text:
    PANTERA ENERGY COMPANY, Appellant, v. RAILROAD COMMISSION OF TEXAS; ConocoPhillips Company; and Pioneer Natural Resources, USA, Appellees.
    Nos. 03-02-00474-CV, 03-03-00045-CV, 03-03-00046-CV.
    Court of Appeals of Texas, Austin.
    Feb. 5, 2004.

      Andrew M. Taylor, Tracy Temple, Eric B. Storm, Bracewell & Patterson, L.L.P., Austin, Professor Ron L. Beal, Waco, for appellant.
    E. Lee Parsley, Gary D. Compton, Locke Liddell & Sapp, L.L.P., Austin, for Pioneer Natural Resources, USA.
    Jamie Nielson, Karen L. Watkins, McGinnis Lochridge & Kilgore, LLP, Austin, for ConocoPhillips Company.
    Liz Bills, Priscilla M. Hubenak, Asst. Attorneys General, Austin, for Railroad Commission of Texas.
    Before Chief Justice LAW, Justices B.A. SMITH and PATTERSON.
   OPINION

BEA ANN SMITH, Justice.

To address concerns raised in the Railroad Commission’s motion for rehearing, we withdraw our original opinion and judgments issued on October 30, 2003, and substitute this opinion in its place. Pant-era Energy Company filed two suits for judicial review challenging orders of the Commission that dismissed its forty-eight applications to dissolve certain pooled gas units in the Panhandle West Field. It also filed an action for declaratory relief that the Commission had acted arbitrarily and capriciously by requiring Pantera to provide notice of its applications to offset operators and mineral owners. Pantera asserts that the version of Rule 38(d)(3) in effect when its applications were filed did not require such notice, and that the Commission could not consider other provisions of Rule 38 — particularly Rule 38(h), governing exceptions to density provisions— and must have approved its applications without a hearing. See 14 Tex. Reg. 1575 (1989), adopted 14 Tex. Reg. 5255 (1989) (former 16 Tex. Admin. Code § 3.38(d)(3), (h)) (Tex.R.R. Comm’n) (hereinafter cited as Former Rule 38(d)(3)); 16 Tex. Admin. Code § 3.38(h) (2003). While the three causes were pending, the Commission amended Rule 38(d)(3) to expressly require notice to affected persons listed in Rule 38(h)(1)(A). See 16 Tex. Admin. Code § 3.38(d)(3) (2003) (hereinafter cited as New Rule 38(d)(3)). The district court held that the amendment to the rule was procedural in nature and thus the Commission, whether it properly required such notice under Former Rule 38(d)(3), could require notice to offset operators and owners in its ongoing consideration of these applications. The trial court thus dismissed all three actions as moot.

We have consolidated the three causes on appeal to consider the common issue: whether the amendment to Rule 38(d)(3) is procedural in nature and thus applicable to the pending applications. We grant the motion for rehearing and affirm the district court’s dismissal of the suits for judicial review because the amended rule moots the controlling issue in those actions; additionally, we affirm the dismissal of the declaratory-judgment action because it is duplicative of the relief sought in the suits for judicial review.

BACKGROUND

In 1948, the Commission adopted special field rules specifying that each well in the Panhandle West Field will drain 640 acres, making 640 the acreage required for each well drilled. If a tract does not contain 640 acres, an operator may pool several tracts into one unit in order to drill a well. See 16 Tex. Admin. Code § 3.40 (2003). Almost sixty years ago, more than 150 separate tracts were pooled to form these forty-eight units on which forty-eight wells have been drilled. The operator of a unit that contains an existing well may seek the right to drill an additional well by applying for an exception to the density restrictions and proving another well is necessary to prevent the waste of hydrocarbons or confiscation of the operator’s property. See id. § 3.38(f) (2003). Under either theory, the operator must present engineering and geological data to prove its entitlement to an exception to the density rule. See id. § 3.38(i) (2003). More importantly to this dispute, the operator seeking an exception must also give notice to all affected persons, including the operators and unleased mineral owners of adjacent tracts, because additional wells might adversely affect their interests. See id. § 3.38(h) (2003). In 1997, Pantera applied for a density exception to drill an additional well on one of the units at issue here. Phillips Petroleum Company, an offset operator, received notice and filed a protest; Pantera withdrew its application.

Subsequently, in December 2000 and September 2001, Pantera filed a total of forty-eight applications to dissolve formerly pooled units in the Panhandle West Field into their component parts. Pantera filed its applications pursuant to Former Rule 38(d)(3); the Commission, however, determined that the applications were, in effect, attempts to obtain exceptions to the density provisions without complying with Commission rules. The Commission declined to consider the applications until Pantera gave notice to offset operators and owners of unleased mineral interests. See id. Pantera refused, relying on Former Rule 38(d)(3), which requires notice to only operators and lessees of tracts within the pooled unit to be dissolved, in this case only to Pantera itself. See Former Rule 38(d)(3). Specifically, Pantera insisted that the last sentence in Former Rule 38(d)(3) required the Commission to grant its applications without deliberation: “If written waivers are filed or if a protest is not filed within the time set forth in the notice of application, the application will be granted administratively.” See id. The Commission declined to grant Pantera’s applications administratively. Regarding two of the applications, the Commission informed Pantera that it could seek a hearing, but only after giving notice to offsetting operators and unleased mineral interest owners. Pantera continued to refuse to give notice and asked the Commission to reconsider. The Commission declined to change its ruling and dismissed the applications.

On October 19, 2001, while the applications were still pending before the Commission, Pantera filed the first lawsuit in district court seeking a declaratory judgment that the Commission was improperly applying Former Rule 38(d)(3) by requiring notice to the affected persons listed in Rule 38(h)(1)(A). The Commission, in response, challenged the court’s jurisdiction to grant declaratory relief when the Commission’s actions were subject to challenge in a suit for judicial review. In October 2001, the Commission dismissed Pantera’s first two applications; in December, the Commission dismissed Pantera’s remaining applications. Pantera filed two new suits seeking judicial review of both Commission orders.

On January 24, 2002, the Commission amended Rule 38(d)(3) to expressly require notice to the “affected persons described in subsection (h)(1)(A).” See New Rule 38(d)(3); 16 Tex. Admin. Code § 3.38(h). In April 2002, the district court granted the Commission’s and intervenors’ pleas to the jurisdiction and dismissed the declaratory-judgment action. The Commission and intervenors then asserted a plea to the jurisdiction in the two suits for judicial review, urging that the parties’ dispute had become moot because of the Commission’s amendment to Rule 38(d)(3). The district court agreed that the amendment to the rule was a procedural change that applied to the application process when the rule became effective, mooting any dispute about what notice Pantera was required to give for these applications. It dismissed the two suits for judicial review. Pantera asks this Court to reverse all three district-court judgments and remand the causes to the district court for proceedings on the merits.

DISCUSSION

Pantera urges that the district court erred by declaring its dispute with the Commission moot because (1) the Commission’s amended rule should not be applied retroactively to its applications and (2) the district court had jurisdiction to determine whether the Commission violated its own rule by arbitrarily and capriciously requiring notice to offset operators and other affected persons. We review a district court’s ruling on a plea to the jurisdiction under a de novo standard of review because subject matter jurisdiction is a question of law. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998); Cornyn v. County of Hill, 10 S.W.3d 424, 427 (Tex.App.-Waco 2000, no pet.).

Mootness

The mootness doctrine implicates subject-matter jurisdiction. Speer v. Presbyterian Children’s Home & Serv. Agency, 847 S.W.2d 227, 229 (Tex.1993). It dictates that courts avoid rendering advisory opinions by only deciding cases that present a “live” controversy at the time of the decision. Camarena v. Texas Employment Comm’n, 754 S.W.2d 149, 151 (Tex.1988); see Valley Baptist Med. Ctr. v. Gonzalez, 33 S.W.3d 821, 822 (Tex.2000). For a plaintiff to have standing, a controversy must exist between the parties at every stage of the legal proceedings, including the appeal. Williams v. Lara, 52 S.W.3d 171, 184 (Tex.2001) (citing United States v. Munsingwear, Inc., 340 U.S. 36, 39, 71 S.Ct. 104, 95 L.Ed. 36 (1950)). If a controversy ceases to exist, “the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome,” and the case becomes moot. Id. (quoting Murphy v. Hunt, 455 U.S. 478, 481, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982)). If a case becomes moot, the parties lose standing to maintain their claims. Id. A case becomes moot when (1) it appears that one seeks to obtain a judgment on some controversy, when in reality none exists, or (2) when one seeks a judgment on some matter which, when rendered for any reason, cannot have any practical legal effect on a then-existing controversy. Texas Health Care Info. Council v. Seton Health Plan, Inc., 94 S.W.3d 841, 846 (Tex.App.-Austin 2002, pet. denied) (citing Scholl v. Firemen’s & Policemen’s Civil Serv. Comm’n, 520 S.W.2d 470, 471 (Tex.Civ.App.-Corpus Christi 1975, no writ)). In this instance, the second rationale is implicated: a decision on the merits in the three cases — whether the Commission properly required Pantera to give notice to offset operators or acted arbitrarily and capriciously in so doing — would be an advisory opinion with no practical effect on a live controversy if New Rule 38(d)(3) is a procedural amendment that now applies to future steps concerning this dispute. To decide this appeal, we must determine whether the amended rule is applicable to the pending applications.

Procedural v. substantive

Pantera claims that Former Rule 38(d)(3), as it existed on the dates its applications were filed, governs the notice Pantera was required to give, and that therefore the district court erred in dismissing these causes as moot. To sustain this position, Pantera argues that the amendment to the rule is substantive in nature and thus cannot apply retroactively. In the alternative, Pantera urges that even if the amendment is procedural, it cannot be applied retroactively because to do so would deprive Pantera of vested rights. The Commission, on the other hand, contends that the notice required under New Rule 38(d)(3) is only a procedural requirement and thus should be applied from its effective date forward to govern any consideration of Pantera’s pending applications. See Texas Dep’t of Health v. Long, 659 S.W.2d 158, 160 (Tex.App.-Austin 1983, no writ).

The basis for Pantera’s three suits in district court was that the Commission acted arbitrarily and capriciously by requiring notice to offsetting operators and unleased mineral owners, the “affected persons” named in Rule 38(h)(1)(A), when that requirement was not specified in Former Rule 38(d)(3). This would seem to mirror the situation in Long, where the legal issue presented in district court was whether the Department of Health failed to obtain a necessary certificate from the local commissioners court before granting an application for a municipal landfill. Before the case could be heard, the Department repealed its rule requiring the certification. This Court held, “We have no difficulty in concluding that agency requirements for inclusion, or not, of items in an application for a landfill are procedural in character.” Id. We thus held that the new rule would retroactively govern any pending landfill application, including the appellee’s. This Court then determined that omitting the very requirement complained of had the effect of eliminating the whole foundation of the legal complaint and removed this Court’s subject-matter jurisdiction. “A judgment by this Court on the merits of this appeal, under these circumstances, would be ineffectual for want of a subject matter upon which it could operate, the validity or application of the Department’s superseded rule being immaterial.” Id.

In the present appeal, the district court faced the same dilemma. It first applied the principle announced in Long to determine that the amended notice requirement in the new rule was procedural in nature. Notice requirements have long been considered to be procedural in nature. See Parrish v. Brooks, 856 S.W.2d 522, 526 (Tex.App.-Texarkana 1993, writ denied) (notice provision of tort claims act is procedural, not substantive); Hydrocarbon Research, Inc. v. Calvert, 429 S.W.2d 539, 546 (Tex.Civ.App.-Austin 1968, writ ref d n.r.e.) (notice provision of tax statute is wholly procedural in nature). Although New Rule 38(d)(3) added a requirement while the amended rule in Long eliminated one, the same principle applies to future steps in pending litigation: that no litigant has a vested right in a procedural remedy. Id. (citing Merchants Fast Motor Lines v. Railroad Comm’n, 573 S.W.2d 502 (Tex.1978)). The gravamen of Pantera’s legal complaint — that the Commission improperly interpreted and applied its former rule — -would be eliminated if that rule were superseded by the new rule. A legal opinion regarding the proper interpretation of the former rule “would constitute nothing more than an advisory opinion on an abstract question of law.” Id. at 161.

Pantera insists that the amended rule did more than expand the notice provisions for an application; it also added a provision that the Commission would grant administrative approval of an application only if it “determines that granting the application will not result in the circumvention of the density restrictions of this section or other Commission rules....” New Rule 38(d)(3). Pantera has asserted that under Former Rule 38(d)(3), the Commission had no discretion and had to grant an application when a protest was not filed. The last sentence of the former rule reads, “If written waivers are filed or if a protest is not filed within the time set forth in the notice of application, the application will be granted administratively.” By contrast, the amended rule clearly affords the Commission discretion to consider whether density restrictions or other rules are being circumvented before granting an application:

A Commission designee may grant administrative approval if the Commission designee determines that granting the application will not result in the circumvention of the density restriction of this section or other Commission rules, and if either ... written waivers are filed [or] no protest is filed[.]

New Rule 38(d)(3).

Pantera argues that this makes the amendment substantive in nature, and as such it may apply only prospectively to applications filed after its effective date. A substantive act, and by analogy a substantive rule, will be applied only prospectively unless it appears by fair implication from the language used that it was the intent of the legislature (or agency) to make it applicable to both past and future transactions. Ex parte Abell, 613 S.W.2d 255, 258 (Tex.1981); Davis v. State, 846 S.W.2d 564, 569 (Tex.App.-Austin 1993, no writ). Although the merits of Pantera’s suit are not before us, we find it helpful to our analysis to address Pantera’s complaint that the Commission wrongfully withheld granting its applications when all of the then-required notice had been given, as this goes to Pantera’s argument that the rule was substantively changed. Pant-era implicitly asserts that the use in the former rule of the phrase “ivill be granted administratively” means that the Commission had (1) no choice but to grant its application in the absence of any protests, (2) no discretion to require notice to additional people if it deemed such notice necessary, and (3) no right to consider any other factors in granting an application, such as how density restrictions might be circumvented. Thus, it concludes, the new rule’s reference to whether an application’s grant will circumvent density restrictions is a substantive change because an application’s grant, in the absence of a protest, is no longer automatic. However, it is quite possible that the use of the word “will” in the former rule is not mandatory but merely directive, especially considering the Commission’s duty to “regulat[e] the production of oil and gas for the prevention of waste as well as for the protection of correlative rights.” See Texaco, Inc. v. Railroad Comm’n, 583 S.W.2d 307, 310 (Tex.1979).

By analogy, although the word “shall” is generally construed as mandatory by courts, see Cities of Austin, Dallas, Ft. Worth and Hereford v. Southwestern Bell Tel. Co., 92 S.W.3d 434, 442 (Tex.2002), courts have construed it as merely directive when legislative intent supports such a construction. See Thomas v. Groebl, 147 Tex. 70, 212 S.W.2d 625, 630-31 (1948); Texas Dep’t of Pub. Safety v. Guerra, 970 S.W.2d 645, 648-49 (Tex.App.Austin 1998, pet. denied). In determining whether a statutory provision is directive or mandatory, a court should consider the entire act, its nature and object, and the consequences that would follow from either construction. Chisholm v. Bewley Mills, 155 Tex. 400, 287 S.W.2d 943, 945 (1956). “Provisions [that] are not of the essence of the thing to be done, but [that] are included for the purpose of promoting the proper, orderly, and prompt conduct of business, are not generally regarded as mandatory.” Id. If the word “shall” can be directive rather than mandatory, certainly the future-tense verb “will” is susceptible to a similar interpretation. Because it is possible that the Commission did not have to grant Pantera’s applications simply because no protests had been filed, we are not persuaded that the amended rule added a substantive requirement that impeded the former “automatic” grant of an application.

We are persuaded, rather, that the only issue presented in the three lawsuits turned on a procedural question: whether Pantera had to give notice to the operators and owners of mineral interests on adjacent offsetting tracts. The Commission required the notice and when Pantera refused to give it, the applications were dismissed. We are further persuaded that the Commission could make a procedural change in the notice requirements that would apply to future steps in pending applications. See Long, 659 S.W.2d at 160. That moots the only issue presented in Pantera’s lawsuits. The district court need not address the moot question of whether the Commission had the authority or discretion to require the notice under Former Rule 38(d)(3) because it now has explicit authority to do so under the amended rule.

Not arbitrary or capricious

Pantera also asserts that the Commission’s actions were arbitrary and capricious. In our original opinion, we expressed concern that by issuing an amended rule while these applications were pending, the Commission had changed the rules in the middle of the administrative process, a practice this Court condemned in Flores v. Employees Retirement System, 74 S.W.3d 532, 545 (Tex.App.-Austin 2002, pet. denied). In that situation a former employee who was denied benefits complained that the ERS board of trustees acted arbitrarily and capriciously by deviating from its own precedent, citing two decisions awarding benefits under similar circumstances. After a contested-case hearing before the administrative law judge who recommended that benefits be awarded, the ERS adopted a resolution that purported to change its policy and denied the benefits. We concluded that by adopting this new policy months after the hearing, without pre-hearing notice, when it was no longer possible for the employee to present her case differently, the ERS acted arbitrarily and capriciously.

By contrast, here the Commission announced at the beginning of the process that Pantera must give notice to offset operators and owners, and then never wavered from that position. The rules did not change in the middle of the process, but were applied consistently. Pantera insists that by requiring notice when an application was submitted under Former Rule 38(d)(3), the Commission deviated from its treatment of other similar applications. The Commission alleged that it was following a longstanding practice to review all such applications for attempts to circumvent density provisions or other Commission rules before granting administrative approval. We find that there is sufficient evidence of this Commission practice to distinguish this situation from that condemned in Flores. We reject the assertion that the Commission acted arbitrarily and capriciously.

Vested rights not divested

Pantera argues that even if the new rule was procedural in nature, it cannot be applied to these pending applications if its application would deprive Pant-era of vested rights. “The rule is well settled that procedural statutes may apply to suits pending at the time they became effective, but even a procedural statute cannot be given application to a suit pending at the time it becomes effective if to do so would destroy or impair rights which had become vested before the act became effective.” Baker Hughes, Inc. v. Keco R. & D., Inc., 12 S.W.3d 1, 4 (Tex.1999) (quoting Wilson v. Work, 122 Tex. 545, 62 S.W.2d 490, 490 (1933)); Grocers Supply, 978 S.W.2d 638, 643 (Tex.App.-Austin 1998, pet. denied). We disagree that by changing the notice procedure, the Commission deprived Pantera of a vested right. Pant-era had at best an expectation, not a right, to dissolve its units. It still has that remedy available after the amended rule, subject to a changed notice provision.

The production of oil and gas is subject to the Commission’s jurisdiction and control. See Tex. Nat. Res.Code Ann. § 81.051 (West 2001). Pantera had no absolute right to do what it wished with its property but was subject to the Commission’s oversight and regulation. Although Pantera cites Buttes Resources Co. v. Railroad Commission in support of its argument, that case turned on the fact that the Commission had set a retroactive effective date for the forced pooling of certain acreage with another unit, which, the court held, deprived Buttes of its vested property rights; the court did not, notably, hold that forced pooling itself is unlawful, even though it is “in derogation of the right of one to do with his own property as he so desires.” See 732 S.W.2d 675, 682 (Tex.App.-Houston [14th Dist.] 1987, writ ref'd n.r.e.) (quoting Superior Oil Co. v. Railroad Comm’n, 519 S.W.2d 479, 482 (Tex.Civ.App.-El Paso 1975, writ ref'd n.r.e.)). If forced pooling does not unconstitutionally interfere with vested property rights, neither can procedural limits on the un-pooling of a unit. The procedural limits at issue here on Pantera’s right to “do with its property as it desires” are certainly within the Commission’s authority to regulate oil and gas production in Texas and do not interfere with a vested property right such as that at issue in Buttes.

Although Pantera argues that the Commission had no choice but to grant its applications in the absence of a protest being filed, the issue of notice undeniably affected the likelihood that a protest would be filed. That is what this dispute is all about. And we reject Pantera’s analogy that under its interpretation of the former rule it was entitled to a time bar to prevent any timely protests. We hold that the application of the new notice provision did not divest Pantera of any vested rights.

Declaratory judgment

Pantera’s declaratory-judgment action seeks the same relief as its two suits for judicial review: a determination that the former rule applies to its applications, that Pantera was not required to give notice to offset operators under the rule, and that the Commission acted arbitrarily and capriciously in not granting its applications. Thus, its declaratory-judgment action is duplicative of its other two suits and was properly dismissed by the district court. See Young Chevrolet, Inc. v. Texas Motor Vehicle Bd., 974 S.W.2d 906, 911 (Tex.App.-Austin 1998, pet. denied) (trial court properly dismissed declaratory-judgment action requesting same relief as administrative appeal).

CONCLUSION

The notice requirement added by New Rule 38(d)(3) was a procedural change that applies prospectively to all pending applications, whenever filed. As such it superseded the notice requirement of the former rule and applied to all future steps concerning these applications. By expressly requiring notice to all affected persons described in subsection (h)(1)(A), the new rule moots the inquiry as to whether such notice could be required under the former rule. To decide whether the former rule allowed the Commission to require notice to offset operators and owners would constitute nothing more than an advisory opinion on an abstract question of law when the new rule expressly requires such notice. Long, 659 S.W.2d at 160-61. The district court properly held that the amended rule applied to Pantera’s applications and made the controversy moot. The application of this notice requirement does not deprive Pantera of any vested rights. Furthermore, the declaratory-judgment action was duplicative of the issues presented in the two suits for judicial review. We affirm the district court’s dismissal of all three lawsuits.

      . Because the other relevant portions of the former rule were not amended along with subsection (d)(3) and do not differ from the current rule, citations to these other portions will be to the current rule. See, e.g., 16 Tex. Admin. Code § 3.38(h) (2003).

      . The Commission’s statewide rules require an operator to have forty acres to drill and produce an oil or gas well. See id. §§ 3.37(b), 3.38(b)(2)(B) (2003). However, the Commission may adopt special field rules to protect the rights of mineral-interest owners in a certain reservoir and to allow for the orderly and scientific development of the field. See Tex. Nat. Res.Code Ann. § 85.042(b) (West 2001). In the absence of a special rule for a field, the statewide density rule governs.

      .Pantera then filed for a permit to drill at exactly the same well location, subject to not producing concurrently with the existing well. When the new well was completed, Pantera shut-in the existing well.

      . After a unit has been voluntarily pooled and accepted by the Commission, the joined tracts may not be divided into separate tracts composed of substandard acreage, "unless and until the commission approves such division after application, notice to all current lessees and unleased mineral interest owners of each tract within the joined or unitized tract, and an opportunity for hearing.” Former Rule 38(d)(3).

      . According to the memorandum of Colin K. Lineberry (Office of General Counsel for the Commission) dated April 3, 2001, Pantera is alleging that because the component tracts that would result from dissolving these forty-eight units are alleged to have taken their current size and shape prior to the attachment of the field rules requiring 640-acre units, each substandard-sized tract would become a "legal subdivision” on which one well could be drilled. According to Intervenor ConocoPhillips Company, if all forty-eight applications were granted, Pantera would be entitled to drill one well on each of the resulting 157 component tracts, whereas they are currently entitled to only forty-eight producing wells on the same acreage. Pantera does not dispute this assertion and indeed advanced its "legal subdivision” argument before the Commission.
      Lineberry concluded that Pantera's applications were, in effect, seeking exceptions to the density provisions and that Rule 38(d)(3) did not apply to these facts. Lineberry agreed with the examiner that Pantera was seeking to obtain an exception to density restrictions without complying with the notice provisions of Rule 38(h):
      If Rule 38(d)(3) did apply to these facts as urged by Pantera, Pantera could effectively grant itself exceptions to the density rule for the Panhandle, West Field without giving notice to offset operators (or any third party) and without any discretion on the part of the Commission to grant or deny the exception. This interpretation would preclude the Commission from exercising its statutorily mandated duties of protecting correlative rights and preventing waste. Lineberry recommended that the Commission deny Pantera's appeal, which it did.

      . Eventually three other operators in the Panhandle West Field intervened in all three suits, urging their own pleas to the jurisdiction: Conoco Inc., Phillips Petroleum Company, and Pioneer Natural Resources USA, Inc.

      . The former rule reads:
      (3) Division after joinder or unitization. If two or more separate tracts are joined or unitized for oil, gas, or geothermal development and accepted by the commission, the joined or unitized tracts may not ... be divided into the separate tracts ... unless and until the commission approves such division after application, notice to all current lessees and unleased mineral interest owners of each tract within the joined or unitized tract, and an opportunity for hearing. If written waivers are filed or if a protest is not filed within the time set forth in the notice of application, the application will be granted administratively.
      14 Tex. Reg. 1575 (1989), adopted 14 Tex. Reg. 5255 (former 16 Tex. Admin. Code § 3.38(d)(3) (Tex.R.R. Comm'n) (hereinafter cited as Former Rule 38(d)(3))).

      . The new rule reads:
      (3) Unit dissolution.
      (A)If two or more separate tracts are joined to form a unit for oil and gas development, the unit is accepted by the Commission, and the unit has produced hydrocarbons in the preceding twenty (20) years, the unit may not thereafter be dissolved into the separate tracts ... unless the Commission approves....
      (B) The Commission shall grant approval only after application, notice, and an opportunity for hearing. [ ...] [I]f one or more wells on the unitized tract has produced from the field within the 12-month period prior to the application, the applicant shall include on the list all affected persons described in subsection (h)(1)(A) [including offset operators] of this section....
      (C) A Commission designee may grant administrative approval if the Commission designee determines that granting the application will not result in the circumvention of the density restrictions of this section or other Commission rules, and if either ... written waivers are filed ... [or] no protest is filed....
      16 Tex. Admin. Code § 3.38(d)(3) (2003) (hereinafter cited as New Rule 38(d)(3)).

      . We reject Pantera's suggestion that there are no future steps to be taken concerning these applications, only past steps to be reviewed. Pantera incorrectly suggests that the district court or this Court could actually grant the applications that the agency should have granted, or could remand the applications with "instructions” that the Commission grant them administratively. In a suit for judicial review, the administrative procedure act empowers the reviewing court to examine the agency record for error, but only empowers the court to reverse or remand the case to the agency. Sierra Club v. Texas Nat. Resource Conservation Comm'n, 26 S.W.3d 684, 688 (Tex.App.-Austin 2000) (citing Tex. Gov’t Code Ann. § 2001.174(2) (West 2000)), aff'd, 70 S.W.3d 809 (Tex.2002). The reviewing court may identify error but may not dictate how to correct the error because to do so would usurp the authority and discretion delegated to the agency by the legislature. Texas Dep’t of Transp. v. T. Brown Constructors, Inc., 947 S.W.2d 655, 659 (Tex.App.-Austin 1997, pet. denied).


source: Caselaw Access Project

author: BEA ANN SMITH, Justice.

license: Public Domain

text:
    In the Matter of J. H.
    No. 03-03-00197-CV.
    Court of Appeals of Texas, Austin.
    Feb. 5, 2004.
    Rehearing Overruled April 1, 2004.

      Linda Ieenhauer-Ramirez, Austin, for appellant.
    M. Scott Taliaferro, Asst. Dist. Atty., Austin, for appellee.
    Before Chief Justice LAW, Justices B.A. SMITH and PATTERSON.
   OPINION

BEA ANN SMITH, Justice.

J.H. appeals his delinquent-child adjudication and disposition after the trial court found he had engaged in the following delinquent conduct: aggravated sexual assault, indecency with a child by contact, and indecency with a child by exposure. See Tex. Pen. Code Ann. § 22.021 (West 2003), § 21.11 (West Supp.2004). After the disposition hearing, the court ordered J.H. committed to the Texas Youth Commission for a determinate period of twenty-five years. See Tex. Fam.Code Ann. §§ 51.03, 54.04 (West Supp.2004). Because we hold that the trial court improperly found two of the counts to be true when J.H. had established an affirmative defense to them, we will modify the adjudication order, affirm it as modified, and remand the cause for a new disposition hearing.

BACKGROUND

After waiving his right to a trial by jury, J.H. was tried in a bench trial for nine counts of alleged delinquent conduct — aggravated sexual assault, indecency with a child by contact, and indecency with a child by exposure — committed against his three younger sisters, S.H., D.H., and L.H. See Tex. PemCode Ann. §§ 22.021, 21.11. The trial court found the following six paragraphs of the petition to be true and adjudicated J.H. delinquent accordingly: paragraphs three and four, alleging aggravated sexual assault against D.H.; paragraph five, alleging indecency with D.H. by contact; paragraph seven, alleging indecency with S.H. by contact; paragraph ten, alleging indecency with S.H. by exposure; and paragraph eleven, alleging indecency with L.H. by exposure. See Tex. Fam.Code Ann. § 51.03. The court also determined that J.H. had committed a violation of a penal law listed in section 53.045(a) of the family code. See id. § 53.045(a) (West 2002) (including aggravated sexual assault under penal code section 22.021 and indecency by contact under penal code section 21.11(a)(1)); Tex. Pen. Code Ann. §§ 21.11(a)(1), 22.021. The court then conducted a disposition hearing to determine J.H.’s punishment. The court found that J.H. was in need of rehabilitation and that it would be in his best interest to be committed to the care, custody, and control of the Texas Youth Commission. Because the trial court found that J.H. engaged in a violation of the offense of aggravated sexual assault, the court committed him to the Texas Youth Commission for a determinate sentence of twenty-five years. See Tex. Fam.Code Ann. § 54.04(d)(3) (West Supp.2004); Tex. Hum. Res.Code Ann. § 61.084 (West Supp. 2004).

In five points of error, J.H. appeals his adjudication for several of the offenses and the imposition of the twenty-five-year determinate sentence, arguing that the trial court erred by (1) assessing a determinate sentence after finding that he committed the offense of indecency with a child by exposure because that offense is not one for which a determinate sentence can be imposed; (2) finding that he committed the offense of indecency with S.H. by contact because he had established an affirmative defense to that charge; (3) finding that he committed the offense of indecency with S.H. by exposure because he had established an affirmative defense to that charge; (4) finding that he had committed the offense of indecency with D.H. by contact because the charge, as pled in the petition, is a lesser-included offense of aggravated sexual assault, and thus his rights have been violated under the Texas Constitution’s protections against double jeopardy; and (5) finding that he had committed the offense of indecency with D.H. by contact because the charge, as pled in the petition, is a lesser-included offense of aggravated sexual assault, and thus his rights have been violated under the United States Constitution’s protections against double jeopardy.

DISCUSSION

Determinate sentence

In his first point of error, J.H. argues that the trial court erred in assessing a determinate sentence after finding that he engaged in two counts of indecency with a child by exposure because that offense is not among the listed offenses for which a determinate sentence can be ordered. See Tex. Fam.Code Ann. § 53.045(a). The offenses for which a determinate sentence can be imposed include the following; aggravated sexual assault under penal code section 22.021 and indecency with a child by contact under penal code section 21.11(a)(1). See id.; Tex. Pen.Code Ann. §§ 21.11(a)(1), 22.021. Although we agree with J.H. that the offense of indecency with a child by exposure is not among the listed offenses, both of the other offenses for which he was adjudicated — aggravated sexual assault and indecency with a child by contact — are listed in section 53.045(a) of the family code, allowing for a determinate sentence:

[I]f the court or jury found at the conclusion of the adjudication hearing that the child engaged in delinquent conduct that included a violation of a penal law listed in Section 53.045(a) ... the court or jury may sentence the child to commitment in the Texas Youth Commission with a possible transfer to the institutional division or the pardons and paroles division of the Texas Department of Criminal Justice for a term of: (A) not more than 40 years if the conduct constitutes: ... a felony of the first degree.

Tex. Fam.Code Ann. § 54.04(d)(3). Based on a plain reading of the statute, we conclude that even one violation of one penal law listed in section 53.045(a) of the family code is sufficient for the imposition of a determinate sentence. Here, J.H. was found to have engaged in both aggravated sexual assault and indecency with a child by contact, both of which are listed in section 53.045(a). See Tex. Pen.Code Ann. § 53.045(a). That he also engaged in another offense — one not listed in section 53.045(a) — does not prohibit the assessment of a determinate sentence. We overrule J.H.’s first point.

Affirmative defense

In points of error two and three, J.H. argues that the trial court erred in finding that he had committed the offenses in paragraphs seven and ten of the petition, alleging indecency with a child by contact and by exposure as to S.H., because the evidence established an affirmative defense to those offenses. A defendant must prove an affirmative defense by a preponderance of the evidence. Id. § 2.04(d) (West 2003). When a court of appeals is asked to consider whether an appellant has proven an affirmative defense at trial, “the correct standard of review is whether after considering all the evidence relevant to the issue at hand, the judgment is so against the great weight and preponderance of the evidence so as to be manifestly unjust.” Meraz v. State, 785 S.W.2d 146, 154-55 (Tex.Crim.App.1990). It is an affirmative defense to the offense of indecency with a child if the evidence establishes that the actor:

(1) was not more than three years older than the victim and of the opposite sex;
(2) did not use duress, force, or a threat against the victim at the time of the offense; and
(3) at the time of the offense:
(a) was not required under Chapter 62, Code of Criminal Procedure, to register for life as a sex offender; or
(b) was not a person who under Chapter 62 had a reportable conviction or adjudication for an offense under this section.

Tex. Pen.Code Ann. § 21.11(b). J.H. first contends that because the court made a finding that he had established the defense as to paragraph eight of the petition, which alleged indecency with S.H. by contact by causing S.H. to touch J.H.’s genitals, the first and third elements of the defense should also be applied to paragraphs seven and ten, which also alleged indecency by contact with S.H. and only differed in the manner and means alleged. We agree.

After closing arguments, the trial court made the finding that the affirmative defense had been established as to paragraph eight and did not, therefore, adjudicate J.H. for that offense. The first element of the affirmative defense — going to the age difference between J.H. and S.H. — and the third element — whether J.H. was a sex offender or had a prior reportable adjudication for indecency with a child — are not offense-specific. Therefore, if J.H. met his burden as to these two elements of the affirmative defense for one allegation of indecency with S.H., then he met his burden on the two elements as to any other allegations of indecency with that same child. Thus, we must consider the evidence in the record on the second element, the use of force or threat. If the failure to find on this element of the affirmative defense for paragraphs seven and ten was “so against the great weight and preponderance of the evidence as to be manifestly unjust,” Meraz, 785 S.W.2d at 154-55, then we must strike the findings of true for those offenses.

As to the allegation in paragraph seven, that J.H. touched the breast of S.H., the State cites the following evidence in the record as supporting the use of force by J.H.: that he took her shirt, lifted it up, and stuck his hand under it; that he “touched the things a lady has [her breasts], and then he kissed [her] on the lips”; that he “just grabbed [her] arms and kissed [her]”; and that she told him she did not want him to kiss her. It is not clear from the evidence in the record whether J.H.’s alleged kissing of S.H. occurred as part of the same incident as the alleged touching of her breasts, but likely it did not because the alleged kissing appears to have occurred in the children’s living room, while the breast-touching occurred in J.H.’s room. Additionally, a forensic interviewer at the Children’s Advocacy Center testified that S.H. had told her J.H. had taken her hand, made her put it on his penis, and had moved her hand along his penis. It is also not clear from the record whether this was connected with the breast-touching incident. Evidence cited by J.H. consists of S.H.’s testimony that J.H. had never forced her to comply with his requests; that she complied because he promised to give her candy if she did so; and that one time when she said “no” to a request, he left her alone. Taken together, we conclude that this evidence does not indicate that any force or threat was used when J.H. allegedly touched S.H.’s breasts. Although a fact-finder could reasonably conclude that force might have been used when J.H. kissed S.H. or caused her to touch his penis, the evidence is too attenuated to extrapolate that force was used with respect to the breast-touching incident. Except for J.H.’s alleged lifting of S.H.’s shirt, there is no evidence of any force, and we conclude that lifting a shirt, alone, does not constitute the use of force or threat. We hold that J.H. established the affirmative defense as to this offense, sustain his second point, and strike the trial court’s finding of true as to paragraph seven.

Unlike the offense in paragraph seven, the State does not cite any evidence in the record to support the use of force by J.H. with respect to paragraph ten, alleging that J.H. exposed his genitals in S.H.’s presence, and we have found none in our review. We therefore hold that the failure to find that J.H. had established an affirmative defense for paragraph ten was “so against the weight and preponderance of the evidence as to be manifestly unjust” and accordingly sustain J.H.’s third point. The trial court erred in finding that J.H. committed this offense, and we strike the court’s finding of true as to paragraph ten.

Double jeopardy

In points of error four and five, J.H. asserts that his federal and state constitutional rights not to be put into jeopardy more than once for the same criminal act of conduct were violated by the trial court’s finding of true for the offenses of aggravated sexual assault as to D.H. and indecency with a child by exposure as to the same child. See U.S. Const, amends. V, XIV; Tex. Const, art. I, § 14; North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), overruled on other grounds by Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989) (constitutional prohibition against double jeopardy protects against second prosecution for same offense after either conviction or acquittal and multiple punishments for same offense). J.H. does not separately argue the state and federal constitutional claims or argue that the Texas double-jeopardy clause differs in any significant way from the Fifth Amendment. We therefore overrule point of error four — the state claim— and will consider the double-jeopardy issue under the federal constitution. Hutchins v. State, 992 S.W.2d 629, 630 (Tex.App.Austin 1999, pet. ref'd) (citing Queen v. State, 940 S.W.2d 781, 783 (Tex.App.-Austin 1997, pet. ref'd)).

The principal test for determining whether two offenses are the same for the purposes of double jeopardy were set out by the U.S. Supreme Court in Blockburger v. United States:

The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.

284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Greater and lesser included offenses are the “same” offense for double-jeopardy purposes. Parrish v. State, 869 S.W.2d 352, 354 (Tex.Crim.App.1994) (citing Brown v. Ohio, 432 U.S. 161, 169, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977)). Texas law describes “includedness” in much the same way that Blockburger describes “sameness.” Id. In Texas, an offense is considered to be included within another if, among other things, “it is established by proof of the same or less than all of the facts required to establish the commission of the offense charged.” Tex.Code Crim. Proc. Ann. art. 37.09(1) (West 1981); Parrish, 869 S.W.2d at 354. With respect to sexual offenses, the Texas Court of Criminal Appeals has determined that the legislature intended to punish separate acts, even though such acts might be in close temporal proximity, and has rejected grouping aggravated sexual assaults “by transaction.” See Vick v. State, 991 S.W.2d 830, 833 (Tex.Crim.App.1999). Thus, sexual offenses that involve separate acts, even though they fall under the same statute, are not considered the “same” offense under the Blockburger test because they do not involve the same conduct. Id. The court of criminal appeals has “long considered more than merely statutory elements to be relevant” to the sameness and includedness analysis:

We acknowledge, for example, that other critical elements of an accusatory pleading, such as time, place, identity, manner and means, although not statutory, are germane to whether one offense includes another under Texas law and to whether several offenses are the same for jeopardy purposes. [Citations omitted.] We likewise think ... that the essential elements relevant to a jeopardy inquiry are those of the charging instrument, not of the penal statute itself. Statutory elements will, of course, always make up a part of the accusatory pleading, but additional non-statutory allegations are necessary in every case to specify the unique offense with which the defendant is charged.

Parrish, 869 S.W.2d at 854.

J.H. cites Parrish to support his argument that a court is to look solely at the petition to determine whether one offense is a lesser-included offense of another. In this vein, he argues, because paragraph five alleged generally that J.H. “touched the genitals of D.H.,” without specifying the manner of the touching (i.e., with his fingers), that this allegation could be viewed on the face of the petition as being a lesser-included offense of the allegation in paragraph four that J.H. “caused D.H.’s sexual organ to touch his mouth.” The argument is that the touching of D.H.’s genitals with his mouth could also fall under the unspecified genital “touching” alleged in paragraph four. Although this is a tempting argument, Texas appellate courts have analyzed double-jeopardy issues in the context of sexual-assault cases with a broader brush, considering not only the bare charging instruments but, more importantly, the evidence adduced at trial. See Ochoa v. State, 982 S.W.2d 904, 908 (Tex.Crim.App.1998); Hutchins, 992 S.W.2d at 633.

In Ochoa, the court of criminal appeals looked to the evidence adduced at trial to determine whether the appellant had committed two separate offenses or only one. It held that the appellant’s convictions for both aggravated sexual assault and indecency with a child by contact were in error because “the evidence at trial showfed] that only one offense was committed” when appellant “put his thing in [the child’s] butt.” See Ochoa, 982 S.W.2d at 908 (“[A]ppellant was shown in this case to have committed one act which could be subject to two different interpretations.”). The evidence was enough to convict for aggravated sexual assault, but because the act of penetration was the only act committed by the appellant, indecency with the child by contact was a lesser-included offense. Id.

Similarly, in Hutchins, this Court looked to the evidence adduced at trial to determine whether the appellant’s double-jeopardy rights had been violated but, instead, concluded that they had not. We held that when the evidence showed that appellant touched the child’s genitals with his fingers before he penetrated her with his penis, the indeceney-with-a-child conviction was not a lesser-included offense of the aggravated-sexual-assault conviction, despite the indictment’s failure to specify the manner of the appellant’s touching:

If the evidence also showed that the only act of sexual contact committed by appellant ... was the contact incident to appellant’s penetration of L.M. with his penis, or if the court’s jury charge had required the jury to find that appellant touched L.M. with his penis, we would also agree with appellant that he could not be convicted for both aggravated sexual assault and indecency with a child by contact. See Ochoa, 982 S.W.2d at 907-08. But neither the evidence nor the charge was so limited. L.M. testified that appellant touched her genitals with his fingers before penetrating her with his penis. The jury charge, tracking the indictment, required the jury to find only that appellant touched L.M.’s genitals with the requisite intent; the charge did not require a finding that appellant touched L.M. with his penis. Although the two acts were committed in close temporal proximity, appellant’s touching of L.M.’s genitals with his fingers was a separate and distinct act from his penetration of her female sexual organ with his penis. Because appellant has not shown that his conviction for indecency with a child by contact was based on the same conduct underlying his conviction for aggravated sexual assault of a child, his contention that these convictions constitute multiple punishments for the same offense is without merit.

Hutchins, 992 S.W.2d at 633. Here, the evidence showed that J.H. touched D.H.’s genitals with his fingers, a separate offense from causing her genitals to touch his mouth. Thus, J.H. has not shown that his adjudication of guilt for the offense of indecency with D.H. by contact was based on the same conduct underlying his offense for aggravated sexual assault against D.H. We conclude, therefore, that Hutchins is directly on point, and we decide J.H.’s fifth point in accordance with Ochoa’s direction to look to the evidence adduced at trial. We overrule J.H.’s fifth point of error.

Harm analysis

J.H. asserts that if we have found error in the disposition phase of his proceeding, we must use the criminal-harm analysis of appellate rule of procedure 44.2 to review that error and remand this cause for a new disposition hearing. See Tex.R.App. P. 44.1, 44.2; In re D.V., 955 S.W.2d 379, 380 (Tex.App.-San Antonio 1997, no writ) (‘When the State proceeds with determinate sentencing, the criminal-harm analysis applies, but when the State proceeds with indeterminate sentencing, the civil-harm analysis applies.”); In re D.Z., 869 S.W.2d 561, 565-66 (Tex.App.-Corpus Christi 1993, writ denied); see also In re L.R., 84 S.W.3d 701, 707 (Tex.App.-Houston [1st Dist.] 2002, no pet.); In re K.W.G., 953 S.W.2d 483, 488 (Tex.App.-Texarkana 1997, pet. denied). The State contends that, rather, the civil-harm analysis should apply and that the error, if any, probably did not cause the rendition of an improper judgment. See Tex.R.App. P. 44.1; In re C.P., 925 S.W.2d 151, 152 (Tex.App.-Austin 1996, pet. denied).

The supreme court has determined that “[j]uvenile proceedings are quasi-criminal in nature” but has not decided whether criminal rules for harm analysis should be applied on appeal. See In re D.I.B., 988 S.W.2d 753, 756 (Tex.1999) (applying civil-harm-analysis standard when appellant did not challenge State’s use of that standard and expressly reserving question of which harm standard should apply). This Court has applied the civil-harm analysis to review error in a non-determinate-sentencing case. See In re C.P., 925 S.W.2d at 152. However, because of the quasi-criminal nature of juvenile proceedings and the possibility with a determinate sentence of imprisonment that extends into adulthood, we agree with our sister courts in San Antonio, Corpus Christi, Texarkana, and the First District in Houston that the criminal-harm analysis should govern in juvenile appeals concerning the imposition of a determinate sentence. See Tex.R.App. P. 44.2.

Under a criminal-harm analysis, constitutional error is governed by Rule 44.2(a), and non-constitutional error is governed by 44.2(b). See id. J.H. relies on In re G.A.O. to ask that we remand this cause for a new disposition hearing, insisting that it is impossible to tell whether the offenses in paragraphs seven and ten contributed to the punishment. But In re G.A.O. involved a fundamental constitutional right — appellant’s adjudication for both an offense and a lesser-included offense, violating double-jeopardy protections. See 854 S.W.2d 710, 716 (Tex.App.-San Antonio 1993, no writ). We have held that here there was no double-jeopardy violation. The only error we have found in this case is the trial court’s finding of true for paragraphs seven and ten, when J.H. had established an affirmative defense to those charges. We hold that this error is non-constitutional. See Mauldin v. Texas State Bd. of Plumbing Exam’rs, 94 S.W.3d 867, 872 (Tex.App.-Austin 2002, no pet.) (statutory affirmative defenses are not “enshrined as fundamental rights in the constitution”). Thus, we must disregard the error unless it “affect[s] substantial rights.” See Tex.R.App. P. 44.2(b). A substantial right is affected when the error had a “substantial and injurious effect on the jury’s verdict.” Morales v. State, 32 S.W.3d 862, 867 (Tex.Crim.App.2000) (citing King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997)). We must examine the record as a whole when conducting a harm analysis. Id. A conviction for non-constitutional error will not be overturned if an appellate court has “fair assurance that the error did not influence the jury, or had but a slight effect.” Id. (quoting Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App.1998)).

From the record, we cannot conclude what effect, if any, these additional two findings had on the court’s imposition of a twenty-five-year determinate sentence. Although we can fairly conclude that the findings did not contribute to the imposition of the determinate sentence itself, because the aggravated sexual assault alone warranted such a disposition, we cannot satisfy ourselves that the two additional findings did not contribute to the length of that sentence. It is possible that the sentence is longer than it would have been had the findings as to paragraphs seven and ten been stricken. We resolve such doubt in the juvenile’s favor and remand for a new disposition hearing.

CONCLUSION

We strike those portions of the adjudication order that find paragraphs seven and ten of the petition true, modify the adjudication order accordingly, and affirm the order as modified. Because we cannot conclude what effect the additional two findings had on the length of J.H.’s determinate sentence, we reverse the disposition order and remand this cause to the district court for a new disposition hearing.

      . A determinate sentence places a juvenile under the custody and control of the Texas Youth Commission with several possible outcomes: release with supervision from the Commission on the juvenile’s nineteenth birthday; transfer on the juvenile's twenty-first birthday to the pardons and paroles division of the Texas Department of Criminal Justice to serve the remainder of the sentence on parole; transfer at any time to the institutional division of the Texas Department of Criminal Justice to serve the remainder of the determinate sentence; or release prior to completion of the sentence. See Tex. Hum. Res.Code Ann. § 61.084 (West Supp.2004). An indeterminate sentence, on the other hand, commits a juvenile to the Commission until at most the juvenile's twenty-first birthday. See id.

      . Indeed, in finding that J.H. established the affirmative defense as to paragraph eight, the court implicitly found that J.H. had not used force when he allegedly caused S.H. to touch his penis, despite the forensic interviewer’s testimony.


author: JOHN F. ONION, JR., Justice

text:
    Jason Andrew SALDANA aka Jason Andrew Singer, Appellant, v. The STATE of Texas, Appellee.
    No. 03-03-00545-CR.
    Court of Appeals of Texas, Austin.
    March 18, 2004.

      Bobby D. Barina, Killeen, for Appellant.
    James T. Russell, Administrative Assistant, Belton, for Appellee.
    Before Chief Justice LAW, Justices PURYEAR and ONION.

       Before John F. Onion, Jr., Presiding Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1998).

   OPINION

JOHN F. ONION, JR., Justice

(Retired).

Appellant Jason Andrew Saldana appeals his conviction for possession of marihuana in an amount less than five pounds but more than four ounces. See Tex. Health & Safety Code Ann. § 481.121(a), (b)(3) (West 2003). Appellant waived trial by jury and entered a plea of guilty before the trial court. The trial court assessed punishment at two years’ confinement in state jail.

Point of Error

Appellant advances a single point of error — that the trial court abused its discretion when it refused to allow appellant to withdraw his plea of guilty.

Background and Facts

On July 18, 2003, appellant appeared before Judge Martha J. Trudo while represented by retained counsel. He waived trial by jury and entered a plea of guilty to the indictment. Appellant told Judge Tru-do that he was freely and voluntarily pleading guilty because he was guilty. The trial court carefully admonished appellant of the consequences of his plea, and determined him to be mentally competent. See Tex.Code Crim. Proc. Ann. art. 26.13 (West Supp.2004). Appellant’s judicial confession, tracking the language of the indictment, was entered into evidence. The trial court made a finding that the evidence was sufficient to support the plea of guilty. See id. art. 1.15 (West Supp. 2004). Appellant requested a presentence investigative report. See id. art. 42.12, § 9(a), (g) (West Supp.2004).

On August 28, 2003, appellant appeared with his counsel before Judge Joe Carroll, who had received appellant’s presentence investigative report. The State indicated that it had no further evidence to offer. Appellant called his mother, Heather Sal-dana, as a witness. She related that she was in poor health suffering from multiple sclerosis, had poor vision, and needed appellant for healthcare and financial purposes.

The twenty-six-year-old appellant testified in his own behalf. When asked on direct examination what happened on the day of the offense, appellant unveiled an exculpatory scenario. Appellant stated that on October 4, 2002, he was working from his home installing stereos in motor vehicles; that on that date a man, unidentified except as “a military person,” did not like the stereo appellant was to install in the man’s pickup truck. As a result, they drove in the pickup truck to a shop in Killeen to select another stereo. At the shop’s counter, the “military person” attempted to exchange ecstasy pills, contraband, in payment for a stereo selected. An argument ensued between appellant and the “military person,” and they moved outside the shop. There, the “military person” acknowledged that he was a drug dealer on a regular basis; that the night before a shotgun discharged in his apartment; and that all the drugs in the apartment had been moved to his truck for fear the police would arrive at the apartment. Appellant asked to be taken home. Within three blocks from the shop, the truck was stopped because of a traffic offense.

Appellant stated that a police officer asked him to step out of the truck. The officer started searching the truck and pulled out of the truck a McDonald’s bag, saying it was full of marihuana. The officer also found a three-foot pipe, a gun, and “different things.”

At jail, appellant reported that he was told that he had been arrested for possession of marihuana because the McDonald’s bag had been found on his side of the truck and at his feet. The “military person” told the police that he knew nothing about what had been found in the truck and appellant must have “snuck” the items into the truck. In response, appellant told the officers that they had overlooked the ecstasy pills that the “military person” had hidden in the air vent of the vehicle. Appellant related that a detective told him that if the canister of pills was found, the charges against appellant would be dismissed. Later, appellant learned from another officer that the pills were found, but the charges were not dismissed.

On cross-examination, appellant admitted that at the time of the traffic stop, he had given the police officer a false name and a false date of birth because he panicked under the circumstances. Appellant acknowledged that all the convictions listed in the presentence report were correct. Appellant stated that he had stolen “a bunch” of motor vehicles in Nevada and “did time there”; that he had two Texas convictions for burglary of a motor vehicle, which he “did.” He agreed that he served thirty days in the Coryell County jail for misdemeanor theft, but was framed by his “mother’s nine-year relationship” who did not want him to come home. When asked about a Texas forgery conviction, appellant related that a woman inquired if he could forge “something” and he said “no,” but she got six months’ probation, and he served a year in state jail for “forgery by knowledge.” When the prosecutor asked if the instant case was like the forgery case — that he was not guilty but knew the marihuana was in the truck — appellant’s counsel objected, ‘Well, your Honor, that’s not true. We’ve pled guilty under the facts and circumstances of the case.... ” The objection was overruled and the cross-examination continued. Appellant then stated that he was not guilty but knew the marihuana was in the truck, and he was with the wrong person at the wrong time.

Subsequently, when the prosecutor inquired if appellant was guilty of anything, an objection was interposed. At this point, the trial court began an inquiry of appellant as to his plea. In response, appellant told the trial court that he had discussed the indictment’s allegations with his attorney and knew that he was pleading guilty to intentionally and knowingly possessing marihuana. In answer to another question, appellant responded: “Yes, sir, I do want to plead guilty.”

After further cross-examination, the trial court returned to the subject matter of its earlier interrogation. Appellant assured the trial court that Judge Trudo had admonished him of the consequences of his plea, that he had freely and voluntarily entered his guilty plea, and that he was pleading guilty because he was guilty. The trial court stated that appellant seemed to be pleading guilty but testifying to the contrary. At this point, appellant’s counsel asked to withdraw appellant’s plea of guilty, stating that “the prosecutor caused it.” After a colloquy at the bench, the trial court refused to allow the plea to be withdrawn.

In argument, appellant’s counsel stated:

I think that because of the health of his mother he is deserving of this chance [deferred adjudication] or if you feel that he is not, Your Honor, you do what you want to. But the man has entered his plea freely and voluntarily.

The trial court heard the State’s argument and assessed punishment.

A Unitary Trial

Before any discussion of the applicable law, we observe that the instant proceeding was a unitary trial, not a bifurcated one where the guilt/innocence and penalty stages are conducted separately. Prior to the 1965 Texas Code of Criminal Procedure, all criminal trials before the court or the jury, regardless of the plea, were unitary trials. See Duhart v. State, 668 S.W.2d 384, 386 n. 3 (Tex.Crim.App.1984). All trials remain unitary under the code, and bifurcation is unauthorized except for cases which are tried before a jury on a plea of not guilty. Tex.Code Crim. Proc. Ann. art. 37.07, § 2(a) (West Supp.2004). Barfield v. State, 63 S.W.3d 446, 449 (Tex.Crim.App.2001); Basaldua v. State, 481 S.W.2d 851, 853 (Tex.Crim.App.1972).

Thus, bifurcation has no application where a defendant waives trial by jury and enters a plea of guilty or nolo contendere before the court. Barfield, 63 S.W.3d at 450; Ricondo v. State, 634 S.W.2d 837, 842 (Tex.Crim.App.1981); Morales v. State, 416 S.W.2d 403, 405 (Tex.Crim.App.1967). Bifurcation does not occur in a jury-waived trial even when the trial court employs procedures characteristic of bifurcation. 43 George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice and Procedure § 38.14 (Supp.2003) (hereinafter Dix). Barfield recognized that it is common practice in jury-waived cases when the plea of guilty is before the trial court for the proceedings to recess to allow a community supervision officer to prepare a presentence investigative report before punishment is assessed. 63 S.W.3d at 450; see also Tex.Code Crim. Proc. Ann. art. 42.12, § 9 (West Supp.2004); Bean v. State, 563 S.W.2d 819, 821-22 (Tex.Crim.App.1978) (Onion, P.J., concurring). “While that procedure may be thought of by the participants as a bifurcated trial, it is not, but is rather an extended unitary trial punctuated by a recess in its middle.” Dix, § 38.14; see also Barfield, 63 S.W.3d at 450-51.

The instant trial took on some characteristics of a bifurcated trial but was nevertheless a unitary trial. It is also important to remember in discussing the withdrawal of a guilty plea that the instant case did not involve a jury. When a jury is in the box, different rules are applicable regardless of a defendant’s plea. See Dix, §§ 34.81-34.90 (Plea Withdrawal). The following discussion of the legal issue of plea withdrawal, however, involves only a plea of guilty before the court in a unitary trial.

Discussion

A liberal practice has prevailed in Texas concerning the withdrawal of a guilty plea. Jackson v. State, 590 S.W.2d 514, 515 (Tex.Crim.App.1979). A defendant may withdraw his guilty plea as a matter of right without assigning any reason until the judgment has been pronounced or the case has been taken under advisement. Id.; Moreno v. State, 90 S.W.3d 887, 889 (Tex.App.-San Antonio 2002, no pet.); Taplin v. State, 78 S.W.3d 459, 461 (Tex.App.-Austin 2001, no pet.); Watson v. State, 974 S.W.2d 763, 765 (Tex. App.-San Antonio, 1998, pet. refd).

When, however, a defendant decides to withdraw his guilty plea after the trial court takes the case under advisement or pronounces judgment, the withdrawal of such plea is within the sound discretion of the trial court. Id.; McWherter v. State, 571 S.W.2d 312, 313 n. 2 (Tex.Crim.App.1978); Moreno, 90 S.W.3d at 889; Thompson v. State, 852 S.W.2d 268, 270 (Tex.App.-Dallas 1993, no pet.).

In Harling v. State, 899 S.W.2d 9 (Tex.App.-San Antonio 1995, pet. ref'd), the court stated:

It is well-settled law that after a court has admonished the defendant, received the guilty plea and received the evidence, passing the case for a presen-tence investigation is “taking the case under advisement.” Jackson v. State, 590 S.W.2d 514, 515 (Tex.Crim.App. [Panel Op.] 1979); DeVary v. State, 615 S.W.2d 739, 740 (Tex.Crim.App. [Panel Op.] 1981); Davis v. State, 861 S.W.2d 25, 27 (Tex.App.-Houston [14th Dist.] 1993); Thompson v. State, 852 S.W.2d 268, 270 (Tex.App.-Dallas 1993, no pet.). Following these cases, we find that here the trial court had taken the case under advisement when it reset the case on November 15, 1993 for a presentence investigation.

Id. at 12; see also Holland v. State, 112 S.W.3d 251, 254 n. 1 (Tex.App.-Austin 2003, no pet.); Moreno, 90 S.W.3d at 889; Coronado v. State, 25 S.W.3d 806, 809 (Tex.App.-Waco 2000, pet. ref'd); Watson v. State, 974 S.W.2d 763, 765 (Tex'App.-San Antonio 1998, pet. ref'd); Rivera v. State, 952 S.W.2d 34, 35 (Tex.App.-San Antonio 1997, no pet.); Stone v. State, 951 S.W.2d 205, 207 (Tex.App.-Houston [14th Dist.] 1997, no pet.).

Thus, appellant did not have an absolute right to withdraw his guilty plea because his request came too late or was untimely because the case had been taken under advisement at the July 18, 2003, hearing. See Holland, 112 S.W.3d at 254 n. 1. Moreover, and most importantly, appellant does not assert the claim or brief the contention that he was denied the right to timely withdraw his guilty plea because the case had not been taken under advisement. Appellant advances only the contention that the trial court abused its discretion in refusing to permit him to withdraw his plea. Appellant cites only DeVary v. State, 615 S.W.2d 739, 740 (Tex. Crim.App.1981). Appellant has not cited other authorities or made a clear and concise argument that the trial court abused its discretion in accordance with his stated point of error. There has been no compliance with our briefing rules. See Salazar v. State, 38 S.W.3d 141, 147 (Tex.Crim.App.2001); Vuong v. State, 830 S.W.2d 929, 940 (Tex.Crim.App.1992); Murchison v. State, 93 S.W.3d 239, 251 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd); King v. State, 17 S.W.3d 7, 23 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd).

Although appellant has not adequately briefed the point, we observe that an abuse of discretion will be found only when the trial court’s decision is so clearly wrong as to be outside the zone of reasonable disagreement. Ellis v. State, 86 S.W.3d 759, 761 (Tex.App.-Waco 2002, pet. refd); Torrance v. State, 59 S.W.3d 275, 277 (Tex.App.-Fort Worth 2001, pet. refd). In determining whether a trial court abused its discretion, we consider whether the trial court acted without reference to guiding rules and principles; that is, whether the trial court acted arbitrarily and unreasonably. Lyles v. State, 850 S.W.2d 497, 502 (Tex.Crim.App.1993); Murchison, 93 S.W.3d at 249. The mere fact that a reviewing court may have decided an issue differently than the trial court within its discretionary authority is not an abuse of discretion. Skeen v. State, 96 S.W.3d 567, 575 (Tex.App.-Texarkana 2002, pet. stricken). Under the circumstances, even if appellant had properly presented the issue for review, we find the trial court did not abuse its discretion in refusing to permit the withdrawal of the plea. The point of error is overruled.

The judgment is affirmed.

      . Misdemeanor cases tried in justice and municipal courts before a jury on pleas of not guilty are exempt from bifurcation by virtue of the statute. Tex.Code Crim. Proc. Ann. art. 37.07, § 2(a) (West Supp.2004).

      . Following the advent of the 1965 Texas Code of Criminal Procedure, the trial court no longer has an obligation in cases where there is no jury to sua sponte withdraw the guilty plea, even if evidence is presented that makes evident the innocence of the defendant or reasonably and fairly raises an issue thereof. See Moon v. State, 572 S.W.2d 681, 682 (Tex.Crim.App. 1978); see also Thomas v. State, 599 S.W.2d 823, 824 (Tex.Crim.App. 1980); 43 George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice and. Procedure § 34.83 (2001). The trial court here had no sua sponte obligation to withdraw appellant's plea in view of appellant’s ■ testimony.

      .In DeVary v. State, 615 S.W.2d 739, 740 (Tex.Crim.App.1981), the court wrote:
      However, where the defendant decides to withdraw his guilty plea after the trial judge takes the case under advisement or pronounces judgment, the withdrawal of such plea is within the sound discretion of the trial court. McWherter v. State, 571 S.W.2d 312 (Tex.Cr.App.1978).

      .Appellant does cite Jackson v. State, 590 S.W.2d 514, 515 (Tex.Crim.App.1979) and Taplin v. State, 78 S.W.3d 459, 461 (Tex.App.Austin 2001, no pet.), for the proposition that a defendant may withdraw his guilty plea as a matter of right until judgment is pronounced or the court takes the case trader advisement. These cases were not cited, however, to support the claim of abuse of discretion.


author: JAN P. PATTERSON, Justice.

text:
    USA WASTE SERVICES OF HOUSTON, INC., Appellant, v. Carole Keeton STRAYHORN, Comptroller of Public Accounts of the State of Texas, and Greg Abbott, Attorney General of the State of Texas, Appellees.
    No. 03-03-00515-CV.
    Court of Appeals of Texas, Austin.
    March 18, 2004.

      Mark W. Eidman, Ray Langenberg, R. Eric Hagenswold, Scott, Douglass & McConnico, LLP, Austin, for appellant.
    Scott D. Simmons, Assistant Attorney General, Taxation Division, Austin, for ap-pellees.
    Before Chief Justice LAW, Justices PATTERSON and PURYEAR.
   OPINION

JAN P. PATTERSON, Justice.

In this tax protest suit, USA Waste Services of Houston, Inc. (“USA”) appeals from the grant of summary judgment in favor of Carole Keeton Strayhorn, Comptroller of Public Accounts, and Greg Abbott, Attorney General of the State of Texas (collectively, “Comptroller”). In one issue, USA, a waste removal company, contends that it is entitled to a sales tax refund under the sale-for-resale exemption. USA seeks a refund of sales taxes paid on steam cleaning services that USA ordered after spilling waste on customers’ property. For the reasons set forth below, we affirm the judgment of the district court.

BACKGROUND

During the tax audit period for this case, January 1, 1994 through March 31, 1997, USA entered into contracts with commercial customers to remove their waste. In the course of the waste removal, USA from time to time spilled liquid onto a customer’s property, either from a trash receptacle or from a USA truck. When a customer called to complain about a spill, USA hired AA Mobile Steam Cleaning to clean up the spill. USA hired AA because it did not own steam cleaning equipment. All of the steam cleaning relevant to this case occurred on the property of USA customers.

After an audit of USA’s sales tax reports for January 1, 1994 through March 31, 1997, the Comptroller assessed sales tax for USA’s purchases of steam cleaning services performed on customers’ property. USA paid the sales tax under protest, then filed suit in a Travis County district court. See Tex. Tax Code Ann. § 112.052 (West 2002) (suit after payment under protest). In its suit, USA claimed entitlement to a refund of $5,570.06 in sales taxes because it resold the steam cleaning services to its customers. See id. §§ 151.006(1) (West 2002) (definition of “sale for resale”), .302(a) (West 2002) (sale-for-resale exemption). Both parties filed traditional motions for summary judgment based on statutory interpretation. USA argued that it was entitled to the sale-for-resale exemption and the Comptroller argued no entitlement. After a hearing, the district court rendered final judgment, granting the Comptroller’s motion for summary judgment and denying USA’s motion. In one issue, USA contends that because it is entitled to the sale-for-resale exemption for the steam cleaning services, the district court erred in granting the Comptroller’s motion for summary judgment and denying its own.

STANDARD OF REVIEW

Summary Judgment

The standards for review of a traditional summary judgment are well established: the movant must show there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. See Tex.R. Civ. P. 166a(c); Southwestern Elec. Poiver Co. v. Grant, 73 S.W.3d 211, 215 (Tex.2002); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985). Here, the parties rely on statutory provisions and administrative rules to support their entitlement to summary judgment. In general, matters of statutory construction are questions of law rather than issues of fact. City of Garland v. Dallas Morning News, 22 S.W.3d 351, 357 (Tex.2000).

Generally, a party cannot appeal the denial of a motion for summary judgment because it is an interlocutory order and thus not appealable. See Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625 (Tex.1996). However, when both parties move for summary judgment and the district court grants one motion and denies the other, the unsuccessful party may appeal both the prevailing party’s motion and the denial of its own. See Holmes v. Morales, 924 S.W.2d 920, 922 (Tex.1996). We review the summary judgment evidence presented by both sides, determine all questions presented, and render such judgment as the trial court should have rendered. Commissioners Court v. Agan, 940 S.W.2d 77, 81 (Tex.1997). We review the district court’s decision to grant summary judgment de novo. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994).

Statutory Construction

Because our analysis involves interpretation of statutory provisions and administrative rules, we employ well-settled principles of statutory construction. Statutory construction is a question of law, which we review de novo. Bragg v. Edwards Aquifer Auth., 71 S.W.3d 729, 734 (Tex.2002). We must ascertain and give effect to the legislature’s intent for the provision we are construing. See Fleming Foods v. Rylander, 6 S.W.3d 278, 284 (Tex.1999); Union Bankers Ins. Co. v. Shelton, 889 S.W.2d 278, 280 (Tex.1994); Calvert v. Texas Pipe Line Co., 517 S.W.2d 777, 780 (Tex.1974). The legislature’s intent is determined by reading the language used in the particular statute and construing the statute in its entirety. See In re Bay Area Citizens Against Lawsuit Abuse, 982 S.W.2d 371, 380 (Tex.1998); Taylor v. Firemen’s & Policemen’s Civil Serv. Comm’n, 616 S.W.2d 187, 190 (Tex.1981). We read every word, phrase, and expression in a statute as if it were deliberately chosen, and presume the words excluded from the statute are done so purposefully. See Gables Realty Ltd. P’ship v. Travis Cent. Appraisal Dist., 81 S.W.3d 869, 873 (Tex.App.-Austin 2002, pet. denied); City of Austin v. Quick, 930 S.W.2d 678, 687 (Tex.App.-Austin 1996) (citing Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 540 (Tex.1981)), aff'd, 7 S.W.3d 109 (Tex.1999); see also 2A Norman J. Singer, Sutherland Statutory Construction § 47.25 (6th ed. 2000) (stating that there is generally an inference that omissions from a statute are intentional).

Furthermore, we give serious consideration to an agency’s construction of a statute, as long as the construction is reasonable and does not contradict the plain language of the statute. Continental Cas. Co. v. Downs, 81 S.W.3d 803, 807 (Tex.2002) (citing Tarrant Appraisal Dist. v. Moore, 845 S.W.2d 820, 823 (Tex.1993)). We recognize that the legislature intends an agency created to centralize expertise in a certain regulatory area “be given a large degree of latitude in the methods it uses to accomplish its regulatory function.” Moore, 845 S.W.2d at 823. Courts, however, “do not defer to administrative interpretation in regard to questions which do not lie within administrative expertise, or deal with a nontechnical question of law.” Rylander v. Fisher Controls Int’l, Inc., 45 S.W.3d 291, 302 (Tex.App.-Austin 2001, no pet.) (quoting 2B Singer, supra § 49.04, at 23-24).

We construe the text of an administrative rule under the same principles as if it were a statute. Phillips Petroleum Co. v. Texas Comm’n on Envtl. Quality, 121 S.W.3d 502, 507 (Tex.App.-Austin 2003, no pet.) (citing Texas Gen. Indem. Co. v. Texas Workers’ Comp. Comm’n, 36 S.W.3d 635, 641 (Tex.App.-Austin 2000, no pet.)). We bear in mind that an administrative agency has the power to interpret its own rules, and its interpretation is entitled to great weight and deference. Id. The agency’s construction of its rule is controlling unless it is plainly erroneous or inconsistent. Id.

ANALYSIS

USA seeks a sales tax refund under the “sale for resale” provision of the tax code. The parties agree that the steam cleaning services are taxable but disagree about whether USA is responsible for paying the taxes. “The sale for resale of a taxable item is exempt from the taxes imposed by this chapter.” Tex. Tax Code Ann. § 151.302(a). The purpose of the sale-for-resale exemption is to prevent double taxation. Sharp v. Clearview Cable TV, Inc., 960 S.W.2d 424, 426 (Tex.App.-Austin 1998, pet. denied). “[T]ax exemptions are subject to strict construction since they are the antithesis of equality and uniformity.” Hilltop Village, Inc. v. Kerrville Indep. Sch. Dist., 426 S.W.2d 943, 948 (Tex.1968); see North Alamo Water Supply Corp. v. Willacy County Appraisal Dist., 804 S.W.2d 894, 899 (Tex.1991); Upjohn Co. v. Rylander, 38 S.W.3d 600, 606 (Tex.App.-Austin 2000, pet. denied). “An exemption cannot be raised by implication, but must affirmatively appear, and all doubts are resolved in favor of the taxing authority and against the claimant.” Bullock v. National Bancshares Corp., 584 S.W.2d 268, 272 (Tex.1979). Accordingly, the claimant has the burden of clearly demonstrating that it is entitled to the exemption. Strayhorn v. Raytheon E-Systems, Inc., 101 S.W.3d 558, 565 (Tex.App.-Austin 2003, pet. denied) (citing North Alamo Water Supply, 804 S.W.2d at 899).

A “sale for resale” is a sale of

tangible personal property or a taxable service to a purchaser who acquires the property or service for the purpose of reselling it ... in the normal course of business in the form or condition in which it is acquired or as an attachment to or integral part of other tangible personal property or taxable service.

Tex. Tax Code Ann. § 151.006(1). Here, USA claims a sale-for-resale exemption of a taxable service. Specifically, the steam cleaning company provided grounds cleaning, which is a real property service under the Comptroller’s rules. 34 Tex. Admin. Code § 3.356(a)(7) (2003). A real property service may be eligible for a sale-for-resale exemption if “the buyer intends to transfer the service as an integral part of a taxable service.” Id. § 3.356(c)(2) (2003). A service is considered to be an integral part of a taxable service “if the service purchased is essential to the performance of the taxable service and without which the taxable service could not be rendered.” Id. (emphasis added).

USA argues that the steam cleaning is essential to the performance of its contractual obligation to remove all of its customers’ waste, including waste that USA spills on the ground in the process of removal. The Comptroller counters that USA does not qualify for the exemption because ordering steam cleaning to clean up a spill that USA causes is not essential to the performance of USA’s waste removal service. It follows, the Comptroller urges, that USA is not required to hire a steam cleaner but chooses to do so to keep its customers happy after they complain about a spill. Thus, the Comptroller argues, USA’s business decision does not constitute an essential part of its waste removal service.

USA relies on the summary judgment affidavit of Rosa Castro, who worked in USA’s operations department during the audit period, to establish that the steam cleaning was an integral part of USA’s service. Castro averred: “When USA emptied a customer’s dumpsters or garbage cans, waste often spilled onto the property of its customers. It was practically impossible for USA to perform its waste removal services without spilling waste on its customers’ property.” She went on to state: “To remove the spilled waste and complete its job, USA had to steam clean the ground where the waste spilled. Since USA did not own steam cleaning equipment ..., it hired AA to steam clean the areas.”

Castro’s affidavit, when read in isolation, conveys that USA ordered steam cleaning services in most instances in which it provided services or, in any event, every time that it spilled waste. However, in a response to a request for admission, USA admitted that it had a property steam cleaned only when it made a spill but denied that it ordered steam cleaning every time that it spilled waste. And counsel for USA stated in oral argument that in the process of USA’s waste removal, waste “sometimes” fell onto the ground. Sharon Wilson, USA’s safety manager, averred in an affidavit, attached to the Comptroller’s motion, that USA “occasionally spills liquids” in the course of waste removal. She went on to state that if a customer complains about a spill, she orders steam cleaning.

USA argues that steam cleaning is an integral part of its waste removal service, but USA’s own admission and statement from its safety manager establish that USA did not order steam cleaning every time that a spill occurred and that spills occurred only “sometimes.” USA also asserts that it is entitled to the sale-for-resale exemption because the steam cleaning induces its customers to purchase USA’s services. But we find no evidence in the record supporting this assertion. Quite the opposite, one can conclude from Wilson’s affidavit that USA ordered steam cleaning only after a customer complained.

USA then argues that the Comptroller’s construction of the resale exemption in this case is inconsistent with its construction of the exemption in other contexts. Included as an appendix to USA’s brief is a letter from the Comptroller to an electrical subcontractor, who had asked whether its services to a general contractor were eligible for the sale-for-resale exemption. The Comptroller’s response was that “your company may accept a resale certificate from ABC Company in lieu of tax on your remodeling charges if ABC Company re-bills your services to [the] project as a part of taxable remodeling services.” USA asserts that its relationship with the steam cleaner is no different. However, other than the conclusory assertion in Castro’s affidavit that “USA resold AA’s steam cleaning services to USA’s customers in the same form or condition in which they were acquired,” USA presented no evidence that it rebills its customers for the steam cleaning. Further, USA’s waste removal contract with its customers contained no reference to steam cleaning.

USA additionally argues that because the Comptroller has granted sale-for-resale exemptions in instances in which the service or good involved was not essential to the overall service provided, USA is also entitled to the exemption. For example, the Comptroller allowed the exemption for shower slippers given to members of a country club and balloons given to customers at a Mexican restaurant. The Comptroller granted the exemption for the shower slippers because “the items are considered transferred to the care, custody, and control of the members.” As to the balloons, the Comptroller stated that “when dealing with restaurants ..., our agency’s policy is somewhat broader than what you would think a ‘sale for resale’ is.” It allowed the exemption if customers received the balloons as part of their meal but disallowed the exemption for balloons purchased for decoration only. The circumstances of those exemptions are not analogous to USA’s situation. The shower slippers fell directly within the statutory definition of resale of tangible personal property as part of a service, see Tex. Tax Code Ann. § 151.302(b) (West 2002); the balloons were exempt because of the Comptroller’s relaxed standard for restaurants.

USA also cites exemptions for third-party converter repair service ordered by a seller of cable service and flea killers added as part of a carpet cleaning service, both of which are cited in the Comptroller’s rules as examples of integral parts of the services. See 34 Tex. Admin. Code §§ 3.310(d) (carpet cleaning), .313(d)(1) (cable converter repair) (2003). Unlike USA’s waste spills, one can reasonably assume that the seller of the cable repair service did not cause the converter damage. As to the carpet cleaning, one can reasonably assume the customer received the flea killer as part of a package. Here, the steam cleaning occurred separately from USA’s waste removal service, only after a customer complained. The steam cleaning is more analogous to a construction company paying for a plant that it accidentally backed over with one of its trucks. The replacement of the plant is not an integral part of its service but instead is intended to make the customer whole.

The facts demonstrate that USA seeks a sale-for-resale exemption for steam cleaning that it ordered after a customer called to complain that USA had spilled waste on the customer’s property and not as the basis of any bargain between USA and the customer. On these facts, we conclude that the steam cleaning is not an integral part of the waste removal service that USA provides to its customers. See Tex. Tax Code Ann. § 151.006(1); 34 Tex. Admin. Code § 3.356(c)(2). Instead, USA ordered the steam cleaning to keep the business of an existing customer and to make the customer whole. Construing the exemption against the taxpayer, as we must, National Bancshares Corp., 584 S.W.2d at 272, we conclude that USA has not met the burden of clearly demonstrating that it is entitled to the exemption. North Alamo Water Supply, 804 S.W.2d at 899. Therefore, USA is not entitled to a refund under the sale-for-resale exemption for sales taxes paid on the steam cleaning services. We overrule USA’s issue and affirm the district court’s grant of summary judgment in favor of the Comptroller and denial of USA’s motion for summary judgment.

CONCLUSION

The steam cleaning that USA ordered from a third party is a real property service under the Comptroller’s rules. 34 Tex. Admin. Code § 3.356(a)(7). A real property service may be eligible for a sale-for-resale exemption if “the buyer intends to transfer the service as an integral part of a taxable service.” Id § 3.356(c)(2). Here, USA failed to demonstrate that steam cleaning ordered after USA spilled waste on a customer’s property is an integral part of the waste removal service that USA provides to its customers. Accordingly, we hold that USA is not entitled to a refund under the sale-for-resale exemption for sales taxes paid on the steam cleaning services. We affirm the judgment of the district court.

      . The Comptroller and the Attorney General are statutory defendants in tax protest suits. See Tex. Tax Code Ann. § 112.151(b) (West 2002). Because their interests do not diverge in this case, for convenience we will refer to them collectively as "Comptroller.”

      . Because there have been no material revisions to the relevant provisions of the tax code since the audit period, we will refer to the current code for convenience.

      . At oral argument, counsel for USA stated that Wilson's affidavit covered a larger spectrum of spills because the affidavit was prepared for the administrative hearing before the Comptroller. Nevertheless, we consider the affidavit for all purposes.

      . See Tex. Comptroller of Pub. Accounts, STAR System No. 9008L1045B01 (Aug. 31, 1990), available at http://aixtcp.cpa.state.tx.us/star/open-rec2.html.

        .See Tex. Comptroller of Pub. Accounts, STAR System Nos. 200206156T (June 6, 2002) (balloons), 9207L1183D10 (July 17, 1992) (shower slippers), available at http://aixtcp.cpa.state.tx.us/star/open-rec2.html.

      . Tex. Comptroller of Pub. Accounts, STAR System No. 9207L1183D10.

      . Tex. Comptroller of Pub. Accounts, STAR System No. 200206156T.

      . Id.