author: Justice MOSELEY.

text:
    In the Interest of S.P., et al., Children.
    No. 05-03-00905-CV.
    Court of Appeals of Texas, Dallas.
    May 26, 2005.
    Rehearing Overruled Aug. 5, 2005.

      Douglas R. Dunn, Dallas, for ad litem.

      Rhonda F. Hunter, Dallas, Dean M. Swanda, Arlington, for Appellant.
    William T. (Bill) Hill, Jr., Dallas, for Appellee.
    J. Darlene Ewing, Law Offices of J. Darlene Ewing, Dallas, for Respondent.
    Cheryl D. Holder, Asst. Dist. Atty., Dallas, for State.
    Before Justices MOSELEY, O’NEILL, and RICHTER.
   OPINION NUNC PRO TUNC

Opinion by

Justice MOSELEY.

On our own motion, we issue this opinion nunc pro tunc to correct a clerical error in our May 24, 2005 opinion. This is now the opinion of the Court.

Based on the jury’s verdict, the trial court entered a judgment terminating the parental rights of Katrina Palmo (Mother) and Charles Anthony Gray (Father) to their five minor children, S.P., S.G., M.G., S.P., and M.G. Mother and Father appeal. As set forth herein, we conclude that the Texas Family Code requirement that appellants file a statement of points on appeal within fifteen days of the final order is not jurisdictional, and thus any failure to include issues in that filing does not waive them on appeal. See Tex. Fam.Code Ann. § 268.405(b) (Vernon 2002). We further conclude that the evidence is legally sufficient to show Mother engaged in a course of conduct which had the effect of endangering M.G.’s physical or emotional well-being. We also conclude that the return of a favorable home study for an out-of-state relative does not require temporary placement with that relative, and that the trial court did not abuse its discretion in denying Father’s motion for temporary placement.

However, we also conclude the trial court abused its discretion in admitting the videotaped statement of a minor child (the couple’s niece) in lieu of her testimony because there was no evidence that use of the statement in lieu of live testimony was necessary to protect her welfare. Therefore, we reverse the trial court’s judgment and remand for further proceedings.

BACKGROUND

Mother, Father, and their four children lived in the same apartment. In December, 2001, Mother’s minor niece, D.H., made an outcry statement alleging Father (i.e. the father of the children at issue here) had sexually abused her. The next day, the Department of Protective and Regulatory Services (the “Department”) removed the four older children from the home. A month later, shortly after the birth of the couple’s fifth child, M.G., the Department removed him from the hospital. The Department was appointed temporary managing conservator for all of the children. The Department moved to terminate the parental rights of both parents as to all five children.

At trial, the jury heard evidence that the Department had removed the four older children twice before, once when one child had been severely scalded by Father, who claimed he was in a hurry to bathe the child and did not realize the water was too hot, and once when Mother had a mental “breakdown” and reported that her oldest child had been sexually abused by her sister’s boyfriend. The children were later returned against the Department’s recommendation after their parents had completed required family services, including domestic abuse counseling. The jury also saw the videotaped statement of D.H., the couple’s niece, which was admitted in lieu of her live testimony and without giving Mother or Father the opportunity to cross-examine her. The jury also heard other evidence that will be detailed herein.

Over the parents’ objections, the case was submitted to the jury on an unusual jury charge. The jury was asked two questions concerning each parent-child relationship — for a total of twenty questions. Every question was in the following form: “Should the parent-child relationship between [the parent] and [the child] be terminated based on the instruction for [that Question]?” Thus, all twenty questions were identical except for the reference to the parent, the child, and the applicable instruction. In other words, rather than submitting questions that inquired directly as to the findings that must be made to support the Department’s claims for terminating each parent-child relationship, the trial court asked the same question twenty times and varied the instructions in an attempt to direct each question to the findings that must be made in order to terminate each parent-child relationship.

By an eleven to one vote, the jury answered “yes” to all twenty questions. Based on the jury verdict, the trial court entered a judgment terminating the parent-child relationships of both Mother and Father as to each of the children. Mother and Father appeal.

Statement of Points on Appeal

The Department argues that Mother and Father did not preserve error concerning some of their specific complaints because those complaints were not included in their statement of points on appeal. See Tex. Fam.Code Ann. § 263.405(b) (providing for filing of statement of points on appeal within 15 days of final order). We disagree.

The legislature’s intent in enacting section 268.405(b) was to “provide a mechanism to reduce frivolous parental-termination appeals and to reduce post-judgment appellate delays in parental-termination appeals.” In re S.J.G., 124 S.W.3d 237, 242 (Tex.App.-Fort Worth 2003, pet. denied). Requiring a statement of points on appeal within fifteen days of the final order allows the trial court to make a determination of whether the appeal is frivolous as required by section 263.405(d). Id. The purpose is not to create an additional preservation requirement for error that has already been preserved.

We conclude the statement of points on appeal required by section 263.405(b) is not jurisdictional and is not an additional requirement for preserving error in parental-rights termination cases. See In re W.J.H., 111 S.W.3d 707, 712-13 (Tex.App.-Fort Worth 2003, pet. denied). Thus Mother and Father have not waived or forfeited any issues by not including them in their statements of points on appeal.

Legal Sufficiency of the Evidence (As to Termination of Mother’s Parental Rights to M.G.)

The trial court denied Mother’s motion for directed verdict and motion for judgment notwithstanding the verdict raising the legal sufficiency of the evidence to support the termination of her parental rights to her youngest child, M.G. In issues twenty and twenty-one, Mother argues the evidence is legally insufficient to support the termination of her parental rights to M.G. Mother argues that family code subsections 161.001(1)(D) and 161.001(1)(E) do not authorize termination based on evidence of Mother’s conduct toward other children, but only on conduct toward the specific child at issue. On appeal Mother challenges the legal sufficiency of the evidence to support the endangerment finding, arguing that M.G. was removed from her at the hospital just days after his birth and never lived with her in the home. We address this issue because, if sustained, Mother would be entitled to reversal and rendition of the Department’s claim seeking to terminate her parental rights as to M.G. See Glover v. Tex. Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex.1981) (per curiam); Exxon Corp. v. Breezevale Ltd., 82 S.W.Sd 429, 438 (Tex.App.-DalIas 2002, pet. denied).

Involuntary termination of parental rights implicates fundamental constitutional rights. See Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); In re G.M., 596 S.W.2d 846, 846 (Tex.1980). A trial court may order involuntary termination of parental rights if the factfinder finds by clear and convincing evidence (1) the parent has committed one of the enumerated statutory conditions, and (2) termination is in the best interest of the child. Tex. Fam.Code Ann. § 161.001 (Vernon 2002). Each required finding must be based on clear and convincing evidence. Id. § 161.206(a). Clear and convincing evidence is “the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.” Id. § 101.007. This level of certainty is necessary to preserve the fundamental fairness in government-initiated proceedings that threaten to end a natural parent’s desire for and right to companionship, care, custody, and management of his or her children. See Santosky v. Kramer, 455 U.S. 745, 756-59, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). “A parent’s interest in the accuracy and justice of the decision to terminate his or her parental status is, therefore, a commanding one.” Id. (quoting Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 27, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981)).

When we review the legal sufficiency of the evidence in a parental-rights termination case, we determine whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the matter on which the Department bears the burden of proof. In re J.F.C., 96 S.W.3d 256, 265-66 (Tex.2002); Wilson v. State, 116 S.W.3d 923, 928 (Tex.App.-Dallas 2003, no pet.). In a legal sufficiency review, we look at all the evidence in the light most favorable to the finding; we assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so; and we disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible. In re J.F.C., 96 S.W.3d at 266. We do not, however, disregard undisputed evidence that does not support the finding. Id.

Here, the Department alleged grounds for termination under family code subsections 161.001(1)(D) (i.e. endangering conditions or surroundings) and 161.001(1)(E) (i.e. endangering conduct). See Tex. Fam.Code Ann. §§ 161.001(1)(D), (E) (Vernon 2002). Subsection 161.001(1)(D) requires clear and convincing evidence that the parent “knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child.” Id. § 161.001(1)(D). This subsection refers only to the acceptability of the child’s living conditions. See In re S.H.A., 728 S.W.2d 73, 84 (Tex.App.-Dallas 1987, writ refd n.r.e.). Subsection 161.001(1)(E) requires clear and convincing evidence that the parent “engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child.” Tex. Fam.Code Ann. § 161.001(1)(E). This subsection refers only to the parent’s conduct, as evidenced not only by the parent’s acts, but also by the parent’s omissions or failures to act. In re S.H.A., 728 S.W.2d at 85. The Department need only prove one of the subsections in order to satisfy the first requirement of section 161.001. Wilson, 116 S.W.3d at 928. We first address the evidence as to subsection 161.001(1)(E) (i.e. endangering conduct).

Mother argues that the endangerment finding can only be supported by evidence of her conduct toward the child to whom her parental rights are to be terminated, that is, M.G. However, in Texas Department of Human Services v. Boyd, 727 S.W.2d 531 (Tex.1987), the Texas Supreme Court rejected a similar argument that “danger cannot be inferred from parental misconduct.” Id. at 533. Boyd specifically held that although “ ‘endanger’ means more than a threat of metaphysical injury or the possible ill effects of a less-than-ideal family environment, it is not necessary that the conduct be directed at the child or that the child actually suffers injury.” Id. This court has also rejected the argument that conduct before the child at issue was born cannot be considered as endangering that child:

The father argued to the trial court that the abuse of his oldest son could not endanger C.B. because it occurred before she was born. “Endanger” under section 15.02 means to expose to loss or injury, or to jeopardize. See Texas Dep’t of Human Services v. Boyd, 727 S.W.2d 531, 533 (Tex.1987). It is not necessary that the conduct be directed at the child or that the child actually suffer injury. Id. Section 15.02(1)(E) does not require actual and concrete threat of injury to the child’s emotional and physical well-being. Id. If the evidence shows a course of conduct which has the effect of endangering the child’s physical or emotional well-being, then a finding under section 15.02(1)(E) is supportable. Id. at 534.

Dallas County Child Protective Servs. v. Bowling, 833 S.W.2d 730, 732-33 (Tex.App.-Dallas 1992, no writ). We have consistently held that a parent’s conduct both before and after a child is born is relevant to the determination of whether the conduct endangers the child’s physical or emotional well-being. See In re R.F., 115 S.W.3d 804, 810 (Tex.App.-Dallas 2003, no pet.); Dupree v. Tex. Dep’t Protective & Regulatory Servs., 907 S.W.2d 81, 84 (Tex.App.-Dallas 1995, no writ); Clark v. Clark, 705 S.W.2d 218, 219 (Tex.App.-Dallas 1985, writ dism’d).

Mother argues Boyd and eases following it are wrongly decided because the statute requires the endangering conduct be directed toward the child that is the subject of the termination proceeding. However, Mother presents no authority or compelling argument to depart from these established decisions.

Mother also argues that interpreting subsections 161.001(1)(D) (i.e. endangering conditions or surroundings) and 161.001(1)(E) (i.e. endangering conduct) to take into consideration circumstances and activities occurring before child’s birth renders other subsections of section 161.001(1) superfluous. We disagree. Nothing in the interpretation that parental conduct before and after birth is relevant to subsections 161.001(1)(D) and 161.001(1)(E) renders other subsections superfluous. A subsection is not superfluous merely because it may overlap another subsection in certain cases. Subsections 161.001(1)(L) and 161.001(1)(M) have specific requirements and conditions that do not apply in this ease, but would apply in others. See Tex. Fam.Code Ann. §§ 161.001(1)(L), (M).

Thus we reject Mother’s argument that the endangerment finding as to M.G. can only be supported by evidence of her conduct toward that child, and look at all the evidence in the record under the appropriate standard of review.

There is evidence in the record that Father choked Mother sometime before the children were first removed and that she called the police to report the domestic violence. According to a Department investigator, Mother confirmed there had been other incidents of domestic violence, but Mother was not concerned about the safety of the children. A caseworker testified that Mother had a history of not taking medications for her mental health conditions, which was dangerous for the children. Another caseworker testified that Mother lacked parenting skills, had problems understanding the needs of her children, and lacked judgment.

There was also evidence of a medical examination of the two oldest girls, S.P. and S.P., approximately eight weeks after the final removal. The pediatric nurse practitioner found excessive redness in the girls’ genital areas that made her suspect sexual abuse. One of the girls had what appeared to be a penetrating injury to her genitalia. The nurse practitioner estimated the injuries were six to eight weeks’ old. Although she admitted the redness could have been caused by an infection or non-sexual trauma, the nurse practitioner believed the children had been molested.

The evidence was disputed as to whether Mother knew of past alleged sexual abuse by Father of D.H. and yet continued to allow him to have access to the children. A Department investigator testified Mother told him she believed Father had touched D.H. sometime in the past, but not at the time of D.H.’s outcry. The investigator said Mother told him she had seen Father tickling the children in the past, had stopped him, and talked with D.H. afterwards.

Mother denied that D.H. ever told her about Father’s alleged abuse and denied knowing about any allegations of abuse against him. Mother testified that when D.H. was five, Mother talked with D.H. about inappropriate touching after a “tickling” episode with Father. Mother admitted that the night before the last removal, when Father had been arrested for traffic violations, D.H.’s mother told Mother a long story about Father abusing D.H., but Mother said the story did not make sense, she did not understand it, and did not know if it were true. Mother also testified she did not believe that allowing Father back into the home would endanger her children.

There was also undisputed evidence that Mother completed the Department’s required services after the each of the first two removals. Mother testified that on the day of the last removal, Father was released from jail and only spent a few hours at home before the Department removed the children and that he was never alone with the children. It was also undisputed that Langston conducted a forensic interview with the oldest child, S.P., and the results of the interview did not concern her.

After reviewing all the evidence in the light most favorable to the jury’s findings, and considering the disputed facts the jury could reasonably have resolved in favor of the findings, we conclude that a factfinder could reasonably form a firm belief or conviction that Mother engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangered the physical or emotional well-being of M.G. Tex. Fam.Code Ann. § 161.001(1)(E); In re J.F.C., 96 S.W.3d at 265-66. Because the evidence is legally sufficient to support the jury’s finding under subsection 161.001(1)(E), we need not discuss the sufficiency of the evidence under subsection 161.001(1)(D). Wilson, 116 S.W.3d at 928. We resolve Mother’s legal sufficiency issues against her.

Admissibility op Videotaped Statement

Mother’s first and second issues and Father’s second and third points of error challenge the trial court’s admission of the videotape interview of their niece, D.H., and its refusal to require the Department to produce D.H. for cross-examination. In the videotaped interview, D.H., who was seven-years-old at the time, identified as “bad touches” when her uncle (Father) would “get on top of her” and when he was “touching on her.” She said this happened more than one time, but had difficulty identifying the last time it happened. D.H. said that one time she told Mother, her aunt, that Father was touching her and Mother got angry with Father. D.H. said she saw Father touching S.P. the same night he touched her, but then said she did not see it because the lights were off.

Section 104.006 of the family code allows admission of a statement of a child twelve years old or younger describing alleged abuse of the child if the trial court finds the statement reliable and the child testifies or is available to testify or if the court finds that use of the statement in lieu of the child’s testimony is necessary to protect the child’s welfare. See Tex. Fam. Code Ann. § 104.006 (Vernon 2002). Another section of the family code allows admission of a video-recorded oral statement of a child twelve years old or younger who is alleged in a suit affecting the parent-child relationship to have been abused if certain conditions are satisfied. Id. § 104.002. Mother and Father challenge the constitutionality of these statutes based on the right of a criminal defendant to confront the witnesses against him.

The Supreme Court recently revised its confrontation clause jurisprudence and concluded (1) the principal evil targeted by the confrontation clause was the civil law’s historic practice of using ex parte examinations as evidence against the accused, and (2) the Framers would not have permitted out-of-court testimonial statements to be admitted in evidence against the accused unless the witness was unavailable and the defendant had had a prior opportunity to cross-examine the witness. Cranford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 1363, 1365, 158 L.Ed.2d 177 (2004). The Court held that “[wjhere testimonial evidence is at issue ... the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.” Id., 541 U.S. 36, 124 S.Ct. at 1374. Previously, the Court had stated that a hearsay statement “is admissible only if it bears adequate ‘indicia of reliability.’ ” Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). Reliability, inturn, could be inferred without more in a case where the evidence fell within a firmly rooted hearsay exception. Id. “In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.” Id.

In Crawford, the Court reasoned that the Roberts test departed from the historical principles of the confrontation clause in two ways: first, it was too broad in applying the same mode of analysis whether or not the out-of-court statement was testimonial or not; and second, it was too narrow in admitting statements consisting of ex parte testimony based on a mere finding of reliability. Crawford, 541 U.S. 36, 124 S.Ct. at 1369. The Court did not establish a comprehensive definition of testimonial statements, but stated “[w]hatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.” Id. 541 U.S. 36, 124 S.Ct. at 1374. “Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.” Id.

Some courts have refused to consider confrontation clause challenges in suits affecting the parent-child relationship because the proceedings are civil and not criminal. Other courts have recognized that the right of cross-examination is normally part of the meaningful hearing requirement inherent in principles of due process and due course of law. Procedural due process, however, is a flexible concept, and what process is due in any particular case depends on a consideration of several factors. See In re M.S., 115 S.W.3d 534, 547-49 (Tex.2003) (rule governing preservation of factual sufficiency complaint satisfies due process and counsel’s unjustified failure to preserve error may be ineffective assistance of counsel); In re B.L.D., 113 S.W.3d 340, 351-54 (Tex. 2003) (requiring preservation of error in parental termination case satisfies due process); In re J.F.C., 96 S.W.3d at 272-74 (using deemed findings to support judgment in parental termination case satisfies due process).

Here we need not reach the constitutional issue of whether the right of confrontation or to cross-examination applies in an involuntary termination of parental rights case and whether sections 104.002 and 104.006 violate that right. That is because there was no evidence that use of D.H.’s videotaped interview in lieu of her testimony was necessary to protect D.H.’s welfare. Thus, the trial court abused its discretion in overruling the objections and admitting the videotape in lieu of the child’s testimony. See Interstate Northborough P’ship v. State, 66 S.W.3d 213, 220 (Tex.2001) (trial court has broad discretion in admitting or excluding evidence).

In a suit affecting the parent-child relationship,

a statement made by a child 12 years of age or younger that describes alleged abuse against the child, without regard to whether the statement is otherwise inadmissible as hearsay, is admissible as evidence if, in a hearing conducted outside the presence of the jury, the court finds that the time, content, and circumstances of the statement provide sufficient indications of the statement’s reliability and:
(1) the child testifies or is available to testify at the proceeding in court or in any other manner provided for by law; or
(2) the court determines that the use of the statement in lieu of the child’s testimony is necessary to protect the welfare of the child.

Tex. Fam.Code Ann. § 104.006. This section requires a hearing outside the presence of the jury, at which the trial court is to make several determinations. The trial court must make determinations concerning the reliability of the statement, and, if the child is not available to testify, the statement is admissible only if the trial court determines that use of the statement in lieu of the child’s testimony is necessary to protect the child’s welfare. See In re K.L., 91 S.W.3d 1, 16 (Tex.App.-Fort Worth 2002, no pet.) (requirements of § 104.006 are mandatory).

Here the trial court conducted a hearing outside the presence of the jury regarding the parents’ objections to the admissibility of the videotape. The Department indicated that the whereabouts of D.H. were known, but did not offer to make her available to testify. Mother and Father requested the child be made available for cross-examination, but the trial court pointed out that section 104.006 allows the use of the statement in lieu of the child’s testimony if doing so is necessary to protect the child’s welfare. The trial court questioned whether it could make that determination from viewing the videotape alone and specifically asked if the parties had any evidence that use of the videotape in lieu of D.H.’s testimony was necessary to protect her welfare. Significantly, the Department responded that it had no such evidence, but argued that the child was eight years old and having to face the man who allegedly abused her in open court would obviously be detrimental to her welfare.

During a break in the proceedings, the trial court viewed the videotape and ruled that consistent with time, content, and circumstances, the statement provided sufficient indications of its reliability. The trial court also stated that he had a seven-year-old daughter and, based on common sense, his knowledge 'of his own seven-year-old daughter, and after viewing D.H. on the videotape, the court found that use of the statement in lieu of D.H.’s testimony was necessary to protect her welfare.

If D.H. had been available to testify at trial, the trial court could have admitted the statement without a finding that using the statement was necessary to protect her welfare. See Tex. Fam.Code Ann. § 104.006(1). However, there was no evidence that D.H. was available to testify in court or in any other manner provided by law. The Department merely indicated it knew the whereabouts of the child. Moreover, both Mother and Father requested D.H. be made available for cross-examination, but the Department argued that it would be detrimental for D.H. to have to face the man who allegedly abused her. Mother and Father pointed out that D.H. could be protected by allowing her to testify by closed-circuit television, as allowed by section 104.004. See Tex. Fam.Code Ann. § 104.004. The trial court did not follow this procedure and did not require that D.H. be made available despite the parents’ requests to do so and Father’s request that her whereabouts be disclosed to him. Rather, based on section 104.006(2), the trial court found that the statement could be used in lieu of D.H.’s testimony.

We examine whether the record supports the trial court’s finding that use of the statement was necessary to protect the welfare of the child. Neither the Department nor the parents offered any evidence regarding D.H.’s welfare when requested by the trial court. From reviewing the videotape, the trial court learned that D.H. gave her interview just after she turned seven years old. The trial was conducted a year and four months later when D.H. would have been eight years old. The trial court heard no evidence regarding D.H.’s welfare and her ability to testify at the time of trial. The Department had no evidence about her welfare or the need to use the videotape other than her age. The trial court stated it relied on common sense and its knowledge of the judge’s own seven-year-old daughter. However, there was no evidence regarding any similarities between the child witness, D.H., and the judge’s daughter, or that all seven- or eight-year-old girls will respond in the same manner to testifying at trial regarding alleged sexual abuse. Common sense does not dictate that knowledge of one young child equates to knowledge of the welfare of another young child. There was no evidence of the Department’s need to use the statement given its admission that it knew the whereabouts of D.H. Nor was there any evidence of D.H.’s welfare or the need to protect her from testifying in court. Again, D.H. is the niece of Father and Mother, not their child. Thus, the record does not support the trial court’s finding that use of the videotape was necessary to protect D.H.’s welfare.

To determine whether it was necessary to use the videotape in lieu of D.H.’s testimony in order to protect her welfare, the trial court should hear evidence regarding the specific child witness, that child’s welfare at the time of trial, and the circumstances making it necessary to use the statement rather than the child’s testimony in court or by alternative means such as closed circuit television. Here, the trial court failed to hear such evidence. Thus, we conclude that the trial court abused its discretion in admitting the videotape under section 104.006.

The Department argues that section 104.002 is an alternative basis for admitting D.H.’s videotaped statement, and that this section does not require a finding that use of the statement is necessary to protect the child’s welfare. Mother and Father objected at trial, and assert here, that the requirements of section 104.002 had not been met, particularly the requirement that the statements not be made in response to questions calculated to lead the child to a particular response. Tex.Fam.Code Ann. § 104.002(4); see Ochs, 789 S.W.2d at 951. However, even if the requirements of section 104.002 were met, we conclude that section is not an alterna-five basis for the trial court’s ruling in this case.

Here the trial court not only admitted D.H.’s videotaped statement, it admitted the statement in lieu of D.H.’s testimony at trial — denying Mother’s and Father’s requests that she be made available. Unlike section 104.006, section 104.002 does not authorize the trial court to use the statement in lieu of testimony. While section 104.002 may support admission of the videotape statement itself, it does not support the trial court’s decision to allow the statement in lieu of the child’s testimony. Both parents requested that D.H. be made available and suggested that her testimony could be taken by alternative means, such as closed-circuit television under section 104.004. The trial court refused these requests. Regardless of the admissibility of the videotaped statement under section 104.002, that section does not authorize the trial court. to admit D.H.’s videotaped statement in lieu of her testimony at trial without requiring the Department to make the child available to testify.

We now consider whether the error in admitting the videotape in lieu of the D.H.’s testimony was harmful. Tex. R.App. P. 44.1(a). A party complaining of error in the admission or exclusion of evidence need not show that but for the error a different judgment would necessarily result, but must show that the error probably resulted in an improper judgment. City of Brownsville v. Alvarado, 897 S.W.2d 750, 753-54 (Tex.1995); McCraw v. Maris, 828 S.W.2d 756, 758 (Tex.1992); see also Tex.R.App. P. 44.1(a). We review the entire record to determine if the error was harmful. Tex. Dep’t of Transp. v. Able, 35 S.W.3d 608, 617 (Tex.2000). A successful challenge to a trial court’s evidentiary rulings usually requires the complaining party to show that the judgment turns on the particular evidence excluded or admitted. See Interstate Northborough P’ship, 66 S.W.3d at 220.

The allegation of child abuse against Father and Mother’s alleged knowledge of the abuse and willingness to allow the children to be with Father were central to the Department’s case. Although there was other evidence relating to the alleged endangerment grounds for termination and the best interest factors, the abuse allegations were overriding. The videotape was the primary evidence of abuse on which the case turned. The issue of whether D.H. told Mother (her aunt) of the abuse was disputed. D.H. said in the interview that she had told Mother about the touching and Mother was angry with Father. Mother’s denial of this knowledge was seriously undermined by the videotape statement. The Department offered evidence of abuse of the two older daughters six to eight weeks before the nurse’s examination. The videotape was critical in relation to this evidence because of D.H.’s statement that she had seen Father touching his oldest daughter, S.P.

Moreover, the powerful impact of videotape on jurors has been recognized. See Ochs, 789 S.W.2d at 956 (noting that videotape “makes a more lasting and intense impression on jurors than other forms of proof’). After reviewing the entire record, we conclude the error in admitting the videotape in lieu of D.H.’s testimony probably caused the rendition of an improper judgment. Tex.R.App. P. 44.1(a). Accordingly, we resolve Mother’s first issue in her favor and sustain Father’s second point of error.

Temporary Placement

In his fourth point of error, Father argues the trial court abused its discretion in overruling his motion for temporary and permanent placement of the children with a relative in Georgia. He argues federal law mandates placement with a relative once a favorable home study of the relative is returned. Permanent placement of the children will be determined on remand of this case. We consider only the issue of temporary placement.

The federal statute on which Father relies does not require placement with a relative in all cases once a favorable home study is returned. See 42 U.S.C. § 671(a)(19). The statute requires that to be eligible for federal funding, the State must have an approved plan that “provides that the State shall consider giving preference to an adult relative over a non-related caregiver when determining a placement for a child, provided that the relative caregiver meets all relevant State child protection standards.” 42 U.S.C. § 671(a)(19). This statute requires the State in formulating its plan, to consider giving preference to adult relatives; it does not eliminate the trial court’s discretion in making temporary placement decisions. The legislature implicitly incorporated the requirements for federal funding in subtitle E of the family code. Tex. FamCode Ann. §§ 261.001-265.003 (Vernon 2002); see In re N.V.D., 102 S.W.3d 268, 270 (Tex.App.Beaumont 2003, pet. denied). Specifically, family code section 262.201(e) provides that the trial court shall place a child removed by the Department with a relative of the child (where placement with the noncustodial parent is inappropriate) unless such placement would not be in the best interest of the child. Tex. Fam.Code Ann. § 262.201(e). Thus, the State gives preference to an adult relative over a non-relative if that placement is in the best interest of the child. The overriding consideration in placement of a child is the best interest of the child. Tex. Fam.Code Ann. § 153.002 (Vernon 2002). The trial court has broad discretion in determining the best interest of the child. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex.1982). Father has not shown the trial court abused its discretion in denying his motion for temporary placement of the children with an out-of-state relative. Father’s fourth point of error is overruled to that extent.

Conclusion

We conclude the evidence was legally sufficient to support the endangerment findings as to Mother and M.G. However, we conclude that the trial court abused its discretion in admitting the uncross-examined recorded statement of D.H. in lieu of her testimony and that this error probably caused the rendition of an improper judgment. Tex.R.App. P. 44.1. We also conclude the trial court did not abuse its discretion in denying Father’s motion for temporary placement of the children. Because of our resolution of the issues regarding admission of the videotape, we need not address the remaining issues and points of error, including issues concerning the propriety of the jury charge. Tex. R.App. P. 47.1. The judgment of the trial court is reversed and this case is remanded to the trial court for further proceedings.

      . The form of instruction for the first question concerning each parent-child relationship was as follows:
      In answering [the first question], you are instructed that you must answer [the first question] "No” unless you find by clear and convincing evidence that [the parent] has knowingly placed or knowingly allowed [the child] to remain in conditions or surroundings which endangered the physical or emotional well-being of [the child], or, you find by clear and convincing evidence that [the parent] has engaged in conduct, or knowingly placed [the child] with persons who engaged in conduct, which endangered the physical or emotional well-being of [the child]. Otherwise, you must answer [the first question] "Yes.”
      The court conditioned the second question concerning each parent-child relationship upon an affirmative answer to the first question, and then instructed the jury concerning the second question as follows:
      In answering [the second question], you are instructed that you must answer [the second question] "no” unless you find by clear and convincing evidence that termination of the parent-child relationship between [the parent] and [the child] is in the child’s best interest. Otherwise, you must answer [the second question] "Yes.”

      . Mother does not challenge any finding that termination of her rights would be in the best interest of M.G.

      . "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him....” U.S. Const. amend. VI.

      . See Ochs v. Martinez, 789 S.W.2d 949, 951 (Tex.App.-San Antonio 1990, writ denied) (refusing to consider 6th amendment confrontation challenge to predecessor of family code § 104.002 in civil suit seeking to modify managing conservatorship of child). See also In re C.W., 65 S.W.3d 353, 354 (Tex.App.-Beaumont 2001, no pet.) (stating no 6th amendment right of confrontation in termination of parental rights case), overruled, on other grounds by In re Z.L.T., 124 S.W.3d 163, 166 (Tex.2003); In re R.V., 977 S.W.2d 777, 781-82 (Tex.App.-Fort Worth 1998, no pet.) (citing Ochs and holding criminal confession law does not apply to civil termination case); Tex. Dep’t of Pub. Safety v. Duggin, 962 S.W.2d 76, 81 (Tex.App.-Houston [1st Dist] no pet.) (citing Ochs and holding confrontation clause did not apply in civil driver’s license suspension case).

      . See Goldberg v. Kelly, 397 U.S. 254, 269, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970) ("In almost eveiy setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses.”); Davidson v. Great Nat'l Life Ins. Co., 737 S.W.2d 312, 314 (Tex.1987) (“Due process requires an opportunity to confront and cross-examine adverse witnesses.”). The Texas Supreme Court emphasizes that "[c]ross-examination is a safeguard essential to a fair trial and a cornerstone in the quest for truth.” Davidson, 737 S.W.2d at 314; see Perry v. Del Rio, 67 S.W.3d 85, 92 (Tex.2001) ("We have recognized that our due course of law provision at a minimum requires notice and an opportunity to be heard at a meaningful time and in a meaningful manner.... This right [to be heard] also includes an opportunity to cross-examine witnesses, to produce witnesses, and to be heard on questions of law.”).

      . If a child 12 years of age or younger is alleged in a suit under this title to have been abused, the recording of an oral statement of the child recorded prior to the proceeding is admissible into evidence if:
      (1) no attorney for a party was present when the statement was made;
      (2) the recording is both visual and aural and is recorded on film or videotape or by other electronic means;
      (3) the recording equipment was capable of making an accurate recording, the operator was competent, and the recording is accurate and has not been altered;
      (4) the statement was not made in response to questioning calculated to lead the child to make a particular statement;
      (5) each voice on the recording is identified;
      (6) the person conducting the interview of the child in the recording is present at the proceeding and available to testify or be cross-examined by either party; and
      (7) each party is afforded an opportunity to view the recording before it is offered into evidence.
      Tex. Fam.Code Ann. § 104.002.

      . Under section 104.002, questions to the child must be open ended and not suggestive of the response. Ochs, 789 S.W.2d at 956; see also James v. Tex. Dept. of Human Servs., 836 S.W.2d 236, 240-41 (Tex.App.-Texarkana 1992, no writ) (videotape should not have been admitted where questioning was generally leading and interviewer’s nonverbal communication, active, demonstrative use of dolls, and argumentative refusal to accept undesired answers, contributed to making particular statements); but see In re W.S., 899 S.W.2d Ill, 779 (Tex.App.-Fort Worth 1995, no writ) (not error to admit videotape under prior version of section 104.002 where questions were open-ended and did not suggest an answer).
      Langston testified that D.H.’s statements were not in response to questions calculated to the lead the child to make a particular statement. We do not have a transcription of the videotape. However, a review of the videotape shows that some of the questions were leading. In adopting section 104.002, the legislature abrogated the common law rule allowing leading questions of child witnesses "insofar as the uncross-examined videotaped testimony of children under the age of 12 is concerned.” Ochs, 789 S.W.2d at 956. We note the questioning in this case was not as leading as that in James, 836 S.W.2d at 240 n. 4, but was similar to that in Ochs, 789 S.W.2d at 952-55. However, we need not reach the issue of the admissibility of D.H.’s videotaped statement under section 104.002.


source: Caselaw Access Project

author: Justice BRIDGES.

license: Public Domain

text:
    DILLARD TEXAS OPERATING LIMITED PARTNERSHIP, L.P., Appellant, v. CITY OF MESQUITE, Texas & Allied Waste Systems, Inc. d/b/a Trinity Waste Services, Inc., Appellees.
    No. 05-03-01837-CV.
    Court of Appeals of Texas, Dallas.
    May 27, 2005.
    Rehearing Overruled Aug. 11, 2005.

      Clifton T. Hutchinson, Hughes & Luce, L.L.P., Evan S. Tilton, Dallas, for appellant.
    Cynthia Hollingworth, Gardere, Wynne, Sewell, L.L.P., James R. Jordan, Shannon, Gracey, Ratliff & Miller L.L.P., Dallas, for appellees.
    Before Justices WHITTINGTON, BRIDGES, and FRANCIS.
   OPINION

Opinion by

Justice BRIDGES.

Dillard Texas Operating Limited Partnership, L.P. appeals the trial court’s grant of the plea to the jurisdiction in its case against the city of Mesquite, Texas and Allied Waste Systems, Inc. d/b/a Trinity Waste Services, Inc. (“Trinity”). We conclude that Dillard’s had standing to assert its suit seeking a declaratory judgment that Mesquite violated its charter by granting Trinity exclusive rights to haul commercial waste. Thus, the trial court had subject-matter jurisdiction, and the grant of the plea to the jurisdiction was in error.

Facts

Dillard’s owns department stores throughout the Dallas-Fort Worth area, including one at Town East Mall in the city of Mesquite. Since before 1996, Trinity or its predecessor hauled containerized waste for Dillard’s pursuant to a contract between the two commercial parties. In 1996, the city of Mesquite executed a contract with Trinity (the “Agreement”) providing that Trinity would be the exclusive contractor to collect and dispose of containerized waste from businesses -within the city.

Dillard’s eventually became dissatisfied with Trinity’s services and contracted with Express Waste to serve its stores. In September 2002, Express Waste began hauling waste from the Dillard’s store in Mesquite. In January 2003, Mesquite demanded that Dillard’s contract with Trinity, pursuant to an ordinance. The city demanded that Dillard’s contract with Trinity, as the “sole contract holder with rights to all commercial solid waste accounts within the City.” In May 2003, Mesquite passed Ordinance No. 3576 (the “Ordinance”) making it a misdemeanor for any commercial entity to fail to contract with the city or “a company contracting with the city,” for the removal of commercial solid waste. If Dillard’s did not comply, it faced fines of up to $2,000 per occurrence.

Dillard’s sued the city under the Declaratory Judgment Act, challenging the validity of the Agreement. Tex. Crv. PRAC. & Rem.Code Ann. § 37.001-.011 (Vernon 1997). It also sought to enjoin the city from compelling it to contract with Trinity. Dillard’s also sued Trinity for tortious interference with the contract between Dillard’s and Express Waste. Mesquite filed a plea to the jurisdiction, setting forth a number of grounds. After an evidentiary hearing, the trial court granted Mesquite’s plea. The trial court’s order dismisses Dillard’s case “for want of subject-matter jurisdiction” but does not state reasons. Dillard’s brought this interlocutory appeal.

The Parties’ Arguments

Section 18(3) of the Mesquite city charter states, “No franchise grant shall ever be exclusive.” In its petition, Dillard’s requested a judicial declaration that (1) the Agreement is an “exclusive franchise” that violates the city charter, and (2) the Agreement is void on its face and of no effect because it violates the charter. Mesquite and Trinity assert that the trial court lacks subject-matter jurisdiction because Dillard’s does not have standing. Specifically, they argue that Dillard’s has not incurred a “particularized injury” or harm that is distinct from any allegedly incurred by the general public.

Legal Principles

Because the question of standing is a legal question, we review de novo a trial court’s ruling on a plea to the jurisdiction. See Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998). Standing is a component of a court’s subject-matter jurisdiction. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993). The plaintiff has the burden of alleging facts that affirmatively demonstrate a court’s jurisdiction to hear a cause. Id. A plea to the jurisdiction challenges a trial court’s authority to hear a ease by alleging that the factual allegations in the plaintiffs pleadings, when taken as true, fail to invoke the trial court’s jurisdiction. El Paso Cmty. Partners v. B & G/Sunrise Joint Venture, 24 S.W.3d 620, 623 (Tex.App.-Austin-2000, no pet.) (citing Bybee v. Fireman’s Fund Ins. Co., 160 Tex. 429, 331 S.W.2d 910, 917 (1960)). Dismissing a cause of action based on a plea is proper only when incurable jurisdictional defects are shown on the face of the plaintiffs pleadings. Id.

In reviewing a trial court’s order dismissing a cause based on a plea to the jurisdiction, we construe the pleadings in favor of the plaintiff and look to the pleader’s intent. Tex. Air Control Bd., 852 S.W.2d at 446. The court may consider evidenee, and must do so when necessary to resolve jurisdictional issues, but the court should confine itself to the evidence relevant to the jurisdictional issue. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex.2000).

The standing requirement limits subject-matter jurisdiction to cases involving a distinct injury to the plaintiff and a real controversy between the parties that will be actually determined by the judicial declaration sought. Brown v. Todd, 53 S.W.3d 297, 305 (Tex.2001). A plaintiff must allege personal injury “fairly traceable” to the defendant’s allegedly unlawful conduct and “likely to be redressed by the requested relief.” Id. (citation omitted).

To establish standing, a plaintiff must establish that he has an individual interest in a conflict that is distinct from the interest of the general public, such that the defendant’s actions have caused the plaintiff particular injury. Williams v. Lara, 52 S.W.3d 171, 178 (Tex.2001) (citing Hunt v. Bass, 664 S.W.2d 323, 324 (Tex.1984)). In taxpayer cases, the general rule requiring the taxpayer-plaintiff to show “particularized harm,” distinct from harm to the public at large, is in keeping with policy reasons for restricting taxpayer lawsuits. See Bland, 34 S.W.3d at 555-56 (further explaining justification for broader grant of standing under exception in taxpayer suits). In a case involving an open-meetings provision, the court refused to construe the “particularized harm” requirement narrowly. Shackelford v. City of Abilene, 585 S.W.2d 665 (Tex.1979). Shackelford sought an injunction against the City of Abilene concerning closed meetings of an appointed board, which allegedly violated the city charter’s provision requiring open meetings. The court held that Shackelford had standing, stating that “as a citizen of Abilene and a member of the public” he had a right to attend any meeting of the board and to enjoin any such meeting that might be closed in violation of the charter. Id. at 668.

Analysis

The Agreement affects commercial generators of waste in Mesquite in particular and not the public in general. Further, Mesquite explicitly took measures to compel Dillard’s to deal exclusively with Trinity as the sole holder of rights to commercial waste accounts. Following the guidance of Shackelford, we conclude that Dillard’s has established standing. Dillard’s has alleged a particularized injury that is fairly traceable to Mesquite’s alleged unlawful conduct in agreeing to make Trinity the exclusive commercial waste hauler in the city. See Brown, 58 S.W.3d at 305.

Trinity also argues that the controversy is not justiciable, because the judicial declaration Dillard’s seeks will not likely redress the injury alleged. Trinity argues that the “injury” Dillard’s seeks to redress is its inability to choose its own waste hauler. It argues that the Ordinance prohibits such private contracting, and thus Dillard’s “injury” will not be redressed. While Dillard’s may have voiced its desire to choose its own waste hauler, that does not address the redressable-injury requirement. Dillard’s seeks a judicial declaration that the Agreement is void, and therefore of no effect. If the Agreement is void, then Trinity has no “contract with the City” under the Ordinance, and Mesquite cannot compel Dillard’s to contract with Trinity as the sole holder of rights to haul commercial waste in Mesquite. Dillard’s states an injury that is likely to be redressed by the declaration it seeks. Thus, Dillard’s has standing and the trial court has subject-matter jurisdiction.

We need not reach the issue of governmental immunity, as Mesquite does not pursue that issue on appeal. Mesquite’s and Trinity’s statute of limitations defenses are not before the court. Dillard’s does not pursue on appeal any issues concerning its request below for an injunction. Resolving the jurisdictional issue as we do, we need not reach Dillard’s issue concerning the trial court’s refusal to permit Dillard’s to amend its pleadings.

Accordingly, we REVERSE the trial court’s grant of the plea to the jurisdiction and REMAND for further proceedings.

      . Ordinance No. 3391, which was effective at the time, states, "The collection of trash, yard waste or solid waste within the City by any person other than the City or a company contracting with the City for waste collection is prohibited.”

      . It is undisputed that the Agreement grants exclusive rights to Trinity, but whether the Agreement is an “exclusive franchise” prohibited under the charter is disputed. That question goes to the merits of the case. In this opinion, we do not address, nor do we intend any comment on, the merits of this case.


author: JIM R. WRIGHT, Justice.

text:
    GENE DUKE BUILDERS, INC., Appellant, v. ABILENE HOUSING AUTHORITY, Appellee.
    No. 11-02-00268-CV.
    Court of Appeals of Texas, Eastland.
    June 23, 2005.

      Donald M. Hunt, Lawrence Doss, Mullin Hoard & Brown, L.L.P., Lubbock, for appellant.
    Sharon Hicks, Megan R. Santee, City Attorney’s Office, Billy W. Boone, Abilene, for appellee.
    Panel consists of: ARNOT, C.J., and WRIGHT, J„ and McCALL, J.
   Opinion

JIM R. WRIGHT, Justice.

On Remand

This is a case to enforce a contractual arbitration agreement. Gene Duke Builders, Inc. (Duke) appeals from an order of the trial court dismissing the case for lack of subject matter jurisdiction. On appeal, Abilene Housing Authority (AHA) argued that Duke’s notice of appeal was untimely filed. In a memorandum opinion, this court agreed that appellant had not timely perfected its appeal, and we dismissed the appeal for lack of jurisdiction. Gene Duke Builders, Inc. v. Abilene Housing Authority, 2003 WL 21047996, at ⅜2, 2003 Tex.App. LEXIS 4073, at *7 (Tex.App.-Eastland May 8, 2003) (not designated for publication). Duke appealed this court’s dismissal, filing a petition for review with the Texas Supreme Court. The supreme court granted the petition and reversed and remanded the case to this court for a consideration of the other issues raised. Gene Duke Builders, Inc. v. Abilene Housing Authority, 138 S.W.3d 907, 908 (Tex.2004). Having considered these issues, we reverse the judgment of the trial court and remand this case for further proceedings consistent with this opinion.

Duke entered into a construction contract with AHA to repair housing units in Abilene. After a dispute arose concerning completion and payment, Duke filed a claim with the construction administrator. AHA denied Duke’s claim. Duke then demanded that its claim be submitted to arbitration. When AHA refused to arbitrate, Duke sued AHA to enforce its contractual right to seek arbitration. The district court ordered that the parties submit to arbitration. Six months later, AHA filed a plea to the jurisdiction, asserting that it was a “unit of state government” as defined by TEX. GOV’T CODE ANN. ch. 2260 (Vernon 2000 & Supp.2004-2005). AHA also asserted that Chapter 2260 governs breach-of-contract claims against housing authorities and that following the chapter’s procedures is a prerequisite to suit being filed' in state district court. Duke did not pursue a remedy under Chapter 2260 prior to filing suit. The district court found that AHA was a “unit of state government as defined by Section 2260.001 of the Texas Government Code” and dismissed the case for lack of subject matter jurisdiction, vacating its prior order compelling arbitration. Duke appeals from that order.

Because the determination of subject matter jurisdiction is a question of law, we review de novo the trial court’s ruling on a plea to the jurisdiction. State ex rel. Department of Highways and Public Transportation v. Gonzalez, 82 S.W.3d 322, 327 (Tex.2002).

Duke first argues that the pleadings and proof show that the district court had subject matter jurisdiction to order arbitration. AHA asserts that Duke’s pleadings are insufficient to establish that the trial court has jurisdiction over this suit. AHA argues that a party suing a governmental entity must allege in its pleadings consent to suit either by statute or express legislative permission.

This argument was squarely presented to the Texas Supreme Court in Missouri Pacific Railroad Company v. Brownsville Navigation District, 453 S.W.2d 812 (Tex. 1970). Missouri Pacific (MoPac) was sued by the statutory beneficiaries of an employee who lost his life as the result of an accident near a railway track. Missouri Pacific Railroad Company v. Brownsville Navigation District, supra at 812. MoPac filed a cross-action against Brownsville Navigation District of Cameron County (District), alleging that District had breached a written track agreement providing that District would keep the tracks safe and clear of any obstructions. Missouri Pacific Railroad Company v. Brownsville Navigation District, supra at 813. MoPac did not allege in its pleadings that consent to suit had been given. Missouri Pacific Railroad Company v. Brownsville Navigation District, supra at 814. District filed a plea to the jurisdiction, alleging that it was a political subdivision of the State performing governmental functions and that its consent to suit had not been given. Missouri Pacific Railroad Company v. Brownsville Navigation District, supra. District argued that an allegation of consent must be made whenever a governmental unit is sued. Missouri Pacific Railroad Company v. Brownsville Navigation District, supra. The Texas Supreme Court disagreed, finding that such a rule only applies when a suit may not be maintained unless authorized by a special act or resolution. Missouri Pacific Railroad Company v. Brownsville Navigation District, supra. It concluded, however, that such a rule did not apply when suing a political subdivision that is always subject to suit by virtue of a general statute. Missouri Pacific Railroad Company v. Brownsville Navigation District, supra.

In this case, the statute that gives consent to suit is Section 392.065 of the Local Government Code, which plainly states that a housing authority may “sue and be sued.” See also TEX. LOC. GOV’T CODE ANN. § 392.006 (Vernon 1999). There was no need, therefore, for Duke to allege in its pleadings that AHA gave permission to sue; and Duke’s pleadings are not insufficient to establish that the trial court had subject matter jurisdiction. We sustain Duke’s first issue.

Duke next argues that Chapter 2260 of the Texas Government Code does not apply to municipal housing authorities because they are not “unit[s] of State Government.” If the chapter does apply, its administrative procedures provide the exclusive method available for resolving this case; and the trial court would, therefore, lack jurisdiction over it. Section 2260.005; General Services Commission v. Little-Tex Insulation Company, Inc., 39 S.W.3d 591, 593 (Tex.2001). Furthermore, the chapter does not waive sovereign immunity to suit or liability. Section 2260.006.

This chapter, however, only applies to claims against the State. See General Services Commission v. Little-Tex Insulation Company, Inc., supra at 595. In order for Chapter 2260 to apply to this particular breach-of-contract claim by Duke, a municipal housing authority such as AHA must be a “unit of state government.” See Section 2260.051. A housing authority is clearly a “unit of government” for purposes of the Texas Tort Claims Act. Section 392.006. We can find no authority, however, for the proposition that a municipal housing authority is a “unit of state government” for purposes of breach-of-contract claims under Chapter 2260. We are also unable to infer such a fact from the definition provided in the statute.

Section 2260.001 provides in relevant part:

(4) “Unit of state government” means the state or an agency, department, commission, bureau, board, office, council, court, or other entity that is in any branch of state government and that is created by the constitution or a statute of this state, including a university system or institution of higher education. The term does not include a county, municipality, court of a county or municipality, special purpose district, or other political subdivision of this state. (Emphasis added)

The above definition is very specific as to what is and what is not a unit of state government. Because municipal housing authorities are not specifically listed in this definition, they must fall into one of the above two “catch-all” categories: either a municipal housing authority is an “entity that is in any branch of state government” and is therefore included in the definition or it is a “political subdivision of this state” and is therefore excluded from the definition. We hold that a municipal housing authority falls under the category of “other political subdivision of this state” and is therefore not a “unit of state government” for purposes of Chapter 2260 of the Texas Government Code.

We can find no authority for the conclusion that a municipal housing authority is an entity that is in one of the three branches of state government. There is authority, however, for the proposition that a housing authority falls under the category of “other political subdivision of this state.” While “political subdivision” is not defined in Chapter 2260 of the Texas Government Code, it is defined many other times throughout our statutes; and, in several places, the definition of “political subdivision” includes housing authorities. See, e.g., TEX. GOV’T CODE ANN. § 2254.021(4)(M) (Vernon Supp.2004-2005); TEX. LOC. GOV’T CODE ANN. § 172.003 (Vernon 1999); TEX. LAB. CODE ANN. § 406.098(b)(4) (Vernon Supp.2004-2005); TEX. LAB. CODE ANN. § 504.001(3) (Vernon 1996). We find these definitions persuasive.

We agree with AHA that a municipal housing authority is defined as “a public body corporate and politic.” TEX. LOC. GOV’T CODE ANN. § 392.011(b) (Vernon 1999). AHA goes on to assert, however, that all public bodies corporate and politic are units or subdivisions of state government. We can find no authority for this broad assertion. The three cases cited by AHA in its brief are not on point. The first case, Camacho v. Samaniego, 954 S.W.2d 811, 818 (Tex.App.-El Paso 1997, pet’n den’d), states that Texas counties may be considered units of state government when dealing with illegal acts by county officials. The second case, City of Euless v. Dallas/Fort Worth International Airport Board, 936 S.W.2d 699, 704 (Tex. App.-Dallas 1996, writ den’d), states that a municipality is a subdivision of the State. The third case, Willacy County Water Control and Improvement Dist. No. 1 v. Abendroth, 142 Tex. 320, 177 S.W.2d 936, 937 (1944), states that special purpose districts, such as irrigation districts and navigation districts, are political subdivisions of the State. The issue before us, however, is not whether special purpose districts and housing authorities are political subdivisions of the State. Clearly they are. The issue is whether a housing authority is a “unit of state government” for purposes of Chapter 2260.

AHA asserts that the history and policy of housing authorities demonstrate that AHA is a unit of state government. We disagree. We can find nothing in the history and policies of housing authorities about whether they are units of state gov-eminent. The only case cited by AHA on this point, Housing Authority of City of Dallas v. Higginbotham, 135 Tex. 158, 143 S.W.2d 79, 85 (1940), simply holds that the Housing Authority Law is constitutional. The case makes no statement pertaining to the question of whether housing authorities are units of state government or units of local government.

AHA asserts that, because a housing authority derives its power from the state legislature, housing authorities are therefore units of state government. We disagree. Special purpose districts are also created by the legislature, but they are nonetheless excluded from the definition of “units of state government.” Section 2260.001. The issue is not where a housing authority derives its power from but rather the limited scope of a housing authority’s power. Although a housing authority is created by the legislature, it may not exercise its powers until the governing body of the municipality declares by resolution that there is a need for the authority. TEX. LOC. GOV’T CODE ANN. § 392.011(c) (Vernon 1999). Also, a housing authority has limited local jurisdiction. Its area of operation is limited to the municipality for which the authority is created and a five-mile area outside the municipality. TEX. LOC. GOV’T CODE ANN. § 392.014 (Vernon 1999). Furthermore, housing authority commissioners are appointed not by an officer of the state but by the presiding officer of the governing body of the municipality. TEX. LOC. GOV’T CODE ANN. § 392.031(a) (Vernon Pamph. Supp.2004-2005). These statutory provisions suggest that a housing authority is a local entity, not a unit of state government. We also note that the Housing Authority Law is found in Chapter 392 of the Local Government Code.

Finally, this court and the 5th Court of Appeals have held that a municipal housing authority is a division of the city that created it and exists only with the consent of that city. Aetna Casualty and Surety Company v. Glidden Company, 283 S.W.2d 440, 441 (Tex.Civ.App.-Eastland 1955), rev’d on other grounds, 155 Tex. 591, 291 S.W.2d 315 (1956); Miers v. Housing Authority of City of Dallas, 266 S.W.2d 487, 490 (Tex.Civ.App.-Dallas 1954, no writ). It follows, then, that a municipal housing authority is a unit of local government, not a unit of state government.

For these reasons, we hold that municipal housing authorities are not units of state government and that the provisions of Chapter 2260 do not apply to them. We therefore sustain Duke’s second issue. Because we hold that Chapter 2260 does not apply to contracts with housing authorities, we need not address Duke’s third issue on appeal that the contract was executed before the effective date of the statute. TEX.R.APP.P. 47.1.

In a supplemental brief, AHA argues that there is another reason why the district court lacks subject matter jurisdiction over this dispute. AHA asserts that the statutory language of TEX. LOC. GOV’T CODE ANN. § 392.065 (Vernon 1999) does not waive immunity from suit for municipal housing authorities. Section 392.065 provides in relevant part that a municipal housing authority may “sue and be sued.” The Texas Supreme Court has held that “sue and be sued” language is quite plain and gives general consent for a governmental body to be sued. Missouri Pacific Railroad Company v. Brownsville Navigation District, supra at 813. AHA contends that the law in Texas has been evolving and that the Texas Supreme Court has now departed from Missouri Pacific. We disagree.

First, we find that the holding in Missouri Pacific has never been overruled. Our review of the cases citing Missouri Pacific indicates that the Texas Supreme Court has cited it several times and that not once has it taken the opportunity to state that the case is no longer good law. See, e.g., Texas A & M University-Kings-ville v. Lawson, 87 S.W.3d 518 (Tex.2002); Travis Comity v. Pelzel & Associates, Inc., 77 S.W.3d 246 (Tex.2002); Texas Natural Resource Conservation Commission v. IT-Davy, 74 S.W.3d 849 (Tex.2002); General Services Commission v. Little-Tex Insulation Company, Inc., supra; Federal Sign v. Texas Southern University, 951 S.W.2d 401 (Tex.1997). As Justice Jefferson recently wrote, before he became Chief Justice, “[W]e have little difficulty recognizing the Legislature’s intent to waive immunity from suit when a statute provides that a state entity may be sued.” Wichita Falls State Hospital v. Taylor, 106 S.W.3d 692, 696-97 (2003). In addition, the United States Fifth Circuit Court of Appeals has stated that Missouri Pacific remains controlling Texas authority for the proposition that “sue and be sued” language constitutes an express waiver of immunity. Webb v. City of Dallas, Texas, 314 F.3d 787, 795 (5th Cir.2002).

This court has held that a waiver of sovereign immunity must be accomplished by clear and unambiguous language. Gendreau v. Medical Arts Hospital, 54 S.W.3d 877, 878 (Tex.App.-Eastland 2001, pet’n den’d). We have yet to rule, however, on the issue of whether a clear and unambiguous waiver of immunity is accomplished by “sue and be sued” language. Most other appellate courts have already addressed this issue. AHA is correct in asserting that some courts have held that “sue and be sued” language does not waive the State’s immunity from suit. See, e.g., Satterfield & Pontikes Construction, Inc. v. Irving Independent School District, 123 S.W.3d 63, 66 (Tex.App.-Dallas 2003, pet’n filed); Jackson v. City of Galveston, 837 S.W.2d 868, 871 (Tex.App.-Houston [14th Dist.] 1992, writ den’d); Townsend v. Memorial Medical Center, 529 S.W.2d 264, 267 (Tex.Civ.App.-Corpus Christi 1975, writ refd n.r.e.); Childs v. Greenville Hospital Authority, 479 S.W.2d 399, 401 (Tex. Civ.App.-Texarkana 1972, writ refd n.r.e.). Many other courts, however, have held that “sue and be sued” language does waive immunity from suit. See, e.g., Goer-litz v. City of Midland, 101 S.W.3d 573, 577 (Tex.App.-El Paso 2003, pet’n filed); Tarrant County Hospital District v. Henry, 52 S.W.3d 434, 448 (Tex.App.-Fort Worth 2001, no pet’n); Welch v. Coca-Cola Enterprises, Inc., 36 S.W.3d 532, 538 (Tex. App.-Tyler 2000, pet’n withdrawn); Bates v. Texas State Technical College, 983 S.W.2d 821, 827 (Tex.App.-Waco 1998, pet’n den’d); Alamo Community College District v. Obayashi Corporation, 980 S.W.2d 745, 747-48 (Tex.App.-San Antonio 1998, pet’n den’d); Dillard v. Austin Independent School District, 806 S.W.2d 589, 594 (Tex.App.-Austin 1991, writ den’d)(op. on reh’g); Fazekas v. University of Houston, 565 S.W.2d 299, 302 (Tex.Civ.App.-Houston [1st Dist.] 1978, writ refd n.r.e.).

Until the Texas Supreme Court resolves this disagreement between the appellate courts, we think that the best course of action is to follow Missouri Pacific — a case that has not been overruled by the Texas Supreme Court, has been followed by the majority of Texas appellate courts, and is considered controlling Texas authority by the United States Fifth Circuit Court of Appeals. We hold, therefore, that the “sue and be sued” language of Section 392.065 of the Local Government Code represents a clear and unambiguous waiver of immunity from suit and that the trial court had jurisdiction in this case.

We note, however, that our holding is limited to the language in this particular-statute. There may be other statutes, enacted more recently, in which “sue and be sued” language does not represent a clear and unambiguous waiver of immunity. We believe that statutes should be construed on a case-by-case basis; and, if the text and history of the statute leave room to doubt whether the legislature intended to waive sovereign immunity, we may be less likely to find waiver. Wichita Falls State Hospital v. Taylor, supra at 697. In this case, however, we have no reason to doubt the legislature’s intent to waive sovereign immunity for municipal housing authorities.

Duke has also filed a supplemental brief with this court in which it makes two additional arguments. Duke first argues that AHA can never be a “unit of state government” because it is not a part of the state and is instead excluded as a municipality, a special purpose district, or a political subdivision. As we have already held, for purposes of Chapter 2260, a municipal housing authority is a political subdivision of the state that is excluded from the statutory definition of “unit of state government.” Section 2260.001. Our holding, however, is limited to Chapter 2260 of the Texas Government Code.

Duke next argues that the district court had no jurisdiction to vacate its prior order compelling the parties to arbitrate their construction contract dispute.

In view of our ultimate ruling in this case, we need not answer that question. Based upon its conclusion that it had no subject matter jurisdiction, the trial court set aside its order compelling the parties to arbitrate this contract dispute. The trial court concluded that it had no jurisdiction because of the application of Chapter 2260 of the Texas Government Code. We have held that the provisions of Chapter 2260 do not apply in this case. Because the trial court withdrew this case from arbitration based upon a contrary, erroneous conclusion, the order by which the trial court withdrew the case from arbitration was likewise in error; and the same is set aside. Thus, the trial court’s “Order on Plaintiffs Application to Enforce Contractual Arbitration Agreement” remains in full force and effect. The trial court’s order of May 28, 2002, dismissing this case is set aside.

The judgment of the trial court is reversed, and this cause is remanded for further proceedings consistent with this opinion.


author: TERRIE LIVINGSTON, Justice.

text:
    Joel Billy ZABORAC, Appellant, v. TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee.
    No. 2-04-016-CV.
    Court of Appeals of Texas, Fort Worth.
    June 23, 2005.

      Factor, Campbell & Shepherd, L.L.P., Abe Factor and Kim Campbell, Fort Worth, for Appellant.

      Kevin M. Givens, Supervisor ALR Appellate Section Texas Department of Public Safety, Austin, for Appellee.
    PANELF: CAYCE, C.J.; LIVINGSTON and DAUPHINOT, JJ.
   OPINION

TERRIE LIVINGSTON, Justice.

I.Introduction

Appellant Joel Billy Zaborac appeals from an order affirming the suspension of his license. In his sole point, appellant argues that his right to due process was violated because the statute under which his driver’s license was suspended is unconstitutionally vague. We affirm.

II.Background Facts

On August 2, 2003, North Richland Hills Sergeant Warren Egerton responded to an intoxicated driver call. Sergeant Egerton saw a truck that matched the vehicle’s description in the parking lot of a Phillips 66 gas station. Sergeant Egerton attempted to catch up with the truck after seeing it leave the parking lot at a high rate of speed. During the course of the pursuit, Sergeant Egerton saw the truck “fish-tail” at an intersection before turning onto another street. Sergeant Egerton followed the truck down the street and turned on his emergency lights and siren. The truck drove across the front yard of a residence to avoid a roadblock at the end of the street. The truck then drove across a field before finally coming to a stop next to some trees.

Appellant, the driver, identified himself and said that he was seventeen years old. Sergeant Egerton smelled alcohol on appellant’s breath and noticed that his eyes were bloodshot and watery. Sergeant Eg-erton performed a horizontal gaze nystag-mus test on appellant and observed four clues that suggested appellant was intoxicated. In addition, he found eleven cans of beer in appellant’s vehicle. Sergeant Eg-erton then arrested appellant for, among other things, a minor driving under the influence of alcohol. See Tex. Alco. Bev. Code Ann. § 106.041 (Vernon Supp.2004-05).

After a hearing, an administrative law judge (ALJ) authorized the Texas Department of Public Safety (DPS) to suspend appellant’s license for sixty days under section 524.012 of the transportation code, which requires DPS to suspend the license of a minor who had any detectable amount of alcohol in his system while operating a vehicle in a public place. See Tex. Transp. Code Ann. § 524.012(b)(2) (Vernon 1999). The ALJ denied appellant’s motion to dismiss in which he argued that section 524.012 is unconstitutionally vague. Appellant appealed to the County Court at Law Number Two of Tarrant County and presented the same vagueness challenge. The court affirmed the ALJ’s decision.

III.Vagueness

In his sole point, appellant argues that his right to due process was violated because the statute under which his driver’s license was suspended is unconstitutionally vague. He contends that section 524.012 of the transportation code fails to set forth reasonable standards for its enforcement and fails to give notice of the conduct that it prohibits. Moreover, he argues that the statute is impermissibly vague on its face and as applied to his conduct.

Generally, minors are prohibited from consuming alcohol. Tex. Alco. Bev.Code Ann. § 106.04 (Vernon 1995). According to section 106.041 of the alcoholic beverage code, a minor commits a Class C misdemeanor if the minor operates a motor vehicle in a public place while having any detectable amount of alcohol in the minor’s system. Id. § 106.041. Similarly, section 524.012 of the transportation code requires DPS to suspend the minor’s driver’s license if DPS determines that the minor had any detectable amount of alcohol in the minor’s system while operating a motor vehicle in a public place. Tex. Transp. Code Ann. § 524.012(b)(2). The minor is entitled to a hearing, at which the DPS must prove its case by a preponderance of the evidence. Id. § 524.031, § 524.035 (Vernon Supp.2004-05).

A vague statute offends due process by failing to give fair notice of what conduct may be punished and by inviting arbitrary and discriminatory enforcement. Comm’n for Lawyer Discipline v. Benton, 980 S.W.2d 425, 437 (Tex.1998), cert. denied, 526 U.S. 1146, 119 S.Ct. 2021, 143 L.Ed.2d 1033 (1999). Civil statutes are scrutinized less severely than criminal statutes because the consequences of imprecision are not as severe. Village of Hoffman Estates, Inc. v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498-99, 102 S.Ct. 1186, 1193, 71 L.Ed.2d 362 (1982); Tex. Dep’t of Pub. Safety v. Chavez, 981 S.W.2d 449, 452 (Tex.App.Fort Worth 1998, no pet.) (“Statutes that do not impose criminal penalties and those that do not threaten to restrict constitutionally protected rights are subject to a less strict vagueness test.”). A license suspension under section 524.012 is a civil matter and therefore subject to a less strict vagueness review. Tex. Transp. Code Ann. § 524.012(e)(1); see Mireles v. Tex. Dep’t of Pub. Safety, 9 S.W.3d 128, 130-31 (Tex.1999); see also Ex Parte Tharp, 912 S.W.2d 887, 890 (Tex.App.Fort Worth 1995) (holding that driver’s license is not a right but a privilege), aff'd, 935 S.W.2d 157 (Tex.Crim.App.1996).

To determine whether a statute is unconstitutionally vague, we begin by presuming that the statute is constitutional. Walker v. Gutierrez, 111 S.W.3d 56, 66 (Tex.2003). The party challenging the statute’s constitutionality has the burden of showing that the statute fails to meet constitutional requirements. Id. When addressing a vagueness challenge to a statute, we must first determine whether the statute is vague as applied to the party’s conduct. Chavez, 981 S.W.2d at 452. If the statute is impermissibly vague as applied to the party’s conduct, we will then address the “facial challenge” to the statute. Raitano v. Tex. Dep’t of Pub. Safety, 860 S.W.2d 549, 551 (Tex.App.Houston [1st Dist.] 1993, writ denied).

A. Notice

Appellant argues that because section 524.012 of the transportation code does not define “detectable,” it failed to provide appellant with notice of the conduct that it attempts to proscribe. A statute is not unconstitutionally vague merely because it does not define words or phrases. Engelking v. State, 750 S.W.2d 213, 215 (Tex.Crim.App.1988). According to section 311.011(a) of the government code, ‘Words and phrases shall be read in context and construed according to the rules of grammar and common usage.” Tex. Gov’t Code Ann. § 311.011(a) (Vernon 2005). Further, ‘Words defined in dictionaries and with meanings so well known as to be understood by a person of ordinary intelligence are not to be considered vague and indefinite.” Floyd v. State, 575 S.W.2d 21, 23 (Tex.Crim.App. [Panel Op.] 1978).

Webster’s Dictionary defines “detectable” as “capable of being detected.” Webster’s ThiRD New International Dictionary 616 (2002). Further, “detect” means “to discover or determine the existence, presence, or fact of.” Id. The word “detectable” has a plain and ordinary meaning that may be understood by a person of ordinary intelligence. See Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222 (1972). Section 524.012 of the transportation code clearly provides that a minor who operates a motor vehicle in a public place with any amount of alcohol in his system that is capable of detection, either by breath test or otherwise, shall have his license suspended. Therefore, we hold that section 524.012 gave appellant fair notice of the type of conduct that would result in the suspension of his license.

B. Arbitrary and Discriminatory Enforcement

Appellant also argues that because section 524.012 of the transportation code does not prescribe objective standards for determining whether a minor has “any detectable amount” of alcohol in his system, it allowed Sergeant Egerton to arbitrarily detect alcohol in appellant’s system. Appellant points to the fact that the statute allowed the department to suspend his license without the results of an objective chemical test confirming the presence of alcohol in his system. He argues that because alcohol is odorless, that is, the smell of alcohol is really the distinctive odor of nonalcoholic ingredients in beer, wine, and whiskey — and that nystagmus clues can be caused by conditions other than drinking alcohol, the statute allows for arbitrary enforcement by not requiring the officer to administer a breath test. The suspension of appellant’s license was not based solely on a conclusory statement from the arresting officer that there was a detectable amount of alcohol in appellant’s system.

Sergeant Egerton stated in the arrest report that he stopped appellant after seeing him drive away from a gas station at a high rate of speed and “fish-tail” through an intersection. After Sergeant Egerton turned on his lights and siren, appellant drove through a residential yard to avoid a barricade and then drove through a field. Sergeant Egerton smelled alcohol on appellant’s breath and noticed that his eyes were bloodshot and watery. Moreover, Sergeant Egerton found eleven cans of beer in appellant’s vehicle and observed four clues that indicated intoxication after administering the horizontal gaze nystag-mus test. Sergeant Egerton’s observations led the ALJ to find by a preponderance of the evidence that appellant was operating a motor vehicle in a public place with a detectable amount of alcohol in his system.

Sergeant Egerton articulated several factors such as appellant’s reckless driving, the odor of alcohol on appellant’s breath, appellant’s bloodshot and watery eyes, the cans of beer in appellant's vehicle, and appellant’s poor performance on the horizontal gaze nystagmus test, all of which indicated that appellant had alcohol in his system. These factors are also commonly cited in driving while intoxicated (DWI) cases in which the State must prove beyond a reasonable doubt that the defendant did not have the normal use of mental and physical faculties by reason of the introduction of alcohol into the defendant’s body. See Tex. Penal Code Ann. §§ 2.01, 49.04; State v. Garrett, 22 S.W.3d 650, 654 (Tex.App.Austin 2000, no pet.). Thus, if these factors are sufficient to prove intoxication, which requires a showing not only that the defendant ingested alcohol, but by reason of the ingestion of alcohol the defendant did not have the normal use of his mental and physical faculties, we see no reason why they should not be sufficient to show that a minor had alcohol in his system. And if a person can be convicted of the criminal offense of driving while intoxicated based on those factors without the necessity of a breath test, it follows that such factors are sufficient to support a conclusion that a minor had alcohol in his system for purposes of suspending the minor’s driver’s license. Moreover, section 49.01(2)(A), which defines “intoxicated” as “not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body,” is not unconstitutionally vague. Tex. Penal Code Ann. § 49.01(2)(A); Irion v. State, 703 S.W.2d 362, 363-64 (Tex.App.Austin 1986, no pet.). Section 524.012 invites arbitrary and discriminatory enforcement no more than the DWI statute does. Tex. Teansp. Code Ann. § 524.012. In both situations, the State must still prove its case by the applicable burden of proof. Therefore, given the totality of the circumstances, we conclude that Sergeant Egerton did not arbitrarily detect alcohol in appellant’s system.

Because appellant has not shown that section 524.012 of the transportation code is unconstitutional as applied to him, we do not reach the issue of whether the statute is unconstitutionally vague on its face. See Chavez, 981 S.W.2d at 452. We overrule appellant’s sole point.

IY. Conclusion

Having overruled appellant’s sole point, we affirm the trial court’s judgment.

      . We note that section 524.011(a)(2) of the transportation code requires the officer to initiate suspension proceedings if he or she arrests a minor under section 106.041 of the alcoholic beverage code and either the minor is not requested to give a breath specimen or the minor gives a breath specimen and the analysis shows the minor had an alcohol concentration of greater than .00 and less than .08. See Tex Transp. Code Ann. § 524.011(a)(2); Tex. Penal Code Ann. § 49.01(2)(B) (Vernon 2003).

        . We also note that section 106.04 of the alcoholic beverage code, which generally prohibits minors from consuming alcohol, provided appellant with additional notice that his conduct was prohibited. See Tex. Alco. Bev. Code Ann. § 106.04.

      . We note that the police are not limited to charging a minor under section 106.04 of the transportation code; a minor may also be charged with driving while intoxicated. See Tex Penal Code Ann. §§ 49.01, 49.04; Findlay v. State, 9 S.W.3d 397, 400-01 (Tex.App.Houston [14th Dist.] 1999, no pet.).

      . See Tex. Penal Code Ann. §§ 49.01(2)(A), 49.04(a).