author: ANNE GARDNER, Justice.

text:
    CITY OF WILLOW PARK, Appellant, v. SQUAW CREEK DOWNS, L.P., Appellee.
    No. 2-04-397-CV.
    Court of Appeals of Texas, Fort Worth.
    May 19, 2005.

      Strasburger & Price, LLP and Rider Scott and Christine D. Roseveare, Dallas, TX, for Appellant.
    Lafont, Tunnell, Formby, Lafont & Hamilton and Brent Hamilton, Plainview, TX, for Appellee.
    PANEL B: HOLMAN, GARDNER, and McCOY, JJ.
   OPINION

ANNE GARDNER, Justice.

I. Introduction

In this case of first impression, we must decide whether a district court has jurisdiction over a rule 202 presuit discovery petition that concerns in part a dispute over which the legislature has conferred exclusive jurisdiction on a municipality and an administrative agency. Because we hold that the trial court does have jurisdiction under the facts presented by this case, we affirm the trial court’s order denying the City of Willow Park’s plea to the jurisdiction.

II. Factual and procedural background

Parker County’s Squaw Creek Downs, L.P. owns real property within the City of Willow Park and is served by Willow Park’s municipal water and sewer utilities. Willow Park refused to provide water service to Squaw Creek because of allegedly unpaid water service charges. Willow Park also filed a lien against Squaw Creek’s property for the unpaid charges. Squaw Creek disputes the validity of the charges and the lien.

Squaw Creek filed a rule 202 petition in the Parker County district court seeking permission to depose various Willow Park officials. Willow Park filed a plea to the jurisdiction. The district court denied the plea, and Willow Park filed this appeal.

In its sole issue; Willow Park asserts that the trial court erred in denying its plea to the jurisdiction because the Texas Water Code confers exclusive original jurisdiction on the city and exclusive appellate jurisdiction on the Texas Commission on Environmental Quality. Alternatively, Willow Park argues that the doctrine of primary jurisdiction precludes the trial court from exercising its jurisdiction at this time.

III. Standard of Review

A plea to the jurisdiction is a dilatory plea by which a party challenges a court’s authority to determine the subject matter of the action. Bland ISD v. Blue, 34 S.W.3d 547, 554 (Tex.2000). The purpose of a dilatory plea is not to force the plaintiffs to preview their case on the merits but to establish a reason why the merits should never be reached. Id. Because the question of subject matter jurisdiction is a legal question, we review the trial court’s ruling on a plea to the jurisdiction under a de novo standard of review. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998), cert. denied, 526 U.S. 1144, 119 S.Ct. 2018, 143 L.Ed.2d 1030 (1999).

The party suing the governmental entity bears the burden of affirmatively showing that the trial court has jurisdiction. Tex. Dep’t of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex.2001). To determine whether Squaw Creek has affirmatively demonstrated the court’s jurisdiction to hear the case, we consider the facts alleged in the petition, and to the extent it is relevant to the jurisdictional issue, any evidence submitted by the parties to the trial court. Tex. Natural Res. Conservation Comm’n v. White, 46 S.W.3d 864, 868 (Tex.2001); Bland ISD, 34 S.W.3d at 555. Our task is not to decide the merits of the case but rather to examine the claims in the pleadings, taking as true the facts pleaded, and determine whether those facts support jurisdiction in the trial court. Baston v. City of Port Isabel, 49 S.W.3d 425, 427-28 (Tex.App.-Corpus Christi 2001, pet. denied).

We must construe the pleadings in the plaintiff’s favor and look to the pleader’s intent. County of Cameron v. Brawn, 80 S.W.3d 549, 555 (Tex.2002); Peek v. Equip. Serv. Co., 779 S.W.2d 802, 804 (Tex.1989). A plaintiff bears the burden to allege facts affirmatively demonstrating the trial court’s jurisdiction to hear’ a case. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993). If a plaintiff pleads facts that affirmatively demonstrate an absence of jurisdiction, and the defect is incurable, then the cause is properly dismissed. Peek, 779 S.W.2d at 804-05. If the plaintiffs pleadings are insufficient to demonstrate the court’s jurisdiction, but do not affirmatively show incurable defects in jurisdiction, the proper remedy is to allow the plaintiff an opportunity to amend before dismissal. Brown, 80 S.W.3d at 555; Peek, 779 S.W.2d at 805.

IV. Discussion

Willow Park contends that the district court lacks jurisdiction over Squaw Creek’s rule 202 petition because the Texas Water Code confers exclusive original jurisdiction over water service disputes to the city, and exclusive appellate jurisdiction to the Texas Commission on Environmental Quality. Squaw Creek points to the lien against its property and replies that the district court would have jurisdiction over a suit testing the validity of the lien; therefore, it has jurisdiction over the rule 202 proceeding. We agree with Squaw Creek.

Section 13.042 of the water code provides in pertinent part as follows:

(a) Subject to the limitations imposed in this chapter and for the purpose of regulating rates and services so that those rates may be fair, just, and reasonable and the services adequate and efficient, the governing body of each municipality has exclusive original jurisdiction over all water and sewer utility rates, operations, and services provided by a water and sewer utility within its corporate limits.
(d) The commission shall have exclusive appellate jurisdiction to review orders or ordinances of those municipalities as provided in this chapter.

Tex. Watee Code Ann. § 13.042 (Vernon 2000). “Services” means, among other things, “any act performed, anything furnished or supplied, and any facilities or lines committed or used by a retail public utility in the performance of its duties to ... the public.” Id. § 13.002(21). “Commission” means the Texas Natural Resource Conservation Commission. Id. § 13.002(5). Thus, the water code confers exclusive original jurisdiction over water service disputes to the municipality and exclusive appellate jurisdiction over such disputes to the Commission. Galveston v. Flagship Hotel, Ltd., 73 S.W.3d 422, 427 (Tex.App.-Houston 2002) (holding district court had no jurisdiction over city’s decision to shut off customer’s water).

On the other hand, district courts generally have exclusive jurisdiction to determine title to real property. Musquiz v. Marroquin, 124 S.W.3d 906, 910 (Tex. App.-Corpus Christi 2004, pet. denied); see Tex. Const, art. V, § 8; Tex. Gov’t Code Ann. § 26.043 (Vernon 2004). Willow Park concedes that the district court would have jurisdiction over a trespass to try title suit arising from its lien on Squaw Creek’s property.

The issue in this case is one step removed from the question of what body has jurisdiction over the underlying dispute between Squaw Creek and Willow Park. At issue is jurisdiction over Squaw Creek’s rule 202 petition. Under rule 202, a person may petition a court for an order authorizing the taking of a deposition to perpetuate testimony for use in an anticipated suit or to investigate a potential claim or suit. Tex.R. Civ. P. 202.1. A rule 202 petition must “be filed in a proper court of any county” where venue of the anticipated suit may lie or- where the witness resides if no suit is anticipated. Tex.R. Crv. P. 202.2(b). A reasonable interpretation of “proper court” is a court with jurisdiction over the underlying dispute. If no suit is yet anticipated, a petitioner must state the reasons for desiring to obtain the testimony. Tex.R. Civ. P. 202.2(g).

In its first amended petition, Squaw Creek alleged as follows:

Petitioner’s reasons for desiring to obtain testimony is to obtain the information so as to learn about the validity of the billing claims against [Squaw Creek] to understand and determine the validity of the lien against the real property and to learn of the validity of the claim so that an amount of just payment, if any, to. the city of Willow Park can be determined.

One of the reasons Squaw Creek expressly alleged for desiring the testimony of the city officials was to investigate the validity of Willow Park’s lien — a question over which the district court has jurisdiction. We hold, therefore, that the district court has jurisdiction over Squaw Creek’s rule 202 petition.

Willow Park argues that even if the district court has jurisdiction over the rule 202 petition, the doctrine of primary jurisdiction precludes the district court from exercising its jurisdiction. Primary jurisdiction is an administrative law doctrine that arises when a court and an agency have concurrent original jurisdiction over a dispute. Flagship Hotel, 73 S.W.3d at 425. The purpose of the doctrine is to assure that an agency to which the Legislature has delegated power over a business or industry will not be bypassed on what is especially committed to it. Id. A trial court must allow an administrative agency to initially decide an issue when (1) an agency is typically staffed with experts trained in handling the complex problems in the agency’s purview, and (2) great benefit is derived from the agency’s uniformly interpreting its laws, rules, and regulations, whereas courts and juries may reach different results under similar fact situations. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 208 (Tex.2002).

We reject the application of the primary jurisdiction doctrine in this case for three reasons. First, Squaw Creek’s rule 202 petition, which simply asks for permission to take investigative depositions, does not raise a “complex problem” that requires the input of administrative “experts.” Second, the rule 202 petition does not require the district court to interpret the “laws, rules, and regulations” of Willow Park, the Commission, or the water code. We find no provision in the water code equivalent to rule 202. The water code does not provide a mechanism for taking investigative depositions. Third, the fact that Squaw Creek seeks presuit discovery under rule 202 rather than final adjudication of its claims militates against application of the primary jurisdiction doctrine. Primary jurisdiction precludes a court from “finally adjudicating a claim until the agency has an opportunity to act on the matter.” Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 221 (Tex.2002) (emphasis added). Squaw Creek does not seek final or even preliminary adjudication of its claims; rather, it seeks only to investigate potential claims. Under these circumstances, primary jurisdiction does not preclude the trial court from allowing Squaw Creek to take investigative depositions. See Butnaru, 84 S.W.3d at 209, 211-12 (holding that although doctrine of primary jurisdiction required trial court to abate claims over which agency had primary jurisdiction, trial court did not abuse its discretion by imposing temporary injunction to maintain the status quo).

We hold that the district court has jurisdiction over Squaw Creek’s rule 202 petition and that the doctrine of primary jurisdiction does not preclude the district court from exercising its jurisdiction. We overrule Willow Park’s sole issue.

Y. Conclusion

Having overruled Willow Park’s sole issue, we affirm the order of the trial court. See Tex.R.App. P. 43.2(a).

      . Effective September 1, 2001, the name of the Texas Natural Resource Conservation Commission changed to the Texas Commission on Environmental Quality. See Act of May 28, 2001, 77th Leg., R.S., ch. 965, § 18.01(a)(1), 2001 Tex. Gen. Laws 1933, 1985; "TNRCC is Now the TCEQ,” at http:// www.tceq. state.tx.us/name_ change.html.


source: Caselaw Access Project

author: TERRIE LIVINGSTON, Justice. JOHN CAYCE, Chief Justice,

license: Public Domain

text:
    Chief Teri SIMMONS, Chief of Police of the Town of Double Oak, Texas, Appellant, v. Stephen KUZMICH, Appellee.
    No. 2-03-193-CV.
    Court of Appeals of Texas, Fort Worth.
    May 19, 2005.

      Nichols, Jackson, Dillard, Hager & Smith, L.L.P., David M. Berman, Dallas, TX, for Appellant.
    Kuzmich Law Firm, Jonathan M. Bailey and Stephen Howard, Lewisville, TX, for Appellee.
    PANELA: CAYCE, C.J.; LIVINGSTON and WALKER, JJ.
   OPINION

TERRIE LIVINGSTON, Justice.

Appellant Teri Simmons, the Chief of Police for the Town of Double Oak, Texas, appeals the trial court’s grant of a writ of mandamus in favor of appellee Stephen Kuzmich that compels Chief Simmons to produce specified records and information to Kuzmich pursuant to the Texas Public Information Act (TPIA), formerly known as the Open Records Act. See Tex. Gov’t Code Ann. §§ 552.001-.353 (Vernon 2004). We modify the trial court’s judgment to delete the award of attorneys’ fees and affirm the judgment as modified.

Background

Kuzmich requested that Chief Simmons produce to him certain information that was collected by the Double Oak Police Department and the Texas Alcoholic Beverage Commission (TABC) during an investigation of a head-on collision that occurred in Double Oak in April 2003. The drivers of both vehicles were killed, and two passengers were injured. Kuzmich, an attorney, represents the family of one of the drivers in the civil litigation relating to the accident.

Kuzmich made his public disclosure request for the documents relating to the accident to Chief Simmons on May 20, 2003 in accordance with the TPIA. See id. §§ 552.021, 552.221. When Chief Simmons received the request, she forwarded it to the Town’s attorney, who in turn requested an opinion from the Texas Attorney General’s office on whether the Town was required to release the requested information. The Town’s request to the attorney general was timely under the TPIA, but its written notification of the request to Kuzmich was not. Although Chief Simmons called Kuzmich and told him Double Oak was seeking an attorney general opinion, the Town failed to send Kuzmich a copy of its written request within ten days as required by the TPIA. See id. § 552.221(d).

Because Kuzmich had not heard from Double Oak in writing, he sent a follow-up request for production to Chief Simmons on June 5, 2003. On June 13, in response, Double Oak sent Kuzmich a copy of its request for an attorney general opinion. Ultimately, in its opinion, the attorney general determined that Double Oak could withhold the requested information because it was exempt from disclosure under section 552.108(a)(1) and (b)(1) of the TPIA that allows a governmental body to withhold information or internal records held or maintained by a law enforcement agency if release of the information would interfere with the detection, investigation, or prosecution of crime. See id. § 552.108(a)(1), (b)(1); Tex. Att’y Gen. ORD-4326 (2003). In light of the attorney general’s opinion, Chief Simmons refused to release the requested information regarding the investigation, claiming that the records were exempt from disclosure under the TPIA because they were law enforcement documents relating to an ongoing criminal investigation by Double Oak and the TABC.

On June 16, 2003, Kuzmich filed a petition for writ of mandamus in the trial court to compel production of the requested documents under the TPIA The trial court held an evidentiary hearing and ruled that the release of the requested materials and documents would not interfere with the detection, investigation, or prosecution of crime and granted Kuzmich’s writ of mandamus petition. Chief Simmons appealed.

Issues Presented

In four issues, Chief Simmons challenges the trial court’s grant of the writ of mandamus, claiming primarily that the trial court abused its discretion in granting the writ of mandamus because the requested records are law enforcement records that are exempt from disclosure under the TPIA. Additionally, she claims that mandamus relief is unavailable for failure to give notice under the TPIA and that the trial court erred in granting Kuzmich attorneys’ fees.

Standard of Review

Importantly, we must recognize the procedural posture of this case; this is an appeal in a mandamus action initiated in the trial court. See Anderson v. City of Seven Points, 806 S.W.2d 791, 792 (Tex.1991). An action for a writ of mandamus initiated in the trial court is a civil action subject to appeal as any other civil suit. Id. at 792 n. 1; Harris v. Jones, 8 S.W.3d 383, 385 (Tex.App.-El Paso 1999, no pet.); Dallas Area Rapid Transit v. Dallas Morning News, 4 S.W.3d 469, 473 (Tex.App.-Dallas 1999, no pet.); Univ. of Tex. Law Sch. v. Tex. Legal Found., 958 S.W.2d 479, 481 (TexApp.-Austin 1997, no pet.). We therefore review the trial court’s findings of fact and conclusions of law in accordance with the standards generally applicable to a trial court’s findings and conclusions. Anderson, 806 S.W.2d at 794 n. 2; Dallas Area Rapid Transit, 4 S.W.3d at 473; Tex. Legal Found., 958 S.W.2d at 481. That is, we review findings of fact for legal and factual evidentiary support, and we review conclusions of law de novo. Dallas Area Rapid Transit, 4 S.W.3d at 473; Tex. Legal Found., 958 S.W.2d at 481. We do not apply'the abuse of discretion standard applicable to mandamus actions that originate in our appellate courts. Harris, 8 S.W.3d at 385.

Interpreting statutes is a legal matter, subject to de novo review. Bragg v. Edwards Aquifer Auth., 71 S.W.3d 729, 734 (Tex.2002); City of Garland v. Dallas Morning News, 22 S.W.3d 351, 357 (Tex.2000). The overriding goal of statutory interpretation is to determine the legislature’s intent. Cont’l Cas. Co. v. Downs, 81 S.W.3d 803, 805 (Tex.2002). To ascertain legislative intent, we first look to the plain and common meaning of the words used by the legislature. Argonaut Ins. Co. v. Baker, 87 S.W.3d 526, 529 (Tex.2002); Harris County Bail Bond Bd. v. Pruett, No. 01-02-01043-CV, 2005 WL 568060, at *3 (Tex. App.-Houston [1st Dist.] Mar. 10, 2005, pet. filed) (op. on reh’g); see also Tex. Gov’t Code Ann. § 311.011 (Vernon 2005). Determining whether an exception to disclosure applies under the TPIA is a question of law. City of Fort Worth v. Cornyn, 86 S.W.3d.320, 323 (Tex.App.-Austin 2002, no pet.).

The TPIA

The TPIA requires public disclosure of government documents and information upon request. Tex. Gov’t Code Ann. §§ 552.021, 552.221. Public information includes information that is “collected, assembled, or maintained under a law or ordinance or in connection with the transaction of official business: (1) by a governmental body; or (2) for a governmental body and the governmental body owns the information or has a right of access to it.” Id. § 552.002(a). There are, however, exceptions to disclosure. See id. §§ 552.101-.142.

The law enforcement and investigation exception relied upon by Chief Simmons allows a law enforcement agency to deny disclosure if release of the information would interfere with the detection, investigation, or prosecution of crime. Id. § 552.108(a)(1), (b)(1). However, to assert an exception under the TPIA, the governmental agency must timely request an attorney general’s opinion concerning the applicability of such an exception to disclosure. Id. § 552.301(a). The agency must also notify the requestor of its decision to seek the opinion and provide the requestor with a copy of the written communication to the attorney general, all within ten business days of receiving the request. Id. § 552.301(b), (d). Without such a request, notice, and resulting opinion, the information requested is presumed to be subject to disclosure and must be released. Id. § 552.302.

Because Chief Simmons failed to timely provide Kuzmich with notice of the Town’s request for an attorney general opinion, the information Kuzmich requested is presumed to be subject to disclosure unless Chief Simmons shows some compelling reason to withhold the information. See id. Further, the TPIA directs us to liberally construe its provisions in favor of disclosure and to narrowly interpret its exceptions to disclosure. Id. § 552.001(b); Envoy Med. Sys., L.L.C. v. State, 108 S.W.3d 333, 336 (Tex.App.-Austin 2003, no pet.); City of San Antonio v. San Antonio Express-News, 47 S.W.3d 556, 561-62 (Tex.App.-San Antonio 2000, pet. denied). “Unlike the FOIA [Federal Freedom of Information Act], our Act contains a strong statement of public policy favoring public access to governmental information and a statutory mandate to construe the Act to implement that policy and to construe it in favor of granting a request for information.” City of Garland, 22 S.W.3d at 364.

The TPIA provides a statutory remedy of mandamus to a requestor when the governmental body “refuses to request an attorney general’s decision as provided by Subchapter G or refuses to supply public information or information that the attorney general has determined is public information that is not excepted from disclosure under Subchapter C.” Tex. Gov’t Code Ann. § 552.321(a) (footnotes omitted).

Discussion

Availability of Mandamus Relief Under the TPIA

In her third issue, Chief Simmons contends that the trial court erred in granting mandamus relief to Kuzmich because that relief is not available against a governing body whose sole failure is to not timely provide the statutory notice to a requestor that it is seeking an opinion from the attorney general on its claim to an exception from disclosure under the TPIA. She contends that mandamus relief is only available to a requestor of information if the governmental entity wanting to refuse the request fails to timely seek an attorney general opinion, not if it fails to let the requestor know that it is seeking an attorney general opinion. We address this issue as a preliminary matter because it is potentially dispositive of her appeal.

As stated above, section 552.321(a) of the statute specifically states that a re-questor may file suit for “a writ of mandamus compelling a governmental body to make information available for public inspection if the governmental body refuses to request an attorney general’s decision as provided by Subchapter G. Id. (emphasis added). Basically, Chief Simmons contends that since she timely requested an attorney general opinion, mandamus relief is not available to Kuzmich. The statute, however, says the governing body must request the “attorney general’s decision as provided by Subchapter G. Id. (emphasis added). Subchapter G of the code, entitled “Attorney General Decisions,” includes sections 552.301 through 552.308. Id, §§ 552.301-.308. Section 552.301(d), the provision at issue here, was enacted in 1999 and requires the governmental body to timely provide notice to the requestor within the ten day period that it is seeking an attorney general opinion regarding withholding the information, not just that it timely seek the attorney general opinion. Id.§ 552.301(d).

In Dominguez v. Gilbert, the Austin Court of Appeals observed that the pre-1999 statute required a governmental agency to timely request an attorney general opinion to take advantage of the statutory exception to disclosure but that notice of the request to the requestor was not required. 48 S.W.3d 789, 792 (Tex.App.Austin 2001, no pet.). Further, the court noted that the pre-1999 statute allowed both the requestor and the agency to seek declaratory relief on claims of exceptions from disclosure as well as mandamus relief. Id. at 796.

In Thomas v. Cornyn, the Austin Court of Appeals was faced with the issue of whether statutory mandamus relief is an available remedy to a requestor when the governing body has not complied with the TPIA. 71 S.W.3d 473, 481-82 (Tex.App.Austin 2002, no pet.). There, the court specifically held that all the requestor had to show was noncompliance with the TPIA to be entitled to the statutory mandamus relief called for by the TPIA. Id. at 484. This holding conformed to its prior holding in Texas Department of Public Safety v. Gilbreath where it observed that the predecessor statutory provision created a “statutory writ of mandamus under which a requesting party need only show that the governmental body has not complied with the Act in order to obtain mandamus [relief].” 842 S.W.2d 408, 413 (Tex.App.-Austin 1992, no writ).

The discussions in these cases were based on the law as it existed before the enactment of section 552.301(d). Because the statute now contains a timely-notice-to-the-requestor requirement in Subchapter G, it is reasonable for us to conclude that failure to timely give the notice to the requestor likewise now authorizes mandamus relief. See Tex. Gov’t Code Ann. §§ 552.301(d), 552.321(a). We believe the statute is clear, and we hold that a trial court has the authority to grant mandamus relief when an agency refuses to timely request an attorney general opinion, when the agency refuses to supply public information in accordance with the TPIA, and also when the agency fails to timely notify the requestor of its decision to seek an attorney general opinion. See id.; Thomas, 71 S.W.3d at 481-82. Once the requesting party shows that the governmental body has not complied with the TPIA, the statutory mandamus relief provided for by the statute is available to the re-questor. Thomas, 71 S.W.3d at 484.

In accordance with the Thomas opinion and the Gilbreath opinion, we further hold that the requestor does not need to also meet additional elements required in common law mandamus actions but needs to show only that the TPIA has not been complied with and that the requested disclosure has not been made. Id.; Gilbreath, 842 S.W.2d at 413-14. Both parties have agreed that the disclosure has not been made and that Chief Simmons failed to timely give Kuzmich the written notice required under the TPIA. Thus, Kuzmich was entitled to seek the relief by mandamus. We overrule Chief. Simmons’s third issue and now turn to the merits of her claim to an exception from disclosure to review whether the mandamus relief was appropriately granted by the trial court.

The Law Enforcement Exception to Disclosure

In Chief Simmons’s second issue, she contends that the trial court abused its discretion by granting the disclosure because the records requested are excepted from disclosure. Specifically, she contends that the records are excepted because they are information and internal records held by a law enforcement agency and their release would interfere with the detection, investigation, or prosecution of crime. See Tex. Gov’t Code Ann. § 552.108(a)(1), (b)(1). She contends that this alone is a “compelling reason” sufficient to prevent disclosure.

The TPIA mandates that we liberally construe the Act in favor of granting a request and that exceptions to disclosure be construed narrowly. Envoy Med. Sys., 108 S.W.3d at 336. Necessarily, the party seeking to withhold the information has the burden of proof in the trial court to prove the exception from disclosure and presumably must comply with the steps mandated by the statute to seek and pre-serve such an exception from disclosure. See id.

In Dallas Area Rapid Transit (DART), the Dallas Court of Appeals concluded that DART’s failure to timely request an attorney general opinion regarding a similar exception to disclosure — the litigation exception — was tantamount to a waiver of the government’s right to assert the exception to disclosure. 4 S.W.3d at 474. Although the DART case relates to the failure to timely seek the attorney general opinion as opposed to timely notifying the requestor that the agency is seeking an attorney general opinion, as in this case, we believe the same result is appropriate in this case. Additionally, since the DART opinion was handed down, the very provision in controversy here was added to the TPIA: that the failure to timely provide the requestor with the appropriate notification results in a presumption in favor of public disclosure and that the information “must be released unless there is a compelling reason to withhold the information.” Tex. Gov’t Code Ann. § 552.302 (emphasis added). Thus, we conclude and hold that failure to timely notify the re-questor of the agency’s request for an attorney general opinion regarding application of an exception results in a presumption that the information is subject to disclosure to the public. See id. Consequently, Kuzmich was entitled to mandamus relief unless Chief Simmons could overcome the presumption by showing a compelling reason sufficient to prevent disclosure.

Chief Simmons further contends that even if the trial court appropriately applied this presumption, it erroneously required a “compelling reason to withhold the information.” In support of her argument she points to a Fort Worth Court of Appeals opinion that had previously rejected requiring “compelling” reasons to overcome the disclosure presumption. See Hart v. Gossum, 995 S.W.2d 958, 962 (Tex. App.-Fort Worth 1999, no pet.). However, that opinion was handed down before September 1, 1999, the effective date of the most recent amendment that added the language requiring an agency to come forward with a “compelling reason” to withhold the information to overcome the presumption in favor of disclosure when the governmental body fails to timely request the attorney general opinion OR when the governmental body fails to timely notify the requestor of its attorney general request and provide the required information. That section states,

If a governmental body does not request an attorney general decision as provided by Section 552. SOI and provide the requestor with the information required by Section 552.301(d), the information requested in writing is presumed to be subject to required public disclosure and must be released unless there is a compelling reason to withhold the information.

Tex. Gov’t Code Ann. § 552.302 (emphasis added). The amendment to section 552.302 directly resolves the split in authority among the intermediate appellate courts that we addressed in the Gossum opinion. Thus, our prior Gossum opinion is not controlling precedent because the portion of the statute at issue here — the presumption of public disclosure for failure to notify the requestor of the attorney general request wording requiring a “compelling reason” to overcome that presumption — was added after our Gossum opinion. Therefore, we conclude and hold that in order to overcome the presumption of public disclosure that applies when a governmental agency fails to either timely request the attorney general opinion or timely notify the requestor that is doing so, the agency is required to prove that it has a compelling reason to withhold the information. See id.

Finally, despite Chief Simmons’s arguments to the contrary, by her own admission she failed to come forward with evidence of a “compelling reason”,to withhold the information to overcome the presumption in favor of disclosure. Chief Simmons’s sole basis to support her claim that the information should not be disclosed was that the required information would jeopardize an ongoing criminal investigation for criminally negligent homicide. However, the current version of the statute requires the governmental body to also articulate a “compelling reason to withhold the information.” Id. It is not enough to merely show that there is an ongoing criminal investigation; the governmental body must also show that its claimed exception to disclosure falls within one of the statutory exceptions to disclosure and how that exception creates a compelling reason to withhold the information.

In her brief Chief Simmons states, “It was incumbent on Appellant only to show that the law enforcement records related to an investigation that did not result in conviction or deferred adjudication.” Because Chief Simmons concedes that this is all she showed, we conclude that the trial court correctly determined that she failed to meet her burden to show a compelling reason to withhold the information sufficient to overcome the presumption in favor of disclosure. Thus, the trial court correctly concluded that disclosure was appropriate and properly granted Kuzmich mandamus relief. Chief Simmons’s second issue is overruled.

Attorneys’ Fees

In Chief Simmons’s fourth issue she complains the trial court erroneously awarded Kuzmich his attorneys’ fees. Primarily she contends that the award of attorneys’ fees is incorrect because she should have prevailed on the merits of the mandamus action. Regardless, she also contends that the trial court abused its discretion in awarding the fees because she correctly argued that the information fell within the law enforcement exception to disclosure as evidenced by the subsequent attorney general opinion she obtained in her favor. Further, she argues that since Kuzmich was represented by his own firm, he was not entitled to an award of attorneys’ fees. In other words, Chief Simmons contends Kuzmich simply did not incur attorneys’ fees. With this latter contention, we must agree.

Kuzmich’s testimony provides a complete admission that neither his associate nor his firm were contemplating payment of attorneys’ fees in connection with representing him in this matter. On cross-examination, Kuzmich admits that neither he nor anyone from his office is billing for time spent representing him or incurring fees and that he has only ‘“lost some time in the office.” Based upon this testimony, we must agree there was no evidence to support the award of attorneys’ fees. We sustain Chief Simmons’s fourth issue.

Insufficient Notice of Hearing and Failure to Grant Chief Simmons’s Continuance

In Chief Simmons’s first issue, she complains that the trial court erred in setting the writ of mandamus for trial on the merits on only three days’ notice to her. She contends that the show cause order served on her did not give her sufficient notice of the hearing and that she should have been granted a continuance. While she concedes that she failed to comply with both rule 251 and rule 252 of the rules of civil procedure regarding continuances, she argues that she was denied due process of law, justifying her lack of compliance. See Tex.R. Civ. P. 251, 252. She also contends she was entitled to forty-five days’ notice under rule 245 of the rules of procedure. See Tex.R. Civ. P. 245.

The record shows that the petition for writ of mandamus was filed on June 13, 2003; that the hearing was originally scheduled for June 24, 2003 and then reset to June 26; that Chief Simmons filed no motion requesting a second continuance of the June 26 hearing; and that she appeared at the June 26 hearing, announced “ready,” and raised no objection to a lack of sufficient notice of the rescheduled hearing.

In order to preserve a complaint on appeal, one must preserve the error by bringing it to the trial court’s attention or it is waived. Tex.R.App. P. 33.1(a); Bushell v. Dean, 803 S.W.2d 711, 712 (Tex.1991) (op. on reh’g). As noted by Kuzmich, if a party fails to object to a lack of notice of a hearing and participates in such hearing, the issue is waived. See In re Marriage of Parker, 20 S.W.3d 812, 818 (Tex.App.-Texarkana 2000, no pet.); S.W. Country Enters, v. Lucky Lady Oil Co., 991 S.W.2d 490, 493 (Tex.App.-Fort Worth 1999, pet. denied). Here, the initially scheduled hearing was continued until two days later, but Chief Simmons never objected to the rescheduled date and also participated in the hearing without objection. Thus, she has waived this complaint on appeal. Chief Simmons’s first issue is overruled.

Conclusion

Having determined that the evidence is insufficient to support the attorneys’ fees award, we modify the judgment to delete the award of attorneys’ fees to Kuzmich. Because we have overruled Chief Simmons’s other three issues, we affirm the judgment in Kuzmich’s favor as modified.

CAYCE, C.J. filed a dissenting opinion.

JOHN CAYCE, Chief Justice,

dissenting.

I respectfully dissent. Double Oak Chief of Police Teri Simmons met her burden of proving a compelling reason to withhold the requested information under section 552.302 of the Texas Government Code by producing evidence that the release of the privileged information would interfere with the detection, investigation, or prosecution of crime. The majority’s holding that the information is subject to public disclosure merely due to Simmons’s “blunder” in missing the ten-day notice requirements of section 552.301 exalts form over substance, and may interfere with and hamper an ongoing criminal investigation.

At the trial court hearing on Stephen Kuzmich’s petition for writ of mandamus, two law enforcement' officers, Simmons and Agent Beth Gray of the Texas Alcoholic Beverage Commission, testified that a criminal investigation was ongoing and that the release of the requested information would interfere with this investigation. This testimony was corroborated by Double Oak’s attorney, David M. Berman, in a letter requesting an attorney general opinion where Berman stated that public disclosure of the requested information could allow the target of the investigation to evade prosecution by destroying or secreting inculpatory evidence. In addition, the trial court had before it the written opinion of the Attorney General of Texas holding that the requested information is privileged and exempt from disclosure under section 552.108(a)(1) of the Texas Public Information Act.

I believe this uncontroverted evidence is sufficient to establish a compelling reason for withholding the requested information and to rebut the presumption that the information is subject to public disclosure. .1 would, therefore, hold that the trial court abused its discretion by ruling that the information must be disclosed and by awarding Kuzmich his attorneys’ fees under section 552.323(a).

      . See Act of May 25, 1999, 76th Leg., R.S., ch. 1319, §§ 20, 37, 1999 Tex. Gen. Laws 4500, 4509, 4514.

      . Although Chief Simmons refers us to the abuse of discretion standard, we apply the standards previously discussed in evaluating the trial court's grant of mandamus relief.

      . We do not say that failure to properly give notice automatically results in disclosure as the dissent suggests; it results in a presumption in the requestor’s favor that disclosure is appropriate, but the withholding party retains the right to challenge that presumption. See id.

      . See Act of May 25, 1999, 76th Leg., R.S., ch. 1319, §§ 22, 37, 1999 Tex. Gen. Laws 4500, 4509, 4514 (current version at Tex. Gov’t Code Ann. § 552.302 (Vernon 2004)).

      . See Tex. Gov’t Code Ann. § 552.302 (Vernon 2004).

      . See id. § 552.301(b), (d); Hobson v. Moore, 734 S.W.2d 340, 341 (Tex.1987) (Gonzalez, J„ concurring & dissenting) (orig.proceeding) (when weighing competing interests between releasing privileged information on the basis of a procedural technicality versus noninterference with an ongoing criminal investigation, "the better rule is that we give priority to protecting ongoing criminal investigations”).

      . Tex Gov’t Code Ann. § 552.108(a)(1).

      . See City of Houston v. Houston Chronicle Publ’g Co., 673 S.W.2d 316, 322 (Tex.App.Houston [1st Dist.] 1984, no writ) (“While the opinions of the Attorney General construing the Open Records Act are not binding upon the courts, they should be given great weight.”).

      . See Tex. Gov’t Code Ann. § 552.323(a).


author: TERRIE LIVINGSTON, Justice.

text:
    William H. DEAN and Madelyn S. Dean, Appellants, v. FRANK W. NEAL & ASSOCIATES, INC., HBC Engineering, Inc., David Lewis Builders, Inc., and David T. Lewis, Individually, Appellees.
    No. 2-04-034-CV.
    Court of Appeals of Texas, Fort Worth.
    May 19, 2005.

      Bush & Motes, P.C., Matthew L. Motes and Todd A. Haba, Arlington, for Appellants.
    Goins, Underkofler, Crawford & Lang-don, L.L.P., Richard E. Schellhammer and Heather Farris, Capshaw, Goss, Bowers, L.L.P. and Richard A. Capshaw, Dallas, Gary Werley, Fort Worth, for Appellees.
    PANEL B: LIVINGSTON, GARDNER, and McCOY, JJ.
   OPINION

TERRIE LIVINGSTON, Justice.

This construction defect case involves multiple summary judgments granted on limitations grounds. In three issues, William H. and Madelyn S. Dean contend that the trial court erred in granting summary judgments on their claims against appel-lees Frank W. Neal & Associates, Inc., HBC Engineering, Inc., David Lewis Builders, Inc., and David T. Lewis, individually, because the limitations period was tolled by application of the discovery rule and because the appellees are equitably estopped from asserting limitations as a result of their conduct. • Because the Deans failed to raise a fact issue on the discovery rule and equitable estoppel, we affirm the summary judgments for all of the appellees on limitations grounds.

Background

On November 10, 1995, the Deans entered into a contract with Nader Design Group (NDG) and David Lewis Builders, Inc. (DLBI) for the construction of a home, James Nader of NDG was the architect for the project, and DLBI was the builder. As part of the design process, the Deans’ architect hired Frank W. Neal & Associates, Inc., a structural engineering firm, to design the home’s foundation. When preparing the design, Neal used some information in a soils report'that HBC Engineering, Inc., another engineering firm, prepared in 1994 for a different architect. The soils report indicated a potential for movement in the soil below the house of approximately 2.1 inches. Consequently, Neal recommended that the house be designed with a suspended slab, or pier and beam, foundation. The Deans rejected this recommendation because it was too costly, and Neal designed a foundation that was slab-on-grade with some piers. According to Neal’s deposition testimony, he told Nader the new design would be less costly but not as good as a suspended slab. Construction of the home took place in 1996.

During construction, Neal and the Deans noticed some cracks in the foundation. Neal did not think the foundation was structurally compromised at that point, so he recommended that the cracks in the garage be repaired with an epoxy patch and that a flexible bed be laid under the tile in the other parts of the house where cracking had occurred. There is no evidence that Neal’s recommendations were implemented, but construction was completed, and the Deans closed on the house in December 1996.

After they moved in, the Deans noticed cracks in the garage and “various places” in the house. By October 1997, more cracks had appeared, and later that month Nader met with Neal, Lewis, and Ralph Barnes of HBC to discuss how to mitigate the problem. At this meeting, the participants discussed chemically injecting the soil underneath the house to stop potential movement related to moisture in the soil caused by groundwater. Mrs. Dean was aware of this meeting and its purpose. In her deposition, Mrs. Dean admitted that she knew there had been some movement as of October 1997, which is why chemically injecting the soil was considered.

Between 1998 and 2002, Nader met with various parties, including Neal and Barnes, regarding the home’s foundation. The Deans believed that some or all of the appel-lees would pay for any necessary repairs to the home’s foundation. But at a meeting on January 23, 2002, the Deans discovered that there was no general agreement among the appellees to pay for such repairs.

The Deans filed suit against NDG, Neal, DLBI, Lewis, and HBC on January 28, 2002. They asserted negligence, breach of warranty, fraud, fraud-failure to disclose, fraud in a real estate action and fraud-false promise, DTPA, and breach of contract claims against the various parties. They later nonsuited NDG, Nader’s architectural firm. Neal, DLBI and Lewis, and HBC subsequently filed separate motions for summary judgment contending that all of the Deans’ claims were barred by the applicable statutes of limitations. The Deans filed a third amended petition alleging that the discovery rule applied to their claims and that the appellees were equitably estopped from asserting limitations because their conduct induced the Deans not to file suit. The trial court granted separate summary judgments in favor of each of the appellees.

Standard of Review

A defendant who moves for summary judgment on the affirmative defense of limitations has the burden to conclusively establish the defense. KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex.1999). The defendant must, therefore, conclusively prove when the cause of action accrued. Id. Additionally, the defendant must negate the discovery rale, if it applies and has been pleaded or otherwise raised, by proving as a matter of law that there is no genuine issue of material fact about when the plaintiff discovered, or in the exercise of reasonable diligence should have discovered, the nature of its injury. Id. If the movant establishes that the statute of limitations bars the action, the nonmovant must then adduce summary judgment proof raising a fact issue in avoidance of the statute of limitations. Id.

Discovery Rule

The discovery rule is a limited exception to the statute of limitations. Computer Assocs. Int’l, Inc. v. Altai, Inc., 918 S.W.2d 458, 455 (Tex.1996). The discovery rule is applied when the nature of the injury is inherently undiscoverable. Id. at 456. Thus, the discovery rule should be applied only when “it is difficult for the injured party to learn of the negligent act or omission.” Id. A cause of action accrues when the plaintiff knew or should have known of the wrongful injury. KPMG Peat Marwick, 988 S.W.2d at 749-50. A plaintiff need not know the full extent of the injury before limitations begins to run. Murphy v. Campbell, 964 S.W.2d 265, 273 (Tex.1997).

Here, Mrs. Dean’s deposition testimony shows that the Deans first observed cracking in the garage in July 1996 while the house was under construction. In an affidavit attached to the Deans’ summary judgment responses, Mrs. Dean testified that after they moved into the house, they noticed “more minor problems” with cracking in the garage and “various places” in the house, but they were assured that “these were normal cosmetic cracks that would occur with settlement of the [residence.” But there is no indication as to who assured them so. Lewis’s affidavit states that after construction of the home was completed, he received a letter from Mr. Dean indicating that there had been movement in the foundation. But he could not locate the original letter, and the Deans did not produce it. The evidence also shows that by October 1997, when Nader began to call meetings regarding the problem, the parties had begun investigating chemically injecting the soil to dry up the moisture level. According to Nader’s deposition testimony, the October 1997 meeting was called because the Deans noticed cracking in the dry wall in the house, indicating movement. And Mrs. Dean admitted that she was aware at that time that movement in the soil precipitated this investigation.

Mrs. Dean’s affidavit testimony indicates that several repairs were made in 1997 and 1998 and that in 1998 DLBI made repairs to the sheetrock. In his affidavit testimony, Lewis stated that after the October 1997 meeting, he sent one of his employees to the house to dig a hole in front of the slab so that the parties could inspect it. A January 27, 1998 memorandum written by Nader, which was copied to the Deans, says that in January, Nader conducted the third in a series of monthly meetings at the Deans’ house. The memorandum states that Pro Chemical conducted “experimental probes” in December 1997, and that same month, holes were dug in the garage floor. Nader indicates that Mrs. Dean reported to him on January 14, 1998 that water was present in one of the holes. Thus, the evidence shows that no later than December 1997 the Deans themselves were aware that soil movement was causing cracking in their home to the extent that testing and monitoring of the foundation was necessary.

The Deans contend that they could not have discovered the soil movement that caused the foundation problems until August 1998, when they received a report by an engineer that concluded the soil under the house had expanded more than HBC originally predicted. The Deans say this report at least creates a fact issue as to whether they could have discovered the full extent of the problem before August 1998. Until they received the report, they thought the foundation problems were only minor and could be repaired cosmetically. Mrs. Dean’s summary judgment affidavit states that she “realized the foundation needed repairs” when she read the report. But the Texas Supreme Court tells us that

the discovery rule does not linger until a claimant learns of actual causes and possible cures. Instead, it tolls limitations only until a claimant learns of a wrongful injury. Thereafter, the limitations clock is running, even if the claimant does not yet know:
• the specific cause of the injury;
• the party responsible for it;
• the full extent of it; or
• the chances of avoiding it.

PPG Indus., Inc. v. JMB/Houston Ctrs. Partners Ltd. P’ship, 146 S.W.3d 79, 93-94 (Tex.2004) (footnotes omitted). The summary judgment evidence shows that the Deans knew there was some cracking in the house and, thus, movement in the foundation in 1996 and 1997; they just did not know the extent of the work or expense necessary to repair it. Moreover, Nader testified in his deposition that in October 1997, when the parties first began meeting to address these very concerns, the Deans could have hired an engineer to do the same type of engineering report that they eventually received in August 1998. In addition, the summary judgment evidence supports the conclusion that Nader was acting as the Deans’ agent with regard to the investigation of the cause of the cracks in the home’s foundation; thus, Nader’s knowledge of the foundation problems can be imputed to the Deans. See Gibson v. Bostick Roofing & Sheet Metal Co., 148 S.W.3d 482, 491 (Tex.App.-El Paso 2004, no pet.). According to Lewis’s affidavit, the participants at the October 1997 meeting discussed that there was some movement in the foundation of the Deans’ home. Thus, the evidence shows that Nader was aware of such movement as early as October 1997. Accordingly, the evidence shows that the Deans knew or should have known of the injury to their home no later than October 1997. Therefore, the statute of limitations began to run at that time so that by the time the Deans filed suit in January 2002, the limitations period had expired on all of their claims against the appellees.

Equitable Estoppel

The Deans also contend that they raised a fact issue as to whether the appellees were equitably estopped from asserting limitations. The Deans contend that the appellees’ conduct induced them to believe that the appellees would pay for any necessary repairs to the home’s foundation. The doctrine of equitable estoppel requires (1) a false representation or concealment of material facts; (2) made with knowledge, actual or constructive, of those facts; (3) with the intention that it should be acted on; (4) to a party without knowledge or means of obtaining knowledge of the facts; (5) who detrimentally relies on the representations. Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 515-16 (Tex.1998). Estoppel in avoidance of limitations may be invoked in two ways: either a potential defendant conceals facts that are necessary for the plaintiff to know he has a cause of action or the defendant engages in conduct that induces the plaintiff to forego a timely suit regarding a cause of action that the plaintiff knew existed. Rendon v. Roman Catholic Diocese of Amarillo, 60 S.W.3d 389, 391 (Tex.App.-Amarillo 2001, pet. denied). The Deans contend that the appel-lees engaged in the latter.

In order for the Deans to raise a fact issue on their estoppel by conduct claim, they must have presented some evidence that the appellees’ conduct affirmatively induced them into delaying suit beyond the limitations period, unmixed with any want of diligence on their part. See id.; Ladd v. Knowles, 505 S.W.2d 662, 669 (Tex.App.-Amarillo 1974, writ refd n.r.e.). “Implicit in this test are the requirements that the plaintiffs knew they had a cause of action, that the cause of action had accrued at the time the inducement occurred, and that their initial and continued reliance upon the original inducement was reasonable.” Rendon, 60 S.W.3d at 391. A plaintiff may not “blindly rel[y] upon a situation as being what it.seemed rather than as being what it in reality was.” Leonard v. Eskew, 731 S.W.2d 124, 129 (Tex.App.-Austin 1987, writ refd n.r.e.) (op. on reh’g).

According to Mrs. Dean’s affidavit, she did not seek legal counsel between August 1998 and December 2001

based upon: (i) the numerous meetings between the Architect and other engineers and contractors; (ii) the work activity performed at the Residence to study the problem; (iii) the estimates for the repairs generated by Extra Mile Corporation; (iv)[her] understanding that once a repair plan was agreed upon, repairs would be made to the foundation at no cost to Mr. Dean and [her]; and (v)[her] respect and trust of the Architect and Builder. If the meetings or work would have stopped, or it was communicated to [her] that [she and] Mr. Dean ... were required to pay for some or all of the repairs to the foundation, [she] would have sought legal advice and filed suit, if that was necessary.

The thrust of the Deans’ assertions that they raised a fact issue on equitable estop-pel is that none of the appellees ever told the Deans that they would not pay for any and all necessary foundation repairs — not that any of the appellees affirmatively told the Deans they would pay for such' repairs — and that that silence, along with the summary judgment evidence showing that the appellees had met about the foundation problem, hired professionals to investigate the source of the problem and provide price estimates for necessary repairs, and made at least some attempts to repair damage at no cost to the Deans, induced the Deans to forego filing suit until after the applicable limitations periods had expired. The Deans do not claim that any appellee made any affirmative misrepresentation to prevent them from filing suit.

However, the Deans specifically point to the following evidence to support their assertions:

• letters from Nader to the Deans informing them about his site checks at the house, the recommendation of the engineer who performed the 1998 site assessment, and the “plan of action for the project”;

• a December 15, 1999 letter from Nader to Timothy Potvin, Senior Claims Examiner for Lexington Insurance, Nader’s insurer, which states,

As you remember from the first mitigation project that was accomplished last year, we have exceeded our deductible for this claim. We have forwarded copies of this proposal to ... Neal ... and ... HBC for their review. I have requested that the costs for this project be shared as was done on the earlier work with which you are familiar. If you concur with our plan for this project, I will proceed to have an attorney negotiate a settlement agreement that might encompass release of all claims upon completion of this project and the following cosmetic repairs, which have not been estimated.

• a copy of what appears to be a check stub from Neal with the date “1-29-99,” the amount of “$8,000.00,” and “Dean residence” written on it, and a January 20, 1999 check request for $8,000 from Barnes, which appears to be on an HBC form, that says it is to NDG for “part of an agreement to mitigate movement [in] a house slab” and a letter to Nader stating the check is enclosed pursuant to his “January 13,1999 transmitttal”;

• references in Mrs. Dean’s affidavit to letters from Nader (1) to the Deans regarding a plan that could be used to obtain pricing from contractors, (2) to Extra Mile Construction enclosing a floor plan of the property, project boundary, and structural drawings, stating, “We would like to begin this project sometime after the first of the year,” and (3) to Potvin dated March 2, 2001 that Dean’s affidavit says “further confirmed to us that the [appellees] had reached an agreement on a repair plan and that their insurance companies were aware of the plan and would assist in repairs”;

• a copy of a May 22, 2001 letter from Nader to James Schwartz, who the Deans contend is Lexington’s attorney, stating that a meeting is to be held among the parties and that the purpose of the meeting is “to come to an agreement on determining the success of the proposed project and its ramifications toward the conclusion of this matter”;

• allegations in Mrs. Dean’s affidavit that Capshaw, HBC’s attorney, said at a June 2001 meeting that the insurance carriers wanted a commitment that they would be writing a check for an amount that would repair all of the problems and that he advocated releasing the original design team and letting the insurance carriers pay the new people to solve the problems; and

• an August 23, 2001 letter from Nader stating that he had reviewed a design plan Mrs. Dean gave him, expressing concerns about issues that might be encountered executing that plan, and stating, “Otherwise, it looks as though you have a plan with which to proceed. Let us know if there is anything else we can do to help move the process along.”

Although this evidence suggests that there may have been an agreement among Nader, Neal, and HBC to undertake or to pay for some repairs to the residence, there is no evidence that the Deans were personally aware of any specific payments from Neal or HBC or that they were aware of any specific agreement among the appellees to pay for foundation repair to the home. Moreover, although there is some evidence that Nader was acting as an agent for the Deans, there is no evidence that Nader was acting as agent for any of the appellees; thus, we do not believe that Nader’s letters to the Deans regarding plans for “the project” raise a fact issue as to whether the appellees’ conduct estopped them from asserting limitations.

The rest of the evidence pointed to by the Deans raises a fact issue only as to whether HBC and Nader sought coverage from their insurance carriers for the damages now claimed by the Deans. Although Nader’s 2001 letter to Schwartz, the attorney for Nader’s insurance carrier, states that “the parties” were to meet to discuss an agreement on the project, it does not state who the “parties” are, and there is no mention of Neal or Lewis and DLBI by name. Nor is there any reference to their attorneys. But Nader’s 1999 letter to Potvin, an adjuster for Nader’s insurance carrier, indicates that Nader sought coverage regarding the foundation problems. And in her affidavit, Mrs. Dean references participation in a meeting by Capshaw, HBC’s attorney, and his statements about the conditions on which the insurance companies would settle. Thus, we conclude the evidence raises a fact issue only as to whether Nader and HBC sought insurance coverage for the claim. The statement in Mrs. Dean’s affidavit that references a 2001 letter from Nader to Potvin and avers that it “further confirmed ... that the [appellees] had reached an agreement on a repair plan and that their insurance companies were aware of the plan and would assist in repairs,” standing alone, is conclusory and, thus, not proper summary judgment evidence. See Seaway Prods. Pipeline Co. v. Hanley, 153 S.W.3d 643, 653-54 (Tex.App.-Fort Worth 2004, no pet.).

Thus, the summary judgment evidence shows two courses of conduct by the appel-lees that the Deans rely on: initial attempts to repair the foundation by Nader and the appellees, and attempts by Nader and HBC to have insurance companies pay for the more extensive repairs. We do not believe this evidence raises a fact issue on the Deans’ equitable estoppel avoidance to appellees’ limitations defense.

An unsuccessful effort to make repairs does not toll the statute of limitations for purposes of determining when a cause of action accrued. See Pako Corp. v. Thomas, 855 S.W.2d 215, 219 (Tex.App.Tyler 1993, no writ); see also Muss v. Mercedes-Benz of N. Am., Inc., 734 S.W.2d 155, 159-60 (Tex.App.-Dallas 1987, writ refd n.r.e.) (applying same rule to equitable estoppel case, but relying on case analyzing when cause of action accrued). And we have not found any cases in which the mere making of repairs, without more; estopped a defendant from asserting limitations. See, e.g., Gibson v. John D. Campbell & Co., 624 S.W.2d 728, 730, 732-33 (Tex.App.-Fort Worth 1981, no writ) (holding that builder was estopped from asserting limitations when builder made initial repair to home and assured homeowner problem was repaired and, after homeowner discovered foundation problems, repeatedly assured homeowner that repairs would be made, sent agent to home to take out ruined carpet and floorboards, and offered to pay for forty percent of cost of replacement carpet). We believe such a rule would discourage parties providing goods and services from extending warranties and attempting to repair minor problems without first conducting an extensive investigation to determine liability. Thus, we conclude that appellees’ attempts to make initial repairs to the residence do not raise a fact issue as to equitable estoppel.

Further, absent fraud or bad faith, statements made during settlement negotiations do not waive a defendant’s right to assert limitations. Compare Lockard v. Deitch, 855 S.W.2d 104, 105-06 (Tex.App.-Corpus Christi 1993, no writ) (holding statement in letter from defendant’s insurance carrier to plaintiff stating, “Once you have the final specials and medical reports to submit to us for evaluation, we will try to work towards a settlement with you,” did not raise fact issue on plaintiffs equitable estoppel claim) with Frank v. Bradshaw, 920 S.W.2d 699, 702-03 (Tex. App.-Houston [1st Dist.] 1996, no writ) (holding that insurance adjuster’s statement to plaintiffs that if they sent him their bills, he would pay them, raised a fact issue as to whether defendant was estopped from asserting limitations). Thus, we do not believe that Nader’s and HBC’s seeking insurance coverage is conduct that could have reasonably induced the Deans into delaying suit. On the contrary, such conduct should have alerted the Deans that Nader and HBC thought the Deans’ claims were actionable.

We do not wish to appear unsympathetic to the Deans. Their willingness to give appellees the opportunity to attempt a resolution of this matter without hastily resorting to litigation is admirable. But however admirable, the Deans’ reliance on the appellees’ conduct presented as summary judgment evidence does not support their equitable estoppel argument. That evidence indicates that the majority of the conduct relied upon by the Deans was attributable to Nader, rather than the ap-pellees. It also indicates that Nader was acting as the Deans’ agent throughout the time the Deans allege they were induced into delaying their lawsuit.

Viewing the evidence in the light most favorable to the Deans, we conclude that it does not raise a genuine issue of material fact on their assertion that the appellees are equitably estopped from asserting limitations. Thus, the trial court did not err in granting summary judgment as to all causes of action and as to all of the appel-lees on limitations grounds. We overrule the Deans’ first issue.

Conclusion

Having determined that the trial court did not err in granting summary judgment for all of the appellees on limitations grounds, we affirm the trial court’s summary judgments in favor of the appellees on the Deans’ claims.

      . The laundry room, kitchen area, entry, and master bedroom.

      . The Deans never sued their architect, Nader, individually.

      . See Tex. Civ. Prac. & Rem.Code Ann. §§ 16.003 (two years), 16.004 (four years) (Vernon 2002).

      . In his deposition, Nader testified that the October 1997 meeting was called because the Deans "had noticed cracking in their floor slab and movement or — or cracking in drywall that indicated that there might be movement of the foundation” and that they called him. Additionally, the summary judgment record indicates that Nader coordinated all of the meetings and investigations regarding the home's foundation problems and obtained all plans and pricing for any proposed mitigation. In fact, the 1998 engineering report— which the Deans claim is the first indication they had that the soil had caused foundation movement — was addressed to Nader, and Nader admitted that he hired the engineer to prepare the report and paid his bills.

      . One of these letters, dated September 28, 1999, states that Ralph Barnes of HBC "is in the process of reviewing the attached site plan, which indicates the proposed location of 3 monitoring wells and 1 permanent bench mark. These items have been recommended by [the 1998 site assessment engineer] to monitor pre and post construction water levels. Ralph will help to develop the implementation of this element.”

      . There is no evidence that the Deans were copied with or otherwise informed about this letter or its contents.

      . These letters are not in the appellate record.

      . Mrs. Dean’s affidavit does not specify which insurance companies Capshaw was referring to.

      . Because we have determined that the trial court did not err in granting summary judgment on limitations grounds, we need not address the Deans' second and third issues that contend the trial court erred in granting summary judgment on substantive grounds. See Tex.R.App. P. 47.1.


author: TERRIE LIVINGSTON, Justice. LEE ANN DAUPHINOT, Justice,

text:
    Michael Joseph TATUM, Appellant, v. The STATE of Texas, State.
    No. 2-04-352-CR.
    Court of Appeals of Texas, Fort Worth.
    May 19, 2005.
    John Morgan Minton, Fort Worth, TX, for Appellant.
    Don Schnebly, District Attorney, and Edward D. Lewallen, Assistant District Attorney, Weatherford, TX, for State.
    PANEL F: LIVINGSTON, DAUPHINOT, and HOLMAN, JJ.
   OPINION

TERRIE LIVINGSTON, Justice.

I. Introduction

Appellant Michael Joseph Tatum apPeals from his conviction for the offense of indecency with a child by sexual contact, ⅛ his sole point, appellant argues that the trial court abused its discretion by admitting a business record affidavit and case notes from the Michigan Department of Corrections, which the State offered to prove that appellant failed to comply with the conditions of his community supervision. We affirm the judgment of the trial court.

II. Background Facts

Appellant entered a negotiated plea of guilty to the offense of indecency with a child by sexual contact. See Tex. Penal Code Ann. § 21.11(a)(1) (Vernon 2003). Under that agreement, the trial court placed appellant on deferred adjudication community supervision for ten years. On January 28, 2004, the State filed its first amended petition to proceed to adjudication, alleging that appellant had violated several conditions of his community supervision.

At the portion of the revocation hearing regarding the decision to proceed to an adjudication of guilt, the State offered State’s Exhibit One, which consisted of a business record affidavit and case notes from the Michigan Department of Corrections. The case notes stated, among other things, that appellant violated the conditions of his community supervision by changing residences without registering as a sex offender, faffing to attend classes as part of his sex offender treatment program, and residing in a household in which a child lives without first obtaining permission from his community supervision officer. Appellant objected, arguing that the exhibit was hearsay and that its admission violated his right of confrontation as guaranteed by the United States and Texas Constitutions. See U.S. Const, amend. VI; Tex. Const, art. I, § 10. The trial court overruled appellant’s objections and admitted the exhibit.

The State then called its only witness, Parker County Community Supervision Officer Steven Dover, who testified that appellant failed to make several court-ordered payments for court costs and restitution. He also testified that he explained to appellant that appellant could not reside in a household where children live without first obtaining permission from the appropriate community supervision officer. After finding that appellant violated the terms of his community supervision, the trial court found appellant guilty of indecency with a child by sexual contact.

At the punishment phase of the hearing, the State recalled Dover, who testified that appellant did poorly on his sex offender treatment program while he was in Michigan. Again, appellant objected, arguing that because Dover was testifying from the previously-objected-to exhibit, he was testifying from hearsay. The trial court overruled appellant’s objection and assessed his punishment at ten years’ confinement.

III. Analysis

Appellant argues that the trial court abused its discretion by considering the exhibit both during its determination of whether to proceed to adjudication as well as in the punishment phase of the hearing. Appellant contends that the admission of the exhibit violated his confrontation rights as guaranteed by the U.S. and Texas Constitutions and by the Supreme Court in Crawford v. Washington. See U.S. Const. amend. VI; Tex. Const, art. I, § 10; Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

A. Decision to Proceed to Adjudication

According to article 42.12, section 5(b) of the Texas Code of Criminal Procedure, a defendant who has been placed on deferred adjudication community supervision and who is later accused of violating a condition of his community supervision “is entitled to a hearing limited to the determination by the court of whether it proceeds with an adjudication of guilt on the original charge. No appeal may be taken from this determination.” Tex.Code Chim. PROG. Ann. art. 42.12, § 5(b) (Vernon Supp. 2004-05).

In the present case, appellant’s first objection to the admissibility of the exhibit in the adjudication phase related to the trial court’s decision to adjudicate his guilt. Article 42.12, section 5(b) denies appellant the right to appeal this decision. See id.; Connolly v. State, 983 S.W.2d 738, 739 (Tex.Crim.App.1999); Johnson v. State, 147 S.W.3d 656, 656 (Tex.App.Amarillo 2004, no pet.). Therefore, we dismiss appellant’s point to the extent that it relates to the admission of the exhibit during the trial court’s determination of whether to proceed to adjudication. See Phynes v. State, 828 S.W.2d 1, 2 (Tex.Crim.App.1992).

B. Punishment

Although article 42.12 denies a defendant the right to appeal from the trial court’s decision to adjudicate, nothing prohibits him from appealing issues that arise during the punishment phase of the hearing. See Kirtley v. State, 56 S.W.3d 48, 51 (Tex.Crim.App.2001); Vidaurri v. State, 49 S.W.3d 880, 885 (Tex.Crim.App. 2001); McGee v. State, 124 S.W.3d 253, 256 (Tex.App.-Fort Worth 2003, pet. ref'd); Jones v. State, 39 S.W.3d 691, 693 (Tex. App.-Corpus Christi 2001, no pet.); Amaro v. State, 970 S.W.2d 172, 173 (Tex.App.Fort Worth 1998, no pet.). However, a defendant must still preserve his complaint for appellate review by presenting to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling if they are not apparent from the context of the request, objection, or motion. Tex.R.App. P. 33.1(a)(1); Hardeman v. State, 1 S.W.3d 689, 690 (Tex.Crim.App.1999); Mosley v. State, 983 S.W.2d 249, 265 (Tex.Crim.App.1998) (op. on reh’g), cert. denied, 526 U.S. 1070, 119 S.Ct. 1466, 143 L.Ed.2d 550 (1999); Salazar v. State, 131 S.W.3d 210, 214 (Tex. App.-Fort Worth 2004, pet. refd). Further, the complaint made on appeal must comport with the complaint made in the trial court, or the error is forfeited. See Heidelberg v. State, 144 S.W.3d 535, 537 (Tex.Crim.App.2004); Bell v. State, 938 S.W.2d 35, 54 (Tex.Crim.App.1996), cert. denied, 522 U.S. 827, 118 S.Ct. 90, 139 L.Ed.2d 46 (1997); Rezac v. State, 782 S.W.2d 869, 870 (Tex.Crim.App.1990).

At the punishment phase of the hearing, the State recalled Dover, who testified that appellant did poorly on his sex offender treatment program while he was in Michigan. The following exchange occurred:

[DEFENSE COUNSEL]: Your Hon- or, I guess I need — if I could object, I guess I need to renew my objection that this is hearsay. And we’d ask for a running objection.
THE COURT: Well I’m not sure what you’re objecting to. You’re objecting to this previously admitted Exhibit 1 or are you objecting to something that he’s referring to or hearsay just on what he’s saying? What are you specifically objecting to?
[DEFENSE COUNSEL]: I’m specifically objecting to the witness testifying from State’s Exhibit No. 1 because he’s testifying from hearsay.

Here, appellant objected to Dover’s testimony regarding appellant’s performance in his sex offender treatment program. Specifically, appellant argued that Dover was testifying from the exhibit, which constituted hearsay. On appeal, however, appellant contends that the admission of the affidavit denied him his right of confrontation.

A hearsay objection is not the same as an objection to a violation of confrontation. Holland v. State, 802 S.W.2d 696, 700 (Tex. Crim.App.1991); see also Thornton v. State, 994 S.W.2d 845, 853 (Tex.App.-Fort Worth 1999, pet. refd) (holding that an objection lodged solely as a hearsay objection will not preserve error on other grounds). Thus, appellant’s complaint on appeal does not comport with his objection at trial, so any alleged error is forfeited. We therefore overrule the remainder of appellant’s point challenging the admission of the exhibit at the punishment phase of the hearing.

III. Conclusion

We dismiss appellant’s point in part and overrule it in part. We affirm the trial court’s judgment.

DAUPHINOT, J. filed a dissenting opinion.

LEE ANN DAUPHINOT, Justice,

dissenting.

I agree with the majority that the adjudication of Appellant should be affirmed, but I would affirm the adjudication on the basis that the petition to adjudicate alleged failure to pay probation fees as a ground for adjudication, and the State proved this ground with testimony of a live witness. I respectfully dissent from the majority’s analysis of Appellant’s complaints about the admission of the Michigan documents because (1) as to adjudication, Appellant’s complaint falls outside article 42.12, section 5(b), and (2) as to punishment, Appellant adequately preserved his complaints. I would hold that the trial court reversibly erred by admitting the documents, violating Appellant’s constitutional right to confront the witnesses against him, and would remand for a new punishment hearing.

We should either address directly Appellant’s constitutional complaints about the admission of the Michigan evidence at the adjudication phase, because they are squarely before this court, or we should not reach them at all, because it is unnecessary in resolving this case. We should in no event dismiss them. As I have stated previously,

The cornerstone of the restricted appeal from an adjudication hearing is not that the right to appeal is a legislatively created right, as this court has erroneously stated in the past. Rather, it is that the constitutionally-grounded right to appeal may be regulated by the legislature. Specifically, ’“in this state, the right of appeal is conferred only by the Constitution, with such exceptions or limitations as the legislature directs by statute.” Constitutional guarantees of due process and equal protection require that once the right to appeal a criminal conviction exists, it must be fairly applied.

The legislature has prohibited a defendant’s questioning the decision to' adjudicate. The legislature has not prohibited his challenging the procedure, that is, the propriety of the conduct of the adjudication hearing. Were we to continue blindly to adhere to the notion that there are no constitutional limits to the legislature’s authority to regulate appeals, we would be forced to find that the legislature could write into every statute it passes that there could be “no appeal challenging the constitutionality of this statute.”

To hold that the legislature may suspend all constitutional guarantees to persons on deferred adjudication community supervision invites capricious and arbitrary decisions, to adjudicate. The law is well established that, in a criminal case, defendants are entitled to due process in community supervision and parole revocation hearings. Similarly, section 5(b) “does not deprive this Court of jurisdiction to determine if a ‘hearing’ was held that satisfied the requirements of substantive and procedural due process.” As an appellate court, we must ensure that constitutional protections are honored. In doing so, we are obligated to entertain claims regarding a denial of a constitutional right, including the right of confrontation of witnesses.

The courts have already recognized that a defendant may challenge the impartiality of the judge and the fairness of the adjudication proceeding. Courts have also recognized that a defendant is entitled to effective representation by counsel at a hearing on the State’s petition to proceed to adjudication. The constitutional right to confront witnesses against the defendant is a no less compelling right. I would hold that the trial court erred in admitting and considering the Michigan documents contained in State’s Exhibit One. Clearly their admission deprived Appellant of his constitutional right of confrontation. But I would also hold that the error is harmless at the adjudication phase, because the adjudication could correctly be based on Appellant’s failure to pay fees.

I would address the merits of Appellant’s complaint at punishment. As the State concedes, when Appellant first lodged his objection, he made it abundantly clear that his hearsay objection was an objection to the violation of his right to confront the witnesses implicated in State’s Exhibit One,

I’m going to be objecting to State’s Exhibit No. 1. And I would point out just as a bit of a housekeeping chore, the evidence will show that [Appellant], immediately after being placed on probation, moved to Michigan. The State has not subpoenaed the Michigan probation officer. And I’m left to conclude that they’re going to try to prove their case through these business records that they’re introducing.
So I’m going to object to the business records as being hearsay. And I have a two prong argument as to that. Certainly the defendant agrees that business records can be an exception to hearsay. Generally business records are for matters that are considered reliable such as invoices. But it is an impermissible stretch of business records to use those records to substitute for a testimonial witness. In this case, a probation officer.
Let’s take the example of business records of a police officer. Those can qualify, made at or near the time by a person with knowledge, so on and so forth. So now do we do away with police officers testifying? I think not.
The State is attempting to get[ ] around calling an out-of-state witness. I would suggest to the court that were this a capital murder case, the State would have that probation officer here. In the case at bar, the witness — the probation officer is not unavailable, but rather the State is taking a shortcut.

Also note that in the business records affidavit that the State is seeking to introduce, there is no language in that affidavit that swears to the truthfulness of the data in the — State’s Exhibit No. 1. Therefore, without cross examination of the probation officer, there is nothing to test the reliability of the data.

The second prong of my argument is that to introduce the documents and not have a probation officer here is denial of the defendant’s right to confront his accuser's which goes against the U.S. Constitution [Six]th Amendment, Texas Constitution Article 1[,] Section 10, [and] Texas Code of Criminal Procedure Article 1.05.

Furthermore, to not have the probation officer here is denial of the defendant’s right to cross-examine witnesses[,] which is a violation of U.S. Constitution [Six]th Amendment, Texas Constitution Article 1[,] Section 10, Texas Code of Criminal Procedure Article 1.05, and further violation of Texas rules of evidence ... 508, 607, 608, 609, 610, 611, 612, 613, and 615.

... I would [also] argue that Crawford applies to the case in bar, in that the State is attempting to use a business record to sit in the witness chair and testify against the defendant without the defendant being given the right to cross-examine that witness. In other words, the State is trying to get business records to go around having the accuser take the stand.
When there is ... testimonial evidence, it should be subjected to cross-examination. I would argue that the probation officer’s notes set out in State’s Exhibit No. 1 go beyond the application meant for a business record. They are in fact testimonial. And therefore, the substance of Crawford could very well apply in this case.
It’s for those reasons that I would object to State’s Exhibit No. 1.

The trial court was and this court is well aware of the nature of Appellant’s complaint regarding the Michigan documents. He wanted live witnesses to cross-examine. The job of both the trial court and the appellate court is to ensure that constitutional safeguards are afforded the defendant. “We should be particularly careful to avoid dismissing substantive arguments on overly technical procedural grounds” or because of the absence of “magic words.”

Because the majority chooses to base its opinion on dismissal and forfeiture rather than addressing Appellant’s substantive arguments, I must respectfully dissent from its thoughtful opinion.

      . Appellant was allowed to move to Michigan after he was placed on community supervision. Appellant left Texas on February 28, 2003, and his probation was transferred to Michigan.

      . These payments were to be made to the Parker County Community Supervision and Corrections Department, regardless of where appellant was residing.

      .There was evidence in the exhibit that appellant violated this condition by moving in with his girlfriend, who had a ten-year-old child.

      . Even if appellant were allowed to appeal the trial court’s decision to proceed to adjudication, admission of the exhibit was harmless. See Tex.R.App. P. 44.2(a). Dover testified that appellant failed to make several required payments to the Parker County Community Supervision and Corrections Department, where payments were still due even after his move. Therefore, the trial court could have based its decision to proceed to adjudication solely on appellant’s Texas violations of his community supervision.

      . I do not agree with the dissent when it says the "State concedes” anything relevant. Dissenting op. at 367. The State argues appellant’s objection at the revocation hearing was thorough and sufficiently specific to preserve a hearsay and confrontation objection. The State does not, as the dissent says, concede anything about appellant’s objection at the punishment hearing.
      The record shows that at the punishment hearing the trial court specifically tried to clarify the exact objection counsel was lodging. In response, counsel narrowed his objection to, "[H]e’s testifying from hearsay.” In neither his preliminary objection at the punishment phase, nor in his attempt to clarify his objection, did appellant ever mention his concern regarding his rights of confrontation. While he first globally stated he was renewing his prior objection that "its hearsay,” we cannot so boldly state, as the dissent does, that, "[ajppellant made it abundantly clear that his hearsay objection was an objection to the violation of his right to confront the witnesses implicated in State's Exhibit One.” Dissenting op. at ■ — . Further, the detailed and thorough objection the dissent incorporates into its opinion was the preliminary objection appellant made during the hearing on revocation. As we have noted, appellant narrowed his objection during the punishment phase to the "witness testifying from State’s Exhibit 1.” Further, as the State points out in its brief, it re-offered all of the probation officer’s testimony from the revocation hearing at the beginning of the punishment hearing without objection. We cannot see how the failure to clearly and adequately re-apprise the trial court of a constitutional objection one might have is an "overly technical ground[].” Dissenting op. at 368.

      . Small v. State, 977 S.W.2d 771, 776-77 (Tex.App.-Fort Worth 1998, no pet.) (Dau-phinot, J., concurring) (footnotes omitted) (citing Rinaldi v. Yeager, 384 U.S. 305, 310, 86 S.Ct. 1497, 1500, 16 L.Ed.2d 577 (1966); Phynes v. State, 828 S.W.2d 1, 2 (Tex.Crim. App.1992); Millican v. State, 145 Tex.Crim. 195, 167 S.W.2d 188, 191 (1943) (op. on reh’g)).

      . See Tex.Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp.2004-05).

      . Of course, a writ of habeas corpus under Article 11.07 of the Texas Code of Criminal Procedure is always available, but it seems an unnecessary burden to place on the Texas Court of Criminal Appeals. Id. art. 11.07 (Vernon 2005).

      . See Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 1759-60, 36 L.Ed.2d 656 (1973); Ruedas v. State, 586 S.W.2d 520, 523 (Tex.Crim.App. [Panel Op.] 1979).

      . See Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972).

      . Eldridge v. State, 731 S.W.2d 618, 619 (Tex. App.-Houston [1st Dist.] 1987, no pet.); see Gilbert v. State, 852 S.W.2d 623, 625-26 (Tex. App.-Amarillo 1993, no pet.) ("[A]rt.42.12, § 5(b) ... is not intended to preclude challenges to all of the rulings a trial court may potentially make in the course of a deferred adjudication proceeding.... The adjudication hearing must provide a defendant with minimum substantive and procedural due process protection.”); see also Homan v. Hughes, 708 S.W.2d 449, 452 (Tex.Crim.App.1986) (“Nothing in Art. 42.12 ... prohibits appeal of matters unrelated to the determination of guilt after a deferred adjudication. In fact, a plain reading of the germane section indicates just the opposite.”); Earley v. State, 855 S.W.2d 260, 261-63 (Tex.App.-Corpus Christi 1993), pet. dism’d, improvidently granted, 872 S.W.2d 758 (Tex.Crim.App.1994) (reversing trial court's revocation of straight probation in one case, deferred adjudication probation in two other cases, and a conviction in a fourth case because the trial judge predetermined the sentences, violating due course of law and due process); De Leon v. State, 797 S.W.2d 186, 187 (Tex.App.-Corpus Christi 1990, no pet.) ("[A] body of decisional law has developed to allow a defendant to raise limited challenges to the trial court's decision to adjudicate.”).

      . See Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 1374, 158 L.Ed.2d 177 (2004).

      . See, e.g., Earley, 855 S.W.2d at 262-63.

      . See, e.g., Lopez v. State, 96 S.W.3d 406, 416 (Tex.App.-Austin 2002, pet. ref'd).

      . In re L.M.I., 119 S.W.3d 707, 719 (Tex. 2003) (Owen, J., concurring and dissenting), cert. denied, Dueñas v. Montegut, 541 U.S. 1043, 124 S.Ct. 2175, 158 L.Ed.2d 733 (2004).


author: LEE ANN DAUPHINOT, Justice.

text:
    David Lee SALINAS, Appellant, v. The STATE of Texas, State.
    No. 2-03-338-CR.
    Court of Appeals of Texas, Fort Worth.
    May 19, 2005.

      Tim Curry, Criminal District Attorney, Charles M. Mallín, C. James Gibson, Dixie Bersano and James Cook, Assistant Criminal District Attorneys, Fort Worth, TX, for Appellant.
    Terry M. Casey, Fort Worth, TX, for Appellee.
    PANEL B: DAUPHINOT, HOLMAN, and GARDNER, JJ.
   OPINION

LEE ANN DAUPHINOT, Justice.

A jury convicted Appellant David Lee Salinas of aggravated sexual assault of a child and assessed his punishment at sixty years’ confinement in the Institutional Division of the Texas Department of Criminal Justice and a fine of $10,000. The trial court sentenced him accordingly. Appellant brings two points on appeal, arguing that the trial court erred in (1) granting the State’s challenge for cause to a member of the venire and (2) permitting the State’s expert to testify that she made a diagnosis of sexual abuse based solely on the self-reported medical history of the complainant because the expert’s testimony necessarily constituted a direct opinion on the credibility of the complainant. Because we hold that Appellant did not preserve his jury selection complaint and that the trial court’s error in admitting the expert’s testimony is not reversible, we affirm the trial court’s judgment.

BACKGROUND FACTS

At trial, H.W., the eight-year-old complainant, testified. She said that when she was six years old, she was awakened by Appellant, her cousin’s husband, penetrating her anally with his finger. She saw his face. H.W. demonstrated to the jury what had happened with anatomically correct dolls. The evidence showed that within twenty-four hours, H.W. told her mother what had happened, and H.W. was taken to the hospital. Approximately four and a half months later, Dr. Jamye Coffman performed a sexual assault examination on the complainant, finding no physical evidence of sexual assault.

ExpeRT Testimony

In his second point, Appellant raises a troubling issue, alleging that the trial court improperly admitted expert testimony that directly commented on the credibility of the complainant. Regarding the details of the offense, the complainant testified only that Appellant had penetrated her anus with his finger. The State later called Dr. Jamye Coffman, a pediatrician who specializes in child sexual abuse cases. Four and a half months after the event to which the complainant testified, Dr. Coff-man examined her. Dr. Coffman testified, and it is common knowledge, that generally there will be no physical evidence of the mere insertion of a finger into the anus of a six-year-old child. Yet Dr. Coffman was allowed to testify over Appellant’s objection that she diagnosed sexual abuse based solely upon the history provided by the complainant, and “she had an exam which was consistent with that history.” That is, Coffman diagnosed sexual abuse by digital penetration of the anus because the child told her that digital penetration had occurred and because there was no physical evidence of any sexual abuse.

It is well settled that a witness may not give an opinion as to the truth or falsity of other evidence. In Schütz, the Texas Court of Criminal Appeals held that the State’s expert’s statements that (1) the complainant did not exhibit any evidence of fantasizing in her testimony, (2) manipulation was a less likely explanation for the complainant’s allegations, and (3) the complainant’s allegations were not the result of fantasy constituted direct comments upon the truth of the complainant’s allegations.

In Yount, the Texas Court of Criminal Appeals examined the testimony of a pediatrician who was allowed to testify that her examination of the eight-year-old complainant, who had alleged digital penetration of the vagina, yielded no indications of abuse, but that of the hundreds of children she had examined, she had “seen very few cases where the child was actually not telling the truth.” The Yount court noted that “[v]irtually every jurisdiction which has addressed, in the context of a child sexual assault case, the admissibility of direct testimony as to the truthfulness of the child complainant, has held that such direct testimony is inadmissible.”

Our sister court in Dallas has also dealt with the propriety of expert testimony in a child sexual abuse case when the expert testimony went only to matters within the jurors’ experience. The Kirkpatrick court relied in part on the Texas Court of Criminal Appeals opinion in Steve v. State. “Whenever the jury is in possession of the same information as the witness and the jury can fully understand the matter and draw the proper inferences and conclusions, the witness’s testimony is unnecessary and inadmissible.”

In the case now before this court, the testimony of Dr. Coffman was a direct comment on the credibility of the complaining witness. Although Dr. Coffman could legitimately testify that she found no evidence of sexual abuse, she was allowed to testify over objection as follows:

Q. Did you conduct a physical exam of her after that history was taken?
A. Yes.
Q. And were there any physical findings?
A. No, there were not. She had a normal exam.
Q. Did you make a diagnosis in this case?
A. Yes.
Q. And what was that diagnosis?
A. The diagnosis is sexual abuse, and that was based on her history and that she had an exam which was consistent with that history.
Q. And a diagnosis by history, is that generally accepted in your profession?
A. Yes.

Because there was no physical indication of digital penetration, Coffman’s testimony can only be seen as an attempt to directly bolster the credibility of the complainant and a direct comment on the complainant’s truthfulness. Although Dr. Coffman could properly testify that the physical exam was normal, the trial court abused its discretion in admitting Dr. Coffman’s testimony that she had diagnosed sexual abuse based on the child’s medical history.

Having found error, we must conduct a harm analysis to determine whether the error calls for reversal of the judgment. Because Appellant has not raised constitutional concerns on appeal, we treat this as an error in the admission of evidence, which is not constitutional. Consequently, rule 44.2(b) is applicable. Therefore, we are to disregard the error unless it affected Appellant’s substantial rights. A substantial right is affected when the error had a substantial and injurious effect or influence on the jury’s verdict. In making this determination, we review the record as a whole.

Our review of the record shows that the complainant’s testimony about the sexual assault was clear and unequivocal and included a visual demonstration with anatomically correct dolls. Further, her outcry was prompt, occurring the day after the incident in question. Finally, our examination of the State’s final argument shows that the State did not emphasize Dr. Coffman’s testimony. Under the limited facts of this case, we hold that the error in admitting Dr. Coffman’s testimony concerning the complainant’s credibility did not have a substantial and injurious effect or influence on the jury’s verdict. We are mindful of the fifth prong of the Harris factors, that is, the likelihood that an error will be repeated with impunity, but the record in the particular case before us does not provide evidence concerning this prong. Consequently, we overrule Appellant’s second point.

Challenge FOR Cause

In his first point, Appellant argues that the trial court erred in granting the State’s challenge to a venire member who said that he could never convict on the testimony of a single witness. At trial, Appellant objected that the State’s question was an improper commitment question. On appeal, he argues that the venire member was not disqualified as a juror. Because Appellant’s complaint on appeal does not comport with his objection at trial, this complaint is not preserved for review. We overrule Appellant’s first point.

Conclusion

Having overruled both of Appellant’s points, we affirm the trial court’s judgment.

      . Schutz v. State, 957 S.W.2d 52, 59 (Tex.Crim.App.1997); Yount v. State, 872 S.W.2d 706, 708 (Tex.Crim.App.1993).

      . Schutz, 957 S.W.2d at 59.

      . Yount, 872 S.W.2d at 708.

      . Id. at 711 & n. 8.

      . Kirkpatrick v. State, 747 S.W.2d 833 (Tex. App.-Dallas 1987, pet. ref’d), overruled on other grounds, Duckett v. State, 797 S.W.2d 906 (Tex.Crim.App.1990).

      . 614 S.W.2d 137 (Tex.Crim.App.1981).

      . Id. at 139.

      . Tex.R.App. P. 44.2.

      . See Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App.1998).

      . Tex.R.App. P. 44.2(b).

      . Id.; see Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App.1998) (op. on reh’g), cert, denied, 526 U.S. 1070, 119 S.Ct. 1466, 143 L.Ed.2d 550 (1999); Coggeshall v. State, 961 S.W.2d 639, 642-43 (Tex.App.-Fort Worth 1998, pet. ref d) (en banc).

      . King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997) (citing Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946)); Coggeshall, 961 S.W.2d at 643.

      . Kotteakos, 328 U.S. at 764—65, 66 S.Ct. at 1248.

      . Harris v. State, 790 S.W.2d 568, 585-87 (Tex.Crim.App. 1989).

      . See Tex.R.App. P. 33.1(a)(1)(A); Heidelberg v. State, 144 S.W.3d 535, 538 (Tex.Crim.App.2004); Mosley, 983 S.W.2d at 265; Bell v. State, 938 S.W.2d 35, 54 (Tex.Crim.App.1996), cert. denied, 522 U.S. 827, 118 S.Ct. 90, 139 L.Ed.2d 46 (1997); Rezac v. State, 782 S.W.2d 869, 870 (Tex.Crim.App.1990).