author: Justice O’NEILL

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE CO. and Wendy Gramm, Petitioners, v. Alicia LOPEZ, Adan Munoz, Jr., Juan Llanes, Diana Moreno, and Albert Alaniz, on behalf of themselves and as representatives of a class, Respondents.
    No. 01-0540.
    Supreme Court of Texas.
    Argued April 14, 2004.
    Decided Dec. 3, 2004.

      P.M. Sehenkkan and William W. Dibrell, William Gerow Christian, John J. McKet-ta, III, Graves Dougherty Hearon & Moody, Austin, and Gary Gurwitz, Atlas & Hall, McAllen, for Petitioner.
    Adam Poncio, Law Offices of Cerda & Poncio, P.C., San Antonio, William D. Mount Jr., Roy S. Dale, Katie P. Klein, Dale & Klein, McAllen, Ramon Garcia, Law Offices of Ramon Garcia, P.C., Edin-burg, for Respondent.
    Sara Scribner and Karen Pettigrew, Office of Attorney General, Austin, for Ami-cus Curiae.
   Justice O’NEILL

delivered the opinion of the Court.

We granted Petitioners’ motion for rehearing on May 8, 2003, and withdrew our opinion and dismissal order of October 31, 2002. We now substitute the following opinion.

In this interlocutory appeal, State Farm Mutual Automobile Insurance Company challenges an order certifying a class of its Texas policyholders who seek refunds or dividends from the company’s surplus. The court of appeals affirmed. 45 S.W.3d 182, 185. We hold that the trial court failed to perform the rigorous analysis that class certification requires and abused its discretion in certifying the class. Accordingly, we reverse the court of appeals’ judgment and remand to the trial court for further proceedings consistent with this opinion.

I. Background

State Farm Mutual Automobile Insurance Company insures more than 34 million vehicles throughout all 50 states and Canada, including 3 million in Texas. Incorporated in Illinois under Illinois law as a mutual insurance company, State Farm has no investor-shareholders. Instead, it is owned by its policyholders, who elect its board of directors. Under the company’s by-laws, the board is vested with authority to manage and control the company’s affairs. The by-laws authorize the board to issue refunds or dividends to policyholders “upon such terms and conditions and in such amounts or percentages” as the board, in its judgment, deems “proper, just and equitable,” subject to governing laws and regulations. Under Texas Department of Insurance regulations, State Farm cannot pay a dividend in Texas without the Department’s approval. See 28 Tex. Admin. Code § 5.102 (2004) (Tex. Dep’t of Ins., Dividends Procedure).

State Farm, like all insurance companies, maintains a “surplus” or “policyholder protection fund” representing the difference between its assets, including invested premiums, and its liabilities, ■ including loss reserves. The fund is intended to assure that sufficient resources are available to cover policyholder claims in the event of catastrophic occurrences like earthquakes or hurricanes, or the sudden depletion of assets due to economic downturns. This fund provides the source of any dividends paid to policyholders, State Farm does not factor the payment of dividends into the calculus when it sets rates. Instead, dividends may be paid, and/or the company may choose to lower its premium rates, when the company’s losses and its financial condition prove to be better than expected. When the board decides to declare a dividend, it allocates the payment among the various states policy’ holders based upon its loss experience in each particular state. So, for example, when State Farm declared a dividend in 1998, Texas policyholders received 20 percent of the total national dividend, though only 8 percent of its insured vehicles are in Texas.

Every State Farm policy provides:

The policyholder is a member of the company and shall participate, to the extent and upon the conditions fixed and determined by the Board of Directors in accordance with the provisions of law, in the distribution of dividends so fixed and determined.

In 1998, State Farm policyholders Alicia Lopez, Adan Munoz, Jr., Juan Llanes, Diana Moreno, and Albert Alaniz sued State Farm and its directors asserting a right to refunds and/or dividends under this provision. Plaintiffs’ Third Amended Petition alleged that State Farm’s 1997 balance sheet reflected a “surplus as regards” policyholders of $37,608,321,862, an increase of more than $7.5 billion over the previous year. They further alleged that the board of directors had abused its discretion in failing to declare adequate dividends and that, given such a surplus, the company and its directors had breached a contractual obligation to pay sufficient dividends. In addition, plaintiffs asserted claims for fraud, malicious suppression of dividends, breach of fiduciary duty, and misrepresentation. They seek “payment of a reasonable dividend, or a return or credit from the savings and gains of the corporation.”

Plaintiffs requested that the trial court certify a class under Texas Rule of Civil Procedure 42(b)(1)(A), (B), and (4). They initially sought to certify a nationwide class of all State Farm policyholders from 1994 up until the time of trial, but at the certification hearing limited their request to a class of Texas policyholders. The trial court granted plaintiffs’ certification motion. The order, in its entirety, provides:

Plaintiffs Second Amended Motion for Class Certification came on for hearing on August 31, 1999. Having considered the papers filed in support of, and in opposition to the Second Amended Motion for Class Certification, the evidence presented, and the argument of counsel, the court finds that said motion is well-taken.

THE COURT THEREFORE ORDERS AS FOLLOWS:

1. Plaintiffs’ Second Amended Motion for Class Certification is GRANTED; and
2. The certified class is defined as all persons and entities who are or had been policyholders of vehicle casualty policies issued by STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY in the State of Texas during the years 1994, 1995, 1996, 1997, 1998, and 1999 and up to the time of trial.

State Farm and director Wendy Gramm filed an interlocutory appeal of the certification order under section 51.014(a)(3) of the Texas Civil Practice and Remedies Code. After briefs were filed in the court of appeals, we decided Southwestern Refining Co. v. Bernal, holding that it was improper for a trial court to certify a class without performing a rigorous analysis of class-certification prerequisites and without indicating how the claims will likely be tried. 22 S.W.3d 425, 435 (Tex.2000). The court of appeals affirmed the certification order. 45 S.W.3d at 185. On rehearing, the court of appeals held that . State Farm had waived any argument that Bernal required a trial plan for .certification. 68 S.W.3d 701, 702. The court also held that Bernal does not require a trial plan in every certification order, particularly here, when predominance and superiority ■ are not challenged. Id. We initially dismissed State Farm’s petition for review for want of jurisdiction, 46 Tex. Sup.Ct. J: 129, 130 (Nov. 2, 2002), but granted the petition on rehearing to reconsider our jurisdiction over this appeal.

II. Jurisdiction

Jurisdiction over interlocutory appeals is generally final in the courts of appeals. Tex. Gov’t Code § 22.225(b)(3). Jurisdiction in this court is proper, however, if the court of appeals “holds differently from a prior decision of another court of appeals or of the supreme court.” Id. §§ 22.225(c), 22.001(a)(2). State Farm contends that we have jurisdiction over this appeal because the court of appeals’ decision conflicts with our decision in Ber-nal.

Our conflicts jurisdiction arises when, applying the same standards, two decisions cannot stand together; that is, one decision would operate to overrule the other had it been issued by the same court. Compaq Computer Corp. v. Lapray, 135 S.W.3d 657, 663 (Tex.2004). It is not necessary that one court expressly disavow the other court’s decision for conflicts jurisdiction to exist. Henry Schein, Inc. v. Stromboe, 102 S.W.3d 675, 689 (Tex.2003). Instead, a conflict may arise when one court “correctly state[s] the law but misapplie[s] it.” Id.; see also Snyder Communications, L.P. v. Magana, 142 S.W.3d 295, 298 (Tex.2004).

The court of appeals determined that Bernal does not “require a trial plan in every class certification order.” 68 S.W.3d at 702. Upon initial review, we dismissed State Farm’s petition for review for want of jurisdiction, concluding that the court of appeals’ statement regarding a trial plan was mere dicta because the court had first determined that State Farm waived the issue by not timely raising it. 46 Tex. Sup.Ct. J. at 130. In its motion for rehearing, State Farm claims we failed to apply the standard for distinguishing between alternative holdings and dicta that we applied in Texas Natural Resource Conservation Commission v. White, 46 S.W.3d 864, 868 (Tex.2001). On further consideration, we are persuaded that State Farm is correct.

In TNRCC v. White, the respondent argued that the alleged conflicting case, Schaefer v. City of San Antonio, 838 S.W.2d 688 (Tex.App.San Antonio 1992, no writ), would not support conflicts jurisdiction because it rested upon alternative holdings, which rendered the conflicting portion “merely dicta.” 46 S.W.3d at 867. We rejected this argument and held that the standard for conflicts jurisdiction was met:

The Schaefer court made two holdings: (1) the city was not “operating” or “using” the water pump and (2) the pump was not “motor-driven equipment.” Id. at 693. Certainly, the court could have relied on either determination to reach its ultimate conclusion that sovereign immunity had not been waived. But it relied on both.

Id. at 868. As in TNRCC v. White, the court of appeals here relied on both waiver (“[w]e hold that appellants have waived this issue”) and its conclusion that a trial plan was not necessary (“[w]e hold that a trial plan is not necessary in this case”) to affirm the trial court’s certification order. 68 S.W.3d at 702. The court’s holding that a trial plan is unnecessary in this case cannot be reconciled with Bernal.

The court of appeals’ holding is also irreconcilable with Bernal in that it limits the intended reach of our decision. The court determined that the predominance and superiority class-certification requirements are not in issue here, as they were in Bernal, and therefore a trial plan is unnecessary. It is true that our focus in Bernal was on these specific class-certification prerequisites, but our holding was not limited to these elements. To the contrary, we held that “[cjourts must perform a ‘rigorous analysis’ before ruling on class certification to determine whether all prerequisites to certification have been met.” 22 S.W.3d at 435 (emphasis added) (citing General Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982)). We continued:

Thus- it is improper to certify a class without knowing how the claims can and will likely be tried. See Castano v. American Tobacco Co., 84 F.3d 734, 744 (5th Cir.1996). A trial court’s certification order must indicate how the claims will likely be tried so that conformance with Rule 1$ may be meaningfully evaluated.

Id. (emphasis added). Requiring a certification order to contain a trial plan allows a reviewing court to meaningfully evaluate whether certification of the class conforms with all Rule 42 prerequisites. Id.

In the present case, for example, State Farm contended in the trial court that the class should not be certified because Illinois law governs the action and would operate to bar the class representatives’ claims. Because the class representatives have no viable claims, State Farm argued, the class representatives’ claims failed to satisfy Rule 42(a)(3)’s typicality requirement. State Farm also argued that the class representatives could not adequately represent the class due to irreconcilable conflicts between class members who held policies at different times. According to State Farm, a conflict of interest exists between present policyholders, like the class representatives, who are more interested in assuring that adequate reserves are available to pay claims, and past policyholders, who are more interested in receiving maximum dividend payments. Because the trial court’s certification order addressed neither the choice-of-law issue State Farm raised nor the potential antagonism between present and past policyholders, it failed to reflect the rigorous analysis that we require for all class-certification prerequisites, including Rule 42(a)’s typicality and adequate-representation requirements. Accordingly, the court of appeals’ decision conflicts with Bernal, and we have jurisdiction in this interlocutory appeal.

III. Certification

A. Waiver

The policyholders claim the court of appeals correctly concluded that State Farm waived its no-trial-plan challenge to the certification order by failing to raise it until its motion for rehearing. We disagree. State Farm’s initial brief in the court of appeals argued that a trial court has a duty to identify the substantive legal issues that will control the litigation’s outcome, thus articulating one of the primary underpinnings of Bernal’s trial-plan requirement. State Farm expressly challenged the certification order’s conformance with Bernal for the first time in its reply brief because our Bernal opinion issued after the parties’ initial briefs were filed in the court of appeals. State Farm argued that the trial court’s certification order reflected the “approach of certify now and worry later” we rejected in Ber-nal, and noted that Bernal requires courts to go “beyond the pleadings” and “ ‘understand the claims, defenses, relevant facts, and applicable substantive law in order to make a meaningful determination of certification issues.’” Reply Brief of Appellants at 20 (quoting Bernal, 22 S.W.3d at 435 (quoting Castano v. Am. Tobacco Co., 84 F.3d 734, 744 (5th Cir.1996))). These arguments were sufficient to inform the court of appeals of State Farm’s essential complaint. See Tex. Mexican Ry. Co. v. Boucket, 963 S.W.2d 52, 54 (Tex.1998).

B. Compliance with Bernal

State Farm argues that the trial court abused its discretion by failing to conduct a rigorous analysis of class-certification requirements indicating ■ how the claims can and will likely be tried. Specifically, State Farm claims the trial court developed no plan to assure that the fundamentally conflicting economic interests among Texas policyholders are adequately represented. The divergent interests of different groups of current and former policyholders from different years, each of which would compete for a share of the alleged surplus, cannot possibly be adequately represented by one class with one counsel, State Farm claims. In addition, State Farm contends the trial court wholly failed to consider protecting the interests of policyholders from states other than Texas. Finally, State Farm contends the trial court failed to consider application of Illinois law to the policyholders’ claims, which in State Farm’s view would defeat the class.

We agree that the trial court’s certification order is infirm in each.of these respects, and we reject the policyholders’ argument that Bernal’s rigorous-analysis requirement applies only to predominance and superiority. As we have already said, a trial plan is required in every certification order to allow reviewing courts to assure that all requirements for certification under Rule 42 have been satisfied. The formulation of a trial plan assures that a trial court has fulfilled its obligation to rigorously analyze all certification prerequisites, and “ ‘understand^ the claims, defenses, relevant facts, and applicable substantive law in order to make a meaningful determination of the certification issues.’ ” Bernal, 22 S.W.3d at 435 (quoting Castano, 84 F.3d at 744).

Here, State Farm raised significant choice-of-law issues and also argued that the interests of the class representatives and other class members were antagonistic. We recently emphasized that courts must resolve any choice-of-law issues the parties have raised before certifying a class in order to determine how the case will be tried. Compaq, 135 S.W.3d at 672, 680. Similarly, a class representative whose interests conflict with those of other class members may not adequately represent a class. See Valley Drug Co. v. Geneva Pharms., Inc., 350 F.3d 1181, 1189 (11th Cir.2003). Although State Farm raised serious issues regarding which state’s substantive law would govern trial of the case and potential antagonism between class members, nothing in the trial court’s order suggests that the trial court took those issues into account when it certified the class. The order reflects the “certify now and worry later” approach that we firmly rejected in Bernal and ignores the “cautious approach to class certification” that we have deemed “essential.” Bernal, 22 S.W.3d at 435. Accordingly, the court of appeals erred in affirming the certification order.

State Farm claims that, at a minimum, we should decertify the class and remand to allow the trial court to perform the rigorous analysis that Bernal requires. But it claims we should go further and dismiss the policyholders’ claims on the merits for a number of reasons; specifically, the policy does not create the duty class counsel claims, State Farm made no false communication, there was no rehance by the policyholders, no fiduciary duty exists between a mutual insurance company and its policyholders, and the common-law internal affairs doctrine and article 8.02A of the Texas Business Corporation Act dictate the application of Illinois law, which bars the classmembers’ claims. Because the putative class representatives have no viable claims, State Farm reasons, they cannot meet Rule 42(a)(3)’s typicality requirement and we should render final judgment against them.

In its certification order, the trial court did not identify the specific causes of action to be decided in this case, nor did it indicate how they would be tried or the substantive issues that would control their disposition. Thus, there is no meaningful way for us to evaluate the substance of the policyholders’ claims. We note that State Farm has filed special exceptions and a plea to the jurisdiction in the trial court which are not in the record before us. The record reflects no ruling on those motions. If it is true, as State Farm contends, that no class member can state a viable claim, dispositive issues should be resolved by the trial court before certification is considered. See Cowen v. Bank United of Texas, 70 F.3d 937, 941-42 (7th Cir.1995). Given the state of the record, however, we decline to resolve these issues in this interlocutory appeal of the trial court’s certification order.

IV. Conclusion

We hold that the trial court abused its discretion in certifying a class without formulating a trial plan confirming that it has rigorously analyzed the requirements of Rule 42. Accordingly, we reverse the court of appeals’ judgment and remand to the trial court for further proceedings consistent with this opinion.

Justice SMITH and Justice MEDINA did not participate in the decision.

      . Plaintiffs also sued State Farm County Mutual Insurance Company, but none of the putative class representatives aré policyholders and the trial court did not certify a class as to that company. Alma Cavazos also asserted a claim, which she later nonsuited; accordingly, she is no longer identified as a class representative.

      . Rule 42 has since been amended to eliminate former subsection (b)(3). Former subsection (b)(4), which allowed for class certification if common questions of law and fact predominate over individual issues and a class action is a superior method of adjudicating a controversy, is now subsection (b)(3). In this opinion, we will refer to this provision as it was numbered at the time the class was certified.

      . Other board members specially appeared in the trial court, but are not parties to this appeal. We will refer to State Farm and director Wendy Gramm collectively as State Farm.

      .We abated these proceedings to allow the parties to request that the trial court amend the class definition. The amended definition excludes from the class "all serving judges and justices of the State of Texas and their spouses and anyone within three degrees of consanguinity to any serving judge or justice of the State of Texas.”

      . In 2003, the Legislature amended section 22.225(b) to give this Court jurisdiction over interlocutory appeals of orders certifying or refusing to certify a class. See Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 1.02, 2003 Tex. Gen. Laws 847, 848-49. That change does not apply to this appeal. Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 23.02(a), (d), 2003 Tex. Gen. Laws 847, 898-99.

      . In 2003, the Legislature amended section 22.225 of the Government Code to articulate the conflict standard for interlocutory appeals. Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 1.02, 2003 Tex. Gen. Laws 847, 849. Section 22.225(e) now provides:
      For purposes of Subsection (c) [conflict jurisdiction], one court holds differently from another when there is inconsistency in their respective decisions that should be clarified to remove unnecessary uncertainty in the law and unfairness to litigants.
      The amendment does not apply to this appeal. Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 23.02(d), 2003 Tex. Gen. Laws 847, 899.

      . According to the United States Supreme Court, "The internal affairs doctrine is a conflict of laws principle which recognizes that only one State should have the authority to regulate a corporation's internal affairs — matters peculiar to the relationships among or between the corporation and its current officers, directors, and shareholders....” Edgar v. MITE Corp., 457 U.S. 624, 645, 102 S.Ct. 2629, 73 L.Ed.2d 269 (1982). Similarly, article 8.02(A) of the Texas Business Corporation Act provides that "only the laws of the jurisdiction of incorporation of a foreign corporation shall govern ... the internal affairs of the foreign corporation.” Tex Bus. Corp. Act art. 8.02(A).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re AUTOMATED COLLECTION TECHNOLOGIES, INC., Relator.
    No. 03-0280.
    Supreme Court of Texas.
    Dec. 3, 2004.

      Thomas Dean Malone, Michael T. O’Connor, Law Office of Dean Malone, P.C., Dallas, John Martin Henrieh, Richardson, for relator.
    Gerald P. Urbach, Aaron Starr Thes-man, Hiersche Hayward Drakeley & Ur-bach, P.C., Addison, for respondent.
   PER CURIAM.

The trial court denied a motion to enforce a contractual agreement requiring the parties to litigate all disputes in Montgomery County, Pennsylvania. We recently held that failure to enforce such an agreement constitutes a clear abuse of discretion for which there is no adequate remedy by appeal. We therefore conditionally grant a writ of mandamus directing the trial court to dismiss this case.

Professional Systems ' Corporation (PSC), a Pennsylvania corporation, sued Automated Collection Technologies, Inc., a Texas corporation, for failure to pay for services rendered pursuant to a written contract. The contract provides:

APPLICABLE LAW — -The validity, performance and construction of this Agreement shall be governed by the laws of the Commonwealth of Pennsylvania. The parties hereto consent to the exclusive jurisdiction of the courts of Montgomery County, Pennsylvania. Any claim arising out of or related to this Agreement must be brought no later than six months after it has accrued.

Despite this provision, PSC sued Automated in Dallas County, Texas, Automated’s principal place of business.

Automated answered with general and special denials and counterclaims for declaratory judgment, fraudulent inducement, breach of contract, negligence, and attorney’s fees. Four months later, Automated filed a motion to dismiss based on the foregoing forum-selection clause and amended its answer to include a request for dismissal. In the interim, Automated had served requests for disclosure, twenty-eight requests for production, twenty-five requests for admissions, and nine interrogatories. Shortly after filing the motion to dismiss, Automated filed a motion to compel discovery, claiming that PSC waived any objections to Automated’s first requests for production by failing to timely respond to those requests.

Although PSC is a Pennsylvania corporation, it opposed enforcement of the forum-selection clause, designating Montgomery County, Pennsylvania as the exclusive forum, on the grounds that enforcement of such clauses is permissive, not mandatory. PSC also argued that Automated “waived enforcement of the clause by acting inconsistently with its right to enforce same by seeking affirmative relief and invoking the jurisdiction of the court under the specific contract.” PSC never asserted that the forum-selection clause is invalid or unenforceable or that it had suffered any prejudice as a result of Automated’s delay, participation in the lawsuit, or counterclaims.

After a hearing at which no evidence was introduced by either party, the trial court denied the motion to dismiss without stating its reasons, but a docket sheet entry notes “waiver found.” The court of appeals denied Automated’s petition for writ of mandamus, and Automated now seeks mandamus relief from this Court.

In In re AIU Insurance Co., we held that enforcement of forum-selection clauses is mandatory unless the party opposing enforcement “clearly show[s] that enforcement would be unreasonable and unjust, or that the clause was invalid for such reasons as fraud or overreaching.” PSC has not sustained its burden. PSC submitted no evidence showing that enforcement of the clause would be unreasonable or unjust and does not assert that the clause is invalid. The trial court was therefore required to enforce the forum-selection clause. Because the court failed to do so, mandamus relief is warranted.

Automated did not waive enforcement of the forum-selection clause by seeking affirmative relief on the underlying contract and by participating in the underlying litigation. In AIU, we addressed a similar waiver argument and concluded that a delay of five months in seeking enforcement of a forum-selection clause along with requesting a jury trial, paying the jury fee, and filing a general denial that did not raise the forum selection issue were not sufficient to waive the forum-selection clause under consideration in that case. In so holding, we relied on cases concerning waiver in the arbitration context, which we found to be analogous. In re Bruce Terminix Co., an arbitration case, held that “[ejven substantially invoking the judicial process does not waive a party’s arbitration rights unless the opposing party proves that it suffered prejudice as a result.”

PSC asserts that “[t]he parties have spent significant time and resources litigating this dispute ... [and] [a] dismissal would result only in duplication of time and resources that are unnecessary.” But this does not establish that PSC has been prejudiced by Automated’s participation in the underlying litigation and four-month delay in seeking enforcement of the forum-selection clause. Moreover, PSC chose to initiate proceedings in a forum other than the one to which it contractually agreed and cannot complain about any duplication of time or efforts that resulted from that choice.

For the foregoing reasons, we grant Automated’s petition for writ of mandamus and, without hearing oral argument, direct the trial court to promptly dismiss this case. Our writ will issue only if the court fails to do so.

Justice MEDINA did not participate in the decision.

      . In re MU Ins. Co., 148 S.W.3d 109, 115 (Tex.2004).

      . PSC did not sign the underlying contract, which it appears to have drafted, but does not dispute that it is bound by the contract or that ■ it is affirmatively seeking relief based on the contract.

      . Id. at 112 (quoting M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972)).

      . Id.

      . Id.

      . In re Bruce Terminix Co., 988 S.W.2d 702, 704 (Tex.1998).

      . Tex.R.App. P.59.1.


author: Justice BRISTER

text:
    Columbus P. BROWN, a/k/a C.P. Brown, Petitioner, v. Arturo DE LA CRUZ, Respondent.
    No. 03-0703.
    Supreme Court of Texas.
    Argued April 14, 2004.
    Decided Dec. 3, 2004.

      Bryan H. Hall, Richard & Hall, P.C., El Paso, Jeffery B. Thompson, Alto, NM, for petitioner.
    Anthony C. Aguilar, Law Office of Tony Aguilar, El Paso, for respondent.
    Deborah G. Hankinson, Rick Thompson, Law Office of Deborah Hankinson, PC, Dallas, for amicus curiae Texas Financial Services Association.
    Greg Abbott, Atty. Gen., Danica Lynn Milios, Barry Ross McBee, Edward D. Burbach, Rafael Edward Cruz, Office of Atty. Gen., Austin, for amicus curiae State of Texas.
    Michael S. Lee, The Lee Firm, Corpus Christi, for amicus curiae Jose Torres.
   Justice BRISTER

delivered the opinion of the Court, in which Chief Justice JEFFERSON, Justice HECHT, Justice OWEN, Justice O’NEILL, Justice WAINWRIGHT, and Justice MEDINA joined.

Since 1995, the Texas Property Code has required that sellers by executory contract (or “contract for deed”) of certain residential property in Texas must record and transfer a deed within thirty days of final payment. In this case, a seller subject to the statute delivered title almost four years too late.

From 1995 to 2001, the Property Code provided that failure to comply was “subject to a penalty” of up to $500 a day. By amendment in 2001, the Code now provides that such a seller is “liable to the purchaser for ... liquidated damages” in the same amount. The 2001 amendment clearly provides a private cause of action for purchasers; the question presented is whether the original statute (which alone governs this case) did as well.

The trial court held it did not, and granted a take-nothing summary judgment. The court of appeals reversed. For the reasons stated below, we agree with the trial court that a private cause of action was not created until -2001, and accordingly reverse the • court of appeals’ judgment.

I

On December 3, 1984, Columbus P. Brown agreed to sell unimproved real property described as Lot 3, Block 5, Roseville Subdivision, El Paso County, Texas to Arturo De La Cruz for $13,500. The executory contract provided for immediate possession by De La Cruz, but Brown was to retain title until De La Cruz paid the purchase price plus 12% interest (totaling $26,063.83). De La Cruz’s wife (whom he had remarried during the contract period) personally made the final payment on June 9, 1997, and requested that her name be added to the deed. Because De La Cruz was not present and only he was listed as buyer on the contract for deed, Brown’s employees directed her to an attorney to accomplish her request. De La Cruz did not hire an attorney due to the expense, and Brown did not deliver a warranty deed within thirty days, as ■required both by the parties’ contract and the enactment of Texas Property Code section 5.102 in 1995.

Almost four years later, still having received no deed, De La Cruz filed the present lawsuit against Brown on January 26, 2001. He alleged no lost sales or other actual damages of any kind; instead, he sought $664,500 in section 5.102 statutory penalties — almost fifty times the original sales price. On March 30, 2001, Brown recorded what he denominated a “replacement warranty deed” delivering title to De La Cruz.

The parties filed cross-motions for summary judgment, De La Cruz contending he was entitled to the statutory penalties, and Brown contending section 5.102 did not grant De La Cruz a private cause of action, and alternatively that recovery was barred by laches and the constitutional limit on excessive fines. The trial, court granted Brown’s motion for summary judgment without specifying reasons.

The court of appeals reversed, finding nothing in section 5.102 authorizing the Attorney General to collect the statutory penalty, and no one else to enforce the statute if De La Cruz could not. The court remanded for consideration of Brown’s other defenses. We granted Brown’s petition to review this issue of statutory construction.

II

When a private cause of action is alleged to derive from a constitutional or statutory provision, our duty is to ascertain the drafters’ intent. For example, in City of Beaumont v. Bouillion, we held that the Texas Constitution created a private action for damages only if the language of the specific provisions involved clearly implied one. Thus, we noted that the takings section implied a private action for damages by prohibiting takings “without adequate compensation,” while the free speech and assembly sections implied only a private equitable action (not damages) by declaring that violations “shall be void.” Federal law is to the same effect.

Accordingly, the answer in this case must be found in the language of section 5.102. When enacted in 1995, that section provided in pertinent part:

(a) The seller shall transfer recorded, legal title of the property covered by the executory contract to the purchaser not later than the 30th day after the date the seller receives the purchaser’s final payment due under the contract.
(b) A seller who violates Subsection (a) is subject to a penalty of:
(1) $250 a day for each day the seller fails to transfer the title to the purchaser during the period that begins the 31st day and ends the 90th day after the date the seller receives the purchaser’s final payment due under the contract; and
(2) $500 a day for each day the seller fails to transfer title to the purchaser after the 90th day after the date the seller receives the purchaser’s final payment due under the contract.

The statute expressly provides for a penalty, but is silent about who may collect it.

Sixty years ago, we construed a statute containing precisely the same language to exclude a private action for damages. In Agey v. American Liberty Pipe Line Co., an oil producer brought suit under a statute providing that violations of certain rules governing pipelines “shall be subject to a penalty” of up to $1000 per day. The statute in that case gave more direction than section 5.102, in that it directed half of the penalty was “recoverable in the name of the State” and the other half “in the name of and for the use of the party or parties aggrieved.” Nevertheless, we concluded “that a statute which imposes a penalty must be strictly construed, and that a person who seeks to recover a penalty thereunder must bring himself clearly within the terms of the statute.” Because the individual in that suit had not joined the attorney general and nothing in the statute authorized him to bring suit on the State’s behalf, we held the statute did not authorize him to bring the action on his own.

We believe this is still the correct interpretation. Generally, a statutory penalty or fine is not payable to a private litigant. For example, the Texas Whis-tleblower Act authorizes a private action for “damages” to private litigants, but a “civil penalty” of up to $15,000 collectible only by public prosecutors. Virtually all other statutes that imposed a daily penalty in 1995 when section 5.102 was enacted authorized collection only by the Attorney General or some other governmental entity or representative. Without some indication in section 5.102 that this penalty belongs to De La Cruz, we do not believe he has brought himself so clearly within the statute’s terms as to justify implying a private cause of action.

This construction of section 5.102 is supported by the subsequent amendments to it. When the section was amended and' renumbered as Property Code section 5.079 in 2001, paragraph (a) was left intact, but paragraph (b) was amended to read:

(b) A seller who violates Subsection (a) is liable to the purchaser for:
(1) liquidated damages in the amount of:
(A) $250 a day for each day the seller fails to transfer the title to the purchaser during the period that begins the 31st day and ends the 90th day after the date the seller receives the purchaser’s final payment due under the contract; and
(B) $500 a day for each day the seller fails to transfer title to the purchaser after the 90th day after the date the seller receives the purchaser’s final payment due under the contract; and
(2) reasonable attorney’s fee s.

De La Cruz asserts this amendment made explicit what the Legislature had intended in 1995. For three reasons, we disagree.

First, if the Legislature intended merely to clarify who could recover the penalty, the substitution of “liable to the purchaser” would have been sufficient. Instead, by changing “penalty” to “liquidated damages” and adding a provision for attorney’s fees, the Legislature changed not just the recipient but the nature of the amounts assessed.

Second, the Legislature made its amendment of paragraph (b) applicable only to violations occurring after September 1, 2001; “[a] violation that occurs before September 1, 2001, is covered by the law in effect when the violation occurred, and the former law is continued in effect for that purpose.” By contrast, paragraph (a), which was left intact, was made applicable to all contracts for deed, whether signed before or after the amendment’s effective date. If the Legislature intended neither to be a substantive change, it is hard to see why one was made prospective only.

Third, the Bill Analysis to the 2001 amendment indicates the amendment was a change rather than a clarification:

Redesignates existing Section 5.102 as Section 5.079. TITLE TRANSFER. Provides that a seller who violates Subsection (a) is liable to the purchaser for, rather than subject to a penalty of, liquidated damages in certain amounts, and reasonable attorney’s fees.

In Subaru of America, Inc. v. David McDavid Nissan, Inc., we reviewed similar language in a bill analysis, and concluded that by describing the amendment as making the Motor Vehicle Board’s jurisdiction “exclusive, rather than general ” as to some “rather than all aspects ” of marketing, the Legislature intended to change prior law. A similar analysis supports a similar conclusion here.

Penal statutes are still strictly construed, and nothing in section 5.102 as originally enacted suggests that a private cause of action was intended. By longstanding precedent, a statute providing for a daily penalty unrelated to actual losses must be strictly construed, and may be asserted in a private cause of action only if the statute clearly so provides. As the Legislature did not do so here until 2001, it did not authorize De La Cruz to bring this action on his own.

Ill

The court of appeals felt compelled to imply a private cause of action, finding that the Attorney General of Texas had no authority to enforce section 5.102, and fearing that otherwise the provision would go unenforced. In response to our request, the Attorney General in an amicus brief conceded that no action for section 5.102’s penalties had ever been filed by that office, but asserted the authority to do so under the Texas Deceptive Trade Practices-Consumer Protection Act.

As the Attorney General is not a party in this proceeding, we cannot decide this question without rendering an advisory opinion, which the separation-of-powers provision of the Texas Constitution forbids. Nevertheless, even if future events prove that section 5.102 is unenforceable by any public official, attorney, or agency, we do not believe that alone would justify an implied private cause of action here for several reasons.

First, as noted above, this is a penal statute that would in many instances impose a fine far beyond the damages that a purchaser is likely to suffer. As we held long ago in Agey, the Legislature may grant private standing to bring such actions, but it must do so clearly. Section 5.102’s silence regarding private causes of action is not made any clearer by its similar silence on public ones.

Second, legislative silence (as we recently observed) may reflect many things, including implied delegation to the courts or administrative agencies, lack of consensus, oversight, or mistake. From the record here, we cannot presume that the Legislature’s silence regarding who may bring suit under section 5.102 was necessarily the first rather than any of the others. It is certainly true that we do not lightly presume the Legislature may have done a useless act, and will not read statutory language to be pointless if it is reasonably susceptible of another construction. But as both these statements suggest, we must recognize that possibility. It is at least theoretically possible that legislators — like judges or anyone else— may make a mistake. That does not give us the power (as the United State Supreme Court has stated) “to legislate ... to fill any hiatus Congress has left.”

Third, while we must look to a statute’s underlying purpose, guidance from that direction will usually be less helpful when the issue is not whether a wrong should be addressed but whether private parties are entitled to do so. Modern legislatures may delegate enforcement to executive departments, administrative agencies, regulatory commissions, local governments and districts, as well as the criminal or civil courts; with such a myriad of tools at the Legislature’s disposal, we cannot always assume that we must be the hammer.

Finally, the unique bifurcated structure of the Texas court system calls for peculiar deference to legislative choices regarding the method of enforcement. Criminal and civil jurisdiction is divided among Texas’s highest courts, and in many counties among trial courts as well. While only a civil penalty is involved here, penal statutes often include criminal penalties; too permissive an implication of private civil actions to enforce penal acts would sometimes supplant not just the criminal law but the criminal courts as well. As no higher tribunal can settle jurisdictional disputes we might have with our sister court, we must be especially reticent to adopt a rule that may assume jurisdiction the Legislature never intended.

Several courts of appeals have cited a rule of “necessary implication” — that when a legislative enforcement scheme fails to adequately protect intended beneficiaries, the courts must imply a private cause of action to effectuate the statutory purposes. Some cite at the same time a contradictory rule of strict construction— that causes of action may be implied only when a legislative intent to do so appears in the statute as written. The basis for the former rule appears to be federal cases that have now been abandoned in favor of the latter rule. To the extent there has been confusion about the Texas rule, we too disapprove of the former in favor of the latter.

IV

While we have sometimes employed several other tools of statutory construction, none provides any additional guidance here.

Legislative history may sometimes provide insight as to legislative intent, but in this case there is very little on the question before us. One of-section 5.102’s coauthors thought the Attorney General would “continue to sue developers and to make developers accountable for failure to meet contractual agreements with purchasers;” but while this supports the Attorney General’s arguments, it indicates nothing either way regarding private causes of action.

Additionally, when the Legislature includes a right or remedy in one part of a code and omits it in another, that may be precisely what the Legislature intended. But here other parts of Chapter 5 of the Texas Property Code expressly provided for both public and private causes of action. We cannot tell from section 5.102’s surrounding provisions which remedy the Legislature may have intended to omit here.

Finally, we recognize that even if a statute does not explicitly create a private cause of action, in some circumstances it may establish a standard of conduct that is enforceable under pre-existing common-law actions. But as section 5.102 required Brown to do nothing more than what the parties’ contract already required, neither party asserts it created a new standard of conduct. Instead, it created a new penalty for which there was no common-law precedent. Thus, it must be construed strictly, in accordance with the rules noted above.

“The very balance of state governmental power imposed by the framers of the Texas Constitution depends on each branch, and particularly the judiciary, operating within its jurisdictional bounds.” By implying a private cause of action in a statute that did not provide for one, the court of appeals exceeded those bounds. Accordingly, we reverse that court’s judgment and render judgment that De La Cruz take nothing.

Justice SMITH concurred in the judgment only.

      . Act of June 17, 1995, 74th Leg., R.S., ch. 994, § 3, 1995 Tex. Gen. Laws 4982, 4988 (amended 2001) (current version at Tex. Prop. Code § 5.079(a)).

      . Id.

      . Tex. Prop.Code § 5.079(b).

      . 109 S.W.3d 73, 79-80.

      . See Act of June 13, 2001, 77th Leg., R.S., ch. 693, § 1, 2001 Tex. Gen. Laws 1319, 1328; Act of June 17, 1995, 74th Leg., R.S., ch. 994, § 3, 1995 Tex. Gen. Laws 4982, 4988 (amended 2001); see also Salinas v. Beaudrie, 960 S.W.2d 314, 319 (Tex.App.-Corpus Christi 1997, no pet.) (holding section 5.102 applicable to contract for deed if final payment occurred after September 1, 1995).

        . Tex. Const, art. I, § 13 (“Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted.”); see Pennington v. Singleton, 606 S.W.2d 682, 690 (Tex.1980) (holding constitutional limit on excessive fines extends to civil penalties).

      . 109 S.W.3d at 78-79.

      . Id. at 79-80.

      . Tex. Gov’t Code § 22.001(a)(3).

      . Rocor Int'l, Inc. v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, 77 S.W.3d 253, 260 (Tex.2002).

      . 896 S.W.2d 143, 148-49 (Tex.1995).

      . Id. at 149; see Tex. Const, art. I, § 17 (emphasis added); see also Steele v. City of Houston, 603 S.W.2d 786, 791 (Tex.1980) ("The Constitution itself is the authorization for compensation for the destruction of property.”).

      . Tex. Const, art. I, § 29 (emphasis added); see Tex. Const, art. I, §§ 8, 27; see also Bouillion, 896 S.W.2d at 148-49.

      . Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 19, 100 S.Ct. 242, 62 L.Ed.2d 146 (1979) (holding statute declaring certain contracts "void” implied a private right of action in equity to declare them so, but not a private action for monetary damages). While we recognize it is sometimes proper for common-law courts to create causes of action when federal tribunals should not, see Alexander v. Sandoval, 532 U.S. 275, 287, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001), the rule should be the same in either system when the right or remedy stems entirely from legislative enactment.

      . Act of June 17, 1995, 74th Leg., R.S., ch. 994, § 3, 1995 Tex. Gen. Laws 4982, 4988 (amended 2001) (emphasis added).

      . 172 S.W.2d 972, 974 (Tex. 1943).

      . Id.; Act of May 4, 1977, 65th Leg., R.S., ch. 871, § 111.263, 1977 Tex. Gen. Laws 2345, 2591 (current version at Tex. Nat. Res. Code § 111.263).

      . Agey, 172 S.W.2d at 974.

      . Id.

      . See Rosser v. Squier, 902 S.W.2d 962, 962 (Tex.1995) (noting contempt fíne is payable to the court); Sportscoach Corp. of Am., Inc. v. Eastex Camper Sales, Inc., 31 S.W.3d 730, 734-35 (Tex.App.-Austin 2000, no pet.) (noting Motor Vehicle Commission Code specifically granted Board power to assess civil penalties but not to award damages to private parties).

      . Tex. Gov’t Code § 554.003(a).

      . Id. at § 554.008.

      . See, e.g., Tex. Agrie. Code §§ 13.007, 13.307, 13.357, 13.406, 18.009, 18.054, 19.013, 71.012, 71.059, 71.117, 72.046, 73.010, 74.008, 101.0185, 102.1045, 103.15, 132.0715; Tex. Educ.Code § 132.155; Tex. Gov’t Code §§ 305.033, 572.033; Tex. Health & Safety Code §§ 104.043, 142.014, 145.0121, 147.013, 241.055, 242.065, 243.014, 244.014, 245.015, 247.045, 248.054, 249.012, 251.065, 401.381, 431.0585, 432.018, 464.017, 502.015, 571.023, 753.010, 773.063; Tex. Nat. Res.Code §§ 131.266, 211.033; Tex. Parks & Wild.Code § 86.024; Tex. Transp. Code §§ 21.154, 391.035, 394.081, 503.095; Tex. Water Code §§ 11.082, 29.051 (none authorizing collection of penalty provided for in statute by private individual).

        .See Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 223 (Tex.2002) (looking at legislative history of subsequent amendments to determine Legislature's intent to change statute’s meaning).

      . Act of June 13, 2001, 77th Leg., R.S., ch. 693, § 1, 2001 Tex. Gen. Laws 1319, 1327.

      . Act of June 13, 2001, 77th Leg., R.S., ch. 693, § 1, 2001 Tex. Gen. Laws 1319, 1328.

      . Senate Comm. On Intergovernmental Relations, Bill Analysis, Tex. S.B. 198, 77th Leg., R.S. (2001) (emphasis added).

      . 84 S.W.3d at 223 (emphasis in original) (quoting Senate Comm. On State Affairs, Bill Analysis, Tex. H.B. 1665, 77th Leg., R.S. (2001)) (“[The Bill] [a]mends section 3.01(a) ... to provide that the Board has the exclusive, rather than general, original jurisdiction to regulate those aspects, rather than all aspects, of the distribution, sale and leasing of motor vehicles.”).

        .First Bank v. Tony’s Tortilla Factory, Inc., 877 S.W.2d 285, 287 (Tex.1994).

      . Tex. Bus. & Com.Code §§ 17.41-.63.

      . Tex. Const, art. II, § 1; Brooks v. Northglen Ass’n, 141 S.W.3d 158, 164 (Tex.2004).

      . Agey v. Am. Liberty Pipe Line Co., 141 Tex. 379, 172 S.W.2d 972, 974 (1943).

      . PPG Indus., Inc. v. JMB/Houston Centers Partners Ltd. P’ship, 146 S.W.3d 79, 84 (Tex.2004).

      . Tex. Gov't Code § 311.021(2); In re Missouri Pac. R. Co., 998 S.W.2d 212, 216 (Tex.1999).

      . City of LaPorte v. Barfield, 898 S.W.2d 288, 292 (Tex.1995).

      . Touche Ross & Co. v. Redington, 442 U.S. 560, 579, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979) (quoting in part Wheeldin v. Wheeler, 373 U.S. 647, 652, 83 S.Ct. 1441, 10 L.Ed.2d 605 (1963)).

      . Tex. Gov’t Code § 311.023(1); PPG Indus., 146 S.W.3d at 84.

      . Sea, e.g., Nabors Corporate Servs., Inc. v. Northfield Ins. Co., 132 S.W.3d 90, 100 (Tex.App.-Houston [14th Dist.] 2004, no pet.) (holding presumed legislative intent that defendant bear loss under Texas Property and Casualty Insurance Guaranty Act did not justify granting plaintiff a private right of action against it).

      . See State v. Morales, 869 S.W.2d 941, 942 (Tex.1994) (refusing to declare state’s sodomy statute unconstitutional); Spurlock v. Johnson, 94 S.W.3d 655, 658 (Tex.App.-San Antonio 2002, no pet.) (holding Texas Penal Code does not create private causes of action); A.H. Belo Corp. v. Corcoran, 52 S.W.3d 375, 379 (Tex.App.-Houston [1st Dist.] 2001, pet. denied) (same).

      . See, e.g., Serv. Fin. v. Adriatic Ins. Co., 46 S.W.3d 436, 447-48 (Tex.App.-Waco 2001), judgm't vacated w.r.m., 51 S.W.3d 450 (Tex.App.-Waco 2001, no pet.); Stewart Title Guar. Co. v. Becker, 930 S.W.2d 748, 754 (Tex.App.Corpus Christi 1996, writ denied); Cole v. Huntsville Mem’l Hosp., 920 S.W.2d 364, 372 (Tex.App.-Houston [1st Dist.] 1996, writ denied); Litton Indus. Prods., Inc. v. Gammage, 644 S.W.2d 170, 176 (Tex.App.-Houston [14th Dist.] 1982), aff'd in part, rev'd in part on other grounds, 668 S.W.2d 319 (Tex.1984).

      . See Becker, 930 S.W.2d at 754-55; Cole, 920 S.W.2d at 372.

      . See Alexander v. Sandoval, 532 U.S. 275, 287, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001) (noting Court abandoned understanding that “it is the duty of the courts to be alert to provide such remedies as are necessary to make effective the congressional purpose” in Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), and has not returned to it since); Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 15-16, 100 S.Ct. 242, 62 L.Ed.2d 146 (1979) ("While some opinions of the Court have placed considerable emphasis upon the desirability of implying private rights of action in order to provide remedies thought to effectuate the purposes of a given statute, ... what must ultimately be determined is whether Congress intended to create the private remedy asserted."); Cannon v. Univ. of Chicago, 441 U.S. 677, 688, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979) ("[T]he fact that a federal statute has been violated and some person harmed does not automatically give rise to a private cause of action in favor of that person.”).

      . See Tex. Gov’t Code § 311.023(3); City of Beaumont v. Bouillion, 896 S.W.2d 143, 148 (Tex.1995).

      . Debate on Tex. S.B. 336 on the Floor of the Senate, 74th Leg., R.S. 48 (Mar. 1, 1995) (transcript available from Texas State Library & Archives Commission).

      . De La Cruz filed an affidavit in this Court by a co-author of section 5.102 asserting that the Legislature’s intent was to create a private cause of action, but after-the-fact statements by individual legislators are not legislative ■ history, and we accord .them little weight. In re Doe, 19 S.W.3d 346, 352 (Tex.2000).

      . PPG Indus., Inc., 146 S.W.3d at 84; Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 540 (Tex.1981) (presuming every word excluded from a statute was excluded for a purpose); see also Touche Ross & Co. v. Redington, 442 U.S. 560, 572, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979) (holding no private action should be implied when a statutory provision is silent on the issue but flanked by provisions that explicitly grant private causes of action). In Vail v. Texas Farm Bureau Mutual Insurance Co., 754 S.W.2d 129, 136 (Tex.1988), we implied a private cause of action for insureds against their insurer for unfair claims settlement practices even though section 21.21-2 of the Insurance Code governing such practices did not, noting that the Insurance Code explicitly provided for private actions that incorporated violations of other sections, and that all remedies were declared to be cumulative.

      . Act of June 17, 1995, 74th Leg., R.S., ch. 994, § 3, 1995 Tex. Gen. Laws 4982, 4985 (amended 2001) (providing that seller’s failure to provide purchaser with survey of property, written notice whether the property has utilities, and other information is actionable in a public or private suit under the DTPA) (emphasis added) (current version at Tex. Prop.Code § 5.069(a)(l)-(3)).

      . Austin v. HealthTrust, Inc.-The Hosp. Co., 967 S.W.2d 400, 403 (Tex.1998) (holding that while courts are not bound by the Legislature’s policy decisions when considering whether to create a common-law whistleblower action, "the boundaries the Legislature has drawn do inform our decision.”); compare Mission Petroleum Carriers, Inc. v. Solomon, 106 S.W.3d 705, 714-15 (Tex.2003) (holding drug-testing regulations did not impose duty of care after balancing risk/utility factors) and Perry v. S.N., 973 S.W.2d 301, 307 (Tex.1998) (holding that Texas courts normally derive duty from the common law and look to statutes only for the standard of conduct), with Nixon v. Mr. Prop. Mgmt. Co., Inc., 690 S.W.2d 546, 549 (Tex.1985) (holding city ordinance legislatively imposed standard of conduct for property owner in premises liability claim).

      . See Bouillion, 896 S.W.2d at 150 (holding that because there was no common law action for a constitutional tort, it was up to the Legislature to create such a remedy).

      . State v. Morales, 869 S.W.2d 941, 949 (Tex.1994).


text:
    MILITARY HIGHWAY WATER SUPPLY CORP., Petitioner, v. Francisca MORIN, et al., Respondents.
    No. 03-0949.
    Supreme Court of Texas.
    Jan. 21, 2005.

      Thomas F. Nye, Linda C. Breck, Robert William Clore, Brin & Brin, P.C., Corpus Christi, Anthony B. James, Hodge James & Garza, LLP, Harlingen, William L. Hubbard, The Hernandez Law Firm, Edin-burg, for Petitioner.
    William R. Edwards III, John Blaise Gsanger, The Edwards Law Firm, L.L.P., James B. Ragan, Law Offices of James B. Ragan, Corpus Christi, Jose E. Chapa, Yzaguirre & Chapa, McAllen, for Respondents.
    Robert L. Galligan, Jones Galligan Key & Lozano, Weslaco, for Amicus Curiae.
   PER CURIAM.

A possessor of land who allows an excavation to remain on the land owes a duty to persons who encounter the excavation after (1) traveling with reasonable care on the highway and (2) foreseeably deviating from the highway in the ordinary course of travel. Restatement (Second) of Torts § 368 (1965). In City of McAllen v. De La Garza, 898 S.W.2d 809, 811 (Tex.1995), we concluded that a traveler who deviates from the highway is not “in the ordinary course of travel” unless the deviation is a normal incident of travel. The deviation in that case — in which the car traveled approximately 250 feet from the lane of travel before coming to rest in the City’s ca-liche pit located within ten feet of the roadway — was not in the ordinary course of travel. Id. at 812. In this case, the court of appeals relied on De La Garza to conclude that the deviation occurred in the ordinary course of travel. 114 S.W.3d 728, 734-36. We conclude, however, that the court’s opinion conflicts with our holding in De La Garza and that Military Highway owed no duty to the respondents. We accordingly reverse the court of appeals’ judgment and render judgment that the respondents take nothing.

This is a wrongful-death and survivor-ship action stemming from an automobile accident that occurred on and adjacent to farm-to-market road 732 (“FM 732”) in Cameron County. FM 732 is a two-lane road with a posted speed limit of fifty-five miles per hour. Because Cameron County has no local stock laws in place, livestock can roam freely near the vehicular traffic along FM 732. See Tex. Const, art. XVI, § 23 (delegating to Legislature the power to pass laws regulating livestock); Tex. Agrie. Code §§ 143.024 (permitting elections to adopt local stock laws), 143.101 (excluding numbered farm-to-market roads from definition of “highway”), 143.102 (prohibiting owners or caretakers from knowingly allowing animals to traverse or roam at large on right-of-way of “highway”); see also Gibbs v. Jackson, 990 S.W.2d 745, 747-50 (Tex.1999) (discussing duties regarding restraint of livestock).

On June 3, 1996, Military Highway Water Supply Corporation (“Military Highway”), a non-profit public utility, dug a hole to install a water meter on its utility easement. The hole was approximately three feet in diameter and was located more than twenty feet from the edge of FM 732. Military Highway’s manager testified that, because the Texas Department of Transportation also had an easement over the area, Military Highway was required to comply with the Department’s regulations. Those regulations and Military Highway’s corresponding policies required Military Highway to fill the excavation after completing the installation. Military Highway, however, did not fill in the hole. In July of 1996, a neighboring landowner notified Military Highway that the excavation had not been filled, but the public utility took no further action.

On the morning of August 1, 1996, MerT cedes Melendez Morin (“Morin”) was driving his car northbound approximately fifty to fifty-five miles per hour down FM 732. Ausencio Bautista Ramos (“Bautista”) was a passenger in the front seat, and two other passengers were seated in the back. A horse crossed the road, and the vehicle struck the horse. One of the back-seat passengers saw the horse before the impact and had time to duck behind the front seat prior to the collision. Military Highway’s expert testified that, under the circumstances, Morin had about two and a half seconds to react to the horse; however, it is undisputed that Morin never applied the bi'akes and did not swerve to avoid the animal. After striking the horse, the vehicle veered to the left and entered the southbound lane. It then left the pavement and traveled through an unimproved shoulder on the opposite side of the highway. The car ultimately reached Military Highway’s open excavation after traveling approximately 535 feet from the point of impact with the horse. There, the car’s right-front wheel climbed a mound of dirt piled next to the hole, and the left-front wheel fell into the hole. The car then rolled to the left, flipped, and landed upside down against a tree 633.6 feet from the point of the initial impact with the horse. Morin and Bautista died as a result of the accident; the two back-seat passengers survived.

Several family members and the estates of Morin and Bautista sued Military Highway for negligence. After a trial on the merits; the jury found that Military Highway and Morin were respectively 52% and 48% responsible and. awarded damages to the Morin and Bautista plaintiffs. The trial court entered judgment on the verdict. Military Highway appealed, asserting that it owed no duty to Morin and Bautista as a matter of law, and that there was legally insufficient evidence that the accident was a foreseeable result of Military Highway’s failure to fill the excavation. 114 S.W.3d at 732. The court of appeals held that Military Highway owed a duty to Morin and Bautista under the facts of this case, and that there was legally sufficient evidence to support the foreseeability finding. Id. at 736, 738-39. Military Highway petitioned this Court for review.

As we stated in City of McAllen v. De La Garza, 898 S.W.2d 809, 810 (Tex.1995), “[t]he existence of a legal duty is a question of law for the court to decide from the facts surrounding the occurrence in question.” In that case, the City owned a caliche pit that was approximately thirty feet deep and, in some places, within ten feet of the adjoining roadway. Id. After a driver with a blood alcohol content of .11 blacked out or fell asleep, his car traveled approximately 250 feet (across the lane with oncoming traffic, through a wire fence, and over a dirt embankment) before becoming airborne, colliding with a small tree, and coming to rest upside down at the bottom of the caliche pit. Id. De La Garza, a passenger who had a blood alcohol content of .10 and was not wearing a seatbelt, was thrown from the car and killed. Id. De La Garza’s family sued the City for wrongful death, arguing that the City was negligent by failing to warn travelers of the dangerous condition and in failing to make that condition safe. Id.

In De La Garza, this Court applied section 368 of the Restatement (First and Second) of Torts to hold that the City did not owe a duty to De La Garza as a matter of law, because he was not traveling with reasonable care upon the highway and his deviation was not in the ordinary course of travel. Id. at 812 (finding section 368 determinative); see also Gorrell v. Tex. Utilities Elec. Co., 915 S.W.2d 55, 59-60 (Tex.App.-Fort Worth 1995, pet. denied) (relying on De La Garza, 898 S.W.2d at 811-12). We did not reach the issue of whether the deviation was foreseeable because we held that, “ ‘foreseeable’ or not, no duty was owed by the City under the circumstances of the case.” 898 S.W.2d at 812.

Section 368 of the Restatement (Second) of Torts defines the circumstances under which a duty is owed to individuals who are injured after deviating from an adjoining roadway onto the land. That section provides:

A possessor of land who creates or permits to remain thereon an excavation or other artificial condition so near an existing highway that he realizes or should realize that it involves an unreasonable risk to others accidentally brought into contact with such condition while traveling with reasonable care upon the highway, is subject to liability for physical harm thereby caused to persons who
(a) are traveling on the highway, or
(b) foreseeably deviate from it in the ordinary course of travel.

Restatement (Second) of Torts § 368. In De La Garza, we stressed that this section speaks to a duty only to those persons “who were traveling with reasonable care upon the highway and who foreseeably deviated from it in the ordinary course of travel.” 898 S.W.2d at 811 (emphasis in original). In this case, the jury found that Morin’s negligence proximately caused his death and that he was 48% responsible for the occurrence. Neither Morin nor Bau-tista challenged those findings on appeal. The court of appeals nonetheless determined that Morin had “no fault” and that he was propelled across the field “unerringly.” 114 S.W.3d at 735, 738. Even assuming, contrary to the verdict, that Morin was traveling with reasonable care on FM 732, Military Highway owed him and Bautista a duty only if his deviation from the road occurred “in the ordinary course of travel.” De La Garza, 898 S.W.2d at 811. The court of appeals concluded that it did. We disagree.

Under section 368, “a traveler is not ‘in the ordinary course of travel’ unless the deviation from the road is a normal incident of travel.” Id.; see also Restatement (Second) of Torts § 368 cmt. g. Thus, the section does not impose a duty to travelers whose “deviation is one not reasonably to be anticipated ... or is for a purpose not normally connected with travel.” Restatement (Second) of Torts § 368 cmt. g, quoted in De La Garza, 898 S.W.2d at 811; see also id. cmt. e (section applies to those who “reasonably and expectably deviate from the highway”). In determining whether a deviation is reasonably to be expected in the ordinary course of travel, the distance between the highway and condition is “frequently decisive, since those who deviate in any normal manner in the ordinary course of travel cannot reasonably be expected to stray very far.” Id. cmt. h, cited with approval in Jacque v. Pub. Serv. Co., 890 P.2d 138, 139 (Colo.Ct.App.1994), and Zakoff v. Chi Transit Auth., 336 Ill.App.3d 415, 270 Ill.Dec. 314, 782 N.E.2d 873, 879-81 (2002); see also id. cmt. g, illus. 1-5. Distance, however, should generally be considered in conjunction with other factors, such as the character and use of the highway and the nature and accessibility of the condition itself. Id. cmt. h.

The question here is whether Morin and Bautista’s deviation from FM 732, triggered by hitting a horse while traveling fifty to fifty-five miles per hour, was a normal incident of travel — an occurrence that Military Highway could have reasonably anticipated. The excavation left by Military Highway was more than twenty feet from the edge of the southbound lane of FM 732. Before reaching the excavation, Morin and Bautista traveled over 500 feet from the point of impact with the horse, careening from the northbound lane to the southbound lane, across a sixteen-foot unimproved shoulder, and onto the abutting land. This is a greater deviation from normal travel than the deviation in De La Garza, in which the plaintiff came to rest in an excavation located within ten feet of the roadway, after traveling approximately 250 feet from the point where the driver fell asleep at the wheel. 898 S.W.2d at 810; see also Bergen v. Tex.New Mexico Power Co., 130 S.W.3d 379, 381 (Tex.App.-Houston [14th Dist.] 2004, no pet.) (holding that vehicle in the ordinary course of travel does not suffer a blow-out, veer sharply to the right, jump the curb, and strike a nearby utility pole). Under the facts of this case, the court of appeals’ characterization of the deviation as a normal incident of travel conflicts with our holding in De La Garza and several of the cases cited therein. See 898 S.W.2d at 811-12 (citing Swope v. N. Ill. Gas Co., 251 Ill.App.3d 850, 191 Ill.Dec. 251, 623 N.E.2d 841 (1993), Kavanaugh v. Midwest Club Inc., 164 Ill.App.3d 213, 115 Ill.Dec. 245, 517 N.E.2d 656 (1987), Fla. Power & Light Co. v. Macias, 507 So.2d 1113 (Fla.Dist.Ct.App.1987), and Scott v. Chevron U.S.A., 5 Cal.App.4th 510, 6 Cal.Rptr.2d 810 (1992)); see also DiBenedetto v. Flora Township, 153 Ill.2d 66, 178 Ill.Dec. 777, 605 N.E.2d 571, 573 (1992).

As in De La Garza, we do not reach whether Morin and Bautista’s deviation was foreseeable because, foreseeable or not, no duty was owed by Military Highway under the circumstances of this case. See 898 S.W.2d at 812. Because the.court of appeals’ opinion conflicts with our holding in De La Garza regarding the creation of a duty under section 368 of the Restatement (Second) of Torts, without hearing oral argument, we grant the petition for review, reverse the court of appeals’ judgment, and render judgment that the respondents take nothing. Tex.R.App. P. 59.1.

Justice GREEN did not participate in the decision.

      . See Tex. Gov't Code § 22.001(a)(2).

      . The easement gave Military Highway the "right to operate, inspect, repair, maintain, replace, and remove utility pipelines.”

      . Although section 368 refers specifically to ”possessor[s] of land,” we conclude that the section should apply with equal force to easement holders, such as Military Highway, that are responsible for filling the excavation in question.

      . The precise location of the excavation is unclear. The investigating trooper — a witness for the plaintiffs — testified that 24.6 feet separated the edge of the roadway and the beginning of the excavation. The plaintiffs’ expert witness, however, testified that hole was about 21 feet from the edge of the roadway. Both witnesses agreed that two and a half cars could be parked in the distance between the road and hole.


text:
    In the Interest of S.A.P.
    No. 04-0473.
    Supreme Court of Texas.
    Jan. 21, 2005.

      Lana S. Shadwick, Houston, Leona Ja-quette, Phoebe Ellis Knauer, Cathy Ann Morris, Austin, for Petitioner.
    Charles L. Levy, Law Office of Charles Levy, Stanley Rentz, Nita C. Fanning, Law Office of Nita Fanning, Galen B. Edwards, Waco, for Respondents.
   PER CURIAM.

Based on a unanimous jury verdict, the trial court terminated the respondents’ parent-child relationship with S.A.P., their one-year-old son. Based on an estoppel defense that was neither pleaded nor submitted to the jury, a divided court of appeals reversed. 135 S.W.3d 165, 168-71. Because estoppel was not proved conclusively, we hold it was waived, and thus reverse.

S.A.P. was born on June 8, 2001 to Scott and Rebecca Peterson. Viewing all the evidence in the light most favorable to the verdict, both parents had a long history of involvement with child welfare agencies in New York and Texas. Rebecca’s personal history included physical, sexual, and substance abuse, and her two children from a previous relationship had been left at various times with a grandmother (who severely abused one of them), with her father (whom she had accused of abusing her), and finally with the Texas Department of Protective and Regulatory Services (“TDPRS”), which obtained termination of her parental rights to both of them a few months before S.A.P. was born. Similarly, Scott Peterson’s personal history included an involuntary commitment for psychiatric problems, termination of his parental rights with two children from a previous marriage based on allegations of sexual abuse, and a series of hostile, disruptive, and delusional episodes in therapy sessions after S.A.P.’s birth.

Almost immediately after S.A.P. was born, the TDPRS took custody of him pursuant to a court order. Eleven months later, TDPRS amended its petition to seek termination of the respondents’ parent-child relationship with him.

At trial, jurors found neither Rebecca nor Scott had knowingly placed or allowed S.A.P. to remain in conditions endangering his well-being. Tex. Fam.Code § 161.001(1)(D). Indeed, they could hardly do otherwise, as S.A.P. remained in the custody of TDPRS for virtually his entire life. But the jury also found by clear and convincing evidence that (1) both parents had engaged in conduct that “endangers the physical or emotional well-being of the child,” id. § 161.001(1)(E); (2) Rebecca had a previous parent-child relationship terminated on the basis of endangerment, id. § 161.001(1)(M); (3) Scott failed, to comply with a court order establishing actions necessary for return of a child placed with TDPRS due to abuse or neglect, id. § 161.001(l)(O); and (4) termination was in S.A.P.’s best interest, id. § 161.001(2). The trial court rendered judgment on the jury verdict terminating the respondents’ parental rights.

The court of appeals reversed based on identical letters TDPRS sent to each respondent within two weeks of S.A.P.’s birth. 135 S.W.3d at 168-69,171. The letters stated:

Child Protective Services has completed an investigation based on a report dated 6/8/2001 that you were responsible for abuse or neglect of one or more children in the above named case. Agency staff has concluded that you did not have a role in the alleged abuse or neglect. We will be offering services to your family to remedy any other problems identified during the investigation. Because all allegations involving you as an alleged perpetrator have been ruled out, you have the right to request that we remove information about your alleged role from our records.

Accompanying each letter was a form for requesting removal of “role information” from the TDPRS files that stated:

Once the role information involving you is removed from our records, THIS INFORMATION WILL BE PERMANENTLY DESTROYED AND WILL NOT BE AVAILABLE TO USE FOR ANY PURPOSE WHATSOEVER.

Both respondents signed and returned the form to indicate their decision “to request that all information about my role as an alleged perpetrator in this investigation be removed from the department’s records.”

Based on these letters, the respondents unsuccessfully sought dismissal of the proceedings. After the trial, they asserted the same argument in post-verdict motions for new trial.

A majority of the court of appeals reversed, finding that the letters “effectively exonerated the parents of-the only allegations against them regarding S.A.P.” Id. at 170. Despite finding the letters “disposi-tive,” the court nevertheless remanded for unspecified further proceedings. Id. at 171.

We hold any error in the trial court’s failure to dismiss the proceedings was not preserved. First, estoppel was never pleaded. The Texas rules provide that a defendant’s answer “shall set forth affirmatively ,... estoppel ... and any other matter constituting an avoidance or affirmative defense.” Tex.R. Civ. P. 94. If estoppel is not pleaded, it is waived. See Phillips v. Phillips, 820 S.W.2d 785, 789 (Tex.1991); Concord Oil Co. v. Alco Oil & Gas Corp., 387 S.W.2d 635, 639 (Tex.1965).

Second, estoppel was never submitted to the jury. An unpleaded issue may be tried by consent, but it still must be submitted to the jury. Tex.R. Civ. P. 279 (“Upon appeal all independent grounds of recovery or of defense not conclusively established under the evidence and no element of which is submitted or requested are waived.”); Boyles v. Kerr, 855 S.W.2d 593, 601 (Tex.1993).

Third, the letters did not conclusively estop the TDPRS from seeking termination. As the court of appeals noted, equitable estoppel generally does not apply to governmental entities. 135 S.W.3d at 169; Leeco Gas & Oil Co. v. Nueces County, 736 S.W.2d 629, 630 (Tex.1987) (“When a governmental unit is exercising governmental powers it is not subject to estop-pel.”); see also City of Hutchins v. Prasifka, 450 S.W.2d 829, 836 (Tex.1970) (noting municipalities may be subject to estoppel in rare cases when it will not interfere with their governmental functions and manifest injustice would otherwise result).

The court of appeals cited no case invoking the doctrine to prevent a state agency charged with protecting children from doing so. Indeed, we have difficulty imagining how parents found by a jury to have endangered them children can have the “clean hands” needed to' estop such a finding. See Champlin Oil & Ref. Co. v. Chastain, 403 S.W.2d 376, 384 (Tex.1965) (“The doctrine of estoppel is for the protection of innocent persons, and only the innocent may invoke it.”) (citation omitted).

But even if the doctrine might apply in some parental termination case, it cannot be applied conclusively here. First, the TDPRS letters arguably relate only to a report of abuse on the day S.A.P. was born; they do not promise TDPRS would never attempt termination for conduct that occurred before or after that date or that related to the respondents’ other children. The grounds for termination answered affirmatively by the jury were broad enough to include all of the latter.

Second, the letters promise only to destroy evidence in the agency’s files, not to refrain from using the same evidence from other sources. The respondents assert TDPRS could not rely at trial on anything it had ever reviewed, but the letters make no such promise. Much of the evidence here came from witnesses who testified at trial and from the respondents’ own admissions-and thus would not have been impacted by expunction.

Third, the evidence of detrimental reliance, if any, was far from conclusive. See Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 515-16 (Tex.1998) (holding estoppel requires proof of detrimental reliance). The court of appeals found the respondents relied on the letters by cooperating with TDPRS, but the respondents never claimed the TDPRS letters were the reason they did so. Indeed, their theory at trial and on appeal is that TDPRS did not provide them enough services and parental support, a position inconsistent with claiming that their cooperation with the agency was a detrimental change of position.

Further, neither the court of appeals nor the respondents explain why their participation in counseling and other family support services was detrimental. It is hard to see how their chances of regaining custody of S.A.P. would have been increased by refusing to do so.

We recognize the form letters sent by TDPRS have the potential to be misleading if routinely used in circumstances like those here. Given the agency’s previous involvement with the parents and the speed with which it acted to remove S.A.P., it is hard to see why it promised to destroy its files almost immediately thereafter. But because estoppel was never submitted to the jury, we hold that the letters alone did not (as the respondents claim) require as a matter of law that the agency return S.A.P. to them and “wait for them to fail.”

Accordingly, without hearing oral argument, we reverse the court of appeals’ judgment and remand to that court for consideration of the other issues raised on appeal. See Tex.R.App. P. 59.1.

      . The respondents married in the interim between S.A.P.'s birth and the termination trial. S.A.P.’s birth records show his mother’s name as Rebecca Williams.

      . See In re J.F.C., 96 S.W.3d 256, 266 (Tex.2002) (holding reviewing court should view all evidence and resolve all factual disputes in favor of verdict if reasonable jurors could do so).

      . Respondents mentioned the letters sent by TDPRS in their motions for summary judgment, but a motion for summary judgment is not a pleading. See Tex R. Civ. P. 45(a).


text:
    U.S. SILICA COMPANY, Petitioner, v. ESTATE OF Donald TOMPKINS, Ruby L. Tompkins, Dawn Maldonado, and Sherry Lopez, Respondents.
    No. 03-0195.
    Supreme Court of Texas.
    Jan. 21, 2005.
    Manuel Lopez, Shook, Hardy & Bacon L.L.P., Houston, for Amicus Curiae.
    Jeffery T. Nobles, Jack E. Urquhart and Allyson L. Mihalick, Beirne, Maynard & Parsons, L.L.P., Houston, for Petitioner.
    Guy G. Fisher, Provost & Umphrey Law Firm, L.L.P., Beaumont, Sharon S. McCally, Joann Storey, Daryl L. Moore, Storey, Moore & McCally, P.C., and Lance H. Lubel, Robins Cloud Greenwood & Lubel, L.L.P., Houston, for Respondents.
   PER CURIAM.

Donald Tompkins sued U.S. Silica Co., alleging that he contracted silicosis from using its flint products in abrasive blasting. After a mistrial, Tompkins died of emphysema, and • his beneficiaries took over the prosecution of wrongful death and survival actions. Following a second trial, the trial court rendered judgment on a verdict for the plaintiffs, and the court of appeals affirmed.

U.S. Silica argues that it had no duty to warn Tompkins or his employers of the dangers associated with using flint in abrasive blasting. We recently addressed these same arguments in Humble Sand & Gravel, Inc. v. Gomez. We concluded that

by the 1980s, the dangers of using flint in abrasive blasting had been well known throughout the abrasive blasting industry as well as to health and safety professionals and government regulators for most of the twentieth century, but that blasting workers themselves remained largely ignorant of those dangers, and their employers were careless in enforcing workplace conditions that would protect workers’ safety.

We held that whether a flint supplier owed a duty to warn its customers’ employees of the dangers of using its product in ábra-sive blasting depended on whether such warnings could effectively reach the employees, and we remanded the case to the trial court for a determination of that .issue. For the same reasons explained at length in Humble Sand, we remand this case to the trial court to determine the duty issue in accordance with our opinion in that case. In addition, the trial court should consider whether and how the analysis is affected by the fact that Tompkins began abrasive blasting work in the late 1960s, several years earlier than the employee in Humble Sand.

U.S. Silica also argues that there is no evidence that Tompkins ever had any significant exposure to its products, or that Tompkins would have heeded an adequate warning had one been given. While the evidence on both counts is slight, we conclude that there was some evidence to support a verdict.

Finally, U.S. Silica argues that the trial court erred in excluding evidence regarding a Tompkins’ CT scan performed shortly before the" first trial and later lost. The court of appeals held that exclusion of the evidence was error but harmless. For the reasons explained by the court of appeals, we agree that exclusion was error.

.Accordingly, we grant U.S. Silica’s petition for review and, without hearing oral argument, reverse the court of appeals’ judgment and remand the case to the trial court for further proceedings.

Justice GREEN did not participate in the decision.

      . Tex. Civ. Prac. & Rem.Code ' 71.002.

      . Id. ’ 71.021.

      . 92 S.W.3d 605 (Tex.App.Beaumont 2002).

      . 146 S.W.3d 170 (Tex.2004).

      . Id. at 173.

        . Id. at 194-195.

      . 92 S.W.3d at 612-613.

      . Tex.R.App. P. 59.1.


text:
    TEXAS A & M UNIVERSITY, Petitioner, v. Paul A. BISHOP, Respondent.
    No. 03-0448.
    Supreme Court of Texas.
    Argued Sept. 28, 2004.
    Decided Jan. 21, 2005.

      Greg Abbott, Atty. Gen., Jeffrey S. Boyd, Thompson & Knight, Laurie Rayson Eiserloh, Bickerstaff Heath Smiley Pollan, S. Ronald Keister, Barry Ross McBee, Rafael Edward Cruz, Lisa Royce Eskow, Joseph Hughes, Cherie Kay Batsel, Edward D. Burbach, Office of Atty. Gen., Austin, for Texas A & M University.
    Larry P. Boyd, Fisher Boyd Boudreaux & Huguenard, L.L.P., Jennifer Bruch Hogan, Richard P. Hogan, Peter M. Kelly, Hogan & Hogan, L.L.P., Houston, for Paul Bishop.
   Justice O’NEILL

delivered the opinion of the Court, in which Chief Justice JEFFERSON, Justice HECHT, Justice OWEN, Justice WAINWRIGHT, and Justice MEDINA joined.

The Texas Tort Claims Act

To [waive], or not to [waive]: that is the question:
Whether ’tis nobler in the mind to suffer
The slings and arrows of outrageous [legislation],
Or to take arms against a sea of troubles,
And by opposing end them?
William Shakespeare, Hamlet act 3, sc.
1.

While acting in a university drama club production, the plaintiff in this case was inadvertently stabbed in the chest when a fellow actor missed the stab pad the plaintiff wore that was intended to deflect the blow. The plaintiff sued the university under the Texas Tort Claims Act, alleging that the university was liable for the negligence of the drama club’s faculty advisors and the play’s director. See Tex. Civ. Prac. & Rem.Code § 101.021. The court of appeals affirmed the trial court’s judgment in the plaintiffs favor, holding that the faculty advisors’ actions constituted a “use” of tangible personal property for which the Tort Claims Act waived governmental immunity. 105 S.W.3d 646, 656; Tex. Civ. Prac. & Rem.Code § 101.021(2). We hold that the faculty advisors’ alleged failure to properly supervise the props that the director chose does not constitute a use of tangible personal property within the Tort Claims Act’s meaning, and that the play’s director was an independent contractor for whose acts or omissions the university is not hable. Accordingly, we reverse the court of appeals’ judgment and dismiss the plaintiffs suit.

I

Texas A & M University at Galveston (TAMU) offers no theater curriculum, but has a drama club. The club is a voluntary student organization whose members receive no grades or class credit for participation. From the club’s inception and at the time the incident made the basis of this suit occurred, two faculty advisors, Dr. Stephen Curley and Dr. Melanie Lesko, provided the club logistical support and served as the club’s liaisons to the university.

In the spring of 1994, the drama club engaged Michael Wonio, a local actor and director who had directed previous club plays, to direct its production of Draeula. His wife, Diane Wonio, assisted with props and choreography. The Wonios had no written contract with TAMU or the drama club, but had an oral understanding that they would be paid a fee at the end of the production if box office revenues were sufficient. In this instance they received a fee of $300.

According to the drama club’s bylaws, the director was responsible for selecting any props that might be used for a production. During rehearsal, the Wonios decided that a real knife was needed for the production’s dramatic final scene in which Dracula’s rival, Jonathan Harker, impales Draeula in the chest with a knife. The student playing Harker was provided a Bowie knife, and Diane Wonio fashioned a stab pad for Paul Bishop, who played Dra-eula, to attach to his chest to shield him from the blow. TAMU had a safety policy prohibiting deadly weapons on campus. Although the faculty advisors, as university officials, had the right to enforce the policy, they were not informed of the Won-ios’ decision to use a real knife in the production.

Four performances were scheduled on campus, and the first went smoothly. But during the second performance, the student playing Harker missed the stab pad, driving the knife into Bishop’s chest and puncturing his lung. Bishop was hospitalized for eight days, and this suit resulted.

Bishop sued TAMU under a theory of respondeat superior for the actions of its alleged employees, the Wonios, Curley, and Lesko. Bishop alleged that the Won-ios were negligent in deciding to use a real knife and in failing to provide an adequate stab pad. He also alleged that the faculty advisors were negligent in failing to enforce the university’s safety policy prohibiting deadly weapons on campus. Bishop sued the Wonios individually as well, but settled with them before trial.

The jury found that the Wonios, Curley, and Lesko were all employees of the university, and that their negligent use of tangible personal property caused Bishop’s injuries. The trial court rendered judgment on the verdict, but the court of appeals reversed and rendered judgment for TAMU, holding that TAMU’s immunity was not waived because neither the Won-ios nor the faculty sponsors were employees under the Texas Tort Claims Act. Tex. A & M Univ. v. Bishop, 996 S.W.2d 209, 215 (Tex.App.-Houston [14th Dist.] 1999), rev’d, 35 S.W.3d 605 (Tex.2000). We reversed, holding that the faculty sponsors were employees of TAMU rather than volunteers, but did not reach the issue of the Wonios’ status. Bishop v. Tex. A & M Univ., 35 S.W.3d 605, 606 (Tex.2000) (“Bishop /”). We remanded the case to the court of appeals to review the issues it had not addressed. Id. at 607.

On remand, the court of appeals held that the faculty sponsors’ actions constituted a “use” of tangible personal property under the Tort Claims Act, for which TAMU was liable. 105 S.W.3d at 656-57; see Tex. Civ. Prac. & Rem.Code § 101.021(2). Because its holding supported the trial court’s judgment against TAMU, the court of appeals did not address TAMU’s liability for the Wonios’ conduct. 105 S.W.3d at 653. We granted TAMU’s petition for review to consider application of the Texas Tort Claims Act to the facts presented.

II

Because TAMU is a governmental entity, the doctrine of governmental immunity shields it from liability for the negligence of its employees absent a waiver of that immunity. See Univ. of Tex. Med. Branch at Galveston v. York, 871 S.W.2d 175, 177 (Tex.1994). The Texas Tort Claims Act provides a limited waiver when personal injury or death is caused by a “use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.” Tex. Civ. Prac. & Rem.Code § 101.021(2).

Bishop presents two grounds for TAMU’s liability: (1) the conduct of the Wonios, who directed the play, and (2) the acts and omissions of Curley and Lesko, the drama club’s faculty advisors. TAMU responds that the Tort Claims Act’s waiver for tangible personal property use does not apply because the Wonios were not employees for whose conduct TAMU could be liable, and the faculty sponsors’ actions did not constitute a “use” of property within the statute’s purview. TAMU also claims that common-law official immunity further protects the university from liability for the faculty advisors’ conduct.

III

We held in Bishop I that faculty advis-ors Curley and Lesko were employees of the university under the Tort Claims Act. 35 S.W.3d at 607. Accordingly, if they “use[d]” tangible personal property within the Act’s terms, the university’s immunity is waived and TAMU is liable for their conduct. Tex. Civ. Prac. & Rem.Code § 101.021(2).

We recently interpreted the Tort Claims Act’s “use” requirement in San Antonio State Hospital v. Cowan, 128 S.W.3d 244 (Tex.2004). In that case, Cowan was involuntarily committed to the San Antonio State Hospital after exhibiting psychotic behavior, acute depression, and suicidal tendencies. Id. at 245. The commitment order required the Hospital to take possession of Cowan’s personal effects, which the Hospital did. Id. But the Hospital allowed Cowan to keep his suspenders and walker, which he later employed to kill himself. Id. The plaintiffs claimed, and the court of appeals held, that the Hospital misused the walker and suspenders by allowing Cowan to have them. Id. at 246. We disagreed, holding that “section 101.021(2) waives immunity for a use of personal property only when the governmental unit is itself the user.” Id. at 245-46. In response to Cowan’s contention that the Hospital “used” the walker and suspenders by giving them to Cowan for his use, we said: “A governmental unit does not ‘use’ personal property merely by allowing someone else to use it and nothing more.” Id. at 246.

In this case, the drama club faculty advisors did not themselves “put or bring [the knife] into action or service” or “employ [the knife] for or apply [it] to a given purpose,” as we have said the term “use” intends. Id. To the extent Bishop claims the faculty advisors allowed the Wonios to provide the knife by failing to properly supervise the production, such negligent supervision, without more, does not constitute a “use” of personal property that would waive TAMU’s immunity under section 101.021(2), else the failure to prevent any accident that involves tangible personal property would come within the statute’s purview. ■ “Such a result would be tantamount to abolishing governmental immunity, contrary to the limited waiver the Legislature clearly intended.” Kerrville State Hosp. v. Clark, 923 S.W.2d 582, 585 (Tex.1996).

Bishop claims our holding in Cowan is distinguishable because, unlike a Bowie knife, the walker and suspenders that Co-wan used to kill himself were not “inherently unsafe.” Cowan, 128 S.W.3d at 245. Bishop claims this case is more analogous to those in which immunity was held waived when a state actor provided equipment that lacked an integral safety component, in this case an adequate stab pad. See Robinson v. Cent. Tex. MHMR Ctr., 780 S.W.2d 169 (Tex.1989) (providing swimming attire without a life preserver); Lowe v. Tex. Tech Univ., 540 S.W.2d 297 (Tex.1976) (providing a football uniform without a knee brace); Overton Mem’l Hosp. v. McGuire, 518 S.W.2d 528 (Tex.1975) (providing a hospital bed without bed rails). But we have said that these cases represent “the outer bounds of what we have defined as use of tangible personal property,” and have applied them narrowly only when an integral safety component is entirely lacking rather than merely inadequate. Clark, 923 S.W.2d at 585. In Clark, we held that prescribing a medication less effective than an alternative treatment would have been- does not mean that the medicine provided lacked an integral safety component. We distinguished Lowe and Robinson, explaining:

For Lowe to apply ... we must assume that the university would have waived its immunity even if it had provided Lowe with a knee brace as long as Lowe could show that another type of knee brace would have better protected him. Likewise, for Robinson to apply, we must assume that MHMR would have waived its sovereign immunity even if it had provided Robinson a life preserver if Robinson could show that MHMR should have provided him with a better one.

Id. We determined that, in deciding Lowe and Robinson, we did not intend to allow both use and non-use (i.e., failure to provide a more effective safety feature) to effect a waiver of immunity under the Act. Id. Similarly, Bishop’s claim that the knife was inherently unsafe without an adequate stab pad does not mean that an integral safety component was lacking for purposes of governmental waiver under the Act. We conclude that the faculty advisors’ conduct did not waive TAMU’s immunity.

IV

TAMU next contends that the university cannot be liable for the Wonios’ alleged negligence because they were not TAMU’s employees for purposes of the Tort Claims Act. The Act defines an “employee” as a person in the paid service of a governmental unit, but provides that the term “does not include an independent contractor .. or a person who performs tasks the details of which the governmental unit does not have the legal right to control.” Tex. Civ. Prac. & Rem.Code § 101.001(2). In the first appeal in this case, the court of appeals held that the Wonios were independent contractors as a matter of law because there was no evidence to support the jury’s finding that the Wonios were TAMU employees on the occasion in question. 996 S.W.2d at 214. We agree.

There are several factors to consider in determining whether or not a worker is an independent contractor:

(1) The independent nature of his business; (2) his obligation to furnish necessary tools, supplies, and material to perform the job; (3) his right to control the progress of the work, except as to final results; (4) the time for which he is employed; and (5) the method of payment, whether by time or by the job.

Indus. Indem. Exch. v. Southard, 138 Tex. 531, 160 S.W.2d 905, 906 (1942). When the material underlying facts are not in dispute and can give rise to only one reasonable conclusion, whether a worker was an employee or an independent contractor is a question of law. Id. This is such a case.

To demonstrate employee status, Bishop points to evidence that TAMU (through its employees, the faculty sponsors) could hire and fire the directors, reviewed and approved the script of the play, and could control what props were used by enforcing the university’s safety policies. Bishop also cites evidence that TAMU paid the Wonios with university funds, and provided facilities and electricity for their production. Finally, Bishop relies upon the Wonios’ testimony that TAMU had the final say over their activities, and that if TAMU intervened in them work with a demand, they would have to comply or “withdraw.”

The Wonios’ situation is analogous to that presented in Anchor Casualty Company v. Hartsfield, 390 S.W.2d 469 (Tex.1965). There, we held that a worker who performed work requiring special skill, furnished his own tools, came and went at his own discretion, was paid by the job, and was not on the employer’s tax rolls was an independent contractor as a matter of law. Id. at 471. In this case, the evidence demonstrated that the Wonios performed the specialized task of directing a play, were paid by the job, furnished their own props, had no contract, and were not on TAMU’s tax rolls. TAMU’s approval of the script did not go beyond dictating the final result of the Wonios’ work. And the Wonios’ testimony that TAMU could terminate them if they refused to comply with a demand demonstrates only a minimal degree of control that exists in any working relationship and is no evidence of a level of control detailed enough to indicate employee status. See Cont’l Ins. Co. v. Wolford, 526 S.W.2d 539, 541 (Tex.1975) (the fact that a supervisor could dismiss a contractor if unsatisfied with his work was not evidence of employee status); Anchor Cas. Co., 390 S.W.2d at 471.

We agree with the court of appeals that there is no evidence in the record to support the jury’s finding that the Wonios were employees, and hold that the Wonios were independent contractors as a matter of law. Accordingly, their actions could not constitute a “use” that would waive TAMU’s immunity. Tex. Civ. Prac. & Rem.Code § 101.021(2).

V

Because TAMU’s immunity from suit was not waived under the Texas Tort Claims Act, the trial court lacked subject-matter jurisdiction over Bishop’s cause of action. See Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 637 (Tex.1999). We therefore reverse the judgment of the court of appeals and dismiss Bishop’s suit against TAMU.

Justice BRISTER and JUSTICE Green did not participate in the decision.

      . To the extent Smith v. University of Texas, 664 S.W.2d 180 (Tex.App.-Austin 1984, writ ref d n.r.e.), and Christilles v. Southwest Texas State University, 639 S.W.2d 38 (Tex.App.Austin 1982, writ ref d n.r.e.), are inconsistent with our holding today, we disapprove them.