author:
ADELE HEDGES, Chief Justice. FROST, J.,
      KEM THOMPSON FROST, Justice,

text:
    Paul MINIX, Appellant, v. Paul GONZALES, Curtis Pitts, and Layla Wuttke, Appellees.
    No. 14-04-00344-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    March 3, 2005.

      Paul Minix, Navasota, appellant pro se.
    Panel consists of Chief Justice HEDGES and Justices HUDSON and FROST.
   MAJORITY OPINION

ADELE HEDGES, Chief Justice.

Paul Minix appeals from the dismissal of his lawsuit against Paul Gonzales, Curtis Pitts, and Layla Wuttke. In his petition, Minix, an inmate at a state correctional facility, alleged that Gonzales, also an inmate, violated the Texas Open Records Act by unlawfully obtaining a copy of a lawsuit that Minix filed against certain correctional officers. Minix further alleged that Pitts and Wuttke, both correctional officers, violated the Texas Theft Liability Act by unlawfully taking a law book from his cell. The trial court dismissed Minix’s lawsuit with prejudice as having no arguable basis in law. In his sole issue, Minix contends the trial court erred in dismissing his lawsuit. We affirm in part and reverse and remand in part.

Discussion

Inmate in forma pauperis lawsuits are governed by Chapter 14 of the Texas Civil Practice & Remedies Code. Tex. Civ. PRAC. & Rem.Code Ann. § 14.001-.014 (Vernon 2002). The chapter provides several grounds on which a court may dismiss such actions. See id. § 14.003. In this case, prior to service of process and without conducting an evidentiary hearing, the trial court dismissed Minix’s claims because it found “that the Plaintiff has failed to state a cause of action as a matter of law.” We interpret the trial court’s action as a dismissal based on a finding that Minix’s claims are frivolous because they have no arguable basis in the law. See id. § 14.003(a), (b); Retzlaff v. Tex. Dept. of Crim. J., 94 S.W.3d 650, 653 (Tex.App.-Houston [14th Dist.] 2002, pet. denied) (stating that, if, without an evidentia-ry hearing, a trial court dismisses a claim as frivolous under section 14.003 of the Texas Civil Practice and Remedies Code, then the dismissal can be affirmed on appeal only if the claim has no arguable basis in law). For a claim to have no arguable basis in law, it must be based on “an indisputably meritless legal theory,” or be based on wholly incredible or irrational factual allegations. Gill v. Boyd Distrib. Ctr., 64 S.W.3d 601, 603 (Tex.App.-Texarkana 2001, pet denied) (quoting Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989), and citing Denton v. Hernandez, 504 U.S. 25, 33, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992)). An inmate’s cause of action may not be dismissed merely because the court considers the allegations “unlikely.” Id. at 604 (quoting Denton, 504 U.S. at 33, 112 S.Ct. 1728). We utilize a de novo standard of review in determining whether Minix’s claims have an arguable basis in law. Retzlaff, 94 S.W.3d at 653. A pro se inmate’s petition should be viewed with liberality and patience and is not held to the stringent standards applied to formal pleadings drafted by attorneys. Hughes v. Rowe, 449 U.S. 5, 9-10 & n. 7, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980) (citing Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972)); Black v. Jackson, 82 S.W.3d 44, 51 (Tex.App.-Tyler 2002, no pet.); Aguilar v. Stone, 68 S.W.3d 1, 1-2 (Tex.App.-Houston [1st Dist.] 1997, no pet.).

The first cause of action listed in Minix’s petition was against Paul Gonzales for violation of the Texas Open Records Act. Tex. Gov’t Code Ann. §§ 552.001-.353 (Vernon 1994 & Supp.2004). Specifically, Minix alleged that Gonzales unlawfully obtained a copy of a federal lawsuit Minix had filed against certain correctional officers, citing sections 552.103(c) and 552.352. Id. §§ 552.103(c), 552.352(a). Section 552.352(a) makes it a crime for a person to distribute information considered confidential under the terms of Chapter 552. Section 552.103(c) provides for an exception to open records requirements for information relating to litigation involving a governmental body or an officer or employee of a governmental body. Id. § 552.103(c). However, Minix provides no authority or analysis regarding how the criminal sanctions contained in section 552.103 can be converted into a right to monetary damages for an individual, and we are aware of no such authority. Furthermore, the only part of section 552.352 that could arguably apply to Gonzales’s conduct addresses the distribution of confidential information; whereas, in his petition, Minix only complained that Gonzales unlawfully obtained information. Accordingly, we conclude that the trial court correctly determined that Minix’s first claim lacks an arguable basis in law. The trial court properly dismissed this cause of action. See Retzlaff, 94 S.W.3d at 653.

Minix’s second and third causes of action alleged violations of the Theft Liability Act by correctional officers Pitts and Wuttke. Tex. Civ. PRAC. & Rem.Code Ann. §§ 134.001-.005 (Vernon 1997 & Supp. 2004). The petition specifically names the officers in their individual capacities but also appears to sue them in their official capacities. To the extent the petition named the officers in their official capacities, the claims are barred by sovereign immunity. See, e.g., Univ. of Tex. Med. Branch at Galveston v. Hohman, 6 S.W.3d 767, 777 (Tex.App.-Houston [1st Dist.] 1999, pet. dism’d w.o.j.) (holding that sovereign immunity bars intentional tort suits against state employees in their official capacities). Theft is undoubtedly an intentional act. See Tex. Pen.Code Ann. § 31.03(a) (Vernon Supp.2004) (providing that a person commits theft if he or she “unlawfully appropriates property with intent to deprive the owner of property”); see also Tex. Civ. PRac. & Rem.Code Ann. § 134.002 (defining “theft” by reference to Penal Code section 31.03). The Texas Tort Claims Act does not waive sovereign immunity for intentional acts. Tex. Civ. PRAC. & Rem.Code Ann. § 101.057 (Vernon 1997); Hohman, 6 S.W.3d at 777. Accordingly, the trial court properly dismissed Minix’s second and third causes of action to the extent they named Pitts and Wuttke in their official capacities. See Retzlaff, 94 S.W.3d at 653.

Sovereign immunity does not, however, bar Minix’s theft allegations against Pitts and Wuttke in their individual capacities. See Harrison v. Tex. Dept. of Crim. J.-Inst’l Div., 915 S.W.2d 882, 888 (Tex.App.-Houston [1st Dist.] 1995, no writ) (holding that sovereign immunity did not justify dismissal of claims against state officials in their individual capacities). Minix alleged that Wuttke entered his cell and removed a book that belonged to him without justification and subsequently failed to either return it to him or turn it in to the prison property official. Minix further alleged that Pitts participated in the theft by authorizing the book’s seizure and, essentially, by conspiring with Wutt-ke. Minix then properly cited the Texas Theft Liability Act. Construing Minix’s petition with liberality and patience, we conclude that there is an arguable basis in law as to Minix’s Theft Liability Act claims against Pitts and Wuttke in their individual capacities. Hughes, 449 U.S. at 9-10 & n. 7, 101 S.Ct. 173; Black, 82 S.W.3d at 51; Aguilar, 68 S.W.3d at 1-2. Accordingly, the trial court erred in dismissing Minix’s theft claims against Pitts and Wuttke in their individual capacities. We thus sustain Minix’s sole issue in part.

The trial court’s judgment is affirmed in regard to the dismissal of Minix’s claim against Gonzales and his claims against Pitts and Wuttke in their official capacities; however, the judgment is reversed and remanded in regard to Minix’s claims against Pitts and Wuttke in their individual capacities.

FROST, J.,

concurring.

KEM THOMPSON FROST, Justice,

concurring.

The court’s judgment in this case is correct, and most of its opinion is correct, but the court, in dicta, departs from precedent in the parts of the majority opinion that state a pro se inmate should be treated more favorably in civil litigation than those who are not pro se inmates:

A pro se inmate’s petition should be viewed with liberality and patience and is not held to the stringent standards applied to pleadings drafted by attorneys ... Construing Minix’s petition with liberality and patience....

Maj. Op. at 637.

First, the quoted statements by the majority are obiter dicta because they are not necessary to the court’s disposition of this appeal. See Edwards v. Kaye, 9 S.W.3d 310, 314 (Tex.App.-Houston [14th Dist.] 1999, pet. denied). These statements are not essential because, notwithstanding the majority’s reference to the “stringent standards applied to pleadings drafted by attorneys,” courts construe any petition liberally and in favor of the drafter, if no special exceptions have been sustained as to that petition. See Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 897 (Tex.2000). Because the trial court did not sustain any special exceptions against Minix’s petition, this court must construe this petition liberally regardless of whether Minix is an inmate and regardless of whether he is represented by counsel or acting pro se. See id. Construing Minix’s petition liberally in his favor, there is an arguable basis in law as to his Theft Liability Act claims against Pitts and Wuttke in their individual capacities. See id., 34 S.W.3d at 897; Harrison v. Tex. Dep’t of Crim. J.-Inst’l Div., 915 S.W.2d 882, 888 (Tex.App.-Houston [1st Dist.] 1995, no writ) (holding that sovereign immunity did not justify dismissal of claims against state officials in their individual capacities). Accordingly, this court correctly reverses the trial court’s judgment in this regard.

Second and more importantly, in addition to being dicta, the above-quoted statements by the majority are contrary to prior precedents from the Texas Supreme Court and from this court. See Mansfield State Bank v. Cohn, 573 S.W.2d 181, 185 (Tex.1978) (holding that litigants who represent themselves must comply with procedures established by rules notwithstanding the fact that they are not licensed attorneys); Gaffney v. Tex. Dep’t of Crim. J.-Inst’l Div., 14-03-00472-CV, 2004 WL 1898488, at *3 n. 7 (Tex.App.-Houston [14th Dist.] Aug. 26, 2004, no pet.) (holding that pro se inmate had to comply with the normal rules for preserving charge error and stating that he would be held to the same standards as licensed attorneys and must comply with all applicable procedural rules) (mem.op.); see also Green v. Kaposta, 152 S.W.3d 839, 840-41 (Tex.App.-Dallas 2005, no pet. h.) (stating pro se inmate in civil litigation must comply with same laws and applicable procedures as a licensed attorney); White v. Cole, 880 S.W.2d 292, 294 (Tex.App.-Beaumont 1994, writ denied) (same as Green).

Furthermore, the line of cases cited by the majority is not part of the jurisprudence of this court or the Texas Supreme Court and is based on cases applying Federal Rule of Civil Procedure 12(b)(6). See Hughes v. Rowe, 449 U.S. 5, 9-10 n. 7, 101 S.Ct. 173, 176 n. 7, 66 L.Ed.2d 163 (1980) (citing Haines v. Kemer and stating that, when deciding whether a complaint states a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6), federal courts review pleadings drafted by pro se litigants under standards that are less stringent than those applied to pleadings drafted by lawyers) (per curiam); Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972) (stating that, under federal rule of civil procedure 12(b)(6), federal courts review pleadings drafted by pro se litigants under standards that are less stringent than those applied to pleadings drafted by lawyers) (per curiam); Aguilar v. Stone, 68 S.W.3d 1, 1-2 (Tex.App.-Houston [1st Dist.] 1997, no pet.) (stating, in a mandamus proceeding filed by an inmate, that the United States Supreme Court directs the court to seek the substance of a pro se complaint by reviewing it with liberality and patience and citing Haines v. Kerner). In Texas civil procedure, there is no analogue to Federal Rule of Civil Procedure 12(b)(6). Fort Bend County v. Wilson, 825 S.W.2d 251, 253 (Tex.App.-Houston [14th Dist.] 1992, no writ). Accordingly, United States Supreme Court cases regarding the standards for reviewing pleadings under Federal Rule 12(b)(6) are neither applicable nor binding on this court.

According to the federal line of cases cited by the majority, courts should treat pro se litigants more favorably than parties represented by lawyers regarding the standards applied to their pleadings. See, e.g., Haines, 404 U.S. at 520-21, 92 S.Ct. at 596. These federal cases base this conclusion on a stated need to review pro se pleadings with liberality and patience. See id. Judges should be patient with all litigants and lawyers that appear before them. See Tex.Code Judicial Conduct Canon 3(B)(4) (stating “[a] judge shall be patient, dignified and courteous to litigants, jurors, witnesses, lawyers and others with whom the judge deals in an official capacity....”). This patience should be shown to all litigants, whether represented by counsel or not, and it does not weigh in favor of treating inmates or pro se litigants more favorably. Likewise, though courts may be as liberal to litigants as possible while still being faithful to the law, this liberality does not weigh in favor of treating pro se litigants more favorably. Indeed, the Texas Supreme Court has stated that pro se and represented litigants should be judged by the same standards:

[N]o basis exists for differentiating between litigants represented by counsel and litigants not represented by counsel in determining whether rules of procedure must be followed.... There cannot be two sets of procedural rules, one for litigants with counsel and the other for litigants representing themselves. Litigants who represent themselves must comply with the applicable procedural rules, or else they would be given an unfair advantage over litigants represented by counsel.

Mansfield State Bank, 573 S.W.2d at 184-85.

For the reasons stated, the majority’s statements in dicta are contrary to Texas law. See Mansfield State Bank, 573 S.W.2d at 185; Gaffney, 2004 WL 1898488, at *3 n. 7; Green, 152 S.W.3d at 840-41; White, 880 S.W.2d at 294. For this reason, I respectfully decline to join that portion of the majority opinion, though I concur in the court’s judgment.

      . The concurrence criticizes our application of the Haines rule that a pro se inmate’s pleadings should not be held to the stringent standards applied to attorney-crafted pleadings. 404 U.S. at 520-21, 92 S.Ct. 594. The Haines rule is far from a novel proposition of law, even in Texas. Twelve of the fourteen intermediate courts of appeals have cited Haines favorably or have applied the Haines rule without specifically citing Haines; in fact, a total of twenty-one published and at least twenty-six unpublished Texas cases have followed the Haines rule. See, e.g., Vacca v. Farrington, 85 S.W.3d 438, 441 (Tex.App.-Texarkana 2002, no pet.); Black, 82 S.W.3d at 51; Aguilar, 68 S.W.3d at 1-2; In re Tay

        lor, 28 S.W.3d 240, 245 (Tex.App.-Waco 2000, no pet.); see also Gomez v. Tex. Dep't of Crim. J., No. 14-94-01114-CV, 1995 WL 688870, *3 (Tex.App.-Houston [14th Dist.] Nov. 22, 1995, no pet.) (citing Haines but not discussing applicability). A check of citations nationwide reveals that Haines has been cited over 13,-000 times, including at least once in most jurisdictions in the country. See, e.g., Laubach v. Roberts, 32 Kan.App.2d 863, 90 P.3d 961, 966 (2004); B.S. v. State of Florida, 862 So.2d 15, 17 (Fla.Dist.Ct.App.2003).
      Further, no Texas court has expressly rejected the Haines rule. Mansfield State Bank v. Cohn, the Texas Supreme Court case cited by the concurrence, merely stated the general proposition that pro se litigants must comply with applicable procedural rules; it did not involve pleadings prepared by an inmate. 573 S.W.2d 181, 185 (Tex.1978) (noting that pro se litigant was an attorney in another state). The other three cases cited by the concurrence include a memorandum opinion of this court and two cases by other courts of appeals. Green v. Kaposta, 152 S.W.3d 839 (Tex.App.-Dallas Jan. 12, 2005, no pet. h.); Gaffney v. Tex. Dept. of Crim. J.-Inst’l Div., No. 14-03-00472-CV, 2004 WL 1898488 (Tex.App.-Houston [14th Dist.] Aug. 26, 2004, no pet.); White v. Cole, 880 S.W.2d 292 (Tex.App.-Beaumont 1994, writ denied). None of these cases even notes the existence of the Haines rule, much less analyzes whether it applies in Texas. Instead, each simply cites the general proposition from Mansfield regarding pro se pleadings. See Green, 152 S.W.3d at 840-41; Gaffney, 2004 WL 1898488, at *3 n. 7; White, 880 S.W.2d at 294. It is therefore questionable as to whether these cases can be read as disapproving of the Haines rule.
      The concurrence is correct that Haines was decided under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Fed.R.Civ.P. 12(b)(6) (permitting dismissal of pleading for failure to state a claim on which relief can be granted); Haines, 404 U.S. at 520-21, 92 S.Ct. 594. The concurrence further points out that there is no direct analogue in Texas procedure to Federal Rule of Civil Procedure 12(b)(6). See, e.g., Fort Bend County v. Wilson, 825 S.W.2d 251, 253 (Tex.App.-Houston [14th Dist.] 1992, no writ). While this proposition is generally correct, we cannot turn a blind eye to section 14.003 of the Texas Civil Practice and Remedies Code, which authorizes a court to dismiss a pro se inmate’s appeal for failing to state a claim with an arguable basis in law. See Tex. Civ. Prac. & Rem.Code Ann. § 14.003(a), (b); Retzlaff, 94 S.W.3d at 653. The similarity between section 14.003 and Rule 12(b)(6) suggests that, at a minimum, the Haines rule should and does apply when a Texas trial court dismisses a pro se inmate’s appeal under section 14.003. Furthermore, there is nothing in Haines, or the other Supreme Court cases, that suggests that the rationale underlying the rule is not applicable outside the 12(b)(6) context. Clearly, courts in Texas have found that it is applicable in other contexts.

      . Section 552.352(a-l), which concerns obtaining access to confidential information under section 552.008, only applies to an officer or employee of a governmental body; therefore, this provision cannot apply to inmate Gonzales.

      . Although official immunity potentially bars these claims, it is an affirmative defense that must be plead and proven. Harrison, 915 S.W.2d at 888.

      . The Theft Liability Act provides that "[a] person who commits theft is liable for the damages resulting from the theft.” Tex. Civ. Prac. & Rem.Code Ann. § 134.003(a). It further details the damages recoverable by a person who has been the victim of theft. Id. § 134.005.


source: Caselaw Access Project

author: ADELE HEDGES, Chief Justice.

license: Public Domain

text:
    Jason Aaron GRICE, Appellant, v. The STATE of Texas, Appellee.
    No. 14-04-00310-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    March 8, 2005.

      Allen C. Isbell, Houston, for appellant.
    Dan McCrory, Houston, for appellee.
    Panel consists of Chief Justice HEDGES and Justices FOWLER and FROST.
   OPINION

ADELE HEDGES, Chief Justice.

Appellant, Jason Grice, appeals from his conviction for indecency with a child by exposure. See Tex. Pen.Code Ann. § 21.11(a) (Vernon 2003). Appellant was originally charged with sexual assault of a child under section 22.011(a)(2)(A) of the Texas Penal Code, the “statutory rape” provision. Id. § 22.011(a)(2)(A). After appellant’s motion to quash the indictment was denied, appellant and the State announced to the court that they had entered into a plea bargain agreement, under which appellant pleaded guilty to the lesser offense in exchange for a punishment recommendation. The trial judge found appellant guilty, and assessed punishment at four years’ incarceration, probated for four years, and a $400 fine, which was in accordance with the plea bargain agreement.

On appeal, the State contends that appellant waived his right to appeal. In his two issues, appellant contends that the trial court erred in denying his motion to quash because the indictment failed to allege a culpable mental state in regards to the age of the victim in violation of both section 6.02 of the Penal Code and the constitutional right to due process. U.S. Const, amend. XIV; Tex. Const, art. I, § 19; Tex. Pen.Code Ann. § 6.02. We affirm.

Right of Appeal

The State initially contends that appellant has waived his right of appeal. The record is inconsistent on this issue. The clerk’s record contains two documents that indicate appellant waived his right of appeal: (1) the guilty plea, which contains a boilerplate waiver of the right to appeal; and (2) the judgment, which contains a stamped indication that appellant waived his right of appeal and was not granted permission to appeal. The clerk’s record, however, also contains the “Trial Court’s Certification of Defendant’s Right of Appeal,” in which the judge indicated that appellant had the right of appeal and did not waive that right. Furthermore, during the trial judge’s oral admonitions to appellant, while she indicated that he had waived his right to trial by jury, she did not indicate that he had waived his right of appeal. The reporter’s record also contains the following exchange, which occurred at the conclusion of the plea hearing:

[Defense Counsel]: Your Honor, we have discussed with the Court our intention to appeal the motion to suppress [sic]; and I will be filing appropriate notice of appeal to allow that.
The Court: Yes.
[Defense Counsel]: And we’ll get the court reporter’s—
[Prosecutor]: The motion to quash?
[Defense Counsel]: Motion to quash.
[Prosecutor]: Motion to suppress?
[Defense Counsel]: I’m so sorry. Motion to suppress quash, [sic]
The Court: The right to appeal the- motion to quash, the decision. And I’ve noted that on the appeals.
[Defense Counsel]: Thank you very much.

In this exchange, appellant’s counsel clearly made the judge aware that the appellant did not intend to waive his right of appeal. The judge then states that she has noted that fact on a document related to the appeal, most likely the certification of the right of appeal. It should also be noted that the prosecutor did not object when defense counsel stated an intention to appeal; indeed, the prosecutor aided defense counsel by correcting him in regards to exactly what issue he intended to appeal.

Generally, a defendant may waive any rights secured him by law. Tex.Code CRIM. PROC. Ann. art. 1.14 (Vernon Supp. 2004). A waiver of appeal is usually binding on the defendant and prevents him from appealing any issue without the trial court’s consent. Monreal v. State, 99 S.W.3d 615, 616 (Tex.Crim.App.2003). In Alzarka v. State, the Court of Criminal Appeals addressed a situation similar to the one presented here. 90 S.W.3d 321 (Tex.Crim.App.2002). The court held that even though the defendant signed a plea form containing a written waiver of appeal, the defendant had not waived her right to appeal. Id. at 322-24. The court based this conclusion on the fact that (1) the trial court gave express oral permission to appeal, (2) counsel and the court made several statements agreeing that the defendant would be permitted to bring an appeal, and (3) the State’s original appellate brief made no claim that the defendant had waived her right to appeal. Id. In Willis v. State, the court also addressed a similar situation and held that even though the defendant had signed both a plea form and admonishments that suggested waiver of the right to appeal, the defendant had not waived his right to appeal. 121 S.W.3d 400 (Tex.Crim.App.2003). The court based its decision on the facts that the waiver was contained in pre-printed forms and the trial court indicated in signing the notice of appeal that the defendant had a right to appeal. Id. at 401-03. Thus, the Court of Criminal Appeals has expressed a clear preference for disregarding waivers of appeal when the record contains other indications that the defendant did not intend to waive the right of appeal. See id. at 403.

The key distinguishing factor between the present case and the Willis and Alzarka cases is that here the judgment itself reflects that appellant waived his right of appeal. We find that the conflict presented here is analogous to the conflict presented when a court’s oral pronouncement of sentence varies from its recitation in the judgment. Generally, when a court’s judgment conflicts with other portions of the record, the judgment controls. See, e.g., State v. Rowan, 927 S.W.2d 116, 118 (Tex.App.-Houston [1st Dist.] 1996, no pet.). However, the Court of Criminal Appeals has held that this rule does not apply when the written judgment does not comport with the oral pronouncement of sentence; it is the oral pronouncement that controls. See, e.g., Taylor v. State, 131 S.W.3d 497, 500 (Tex.Crim.App.2004) (citing Coffey v. State, 979 S.W.2d 326, 328-29 (Tex.Crim.App.1998)). The basis for this exception to the rule is a desire for certainty. See McClinton v. State, 121 S.W.3d 768, 770 (Tex.Crim.App.2003) (Cochran, J., concurring). Courts are required to pronounce sentence orally in open court with the defendant present. Tex.Code CRIM. PROC. Ann. art. 42.03, § 1(a) (Vernon Supp.2004). The sentence contained in the judgment serves only as a written manifestation of the orally pronounced sentence. Taylor, 131 S.W.3d at 500 (citing Tex.Code Ceim. PROC. Ann. art. 42.01, § 1). Thus, the required pronouncement, orally given, controls over the mere written manifestation in the judgment. See id.

Extrapolating to the situation before us, the appellate rules require that the trial court complete a certification of the defendant’s right of appeal. Tex. R.App. P. 25.2(d). By contrast, the key statutory provision governing judgments in criminal cases, although quite detailed, does not require a judgment to address whether the appellant retains a right to appeal. Tex.Code Crim. Proc. Ann. art. 42.01, § l. Therefore, trial courts are required to complete certifications of the right of appeal, see Rule 25.2(d), but they are not required to address the right of appeal in the judgment, see article 42.01, § l. This situation is similar to the one addressed in Taylor and Coffey, in which the Court of Criminal Appeals held that the oral pronouncement controls over the judgment because the oral pronouncement is required and the judgment merely contains the written manifestation of the orally pronounced sentence. Taylor, 131 S.W.3d at 500; Coffey, 979 S.W.2d at 328-29. Thus, in the interest of certainty, it would appear prudent to hold that, when there is a conflict in the documentation regarding a defendant’s right to appeal, the required statement of the intent to appeal (contained in the certification) controls over the surplusage statement of the intent to appeal (contained in the judgment).

This conclusion is particularly apt if the remainder of the record supports the statement in the certification. See Dears v. State, 154 S.W.3d 610, 614-15 (Tex.Crim.App.2005) (stating that appellate court may compare certification to the record to determine whether the certification is defective). Here, although the signed plea form reflects waiver, it is rather easily discounted because the waiver clause was in a lengthy preprinted form. See Willis, 121 S.W.3d at 403 (“[T]he trial court’s subsequent handwritten permission to appeal controls over a defendant’s previous waiver of the right to appeal, allowing the defendant to appeal despite the boilerplate waiver.”). The in-court exchange, however, is more convincing. Defense counsel stated an intention to appeal, and instead of objecting, the prosecutor aided defense counsel in stating exactly what it was he intended to appeal. The judge then indicated that she would note the intention to appeal and apparently did so on the certification. Based on this exchange and the judge’s signing of the certification, we find that appellant did not waive his right of appeal.

Mental State

In his two issues, appellant contends that the trial court erred in denying his motion to quash because the indictment failed to allege a culpable mental state in regards to the age of the victim. We review a trial court’s ruling on a motion to quash an indictment under an abuse-of-discretion standard. Thomas v. State, 621 S.W.2d 158, 163 (Tex.Crim.App.1980).

Appellant acknowledges that Texas courts have consistently held that in prosecuting sexual offenses committed against children the State need not prove a mental state regarding the age of the child. See, e.g., Vasquez v. State, 622 S.W.2d 864, 865 (Tex.Crim.App.1981); Jackson v. State, 889 S.W.2d 615, 617 (Tex.App.-Houston [14th Dist.] 1994, pet. ref'd). Specifically, the State need not show that the defendant knew that the victim was younger than seventeen years old. Vasquez, 622 S.W.2d at 865; Jackson, 889 S.W.2d at 617. Appellant further acknowledges that the Court of Criminal Appeals reiterated this rule as recently as 1998, in relation to the offense of indecency with a child. Johnson v. State, 967 S.W.2d 848, 849-50 (Tex.Crim.App.1998).

However, appellant contends that Johnson does not control here because (1) the Johnson court did not consider application of Penal Code section 6.02, and (2) the Court of Criminal Appeals’ subsequent opinion in Aguirre v. State, 22 S.W.3d 463 (Tex.Crim.App.1999), casts doubt on the continuing authority of Johnson. A review of the pertinent cases reveals that neither assertion is correct.

First, regarding section 6.02, although the majority opinion in Johnson does not specifically cite that section, the four-justice concurrence and the dissenting opinion discuss the application of section 6.02 in depth. 967 S.W.2d at 850-54 (Price, J., concurring); id. at 854-59 (Baird, J., dissenting). Thus, the majority was clearly aware of section 6.02; however, it relied primarily on stare decisis and apparently did not consider section 6.02 as cause for departing from prior decisions. Id. at 849-50 (“In case after case, this Court has held that the State is not required to show that appellant knew the victim to be under the age of 17. This rule is well established and we therefore find that it is dispositive of the issue in the case at bar.”). Further, section 6.02 has been part of the Penal Code virtually unchanged since 1974. Act of June 14, 1973, 63rd Leg., R.S., ch. 399, 1973 Tex. Gen. Laws 883, 892, amended by Act of June 19, 1993, 73rd Leg., R.S., ch 900, 1993 Tex. Gen. Laws 3586, 3592. Thus, the Court of Criminal Appeals would have been aware of section 6.02’s existence not only when it wrote Johnson, but also when it wrote earlier opinions holding that the State need not prove a mental state regarding the age of the victim when prosecuting sexual offenses committed against children. See, e.g., Johnson, 967 S.W.2d at 849-50; Roof v. State, 665 S.W.2d 490, 491 (Tex.Crim.App.1984) (analyzing legislative history of section 21.11 and finding legislature did not intend to require a mental state in regard to the age of the child); Vasquez, 622 S.W.2d at 865 (holding legislature did not intend to require a mental state in regard to the age of the child in prosecutions under statutory rape provision). Appellant’s first argument is without merit.

Second, appellant argues that the Court of Criminal Appeals’ Aguirre opinion casts doubt on the holding in Johnson. However, far from overruling Johnson or suggesting Johnson should be reconsidered, the Aguirre court cited Johnson with approval. 22 S.W.3d at 475 & n. 48. In Aguirre, the court discussed the application of section 6.02 to a city ordinance that did not require a mental state for prosecution of a violation. Id. at 470-77 (holding that section 6.02 required that a culpable mental state be read into the ordinance). In that context, the court discussed the nature of strict liability crimes, or crimes that do not require a particular mental state for liability to attach. Id. at 472-76. The court explained that strict liability laws include those that are regulatory in nature or for the public welfare, but also include laws designed to protect children. Id. at 475. The court then cited Johnson for an example of the latter. Id. at 475 & n. 48. By citing Johnson in this context, it is clear that the Aguirre court did not intend to disturb the long-standing rule that the State need not prove a culpable mental state in regards to the age of the victim when prosecuting sexual offenses committed against children. Appellant’s second argument is without merit. Because we find no merit in appellant’s arguments, his two issues are overruled.

The trial court’s judgment is affirmed.

      . This certification is required by Rule 25.2(d) of the Texas Rules of Appellate Procedure. TexR.App. P. 25.2(d). The certification here suggests that appellant did not waive his appeal both because (1) the court checked a box on the form to indicate that appellant had not waived the matters asserted in the pretrial motion and had the right of appeal, and (2) the court did not check an available box stating that appellant had waived the right of appeal.

      . The main distinguishing factor between Willis and Alzarka is the fact that in Alzarka the court gave express oral permission to appeal, whereas in Willis the court merely signed a notice of appeal that indicated the court granted permission to appeal. See Willis, 121 S.W.3d at 402-03. ■

      . In fairness, the provision does require the judgment to contain the terms of any plea bargain. Tex.Code Crim. Proc. Ann. art. 42.01, § 1(20). However, even if it could be argued that in stating in the judgment that appellant waived his right of appeal the trial court was merely reflecting the terms of the plea agreement, the court went a step further by stating that no permission to appeal was granted, which was obviously not an element of the plea bargain. Regardless, both statements conflict with the certification.

      . It should further be noted that a judgment has numerous functions, see article 42.01, § 1, whereas a certification of the right of appeal has only one essential function, see Rule 25.2(d). Thus, it is much less likely that a court would make a mistake regarding the right of appeal in the certification than it would in the comparatively voluminous judgment.

      . Although Johnson dealt specifically with prosecutions for indecency with a child under Penal Code section 21.11, appellant recognizes the holding is equally applicable to the statutory rape provision, section 22.011(a)(2)(A); indeed, in Johnson, the court cited Vasquez as controlling, and Vasquez was a statutory rape case. Johnson, 967 S.W.2d at 849-50; Vasquez, 622 S.W.2d at 865.

      . Appellant essentially contends that section 6.02 requires that a mental state regarding a victim’s age be read into section 22.011(a)(2)(A). Section 6.02 provides as follows:
      (a) Except as provided in Subsection (b), a person does not commit an offense unless he intentionally, knowingly, recklessly, or with criminal negligence engages in conduct as the definition of the offense requires.
      (b) If the definition of an offense does not prescribe a culpable mental state, a culpable mental state is nevertheless required unless the definition plainly dispenses with any mental element.
      (c) If the definition of an offense does not prescribe a culpable mental state, but one is nevertheless required under Subsection (b), intent, knowledge, or recklessness suffices to establish criminal responsibility.
      (d) Culpable mental states are classified according to relative degrees, from highest to lowest, as follows:
      (1) intentional;
      (2) knowing;
      (3) reckless;
      (4) criminal negligence.
      (e) Proof of a higher degree of culpability than that charged constitutes proof of the culpability charged.
      Tex Pen.Code Ann. § 6.02.

      .In 1993, the legislature amended section 6.02 to remove the superfluous phrase "of this section” from subsections (a) and (c). Act of June 19, 1993, 73rd Leg., R.S., ch. 900, 1993 Tex. Gen. Laws 3586, 3592.


author: J. HARVEY HUDSON, Justice.

text:
    Agostino PERNA and Mobile Medical Training Unit, L.L.C., Appellants, v. Leslie Diane HOGAN, et al., Appellees. Agostino Perna and Mobile Medical Training Unit, L.L.C., Appellants, v. Jean Butts, Individually and as Representative of the Estate of Dorothy Hebert, et. al., Appellees. Agostino Perna and Mobile Medical Training Unit, L.L.C., Appellants, v. Robert Bland, et al., Appellees. Agostino Perna and Mobile Medical Training Unit, L.L.C., Appellants, v. Ricardo Billescas, Individually and as Representative of the Estate of Imelda Billescas Romero, et al., Appellees. Agostino Perna and Mobile Medical Training Unit, L.L.C., Appellants, v. Patricia M. Harrison, et al., Appellees. Agostino Perna and Mobile Medical Training Unit, L.L.C., Appellants, v. Ted Breezy, Individually and as Representative of the Estate of Elizabeth Ann Breezy, et al., Appellees.
    Nos. 14-03-01289-CV, 14-03-01290-CV, 14-03-01293-CV to 14-03-01295-CV, 14-03-01305-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    March 17, 2005.

      George W. Vie, III, Galveston, for appellants Agostino Perna and Mobile Medical Training Unit, L.L.C.
    Sidney S. Stover, Jasper, for appellees (Case No. 14-03-01289-CV).
    Chad Bassett Matthews, League City, Otto D. Hewitt, III, Alvin, Lawrence M. Tylka, Galveston, Alton C. Todd, Friends-wood, for appellees (Case No. 14-03-01290-CV).
    Barry G. Flynn, T. Bryan Akins, Houston, for appellees (Case No. 14-03-01293-CV).
    Sandra Thourot Krider, David George, Houston, for appellees (Case No. 14-03-01294-CV).

      Martin J. Siegel, T. Bryan Akins, Houston, for appellees (Case No. 14-03-01295-CV).
    Sandra Thourot Krider, Houston, for ap-pellees (Case No. 14-03-01305-CV).
    Panel consists of Justices ANDERSON, HUDSON and FROST.
   OPINION

J. HARVEY HUDSON, Justice.

A number of individuals donated their bodies to the Anatomical Board of the State of Texas (the “Anatomical Board”), the agency responsible for overseeing the Willed Body Program in Texas. The Anatomical Board assigned the bodies to the University of Texas Medieal Branch at Galveston (“UTMB”). After the donor bodies were used for medical, science, and educational purposes, they were cremated. Appellees — members of the donors’ families — allege that the ashes of the donor participants’ cremated bodies were either not returned to them or were commingled with the cremated remains of other donors.

Appellees sued Agostino Perna (“Per-na”) and Mobile Medical Training Unit, L.L.C. (“Mobile Medical”), alleging that they bought and sold human body parts and profited from such trade and that they purchased body parts from UTMB and Allen Tyler, the supervisor of the Willed Body Program at UTMB. Appellees further alleged Perna and Mobile Medical should have known that bodies and body parts they received or purchased from Tyler were being transferred to them illegally and that any resale was also illegal. Appellees brought claims for negligence, negligence per se, gross negligence, breach of contract, constructive fraud, fraud, intentional infliction of emotional distress, and vicarious liability, and sought actual and punitive damages.

Perna and Mobile Medical filed special appearances, which the pretrial court denied. In this interlocutory appeal, Perna and Mobile Medical appeal the pretrial court’s order denying their respective special appearances. We reverse the order of the pretrial court and dismiss these six cases against Perna and Mobile Medical.

A Texas court may exercise jurisdiction over a nonresident if two conditions are satisfied. First, the Texas long-arm statute must authorize the exercise of jurisdiction. Second, the exercise of jurisdiction must be consistent with federal and state constitutional guarantees of due process. American Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 806 (Tex.2002), cert. denied, 537 U.S. 1191, 123 S.Ct. 1271, 154 L.Ed.2d 1025 (2003); Schlobohm v. Schapiro, 784 S.W.2d 355, 356 (Tex.1990).

The Texas long-arm statute authorizes the exercise of jurisdiction over a nonresident defendant who does business in Texas. Tex. Civ. Peac. & Rem.Code Ann. § 17.042 (Vernon 1997). The Texas long-arm statute specifically provides:

In addition to other acts that may constitute doing business, a nonresident does business in this state if the nonresident:
(1) contracts by mail or otherwise with a Texas resident and either party is to perform the contract in whole or in part in this state;
(2) commits a tort in whole or in part in this state; or
(3) recruits Texas residents, directly or through an intermediary located in this state, for employment inside or outside this state.

Id. While the statute enumerates several specifics acts constituting “doing business,” it also includes “other acts that may constitute doing business.” Schlobohm, 784 S.W.2d at 357. The “doing business” requirement permits the statute to reach as far as the federal constitutional requirements of due process will allow. Guardian Royal Exchange Assur., Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 226 (Tex.1991).

The plaintiff has the initial burden of pleading sufficient allegations to bring the nonresident defendant within the provisions of the Texas long-arm statute. Coleman, 83 S.W.3d at 806; BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 793 (Tex.2002). The nonresident defendant then has the burden of negating all bases of personal jurisdiction. National Indus. Sand Ass’n v. Gibson, 897 S.W.2d 769, 772 (Tex.1995). If the plaintiff does not plead jurisdictional allegations, i.e., that the defendant has committed any act in Texas, the defendant can satisfy its burden of negating all bases of personal jurisdiction by presenting evidence that it is a nonresident at the special appearance hearing. Experimental Aircraft Ass’n, Inc. v. Doctor, 76 S.W.3d 496, 502 (Tex.App.-Houston [14th Dist.] 2002, no pet.); M.G.M. Grand Hotel, Inc. v. Castro, 8 S.W.3d 403, 408 n. 2 (Tex.App.-Corpus Christ 1999, no pet.); Hotel Partners v. KPMG Peat Marwick, 847 S.W.2d 630, 634 (Tex.App.-Dallas 1993, writ denied).

Perna and Mobile Medical argue appel-lees’ pleadings do not support the exercise of long-arm jurisdiction. In their various petitions, appellees allege that Allen Tyler of UTMB illegally transferred and/or sold bodies and/or body parts that were willed to UTMB to Perna and Mobile Medical so that they could resell them to for-profit medical equipment and training companies and private labs and hospitals. It was also alleged that Perna and Mobile Medical breached the duty to use ordinary care in ascertaining the origins of body parts provided by or purchased from Tyler, to refrain from acquiring, reselling, or disposing of body parts, and to treat the donors’ bodies with dignity and respect, and to return the ashes of the donors to designated family members.

We find appellees have not alleged facts in their petitions bringing Perna and Mobile Medical within the Texas long-arm Statute, i.e., that Perna or Mobile Medical committed any act in Texas. However, a plaintiffs failure to make jurisdictional allegations in the petition is not subject to attack by the specially appearing defendant. Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 202-03 (Tex.1985); McDermott v. Cronin, 31 S.W.3d 617, 620 (Tex.App.-Houston [1st Dist.] 2000, no pet.). But while the specially appearing defendant cannot attack the plaintiffs petition, the defendant can meet his burden of proof in such cases by simply presenting evidence that he is not a Texas resident. McDermott 31 S.W.3d at 620. Because appellees did not allege that Perna or Mobile Medical committed any act in Texas, Perna and Mobile Medical satisfied their burden to negate all bases of personal jurisdiction by presenting evidence demonstrating that they are non-residents — a fact no one seems to dispute.

However, even if appellees had alleged facts in their respective petitions demonstrating acts in Texas (as they subsequently did in their responses to the special appearances), the evidence adduced at the special appearance hearing falls short of bringing Perna and Mobile Medical within the ambit of the Texas long-arm Statute.

Perna and Mobile Medical filed special appearances asserting the trial court lacked personal jurisdiction over them. The Bland and Harrison plaintiffs filed identical responses to Perna’s and Mobile Medical’s special appearances. The Billes-cas and Breezy plaintiffs adopted the Harrison plaintiffs’ response by reference. In their response to the special appearances, the Harrison/Billescas/Bland/Breezy plaintiffs asserted that Perna personally came to Texas over the course of four years and illegally purchased 300 cadavers from UTMB and Southwestern University. They also asserted that Perna solicited business in Texas, conducted seminars in Texas, and contracted with a Texas citizen, Allen Tyler, to perform work both in and outside Texas. The Harrison/Billescas/Bland/Breezy plaintiffs further claimed that Perna paid Tyler $80,000 for his work and Tyler’s invoices were mailed from Texas and Perna mailed Tyler’s payments to Texas. The record contains no response to the special appearances by the Hogan plaintiffs.

Although the Harrison/Billes-cas/Bland/Breezy plaintiffs’ responses cite to Perna’s deposition as evidentiary support, the deposition transcript was neither attached to those responses nor otherwise filed in the pretrial court. Moreover, at the hearing on the special appearances, no evidence was offered by appellees; instead, appellees referred the pretrial court to the written responses on file with the court.

The Butts and Breezy plaintiffs filed “motions to confer jurisdiction” in which they complained they had been denied the opportunity to fully develop issues regarding jurisdiction and contacts because of Perna and Mobile Medical’s failure to cooperate with the discovery process. Specifically, they complained of Perna’s failure to provide documents in response to discovery and challenged the truthfulness of his interrogatory answers on behalf of Mobile Medical. Attached to the motions to confer jurisdiction were excerpts from Perna’s deposition that mostly concern ap-pellees’ trial counsel’s attempts to determine the veracity of his answers to interrogatories.

Submitted in support of Perna’s and Mobile Medical’s special appearances were excerpts from Perna’s deposition and the affidavits of Perna, in his individual capacity and as an officer of Mobile Medical. Perna states in his individual affidavit that he:

• is a New Jersey resident, and is not and has never been a resident of Texas;
• has never maintained a registered agent in Texas;
• has never had any employees or agents, in his individual capacity, in Texas;
• has never maintained an office, mailing address, or telephone number in Texas;
• has never owned any assets, maintained a bank account, or owned, leased or controlled any real or personal property in Texas;
• has never paid or been required to pay taxes in Texas;
• has never, in his individual capacity, entered into a contract or conducted any business with any Texas business, citizen or resident;
• has never entered in any contract with UTMB, Allen Tyler, or any other employee or agent of UTMB; and
• has never held any board of director’s, officer’s, or other official meeting in Texas.

Perna states that UTMB has supplied human torsos for medical seminars conducted in states other than Texas. Perna also explains that another entity, IMET (Innovations in Medical Education and Training, L.L.P.), a medical conference coordinator, arranges for the leasing of human torsos for medical training seminars. Mobile Medical takes temporary custody of torsos during a medical seminar, but Perna does not, in his individual capacity, take custody of torsos or arrange for their shipment or disposition, but only as an employee or officer of one of these entities. Perna states that the torsos are leased for use at medical seminars and remain the property of UTMB. Another entity, SBF (Surgical Body Forms), which furnishes video equipment and surgical equipment and instruments for use at medical seminars, paid Allen Tyler an honorarium for consulting work and preparing torsos for presentation at medical seminars.

Perna further states in his affidavit that he has not appeared in Texas in his individual capacity. Instead, on each of the three occasions Perna was in Texas, his presence was as an employee or officer of IMET, Mobile Medical, A. Perna Consulting or SBF. Perna explains that he was in Houston on two occasions when IMET conducted medical seminars at Baylor College of Medicine in November 2001, and in May 2002. Perna was in Dallas on one occasion to meet with Melinda More at Southwestern University/Medical School on behalf of IMET concerning the amount of lead time the school would need to furnish a torso to a seminar.

Perna also states that none of the torsos used at the two medical seminars in Houston at which he was present correspond to any of the SAB numbers for the bodies of the donors at issue here. Perna admits, however, that the SAB numbers corresponding to the bodies of Catherine Bland, Ruth Black, Linda Porritt, and Scherri Maxine Tompkins were furnished to other seminars (not necessarily in Texas) involving Mobile Medical, IMET, A. Perna Consulting, and/or SBF.

According to Perna, when UTMB furnished a torso for a seminar, UTMB paperwork dictated that after the completion of the seminar, the torso was to be cremated in the state where the seminar was conducted, and the ashes disposed of in accordance with the laws of that state. UTMB did not require that the ashes be returned to Texas.

In his capacity as an officer of Mobile Medical, Perna states that Mobile Medical:

• is a New Jersey limited liability company, which does not and has never been required to maintain a place of business in Texas, but, instead, maintains its offices in Pennsylvania where it conducts its business operations;
• is not required to and has never maintained a registered agent in Texas;
• except in November 2001, and May 2002, when IMET conducted two medical seminars at Baylor College of Medicine in Houston, does not have and has never had any employees or agents in Texas;
• has never maintained an office, mailing address, or telephone number in Texas;
• has never owned any assets or maintained a bank account in Texas;
• has never paid or been required to pay taxes in Texas;
• except for certain torsos it leased from the Willed Body Programs of UTMB and Southwestern University, has never owned, leased, rented or controlled any real or personal property in Texas; and
• has never held any board of director’s, officer’s or other official meeting in Texas.

Perna claims the evidence is legally and factually insufficient to support the pretrial court’s findings of fact. Whether the court has personal jurisdiction over a nonresident defendant is a question of law, but the proper exercise of such jurisdiction is sometimes preceded by the resolution of underlying factual disputes. Coleman, 83 S.W.3d at 805-06; BMC Software, 83 S.W.3d at 794; C-Loc Retention Sys., Inc. v. Hendrix, 993 S.W.2d 473, 476 (Tex.App.Houston [14th Dist.] 1999, no pet.).

If the trial court enters an order denying a special appearance, and issues findings of fact and conclusions of law, the appellant may challenge the findings of fact on legal and factual sufficiency grounds. BMC Software, 83 S.W.3d at 794. The trial court’s findings of fact are binding on the appellate court unless challenged on appeal. Hotel Partners, 847 S.W.2d at 632. We may not disregard findings of fact if the record contains some evidence from which inferences may be drawn, unless the findings are so contrary to the overwhelming weight of the evidence as to be manifestly wrong. Experimental Aircraft Ass’n, Inc., 76 S.W.3d at 503.

We review the trial court’s conclusions of law as legal questions. BMC Software, 83 S.W.3d at 794. While the appellant may challenge the conclusions of law for factual insufficiency, we review the conclusions of law drawn from the facts to determine their correctness. Id. If we determine a conclusion of law is erroneous, but trial court rendered a. proper judgment, the erroneous conclusion of law does not require reversal. Id.

Finding of Fact No. l.a

• Perna, individually and on behalf of Mobile Medical, personally came to Texas numerous times, to solicit business in Texas, purchase cadaver torsos in Texas, and conducted seminars in Texas.

There is no evidence that Mobile Medical or Perna individually arranged, facilitated, or conducted medical seminars in Texas involving the use of torsos. Any actions by Perna were taken as an employee or officer of one .of the entities. Perna testified at deposition that Mobile Medical participated in a medical seminar in Houston as a subcontractor and was paid, as a subcontractor. There is no evidence that Perna had been to Texas numerous times, but only on three occasions — two seminars at Baylor College of Medicine and one meeting at Southwestern Medical School. Nor is there any evidence that Perna or Mobile Medical purchased any torsos. Another entity, IMET, arranged for the leasing of torsos for medical seminars. The torsos remained the property of UTMB. Although Perna had a meeting at Southwestern University on behalf IMET, which was already obtaining bodies from the medical school, to discuss the amount of lead time the school needed to furnish a torso for a seminar, there is no evidence that Perna, individually or on behalf of Mobile Medical, solicited business in Texas.

Finding of Fact l.b

• Perna, individually and on behalf of Mobile Medical, purchased as many as 300 cadaver torsos from UTMB, Southwest University, and other sources.

There is no evidence that either Perna or Medical Mobile purchased any torsos; instead, IMET arranged for the lease of the torsos, which remained the property of UTMB. Mobile Medical takes only temporary custody of the torsos during a medical seminar.

Finding of Fact l.c

• Perna, individually and on behalf of Mobile Medical, shipped torsos purchased in Texas to seminars that Per-na and Mobile Medical conducted in Texas and other states.

Again, there is no evidence that either Perna or Mobile Medical purchased any torsos, and, as stated above, IMET arranged for the leasing of the torsos for the medical seminars and Mobile Medical only took temporary custody of the torsos during the seminars. Perna made arrangements for the shipment, furnishing, and disposition of torsos as an employee or officer of one of the entities, not individually-

Finding of Fact l.d

• Perna, individually and on behalf of Mobile Medical, through a subsidiary company, marketed the services of Mobile Medical in Texas.

There is no evidence that Perna personally marketed the services of Medical Mobile in Texas or that there was any subsidiary company of Mobile Medical.

Finding of Fact l.e

• Perna, individually and on behalf of Mobile Medical, came to Texas to negotiate the purchase of torsos from Allen Tyler, a Texas citizen, and also contracted with Tyler to perform consulting work both in and outside of Texas.

Again, there is no evidence that Perna or Mobile Medical purchased any torsos or that Perna individually or Mobile Medical entered into any contract with Tyler. SBF, not Perna or Mobile Medical, paid Tyler an honorarium as a consultant and for the preparation of torsos for presentation at medical seminars.

Finding of Fact If

• Perna, individually and on behalf of Mobile Medical, paid Tyler well in excess of $80,000. The invoices Tyler presented for his fees were mailed from Texas, and the payments from Perna and Mobile were mailed to Texas.

There is no evidence that Perna or Mobile Medical paid Tyler for his services; instead, the evidence shows that Tyler was a consultant to SBF, which paid him an honorarium. Similarly, there is no evidence in the record of Tyler’s invoices for payment of his fees or of any payments by Perna, Mobile Medical, or any other entity sent to Tyler.

Finding of Fact l.g

• Perna, individually and on behalf of Mobile Medical, contracted with Dr. Zurawin for a seminar at Baylor College of Medicine to work for Mobile Medical.

Perna testified at deposition that Dr. Zurawin taught a course with IMET at Baylor College of Medicine in November 2001. Perna also stated that Dr. Zurawin was the primary person who administered that program. However, there is no evidence that Perna or Mobile Medical contracted with Dr. Zurawin.

Finding of Fact No. 2

• Perna hired Texas citizens, both over the phone and during trips to Texas to perform various services at his seminars.

There is no evidence that Perna individually hired Texas citizens over the phone or during trips to Texas to perform services at any medical seminar. Tyler, a Texas citizen, was a consultant to SBF, which paid him an honorarium for his work at medical seminars.

Finding of Fact No. 3

• Perna acted as a corporate agent for Mobile Medical for the detailed activities conducted in Texas.

Perna stated in his affidavit and at deposition that his work performed for Mobile Medical (and the other entities) was in his capacity as an employee or officer. The evidence, therefore, supports this finding.

Finding of Fact No. A

• Other employees of Mobile Medical came to Texas for a conference in 2001.

Perna testified at deposition that Mobile Medical technicians, Mr. Neubert and Mr. Myers, came to the November 2001 seminar in Houston. Therefore, the evidence supports this finding.

We conclude the evidence does not support findings of fact Nos. l.a through 2 and, therefore, those findings do not support the exercise of personal jurisdiction over Perna and Mobile Medical. While the evidence supports findings of fact Nos. 3 (Perna’s having acted on behalf of Mobile Medical in Texas as an officer or employee) and 4 (Mobile . Medical’s employees’ working at a medical seminar in Texas), as shown below, those findings do not support the exercise of personal jurisdiction over Perna and Mobile Medical.

Among its conclusions of law, the pretrial court held that Perna and Mobile Medical knowingly participated in the commission of activities in Texas and failed to negate all possible bases for personal jurisdiction; Perna’s and Mobile Medical’s contacts were knowingly and intentionally directed at Texas and harm in Texas was foreseeable; Perna and Mobile Medical are subject to specific jurisdiction in Texas because the cause of action arises out of, and is related to, their contacts with Texas; and the exercise of personal jurisdiction over Perna and Mobile Medical is consistent with the constitutional requirements of due process and will not offend principles of fair play and substantial justice.

Due process consists of two components: (1) whether the nonresident defendant has purposefully established “minimum contacts” with the forum state; and (2) if so, whether the exercise of jurisdiction comports with “fair play and substantial justice.” Guardian Royal Exchange, 815 S.W.2d at 226 (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475-76, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)).

Under the minimum contacts analysis, we must determine whether the nonresident defendant has purposefully availed itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of the state’s laws. Coleman, 83 S.W.3d at 806. A nonresident defendant who has purposefully availed itself of the privileges and benefits of conducting business in the forum state has sufficient contacts with the forum to confer personal jurisdiction on the court. CSR Ltd. v. Link, 925 S.W.2d 591, 594 (Tex.1996). The defendant’s activities, whether they consist of direct acts within Texas or conduct outside Texas, must justify a conclusion that the defendant reasonably could anticipate being called into a Texas court. Coleman, 83 S.W.3d at 806. The purposeful availment requirement insures that the nonresident defendant’s contact must result from its purposeful conduct, not the unilateral activity of the plaintiff or a third party. Guardian Royal Exchange, 815 S.W.2d at 227.

In determining whether a nonresident defendant has purposefully established minimum contacts with the forum state, “foreseeability” is a significant consideration. Although not an independent component of the minimum-contacts analysis, foreseeability is implicit in determining whether there is a “substantial connection” between the defendant and the forum state. If a nonresident, by its actions or conduct, has purposefully availed itself of the state’s benefits and the protections of its laws, then it has established a substantial connection with the state and subjected itself to the state’s jurisdiction. Conner v. ContiCarriers & Terminals, Inc., 944 S.W.2d 405, 410 (Tex.App.-Houston [14th Dist.] 1997, no writ) (plurality op.) (citing Guardian Royal Exchange, 815 S.W.2d at 226-27).

The nonresident defendant’s contacts can give rise to two types of jurisdiction. The first is specific jurisdiction, which is established when the plaintiffs cause of action arises out of, or relates to, the defendant’s contacts with the forum state. Id. The defendant’s activities must have been purposefully directed toward the forum state. Guardian Royal Exchange, 815 S.W.2d at 228. Under specific jurisdiction, the minimum-contacts analysis, focuses on the relationship among the defendant, the forum, and the litigation. Id.

The evidence shows Perna came to Texas on three occasions — two medical seminars in Houston and one meeting in Dallas — on behalf of one of the entities. There is no evidence that Perna and Mobile Medical purchased any torsos from Tyler or anyone else at UTMB. Instead, IMET arranged for the leasing of the torsos and Mobile Medical received temporary custody of the torsos at the medical seminars. The evidence further shows that none of the donor bodies at issue in the six consolidated cases were used in either the November 2001 or May 2002 medical seminars. Similarly, the evidence does not indicate that Perna’s visit to Southwestern University was related in any way to UTMB’s willed body program. Finally, there is no evidence that Perna, in his individual capacity, entered into any contract with UTMB, Tyler, or any other employee or agent of UTMB.

Appellees argue that Perna can be held individually liable for tortious acts committed while working for Mobile Medical. See Shapolsky v. Brewton, 56 S.W.3d 120, 133 (Tex.App.-Houston [14th Dist.] 2001, pet. denied) (stating general rule that corporate agents are individually liable for fraudulent or tortious acts committed while in service of their corporation). As discussed above, the evidence supports finding of fact No. 3, ie., Perna acted on behalf of Mobile Medical in Texas. However, even if we impute liability for Perna’s activities performed on behalf of Mobile Medical as an employee or officer to him individually, those contacts with Texas, as shown above, are not sufficient to give rise to specific jurisdiction.

Appellees further contend Perna and Mobile Medical committed torts in Texas. However, committing a tort in Texas alone does not give rise to personal jurisdiction over a nonresident defendant. Id. at 133. Instead, there must be a substantial connection between the contact and the cause of action in the forum state. Id. There is no evidence that any of the torsos used in either of the medical seminars belonged to the donors at issue in the six consolidated cases in this appeal. We conclude Perna’s and Mobile Medical’s contacts with Texas are not sufficient to confer specific jurisdiction.

The second type of jurisdiction is general jurisdiction, which is established by the defendant’s continuous and systematic contacts with the forum. Such contacts permit the forum to exercise personal jurisdiction over the defendant even if the cause of action did not arise from, or relate to, the defendant’s activities conducted within the forum state. Coleman, 83 S.W.3d at 806; CSR Ltd., 925 S.W.2d at 595. Under general jurisdiction, the minimum-contacts analysis is more demanding, requiring a showing of substantial activities within the forum state. Schlobohm, 784 S.W.2d at 357. Each contact is not viewed in isolation; instead, all contacts are carefully investigated, compiled, sorted, and analyzed for proof of a pattern of continuing and systematic activity. Coleman, 83 S.W.3d at 809.

Perna states in his affidavit that he is a New Jersey resident and he is not and has never been a resident of Texas; has never maintained a registered agent in Texas; has never had any employees or agents in Texas; has never maintained an office, mailing address, or telephone number in Texas; has never owned any assets, maintained a bank account, or owned, leased or controlled any real or personal property in Texas; has never paid or been required to pay taxes in Texas; has never, in his individual capacity, entered into a contract or conducted any business with any Texas business, citizen or resident; and has never held any board of director’s, officer’s, or other official meeting in Texas.

In his capacity as an officer of Mobile Medical, Perna states that Mobile Medical is a New Jersey limited liability company, which does not and has never been required to maintain a place of business in Texas, but, instead,.maintains its offices in Pennsylvania, where it conducts its business operations; it is not required to and has never maintained a registered agent in Texas; except in November 2001, and May 2002, when IMET conducted two medical seminars at Baylor College of Medicine in Houston, it does not have and has never had any employees or agents in Texas; it has never maintained an office, mailing address, or telephone number in Texas; it has never owned any assets or maintained a bank account in Texas; it has never paid or been required to pay taxes in Texas; except for certain torsos it leased from the Willed Body Programs of UTMB and Southwestern University, it has never owned, leased, rented, or controlled any real or personal property in Texas; and it has never held any board of director’s, officer’s or other official meeting in Texas.

Appellees assert Perna came to Texas numerous times, on behalf of Mobile Medical and other related entities, to solicit business, purchase torsos, and conduct seminars. They also contend Perna purchased as many as 300 torsos in Texas over a four-year period, at a total estimated cost of $360,000. Aside from the fact that there is no evidence that Perna came to Texas on more than three occasions, and assuming that Perna purchased (or leased) 300 torsos over a four-year period, “‘mere purchases, even if occurring at regular intervals, are not enough to warrant a State’s assertion of in personam jurisdiction over a nonresident corporation in a cause of action not related to those purchase transactions.’ ” Coleman, 83 S.W.3d at 808 (quoting Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 418, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984)); see also Dalton v. R & W Marine, Inc., 897 F.2d 1359, 1362 n. 3 (5th Cir.1990) (stating “purchases and trips related thereto, even if they occur regularly, are not, standing alone, a sufficient basis for the assertion of jurisdiction”). There is no evidence that those 300 alleged purchases or leases are related to appellees’ causes of action against Perna and Mobile Medical; therefore, any such purchases or leases from Texas, standing alone, will not support the exercise of general jurisdiction. We conclude that Perna’s and Mobile Medical’s contacts in Texas do not constitute continuous and systematic activities necessary to confer general jurisdiction.

We conclude the pretrial court erred in denying Perna’s and Mobile Medical’s special appearances. Accordingly, the pretrial court’s order denying Perna’s and Mobile Medical’s special appearances is reversed and the six cases in this consolidated appeal against Perna and Mobile Medical are dismissed.

      . The donors involved in this appeal are Imelda Billescas Romeros, Catherine Boileau Bland, Janice Olivia Kelley, Leslie David Hogan, Dorothy Hebert, Hayden Hodges, Betty Breezy, Michael Hargrave, Bonnie Stanford O’Neal, Billie Kohlenberg, Edna Mahaffy, Billy Everett, George Davis Oliver, Sr., Linda Porritt, James B. McCaslin, John Whitworth, Michael Graf, Patd Carrig, and Pearl Ethel Purvis.

      . Appellees in this appeal are:

        Hogan suit: Leslie Diane Hogan, David W. Hogan, Donald A. Hogan, and Clifford E. Hogan;

        Butts suit: Jean Butts, Individually and as Representative of the Estate of Dorothy Hebert, James Nelson, Sue McKnight, Heather Keithly, Amy McKnight, Sandra Clemons, Diana Hodges, Individually and as Representative of the Estate of Hayden Hodges, Alden Hodges, Joe Stutzman, David Stutzman, Linda DeLeon, Cherri Pellerin, Phylls Eckerson, Hilda Rodefeld, Sherri Sonntag-Rodefeld, Emory Brockway, Michael Brockway, Christopher Chatelain, Susan McHugh, John McHugh, Martha Harris, Leslie Koester, Tyra Yesh Ochoa, Louis Shields, Chris Philips, Betty Brown, Susan Boatright, Tracy Andrew, Shawn Melton, Davette Pickard, H. Dean Clark, Yola Clark, Willa Jayne, Joel Aiston, Lavem [sic] Aiston, Pamela Bean, Jill Scog-gins, and Francis Matthews Henty;

        Bland suit: Robert Bland, Mary Hargreaves, Michael Robert Bland, Patrick Boux Bland, and Robert Dallas Bland;

        Billescas suit: Ricardo Billescas, Individually and as Representative of the Estate of Imelda Billescas Romeros, Irma Young, Veronica Lopez, Yolanda B. Garcia, and Belia V. Zamora; Harrison suit: Patricia M. Harrison, Michael C. Murphy, Billy G. Odom, B. Alan Odom, Lisa Odom, David P. Odom, Tamara L. Odom, Gary B. Black, Charles H. McBride, Mike McBride, Johnna [sic] J. Higginbotham, Tamara Stelly, Robert Thomas, Celeste Fonte-not, Ruth Ahmed, Barbara Erwin, Emily Erwin Hebert, Thomas Kelley Ewrin, Henry Blake Erwin, Sidney A. Brown, Kerri Olivia Bettes, Individually and as Representative of the Estate of Janice Olivia Kelley, and James K. McDow, Jr.; and

        Breezy suit: Ted Breezy, Individually and as Representative of the Estate of Elizabeth Ann Breezy, Joan Breezy Speer, Kathleen Hagan, Victoria Quinn, Paul Hargrave, Individually and as Representative of the Estate of Michael Hargrave, LeAnna Lankford, Individually and as Representative of the Estate of Bonnie Standard O’Neal, Sandra Kohlenberg, Individually and as Representative of the Estate of Billie Kohlenberg, Joann Cooper, Individually and as Representative of the Estate of Edna Mahaffey, George Oliver, Jr., Individually and as Representative of the Estate of George Davis Oliver, Sr., Tana Everett, Clifton Everett, Individually and as Representative of the Estate of Billy Everett, Daron C. McCaslin, Individually and as Representative of the Estate of James B. McCaslin and Edna Pauline McCaslin, Todd Sisson, Individually and as Representative of the Estate of Linda Porritt, Shad Sisson, Brandi Landuyut, Harriet Whit-worth, Individually and as Representative of the Estate of John Whitworth, Samuel Whit-worth, Barbara Hunt, Melinda Slaughter, Individually and as Representative of the Estate of Michael Graf, Lacy Graf, Andrew Graf, Helen Carrig, Individually and Representative of the Estate of Paul Carrig, Theresa Carrig, Kay Callin, and Martin Carrig, Tina Vaughn, Individually and as Representative of the Estate of Pearl Ethel Purvis, and Kevin Tippie.

      . Appellees also sued, among a number of others, UTMB and the Anatomical Board.

      . On April 21, 2003, the six cases in this consolidated appeal (among others) were assigned to a pretrial court for consolidated pretrial proceedings pursuant to Rule 11 of the Texas Rules of Judicial Administration. Tex.R. Jud. Admin. 11, reprinted in Tex. Gov't Code Ann., tit. 2, subtit. F. app. (Vernon 1998), amended by Supreme Court order, Mise. Docket No. 03-9145, effective Aug. 31, 2003.

      . The parties’ use of the names "Southwestern University” and "Southwestern Medical School” is presumably a reference to the University of Texas Southwestern Medical Center at Dallas, which encompasses Southwestern Medical School, Southwestern Graduate School of Biomedical Sciences, and Southwestern Allied Health Sciences School.

      . Perna explains that SAB numbers are assigned by the Anatomical Board to any torso received by UTMB through its Willed Body Program.

      . Perna and Mobile Medical argue the fiduciary shield doctrine, which provides that corporate officers are not subject to jurisdiction in a foreign forum when their actions are taken in a representative capacity, precludes exercising jurisdiction over Perna for any contacts he may have had as an officer of Mobile Medical. See Stern v. KEI Consultants, Ltd., 123 S.W.3d 482, 487 (Tex.App.San Antonio 2003, no pet.); Shapolsky, 56 S.W.3d at 133 n. 6; Brown v. General Brick Sales Co., 39 S.W.3d 291, 297-98 (Tex.App.Fort Worth 2001, no pet.). The Texas Supreme Court has not explicitly adopted the fiduciary shield doctrine. Moreover, thus far, it has been applied by intermediate courts of appeals to preclude the exercise of general jurisdiction, not specific jurisdiction. Stern, 123 S.W.3d at 488; Shapolsky, 56 S.W.3d at 133 n. 6; Brown, 39 S.W.3d at 300.

      . Because we do not find that either Perna or Mobile Medical has the requisite minimum contacts, we do not reach the fair play and substantial justice analysis.


author: RICHARD H. EDELMAN, Justice.

text:
    Angelica HARO, Individually and as Next Friend of her Minor Son, Luis Gonzalez, Jr., and Luis Gonzalez, Sr., Appellants, v. UNIVERSAL UNDERWRITERS INSURANCE COMPANY, Appellee.
    No. 14-03-01338-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    March 17, 2005.

      Russell L. Cook, Jr., Lance Arney, Houston, for appellants.
    Philip S. Gordon, Larry Walton, Houston, for appellees.
    Panel consists of Justices YATES, EDELMAN, and GUZMAN.
   OPINION

RICHARD H. EDELMAN, Justice.

In this insurance indemnity dispute, Angelica Haro, individually and as next friend of her minor son, Luis Gonzalez, Jr. (collectively, “Haro”), and Luis Gonzalez, Sr. (“Gonzalez”) appeal a summary judgment in favor of Universal Underwriters Insurance Company (“Universal”) on the grounds that an automobile dealer’s garage insurance policy covered the liability of a driver and passenger arising from a test drive of a dealership vehicle. We affirm.

Background

Luis Gonzalez, Jr., was seriously injured while riding on his father’s lap in a vehicle Daniel Rodriguez was test-driving from Landmark Chevrolet (“Landmark”). In a previous lawsuit, Haro recovered against Rodriguez, and Rodriguez was awarded a right of contribution against Gonzalez for a portion of the damages. In this lawsuit, Haro and Gonzalez sought coverage under Landmark’s two insurance policies with Universal (the “policies”) for their liability to Haro. The parties filed cross motions for summary judgment, and Universal was granted a take-nothing summary judgment.

Standard of Review

A summary judgment may be granted if the motion and summary judgment evidence show that, except as to the amount of damages, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Tex.R. Crv. P. 166a(c). In reviewing a summary judgment, we take as true all evidence favorable to the nonmovant and indulge every reasonable inference and resolve any doubt in the nonmovant’s favor. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 157 (Tex.2004). Where both parties move for summary judgment and the trial court has granted one motion and denied the other, we review the summary judgment evidence presented by both sides, determine all questions presented, and render the judgment that the trial court should have rendered. Tex. Workers’ Comp. Comm’n v. Patient Advocates of Tex., 136 S.W.3d 643, 648 (Tex.2004). We affirm a summary judgment if any of the theories presented to the trial court and preserved for appellate review are meritorious. Joe, 145 S.W.3d at 157.

Coverage Issues

Rodriguez

Haro’s sole issue asserts that Rodriguez’s liability was within the “garage operations” coverage of Landmark’s Universal policy number 190462 (“190462”). Universal’s motion for summary judgment asserted that this coverage did not apply to Rodriguez, among other reasons, because he did not fall within the definition of an “insured” for that type of coverage. Haro contends that Rodriguez was nevertheless an insured for that coverage because the policy did not exclude him from it in the manner required by the following portion of article 5.06-2(2) of the Texas Insurance Code:

A policy of garage insurance may contain a provision to the effect that garage customers are not insureds under the garage insurance policy and that the garage insurance shall not apply to garage customers, except to the extent that other valid and collectible insurance, if any, available to the garage customer is not equal to the financial responsibility limits.... Any garage insurance policy containing such a provision shall not cover garage customers except to such extent....

Tex. Ins.Code Ann. art. 5.06-2 (Vernon 1981). Haro argues that this provision allows a garage insurance policy to exclude a garage customer from coverage only if it provides an exception that applies where the insurance available to the customer is below financial responsibility limits. Because the garage operations coverage under 190462 has no such exception, Haro contends that it does not validly exclude garage customers, such as Rodriguez; therefore he is covered.

However, for purposes of article 5.06-2(2), the “policy of garage insurance” in this case is 190426, and, as Haro’s brief acknowledges: (1) the garage insurance coverage under 190426 includes both “garage operations” and “auto hazard” coverages; (2) these two areas of coverage within the policy overlap somewhat so that a given occurrence might fall under one, both, or neither, as the case may be; and (3) Rodriguez’s test drive fell within the auto hazard coverage of the policy, which contains an express article 5.06-2(2) exeeption. Because the policy of garage insurance includes both the auto hazard and garage operations coverage, its exclusion of garage customers, such as Rodriguez, from its garage insurance coverage is subject to an article 5.06-2(2) exception and, thus, does not invalidly exclude them. Therefore, Haro’s issue is overruled.

Gonzalez

Universal’s motion for summary judgment also asserted that Gonzalez’s liability was not covered by the policies because he was not within their definition of an “insured.” Gonzalez’s sole issue on appeal contends that he is an insured under the policies based on the following four-step argument. First, the “auto hazard” coverage of the policies define an “insured” to include, “[a]ny other person ... required by law to be an insured while using [a covered auto] within the scope of [Landmark’s permission].”

Second, article 5.06(1) of the Texas Insurance Code provides that:

The Board shall adopt a policy form and endorsements for each type of motor vehicle insurance subject to this sub-chapter. The coverage provided by a policy form adopted under this subsection is the minimum coverage that may be provided under an insurance policy for that type of insurance in this State.

Tex. Ins.Code Ann. art. 5.06(1) (Vernon Supp.2004-2005). Pursuant to this requirement, the Texas State Board of Insurance approved a standard form (the “standard form”) for garage insurance, which includes among the definition of an insured, “[a]nyone else while using with your permission a covered auto....” Therefore, according to Gonzalez, the inclusion of this definition in the Board-approved standard form means that such a person is required by law to be an insured, and thereby falls within the foregoing definition of an insured in the Universal policies. ■ Third, Gonzalez contends ■ that he was a permissive user of a covered auto under the policies; and, therefore, fourth he was a person required by law to be an insured for purposes of the auto hazard coverage in the policies.

However, to whatever extent article 5.06(1) and the standard form indicate what coverage must be included in a garage insurance policy, if one is issued, neither of them, nor any other authority Gonzalez cites, establishes that garage insurance is ever required by. law to be obtained by anyone under any circumstances, or that a passenger in a vehicle, such as Gonzalez, is required by any law to be insured otherwise. In other words, even if Gonzalez is within the scope of coverage in the standard form, he is not thereby a person required by law to be an insured unless the insurance described in the standard form is somehow required by law to be obtained.

In addition, to adopt Gonzalez’s reasoning would, in effect, be to: (1) hold that a determination of who is required by law to be an insured is, in turn, dictated by the type of insurance coverage that is voluntarily obtained, rather than any legal requirement specifying circumstances in which insurance coverage must exist in the first place; and (2) legislate that passengers in vehicles covered by garage insurance are legally required to be insured even though the Legislature has not seen fit to do so, no guidance would exist regarding the levels of insurance coverage required or other parameters of the requirement, and passengers in other vehicles would be subject to no such requirement. Finding no legal authority or rationale to support such a decision, we overrule Gonzalez’s issue. Accordingly, the judgment of the trial court is affirmed.

      . For a corporate policy holder, such as Landmark, each of the policies listed as insureds for garage operations the policy holder, its employees, directors, officers, and shareholders while acting in the scope of their duties as such.


text:
    HASSELL CONSTRUCTION COMPANY, INC., Appellant, v. STATURE COMMERCIAL COMPANY, INC., Appellee.
    No. 14-04-00259-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    March 17, 2005.

      Ron Ramey, Houston, for appellant.
    William S. Chesney, Houston, for appel-lee.
    Panel consists of Chief Justice HEDGES and Justices FOWLER and SEYMORE.
   OPINION

ADELE HEDGES, Chief Justice.

Appellant Hassell Construction Company appeals a take-nothing judgment following a bench trial against Stature Commercial Company. We reverse.

Background

In mid- to late 2000, Hassell Construction Company subcontracted with Stature Commercial Company, Inc. (SCCI) to perform certain construction work on the building of the Memorial Villages Police Facility. In 2003, the owner of the project, Memorial Villages Police Department, became dissatisfied with SCCI’s performance and discontinued its relationship with SCCI. SCCI’s bonding company took over completion of the project. Hassell sued SCCI, claiming SCCI owed it $40,300.11 for work performed and $22,121.00 in withheld retainage. At trial, over Hassell’s objections, SCCI introduced evidence that it had not been paid by the owner for work done by Hassell. According to SCCI, the contract required that Hassell would not be due funds until SCCI had been paid by the owner. After a one-day bench trial, the trial court issued findings of fact and conclusions of law, including the following:

Findings of Fact
9. Hassell testified, and the SUBCONTRACT provides, that Hassell had agreed with [SCCI] that “payments shall be due Hassell for work that had been approved by the Owner”. [SIC]
10. Hassell testified, and the SUBCONTRACT provides, that Hassell had agreed with [SCCI] that payments shall be due subcontractor for work “for which payment has been made to [SCCI] by Owner”. [SIC]
11.Hassell testified, and the subcontract provides, that Hassell had agreed with [SCCI] that payments shall be due within ten (10) working days following receipt of payment from Owner by [SCCI].” [SIC]
* * *
Conclusions of Law
* * *
4. [SCCI] has not received any monies from the Owner for the work Hassell performed and seeks payment by its suit.
5. Pursuant to the terms of the subcontract, Hassell is not entitled to any recovery from [SCCI] on its claims.
6. Hassell shall take-nothing on its claims from [SCCI].

Appellant raises seven issues: whether the trial court properly applied Rule 54 of Texas Rules of Civil Procedure; whether the trial court improperly based its findings on evidence disallowed by Texas Rule of Civil Procedure 94; whether the trial court properly applied Texas law regarding contracts, covenants, and conditions precedent; whether sufficient evidence existed for the court’s findings of fact numbers nine, ten, and eleven; whether the court improperly failed to award appellant the retainage owed to it by appellee; and whether the court erred in failing to make a finding of reasonable and necessary attorneys’ fees. Finding insufficient evidence for the trial court’s findings, we reverse.

Rule 94 and Evidence Supporting an Affirmative Defense

We first address appellant’s second issue challenging the trial court’s application of the procedural requirement for specific pleading of certain defensive matters. Under Rule 94 of the Texas Rules of Civil Procedure, parties must plead affirmative defenses such as “payment, release, ... and any other matter constituting an avoidance or affirmative defense.” Tex.R. Civ. P. 94. In a contract dispute, Texas law makes certain requirements of each party, including the specific pleading of excuses for nonperformance:

The burden of proving the happening of a contingency which, by the terms of the contract, would discharge the party from liability, or any default or refusal to perform on the part of the plaintiff that would excuse the performance by the defendant, is on the party who seeks to avoid the contract or excuse a failure to perform it on that ground. As a general rule there must be specific pleading of excuses for nonperformance.

Howell v. Kelly, 534 S.W.2d 737, 740 (Tex.Civ.App.-Houston [1st Dist.] 1976, no writ) (citations omitted).

An affirmative defense is defined as “a denial of the plaintiffs right to judgment even if the plaintiff establishes every allegation in its pleadings.” Bracton Corp. v. Evans Constr. Co., 784 S.W.2d 708, 710 (Tex.App.-Houston [14th Dist.] 1990, no writ). An affirmative defense allows the defendant to introduce evidence to establish an independent reason why the plaintiff should not prevail; it does not rebut the factual proposition of the plaintiffs pleading. Heggy v. Am. Trading Employee Ret. Account Plan, 123 S.W.3d 770, 778 (Tex.App.-Houston [14th Dist.] 2003, pet. denied). All affirmative defenses are waived when the defendant files only a general denial, and, absent trial by consent, failure to plead a matter of affirmative defense will preclude a defendant from asserting it. Bracton Corp., 784 S.W.2d at 710.

In this case, SCCI’s reliance on nonpayment from the owner as a basis for non-liability under the contract is an affirmative defense under Texas Rule of Civil Procedure 94. SCCI’s original answer contained only a general denial and did not enumerate any specific affirmative defenses. At trial, SCCI did not contest the fact that it owed appellant for its completed work and for retainage; however, SCCI argued that it was not legally required to pay appellant. SCCI’s trial counsel’s opening remarks included the following:

It is not a fact of [SCCI] not wanting to pay [appellant], but indeed the subcontracted money was never paid to [SCCI] by the Owner. And therefore, pursuant to the terms of the contract on them face we have no legal obligation to pay this subcontractor unless we are paid by the Owner of the property, and that’s specific in the contract terms which we will go over. That’s why we’re not disputing how much the gentleman is owed, anything like that.

During the trial, appellant’s counsel properly objected when SCCI’s counsel attempted to introduce evidence of: 1) the contract language delaying payment of the subcontractor until the contractor had been paid; and 2) the fact that the contractor had not been paid by the owner. The trial judge overruled both objections. SCCI’s counsel did not request a trial amendment of its original answer. We therefore hold that the trial court erred in admitting the evidence. Appellant’s second issue is sustained.

No Evidence

In his fourth issue, appellant challenges the sufficiency of the evidence to support the trial court’s findings of fact nine, ten, and eleven. In his fifth issue, appellant argues that the trial court erred in failing to award him his retainage. As a result of our sustaining appellant’s second issue above, we agree with both contentions.

A trial court’s findings of fact are reviewed for sufficiency of the evidence under the same legal standards as are applied to the review of jury verdicts. Ortiz v. Jones, 917 S.W.2d 770, 771 (Tex.1996) (per curiam). We utilize the normal standards of review when considering a no-evidence challenge. See Minyard Food Stores, Inc. v. Goodman, 80 S.W.3d 573, 577 (Tex.2002). A no-evidence point will be sustained when there is a complete absence of evidence of a vital fact; the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; the evidence offered to prove a vital fact is no more than a mere scintilla; or the evidence conclusively establishes the opposite of the vital fact. Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 903 (Tex.2004).

Here, the Texas Rules of Civil Procedure generally, and Rule 94 specifically, prevent us from giving weight to the only evidence offered to prove a vital fact, that is, SCCI’s affirmative defense that the contract did not allow for appellant to be paid until SCCI had been paid by the owner. Thus, there is no evidence to support the trial court’s findings of fact nine, ten, and eleven. Without this evidence, a careful review of the record shows that there is no evidence controverting appellant’s prima facie case that SCCI owes appellant $40,300.11 for unpaid invoices and $22,121.00 for retainage. Therefore, appellant established its entitlement to the retainage as a matter of law. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex.2001) (per curiam). Accordingly, appellant’s fourth and fifth issues are sustained.

Attorney’s Fees

In his sixth issue, appellant argues that the trial court erred in failing to find the amount of reasonable attorney’s fees for plaintiffs counsel. Section 38.001 of the Civil Practice and Remedies Code allows for the recovery of reasonable attorney’s fees if the claim is for, among other things, a written contract. Tex. Civ. Prac. & Rem.Code Ann. § 38.001(8) (Vernon 2003). Under Texas law, the award of fees to a plaintiff recovering on a valid contract claim is mandatory under Section 38.001 if there is proof of the reasonableness of attorney’s fees. Budd v. Gay, 846 S.W.2d 521, 524 (Tex.App.-Houston [14th Dist.] 1993, no writ); see also Caldwell & Hurst v. Myers, 714 S.W.2d 63, 65 (Tex.App.-Houston [14th Dist.] 1986, writ ref'd n.r.e.). While a trial court has the discretion to set the amount of an attorney’s fees, it does not have the discretion to deny the fees altogether if they are proper under Section 38.001. Budd, 846 S.W.2d at 524. It is presumed that usual and customary attorney’s fees are reasonable; however, this presumption may be rebutted. Id.

The cause of action in this case was based on a written contract between appellant and SCCI. In its original petition, appellant requested an award of reasonable attorney’s fees. At trial, appellant’s counsel, Ron Ramey, testified that, given his hourly rate, the amount of work he had performed, and the amount of work he expected to perform subsequent to the trial, the amount of his reasonable fees would be $5,758.50. Ramey introduced as an exhibit the bill for his total legal services up to that point in the trial and also testified that a reasonable amount for possible appeals to the court of appeals and the supreme court would be $2,250 for each level of appeal. SCCI’s counsel made no objection to Ramey’s exhibit and it was admitted by the court. The only question on SCCI’s cross-examination of Ramey regarded the speculative nature of the estimates for the amounts for appeals in the case; appellee’s counsel did not question the reasonableness of Ramey’s fees, and he did not introduce any rebuttal evidence.

In findings of fact numbers twelve and thirteen, the trial court found the amount of reasonable appellate attorney’s fees, but did not include an amount of fees necessary for trial. The amount found by the trial court for appeals to the court of appeals and the supreme court identically matched the amount estimated by Ramey at trial, that is, $2,250 for each level of appeal. In its conclusions of law numbers six and seven, the trial court found that appellant was not entitled to recovery from SCCI and that it should “take-nothing” on its claims. We find that the trial court was required to find an amount for reasonable attorney’s fees. Budd, 846 S.W.2d at 524. Although the trial court did find appellate attorney’s fees, we find that its failure to award fees for appellant’s counsel’s trial work amounts to an improper denial under Section 38.001. Id. Appellant’s sixth issue is sustained.

Having sustained appellant’s issues two, four, five, and six, we reverse the judgment of the court below. Because of our disposition, we need not discuss appellant’s first and third issues. We reverse the judgment of the trial court, render judgment in favor of appellant in the amount of $62,421.11, and remand the case to the trial court for entry of a new judgment consistent with this opinion, including a finding of the total amount of attorney’s fees to be awarded to appellant and all such pre-and post-judgment interest as may be required by law.

      . Retainage is money withheld by contractors from subcontractors’ payment on construction projects. The money is withheld as a good-faith incentive for subcontractors to complete the job and is paid upon completion of a project. See www.burger.com/ret-nage.htm.

      . Ramey testified that he had already performed $4,183.50 worth of work and estimated that he would perform another $1,575.00 in the trial portion of the case.