author: Opinion by Justice YÁÑEZ. Justice CASTILLO.

text:
    WESTERN STEEL COMPANY, INC., Appellant, v. Hank ALTENBURG, Appellee.
    No. 13-02-450-CV.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    June 23, 2005.
    Rehearing Overruled Aug. 25, 2005.

      Marc J. Wojciechowski, Wojciechowski & Associates, Houston, for appellant.
    William J. Tinning, Portland, for appel-lee.
    Before Justices YÁÑEZ, CASTILLO, and GARZA.
   OPINION

Opinion by Justice YÁÑEZ.

Appellee, Hank Altenburg, sued appellant, Western Steel Company, Inc. (“Western”), for injuries sustained in a work-related accident. Following a jury trial, the jury found (1) Western was negligent; (2) Altenburg was not Western’s borrowed employee; and (3) that Altenburg was entitled to $88,313.85 in damages. By two issues, Western challenges the legal and factual sufficiency of the evidence supporting the jury’s finding that Altenburg was not its borrowed employee. We affirm.

Background

On September 14, 1998, Altenburg suffered a work-related injury to his foot while heating steel beams at Western’s structural steel shop. At the time of the accident, Altenburg was a temporary worker employed by Unique Employment Services (“Unique”) and had been sent by Unique to work in Western’s shop. Alten-burg was covered by and received benefits under Unique’s worker’s compensation policy.

Altenburg sued Western, asserting negligence and gross negligence related to the accident. Western asserted various defenses, including the affirmative defense that it was not liable because Altenburg’s claims were barred by the worker’s compensation bar under the borrowed servant doctrine.

Western filed a motion for summary judgment asserting that it is not liable for negligence based on the exclusive remedy provision of the worker’s compensation statute. Western’s motion asserted that “Texas courts have afforded the temporary employer the protection of the workers’ compensation law, if the temporary employer is a subscriber to workers’ compensation insurance, by applying the borrowed servant doctrine.” Altenburg’s response to the motion is not included in the record. The trial court denied Western’s motion.

As noted, the jury found Western negligent, determined that Altenburg was not Western’s borrowed employee, and awarded him $88,313.85 in damages.

By two issues, Western appeals the legal and factual sufficiency of the jury’s finding that Altenburg was not its borrowed employee. In its brief, Western asserts that because “[Altenburg] was [Western’s] borrowed employee, [Western] is immune from liability by the worker’s compensation bar and [Altenburg] should take nothing from [Western].”

Standard of Review

If, as here, an appellant is attacking the legal sufficiency of an adverse answer to an issue on which he had the burden of proof, the appellant must overcome two hurdles. First, the record must be examined for evidence that supports the finding, while ignoring all evidence to the contrary. Second, if there is no evidence to support the finding, then the entire record must be examined to see if the contrary proposition is established as a matter of law. The issue should be sustained only if the contrary proposition is conclusively established.

When reviewing the factual sufficiency of evidence, we examine all of the evidence and set aside a finding only if it is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. A court of appeals must detail the evidence relevant to the issue in consideration, clearly state why the jury’s finding is factually insufficient or so against the great weight and preponderance of the evidence as to be manifestly unjust, and state in what regard the contrary evidence greatly outweighs the evidence in support of the verdict.

Applicable Law

Section 408.001 is the exclusive remedy provision of the TWCA. Section 408.001(a) provides as follows:

Recovery of workers’ compensation benefits is the exclusive remedy of an employee covered by workers’ compensation insurance coverage ... against the employer ... for ... a work-related injury sustained by the employee.

An employee is “covered by worker’s compensation insurance coverage” if his employer possesses an approved insurance policy covering the payment of worker’s compensation benefits to its employees.

A temporary employee may have more than one employer for purposes of the TWCA’s exclusive remedy provision “when a provider of temporary workers furnishes a worker to a client that controlled the details of the work at the time the worker was injured and there was no agreement between the provider of temporary workers and the client regarding workers’ compensation coverage.”

The exclusive remedy provision of the TWCA is an affirmative defense. Because an employer’s status as a sub-seriber to worker’s compensation is an affirmative defense, the duty is on the employer/defendant — not the employee/plaintiff — to plead and prove such facts.

In Garza v. Exel Logistics, Inc., the Texas Supreme Court recently held that under the TWCA, a temporary employment agency cannot obtain worker’s compensation insurance for a client company simply by obtaining coverage for itself. The court held that “two employers cannot agree that one workers’ compensation policy will name only one employer but cover both.” The Garza court held that because there was no evidence of explicit insurance coverage for Exel (the client company) in the record, Exel had failed to establish that it was “covered by workers’ compensation insurance coverage” for a “work-related injury sustained by the employee,” which is a prerequisite to the application of the exclusive remedy provision of the TWCA.

Analysis

In the present case, Western was therefore required to plead and prove: (1) Altenburg was a borrowed servant; (2) he was entitled to worker’s compensation benefits; and (3) Western had worker’s compensation insurance that covered claims asserted by borrowed servants. Thus, one of Western’s essential elements of proof is that it was “covered by workers’ compensation insurance coverage.”

As noted, Western adequately pled the affirmative defense that Altenburg’s claims were barred by the worker’s compensation bar under the borrowed servant doctrine. However, Western presented no evidence to the trial court that it was “covered by workers’ compensation insurance coverage” under the TWCA and that such coverage would have covered a claim made by Altenburg.

The record reflects that immediately prior to the beginning of trial, outside the presence of the jury, Western objected to its “worker’s compensation” insurance policy “coming into evidence to the jury.” Western’s counsel argued that admitting the policy to the jury would be “duplicious” [sic] because the parties had stipulated that ‘Western Steel has a policy of insurance, but that policy did not provide benefits to the plaintiff.” Secondly, Western argued that admission of the policy to the jury was irrelevant because:

[Western’s counsel]: ... The only relevance to the insurance comp — worker’s comp insurance issue under the Borrowed Servant Doctrine is that both the general employer must have comp and the special employer, or the borrowing employer, must have worker’s comp. Who paid the comp is really not an issue.
The only relevance it would have would be to the Court on determining the legal issue of whether or not we have met, at least, the superficial or the preliminary elements of Borrowed Servant, number one, being that both the client company and general employer has [sic] comp; two, being there was some exercise of control.

The trial court overruled Western’s objection and “Plaintiffs Exhibit 14b,” Western’s insurance policy, was admitted. We have carefully examined the policy. We conclude it does not establish that Western was “covered by workers’ compensation insurance” as required under the exclusive remedy provision of the TWCA.

At trial, Michael Yankee, president of Western, testified on cross-examination as follows:

Q [Altenburg’s counsel]: Come on, Mr. Yankee, you know what I’m asking. You give him — you give your straight employees W-2s. You don’t give him [Altenburg] a W-2.
A [Yankee]: I don’t give him a W-2. No.
Q: You don’t keep him on your medical insurance. Mr. Altenburg, isn’t, is he, correct?
A: No.
Q: He’s not on your 401-K plan.
A: That’s true.
Q: He’s not on your worker’s compensation policy for this injury.
A: That’s correct.
Q: He wasn’t paid benefits by your worker’s compensation policy.
A: Not that I know of.
⅜ ⅜ # ⅜:
Q: All right, sir. Well, you could certainly agree with me that all those benefits your regular employees get, that we just went through, have not been provided, were not provided and were certainly never intended to be provided to this man, Mr. Altenburg, correct?
A: Those benefits are available to him through the temporary company.
Q: Through Unique?
A: That’s correct.

Western also offered the video deposition testimony of Ray Robles, Western’s industrial division manager. On cross-examination, Robles testified as follows:

Q [Altenburg’s counsel]: To go specifically to Mr. Altenburg, for the day he got hurt back on September 14th, 1998, he was paid wages for that day’s work by Unique?
A [Robles]: Correct.
Q: Not by Western Steel, correct?
A: Correct.
Q: He was covered by workers’ compensation as an employee, an employee of Unique, correct?
A: Correct.
Q: He was actually paid benefits under that workers’ compensation policy of Unique by Unique’s compensation carrier, correct?
A: Correct.
Q: And he was not paid or claimed to be an employee under the workers’ compensation policy of Western Steel, was he?
A: Correct.
Q: We would be in agreement, he was not?
A: Correct.
Q: Because he was an employee — considered an employee under the compensation claim and policy of Unique?
A: Correct.

We conclude that the record contains no evidence that Western was “covered by workers’ compensation insurance coverage” as required under the exclusive remedy provision of the TWCA and that such coverage would have covered a claim made by Altenburg.

Even if, as Western urges, we were to determine that the evidence establishes as a matter of law that Altenburg was its borrowed employee, such a determination, without proof that Western was covered by worker’s compensation insurance, is immaterial.

We briefly address the dissenting opinion. The dissent would hold that the evidence established as a matter of law that Altenburg was Western’s borrowed employee. Thus, the dissent would sustain Western’s legal and factual sufficiency challenges and would reverse the trial court’s judgment. Rather than render judgment in Western’s favor, however, the dissent would remand to the trial court for it to consider, in light of Garza, whether Western established that it is “covered by workers’ compensation insurance coverage” within the meaning of the exclusive remedy provision of the Texas Worker’s Compensation Act (“TWCA”).

The dissent’s reliance on Garza, however, for its conclusion that remand is appropriate in this ease, is misplaced. In Garza, the trial court granted summary judgment in favor of the temporary employment agency and its client, and the court of appeals affirmed. The supreme court affirmed as to the temporary employment agency, but reversed and remanded as to the client company because the court found the client company had not established it was “covered by workers’ compensation insurance coverage” as required to assert the exclusive remedy provision of the TWCA. In contrast, the present case is not before us on a summary judgment. A jury has heard all the evidence presented by Altenburg and Western and has rendered judgment. Accordingly, remand is inappropriate because Western failed to prove an essential element of its affirmative defense- — specifically, that it was “covered by workers’ compensation insurance coverage — ” and is therefore not entitled to a second opportunity to prove its affirmative defense. The dissent simply does not address our holding that Western failed to prove that it is covered by workers’ compensation insurance.

We hold that Western failed to prove an essential element of its affirmative defense, specifically, that it is “covered by workers’ compensation insurance coverage.” Accordingly, we affirm the trial court’s judgment.

Dissenting Opinion by Justice ERRLINDA CASTILLO.

Dissenting Opinion by

Justice CASTILLO.

I respectfully dissent. The jury below found appellant, Western Steel Company, Inc., negligent for injuries sustained by appellee, Hank Altenburg, in an industrial accident. The jury also found that Alten-burg was not a “borrowed employee” of Western Steel. In two issues, Western Steel asserts that the evidence was legally and factually insufficient to support the jury’s finding that Altenburg was not a borrowed employee. For the reasons explained below, I would reverse and remand for further proceedings.

I. BACKGROUND

Western Steel fabricates structural steel columns, beams, stairs, and other large steel items used in industrial buildings. From time to time, it retains the services of temporary employees. Unique Employment Services placed Altenburg as a temporary employee with Western Steel, as a fitter’s helper. His job was to camber steel I-beams. Altenburg sustained a crush injury to his foot on his first day at the job site, September 14, 1998, when an I-beam fell. He sued Western Steel on several negligence theories. Western Steel asserted affirmative defenses, including that all claims were barred based on the borrowed servant doctrine.

Evidence reflected that a line of twenty to thirty I-beams was in place when Alten-burg arrived. Altenburg was instructed in the cambering process, worked on one beam, and began work on a second one. As he heated the middle of the beam, it dropped and rolled. In a domino effect, the beam caused the others to fall. Before Altenburg realized what was happening, one of the beams fell across his foot.

After contacting Unique to determine where to take Altenburg for treatment, a Western Steel employee took him to a local clinic. Altenburg filed a workers’ compensation claim through Unique and received benefits thereunder. Thereafter, Altenburg filed suit against Western Steel. At trial, various additional evidence was tendered on the issue of who had the right to control Altenburg’s work.

Upon the conclusion of Altenburg’s casein-chief, Western Steel moved for a directed verdict on grounds that its borrowed servant defense was conclusively established. At the closing of all evidence, Western Steel also moved for an instructed verdict, asserting the borrowed servant defense. Both motions were denied. The jury found that Altenburg was not a borrowed employee, found Western Steel negligent, and awarded damages. The trial court entered a final judgment reflecting the jury award. Western Steel filed a motion for new trial, which was overruled by operation of law. This appeal ensued.

II. ISSUES PRESENTED

In its first issue, Western Steel argues the evidence is legally insufficient to support the jury’s finding that Altenburg was not a borrowed employee. Western Steel contends that the evidence submitted at trial reflected the following: (1) it provided Altenburg all the necessary tools, equipment, and materials to perform his work; (2) it had the exclusive right to direct and control Altenburg’s work at all times; (3) Unique relied upon Western Steel to supervise, direct, and control all of Alten-burg’s work activities while at Western Steel’s shop; and (4) Unique had no input into how Altenburg performed his work for Western Steel.

Western Steel also argues in its second issue that the evidence was factually insufficient to support the jury’s answer to Question Number 5.

III. STANDARDS OF REVIEW

A. Legal Sufficiency

We address legal-sufficiency challenges as either “no-evidence” or “matter-of-law” issues. Gooch v. Am. Sling Co., 902 S.W.2d 181, 183-84 (Tex.App.-Fort Worth 1995, no writ). We analyze the issue as a “no-evidenee” challenge when the party complaining on appeal did not bear the burden of proof at trial. Id. Where the appellant did not bear the burden of proof on the issue, he must show that the record presents no evidence to support the adverse finding. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex.1983).

Where, as here, the appellant bears the burden of proof on the issue, review must be addressed as a “matter-of-law” challenge. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex.2001). If, in reviewing a “matter-of-law” challenge, we conclude that the record presents no evidence to support the finding, we then examine the entire record to determine if a contrary proposition is established as a matter of law. Id.; Holley v. Watts, 629 S.W.2d 694, 696 (Tex.1982).

In performing a legal-sufficiency review, we consider only the probative evidence and inferences that support the challenged finding, disregarding all evidence and inferences to the contrary. Lenz v. Lenz, 79 S.W.3d 10, 19 (Tex.2002). We overrule a legal-sufficiency challenge if the record reflects any evidence of probative force to support the finding. ACS Investors, Inc. v. McLaughlin, 943 S.W.2d 426, 430 (Tex.1997).

If there is more than a scintilla of evidence to support the finding, the legal-sufficiency challenge fails. Formosa Plastics Corp. v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex.1998). The evidence is no more than a scintilla and, in legal effect, is no evidence “[w]hen the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence.” Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983). Suspicion linked to other suspicion produces only more suspicion, not some evidence. Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727 (Tex.2003); Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925, 928 (Tex.1993). Similarly, an inference stacked only on other inferences is not legally sufficient evidence. Pitzner, 106 S.W.3d at 727. Conversely, more than a scintilla exists when the evidence “rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.” Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex.1994).

When both legal and factual sufficiency challenges are raised on appeal, the court must first examine the legal sufficiency of the evidence. See Glover v. Texas Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex.1981) (per curiam).

B. Factual Sufficiency

When reviewing a jury verdict to determine the factual sufficiency of the evidence, the party attacking a finding on which an adverse party bore the burden of proof must show that the record presents “insufficient evidence” to support the finding. Gooch, 902 S.W.2d at 184. In a factual insufficiency attack on an adverse finding on which it bore the burden of proof at trial, a party must show that the finding is against the “great weight and preponderance of the evidence.” Raw Hide Oil & Gas, 766 S.W.2d at 275. We examine and consider all the evidence. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex.1998). We set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986).

IV. LEGAL SUFFICIENCY ANALYSIS

In its first issue, Western Steel argues it established the borrowed servant defense as a matter of law. Specifically, Western Steel argues that it had the right to direct and control Altenburg’s activities with respect to the cambering process and that it controlled all other aspects of Altenburg’s work at all times while he was working on Western Steel’s premises. Altenburg responds that the testimony relied upon by Western Steel to establish direction and control instead only reflects pre-work direction by Western Steel’s employees. We must examine the record to determine whether some evidence exists to support the finding in issue, namely, that Alten-burg was not a borrowed servant of Western Steel. See Weirich v. Weirich, 833 S.W.2d 942, 945 (Tex.1992).

A. Borrowed Servant Defense

The supreme court has long recognized that a general or regular employee of one employer may become the borrowed employee of another with respect to some activities. St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 537 (Tex.2002); J.A. Robinson & Sons, Inc. v. Wigart, 431 S.W.2d 327, 330 (Tex.1968); see also Wingfoot Enter. v. Alvarado, 111 S.W.3d 134, 146 (Tex.2003); Sparger v. Worley Hosp., Inc., 547 S.W.2d 582, 583 (Tex.1977). Whether an individual has become a borrowed employee of another hinges on whether the other employer or its agents have the right to direct and control the employee with respect to the details of the particular work at issue. Wolff, 94 S.W.3d at 537. If the general employee is placed under the control of a special employer in the course of performing a particular sendee, he becomes a borrowed employee of the special employer. Miller v. Hood, 536 S.W.2d 278, 282 (Tex.Civ.App.-Corpus Christi 1976, writ ref'd n.r.e.). However, if the employee remains under the control of his general employer while performing such service, he remains the employee of the general employer. Id.

If an employee of one employer becomes the borrowed employee of another, he is no longer considered an employee of the general employer for vicarious liability purposes. Wolff, 94 S.W.3d. at 538. The instruction in the Texas Pattern Jury Charge generally summarizes the principle:

An employee ceases to be an employee of his general employer if he becomes the “borrowed employee” of another. One who would otherwise be in the general employment of one employer is a borrowed employee of another employer if such other employer or his agents have the right to direct and control the details of the particular work inquired about.

Id. (citing Texas Pattern Jury Charges— Malpractice, Premises Products, PJC 52.2 (1997)).

The borrowed servant doctrine is discussed in Restatement (Second) of Agency § 227 (1958), “Servant Lent to Another Master.” See Lara v. Lile, 828 S.W.2d 536, 538 (Tex.App.-Corpus Christi 1992, writ denied). Section 227(b) states that:

... in the absence of evidence to the contrary, there is an inference that the actor remains in his general employment so long as, by the service rendered another, he is performing the business entrusted to him by the general employer. There is no inference that because the general employer has permitted a division of control, he has surrendered it.

Lile, 828 S.W.2d at 538. The question is which employer has the right of control over the actions of the employee. Id.

Examples of the type of control an employer normally exercises include when and where to begin and stop work, the regularity of hours, the amount of time spent on particular aspects of work, the tools and appliances used to perform the work, and the physical method or manner of accomplishing the end result. See Thompson v. Travelers Indem. Co. of Rhode Island, 789 S.W.2d 277, 278-79 (Tex.1990). The right of control is necessarily determined as an inference from facts and circumstances such as the following: (1) the nature of the general project; (2) the nature of the work to be performed by the machinery and employees furnished; (3) length of the special employment; (4) the type of machinery furnished; (5) acts representing an exercise of actual control; and (6) the right to substitute another operator of the machine, etc. See Producers Chem. Co. v. McKay, 366 S.W.2d 220, 226 (Tex.1963). We must carefully distinguish between authoritative direction and control, and mere suggestion as to details or necessary cooperation, where the work furnished is part of a larger undertaking. See id. Directions to a special employee that are limited to when to start and stop work, in coordination with the other employees’ work on the ultimate project, do not constitute such control over the employee as to trigger the borrowed servant doctrine. Id. Applicability of the borrowed servant doctrine must be reviewed on a case-by-case basis. See Lile, 828 S.W.2d at 540; Aguilar v. Wenglar Const. Co., Inc., 871 S.W.2d 829, 831 (Tex.App.-Corpus Christi 1994, no pet.).

The borrowed servant doctrine is an inferential rebuttal defense to tort liability based upon respondeat superior. Linden-Alimak, Inc. v. McDonald, 745 S.W.2d 82, 84 (Tex.App.-Fort Worth 1988, writ denied) (citing Select Ins. Co. v. Boucher, 561 S.W.2d 474, 477 (Tex.1978)). Western Steel bore the burden of proof on this question, see Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 481 (Tex.2001), which was rejected by the jury. Western Steel therefore bears the burden to establish that Altenburg was its borrowed servant when he sustained an injury. Dow Chem. Co., 46 S.W.3d at 241.

B. Was There More Than a Scintilla of Evidence to Support the Jury’s Finding?

In reviewing the record for evidence supporting the jury’s finding, we turn to Altenburg’s argument that the evidence establishes that Western Steel provided only pre-work direction, and the evidence was therefore insufficient to prove that Unique surrendered its right to control. Altenburg directs us to evidence that he contends shows (1) he was paid as an employee of Unique, (2) he brought his own required hand tools, safety equipment and gloves, (3) at the time of his injury he was providing welding services that did not require specific instruction, (4) he was not under the direct supervision of any Western Steel employee at the time of his injury, (5) the lack of safety equipment which caused the injury was Western Steel’s safety equipment — the failure to utilize jack stands with stops, (6) the correction of this defect was made by Western Steel, not Unique, after his injury and because of his injury, (7) Unique, not Western Steel, paid for his workers’ compensation benefits, and (8) there was no written contract which changed his employment status. I have examined the record for evidence that supports the jury’s finding, while ignoring all evidence to the contrary. See Lenz, 79 S.W.3d at 19.

Altenburg asserts he took his own tools, safety equipment, and gloves. The record, including Altenburg’s own testimony, establishes only that he provided his own steel-toed boots.

Altenburg points to evidence showing that he was not under the direct supervision of any Western Steel employee at the time of his injury. Altenburg testified that he was working on another project when a Western Steel supervisor told him he was needed on a “special project” and led him to the newly-assigned work area.

Altenburg asserts that, at the time of his injury, he was providing welding services that did not require specific instruction. He- argues that the input provided by Western Steel supervisors constituted “pre-work direction” rather than control over the details of the work he was performing. He testified that (1) he was not a welder, (2) prior to working at Western Steel, he had not cambered beams, and (3) a Western Steel supervisor trained him as to how to camber a beam on a machine prior to the additional training of cambering beams with the welding wand. Alten-burg also testified that the Western Steel supervisor explained and demonstrated the cambering process, then had Altenburg start cambering. Altenburg testified that the supervisor remained there while Alten-burg finished cambering the first beam to review and ensure that Altenburg’s technique was proper. The supervisor directed him on which beams to camber first and how to progress.

Altenburg also asserts that certain safety equipment was missing prior to the accident and that Western Steel made corrections to this “defect” after the accident. However, this evidence does not bear on whether Western Steel had or exercised the right to control Altenburg’s work. See Producers Chem., 366 S.W.2d at 226.

Ray Robles, Unique’s industrial division manager, agreed that Unique did not contact Western Steel to advise or alter the manner in which Western Steel instructed Altenburg in cambering the beams. Further, Unique did not advise or instruct Western Steel to provide better and safer equipment and instructions.

Robles also testified that while Alten-burg was Unique’s paid employee, Western Steel paid Unique $6.00 an hour for work Altenburg performed for Western Steel. Michael Yankee, Western Steel’s president, testified that the company paid an invoice to Unique and received, as the result, an income tax deduction “the same as paying a payroll check.” None of this evidence establishes that Unique retained the right to control the nature or performance of the work. See Wingfoot, 111 S.W.3d at 143-44.

Altenburg also asserts that he was not a borrowed employee of Western Steel because Unique paid his workers’ compensation benefits and that this factor supports the jury’s finding. The record does not establish whether Unique is a “staff leasing services company” as defined and regulated by the Staff Leasing Services Act (the “SLSA”). See Tex. Lab.Code Ann. § 91.001-063 (Vernon 1996 & Supp.2004-05). Generally, courts determine whether a workers’ compensation insurance policy covers a worker’s injury by determining whether the subscribing company is the worker’s employer under the right-of-control test. See Thompson, 789 S.W.2d at 278. However, the SLSA expressly provides that a staff leasing company maintains “the right of direction and control” over leased employees for a variety of purposes, including workers’ compensation benefits. See Tex. Lab.Code Ann. § 91.032 (Vernon Supp.2004-05). The SLSA grants the staff leasing company the exclusive right to elect or deny workers’ compensation coverage to leased workers. See id., § 91.042(b), (c) (Vernon 1996). Thus, the SLSA, where applicable, statutorily supersedes the common law right-of-control test in determining employer status of leased employees for workers’ compensation coverage purposes only. Tex. Workers’ Comp. Ins. Fund v. Del Indus., Inc., 35 S.W.3d 591, 596 (Tex.2000).

Finally, Altenburg asserts that no written contract changed his employment status. Robles testified that Unique and Western Steel had a written contract, though it was not admitted in evidence. However, the Supreme Court has recently affirmed that contractual designation of control will not establish borrowed servant status as a matter of law where evidence shows that the parties acted to the contrary. Wolff, 94 S.W.3d at 544 n. 92. Considering the probative evidence and inferences, Altenburg’s argument based on the contract must fail as a matter of law.

On this record, I am unable to conclude that there is legally insufficient evidence of probative force to sustain the jury’s finding. Pitzner, 106 S.W.3d at 727; Producer’s Chem., 366 S.W.2d at 226.

C. Does the evidence establish the opposite of the jury’s finding?

Because Western Steel bore the burden of proof on the borrowed servant defense, we look to the circumstances surrounding Altenburg’s temporary employment with Western Steel by reviewing the factors enumerated in McKay, 366 S.W.2d at 226. For this legal sufficiency analysis, I examine the record to determine if a proposition contrary to the jury’s finding (i.e., that Altenburg was a borrowed servant of Western Steel) is established as a matter of law. Watts, 629 S.W.2d at 696.

1.The nature of the general project

Charles Johnson, a Western Steel shop foreman, testified that part of his job involved securing temporary workers. Al-tenburg had previously worked at Western Steel as a general helper, through Unique’s competitor, and had used a welding torch. This particular project assigned to Altenburg involved cambering twenty or thirty beams and was part of a larger project, namely, building trusses which included cambered members. Altenburg had been working on one task and was directed to move to another aspect of the larger project which involved the cambering of the beams. Johnson testified that Altenburg would be working by himself and was expected to work until he finished the beams. Hedtke, another shop foreman, testified to these same facts. He also related that, after Altenburg was instructed on how and where to perform the work, Altenburg worked on one beam, under the direction of the supervisor, before beginning work on a second beam. Then, the incident which caused the injury occurred.

2.The nature of the work to be performed by the machinery and employees furnished

Johnson, Hedtke, and Alternburg each testified that Western Steel provided the welding equipment (the machinery), as well as the face shield, the welder’s apron, and the protective gloves (the safety equipment) that Altenburg used in performing the work. Altenburg confirmed that Western Steel personnel supervised him and provided the employees who instructed and trained him on how to perform the work. Hedtke testified that he had instructed Altenburg on how to camber the beams and made sure he understood the procedure. Hedtke stated that he spent more than two hours with Altenburg, explaining the entire process to him and showing him what needed to be done. He instructed Altenburg in the actual cambering process by demonstrating for at least thirty to forty-five minutes. This training included instruction on how to hold the welding wand, where to stand, when and where to begin, and how to camber the beams. Johnson similarly testified that on the date in question, Altenburg was in a “training process,” but he was not given specific training on how to weld or use a welding torch. Hedtke supervised and directed Altenburg in his work, though he had stepped a short distance away at the time of the injury. Altenburg’s engineering expert, Dr. Jack Madeley, testified that Altenburg was not being supervised at the time of his injury, but he agreed that Western Steel and its agents had the right to direct and control the details of the cambering process.

3. Length of the special employment

Johnson and Hedtke each testified that cambering twenty to thirty beams would take two to three days. Altenburg testified that, when he first began working at Western Steel, he was grinding corners off metal pieces. He subsequently worked there as a pipe fitter before receiving the assignment to camber beams. The actual length of the prior special employment at Western Steel was approximately two months. The length of the actual work involving cambering beams was approximately two hours, though the anticipated length of that particular assignment was three days.

4. The type of machinery furnished

Testimony of several witnesses reflected that Western Steel provided the welding tools and equipment to camber the beams, including the torch, gas striker, and winch. Western Steel provided the materials, in-eluding the beams, four-by-four blocks, and welding materials. Western Steel also provided safety equipment, including the face shield, welder’s apron, and protective gloves.

5. Acts representing an exercise of actual control

Altenburg testified that a supervisor at Western Steel told him he was needed in a “special detail” and took him to the location where steel beams were lined in a row, ready to be cambered. He testified that he had no prior training on how to camber a beam on the floor, but he had been trained to camber a beam on a machine. The supervisor demonstrated the cambering process on the first beam and then handed Altenburg the welding torch to finish it. Altenburg began cambering that beam, with the supervisor watching to ensure his technique was good because, as Altenburg testified, “it’s a little tricky.” Altenburg further testified that, after he completed the first beam, the supervisor said, “Just go ahead and, you know, you’re on your own.... I’ll come by and check you every now and then, to make sure everything’s all right.” Altenburg testified that the supervisor directed him to start on the beams lined up in the back and to move from back to front, instead of from front to back. He explained, “So, instead of being postured like that, I’d be slumped over quite a bit, trying to make an effort to reach that last beam.... It was a little awkward.” Altenburg testified that the beam he cambered by himself was the one that tipped over and landed on his foot. Hedtke testified that shortly after he walked away from Altenburg, he heard the beam fall, and he returned to the scene where he saw Altenburg holding his foot.

Altenburg’s testimony further addressed the control issue. He agreed that Western Steel told him what time to appear and where to go, and that Western Steel controlled and directed (1) when he was to be at work each day, (2) when he could take breaks, (3) his quitting time, (4) the number of hours he could work, (5) his activities while he was a temporary worker on the premises, and (6) how and in what manner and sequence to perform the cambering process on the beams. He further confirmed Western Steel first instructed and then supervised him in the cambering process, directed and controlled his performance of that process, and provided the tools, welding equipment, and safety equipment to be used in that process. He testified that Western Steel could modify the work he performed and had the right to terminate his employment.

Johnson testified that Western Steel used temporary employees because, “It’s a good way to find qualified help in a shop. And ... we just need temporary help because of the different types of jobs that come around.” Although he had the opportunity to hire Altenburg as “a full-time employee,” he did not hire him as one; rather, Johnson referred Altenburg to Unique “to get them to hire him and send him to Western Steel.” Johnson testified that no one from Unique attempted to direct and control the activities of the temporaries or the cambering process, and this control at all times remained the exclusive right of Western Steel. He further testified that Western Steel supervisors had the right to direct and control the details of the work of the temporary employees.

Robles testified that his duties with Unique were to oversee the placement coordinators who interviewed all employees sent to clients. Unique worked to match the skills of its client employees to the needs of its client companies. He agreed Unique loaned its temporary employees to companies like Western Steel to perform work for those companies. Robles testified that Altenburg was employed with Unique during the last quarter of 1998, Western Steel was Unique’s client in September 1998, and Unique sent Alten-burg to Western Steel.

Robles further testified that the client company, Western Steel, had the right to direct and control the details of the activities performed by Unique’s “client employees” such as Altenburg. He testified that Unique had no right to and never attempted to go onto Western Steel’s property and control or direct the work that Altenburg was performing. Unique had no right to tell Altenburg when to report for work at Western Steel, when to take his breaks, how long he would work for Western Steel, or the days he would work. Unique did not provide any of the tools, equipment, or materials utilized by Altenburg on the job. Robles further testified that Western Steel had the right to direct and control not only Altenburg’s work, but also the work of all other employees Unique sent to Western Steel. Unique relied upon its client companies such as Western Steel to supervise any Unique employees working at their job site. He specifically testified that “it was an understanding that the client company, being Western Steel, would direct Mr.- — or any of our employees out there as to what them work would be and what time they would show up and what hours they would work.” Robles further testified that Unique

... had no — no—no control over that. I mean, as far as controlling his activities, that was left entirely up to the supervisor since he was the one that knew how the job needed to be done and what needed to be done. So it was the supervisor’s responsibility to let Mr. Alten-burg know exactly what needed to be done, where he needed to be placed and everything.

The supervisors referenced were “Western Steel supervisors.”

Unique and Western Steel had a contract between them which governed their relationship. Robles testified that “Western Steel in fact, paid Unique to have Mr. Altenburg work over there, and out of that pay, they made — there were payments made for his salary to Mr. Altenburg.”

Madeley, Altenburg’s engineering expert, also testified that Western Steel and its agents had the right to direct and control the details of the cambering process. Altenburg, when asked whether he considered himself a Western Steel employee, answered: “I knew that I was sent there by Unique Temporary Services. They were my paid employer.” However, he further testified, as noted above, that all aspects of the work were directed and controlled by Western Steel.

The accident occurred after Altenburg was instructed in the cambering process and worked alone for a short time. The supervisor left but was to check on Alten-burg “now and then, to make sure everything’s all right.” Altenburg testified that he would have followed any instruction, direction and control given to him by the Western Steel supervisor because “during the time that [he] was injured, he [the supervisor] had the right to direct and control [Altenburg’s] work.”

The evidence establishes that Western Steel maintained the right to direct and control the details of the particular work, namely, the cambering process.

Y. FACTUAL SUFFICIENCY ANALYSIS

Determining whether the evidence at trial was factually insufficient to support the jury’s finding, such that the finding is against the great weight and preponderance of the evidence as to be manifestly unjust, similarly requires a review of the entire record. Pool v. Ford Motor Co., 715 S.W.2d at 635. The same facts reviewed to determine whether or not Western Steel’s borrowed servant defense was established as a matter of law have been reviewed to determine whether the evidence was factually sufficient to support the jury’s finding that Altenburg was not a borrowed servant. Id.

Evidence shows that Western Steel had the right to direct and control the details of Altenburg’s work, Unique did not control the work performed, and Unique did not go out to direct the activities while Altenburg was at Western Steel. Further, Unique (1) did not and had no right to tell Altenburg when to report to work, (2) had no right to direct or control the length of Altenburg’s employment or the days he would work, (3) did not provide the tools or equipment, including safety equipment, that Altenburg used, (4) did not instruct, train, or supervise Altenburg in the task at hand, and (5) did not direct Altenburg as to when, where, or how to perform the work. The evidence establishes that Western Steel had the right to direct and control Altenburg’s work at all times, and Unique relied on Western Steel’s supervisors to direct and control all aspects of the work.

Rather than a mere suggestion as to details or necessary cooperation, Western Steel provided “exactly the type of direction and control contemplated by the doctrine of borrowed servant.” Wenglar, 871 S.W.2d at 832 (finding that basic guidance in how to complete a specific task, including where to stand and how to physically accomplish the work, supported a finding that the employee was a borrowed servant); see also Exxon Corp. v. Perez, 842 S.W.2d 629, 630 n. 2 (Tex.1992) (per curiam). I conclude that Western Steel had the right to, and did, direct and control the details of Altenburg’s work in the manner contemplated by the borrowed servant doctrine, thus placing Altenburg temporarily under the “employ” of Western Steel for purposes of its responsibility for his conduct and for his safety in performing the work.

However, the Texas Supreme Court in Garza v. Exel Logistics, Inc., 161 S.W.3d 473, 479-81 (Tex.2005) (designated for publication) recently held that the determination of control over the individual’s work is not itself dispositive of the issue of whether a special employer is entitled to assert the exclusive remedy bar under the workers’ compensation statute.

VII. DISPOSITION

In summary, after conducting the analysis applying the factors in McKay, I conclude that not more than a scintilla of evidence existed to support the jury’s finding on the borrowed servant issue, an issue on which Western Steel bore the burden of proof. Under the second prong of the legal sufficiency analysis, review of the entire record was required to determine whether the opposite of the jury’s finding was established as a matter of law. Similarly the factual sufficiency analysis required review of the entire record to determine if the jury’s finding was so against the great weight and preponderance of the evidence as to be manifestly unjust.

Respectfully, I would sustain Western Steel’s first issue on appeal, that the evidence was legally insufficient to support the jury’s finding, and that the evidence as to borrowed servant, a defense on which Western Steel bore the burden of proof, conclusively established the opposite of the jury’s finding. I conclude the evidence established that Altenburg was a borrowed employee of Western Steel as a matter of law. I would similarly sustain Western Steel’s second issue on appeal, that the evidence was factually insufficient to support the jury’s finding, because that finding was against the great weight and preponderance of the evidence.

We normally reverse and render when we sustain a legal sufficiency issue on appeal. Vista Chevrolet, Inc. v. Lewis, 709 S.W.2d 176, 177 (Tex.1986) (per curiam). However, because the parties did not have the benefit of the recent Texas Supreme Court decision in Garza, I would remand to the trial court for further proceedings consistent with that opinion. Garza, 161 S.W.3d at 479-81.

VIII. CONCLUSION

The issue on appeal focuses on the jury’s answer to question 5, whether Altenburg was a borrowed servant. I would sustain Western Steel’s first issue on appeal on the sole question before us of borrowed servant. I would reverse. In light of Garza, I would remand for further consideration by the trial court as to whether or not Western Steel, even if Alternburg were its borrowed servant, adequately tendered evidence entitling it to claim protection under the workers’ compensation exclusive remedy bar. Tex.R.App. P. 43.2 and 43.3(a).

      . See Tex. Lab.Code Ann. § 408.001 (Vernon 1996).

        . Victoria Bank & Trust Co. v. Brady, 811 S.W.2d 931, 940 (Tex.1991).

      . Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex.2001).

      . Id.

      . Id. at 241-42.

      . Id. at 242.

      . Id. at 241.

      . Tex. Lab.Code Ann. § 408.001 (Vernon 1996).

      . Id. § 401.011(44)(A) (Vernon Supp.2004-05).

      . Wingfoot Enter. v. Alvarado, 111 S.W.3d 134, 144 (Tex.2003).

      . Pierce v. Holiday, 155 S.W.3d 676, 678 (Tex.App.-Texarkana 2005, no pet.); Brown Servs., Inc. v. Fairbrother, 776 S.W.2d 772, 775-76 (Tex.App.-Corpus Christi 1989, writ denied); see Exxon Corp. v. Perez, 842 S.W.2d 629, 631 (Tex.1992) (Exxon entitled to question on its affirmative defense because it pled and proved its subscriber status and that Perez was its borrowed servant).

      . See Tex.R. Civ. P. 94; Pierce, 155 S.W.3d at 678; Brown Servs., 776 S.W.2d at 775-76.

      . Garza v. Exel Logistics, Inc., 161 S.W.3d 473, 478 (Tex.2005).

      . Id. at 479.

      . Id. at 481.

      . See Univ. of Houston—Clear Lake v. Marsh, 981 S.W.2d 912, 914 (Tex.App.-Houston [1st Dist.] 1998, no pet.).

        .Johnston Testers v. Rangel, 435 S.W.2d 927, 930 (Tex.Civ.App.-San Antonio 1968, writ ref'd n.r.e.) (defendant not entitled to issue on its defenses that plaintiff was borrowed servant whose sole remedy was under worker’s compensation act because defendant did not prove plaintiff was entitled to worker's compensation benefits or that defendant had worker's compensation insurance).

      . See Tex. Lab.Code Ann. § 408.001 (Vernon 1996). The only reference in Western’s insurance policy regarding worker's compensation is a reference specifically excluding such coverage. The policy states, in pertinent part:
      2. Exclusions.
      This insurance does not apply to:

      d. Workers’ Compensation and Similar Laws
      Any obligation of the insured under a workers' compensation, disability benefits or unemployment compensation law or any similar law.

      . See Tex. Lab.Code Ann. § 408.001 (Vernon 1996).

      . See Moore v. Cotter & Co., 726 S.W.2d 237, 240 (Tex.App.-Waco 1987, no writ) (stating that jury's finding that plaintiff was borrowed employee, without proof of coverage by compensation was immaterial because proof that worker's compensation insurance existed is essential element of proof in borrowed servant defense); Guerrero v. Standard Alloys Mfg. Co., 598 S.W.2d 656, 657 (Tex.Civ.App.-Beaumont 1980, writ ref'd n.r.e.) (holding that jury’s affirmative finding on borrowed servant issue, without proof of compensation coverage, was "immaterial,” where defendant had neither plead nor proved that it had worker's compensation insurance).

      . See Garza, 161 S.W.3d 473.

      . See Tex. Lab.Code Ann. § 408.001 (Vernon 1996).

      . Garza, 161 S.W.3d at 474.

      . Id.

      . The jury answered seven questions, as follows (instructions are not included):
      Question No. 1: Did the negligence, if any of Western Steel Company, Inc. proximately cause the occurrence or injury in question?
      Answer: Yes.
      Question No. 2: Was the "product upon which the I-beams were placed" at the time of the occurrence or injury in question released into the stream of commerce by Western Steel Company, Inc?
      Answer: No.
      Question No. 3 [to be answered only if the jury answered "Yes” to Question No. 2]: Was there a design defect in the “product upon which the I-beams were placed” at the time it was released into the stream of commerce by Western Steel Company, Inc., for the use of Hank Altenburg that was a producing cause of the occurrence or injury in question?
      Answer: N/A.
      Question No. 4: What sum of money, if paid now in cash, would fairly and reasonably compensate Hank Altenburg for his injuries, if any, resulting from the occurrence in question?
      Answer: [total] $65,500
      Question No. 5: On the occasion in question was Hank Altenburg acting as a borrowed employee of Western Steel Company, Inc.?
      Answer: No.
      Question No. 6 [to be answered only if the jury answered "Yes” to Question No. 1 or 3]: Do you find by clear and convincing evidence that the harm to Hank Altenburg resulted from malice?
      Answer: No.
      Question No. 7 [to be answered only if the jury answered "Yes” to Question No. 6]: Do you find by clear and convincing evidence that the conduct of Western Steel Company, Inc. knowingly or intentionally caused serious bodily injury to Hank Alten-burg?
      Answer: N/A.

      . Cambering involves heating a steel beam in excess of 250 pounds to cause it to bend in the middle. The beams in issue were elevated on both ends by four-by-four wooden blocks, and heat was applied to the middle by using a welding wand with a rosebud-tip torch. This process caused the middle of the beams to droop, resulting in the desired bend. Each beam was twelve inches tall and twenty-five feet long. A crane was used to put the beams in place.

      . Altenburg suffered three broken toes and a stress fracture which required corrective surgery.

      . Question number five in its entirety read as follows:
      On the occasion in question was Hank Al-tenburg acting as a borrowed employee of Western Steel Company, Inc.?
      An “employee” is a person in the service of another with the understanding, express or implied, that such other person has the right to direct the details of the work and not merely the result to be accomplished.
      An employee ceases to be an employee of his general employer if he becomes the “borrowed employee” of another. One who would otherwise be in the general employment of one employer is a borrowed employee of another employer if such other employer or his agents have the right to direct and control the details of the particular work inquired about.
      Answer "Yes” or "No.”
      Answer: No.

      . In this opinion, the term “general employer” is used to refer to the provider of temporary workers that employs a worker ("general employee”) who is then assigned to work for a client of the provider, the “special employer.” See Wingfoot Enter. v. Alvarado, 111 S.W.3d 134, 137 (Tex.2003).

      . The fact that workers' compensation coverage was provided by Unique does not alter our need to determine who retained the "right to control” Altenburg's work. See Wingfoot Enter. v. Alvarado, 111 S.W.3d 134, 144 n. 56 (Tex.2003) (citing Rodriguez v. Martin Landscape Mgmt. Inc., 882 S.W.2d 602, 605-06 (Tex.App.-Houston [1stDist.] 1994, no writ) and Denison v. Haeber Roofing Co., 767 S.W.2d 862, 864-65 (Tex.App.-Corpus Christi 1989, no writ) (each holding that there was a fact question about whether the client company had a right to control employee and therefore whether it could assert exclusive remedy provision based on workers’ compensation policy obtained by general employer who supplied contract labor)); see also Pederson v. Apple Corrugated Packaging, Inc., 874 S.W.2d 135, 137-38 (Tex.App.-Eastland 1994, writ denied) (holding the client company who controlled details of an employee's work at time of injury was an employer for purposes of the exclusive remedy bar, even though a leasing company carried the employee on its workers' compensation policy and the leasing company was the insured rather than the client). I note the analysis of the Texas Supreme Court:
      These purposes of the [Workers' Compensation] Act are carried out by recognizing that the express definition of "employer” and "employee” and the exclusive remedy provision may apply to more than one employer. An employee in Alvarado's situation will be working for her general employer (i.e., the temporary staffing provider), but will also be subjected to laboring in the workplace and under the direction of the general employers’ client company.... An employee injured while working under the direct supervision of a client company is conducting the business of both the general employer and that employer’s client. The employee should be able to pursue workers’ compensation benefits from either.... The purposes underlying the Workers’ Compensation Act and its definition of "employer” and "employee” indicate that the general employer is, and should be, an "employer” of a temporary worker even if a client company directs the details of that employee's work when the employee is injured.

        Wingfoot, 111 S.W.3d at 142-43. But see Garza v. Exel Logistics, Inc., 161 S.W.3d at 479-81 (Tex.2005) (designated for publication) (finding that the issue of control over the individual’s work is not the sole consideration in determining entitlement to the workers’ compensation exclusive remedy bar).

      . On cross-examination, Robles admitted he had no personal knowledge of facts to show that Altenburg, at the time of his injury, was under the specific control of any supervisor or person from Western Steel.

      . As previously noted, the contract between Western Steel and Unique was not part of the evidence below.


source: Caselaw Access Project

author: BOB PEMBERTON, Justice.

license: Public Domain

text:
    Tony WILSON, Appellant, v. William B. “Tex” BLOYS, Appellee.

    No. 03-04-00199-CV.
    Court of Appeals of Texas, Austin.
    June 23, 2005.
    Rehearing Overruled July 21, 2005.

      Jack W. Lee, Mason, for Tony Wilson.
    Terry R. Norman, Brady, for William B. “Tex” Bloys.
    George Warner, Assistant Attorney General, Administrative Law Division, Austin, for Texas Real Estate Commission.
    Before Chief Justice LAW, Justices B.A. SMITH and PEMBERTON.

      . The Attorney General, on behalf of the Real Estate Commission, has also filed a brief in support of the judgment below.

   OPINION

BOB PEMBERTON, Justice.

This is an appeal from a final summary judgment denying appellant Tony Wilson’s motion for reimbursement from the Real Estate Recovery Trust Account (the Account). See Tex. Occ.Code Ann. §§ 1101.601-.658 (West 2004). On appeal, we consider whether a default judgment based on pleadings that do not explicitly mention any of the statutory grounds for recovery from the Account can impliedly support recovery from the Account. For the reasons stated below, we will affirm the judgment of the district court.

BACKGROUND

In 1975, the legislature created the Account and charged the Real Estate Commission with its maintenance and administration. The purpose of the Account is to “guarantee the fidelity and honesty of the real estate salesman in his dealings with the public and to insure and indemnify any member of the public against damages or injury caused by a violation of the Act.” State v. Pace, 640 S.W.2d 432, 433 (Tex.App.-Beaumont 1982) (quoting Texas Real Estate Comm’n v. Century 21, 598 S.W.2d 920, 923 (Tex.Civ.App.-El Paso 1980, writ ref'd n.r.e.)), aff'd, 650 S.W.2d 64 (Tex.1983). Simply put, a person who ob tains a judgment for actual damages caused by the misconduct of real estate license holders can, when certain specified statutory conditions are met, obtain reimbursement from the Account if the license holder is unable to pay the judgment. Tex. Occ.Code Ann. § 1101.601. Among the statutory conditions for recovery from the Account, the person’s judgment against the license holder must have been predicated on facts constituting fraud or misrepresentation. See id. § 1101.606.

The facts relevant to this appeal are not in dispute. Don Ray George owned a 431-acre tract in McCulloch County. In September 1999, he sold 218 acres to appellee, William B. “Tex” Bloys, but retained a vendor’s lien on that property to secure a promissory note from Bloys in the amount of $147,307.95. In the spring of 2000, Bloys offered to sell to Wilson his 218 acres and, acting as George’s agent, George’s remaining 213-acre tract. Wilson paid cash for George’s 213-acre tract. He then made a cash down payment for the 218-acre tract and agreed to assume Bloys’s obligation under the note owned by George. On May 27, 2000, Wilson conveyed a $10,000 loan to Bloys memorialized in another promissory note. According to the terms of the note, the purpose of the loan was to “pay off Don Ray George settlement on sale of a 213 acre and a 218 acre tract which Mr. Tex Bloys sold to Tony Wilson and to provide Tony Wilson with two policies of title insurance on both tracts.”

Bloys failed to repay the loan according to its terms. Wilson filed suit on August 2, 2001, seeking a judgment against Bloys for $9,200, the unpaid amount of the loan, plus interest and attorney’s fees. Wilson attached to his pleading a copy of the promissory note and a letter to Bloys demanding payment. The pleading and the letter allege a failure to repay the loan, but there is no mention of fraud, misrepresentation, or similar misconduct. After Bloys failed to answer or appear, Wilson took a default judgment on September 13, 2001.

A writ of execution was issued against Bloys on the default judgment. The writ was delivered to Bloys on November 29, 2001, but Bloys refused to pay as demanded. The writ was returned nulla bona to Wilson’s attorney — that is, there was no seizable property within the jurisdiction and the judgment was not fulfilled. See id. § 1101.606.

On May 8, 2003, Wilson filed a motion in district court for reimbursement from the Account in the amount of $13,666.60, together with any further post-judgment interest that would accrue. See id. § 1101.601. In response, Bloys filed a traditional motion for summary judgment, arguing that Wilson could not, as a matter of law, recover from the Account because his judgment against Bloys was not based on any fraud or misrepresentation. See id. §§ 1101.602, .606. Bloys also argued that the statute of limitations barred Wilson’s reimbursement claim because Wilson’s motion was filed beyond the two-year statutory limitations period for such claims. See id. § 1101.605.

The district court granted summary judgment denying Wilson’s motion for reimbursement from the Account. This appeal followed.

DISCUSSION

Wilson brings three issues on appeal. He first asserts that his default judgment supports his recovery from the Account because his underlying pleadings sufficiently allege fraud and misrepresentation. Second, he argues that the remedial nature of the statute compels this Court to imply a finding of fraud or misrepresentation in the default judgment. Finally, he argues that the statute of limitations did not bar his claim for reimbursement from the Account.

Standards of review

Because the propriety of a summary judgment is a question of law, we review the district court’s decision de novo. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex.1994). The standards for reviewing traditional summary judgments are well established: (1) the movant has the burden of showing that no genuine issue of material fact exists and entitlement to judgment as a matter of law; (2) in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true; and (3) every reasonable inference must be indulged, and any doubts resolved, in favor of the nonmovant. Tex.R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985). We affirm if summary judgment is warranted on any ground asserted to the trial court. Tex.R. Civ. P. 166a(c); Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625 (Tex.1996). A defendant, when moving for summary judgment, need disprove only one essential element of the opponent’s cause of action to prevail. Elliott-Williams Co. v. Diaz, 9 S.W.3d 801, 803 (Tex.1999).

This case requires us to interpret the language of the Real Estate Recovery Act. Statutory construction is a question of law, which we also review de novo. Johnson v. City of Fort Worth, 114 S.W.2d 653, 656 (Tex.1989). When interpreting a statute, our primary task is to ascertain and effectuate the intent of the legislature. Fleming Foods of Tex. v. Rylander, 6 S.W.3d 278, 284 (Tex.1999); Union Bankers Ins. Co. v. Shelton, 889 S.W.2d 278, 280 (Tex.1994); Sharp v. Clearview Cable TV, Inc., 960 S.W.2d 424, 426 (Tex.App.-Austin 1998, pet. denied). When a statute is clear and unambiguous, we are to enforce the plain meaning of the statute. Tune v. Texas Dep’t of Pub. Safety, 23 S.W.3d 358, 363 (Tex.2000). Further, we read every word, phrase, and expression in a statute as if it were deliberately chosen and presume the words excluded from the statute are done so purposefully. See Gables Realty Ltd. P’ship v. Travis Cent. Appraisal Dist., 81 S.W.3d 869, 873 (Tex.App.-Austin 2002, pet. denied); City of Austin v. Quick, 930 S.W.2d 678, 687 (Tex.App.-Austin 1996) (citing Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 540 (Tex.1981)), aff'd; Quick v. City of Austin, 1 S.W.3d 109 (Tex.1999); see also 2A Norman J. Singer, Sutherland Statutory Construction § 47.25 (6th ed.2000). In ascertaining legislative intent, we may consider the evil sought to be remedied, the legislative history, and the consequences of a particular construction. See Liberty Mut. Ins. Co. v. Garrison Contractors, Inc., 966 S.W.2d 482, 484 (Tex.1998).

Scope of underlying pleadings

In his first issue, Wilson argues that the district court erred in granting summary judgment because his default judgment was predicated upon allegations of fraud or misrepresentation sufficient to entitle him to recover from the Account. Specifically, Wilson relies on the fact that the promissory note, which was attached to and incorporated in his petition, stated the purposes of the loan. Although none of these assertions are contained in his petition, Wilson urges that the statement of purpose in the note was inaccurate and fraudulent and had induced him to enter into the loan. From this, Wilson extrapolates that his petition sufficiently alleged fraud and misrepresentation.

A default judgment must be supported by a petition that states a cause of action. Fairdale Ltd. v. Sellers, 651 S.W.2d 725, 725 (Tex.1982). When a no-answer default judgment is taken, the non-answering party is deemed to admit all allegations of fact that were properly pleaded. Stoner v. Thompson, 578 S.W.2d 679, 682 (Tex.1979); Fleming Mfg. Co. v. Capitol Brick, Inc., 784 S.W.2d 405, 408 (Tex.App.-Austin 1987, writ ref'd n.r.e.).

When determining whether a pleading properly includes an allegation, we must look at the pleading from the perspective of the person against whom the pleading is made. Erisman v. Thompson, 140 Tex. 361, 167 S.W.2d 731, 733 (1943). The purpose of a pleading is to provide the defendant with fair notice of the cause of action and character of evidence that will be raised at trial. Sellers, 651 S.W.2d at 725; Erisman, 167 S.W.2d at 733; Caruso v. Krieger, 698 S.W.2d 760, 762 (Tex.App.-Austin 1985, no writ). This has the intended effect of defining the issues that will be heard. Murray v. O & A Express, Inc., 630 S.W.2d 633, 636 (Tex.1982); Safety Cas. Co. v. Wright, 138 Tex. 492, 160 S.W.2d 238, 245 (1942). Furthermore, when determining whether a cause of action has been pleaded, we must be able to determine from the pleadings alone the elements of the cause of action. Sellers, 651 S.W.2d at 725.

In this case, Wilson pleaded the following:

On or about May 27, 2000, William B. “Tex” Bloys (“Bloys”), as maker, signed and delivered to Tony Wilson (“Wilson”), as payee, a promissory note (“Note”) wherein Bloys promised to pay to the order of Wilson a principal sum of Ten Thousand Dollars ($10,000) plus interest. A true and accurate copy of the Note is attached hereto as Exhibit “A” and incorporated herein by reference for all purposes. Wilson holds the Note; Wilson owns the Note; the Note is in default.
Wilson has demanded Bloys pay the Note in-full. Attached hereto as Exhibit “B”, and incorporated herein by reference for all purposes, is a true and accurate copy of a letter to Bloys demanding payment of the Note. Despite such demand, Bloys has not paid the Note in-full. Under the Note there is now due, owing, and unpaid Wilson a principal amount of $9,200.00 for which sum, plus pre-judgment interest thereon, Wilson herein sues Bloys and seeks recovery.

This pleading alleges only that a promissory note was created and that the promissory note’s terms were not met. There are no references to fraud, misrepresentation, or similar conduct.

As referenced in the pleading, Wilson attached both the promissory note and a letter from his counsel. The letter merely demands payment on the note. The note, as previously observed, includes language that purports to establish the purpose of the loan. Although Wilson now claims that Bloys engaged in fraud or misrepresentation when he agreed to that language, the pleadings contain no such allegation, nor is the purpose language even mentioned as giving rise to the cause of action. Rather, the pleading establishes a cause of action based only on a failure to comply with the terms of the note, not that the note was entered into as a result of fraud or misrepresentation. Reading the pleading from the perspective of Bloys, we find that Bloys was not given fair notice as to any claims of fraud or misrepresentation. Bloys received notice only about the claim against him for failing to fulfill the payment terms of the promissory note.

The original default judgment was thus not predicated upon any findings or allegations of fraud or misrepresentation but solely on Bloys’s failure to pay according to the terms of the promissory note. See Stoner v. Thompson, 578 S.W.2d 679, 682 (Tex.1979). We accordingly overrule Wilson’s first issue.

Statutory construction

In his second issue, Wilson urges that because the legislature created the Account to serve a remedial function, we should construe the default judgment in this case to reflect findings of fraud and misrepresentation. Wilson contends that our preceding application of Texas law regarding default judgments would frustrate the legislature’s intent by encouraging real estate license holders to conceal the fraudulent nature of their acts until after a default judgment has been entered in order to deny aggrieved persons recovery from the Account.

We agree with Wilson’s observation that the legislature intended the statute governing the Account to ensure the honesty of real estate license holders. See Pace, 640 S.W.2d at 433. However, to effectuate that policy goal, the legislature has established a clear and unambiguous procedure governing claims for recovery from the Account. See Tex. Occ.Code Ann. § 1101.606. In particular, it has required that an aggrieved person can obtain reimbursement from the Account for a license holder’s fraud or misrepresentation only if the person (1) had obtained a judgment against the license holder for a prohibited act; (2) attempts execution on the judgment, which is returned nulla bona; (3) files a claim for reimbursement from the account in the court that entered judgment; and (4) at a hearing on this claim for reimbursement, shows that the judgment was based on facts establishing fraud or misrepresentation. Id. §§ 1101.606(a), .607(a). The Real Estate Commission, but not any private party, is then empowered to relitigate m a hearmg any relevant issue that was determined in the action that resulted in the judgment on which the reimbursement claim is predicated. Id. § 1101.608(c).

This statutory scheme evinces the legislature’s intent that the parties adjudicate any facts and issues related to fraud or misrepresentation in the underlying action, not in connection with subsequent claims for reimbursement from the Account. Although the Commission may re-litigate relevant issues upon application, Wilson never presented any claim for fraud or misrepresentation in the original action. Thus, as we have found, the default judgment in Wilson’s original suit does not incorporate any finding of fraud or misrepresentation. We cannot, in the guise of following the legislature’s broad policy objectives underlying the statute, ignore its clear and comprehensive command that a claim on the Account must be based on a judgment that incorporates a finding of fraud or misrepresentation, nor can we judicially rewrite the statute to that end. We overrule Wilson’s second issue.

CONCLUSION

Having concluded that Wilson’s default judgment is not based upon findings or allegations of fraud or misrepresentation, we affirm the district court’s grant of summary judgment.

      . This case was litigated under former article 6573a of the revised civil statutes, which has since been codified in the occupations code. See Act of May 22, 2001, 77th Leg., R.S., ch. 1421, § 2, secs. 1101.601-.658, § 13(a), 2001 Tex. Gen. Laws 4570, 4677-84, 5020. The parties do not suggest that there are any differences between these provisions that are relevant to this appeal. For ease of reference, we will cite the codified version.

      . Recovery is permitted if the judgment is based on facts constituting any of a range of specified wrongful acts. See Tex. Occ.Code Ann. § 1101.602 (West 2004). Wilson relies on fraud and misrepresentation.

      . The circumstances surrounding the loan are disputed, but we need not resolve them to decide this appeal.

      . The district court awarded Wilson a total of $10,711.12 in damages.

      .This amount reflects the original judgment plus post-judgment interest.

      . The previous statute also provided for this procedure, requiring that the original judgment be "on the grounds” of fraud or misrepresentation and that the "aggrieved person is required to show that ... the judgment is based on” those facts. Act of May 28, 1997, 75th Leg., R.S., ch. 1177, § 6, secs. 8(e), (f)(1), 1997 Tex. Gen. Laws 4526, 4528-29.

      . Because our findings on Wilson's first and second issues are dispositive, we need not reach Wilson’s third issue.


author: HOLLIS HORTON, Justice.

text:
    Devendra Prakash Babulal BANSAL, Appellant, v. The STATE of Texas, Appellee.
    No. 09-04-023 CR.
    Court of Appeals of Texas, Beaumont.
    Submitted April 8, 2005.
    Decided June 29, 2005.

      Devendrá Prakash Babulal Bansal, Mumbai-India, pro se.
    John D. Kimbrough, County Atty., Kris-pen Walker, Asst. County Atty., Orange, for state.
    Before McKEITHEN, C.J., GAULTNEY and HORTON, JJ.
   OPINION

HOLLIS HORTON, Justice.

The issue in this case is whether the defendant in a criminal case is entitled to represent himself at trial. The trial court refused to allow the defendant to represent himself and attempted to rectify the mistake by conducting a second trial wherein the defendant did represent himself. Devendrá Prakash Babulal Bansal, the defendant, was accused of harassment. The jury in the first trial, where Bansal was represented by counsel, and the jury in the second trial, where he represented himself, both found him guilty. Bansal successfully challenged the verdict in the second trial because the trial judge failed to enter a written order granting a new trial, and another appellate court vacated the guilty verdict on that ground. Bansal v. State, 2000 WL 34234583 at *1 (Tex.App.-Eastland Oct. 5, 2000, no pet.). Ban-sal asserts that the guilty verdict from the first trial should be vacated as well. Proceeding pro se, Bansal brings over 100 issues contesting his first conviction for harassment. See Tex. Pen.Code Ann. § 42.07 (Vernon 2003). For the reasons stated below, we reverse and remand.

Background

Before addressing the merits of this appeal, we review in detail the complex procedural and factual history of this case, both as it is revealed in the appellate record here and as it was discussed by the Eastland Court of Appeals in the related appeal of Bansal’s second trial. See Ban-sal, 2000 WL 34234583 at *1. Of particular concern are matters related to Bansal’s complaint that he was not allowed to represent himself at his first trial. Id.

Prior to Bansal’s first trial, several events occurred regarding his trial representation. Initially, Bansal requested that counsel be appointed to represent him and the trial court granted his request. Prior to trial, Bansal filed a letter requesting that he be allowed to represent himself with his appointed counsel acting as standby counsel and filing required motions. But, Bansal did not seek a hearing on this request for hybrid representation. Then at the pretrial hearing held on the morning trial began, Bansal’s appointed attorney sought a continuance, which the trial court denied. Bansal immediately requested that he be allowed to represent himself. When the trial court asked Bansal whether he understood what he would be doing when representing himself, Bansal replied that he did and provided an explanation for his request. The trial court denied Bansal’s request to represent himself and the trial proceeded with Bansal’s appointed counsel. After the jury returned its guilty verdict, the trial court sentenced Bansal on June 25,1998.

Subsequently, several relevant events occurred. Bansal filed three timely pro se motions for new trial. Bansal also filed a pro se notice of appeal on July 10,1998 (“July 10 notice of appeal”). Then on July 22, 1998, the trial court made the following docket entry: “Mr. Bansal’s motion for new trial granted. Waiver of right to counsel signed by Mr. Bansal.” See Bansal v. State, 2000 WL 34234583 at *1.

On August 31, 1998, Bansal, proceeding pro se, went to trial again on the harassment charge before a second jury, which also found him guilty and assessed his punishment at confinement for 180 days and a $2000 fine. See Bansal, 2000 WL 34234583 at *1. After the trial court sentenced Bansal on September 2, 1998, he appealed the second judgment. Id. The Eastland Court heard that appeal and vacated the second judgment on October 5, 2000, concluding that because there was no written order granting a new trial, Ban-sal’s second trial was a nullity, and the September 2 judgment was void. Id. Neither party appealed the Eastland Court’s decision.

Over three years after the Eastland Court’s decision, Bansal notified this Court that his appeal from the first trial was still pending. On December 19, 2003, Bansal forwarded to this Court’s clerk a copy of his July 10 notice of appeal that had been filed with the trial court clerk. After we received a copy of Bansal’s July 10 notice of appeal from the trial court clerk, the clerk of this Court docketed this cause.

To quote Judge Cochran, “This case is a mess.” McClinton v. State, 121 S.W.3d 768, 769 (Tex.Crim.App.2003)(Cochran, J., concurring).

Jurisdiction

First, we must determine whether we have jurisdiction — the power to hear and determine this case. See State v. Riewe, 13 S.W.3d 408, 410 (Tex.Crim.App.2000). An appellant invokes appellate jurisdiction by timely filing a written notice of appeal with the trial court clerk. Id.; see Tex.R.App. P. 25.2(a)-(c). An appellant timely files a notice of appeal by presenting or delivering it to the trial court clerk within 30 days after the day the trial court either imposes sentence or suspends sentence in open court, or within 90 days after imposition or suspension when the appellant files a timely motion for new trial. Bayless v. State, 91 S.W.3d 801, 806 (Tex.Crim.App.2002)(citing Tex.R.App. P. 26.2). Upon receiving the notice of appeal, the trial court clerk must, among other things, immediately send one copy to the appropriate court of appeals. See Tex. R.App. P. 25.2(e). The trial court clerk’s failure to send the notice to the appropriate court of appeals “does not affect the fact that the appeal was perfected.” Ex parte Garcia, 988 S.W.2d 240, 241 (Tex.Crim.App.1999).

Prior to receiving the record, we requested that both parties respond to our jurisdictional inquiry and both parties complied with our request. The State does not contest our jurisdiction insofar as it was invoked in July, 1998. However, the State has expressed “uncertainty” as to how events subsequent to Bansal’s July 10 notice of appeal affect his appeal. While Bansal initially maintained that this Court had jurisdiction, he now contests it. Bansal contends the first trial judgment was vacated by the trial court as evidenced by the trial court’s July 27, 1998 letter.

The State does not contest that Bansal timely filed a written notice of appeal with the clerk of the trial court on July 10, 1998. That filing perfected Bansal’s appeal from the first trial and invoked the jurisdiction of this Court. See Riewe, 13 S.W.3d at 410. That this Court did not receive Bansal’s notice of appeal until 2003 does not affect our jurisdiction. See Garcia, 988 S.W.2d at 241.

However, without explaining how, the State contends that events subsequent to Bansal’s filing his July 10,1998 notice of appeal affect his appellate rights here. While the State concedes there is no authority supporting its contention, we nonetheless review the subsequent events to determine if they impact our jurisdiction.

After sentencing Bansal on June 25, 1998, the trial court granted Bansal’s motion for new trial on July 22, 1998, without entering a written order as required by the appellate procedural rules. See Tex. R.App. P. 21.8(b)(“The granting of a motion for new trial must be accomplished by written order. A docket entry does not constitute a written order”) After Ban-sal’s second trial in which he represented himself, the jury again found him guilty. The trial court sentenced Bansal on September 2, 1998, less than seventy five days after the original June 25 sentence.

The appellate rules provide the trial court with authority to receive and resolve the merits of a motion for new trial within seventy five days after sentencing. See Tex.R.App. P. 21.8. However, relying on Zaragosa v. State, 588 S.W.2d 322 (Tex.Crim.App.1979), the Eastland Court determined that conducting the second trial within seventy five days from the date the original sentence was imposed did not validate the second trial. Instead, the East-land Court focused on the lack of a written order granting the motion for new trial and determined that the second trial was void.

We recognize that the extent to which a trial court may vacate, modify or amend its own rulings in a criminal proceeding has been recognized by at least one of our sister courts as an unsettled area of law. See McClinton v. State, 38 S.W.3d 747, 751 (Tex.App.-Houston [14th Dist.] 2001)(agreeing that trial court’s “inherent power” allow trial court to vacate, modify or amend rulings), pet. dism’d, improvidently granted, 121 S.W.3d 768 (Tex.Crim.App.2003). However whether the trial court had the authority to vacate its June 25 judgment and enter a new one on September 2 after the second trial’s conclusion is not raised here. Moreover, and even if that issue had been raised, the Eastland Court’s determination that the second judgment was void is the law of the case. See Howlett v. State, 994 S.W.2d 663, 666 (Tex.Crim.App.1999)(appellate court’s resolution of a question of law in previous appeal of the same case governs disposition of same issue raised in subsequent appeal.) In addition, while the Eastland Court found the second judgment void, it made no similar findings affecting the first judgment or the July 10 notice of appeal. Bansal, 2000 WL 34234583 at *1. As we are neither presented with authority contesting the validity of the first judgment and the July 10 notice, nor have we found such authority, we conclude the first judgment and the July 10 notice of appeal are still in effect.

We find that we have jurisdiction in this cause because Bansal timely filed a notice of appeal from the first trial. We further find none of the events subsequent to Ban-sal’s filing his July 10 notice of appeal affect our jurisdiction. See Riewe, 13 S.W.3d at 410; see Garcia, 988 S.W.2d at 241. While Bansal presents numerous issues for our review, his briefing of them fails to contain “clear and concise” arguments supporting his contentions, with “appropriate citations to authorities and to the record” as required by Rule 38.1(h) of the Texas Rules of Appellate Procedure. See Webb v. State, 533 S.W.2d 780, 786 (Tex.Crim.App.1976)(pro se appellant must comply with all relevant rules of appellate procedure; “right of self-representation is not a license to capriciously upset the appellate timetable or to thwart the orderly and fair administration of justice.”). However, in the interest of justice and despite the briefing inadequacies present here, we will consider two of Bansal’s issues— whether he was entitled to represent himself in the first trial and whether the State’s evidence was legally insufficient to support a conviction for harassment, the charged crime. Bansal’s other issues are overruled.

Legal Sufficiency

We consider first Bansal’s legal sufficiency argument. To determine legal sufficiency, we “view the relevant evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Margraves v. State, 34 S.W.3d 912, 917 (Tex.Crim.App.2000)(citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

Here, Bansal was charged with harassment, ie., making repeated telephone communications anonymously or in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another. See Tex. Pen.Code Ann. § 42.07(a)(4). At trial, the complainant testified that Bansal had been a tutor for her daughter who was enrolled in college and lived on campus. The daughter became concerned about Bansal’s displaying aggression toward her and sought another tutor. After complaining to the campus police about Bansal’s stalking her, the daughter ultimately moved to her parents’ home. After the daughter moved home, Bansal began calling the complainant’s residence and asking to speak to the daughter. The complainant asked Bansal to stop calling because her daughter did not want to talk with Bansal. On the date of the offense, Bansal called the complainant’s home, spoke to her, and made embarrassing, offensive accusations about complainant’s daughter. The complainant testified that she told Bansal his comments were offensive and requested that he not call her home again; she also told him to leave her daughter alone. Instead of complying with the complainant’s request, Bansal made three telephone calls “in a row” to the complainant. Each time the complainant told him to stop calling. The complainant further testified that she clearly informed Bansal that the calls and the comments were offensive. After-wards, the complainant and her family received constant “hang-up” calls and ultimately changed their telephone number.

Such evidence, viewed in the light most favorable to the verdict, is legally sufficient to establish the elements of harassment and, thus, to support Bansal’s conviction. Bansal’s legal sufficiency issue is overruled.

Self-Representation

We consider next Bansal’s self-representation issue. The Sixth and Fourteenth Amendments to the United States Constitution guarantee that an accused may dispense with counsel and represent himself. Faretta v. California, 422 U.S. 806, 821, 95 S.Ct. 2525, 2534, 45 L.Ed.2d 562 (1975); Collier v. State, 959 S.W.2d 621, 625 (Tex.Crim.App.1997). In order to represent himself, the accused must “knowingly and intelligently” relinquish the traditional benefits associated with the right to counsel. Faretta, 422 U.S. at 835, 95 S.Ct. at 2541. If the choice is a result of an informed decision and is both knowingly and intelligently made, the accused must be allowed to proceed pro se. See Scarbrough v. State, 777 S.W.2d 83, 92 (Tex.Crim.App.1989). However, the right to self-representation does not attach until it has been clearly and unequivocally asserted. Funderburg v. State, 717 S.W.2d 637, 642 (Tex.Crim.App.1986). The right must be asserted in a timely manner, namely, before the jury is impaneled. Blankenship v. State, 673 S.W.2d 578, 585 (Tex.Crim.App.1984). In addition, because a defendant who exercises the right of self-representation usually increases the likelihood of an unfavorable trial outcome, the appellate court does not review the denial for “harmless error.” McKaskle v. Wiggins, 465 U.S. 168, 177, n. 8, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984). “The right is either respected or denied; its deprivation cannot be harmless.” 465 U.S. at 177, n. 8, 104 S.Ct. 944.

The record shows that Bansal clearly and unequivocally requested to represent himself. However, the State maintains that Bansal asserted his self-representation right only for the purpose of delaying the proceedings. The record shows that after the trial court denied a continuance sought by Bansal’s appointed counsel, Ban-sal made his self-representation request prior to jury’s impaneling. See Blankenship, 673 S.W.2d at 585. Further, the trial court here must not have considered the request to be untimely as it ultimately granted the request and allowed a second trial in which Bansal proceeded pro se. The record here does not show that Bansal asserted his right to represent himself only for the purpose of delay.

We find Bansal was entitled to represent himself in the first trial and that the trial court erred in not allowing him to do so. We sustain Bansal’s issues asserting his right to self-representation. The trial court’s judgment and the jury’s sentence are reversed. This cause is remanded to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

      . We note that a defendant has no right to hybrid representation. See Patrick v. State, 906 S.W.2d 481, 498 (Tex.Crim.App.1995).

      . Bansal explained that there would be "a lot of things that will come up in the courtroom which [my attorney] is not aware of and it will — the defense will be totally on-the spot defense, depending on what they come up and say.” Bansal further contended that the prosecution’s witnesses had given contradicting statements and that he did not think his attorney could provide adequate representation because of the "nature of the prosecution’s witness.” After providing examples of contradictory testimony, Bansal also asserted that one police officer was relying on hearsay evidence.

      . The present rule, Rule 25.2(e), was formerly designated Rule 25.2(c) and was re-numbered in 2002 to become 25.2(e), without changes pertinent here.

      . But, the letter in question, which is addressed to Bansal and the State's attorney, simply says: "Trial in this matter will begin with jury selection on Monday, August 31, 1998. All pretrial motions must be filed no later than August 12, 1998 so that hearings, if needed, can be scheduled well in advance of trial.”

      . The Eastland Court explained its decision: Without a timely, written order granting the motion, Bansal’s motions for new trial following the trial court's June 25, 1998, judgment were overruled by operation of law on September 8, 1998. A trial court cannot on its own motion grant a new trial, and the fact that the second trial was conducted within 75 days from the date the original sentence was imposed on June 25, 1998, does not validate the second trial. Without a proper order granting a new trial, a subsequent trial is a nullity, and the September 2 judgment is void.

        Bansal v. State, 2000 WL 34234583 at *1 (citations omitted).

      . But in her concurrence to the McClinton Court’s dismissal of review, Judge Cochran observed: "A trial court has the inherent authority to alter, modify, or vacate its rulings, but it does not have the inherent authority to alter, modify, or vacate a sentence imposed in open court without statutory authorization and without the presence of the parties.” McClinton, 121 S.W.3d at 771 (Cochran, J., concurring).

      . As recognized by the Texas Court of Criminal Appeals, the denial of the right to self-representation is considered "structural” error. Gonzales v. State, 994 S.W.2d 170, 171 n. 4 (Tex.Crim.App.1999). The Gonzales Court stated:
      "Structural” error, as explained in Arizona v. Fulminante, is a "defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.” Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 1265, 113 L.Ed.2d 302 (1991). The United States Supreme Court has found structural errors only in a very limited class of cases. Johnson v. U.S., 520 U.S. 461, 117 S.Ct. 1544, 1549, 137 L.Ed.2d 718 (1997). See Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (a total deprivation of the right to counsel); Turney v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927) (lack of an impartial trial judge); Vasquez v. Hillery, 474 U.S. 254, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986) (unlawful exclusion of grand jurors of defendant's race); McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984) (the right to self-representation at trial); Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984) (the right to a public trial); Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) (erroneous reasonable-doubt instruction to jury).

        Id.