspend the rule mandating the filing of the reporter’s record and abate this appeal for an evidentiary hearing.

Mills motion for show cause is denied.

However, this appeal is abated and remanded to the trial court for an evidentia-ry hearing on the issue of whether arrangements were made or payment was made for the preparation of the reporter’s record. The trial court shall make appropriate findings of fact and conclusions of law and forward a transcription of the hearing to this Court along with its findings and conclusions within thirty days from the date of this order.


author: COOPER, Justice.

text:
    Robert A. BRUSMAN, Executor of the Estate of Donna Sue Brusman, Deceased; Robert A. Brusman, Individually and Next Friend of Gregory Brusman, A Minor, Christopher Brusman, A Minor, and Michael Brusman, A Minor, Appellants, v. NEWPORT STEEL CORPORATION; Sheila C. Lowther, Administrative Law Judge; and Workers’ Compensation Board, Appellees.
    No. 1999-SC-0430-WC.
    Supreme Court of Kentucky.
    May 18, 2000.

      Ronald L. McDermott, Covington, Counsel for Appellants.
    Kenneth Lance Lucas, Florence, Counsel for Appellee Newport Steel Corporation.
   COOPER, Justice.

On February 28, 1997, Donna Sue Brus-man was fatally injured in the course and scope of her employment with Appellee Newport Steel Corporation. She was survived by her husband, Appellant Robert A. Brusman, and their three minor children. Although Donna and Robert Brusman were still married, they had been separated for over two years. A divorce action had been filed and was pending at the time of Donna’s death. Robert and the three children filed workers’ compensation claims for death benefits under KRS 342.750. They also claimed entitlement to a 15% penalty pursuant to KRS 342.165. Newport Steel did not contest the children’s rights to benefits, but did contest both Robert’s rights to widower’s benefits and the penalty claim. The Administrative Law Judge (“ALJ”) awarded the children both death benefits and a 15% penalty; but, relying on KRS 342.075, denied Robert’s claim for widower’s benefits on grounds that he was neither actually nor presumptively dependent upon Donna at the time of her death. The Workers’ Compensation Board affirmed as to the 15% penalty, but reversed the denial of Robert’s claim, holding that a widower is entitled to benefits under KRS 342.750(l)(a) or (b) regardless of dependency. The Court of Appeals reversed the Board on both issues. We now reverse the Court of Appeals, reinstate the order of the Board, and remand to the ALJ for a new, recalculated award,

I. DEATH BENEFITS.

Currently, death benefits are awarded under KRS 342.750 if the worker’s death resulted from a work-related injury or occupational disease; and under KRS 342.730(3) if the deceased worker was drawing or was entitled to benefits because of a work-related injury or disease at the time of his/her death, but died from another cause.

From the date of its initial enactment in 1916 until its first major revision in 1972, the Kentucky Workers’ Compensation Act had only one provision for paying benefits to survivors of a deceased worker. KS 4893, recompiled in the 1942 Kentucky Revised Statutes as KRS 342.070, provided benefits only if the worker’s death resulted from a compensable injury or occupational disease and if the claimant was actually dependent upon the deceased worker at the time of his death, as follows:

(a) If the claimant was wholly dependent upon the deceased worker, a sum equal to 66⅜% of the deceased worker’s average weekly earnings; and

(b) If the claimant was partly dependent upon the deceased worker, a sum equal to 66⅜% of the deceased worker’s average weekly earnings times a percentage representing the degree of partial dependency.

The 1916 Act also included a provision for determining dependency. KS 4894, which was recompiled in 1942 as KRS 342.075, created a presumption that certain persons were wholly dependent upon the deceased worker. As of 1972, those entitled to the presumption were:

(a) A wife upon a husband whom she had not voluntarily abandoned at the time of the accident or who having been abandoned by her husband has not engaged in such conduct since his abandonment as would at common law constitute grounds justifying the abandonment of such wife by her husband;

(b) A husband incapacitated from wage-earning, upon a wife whom he has not voluntarily abandoned at the time of the accident; and

(c) A child or children under the age of sixteen years, or over sixteen years if incapacitated from wage-earning, upon a parent with whom such child or children were living, or by whom actually supported at the time of the accident or from whom support was legally required by judgment of a court.

Thus, a widow, widower or child was required to be actually dependent upon the deceased worker in order to be entitled to any benefits; but he/she was presumed to be wholly dependent, thus entitled to maximum benefits, if the conditions of KRS S42.075(l)(a), (b) or (c), as applicable, were satisfied. KRS 342.075 then provided, as it does now, that “[i]n all other cases” the relation of dependency in whole or in part shall be determined in accordance with the facts existing at the time of the accident, but that no person shall be considered a dependent in any degree unless that person was living in the household of the deceased worker at the time of the accident, or unless the person was the father, mother, husband, or wife, father-in-law or mother-in-law, grandfather or grandmother, child or grandchild, or brother or sister of the whole or half blood. Thus, even a widow, widower or child who did not fall within a KRS 342.075(1) presumption was still entitled to death benefits if he/she could prove actual dependency.

The Workers’ Compensation Act underwent a major revision during the 1972 session of the General Assembly. That revision included the repeal of KRS 342.070 and the enactment of KRS 342.750 (death benefits if the employee’s death was work-related) and KRS 342.730(4)[now (3) ], (death benefits if the employee was drawing or entitled to compensation and death was not work-related).

With respect to surviving spouses and children, KRS 342.750(1) provides as follows:

(a) If there is a widow or widower and no children of the deceased, to such widow or widower 50 percent of the average weekly wage of the deceased, during widowhood or widowerhood.
(b) To the widow or widower, if there is a child or children living with the widow or widower, 45 percent of the average weekly wage of the deceased, or 40 percent, if such child is not or such children are not living with a widow or widower, and in addition thereto, 15 percent for each child. Where there are more than two (2) such children, the indemnity benefits payable on account of such children shall be divided among such children, share and share alike.
(c) Two (2) years’ indemnity benefits in one (1) lump sum shall be payable to a widow or widower upon remarriage.
(d) To the children, if there is no widow or widower, 50 percent of such wage for one (1) child, and 15 percent for each additional child, divided among such children, share and share alike.
(e) The income benefits payable on account of any child under this section shall cease when he dies, marries, or reaches the age of eighteen (18), or when a child over such age ceases to be physically or mentally incapable of self-support, or if actually dependent ceases to be actually dependent, or, if enrolled as a full-time student in any accredited educational institution, ceases to be so enrolled or reaches the age of 22. A child who originally qualified as a dependent by virtue of being less than 18 years of age may, upon reaching age 18, continue to qualify if he satisfies the tests of being physically or mentally incapable of self-support, actual dependency, or enrollment in an educational institution. (Emphasis added.) •

KRS 342.750(1) then provides benefits for the deceased employee’s parents, grandparents, grandchildren, brothers and sisters (though no in-laws as apparently anticipated in KRS 342.075), but only if actually dependent.

KRS 342.730(3) provides benefits to widows, widowers and children as follows:

(a) To the widow or widower, if there is no child under the age of eighteen (18) or incapable of self-support, benefits at fifty percent (50%) of the rate specified in the award; or
(b) If there are both such a widow or widower and such a child or children, to such widow or widower, forty-five percent (45%) of the benefits specified in the award, or forty percent (40%) of such benefits if such a child or children are not living with the widow or widower; and, in addition thereto, fifteen percent (15%) of the benefits specified in the award to each child. Where there are more than two (2) such children, the indemnity benefits payable on account of two (2) children shall be divided among all the children, share and share alike; or
(c) If there is no such widow or widower but such a child or children, then to such child or children, fifty percent (50%) of the benefits specified in the award to one (1) child, and fifteen percent (15%) of such benefits to a second ■ child, to be shared equally. If there are more than two (2) such children, the indemnity benefits payable on account of two (2) children shall be divided equally among all the children; ...
(e) To the widow or widower upon remarriage, up to two (2) years, benefits as specified in the award and proportioned under paragraphs (a) or (b) of this • subsection, if such proportioned • benefits remain unpaid, to be paid in a lump sum.

Subsection (d) of the statute provides that if there is no widow, widower, or child, benefits are payable to the parent or parents, but only if such person(s) are “wholly or partly actually dependent for support upon the decedent.”

Three things are apparent from the language of KRS 342.750(1) and KRS 342.730(3):(1) With respect to widows, widowers and children, the statutory schemes are virtually identical, except that the benefits are greater if the employee’s death was work-related; (2) whereas KRS 342.070 had required a widow, widower or child to be actually dependent in order to be entitled to death benefits, the present statutes contain- no such requirement; and (3) whereas KRS 342.075(l)(b) presumes that a child is wholly dependent only up to age sixteen, a child is entitled to benefits under KRS 342.750 and KRS 342.730(3) up to-age eighteen regardless of dependency. The requirement of dependency with respect to death benefits under KRS 342.750 now applies only to parents, grandparents, grandchildren, siblings of the deceased, and children over eighteen who are not full-time students or who are incapable of self-support.

Thus, KRS 342.075(1), which is a definition statute, ie., it defines who is a dependent, not a benefits statute, i.e., one which identifies those entitled to benefits, has no application to an award made pursuant to a statute which does not require dependency as a condition precedent to entitlement to benefits. The 1974 enactment of “An Act Relating to Equal .Rights for Men and Women,” by which the General Assembly amended numerous statutes, including KRS 342.075, in order to eliminate perceived statutory gender inequities is immaterial to this issue. The amendment of KRS 342.075 merely placed surviving spouses on equal footing with respect to the presumption of dependency regardless of gender. The amendment could not have affected benefits payable to a widower under KRS 342.750, which does not require dependency. Nor did the 1980 amendment of KRS 342.075(3), which added the language “and is actually dependent” affect a widower’s entitlement to benefits under KRS 342.750.

The Court of Appeals felt obligated in this case to follow our decision in White v. Stewarts Dry Goods Co., Ky., 531 S.W.2d 504 (1975), which indeed held that the requirement of dependency in KRS 342.075 still applied to a widower’s claim for benefits under KRS 342.750. SCR I.030(8)(a). However, White is inconsistent with our later opinion in Palmore v. Jones, Ky., 774 S.W.2d 434 (1989), which held that the dependency determinations in KRS 342.075 had no application to a non-dependent widow’s claim for benefits under KRS 342.730(3). The language of KRS 342.075(1) does not purport to apply only to survivors of a worker whose death was caused by the compensable injury or disease; thus, the statute would apply as well (if at all) to survivors of a worker whose death resulted from another cause. If Palmore v. Jones applies to death benefits payable under KRS 342.730(3), then it applies as well to death benefits payable under the virtually identical language of KRS 342.750. Moreover, since the statutory scheme provides greater benefits to survivors under KRS 342.750 when death is work-related than under KRS 342.730(3) when it is not, it would be illogical to conclude that the legislature intended to make it more difficult for survivors to obtain benefits under KRS 342.750 than under KRS 342.730(3).

We believe our decision in White v. Stewarts Dry Goods Co., supra, misconstrued the intent of the legislature in repealing KRS 342.070 and enacting KRS 342.750 and KRS 342.730(4)[now (3) ]. We now hold with respect to death benefits for widows, widowers and children that the provisions of KRS 342.075 were superseded by the enactment of the latter two statutes. Accordingly, we overrule White v. Stewarts Dry Goods Co., reaffirm Pat-more v. Jones, supra, and hold that the reasoning expressed in Patmore applies as well to KRS 342.750 as to KRS 342.730(3).

II. 15% PENALTY.

The decedent was employed as a switchperson on a railway line within the employer’s facility. Her duties involved moving along the railway line with the train and throwing the switches necessary to route the train to its destination. At the time of the accident, she was riding on a personnel ladder attached to the side of the first of three rail cars which were being pushed by an engine on the main railway line. Another car, which had been designated to be scrapped or repaired because its sides were bowed out approximately two feet, was parked on an adjoining spur line near the pinch point where it joined the main line. When the car on which the decedent was riding passed the pinch point,. the clearance between the train and the damaged car was only five inches. As a result, the decedent was caught between the two cars and crushed to death.

Although there are no specific statutes or regulations pertaining to in-plant railways, the minutes of a January 1997 safety meeting indicated that the employer was aware that there were a number of cars with bowed sides which needed to be scrapped or repaired, apparently because they were scraping against and damaging the building and doors in the plant. There was also evidence that although workers were not supposed to jump on and off moving trains or ride on the lead car, it was common practice for them to do so without correction or punishment. There was also evidence that new employees normally are given three to four hours of training by the human resources department and that the decedent received additional on-the-job training by a more experienced worker, including instructions not to ride on the railway cars, particularly the front end of a car which was being pushed.

An inspector from the Kentucky Labor Cabinet investigated the accident and issued a citation charging the employer with a violation of KRS 338.031(l)(a), the “general duty” provision of the Kentucky Occupational Safety and Health Act (KOSHA), viz:

(1) Each employer:
(a) Shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.

The violation was classified as “serious.” The citation recited that transportation employees were not trained in “common railway safety procedures” and listed several specific examples, including the failure to instruct workers “in the recognition and avoidance of unsafe conditions in their work environment.” The proposed penalty was $5,000.00. The employer contested the citation and a settlement was ultimately reached with the Labor Cabinet by which the employer was to abate all items in the original citation, the penalty was reduced to $1,000.00, and $4,000.00 would be spent for safety training for employees operating the in-plant railway. The agreement did not contain an admission by the employer of any violation of KOSHA or any safety standards. ■

KRS 342.165(1) provides in pertinent part that:

If an accident is caused in any degree by the intentional failure of the employer to comply with any specific statute or lawful administrative regulation made thereunder, communicated to the employer and relative to installation or maintenance of safety appliances or methods, the compensation for which the employer would otherwise have been ha-ble under this chapter shall be increased fifteen percent (15%) in the amount of each payment....

In Apex Mining v. Blankenship, Ky., 918 S.W.2d 225 (1996), a 15% penalty was imposed on the basis of an intentional violation of KRS 338.031(l)(a). There, the injured worker was required to operate a grossly defective piece of heavy equipment which was without brakes, with a decelerator which did not work properly, with the throttle fastened in the wide open position, and which had caused prior accidents but had not been repaired. The ALJ found that the employer had intentionally created a patently obvious safety hazard and that such conduct was sufficient to trigger KRS 342.165 despite the fact that KRS 338.031(l)(a) was the only safety law which had been violated. We agreed, explaining that although the “general duty” statute was not as specific as might be desired, the hazard created by requiring a worker to operate such a grossly defective piece of equipment was patently obvious to a layperson, even in the absence of a specific statute or regulation addressing the matter.,

In reversing the imposition of the 15% penalty in this case, a divided Court of Appeals panel relied instead on our decision in Cabinet for Workforce Dev. v. Cummins, Ky., 950 S.W.2d 834 (1997). In Cummins, as here, there was no statute or regulation specifically pertinent to the worker’s injury and a penalty was sought for a purported violation of KRS 338.031(l)(a). In Cummins, however, the ALJ found that the evidence introduced by the worker did not warrant imposition of the 15% penalty and we held on appeal that the evidence did not compel such a

finding. That, of course, is the standard of review on appeal from a factual finding against an appellant in a workers’ compensation case. Paramount Foods, Inc. v. Burkhardt, Ky., 695 S.W.2d 418 (1985); Commercial Drywall v. Wells, Ky.App., 860 S.W.2d 299 (1993). Here, the ALJ found that the evidence proved a violation of KRS 338.031(l)(a) sufficient to warrant imposition of the 15% penalty. That finding was supported by evidence that (1) an obvious hazard was created by the presence of railroad cars with bowed sides; (2) complaints about . such cars had. been raised at a safety meeting a month before the accident; and (3) workers routinely rode railway cars, including the lead car, without punishment. An ALJ’s award which is supported by substantial evidence will not be set aside on appeal. Hush v. Abrams, Ky., 584 S.W.2d 48 (1979); Addington Resources, Inc. v. Perkins, Ky.App., 947 S.W.2d 421 (1997). Although the evidence in this case was not as egregious as in Apex Mining v. Blankenship, supra, it was substantial and sufficient to support the ALJ’s award of a 15% penalty. The fact that the employer settled the KOSHA citation without admitting a violation is immaterial. In the context of a workers’ compensation claim, it is the responsibility of the ALJ to determine whether a violation of a statute or administrative regulation has occurred.

Accordingly, the decision of the Court of Appeals is reversed, the decision of the Workers’ Compensation Board is reinstated, and this case is remanded to the ALJ with directions to enter a new, recalculated award in accordance with the contents of this opinion.

LAMBERT, C.J.; GRAVES, JOHNSTONE, KELLER and STUMBO, JJ., concur.

WINTERSHEIMER, J„ concurs in result only without separate opinion.

      . Although KRS 342.750 does not specifically state that its provisions apply to a death resulting from a compensable occupational disease, application of the statute in that circumstance is provided for by KRS 342.316(4).

      . 1916 Ky. Actsch. 33.

      . 1972 Ky. Acts ch. 78, eff. January 1, 1973.

      . 1916 Ky. Acts ch. 33 § 12.

      . Both sums were subject to a minimum limitation of 25% of 85% of the state average weekly wage.

      . 1916 Ky. Acts ch. 33 § 13.

      .A 1980 amendment added the language "and is actually dependent” to KRS 342.075(3). 1980 Ky. Acts ch. 104 § 2. The amendment appears redundant; regardless, for reasons discussed infra, it has no application to widows, widowers or children under the present statutory scheme.

      . 1972 Ky. Acts ch. 78 § 36, eff. January 1, 1973.

      . 1972 Ky. Acts ch. 78 § 16, eff. January 1, 1973.

      . 1972 Ky. Acts ch. 78 § 14, eff. January 1, 1973. '

      . 1974 Ky. Acts ch. 386.

      .1974 Ky. Acts ch. 386 § 60.

      .1980 Ky. Acts ch. 104 § 2.


author: KELLER, Justice.

text:
    COMMONWEALTH of Kentucky, Appellant, v. Wilburn David FERRELL, Appellee.
    No. 1999-SC-0341-DG.
    Supreme Court of Kentucky.
    May 18, 2000.

      A.B. Chandler, III, Attorney General, Dana M. Todd, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, Counsel for Appellant.
    Herbert T. West, Lexington, Counsel for Appellee.
   ISSUE

KELLER, Justice.

During Ferrell’s trial testimony, the trial court sustained an objection by the Commonwealth and did not allow Ferrell to answer a question asked by his counsel. Ferrell’s counsel then informed the trial court of the nature of what Ferrell’s answer to the question would be, but Ferrell himself did not make a specific offer of his answer by way of avowal. Was Ferrell’s avowal testimony necessary to preserve the trial court’s ruling for appellate review? Because we cannot determine admissibility and prejudice issues on appeal without this witness’s testimony before us, we hold that an avowal by the witness, not the attorney, is necessary to preserve the error.

BACKGROUND

At Ferrell’s jury trial on a charge of second degree escape from Blackburn Correctional Complex in Fayette County, unchallenged evidence demonstrated that after serving one (1) month of a one (1) year sentence Ferrell walked away from the prison without permission prior to the 9:00 p.m. “lockdown” in his dormitory, and authorities recaptured him in Louisville the following day. Ferrell alleged in his defense that he fled the prison because other inmates had threatened him and caused him to fear for his life, and, therefore, he made a “choice of evils” which would entitle him to a not guilty verdict.

Ferrell testified in his own defense and described a “clique” of five inmates with whom he was initially housed at the Blackburn Correctional Complex who intimidated and threatened him. Ferrell described one incident where a member of the group vandalized a phone which he used to phone his wife daily and then the group surrounded him as he attempted to use another phone. On another occasion, one member of the group allegedly hit and poked Ferrell in the back with a tray while in line at the mess hall. Ferrell claimed that he repeatedly and unsuccessfully sought assistance both from the prison guards and prison case workers who advised him to stand up for himself physically against the group but also advised him that a physical altercation with other inmates could extend the length of his incarceration. Eventually, however, Ferrell secured an administrative relocation to another dormitory, but within a few days, three members of the group were also relocated to the new dormitory.

During his direct examination, Ferrell’s attorney attempted to solicit testimony from him relating to specific threats which he received:

Defense: Now, you said they were making some threats, can you tell me what specifically people were saying to you?
Ferrell: One of the guys that was involved with them came to me.' They moved him right over top of me in Al. He came to me and he told me he said “You seem like a pretty good guy— Commonwealth: Your honor, I’m going to object to the—
Judge: Sustained
Commonwealth: (continuing) — hearsay.
Judge: Sir, you may not testify as to anything anyone said to you unless that person is here to testify.
Ferrell: O.K., I’m sorry.
Defense: But, your Honor ... if we could approach on this.
[The attorneys then conferred at the bench]
Defense: Your Honor, we’re asking him to testify to statements which led to his frame of mind. We believe that he had reason to fear these inmates. What he’s about to testify to is that one of these individuals was going to warn him of specific actions that was planned to take against him.
Commonwealth: Your Honor, I would object to him being able to testify to that. If that individual actually warned him, they could have called him to testify here, and I’ve let a lot of hearsay go already. And I think he’s stated that he had some conflicts, but I would object to him being permitted to testify as to what somebody else told him, especially for the fact that he’s testified for it as the truth — that he was under this threat.
Defense: We understand that it might be hearsay, your Honor, but we — referring to the matter of self-defense, even hearsay is available if it relates to the person’s state of mind .as to what they reasonably might expect as a need. to defend themselves. ■ ’ ■
Commonwealth: I don’t think we have . an issue of self-defense here.
Judge: I think that’s .... I’ve had a hard time following this. We’ve already had a lot of testimony about this man, Smitty, whoever that is—
Commonwealth: I should have objected earlier.
Judge: (continuing) —and this guard named “Red.” Clearly those people are available if, in fact, they said .these things. I don’t think it’s fair to let this defendant get into all of this stuff. If you all had wanted to get those people here, you could have gotten them here, so I’m sustaining the objection.

Wflien the testimony continued, Ferrell testified that he had personally observed the “same crew whup a forty-seven (47) or forty-eight (48) year old guy” in the presence of a prison guard who did not intervene. After a verbal altercation with a member of the group, Ferrell claimed that'' he again requested assistance from officers and case workers without success. Ferrell testified that on the night he left Blackburn Correctional Complex he found & razor' blade placed on his bed, which, in prison parlance, communicates a death threat to the recipient. Ferrell explained that he took the threat seriously because he felt that he would receive no protection from the prison after “lockdown,” as only one guard patrolled three floors in his dormitory, and he fled the prison because of this threat.

Ferrell’s trial counsel did not ask the judge to allow him to question Ferrell by way of avowal outside the.presence of the jury as to the specific words of the threats communicated to his' client.

The trial court found the evidence sufficient to instruct the jury as to Ferrell’s “choice of evils” defense, but the jury found Ferrell guilty and recommended a five year sentence on the second degree escape conviction. The jury recommended a total sentence of sixteen (16) years based on Ferrell’s status as a first degree persistent felony offender, and the trial court followed the jury’s recommendation. Ferrell appealed to the Court of Appeals, which reversed the conviction on the basis that the trial court should have permitted Ferrell to answer his counsel’s question regarding the specific threats communicated to him because such threats would not constitute hearsay as the defense sought their admission not for the truth of the matter asserted, but rather to demonstrate Ferrell’s state of mind. The Commonwealth sought discretionary review in this Court, which we granted, and we now reverse the Court of Appeals.

ANALYSIS

KRE 103 outlines the procedures for preserving for appellate review questions regarding trial court rulings as to the admission of evidence, testimonial or otherwise:

(a) Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected; and
(2) Offer of proof. In case the ruling is one excluding evidence, upon request of the examining attorney, the witness may make a specific offer of his answer to the question.
(b) Record of offer and ruling. The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. It may direct the making of an offer in question and answer form.

Rule of Criminal Procedure 9.52 describes this procedure with language that closely tracks KRE 103 in the context of jury and non-jury trials when the trial court sustains an objection to certain testimony:

In an action tried by a jury, if an objection to a question propounded to a witness is sustained by the court, upon request of the examining attorney, the witness may make a specific offer of his or her answer to the question. The court shall require the offer to be made out of the hearing of the jury. The court may add such other or further statement as clearly shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. In actions tried without a jury the same procedure may be followed, except that the court upon request shall take and report the evidence in full, unless it clearly appears that the evidence is not admissible on any ground or that the witness is privileged.

In Partin v. Commonwealth, this Court explained that trial attorneys in Kentucky must offer avowal testimony from the witness himself or herself in order to preserve such an issue for appellate review:

A review of the record discloses that appellant did not request that an examination be conducted outside the presence of the jury and offer the testimony by avowal under RCr 9.52. As stated in Cain v. Commonwealth, Ky., 554 S.W.2d 369 (1977), “without an avowal to show what a witness would have said an ap- pellote court has no basis for determining whether an error in excluding his proffered testimony ■ was prejudicial. Counsel’s version of the evidence is not enough. A reviewing court must have the words of the witness. As a result, we find this issue has not been preserved.

In the case now before us, the Court of Appeals acknowledged this Court’s holding in Partin but believed the evidence in this case met an exception it gleaned from Webb v. Stone, an opinion from the predecessor to this Court. The Court of Appeals held that trial counsel need not offer avowal testimony in order to preserve an evidentiary exclusion issue for appeal when the excluded testimony’s relevancy is apparent from the questioning. We find no such exception to the avowal requirement and reiterate today the holding we reached in Partin — an alleged error in the trial court’s exclusion of evidence is not preserved for appellate review unless the words of the witness are available to the reviewing court.

Webb v. Stone involved litigation stemming from a fatal car accident which killed both the driver and passenger. The passenger’s estate brought suit against the driver’s estate and alleged that the driver had negligently operated the vehicle prior to the accident by driving at a high rate of speed. The driver’s estate sought to bar any recovery by the passenger’s estate on the grounds of contributory negligence, and attempted to introduce testimony as to the results of a blood alcohol analysis taken from the bodies of the driver and passenger for the purpose of demonstrating that the passenger was aware of the driver’s intoxication and was himself negligent in riding with an intoxicated driver. The trial court refused to allow the defendant driver’s estate to introduce testimony of the blood alcohol analysis, but the defendant did present, by way of avowal, testimony that both driver and passenger had quantities of alcohol in their systems. The trial court directed a verdict on the liability issue in favor of the plaintiff passenger’s estate, and the defendant driver’s estate appealed.

Unlike the ease now before us, the main issue in Webb v. Stone did not relate to the substance of the excluded testimony, which had been firmly established by the avowal testimony relating to the percentages of alcohol in the two men’s systems, but rather the significance or relevance of that evidence. The driver’s estate introduced no evidence connecting the percentages of alcohol found with drunkenness:

It is true that the defendant herein did not make any avowal as to the significance of an alcoholic content of 0.20 percent (or 0.10 percent) in the blood as relates to a showing of the extent of drunkenness.

In Webb .v. Stone, the Court held that the defendant driver’s estate did not need to establish by a separate, avowal the relevance of the testimony excluded by the trial court because the blood alcohol concentration evidence allowed a reasonable inference that the two men had been drinking together and that the passenger was aware of the driver’s intoxication:

We are concerned in this appeal only with the question of whether the defendant’s failure in the instant case to make an avowal as to the significance of the alcohol contents shown by his other avowal testimony bars him from claiming prejudice from the trial court’s refusal to admit the evidence of the alcoholic-content percentages. The question is whether the relevancy of the evidence that was offered is sufficiently apparent to this court to warrant a conclusion that the exclusion of the evidence was prejudicial. We think it is. Certainly when the legislature has said, in KRS 189.520, that an alcoholic-content percentage of as much as 0.15 percent creates a presumption that the person is under the influence of intoxicating liquors to such an extent as not to meet the qualifications prescribed by the legislature for drivers, it would be strange indeed for this court to say that a showing of a percentage of 0.20 percent does not indicate to us any relevancy of the question of capacity to drive.

The case before us today is very different. Ferrell has asked the appellate courts of this state to hold that the trial court committed prejudicial error by not permitting him to answer a question, but has not supplied us with the answer to that question by means of avowal. Unlike the Court in Webb v. Stone, which knew exactly what evidence the trial court had excluded and only had to wrestle with whether the exclusion was prejudicial, in order to evaluate Ferrell’s argument, a reviewing Court would have to: (1) guess as to what Ferrell’s answer to counsel’s question concerning the specific threats would have been; (2) determine whether the trial court erred in excluding such testimony; and then (3) determine whether any error was prejudicial or harmless. An appellate court simply cannot address admissibility and prejudice issues in a vacuum, and RCr 9.52 provides parties with a procedure which allows them to include within the record the words of their witnesses so that appellate courts can review their claims. Based on the record before us in this case, we can not determine whether the trial court erred in sustaining the Commonwealth’s objection, and we certainly can not make any meaningful determination of how any error prejudiced the defendant in light of the other evidence admitted at trial. Accordingly, we reaffirm our holding in Partin that a party must offer an avowal by the witness in order to preserve for appellate review an issue concerning the exclusion of evidence. In the case before us, we find the alleged error unpreserved for our review.

For the foregoing reasons, the decision of the Court of Appeals is reversed and the judgment of conviction is reinstated.

All concur.

      . KRS 520.030.

      . KRS 503.030:
      (1) Unless inconsistent with the ensuing sections of this code defining justifiable use of physical force or with some other provisions of law, conduct which would otherwise constitute an offense is justifiable when the defendant believes it to be necessary to avoid an imminent public or private injury greater than the injury which is sought to be prevented by the statute defining the offense charged, except that no justification can exist under this section for an intentional homicide.
      (2) When the defendant believes that conduct which would otherwise constitute an offense is necessary for the purpose described in subsection (1), but is wanton or reckless in having such belief, or when the defendant is wanton or reckless in bringing about a situation requiring the conduct described in subsection (1), the justification afforded by this section is unavailable in a prosecution for any offense for which wantonness or recklessness, as the case may be, suffices to establish culpability.

      .KRE 103. The 1992 Commentary to the Kentucky Rules of Evidence explains why litigants are required to make offers of proof:
      It is widely recognized that these requirements should be designed to serve three ends: (i) offer counsel a fair opportunity to address admissibility issues and take corrective measures when feasible; (2) provide the trial judge with sufficient information to assure correct rulings on the admission or exclusion of evidence; and (iii) to provide a record sufficient for an appellate court to review decisions concerning the admissibility of evidence. These objectives are served, generally speaking, by requiring that a proper "offer of proof” be made when attempting to introduce evidence....
      1992 Commentary to KRE 103 (emphasis added).

      . RCr 9.52.

      . Ky., 918 S.W.2d 219, 223 (1996).

        . Id. at 223 (citations deleted and emphasis added).

      . Ky., 445 S.W.2d 842, 844-45 (1969).

      . Id. at 844.

      . Id. at 844-45.

      . Although Ferrell’s counsel suggested to the trial court that Ferrell would describe a specific warning communicated to him by one member of the group, we have no way of knowing the nature of this warning. Ferrell may have testified that his bunkmate warned him generally to "watch his back,” or told him that the group had plans to attack him on a given night. The form of the alleged warning is significant both in relation to the question of admissibility, as it could have taken the form of multiple hearsay (e.g., "X told me that Y told him that the gang is going to get you”), and in relation to the question of prejudice. Without an avowal, or a crystal ball, reviewing courts can never know with any certainty what a given witness's response to a question would have been if the trial court had allowed them to answer. Appellate courts review records; they do not have crystal balls.

      .Ferrell’s argument that this Court should evaluate this issue pursuant to RCr 10.26 (palpable error) if we determine his failure to offer an avowal renders it unpreserved only magnifies this problem. Not only would we have to find prejudice, but we’d have to determine, without knowing Ferrell’s answer to his counsel’s question, that "manifest injustice has resulted from” the trial court’s ruling which did not permit Ferrell to answer.