author: Justice MEDINA Justice WAINWRIGHT, Justice BRISTER,

text:
    Arturo FLORES, et al., Appellants, v. MILLENNIUM INTERESTS, LTD., et al., Appellees.
    No. 04-1003.
    Supreme Court of Texas.
    Argued Feb. 15, 2005.
    Decided Sept. 30, 2005.
    Rehearing Denied March 31, 2006.

      Harry Herzog, David A. Carp, Herzog Carp & McManus, William C. Wagner, and J. James Luck, Godwin Gruber LLP, Houston, for Appellant.
    H. Miles Cohn, Sheiness Scott Grossman & Cohn, L.L.P., and Michelle Friery, Houston, for Appellee.
    J. Ken Nunley, Nunley Davis Jolley & Hill, L.L.P., Boerne, Vincent L. Hazen, Hazen & Terrill, P.C., Bill Davis, Office of Atty. Gen., Austin, Deborah G. Hankinson, Law Offices of Deborah Hankinson PC, Dallas, for Amicus Curiae
   Justice MEDINA

delivered the opinion of the Court

joined by Justice HECHT, Justice O’NEILL, Justice WAINWRIGHT, Justice JOHNSON, and Justice WILLETT.

This case comes to us on certified questions from the United States Court of Appeals for the Fifth Circuit asking us to construe section 5.077 of the Texas Property Code. That section requires that the seller of real property under an executory contract provide the buyer with an annual accounting statement and imposes “liquidated damages” should the seller fail to comply. The Fifth Circuit has asked the following questions about this statute:

1. If a seller under a contract for deed sends a purchaser a statement under § 5.077(a) that omits any of the applicable information listed in § 5.077(b) of the Texas Property Code, specifically in the information required by § 5.077(b)(1) or (3), or both, is the seller liable to the purchaser for $250 per day liquidated damages as set forth in § 5.077(c)?
2. If a seller under a contract for deed sends a purchaser a statement that omits information required by §§ 5.077(b)(1) and (3), must the purchaser prove actual harm or injury to recover liquidated damages under the statute?
3. In 2001, 2002, and 2003, did the statutorily defined “exemplary damages” in chapter 41 of the Texas Civil Practice and Remedies Code encompass the statutorily defined “liquidated damages” in § 5.077 of the Texas Property Code, so that to recover under § 5.077 of the Property Code a purchaser would have to comply with § 41.003 of the Civil Practice and Remedies Code?

390 F.3d 374, 376-77 (5th Cir.2004) (per curiam). The Fifth Circuit has further disclaimed “any intention or desire” that we “confine [our] reply to the precise form or scope of the questions certified.” Id. at 377.

We conclude that the annual statements in this case were timely under section 5.077(a) and that the omission of some information required by section 5.077(b) did not render them deficient or otherwise invoke the liquidated damages provision of section 5.077(c). We further conclude that the Legislature intended for the “liquidated damages” of section 5.077(c) to be a penalty and did not intend that a purchaser prove actual damages as a predicate to their recovery. We accordingly answer the first two questions posed by the Fifth Circuit, No, and conclude that those answers make it unnecessary to reach the third and final question.

I

Millennium Interests, Ltd. develops residential subdivisions in the Houston area, financing most of its sales either with traditional mortgages or executory contracts, also known as contracts for deed. A contract for deed, unlike a mortgage, allows the seller to retain title to the property until the purchaser has paid for the property in full. Such sales are regulated by statute which, among other things, requires that the seller provide the purchaser with an annual accounting statement on or before January 31 each year. See Tex. Prop.Code § 5.077. If the seller fails to send the statement on time, the statute makes the seller liable to the purchaser for “liquidated damages” and attorney’s fees. Id. § 5.077(c).

The purchaser’s statutory right to liquidated damages and attorney’s fees under a contract for deed is relatively new, added in 2001, when the Legislature renumbered and revised the statutes applicable to such contracts. Previously, the statute had allowed the purchaser to deduct 15% of his or her monthly payments beginning on the date on which the required information was demanded until the date on which it was provided. The 2001 amendments, however, changed this to provide:

(c) A seller who fails to comply with subsection (a) is liable to the purchaser for:
(1) liquidated damages in the amount of $250 a day for each day after January 31 that the seller fails to provide the purchaser with the statement; and
(2) reasonable attorney’s fees.

Tex. Prop.Code § 5.077(c). These “liquidated damages” are triggered by the seller’s failure to comply with subsection (a), which provides:

(a) The seller shall provide the purchaser with an annual statement in January of each year for the term of the executo-ry contract. If the seller mails the statement to the purchaser, the statement must be postmarked not later than January 31.

Id. § 5.077(a). Subsection (b) then lists the information that must be provided in the annual statement, which includes:

(1) the amount paid under the contract;
(2) the remaining amount owed under the contract;
(3) the number of payments remaining under the contract;
(4) the amounts paid to taxing authorities on the purchaser’s behalf if collected by the seller;
(5) the amounts paid to insure the property on the purchaser’s behalf if collected by the seller;
(6) if the property has been damaged and the seller has received insurance proceeds, an accounting of the proceeds applied to the property; and
(7) if the seller has changed insurance coverage, a legible copy of the current policy, binder or other evidence that satisfies the requirements of Section 5.070(a)(2).

Id. § 5.077(b).

In July 2000, Millennium retained Concord Servicing Corp. to perform accounting and reporting services for its financing transactions. Concord provided two annual statements to each of Millennium’s customers, an “Annual Interest Statement” and an “Escrow Analysis.” Unfortunately, these statements failed to include two items required by the statute, the “amount paid under the contract” and “the number of payments remaining under the contract.” Id. § 5.007(b)(1), (3).

Consequently, three purchasers sued Millennium for these omissions in their 2001 and 2002 annual statements, seeking statutory damages. At the summary judgment hearing in May 2003, these purchasers claimed that they were entitled to statutory damages greatly in excess of the purchase prices of their respective properties. The federal district court disagreed, however, rendering summary judgment for Millennium. The court concluded that:

• Millennium had timely provided annual statements to the purchasers;
• Section 5.077(c) permits the recovery of liquidated damages of $250 per day only for violation of Section 5.077(a), which requires the timely mailing of annual statements to purchasers under a contract for deed;
• Section 5.077(c) does not similarly provide for liquidated damages for violation of Section 5.077(b), which delineates the contents of an annual statement; and
• Because Section 5.077(c) does not provide for liquidated damages when a statement is timely provided, the plaintiffs were not entitled to recover in the absence of proof of actual damages.

273 F.Supp.2d 899, 901. The purchasers appealed the summary judgment in Millennium’s favor to the Fifth Circuit, which certified the aforementioned questions to us.

II

The first certified question asks whether section 5.077(c)’s liquidated damages are owed when a seller delivers a timely annual statement that omits some of the information listed in subsection (b) of that statute. The plain wording of the statute is argued in support of conflicting interpretations. The purchasers argue that because subsection (b) defines what information an “annual statement” must include, a document that does not contain this information cannot be an annual statement. Thus, the purchasers conclude that statutory damages apply until they receive a complete annual statement, incorporating all of the information required by subsection (b). Millennium argues, on the other hand, that because the statute plainly premises statutory damages only upon the seller’s failure to provide the purchaser with a timely annual statement, subsection (a), without mentioning subsection (b), that a timely annual statement may omit some of the information required by subsection (b) and not invoke the liquidated damages provision. Millennium further submits that had the Legislature intended otherwise, it would have conditioned the assessment of liquidated damages upon the seller’s failure to comply with both subsections (a) and (b) of the statute.

The parties also disagree about the nature of these statutory damages. Millennium argues that these damages are penal in nature because they bear no relation to a purchaser’s actual damages when receiving a late annual statement. The purchasers respond that the Legislature did not intend for them to be a penalty because it labeled the recovery as “liquidated damages.”

The term “liquidated damages” ordinarily refers to an acceptable measure of damages that parties stipulate in advance will be assessed in the event of a contract breach. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 664 (Tex.2005). The common law and the Uniform Commercial Code have long recognized a distinction between liquidated damages and penalties. See Stewart v. Basey, 150 Tex. 666, 245 S.W.2d 484, 485-486 (1952); Tex. Bus. & Com.Code § 2.718(a). If damages for the prospective breach of a contract are difficult to measure and the stipulated damages are a reasonable estimate of actual damages, then such a provision is valid and enforceable as “liquidated damages;” otherwise it is void as a “penalty.” Phillips v. Phillips, 820 S.W.2d 785, 788 (Tex.1991). The purchasers therefore conclude that these damages cannot be both “liquidated damages” and a “penalty.”

While we agree that this is true at common law, it does not always hold true for statutes. Aside from the 2001 amendments to the Property Code, twelve Texas statutes mention liquidated damages, nine of which involve the regulation of liquidated damage provisions in contracts. Representative here is section 2.718 of the Business & Commerce Code which codifies the common law distinction as part of Texas’ adoption of the Uniform Commercial Code’s article on sales. The Legislature, however, has also used the term “liquidated damages” in other contexts and, on occasion, has used it when referring to a penalty. For example, section 62.201 of the Labor Code imposes a civil penalty against an employer who violates minimum wage laws in the amount of “the unpaid wages plus an additional equal amount as liquidated damages.” Article 6362 of the revised civil statutes imposes a penalty of “five hundred dollars as liquidated damages” payable to the shipper if a railroad charges more for a double-decked carload of sheep than for a similar shipment of cattle, but also waives “the penalties prescribed in this article” under certain circumstances.

In 2001, the Legislature amended the Property Code to add, among other things, two provisions for “liquidated damages,” the provision at issue here, section 5.077(c), and section 5.079(c). This latter section assesses “liquidated damages” against a seller who fails to promptly tender a deed within 30 days after the purchaser’s final payment under a contract for deed. The predecessor to section 5.079(c) imposed a “penalty” upon a seller for this same conduct, setting the penalty at $250 per day for the first 90 days and $500 per day for each day thereafter. See Act of June 17,1995, 74th Leg., R.S. Ch. 994, § 3, 1995 Tex. Gen. Laws 4988 (formerly Tex. Prop.Code § 5.102), amended by Act of June 13, 2001, 77th Leg., R.S. Ch. 693, § 1, 2001 Tex. Gen. Laws 1327 (current version at Tex. Prop.Code § 5.079). The 2001 amendment recharacterized these penalties as “liquidated damages” but did not otherwise change the statutory formula for computing these damages. See id.

In Brown v. De La Cruz, 156 S.W.3d 560 (Tex.2004), we compared section 5.079(c) to its predecessor to aid our understanding of whether the earlier version provided a private right of action for these penalties. We held that it did not, observing that “by changing ‘penalty’ to ‘liquidated damages’ and adding a provision for attorney’s fees, the Legislature changed not just the recipient but the nature of the amounts assessed.” Id. at 565. Thus, we concluded that the 2001 amendment had created a private right of action for these statutory damages — a right that could not be inferred from the language of the original statute. Id. We did not decide, however, whether the assessment of “liquidated damages” in section 5.079(c) was compensatory or penal in nature, although we did note, in passing, that the severity of the statutory formula “would in many instances impose a fine far beyond the damages that a purchaser is likely to suffer.” Id. at 566.

This observation from Brown is instructive here because sections 5.079(c) and 5.077(c) share a similar statutory formula for computing liquidated damages. According to Millennium’s math, that formula yields liquidated damages in this case in excess of five times the value of the underlying properties. Such an award obviously bears no relation to the harm caused by a late or incomplete annual statement; in fact, these purchasers candidly admit that they have not been harmed.

We have found statutory damage schemes far less draconian than this one to be penal in nature. See Johnson v. Rolls, 97 Tex. 453, 79 S.W. 513, 514 (1904) (statutory liquidated damages awarded without reference to any actual loss or injury have “much the character of exemplary or punitive damages”); The Houston & Tex. Central Ry. Co. v. H.W. Harry & Bros., 63 Tex. 256, 260 (1885)(to the extent that an award of statutory damage exceeds the amount necessary to compensate plaintiffs injury, “the excess is but exemplary damage”). In fact, before the 2001 amendments, there was little doubt that the Legislature also thought of these damages as a penalty. At least that is how section 5.079(c)’s predecessor referred to them. See Brown, 156 S.W.3d at 563 (quoting former § 5.102(b) of the Property Code). Merely changing the label for these statutory damages did not, without more, change their underlying character; they remain penal in nature.

As a penal statute, section 5.077 must be strictly construed. See id. at 565 (“statute providing for a daily penalty unrelated to actual losses must be strictly construed”). The statute conditions liability for “liquidated damages” on the seller’s failure to provide an annual statement by the statutory deadline. And although the statute also lists the information that must be included in that statement, it does not, strictly speaking, trigger an award of “liquidated damages” when some of that information is missing. By tying the statutory penalty to timely delivery of the annual statement, but not its contents, the Legislature’s apparent purpose was to provide the purchaser with certain annual information about the parties’ executory contract and to incite further inquiry if some of that information was missing or incomplete. Accordingly, we conclude that an annual statement under Section 5.077 that omits some required information does not invoke the “liquidated damages” provision unless the statement is so deficient as to be something other than a good faith attempt by the seller to inform the purchaser of the current status of their contractual relationship. The answer to the first certified question is, therefore, No.

The company hired by Millennium to service its financial transactions was apparently unaware of recently enacted disclosure requirements specifically applicable to executory contracts and accordingly sent these purchasers the same statements it typically used to service traditional mortgage loans. Those statements disclosed two of four items of information required by section 5.077(b), the “remaining amount owed on the contract” and the “amounts paid to taxing authorities.” Tex. Prop.Code § 5.077(b)(2), (4). It also disclosed part of another item, providing the amount of interest paid during the prior year, but did not state the total “amount paid under the contract,” or the “number of payments remaining under the contract.” Id. § 5.077(b)(1), (3). These omissions, while significant, do not demonstrate such a blatant attempt to circumvent the disclosure requirements as to render the annual statement a nullity.

Ill

The Fifth Circuit next asks whether a purchaser must prove actual harm or injury to recover statutory damages for an incomplete annual statement. We find nothing in the statute to suggest such a requirement. Moreover, to conclude that actual damages are a predicate to recovery under this statute would belie our conclusion that the liquidated damages provision is, in fact, punitive rather than compensatory. Accordingly, our answer to the second question certified is also, No.

Finally, the Fifth Circuit asks whether the “liquidated damages” imposed under this statute are also “exemplary damages” under Chapter 41 of the Texas Civil Practice and Remedies Code, such that a purchaser must also comply with the requirements of Chapter 41 to collect these statutory damages. Chapter 41 generally limits the award of exemplary damages, which it broadly defines as any damages that are “awarded as a penalty or by way of punishment.” Tex. Civ. Prac. & Rem.Code § 41.001(5).

Because the incomplete annual statement here did not invoke the liquidated damages provision of Section 5.077(c), we decline to decide at this time whether these statutory damages are also “exemplary damages” within the meaning of Chapter 41.

In summary, we conclude that an annual statement that omits some of the information required by Section 5.077(b) does not invoke “liquidated damages” under Section 5.077(c) unless the statement is so deficient as to be something other than a good faith attempt by the seller to inform the purchaser of the current status of their contractual relationship. We further conclude that these statutory damages are penal in nature and do not require actual harm as a predicate to recovery.

Justice WAINWRIGHT filed a concurring opinion.

Justice BRISTER filed a dissenting opinion joined by Chief Justice JEFFERSON and Justice GREEN.

Justice WAINWRIGHT,

concurring.

In 1995, the Legislature amended chapter 5 of the Texas Property Code to address serious abuses in the acquisition of homes in the colonias. Senate Comm, on Int’l Relations, Trade & Tech., Bill Analysis, Tex. S.B. 336, 74th Leg., R.S. (1995); House Comm, on Bus. & Indus., Bill Analysis, Tex. S.B. 336, 74th Leg., R.S. (1995); see also Act of May 24, 1995, 74th Leg., R.S. Ch. 994, § 1, 1995 Tex. Gen. Laws 4982. The colonias are substandard, generally impoverished, rural subdivisions that typically lack basic utilities and other infrastructure. Senate Comm, on Int’l Relations, Trade & Tech., Bill Analysis, Tex. S.B. 336, 74th Leg., R.S. (1995); House Comm, on Bus. & Indus., Bill Analysis, Tex. S.B. 336, 74th Leg., R.S. (1995). Concentrated along the Texas border with Mexico, colonia residents almost always acquire residential lots through executory contracts called “contracts for deed” or “contracts for sale.” Senate Comm, on Int’l Relations, Trade & Tech., Bill Analysis, S.B. 336, 74th Leg., R.S. (1995); House Comm. on Bus. & Indus., Bill Analysis, Tex. S.B. 336, 74th Leg., R.S. (1995). As the Court notes, in this type of contractual conveyance, legal title to the property does not transfer until after all purchase payments have been made, unlike a traditional mortgage in which legal title transfers upon closing the transaction. 185 S.W.3d at 431-32.

The Legislature found that purchasers had little legal protection under the contract-for-deed financing arrangement and no statutory right to critical information about the colonia property being purchased. Act of May 24, 1995, 74th Leg., R.S. Ch. 994, § 1, 1995 Tex. Gen. Laws 4982. Sellers have sold individual lots to two or more purchasers, sold lots without written contracts, and placed hens on lots subsequent to the sale without informing the purchasers and colonia residents. Senate Comm, on Int’l Relations, Trade & Tech., Bill Analysis, Tex. S.B. 336, 74th Leg., R.S. (1995); House Comm, on Bus. & Indus., Bill Analysis, Tex. S.B. 336, 74th Leg., R.S. (1995). Colonia residents also complain that sellers frequently misrepresent the availability of water, sewer service, and other utilities, and that the residents are often not informed when property being sold lies in a flood plain or is otherwise unsuitable for habitation. Senate Comm, on Int’l Relations, Trade & Tech., Bill Analysis, Tex. S.B. 336, 74th Leg., R.S. (1995); House Comm, on Bus. & Indus., Bill Analysis, Tex. S.B. 336, 74th Leg., R.S. (1995).

Although the Legislature considered a prohibition of contract-for-deed conveyances to end these abuses, it determined that many residents building homes in these areas need this method of financing because they do not have access to traditional mortgage financing. Senate Comm, on Int’l Relations, Trade & Tech., Bill Analysis, Tex. S.B. 336, 74th Leg., R.S. (1995); House Comm. on Bus. & Indus., Bill Analysis, Tex. S.B. 336, 74th Leg., R.S. (1995); see also Act of May 24, 1995, 74th Leg., R.S. Ch. 994, § 1, 1995 Tex. Gen. Laws 4982. The contract-for-deed arrangement, however, allows low-income persons to purchase property and build homes on the property. Act of May 24, 1995, 74th Leg., R.S. Ch. 994, § 1, 1995 Tex. Gen. Laws 4982. To address the fraudulent and abusive conduct, the Legislature amended the statute in 2001, substantially increasing the monetary penalties and applying the protections statewide. House Comm. on Bus. & Indus., Bill Analysis, Tex. S.B. 198, 77th Leg., R.S. (2001); see also Act of May 11, 2001, 77th Leg., R.S. Ch. 693, § 1, 2001 Tex. Gen. Laws 1319, 1327 (current version at Tex. Prop.Code §§ 5.062, .077, .079).

The Legislature’s purpose is clear, but the statute’s language complicates interpretation of the statute’s provisions. This difficulty is evident in the certification of the statute’s interpretation to our Court by the U.S. Court of Appeals for the Fifth Circuit, and, in answering the question, this Court’s split decision. I join the Court’s interpretation because it fulfills the Legislature’s intent by giving effect to the penalties for a seller’s noncompliance with the statute’s disclosure requirements while not severely penalizing good faith efforts of sellers to comply.

However, the statute is deafeningly silent on the limits of the penalty. The penalty may be assessed at $250 a day for failure to provide the annual statement, but may the monetary penalties continue to accumulate without boundary? Tex. Prop.Code § 5.077(c)(1). The applicable statute of limitations — not identified in the statute — would set an upper limit on damages, but the amount accrued during a multi-year limitations period could exceed the property’s value by a substantial factor, even in cases in which there is no actual harm. The punishment should fit the crime, but this statute provides no guidance on this question.

Although the statute and the Court’s opinion leave open this question, the U.S. Constitution may provide an answer. Punitive damages, a type of civil penalty, have been sanctioned by both this Court and the United States Supreme Court for many years. Punitive damages punish the civil wrongdoer and provide a disincentive to such future conduct. Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 17 (Tex.1994); see also State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 416, 128 S.Ct. 1518, 155 L.Ed.2d 585 (2003). Although the states have discretion over the imposition of punitive damages, the U.S. Supreme Court has repeatedly recognized the existence of constitutional limits on these awards. Campbell, 538 U.S. at 416, 123 S.Ct. 1513; Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 433-34, 121 S.Ct. 1678, 149 L.Ed.2d 674 (2001); BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 562, 568, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996); Honda Motor Co. v. Oberg, 512 U.S. 415, 420, 114 S.Ct. 2331, 129 L.Ed.2d 336 (1994); TXO Prod. Corp. v. Alliance Res. Corp., 509 U.S. 443, 453-55, 113 S.Ct. 2711, 125 L.Ed.2d 366 (1993) (plurality opinion); Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 18, 111 S.Ct. 1032, 113 L.Ed.2d 1 (1991).

These cases stem from the Supreme Court’s decision that constitutional limits of the states’ police power to fix civil monetary punishments for illegal acts constrain the states’ imposition of such fines when the “fines imposed are so grossly excessive as to amount to a deprivation of property without due process of law.” Waters-Pierce Oil Co. v. Texas, 212 U.S. 86, 107, 111, 29 S.Ct. 220, 53 L.Ed. 417 (1909). In Waters-Pierce Oil Co., the Supreme Court upheld monetary fines imposed by Texas anti-trust laws. 212 U.S. at 112, 29 S.Ct. 220. In subsequent cases, the Supreme Court applied that standard to punitive damages, prohibiting the imposition of these awards in amounts that are “grossly excessive” in relation to the states’ interests of retribution and deterrence. Campbell, 538 U.S. at 416, 123 S.Ct. 1513; Gore, 517 U.S. at 568, 116 S.Ct. 1589. Civil penalties that arbitrarily and without reason deprive citizens of their property impinge individual rights to substantive due process. See Campbell, 538 U.S. at 417-18, 123 S.Ct. 1513. Thus, although there are “no rigid benchmarks,” punitive damage awards exceeding a single-digit ratio between punitive and compensatory damages raise red flags. See Campbell, 538 U.S. at 425, 123 S.Ct. 1513; see also Gore, 517 U.S. at 581-83, 116 S.Ct. 1589; cf. Haslip, 499 U.S. at 23-24, 111 S.Ct. 1032.

Justices dissenting to these decisions assert that the Due Process Clause erects only procedural due process hurdles to assessing civil punishment of tortfeasors and does not provide any substantive protections against excessive or unreasonable punitive damage awards. Campbell, 538 U.S. at 429, 123 S.Ct. 1513 (Scalia, J., dissenting) (criticizing the Supreme Court’s substantive due process constitutional limitation as “insusceptible of principled application”); see also, e.g., id. at 430, 123 S.Ct. 1513 (Thomas, J., dissenting); Gore, 517 U.S. at 598-99, 116 S.Ct. 1589 (Scalia, J., dissenting). Notwithstanding these dissents, the Supreme Court has established that the “Due Process Clause of the Fourteenth Amendment prohibits the imposition of grossly excessive or arbitrary punishments on a tortfeasor.” Campbell, 538 U.S. at 416, 123 S.Ct. 1513 (majority opinion) (citing Cooper Indus., 532 U.S. at 433, 121 S.Ct. 1678; Gore, 517 U.S. at 562, 116 S.Ct. 1589). Reasonableness and proportionality are required in setting the amount of these awards. Campbell, 538 U.S. at 426, 123 S.Ct. 1513.

Because the Court decides that Millennium complied with the statute and no penalties are awardable, it is not necessary to address limits on the amount of the civil penalties in this case. However, when the Court faces this issue for decision, we will be bound by constitutional precedents of the U.S. Supreme Court.

Justice BRISTER,

joined by Chief Justice JEFFERSON and Justice GREEN, dissenting.

The Court answers three certified questions “No”, “No”, and “Not applicable”. As the express words of several statutes require each question to be answered affirmatively, I respectfully dissent.

In an effort to protect those who buy property by contract-for-deed, the Legislature mandated that various disclosures “shall” be made by sellers. Given the purposes behind the statute, there is no question the Legislature intended these disclosures to be mandatory.

Among these mandatory disclosures is an annual statement. That statement “must include” seven listed items. To ensure compliance, failure to send an annual statement is punishable by “liquidated damages” of $250 per day plus attorney’s fees.

In answering the first certified question, the Court “strictly” construes the statute to require fewer items than the statute itself says “must” be included. That is not a very strict construction. Nor does it comply with the legislative mandate that we give the entire statute effect.

In place of the seven statutory items an annual statement “must include,” the Court says the statement need only be “a good faith attempt ... to inform the purchaser of the current status of their contractual relationship.” What items such an attempt might include is left for future litigation. After today, instead of a right to specific information, buyers have a right only to litigate whether the statement they got is good enough.

It is true that subsection (a) of the statute mandates annual statements, subsection (b) says what they must include, and subsection (c) states the consequences if a seller “fails to comply with Subsection (a).” But the latter does not mean the Legislature intended to penalize only those who sent nothing at all. Subsection (b) makes clear that a statement without the required information is not an “annual statement,” and thus necessarily violates subsection (a). The Court’s construction leaves no penalty at all for giving less information than the Legislature required, violating the rule that “we must always consider a statute as a whole and attempt to harmonize its various provisions.”

In place of the explicit statutory requirements, the Court adopts good-faith and substantial-compliance standards. These are important and often appropriate standards, but not the ones the Legislature chose to employ here. More important, they are ambiguous at the edges, requiring case-by-case adjudication. That may be good news for those employed in litigation, but not for buyers by contract-for-deed.

The third certified question inquires whether the “liquidated damages” imposed by this statute are “exemplary damages” subject to the substantive and procedural limits of Chapter 41 of the Texas Civil Practices and Remedies Code. That chapter applies broadly to “any action in which a claimant seeks exemplary damages relating to a cause of action,” and defines such damages as “any damages awarded as a penalty or by way of punishment.”

The purchasers argue that Chapter 41 is inapplicable because the damages sought here are designated in the statute as “liquidated” rather than “exemplary” damages. But the caps and other limits on exemplary damages cannot be avoided by simply calling them something else. Chapter 41 defines such damages by what they do, not what they are called. Similarly, “liquidated damages” in its ordinary meaning (which we must use as the annual-statement statute does not define the term) also turns on substance rather than sobriquet. Thus, whether Chapter 41 applies to the fees imposed here depends not on what they are called, but whether they are “a penalty or by way of punishment.”

The nature of fine here does not make that a difficult question. The fine is assessed daily, though nothing in either the statute or logic suggests how a missing annual statement would cause harm at that regular interval. Further, damages of $250 a day would total $7,500 a month and more than $90,000 a year, figures that all parties and amici assure us are well beyond both the sale price of these properties and the financial resources of those who buy them. And as the buyers themselves concede is the case here, the statutory damages accrue even if the buyers have suffered no damages whatsoever. As a matter of law, the damages imposed here are “a penalty or by way of punishment,” and Chapter 41 applies by its explicit terms.

According to the purchasers, the consequences of taking Chapter 41 at its word would be “staggering,” and would “destroy[ ] every legislatively enacted damage provision.” First of all, while the application of Chapter 41 to such fees is a new question, the characterization of them as penal or compensatory is not. More than a century ago, this Court held that a flat fine of $500 was a penalty, even though designated by statute as “liquidated damages.”

Second, the examples the purchasers proffer do not support such exaggerated fears. Two of their examples — attorney’s fees and discovery sanctions — are compensatory rather than punitive. Others either do not relate to a cause of action or were the subject of earlier exceptions expressly repealed by the Legislature.

Finally, and most importantly, Chapter 41 expressly provides that its provisions “prevail over all other law to the extent of any conflict.” That leaves little room for exceptions. We cannot presume (as the purchasers do) that the drafters of Chapter 41 forgot about statutory fines like the one here; but even if they did, that would not authorize us to edit their draft. “If Parliament does not mean what it says, it must say so.”

As to the second certified question, while the annual statement statute does not require proof of actual damages, Chapter 41 generally permits exemplary damages only if actual damages are more than nominal. But for causes of action accruing before September 1, 2003 (the time frame applicable to the claims here), actual damages were not a prerequisite if there was clear and convincing evidence of statutory malice.

Thus, the answer to this question should be ‘Tes, absent clear-and-eonvincing evidence of malice.”

While the statute here plainly mandates a daily penalty for every minor omission from an annual statement, the provisions of Chapter 41 plainly ameliorate those penalties when there has been little or no harm. By construing the statutes this way, we might have avoided both eviscerating the annual-statement statute and bestowing financial bonanzas on those who fail to receive them. The answer to all three certified questions should be ‘Tes”; because the Court concludes otherwise, I respectfully dissent.

      . The 2001 amendments made the reporting requirement and other provisions regarding executory contracts applicable to Millennium’s properties in Harris County. Those provisions previously had been applicable only in counties that the Texas Department of Housing and Community Affairs had determined were within 200 miles of an international border and had a below-average per capita income and an above average unemployment rate. See Act of June 17, 1995, 74th Leg., R.S. Ch. 994, § 3, 1995 Tex. Gen. Laws 4983-84 (formerly Tex. Prop.Code § 5.091), amended by Act of June 13, 2001, 77th Leg., R.S. Ch. 693, § 1, 2001 Tex. Gen. Laws 1319 (current version at Tex. Prop.Code § 5.062); SENATE COMMS. ON INT’L RELATIONS, TRADE TECH., BILL ANALYSIS, Tex. S.B. 336, 74th Leg., R.S.(1995); see also De La Cruz v. Brown, 109 S.W.3d 73,76 (Tex.App.-El Paso 2003), rev'd on other grounds, 156 S.W.3d 560 (Tex.2004).

      . Act of June 17, 1995, 74th Leg., R.S. Ch. 994, § 3, 1995 Tex. Gen. Laws 4987 (formerly Tex. Prop.Code § 5.100), amended by Act of June 13, 2001, 77th Leg., R.S. Ch. 693, § 1, 2001 Tex. Gen. Laws 1326-27 (current version at Tex. Prop.Code § 5.077).

      . The annual statements also did not include the last three items relating to insurance, which is understandable because Millennium neither provided, received, nor changed insurance on these properties.

      . In addition to section 5.077(c), at issue in this lawsuit, which assesses "liquidated damages” in connection with the requirement that the seller submit an annual accounting statement, section 5.079(c) assesses "liquidated damages” in connection with the requirement that the seller submit a deed upon payment of the contract.

      . See Tex. Agrie. Code § 52.016(d)(1) (a marketing association may "fix as liquidated damages specific amounts to be paid by a member if the member breaches the marketing contract”); Tex. Bus. & Com.Code § 2.718(codi-fying common law treatment of liquidated damages as part of UCC); Tex. Bus. & Com. Code § 2A.103(a)(7)(iii)(in finance lease, lessee must receive statement describing any liquidated damages provided to the lessor by the person supplying the goods); Tex. Bus. & Com.Code § 2A.503(c) (permitting liquidated damages in lease agreement); Tex.Civ. Prac. & Rem.Code § 141.003(7) (in structured settlement, statement provided to payee must show "the amount of any penalties or liquidated damages payable by the payee in the event of any breach of the transfer agreement by the payee”); Tex. Gov’t Code § 466.102 (state lottery commission must provide in contracts for "liquidated damages and a performance bond in an amount equal to the executive director's best estimate of the revenue that would be lost if the contractor fails to meet deadlines specified in the contract”); Tex. Local Gov’t Code § 116.023(b) (if bank chosen as county depository fails to provide bond, county will retain application fee as liquidated damages); Tex. Local Gov’t Code § 117.021(c) (if bank chosen as special fund county depository fails to provide bond, county will retain application fee as liquidated damages); Tex. Transp. Code § 223.012(a)(1) (state highway department to "develop a schedule for liquidated damages that accurately reflects the costs associated with project completion delays’’).

      . "Damages for breach by either party may be liquidated in the agreement but only at an amount which is reasonable in the light of the anticipated or actual harm caused by the breach, the difficulties of proof of loss, and the inconvenience or non-feasibility of otherwise obtaining an adequate remedy. A term fixing unreasonably large liquidated damages is void as a penalty.” Tex. Bus. & Com.Code § 2.718(a).

      . See Tex. Labor Code § 62.201 (imposing civil penally against employer violating minimum wage laws); Tex.Rev.Civ. Stat. art. 6362 (imposing civil penalty on railroad for freight overcharges); Tex.Code Crim. Proc. art. 18.20 § 16(a) (providing for the recovery of actual and punitive damages for violation of wiretapping laws “but not less than liquidated damages computed at a rate of $100 a day for each day of violation or $1000, whichever is higher”).

      . The statute actually lists seven items of required information, but the last three, relating to insurance coverage, are not applicable in this case. See n. 3, infra.

      . This provision was amended in 2003 to define "exemplary damages" as "any damages awarded as a penalty or by way of punishment but not for compensatory purposes.” (Emphasis added).

      . See, e.g., Tex. Prop.Code §§ 5.066(b), 5.068, 5.069, 5.070(a), 5.071, 5.072(d), 5.074(c), (d) & 5.077(a).

      . See Tex. Gov’t Code § 311.016(2) (noting that unless context requires otherwise, ‘‘shall” imposes a duty); Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex.2001) (stating that both “must” and "shall” “are generally recognized as mandatory”).

      . Tex. Prop.Code § 5.077(a).

      . Id. at § 5.077(b).

      . Id. at § 5.077(c).

      . Tex. Gov’t Code § 311.021 (2).

      . 185 S.W.3d at 430.

      . Marcus Cable Assocs., L.P. v. Krohn, 90 S.W.3d 697, 706 (Tex.2002).

      . Tex. Civ. Prac. & Rem.Code § 41.002(a). The word "exemplary” was deleted in 2003, although the substantive provisions of Chapter 41 continue to apply only to "exemplary damages.” Act of June 11, 2003, 78th Leg., R.S., ch. 204, § 13.03, sec. 41.002, 2003 Tex. Gen. Laws. 847, 888. This change tends to confirm that the Legislature intends a substantive review of all damages based on their nature rather than name.

      . Id. at § 41.001(5). This provision was amended in 2003 to define "exemplary damages” as "any damages awarded as a penalty or by way of punishment but not for compensatory purposes." Act of June 11, 2003, 78th Leg., R.S., ch. 204, § 13.02, sec. 41.001(5), 2003 Tex. Gen. Laws. 847, 887 (emphasis added).

      . Tex. Gov't Code § 312.002; Cities of Austin, Dallas, Ft. Worth, v. Southwestern Bell Tel. Co., 92 S.W.3d 434, 442 (Tex.2002); Owens Corning v. Carter, 997 S.W.2d 560, 577 (Tex.1999). In Brown v. De La Cruz, we held that an amendment to a related portion of the Property Code changing a daily fine from a "penalty” to "liquidated damages” changed "not just the recipient but the nature of the amounts assessed.” 156 S.W.3d 560, 565 (Tex.2004). But the question in that case was whether a statutory "penalty” implied a private right of action to collect it, a different question from whether a liquidated damages provision is enforceable as a reasonable forecast of damages. See Phillips v. Phillips, 820 S.W.2d 785, 788 (Tex.1991).

        . See Phillips, 820 S.W.2d at 789 (holding contractual provision denominated as "liquidated damages” was nevertheless a penalty, as it provided for ten times actual damages).

      . Johnson v. Rolls, 97 Tex. 453, 79 S.W. 513, 514 (1904).

      . Tex. Civ. Prac. & Rem.Code § 41.002(a).

      . For example, the purchasers refer to fines that were the subject of a lengthy "laundry list” of exemptions in section 41.002(b), which were repealed in 1995. Act of June 2, 1987, 70th Leg., 1st C.S., ch. 2, § 2.12, 1987 Tex. Gen. Laws 37, 44, amended by Act of Apr. 20, 1995, 74th Leg., R.S., ch. 19, § 1, 1995 Tex. Gen. Laws 108. See Act of May 21, 1997, 75th Leg. R.S., ch. 165, § 4.01, 1997 Tex. Gen. Laws 327.

      . Tex. Civ. Prac. & Rem.Code § 41.002(c).

      . Touche Ross & Co. v. Redington, 442 U.S. 560, 579, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979) (holding that even if construction of statute sanctioned injustice, the Court was not at liberty to legislate); Brown v. De La Cruz, 156 S.W.3d at 566 (holding that possibility of legislative mistake did not empower court to create private right of action).

      . Brazos River Auth. v. City of Graham, 163 Tex. 167, 354 S.W.2d 99, 109 (1961).

      . Tex. Civ. Prac. & Rem.Code § 41.004(a).

      . See id. at §§ 41.004(b), 41.001(7)(A), amended by Act of June 11, 2003, 78th Leg., R.S., ch. 204, §§ 13.05, 13.02, 2003 Tex. Gen. Laws 847, 887-88.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    ATOFINA PETROCHEMICALS, INC. F/K/A Fina Oil & Chemical Co., Petitioner, v. CONTINENTAL CASUALTY CO., Respondent.
    No. 04-0170.
    Supreme Court of Texas.
    Dec. 16, 2005.
    Rehearing Denied March 31, 2006.

      Pamela Stanton Baron, Austin, George W. Lederer Jr., Crain Catón & James, Keli Crandall Viereck, Atofina Petrochemicals, Inc., Houston, for Petitioner.
    Richard C. Rutledge, Kirby Deloach Hopkins, Drucker, Rutledge & Smith, L.L.P., Jane A. McClaine, Drucker Rutledge Ward & Smith, LLP, The Woodlands, for Respondent.
   PER CURIAM.

A & B Builders, Inc. was hired to erect steel for construction on premises owned by ATOFINA Petrochemicals, Inc. (Fina). An A & B employee, Larry Don Wisdom, was injured unloading steel for A & B on Fina’s property. When Wisdom sued Fina and others for negligence, Fina requested coverage and a defense as an additional insured under A & B’s comprehensive general liability policy. Although the trial court granted summary judgment in Fina’s favor, the court of appeals determined that Fina was not an additional insured at the time of the accident, and further, that coverage for Wisdom’s claims against Fina was barred by a policy exclusion. Because we conclude Fina was an additional insured and coverage was not excluded, we reverse the court of appeals’ judgment and reinstate the judgment of the trial court.

A & B carried workers’ compensation coverage and comprehensive general liability insurance provided by Continental Casualty Company. Because A & B was generally required to add the premises owner to its coverage when working at various sites, the liability policy contained an additional insured endorsement as follows:

IF YOU ARE REQUIRED TO ADD ANOTHER PERSON OR ORGANIZATION AS AN ADDITIONAL INSURED ON THIS POLICY UNDER A WRITTEN CONTRACT OR AGREEMENT CURRENTLY IN EFFECT, OR BECOMING EFFECTIVE DURING THE TERM OF THE POLICY, AND A CERTIFICATE OF INSURANCE LISTING THAT PERSON, OR ORGANIZATION, AS AN ADDITIONAL INSURED HAS BEEN ISSUED, THEN WHO IS AN INSURED (SECTION II) IS AMENDED TO INCLUDE AS AN INSURED THAT PERSON, OR ORGANIZATION (CALLED “ADDITIONAL INSURED”).

On August 12, 1997, A & B submitted to Fina a written construction proposal, which included a commitment to provide insurance to Fina as the premises owner. The proposal stated:

A & B Builders, Inc. is pleased to offer our proposal to furnish labor, tools, material (not furnished by Fina), equipment, insurance and supervision to complete steel erection for the [Administration-Laboratory Building and Locker Room].

On the same day, Fina orally accepted the proposal and created purchase requisitions referencing purchase order numbers for the job in accordance with the proposal. Fina’s representative faxed the purchase requisitions to A & B before A & B started work. Also on August 12, A & B’s representative immediately requested a certificate of insurance naming Fina as an additional insured from an authorized representative in A & B’s parent company’s insurance department. Based on Fina’s oral acceptance of the proposal and faxed copies of the purchase requisitions, A & B began work at Fina’s site on August 14. The certificate of insurance issued on August 18. Hard copies of Fina’s purchase orders, which purported to “contain[ ] the entire agreement between the parties hereto” and did not mention insurance, subsequently issued August 22 and 25.

On the first day of the job, August 14, Wisdom was injured. Following the accident, Wisdom sued Fina and two other defendants for personal injury, alleging his injuries were caused “by the total negligence and carelessness of Defendants.” Specifically, Wisdom alleged Fina was negligent: “1. In failing to properly supervise; 2. In issuing a permit to unload unbanded steel with a forklift; 3. In failing to supply a cherry picker for unloading the unband-ed steel; 4. In rushing the unloading process and demanding that A & B proceed to unload unbanded steel without proper equipment; 5. In failing to supply a safe workplace; and 6. In allowing an unsafe activity on its premises.” Refusing to provide coverage or a defense for Fina, Continental intervened in the suit to recover medical expenses and workers’ compensation benefits paid to Wisdom. Fina counter-claimed against Continental for breach of contract and bad faith, and Continental counter-claimed for declaratory relief. The coverage claims were ultimately severed from the suit.

The trial court rendered partial summary judgment, holding Fina was an additional insured under the blanket additional insured endorsement in the liability policy and coverage for Fina as an additional insured was not barred by an exclusion in the policy. The trial court rendered judgment for Fina in the amount of $365,751.61. The court of appeals reversed and rendered judgment that Fina take nothing, holding Fina was not an additional insured, and, alternatively, if Fina were an additional insured, an exclusion in the policy barred Fina’s claims.

Fina argues it was an additional insured under the additional insured endorsement at the time of the accident. We agree. Fina orally accepted A & B’s written proposal on August 12; thus, as of that date, A & B and Fina had a written contract that required A & B to provide insurance covering the Fina property. See Simmons & Simmons Constr. Co. v. Rea, 155 Tex. 353, 286 S.W.2d 415, 419 (1955) (holding “a written instrument signed by one party and expressly accepted orally by the other becomes a written contract”). In addition, Fina executed a written agreement when its project manager signed the purchase order requisitions on August 12.

Continental argues A & B’s agreement to furnish insurance to Fina was not sufficiently definite to create additional insured status for Fina. We disagree. Although it did not specify the type of insurance coverage or policy limits, the construction contract that stated A & B’s obligation to “furnish ... insurance” contained all of the material terms of the contract. We note that Fina presented evidence in the trial court that Fina and A & B had worked together before and that A & B understood Fina required that it be named an additional insured on A & B’s policy for any work A & B did for Fina, as was standard practice in the industry and of Fina and A & B. Because Fina and A & B had a standing requirement that Fina was to be added to A & B’s existing policy, the coverage and policy limits were provided by the existing policy. Thus, the contract was sufficiently definite for the parties to understand their obligations. See T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex.1992) (“[A] contract must be sufficiently definite in its terms so that a court can understand what the promisor undertook.”).

Fina argues the court of appeals erred by imposing unstated requirements — that the contract provide the types of coverage and the policy limits — as a bar to coverage. We agree. The additional insured endorsement in the policy does not specifically require the written construction contract to state the amount or type of coverage, only the name of the person or organization to be included as an additional insured. In fact, the additional insured endorsement goes on to state: “THE LIMITS OF LIABILITY FOR THE ADDITIONAL INSURED ARE THOSE SPECIFIED IN THE WRITTEN CONTRACT, OR AGREEMENT, OR IN THIS POLICY, WHICHEVER IS LESS.” Thus, if the construction contract fails to set out a different amount of coverage, the additional insured coverage is limited to the policy limits.

Continental argues the purchase orders issued on August 22 and 25 supersede the commitment to furnish insurance in the initial written proposal. We disagree. The purchase orders do not override the original insurance commitment because the orders are consistent with the original construction contract. See Hubacek v. Ennis State Bank, 159 Tex. 166, 317 S.W.2d 30, 32 (1958). Even if the purchase orders superseded the August 12 agreement, the orders do not affect the coverage question, which looks only at August 14, the date of the accident. As of that date, Fina and A & B were performing under a written construction contract that included an obligation to furnish insurance.

Continental argues Fina is not an additional insured because a certificate of insurance naming Fina as an additional insured was not issued prior to the accident. Continental claims strict adherence to the contract language is important to avoid the problem of interested parties, such as Fina and A & B, working together to create coverage after the fact. While we agree that the prudent practice is to obtain a certificate of insurance before beginning work under the contract, we disagree that the delay in issuance of the certificate in this case precludes Fina from being an additional insured. Nothing in the record indicates that Fina and A & B attempted to manufacture coverage after the accident. In addition, nothing in the liability policy indicates that issuance of a certificate is a condition precedent to Fina’s becoming an additional insured. In construing contracts, the terms will generally be construed as a covenant unless the contract contains specific conditional language. Criswell v. European Crossroads Shopping Ctr., Ltd., 792 S.W.2d 945, 948 (Tex.1990). Here, the policy contains no such language, and the additional insured endorsement did not require the certifícate to issue prior to the commencement of work or prior to loss. A & B’s representative requested a certificate of insurance on August 12, before the accident, but the certificate was not issued until August 18, four days after the accident. The certificate itself states that it “IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS,” and Continental’s representative admitted the certificate date does not necessarily affect coverage. We hold the issuance of the certificate does not affect Fina’s status as an additional insured and that Fina was an additional insured at the time of the accident.

Continental argues that even if Fina were an additional insured, the claims against Fina were excluded under the policy. We disagree. The policy limited the insurance for an additional insured as follows:

1. THAT PERSON, OR ORGANIZATION, IS ONLY AN ADDITIONAL INSURED FOR ITS LIABILITY ARISING OUT OF PREMISES “YOU” OWN, RENT, LEASE OR OCCUPY OR FOR “YOUR WORK” FOR OR ON BEHALF OF THE ADDITIONAL INSURED; AND
2. THE INSURANCE AFFORDED THE ADDITIONAL INSURED UNDER THIS ENDORSEMENT DOES NOT APPLY TO ... ANY LIABILITY ARISING OUT OF ANY ACT, ERROR OR OMISSION OF THE ADDITIONAL INSURED, OR ANY OF ITS EMPLOYEES....

As Fina argues, Paragraph 1 of the endorsement extends broad coverage to Fina on all matters arising out of A & B’s work. See Admiral Ins. Co. v. Trident NGL, Inc., 988 S.W.2d 451, 454 (Tex.App.—Houston [1st Dist.] 1999, pet. denied); McCarthy Bros. Co. v. Cont’l Lloyds Ins. Co., 7 S.W.3d 725, 730 (Tex.App.—Austin 1999, no pet.); Mid-Continent Cas. Co. v. Swift Energy Co., 206 F.3d 487, 498 (5th Cir.2000).

Fina contends Paragraph 2 excludes Fina’s sole negligence. We adopt this reasonable construction. See Nat’l Union Fire Ins. Co. v. Hudson Energy Co., 811 S.W.2d 552, 555 (Tex.1991) (holding a court “must adopt the construction of an exclusionary clause urged by the insured as long as that construction is not unreasonable, even if the construction urged by the insurer appears to be more reasonable or a more accurate reflection of the parties’ intent”). In addition, we adopt Fina’s construction because Continental’s interpretation that the exclusion bars all coverage when any negligence on the part of the premises owner is pleaded, unless the owner’s responsibility is based solely on vicarious liability for the acts of the contractor, would render coverage under the endorsement largely illusory. See Trinity Universal Ins. Co. v. Cowan, 945 S.W.2d 819, 828 (Tex.1997); see also Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex.1985) (noting a premises owner has no vicarious liability for the acts of an independent contractor performing work on a site, but is hable for the contractor’s work only if the premises owner exercises control over the contractor’s work).

Continental argues the claims against Fina and any resulting liability arose solely out of Fina’s acts and omissions. Despite the asserted legal theories, the pleadings contain factual allegations of injuries caused by A & B’s negligence while working at Fina’s facility — allegations which are covered by the policy. See Nat’l Union Fire Ins. Co. v. Merchs. Fast Motor Lines, Inc., 939 S.W.2d 139, 141 (Tex.1997) (per curiam) (holding, in determining the duty of a liability insurance company to defend a lawsuit, “the court must focus on the factual allegations that show the origin of the damages rather than on the legal theories alleged”). Accordingly, we reverse the court of appeals’ judgment and reinstate the trial court’s judgment that Fina was an additional insured at the time of the accident and its claims were not barred by the exclusion in the policy.


author: HERVEY, J., MEYERS, J., PRICE, J.,

text:
    Dennis HOOD, Appellant, v. The STATE of Texas.
    No. PD-0945-04.
    Court of Criminal Appeals of Texas.
    Jan. 18, 2006.

      Joe Marr Wilson, Amarillo, for Appellant.
    John L. Owen, Asst. District Attorney, Amarillo, Matthew Paul, State’s Atty., Austin, for State.
   OPINION

HERVEY, J.,

delivered the opinion of the Court

in which KELLER, P.J., KEASLER, HOLCOMB and COCHRAN, JJ., joined.

At issue is whether the government violated due-process principles by adding two enhancement paragraphs to appellant’s reindictment after appellant’s conviction on the original indictment was reversed on appeal. We decide that no due-process violation occurred.

Appellant was indicted in November 1994 for aggravated sexual assault of a child under fourteen years of age. This indictment contained no enhancement paragraphs. A jury convicted appellant of the offense charged in this indictment and assessed a sixty-five-year sentence. The Seventh Court of Appeals reversed this conviction and remanded “the cause for further proceedings” on grounds not relevant to this opinion. The State subsequently reindicted appellant for the same offense that was charged in the original indictment. The reindictment included two enhancement paragraphs that were not in the original indictment.

Appellant moved to quash the reindictment claiming that the prosecution vindictively added the enhancement paragraphs because appellant had successfully appealed his conviction on the original indictment. The trial court denied this motion based on the prosecutor’s explanation that the enhancements were “an omission from the very first indictment and should have been charged from the beginning.” Appellant presented no argument or evidence on why this explanation was insufficient to defeat a prosecutorial vindictiveness claim. After convicting appellant of the offense charged in the reindictment, a jury found the enhancement paragraphs “true” and sentenced appellant to life imprisonment.

Appellant claimed on direct appeal that the prosecution vindictively added the enhancement paragraphs to the reindictment. The Seventh Court of Appeals rejected this claim and decided that the trial court did not abuse its discretion in deciding that the prosecutor’s uncontroverted explanation (which we have set out above) overcame any presumption of vindictiveness. Hood v. State, 2004 WL 573827, at *6, 2004 Tex.App. LEXIS 2570 slip op. at 7 (Tex.App.Amarillo 2004) (not designated for publication). We exercised our discretionary authority to review this decision. The grounds upon which we granted discretionary review state:

Did the Court of Appeals err in holding that the State was not vindictive when it reindicted petitioner and added the two enhancement paragraphs?
Can petitioner be reindicted for an offense greater than the offense for which he was originally indicted?
Was the State allowed to reindict petitioner after the original conviction was reversed and remanded for a new trial without providing objective information to show why the two enhancement paragraphs were added?
Was the State allowed to retaliate against the petitioner for availing himself on direct appeal?
Was the petitioner’s right under the due process [sic] violated by the use of two enhancement paragraphs on the rein-dictment?[]

When a defendant proves “that he was convicted, he appealed and obtained a new trial, and that the State thereafter filed ... additional enhancements,” the burden shifts to the prosecution to provide an explanation of the additional enhancements “that is unrelated to the defendant’s exercise of his legal right to appeal.” See Neal v. State, 150 S.W.3d 169, 173-74 (Tex.Cr.App.2004); see also Blackledge v. Perry, 417 U.S. 21, 28-29, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974). The trial court “decides the issue based upon all of the evidence, pro and con, and the credibility of the prosecutor’s explanation.” See Neal, 150 S.W.3d at 173-74. This is entirely consistent with United States Supreme Court precedent. See United States v. Goodwin, 457 U.S. 368, 374, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982) (presumption of vindictiveness may be overcome by objective information justifying the increased sentence); see also Maddox v. Elzie, 238 F.3d 437, 446 (D.C.Cir.), cert. denied, 534 U.S. 836, 122 S.Ct. 87, 151 L.Ed.2d 49 (2001).

In the instant case, there is a presumption of prosecutorial vindictiveness because the defendant was convicted, he successfully appealed, and the State thereafter filed additional enhancements. However, the trial court was entitled to believe the prosecutor’s explanation that the enhancement paragraphs were added to the reindictment because they were “an omission from the very first indictment and should have been charged from the beginning,” meaning that their absence from the original indictment was an oversight or a mistake. This objective explanation is “unrelated to [appellant’s] exercise of his legal right to appeal,” and is, therefore, sufficient to rebut a presumption of vindictiveness.

Relying on this Court’s decision in Bouie v. State, appellant claims that the prosecutor did not rebut a presumption of vindictiveness with Bouie’s requirement of “identifiable conduct by appellant occurring after the first trial.” See Bouie v. State, 565 S.W.2d 543, 547 (Tex.Cr.App.1978). This statement from Bouie was based on a portion of the United States Supreme Court’s decision in North Carolina v. Pearce which stated that the reasons for an increased sentence must be based on “objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding.” See North Carolina v. Pearce, 395 U.S. 711, 726, 89 S.Ct. 2072, 28 L.Ed.2d 656 (1969).

In Texas v. McCullough, the Supreme Court rejected a vindictiveness claim. In McCullough, the defendant successfully moved for a mistrial after having been convicted and sentenced by a jury. See McCullough, 475 U.S. at 135-37, 106 S.Ct. 976. After a jury again convicted the defendant on retrial, the defendant chose to have the trial judge impose sentence and the trial judge imposed a greater sentence than that imposed by the jury in the original trial. See id. This increased sentence on retrial was not based on any of the defendant’s conduct after the original trial. See id. For this reason, a Texas Court of Appeals reluctantly decided that the defendant’s increased sentence was invalid under Pearce. See McCullough, 475 U.S. at 135-37 and at 144, 106 S.Ct. 976. On petition for discretionary review, this Court apparently agreed. See id.

The Supreme Court decided, however, that Pearce “was never intended to describe exhaustively all of the possible circumstances in which a sentence increase could be justified” and that “[rjestricting justifications for a sentence increase to only ‘events that occurred subsequent to the original sentencing proceedings’ could in some circumstances lead to absurd results.” See McCullough, 475 U.S. at 141, 106 S.Ct. 976 (emphasis in original). Therefore, to the extent that it is inconsistent with McCullough, Bouie must be overruled. See State v. Guzman, 959 S.W.2d 631, 633-34 (Tex.Cr.App.1998) (this Court required to overrule its federal constitutional decisions that conflict with United States Supreme Court federal constitutional decisions).

This disposes of appellant’s argument that he presents here in support of his prosecutorial vindictiveness claim. We also note that appellant procedurally defaulted any claim that the prosecution’s “mistake or oversight” explanation is factually insufficient to rebut a presumption of prosecutorial vindictiveness because appellant did not make that specific claim in the trial court or in this Court. We further note that some jurisdictions would decide that a “mistake or oversight” explanation is factually sufficient to rebut a presumption of prosecutorial vindictiveness while other jurisdictions would not so decide. The former treat a “mistake or oversight” explanation as an “objective” explanation while the latter treat it as a “subjective” explanation. This is an important distinction because an objective explanation is required. See Neal, 150 S.W.3d at 174 (requiring objective evidence to rebut presumption of vindictiveness).

We decide that a “mistake or oversight” explanation is an “objective explanation” that may be sufficient to rebut a presumption of prosecutorial vindictiveness especially when as here, a prosecutor does not merely deny his state of mind was motivated by vindictiveness. Cf. Batson v. Kentucky, 476 U.S. 79, 98-99, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) (prosecutor cannot satisfy obligation to provide race-neutral explanation for peremptory strike “merely by denying that he had a discriminatory motive”). Further there was no indication that the oversight explanation was influenced by emotion or personal opinion.

The judgment of the Court of Appeals is affirmed.

MEYERS, J., filed a dissenting opinion.

PRICE, J., filed a dissenting opinion in which JOHNSON, J., joined.

WOMACK, J., not participating.

MEYERS, J.,

dissenting.

While there is no standard set forth that the State must meet in order to overcome the presumption that its actions were vindictive, it appears that the State just had to show by a preponderance of the evidence that the enhancements were not vindictively added to the second indictment. This is not strong enough. It should at least require clear and convincing evidence to overcome a presumption. To me, ‘We forgot” doesn’t quite get there when we presume that the enhancement paragraphs were vindictively added to the second indictment because the first conviction was reversed on appeal. The State’s excuse sounds a lot like “the dog ate my homework” and the trial court should not have “unpresumed” with this lame excuse. Therefore, I respectfully dissent.

PRICE, J.,

dissenting in which JOHNSON, J., joined.

The majority concludes, without analysis, that the State did not vindictively add enhancement paragraphs after the appellant had his prior conviction reversed on appeal. As a result, I dissent.

The majority uses Texas v. McCullough to conclude that the State rebutted the presumption that the State acted vindictively in adding enhancement allegations when the appellant was re-indicted after successfully having his prior conviction reversed. Although McCullough generally stands for the proposition that events that occur after the initial sentencing are not the only factors that can rebut a presumption of vindictiveness, the facts of McCullough are drastically different from the facts of the instant case.

In McCullough, the defendant was first sentenced by a jury. The trial court granted a new trial, and the defendant went to the judge for sentencing (the same judge who granted the motion for new trial). On retrial, the State produced more evidence, including the facts that the defendant was actually the shooter in the offense and that the defendant had been out of prison for only four months when he committed the offense. The Supreme Court simply held that the reason for an increase in punishment resulting from a retrial need not have arisen after the first sentencing.

In the case before us now, the State added enhancements to an indictment after the court of appeals had reversed the prior conviction. The State’s reason: we simply forgot to do it the first time. This is not even remotely like McCullough.

The majority opinion notes that some jurisdictions have chosen to accept the excuse, “we forgot,” as a legitimate reason for increasing the stakes in a criminal case on retrial. It also notes that some jurisdictions have chosen not to accept “we forgot.” It then simply adopts that former, without any analysis whatsoever.

Because the majority provides no analysis for its conclusion, I must dissent.

      . See Hood v. State, 944 S.W.2d 743, 747 (Tex.App.-Amarillo 1997, no pet.).

      . Appellant faced a maximum sentence of life imprisonment with or without the enhancement paragraphs. See Tex Pen.Code, § 22.021(e); Tex. Pen.Code, § 12.32. The addition of the enhancement paragraphs had the effect of increasing appellant’s minimum sentence from five years on an unenhanced aggravated sexual assault of a child offense to twenty-five years upon a finding of "true” to the enhancéments. See id.; Tex. Pen.Code, § 12.42(d). Arguably, the additional enhancements did not harm appellant since neither of appellant’s sentencing juries apparently considered a minimum sentence. But see Miracle v. Estelle, 592 F.2d 1269, 1276-77 (5th Cir.1979) (describing how this could support a prosecutorial vindictiveness claim); but also see Miracle v. State, 604 S.W.2d 120, 125 (Tex.Cr.App.1980) (asserting that Fifth Circuit’s Miracle v. Estelle decision was "chock full of factual misstatements and some misconceptions of the Texas substantive law applicable to the case before it").

      .The record reflects that appellant filed a pro se pretrial motion to quash the reindictment. This lengthy motion contained various allegations of prosecutorial misconduct. Among various other things, this motion alleged that the “prosecutor was vindictive with the rein-dictment for alleging two enhancement paragraphs to increase the minimum punishment.” During the pretrial motions hearing, appellant's trial attorney did not present this motion to the trial court until reminded to do so by appellant.
      [APPELLANT’S TRIAL COUNSEL]: All right. Those are all the motions I have. [APPELLANT]: You didn’t — you didn't identify the motion to quash the indictment. [APPELLANT’S TRIAL COUNSEL]: Oh. [Appellant] had previously filed, and I did not include it within the trial motions, a separate motion to quash the indictment. The various grounds and arguments, one of which — let me see if I can try to summarize them — that—that the State is — has vindictively reindicted him by adding enhancement paragraphs which were not present in the original indictment and therefore is, in essence, punishing him for exercise of his constitutional rights to seek redress from the Court of Appeals and to insist upon a constitutionally fair trial. And so [appellant] has sought a motion to quash the indictment. I believe that these have been filed quite some time ago and they are in the Court’s record. They were filed in April of this year.

      . The prosecutor stated:
      Concerning the first argument, which was the fact that it was vindictive prosecution to now allege two enhancement paragraphs, that is the State’s option. I was not the prosecutor on the first case, as the Court is aware, however, I assure you from all of my research and trial preparation that that was not the case. That was not vindictive rein-dictment adding enhancement paragraphs. That was an option made — an option decided upon by a prior prosecutor, and in speaking with her about the case, it was not for vindictive reasons. As a matter of fact, it was an omission from the very first indictment and should have been charged from the beginning. That’s the State’s response, Your Honor.

      . This sentence on the reindictment (life), which is harsher than the one appellant received on the original indictment (sixty-five years), does not implicate due-process principles. See Colten v. Kentucky, 407 U.S. 104, 112-19, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972).

      . We answer in the negative the first and third through fifth grounds for review. We dispose of the second ground for review by deciding that appellant was not reindicted for an offense greater than the offense for which he was originally indicted.

      . See Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978) (emphasizing that due process violation in prosecutorial vindictiveness cases “lay not in the possibility that a defendant might be deterred from the exercise of a legal right” but "rather in the danger that the State might be retaliating against the accused for lawfully attacking his conviction”); Neal, 150 S.W.3d at 173-74 (when defendant proves that "he was convicted, he appealed and obtained a new trial, and that the State thereafter filed a greater charge or additional enhancements[,]” burden shifts to prosecution to [objectively] explain its charging increase "that is unrelated to the defendant’s exercise of his legal right to appeal”).

      .In relevant part, appellant argues in his brief:
      But even if the prosecutor’s statement acts as evidence, its content was insufficient to satisfy Pearce and its progeny inasmuch as there was nothing that occurred after the sentencing in the first trial that made the enhancements any more available than at the first trial. The enhancements were unconstitutionally utilized at [appellant’s] second trial to punish him for appealing his first conviction and, as such, his sentence should be vacated and he should receive a new trial without the State having the benefit of the enhancement paragraphs.

      . 475 U.S. 134, 106 S.Ct. 976, 89 L.Ed.2d 104 (1986).

      . See also McCullough v. State, 720 S.W.2d 89, 90-93 (Tex.Cr.App.1983) (op. on reh’g), rev'd, 475 U.S. at 144, 106 S.Ct. 976.

      . See Reyna v. State, 168 S.W.3d 173, 176-178 (Tex.Cr.App., 2005) (discussing and applying “party responsibility” concept of error preservation).

        . See Hardwick v. Doolittle, 558 F.2d 292, 301 (5th Cir.1977), cert. denied, 434 U.S. 1049, 98 S.Ct. 897, 54 L.Ed.2d 801 (1978) (explanations which would negate prosecuto-rial vindictiveness could include "mistake or oversight in the initial action”); but see United States v. Krezdorn, 718 F.2d 1360, 1365 (5th Cir.1983), cert. denied, 465 U.S. 1066, 104 S.Ct. 1416, 79 L.Ed.2d 742 (1984) (suggesting that "mistake or oversight in the initial action” may defeat a presumption of vindictiveness but would not be sufficient once a presumption of vindictiveness arises); but then see United States v. Doran, 882 F.2d 1511, 1523 n. 6 (10th Cir.1989) (noting that "as a conceptual matter it may be cleaner to only consider the prosecutor’s explanation for the new charges as rebuttal to a presumption of vindictiveness. As a practical matter, however, it would be a mere artifice not to consider explanations at the presumption stage which are readily evident from the objective sequence of proceedings leading to the added charge’’); also see United States v. Walker, 514 F.Supp. 294, 312-25 (E.D. Louisiana 1981) (describing history of prosecutorial vindictiveness jurisprudence and Fifth Circuit's application of it).

        Also see United States v. Taylor, 749 F.2d 1511, 1514 (11th Cir.1985) (“mistake or oversight” is sufficient explanation); United States v. Mahdi, 777 A.2d 814, 821 (D.C.Ct.App.2001) ("administrative error” is sufficient explanation); Harris v. State, 481 N.E.2d 382, 385 (Ind.1985) (suggesting that "honest mistake” is sufficient explanation).

        . See United States v. Motley, 655 F.2d 186, 189-90 (9th Cir.1981) ("carelessness” is insufficient explanation); United States v. Andrews, 633 F.2d 449, 456 (6th Cir.1980), cert. denied, 450 U.S. 927, 101 S.Ct. 1382, 67 L.Ed.2d 358 (1981) (only objective, not subjective good faith, explanations are sufficient and prosecutor’s explanation that "she made a mistake is not, by itself, sufficient to rebut”); Gardner v. State, 332 Ark. 33, 963 S.W.2d 590, 597 (1998) (prosecutor’s explanation that she made a "mistake” is not an "objective explanation” for her actions).

      . Webster's II New College Dictionary defines the term "objective” as, among other things, "[h]aving actual existence or reality” or "[u]ninfluenced by emotion, surmise, or personal opinion.” See Webster's II New College Dictionary 755 (1995).

      . Webster’s II New College Dictionary defines the term “subjective” as, among other things, "[o]f, produced by, or resulting from an individual’s mind or state of mind” or "[ejxisting only in the mind.” See Webster's II New College Dictionary 1098 (1995).

      . We also note that a "we forgot” explanation does not rise to the definition of "vindictive.” See Webster's II New College Dictionary 1232 (defining "vindictive” as "[ijnclined to seek revenge” or "revengeful” or "[mjeant to cause pain or harm” or "spiteful”). While some might consider a "we forgot” explanation to be "lame,” "lame” is not the same as these definitions of "vindictive.”

      . 475 U.S. 134, 135-37, 106 S.Ct. 976, 89 L.Ed.2d 104 (1986).

      . Id. at 137.

      . Ibid.


text:
    Ex parte Donald Roger BURR, Appellant.
    No. PD-1250-04.
    Court of Criminal Appeals of Texas.
    March 1, 2006.

      Catherine Clare Bernhard, appointed by Trial Court, Red Oak, for Appellant.
    Anne B. Wetherhold, Asst. District Atty., Dallas, Matthew Paul, State’s Atty., Austin, for State.
   PER CURIAM.

The appellant has petitioned this court for discretionary review of an appeal of a motion under the Sex Offender Registration Program. His petition requires us to decide whether we have jurisdiction to review a decision of a court of appeals on such a motion. We hold that we do.

I.

The appellate jurisdiction of this court extends to “all criminal cases of whatever grade, with such exceptions and under such regulations as may be provided in [the] Constitution or as prescribed by law.” The issue now presented is whether this appeal is a “criminal case” that is within our appellate jurisdiction.

The issue arises because of changes to the judicial article of the Constitution of the State of Texas. The people adopted the present Constitution in 1876. Originally, it limited the Supreme Court’s jurisdiction to civil cases and created the Court of Appeals, which had appellate jurisdiction that included all criminal cases of whatever grade.

Amendments in 1891 did away with the Court of Appeals and created the Court of Criminal Appeals and Courts of Civil Appeals. The Court of Criminal Appeals had “appellate jurisdiction co-extensive with the limits of the state, in all criminal cases of whatever grade, with such exceptions and under such regulations as may be prescribed by law.” Courts of Civil Appeals had “appellate jurisdiction co-extensive with the limits of their respective districts, which shall extend to all civil cases of which the District Courts or County Courts have original or appellate jurisdiction, under such restrictions and regulations as may be prescribed by law.”

Soon the question arose, whether a court of civil appeals had jurisdiction of an appeal from a forfeiture of a bail bond given in a criminal proceeding. The Supreme Court held in 1894, “This is a criminal ease, -within the meaning of the constitution and laws of the state, and the court of civil appeals has no jurisdiction ...” A short-lived change of the constitutional language, from “criminal cases” to “criminal law matters” between 1977 and 1981 did not make a difference. We said in 1978, “Prior decisions of this Court and the Supreme Court leave no doubt that a bond forfeiture proceeding is ‘criminal in nature.’ This satisfies the requirement of [the Constitution] limiting our jurisdiction to cases ‘regarding criminal matters.’ ”

We also have said, “The provision for appointment and compensation of attorneys to represent indigents in criminal law matters is certainly itself a criminal law matter.”

On the other hand, proceedings that are related to criminal cases may not be criminal cases. They include: a district court’s order requiring a person who had been convicted of deserting his spouse and child to pay them money weekly, a suit seeking expunction of an arrest record, and a proceeding for forfeiture of property derived from a criminal offense.

Recently we were called on to decide whether an appeal from an order denying post-conviction DNA testing was a criminal case. Relying on the 1894 decision of the Supreme Court on bail-bond forfeiture, we held that it was. We said, “The overriding principle to be gleaned from all of these authorities ... is that this Court will entertain an appeal when it is expressly authorized by statute and when it is related to the ‘standard definition’ of a criminal case,” in which there has been a finding of guilt and an assessment of punishment.

These precedents guide our decision on the issue of this Court’s jurisdiction of an appeal under the Sexual Offender Registration Program.

II.

In 1991, an act of the Seventy-second Legislature established a “Sexual Offender Registration Program” in an article of the Revised Statutes. It required a person who had a criminal conviction (or a juvenile adjudication) for certain sexual offenses to register with the local law enforcement authority in the place in which he resided or intended to reside. The next Legislature amended the statute, and at least two acts of each succeeding Legislature have amended the substance of the program. Among the amendments were one in 1997 that moved the statutes to Chapter 62 of the Code of Criminal Procedure under the caption “Sex Offender Registration Program,” and another in 2005 that completely revised Chapter 62.

A person may be required to register:

(1) because he has a reportable conviction or adjudication, or
(2) as a condition of
(a) parole, or
(b) release on mandatory supervision,
or
(c) community supervision.

On January 6, 2004, the appellant, acting pro se, filed in the district court a motion that alleged, “Pursuant to a 5-year sentence and conviction, petitioner is now required under Texas law to register as a sex-offender.” He moved for a temporary restraining order preventing publication of the address at which he would be residing. Such an order was authorized by former Article 67.02 of the Code of Criminal Procedure, which was then in effect:

A person subject to registration under this chapter may petition the district court for injunctive relief to restrain a local law enforcement authority from publishing notice in a newspaper as required by Article 62.03 or 62.04. The court may issue a temporary restraining order under this article before notice is served and a hearing is held on the matter. After a hearing on the matter, the court may grant any injunctive relief warranted by the facts, including a restraining order or a temporary or permanent injunction, if the person subject to registration under this chapter proves by a preponderance of the evidence specific facts indicating that newspaper publication under Article 62.03 or 62.04 would place the person’s health and well-being in immediate danger.

The district court denied the motion, and the appellant appealed. The Court of Appeals dismissed the appeal for want of jurisdiction because the statutes did not provide, nor was there other authority, for an appeal.

Now the appellant has petitioned this court for discretionary review of the Court of Appeals’ decision in his appeal. The parties have briefed the issue of jurisdiction.

The appellant was required to register because he had a reportable conviction. That requirement is related to the standard definition of a criminal case, in that its requirements apply to the appellant because he was found guilty and assessed a punishment.

Therefore we hold that the Court of Appeals’ decision on the attempted appeal was a decision in a criminal case, which this Court has jurisdiction to review.

Exercising that jurisdiction, we refuse the appellant’s petition for discretionary review.

      . Tex. Const, art. V, § 5.

      . "The Supreme Court shall have appellate jurisdiction only, which shall be coextensive with the limits of the state; but shall only extend to civil cases of which the district courts have original or appellate jurisdiction." Constitution of 1876, art. V, § 3.

      . Id., § 6.

      . Constitution, art. V, § 5 (1891).

      . Id., § 6.

      . Jeter v. State, 86 Tex. 555, 557, 26 S.W. 49, 49 (1894).

      . State ex rel. Vance v. Routt, 571 S.W.2d 903, 906 (Tex.Cr.App.1978) (citations omitted).

      . Weiner v. Dial, 653 S.W.2d 786, 787 (Tex.Cr.App.1983).

      . Garcia v. State, 118 Tex.Crim. 88, 39 S.W.2d 894 (1931).

      . Ex parte Paprskar, 573 S.W.2d 525 (Tex.Cr.App.1978).

      . Ex parte Rogers, 804 S.W.2d 945, 948 (Tex.App.-Dallas 1990).

      . Kutzner v. State, 75 S.W.3d 427, 429 (Tex.Cr.App.2002).

      . Id., at 431.

      . See Act of June 15, 1991, 72nd Leg., R.S., ch. 572, § 1, 1991 Tex. Gen. Laws 2029, 2029-30 (adding art. 6252-13c.1).

      . See: Act of June 18, 1993, 73rd Leg., R.S., ch. 866, 1993 Tex. Gen. Laws 3420;
      Act of May 29, 1995, 74th Leg., R.S., ch. 258, §§ 1-8, 15-16, 1995 Tex. Gen. Laws 2197, 2197-2202, 2205-06;
      Act of June 15, 1995, 74th Leg., R.S., ch. 676, 1995 Tex. Gen. Laws 3694;
      Act of June 13, 1997, 75th Leg., R.S., ch. 667, §§ 5-6, 1997 Tex. Gen. Laws 2250, 2252;
      Act of June 13, 1997, 75th Leg., R.S., ch. 668, § 1, 1997 Tex. Gen. Laws 2253, 2253-61;
      Act of June 20, 1997, 75th Leg., R.S., ch. 1430, §§ 8-9, 1997 Tex. Gen. Laws 5493, 5495-96;

        Act of June 18, 1999, 76th Leg., R.S., ch. 444, 1999 Tex. Gen. Laws 2824;
      Act of June 18, 1999, 76th Leg., R.S., ch. 791, 1999 Tex. Gen. Laws 3415;
      Act of June 18, 1999, 76th Leg., R.S., ch. 1193, §§ 4-8, 1999 Tex. Gen. Laws 4178, 4179-81;
      Act of June 19, 1999, 76th Leg., R.S., ch. 1415, §§ 7-18, 1999 Tex. Gen. Laws 4831, 4833-40;
      Act of June 19, 1999, 76th Leg., R.S., ch. 1557, 1999 Tex. Gen. Laws 5354;
      Act of May 1, 2001, 77th Leg., R.S., ch. 19, 2001 Tex. Gen. Laws 30;
      Act of May 18, 2001, 77th Leg., R.S., ch. 177, 2001 Tex. Gen. Laws 356;
      Act of May 21, 2001, 77th Leg., R.S., ch. 211, §§ 2-12, 2001 Tex. Gen. Laws 399, 400-02;
      Act of June 14, 2001, 77th Leg., R.S., ch. 932, 2001 Tex. Gen. Laws 1870;
      Act of June 15, 2001, 77th Leg., R.S., ch. 1159, §§ 2-6, 2001 Tex. Gen. Laws 2619, 2619-21;
      Act of June 16, 2001, 77th Leg., R.S., ch. 1297, §§ 53-54, 72(f), 2001 Tex. Gen. Laws 3142, 3169-71, 3175;
      Act of June 18, 2003, 78th Leg., R.S., ch. 283, §§ 36-37, 2003 Tex. Gen. Laws 1221, 1237-39;
      Act of June 18, 2003, 78th Leg., R.S., ch. 347, §§ 1-15, 33, 2003 Tex. Gen. Laws 1505, 1505-14, 1519;
      Act of June 20, 2003, 78th Leg., R.S., ch. 1005, §§ 8-10, 12, 2003 Tex. Gen. Laws 2944, 2946-47;
      Act of June 21, 2003, 78th Leg., R.S., ch. 1275, §§ 2(10), 3(4), 2003 Tex. Gen. Laws 4140, 4140, 4149 (nonsubstantive changes);
      Act of June 21, 2003, 78th Leg., R.S., ch. 1276, §§ 5.003, 2003 Tex. Gen. Laws 4158, 4172-73 (nonsubstantive changes);
      Act of June 21, 2003, 78th Leg., R.S., ch. 1300, §§ 3-4, 10, 2003 Tex. Gen. Laws 4729, 4729-30;
      Act of June 18, 2005, 79th Leg., R.S., ch. 1008, 2005 Tex. Gen. Laws 3385.

      . See Act of June 13, 1997, supra note 15.

      . See Act of June 18, 2005, supra note 15, at § 1.01, 2005 Tex. Gen. Laws, at 3386-3418.

      . Tex.Code Crim. Proc. art. 62.051(a). Although the statute was amended in 2005, it did not materially change the requirement that was in effect when the appellant’s motion was before the District Court and the Court of Appeals.

      . Act of June 13, 1997, supra note 15 (former Code Crim. Proc. art. 62.07), repealed by Act of June 18, 2005, supra note 15.

      . Ex parte Burr, 139 S.W.3d 446 (Tex.App.-Dallas 2004).