text:
    In re TIG INSURANCE COMPANY.
    No. 09-05-253 CV.
    Court of Appeals of Texas, Beaumont.
    Submitted June 27, 2005.
    Decided Aug. 11, 2005.

      Robert A. Shults, Jacob A. DeLeon, Ellen E. Slavin, McFall, Sherwood & Breit-beil, PC, Houston, for relator.
    Peter T. Martin, Martin Keener Mason Stutz, LLP, Dallas, Timothy W. Ferguson, The Ferguson Firm, Beaumont, for real parties in interest.
    Before GAULTNEY, KREGER and HORTON, JJ.
   OPINION

PER CURIAM.

This dispute involves discovery requests submitted in an insurance coverage case between Henry C. Beck Company (Beck) and TIG (formerly known as Transamerica Insurance Company). Beck is a construction company, and is a defendant in several personal injury suits in which it is alleged that Beck is liable for damages due to its exposing claimants to asbestos between 1960 and 1990. Beck alleges that the suits claiming asbestos-related injuries have been filed in Texas, and elsewhere. In this suit, Beck sued TIG and four other insurance carriers that allegedly provided general liability coverage to Beck between 1960 and 1990. Beck alleged TIG provided commercial liability coverage from November 1, 1969 to November 1, 1972. Through its suit, Beck sought damages for breach of contract, Insurance Code violations, and declaratory relief.

Beck served a request to produce on TIG pursuant to Tex.R. Crv. P. 192.3(b). Through its request, Beck requested documents from TIG for a twenty-six year period during which some of the asbestos claimants that sued Beck might have been exposed to asbestos. Beck also requested documents that reflected TIG’s position pertaining to construing policies TIG had issued since TIG’s inception in 1911. TIG timely filed objections to all of the requests, including objections to most of the requests on the basis that they were overly broad.

Relator TIG filed a petition for a writ of mandamus complaining of an order overruling TIG’s objections to Beck’s 113 requests to produce and the trial court’s award of $10,000 in attorney’s fees against TIG. At the hearing on objections, Judge Gary Sanderson overruled all of TIG’s objections, and ordered production to all of the 113 requests as propounded, and without modification. Therefore, we apply the law to the requests as propounded by Beck, and review the rulings of the trial court on TIG’s objections to determine whether the trial court followed and applied settled law regarding discovery.

On multiple occasions in the past sixteen years, the Texas Supreme Court has addressed issues concerning overly broad discovery. The principles of those cases that we apply to resolving this discovery dispute are:

(1) Requests to produce must specify the items to be produced or inspected with reasonable particularity. Tex.R. Civ. P. 196.1(b); Loftin v. Martin, 776 S.W.2d 145, 148 (Tex.1989)(orig.proceed-ing);
(2) Discovery may not be used as a fishing expedition. K Mart Corp. v. Sanderson, 937 S.W.2d 429, 431 (Tex.1996)(orig.proceeding); Dillard Dep’t Stores, Inc. v. Hall, 909 S.W.2d 491, 492 (Tex.1995)(orig.proceeding); Texaco, Inc. v. Sanderson, 898 S.W.2d 813, 814 (Tex.1995)(orig.proceeding);
(3) Requests must be tailored to include only matters relevant to the case. In re American Optical Corp., 988 S.W.2d 711, 713(Tex.1998)(orig.proceeding);
(4) Discovery orders “requiring document production from an unreasonably long period or from distant and unrelated locales” are impermissibly overbroad and are subject to correction by mandamus. In re CSX Corp., 124 S.W.3d 149, 152 (Tex.2003)(orig.proeeeding);
(5) To discover insurance policies, the proponent of the discovery must show that the policy is applicable to a potential judgment. In re Dana Corp., 138 S.W.3d 298, 301 (Tex.2004)(orig.proceeding); and
(6) To determine whether information beyond the policy is discoverable in a particular case, “courts must ascertain if the information is discoverable under Rule 192.3(a)’s general scope-of-discovery test.” Id. at 303; see also Tex.R. Civ P. 192.3(a).

All but a few of the discovery requests propounded by Beck suffer from one to four inherent problems. First, the requests are not restricted to the policy years in which TIG allegedly issued policies to Beck, and as a result many of the requests are overly broad on their face under Texas discovery rules. Second, there was no evidence to demonstrate that TIG might have liability under any of the policy years for which it was requested to produce policies because there was no showing that individual asbestos claimants that filed suit against Beck alleged they were exposed to asbestos during any of the three years that TIG provided general liability coverage to Beck. Third, many of the documents or categories of documents are insufficiently specific to put TIG on fair notice of the documents it was ordered to produce. As a result of these three problems, a fourth problem arises with respect to many of the requests because the trial court could not have engaged in the required Rule 192.3 scope-of-discovery analysis to determine whether the material requested by Beck was reasonably calculated to lead to the discovery of admissible evidence.

We list the following requests to produce propounded by Beck to TIG as examples:

Request for Production No. 1. Copies of each policy of insurance issued by Defendant TIG to Beck from 1960 to 1986 including any changes, renewals, or endorsements.
Request for Production No. 6. All documents including but not limited to indexes, billing records, account records, policy lists, customer lists, insured lists and/or memorandums that in any way reference and/or provide evidence of the existence of a policy of insurance issued by Defendant TIG to Beck from 1960 to 1986. This includes CGL, workman’s comp, primary and excess policies of insurance.
Request for Production No. 7. Copies of each policy providing insurance coverage to Beck and issued by carriers other than Defendant TIG from 1960 to 1986 including any changes, renewals, or endorsements.
Request for Production No. 10. All manuals, written policies, written guidelines, memorandums and/or written procedures of Defendant TIG written prior to the date that you anticipated litigation with Beck.
Request for Production No. 11. All manuals, written policies, written guidelines, memorandums and/or written procedures of Defendant TIG that address asbestos litigation and written prior to the date that you anticipated litigation with Beck.
Request for Production No. 20. All agreements that you have to split the costs of defense of any asbestos litigation in Texas with other carriers where such agreement was reached prior to a settlement of the asbestos claim at issue.
Request for Production No. 22. All agreements that you have to split the costs of defense of Beck with other carriers in any asbestos litigation outside of Texas.
Request for Production No. 25. All communications and/or correspondence between you and Beck regarding the Subject Policy or Policies.
Request for Production No. 27. All communications and/or correspondence between you and any other party besides Beck or other carriers regarding the Subject Policy or Policies.
Request for Production No. 32. If Defendant TIG contends that it does not owe any duty to defend Beck under the subject Policy or Policies, all documents that Defendant TIG contends supports the contention or allegation that Defendant TIG does not owe Beck a duty to defend in personal injury asbestos claims and lawsuits asserted against Beck under the Subject Policy or Policies. This Request seeks documents that are not claimed to be privileged. If Defendant TIG is withholding documents as privileged, Beck requests that Defendant TIG provide a privilege log.
Request for Production No. 39. All documents or correspondence from insureds addressing a rejection of a reservation of rights letter issued by Defendant TIG.
Request for Production No. 45. Copies of all lawsuits in which Defendant TIG is a party and which deal with insurance coverage under a CGL primary insurance policy.
Request for Production No. 48. Copies of all agreements between Defendant TIG and its insured in which the insured agrees to accept an allocation of the costs of defense based on a “time on the risk” allocation in connection with Texas asbestos litigation.
Request for Production No. 56. Copies of any and all requests by a Texas insured tendering an asbestos lawsuit to Defendant TIG and seeking a defense.
Request for Production No. 71. Any settlement agreements to which Defendant TIG is a party pertaining to coverage in connection with asbestos litigation.
Request for Production No. 85. All reservation of rights letters sent by Defendant TIG in asbestos personal injury cases from 1986 to the present.
Request for Production No. 97. All reports, studies, memorandums and similar documents that discuss, address and/or pertain to the average cost for defending an asbestos claim in Texas.
Request for Production No. 107. All correspondence with other insurance companies including but not limited to other named Third Party Defendant carriers regarding joint and several duty to defend in asbestos litigation in Texas.

The breadth of these requests was further expanded by the definitions section of the request. For example, the term “you” and “your” was defined to mean “Defendant TIG and/or any agent, partner, employee and/or other representative of Defendant TIG and/or any merged, consolidated, or acquired affiliate, predecessor and/or successor.” “The Subject Policy or Policies” was likewise broadly defined to include, among other things, “each and every policy of insurance issued by this Defendant to Beck from 1960 to 1986.”

Our selection of these requests is intended to demonstrate the nature of the requests served by Beck. Relator TIG argues that discovery request numbers 1-29, 37-57, 59-99, and 102-109 are overly broad because they are not limited to the three year time period asserted to be the period in which TIG issued policies to Beck. TIG asserts that the requests should have been narrowed by the trial court to the type of insurance, a reasonable time period, the relevant location, and to relevant materials that might be admissible as evidence. TIG argues that Judge Sanderson’s order requires it to produce every manual, every written guideline, and every written procedure ever generated by TIG between 1911, the date TIG asserts is the date it was founded, and the filing of Beck’s suit in March 2004. TIG also argues that the requests would require it to produce every policy of insurance issued by TIG to Beck between 1960 and 1986, whether the policy was relevant to an asbestos claim, or not, and whether or not the policies were related to the underlying asbestos claimants’ suits.

We agree the requests to which TIG lodged overly broad objections were facially overly broad. In Dillard Department Stores, Inc. v. Hall, the Texas Supreme Court held that a request for Dillard to perform a search for documents covering a five year time period and twenty states was overly broad as a matter of law. 909 S.W.2d at 492. In Texaco, Inc. v. Sanderson, 898 S.W.2d at 815, the Supreme Court held that a request for all safety and toxicology documents written by Texaco’s safety director during time periods when plaintiffs did not work on the premises was likewise overly broad. In In re American Optical Corp., 988 S.W.2d at 713, an asbestos case, a trial court ruling to turn over every document ever produced relating to asbestos for a fifty year period was ruled impermissibly broad.

The Supreme Court, in In re CSX Corp., 124 S.W.3d at 153, held that an interrogatory requiring that a company identify all safety employees who worked there for a thirty year period was impermissibly broad. The Supreme Court stated, “A central consideration in determining over-breadth is whether the request could have been more narrowly tailored to avoid including tenuous information and still obtain the necessary, pertinent information.” Id. As reflected by the Texas Supreme Court rulings on similarly broad requests, the requests propounded by Beck would likewise be held impermissibly broad. Rather than invite the Supreme Court to answer the issue yet again, we agree that these requests violated settled discovery rules because they were overly broad.

We next evaluate whether the requests could have been more narrowly tailored. The requests could have been narrowed to the three year time period during which TIG insured Beck. Although narrowing the requests to a three year period would not have eliminated the requirement that Beck show that TIG’s coverage was triggered by an asbestos claim that overlapped TIG’s coverage periods for Beck, a date restriction would have largely reduced the problem with the overly broad nature of Beck’s requests.

It is possible that the relevant dates might exceed, to a limited degree, the dates that TIG issued policies. Nevertheless, the trial court has a duty to make an effort to impose reasonable discovery limits. In re American Optical Corp., 988 S.W.2d at 713. To the extent that some documents might be relevant beyond the years TIG issued policies, the time limits placed on discovery must be narrowed so the products of such a search are reasonably calculated to lead to admissible evidence. We find Beck’s requests could have, and should have been more narrowly tailored.

Finally, before a party is required to produce, and after determining the years relevant to the case and controversy, a trial court is required to evaluate whether the documents requested meet Tex.R. Civ. P. 192.8(a)’s scope-of-discovery test. In re Dana Corp., 138 S.W.3d at 301.

[0]ur rules require that a threshold showing of applicability must be made before a party can be ordered to produce multiple decades of insurance policies; only those insurance policies ‘under which any person may be hable to satisfy part or all of a judgment’ are subject to discovery. Tex.R. Civ. P. 192.3(f); see also In re CSX, 124 S.W.3d at 152.

Id.

A scope-of-isomer analysis is not possible without first determining which policy years were actually in issue. Beck did not show the trial court that all three years in which TIG allegedly provided coverage were involved, or provide any evidence to show the time periods at issue in this case. Beck likely could have made the necessary threshold showing by providing pleadings in the underlying cases to demonstrate that the years alleged by the asbestos claimants in the suits overlapped with the years TIG issued policies, or produced other evidence to reflect the time periods involved in the underlying asbestos claims triggered TIG’s alleged coverage dates. However, a discovery request for insurance policies during periods for which no asbestos claimants were asserting claims against Beck, or for policies that did not arguably cover the claims, would be overly broad.

On this record, there was no evidence showing when the underlying asbestos claimants asserted that Beck exposed them to asbestos. It is the discovery proponent’s burden to demonstrate that the requested documents fall within the scope-of-discovery of Rule 192.3. See In re Dana Corp., 138 S.W.3d at 302(holding that because plaintiff failed to establish applicability of policies issued between 1930 and 1945, a discovery order requiring the production of those policies was overly broad).

With respect to Requests for Production Numbers 32-36, Beck propounded requests that essentially requested TIG to produce all documents supporting its contentions justifying its position to deny Beck’s claims. TIG objected to these requests on the basis that they were “beyond the scope” of discovery and were “impermissible request[s] that TIG marshal its evidence.” However, TIG did not expressly state in its objections that these five requests were “overly broad,” “vague,” or “ambiguous.”

The Supreme Court discussed a similar request to produce in Loftin v. Martin, 776 S.W.2d at 148, in which a party requested that a worker’s compensation carrier produce all documents that supported its allegations. In Loftin, the Supreme Court stated:

Loftin has requested all evidence that supports Lumbermens’ allegations. The request does not identify any particular class or type of documents but it is merely a request that Loftin be allowed to generally peruse all evidence Lum-bermens might have. We hold that such request was vague, ambiguous, and overbroad and that the trial court was within its sound discretion in sustaining Lumbermens’ objection. No one seeks to deny Loftin’s right to see evidence against him, but he must formulate his request for production with a certain degree of specificity to allow Lumber-mens to comply.

Id. at 148.

Tex.R. Civ. P. 196.1(b) provides, “The request [to produce] must specify the items to be produced or inspected, either by individual item or by category, and describe with reasonable particularity each item and category.” Beck’s Requests to Produce Numbers 82-36 fail to sufficiently specify with reasonable particularity the documents to be produced. Because Beck’s requests were not reasonably specific, the requests were improper because they were beyond the scope of discovery of the rules. The problem created by a trial court’s order compelling production of documents in response to a vague request is that the responding party is unlikely to know what documents are required to be produced. TIG’s objections to this group of requests on the basis that the requests were beyond the scope of discovery requiring TIG to marshal its evidence was sufficient to place the court on notice of the objectionable nature of these requests. We hold that the trial court erred in overruling TIG’s objections to these requests.

The burden to propound discovery complying with the rules of discovery should be on the party propounding the discovery, and not on the courts to redraft overly broad discovery so that, as re-drawn by the court, the requests comply with the discovery rules. Additional problems are created by “battlefield surgery” when a court attempts to deal with voluminous requests, many of which suffer from overbreadth. In re Sears, Roebuck and Co., 128 S.W.3d 573, 578(Tex.App.Houston [14th Dist.] 2003, orig. proceeding). Although we could remand Beck’s requests to the trial court and request that the trial court attempt to narrow the requests, where the discovery as drafted by a party involves over 100 requests, many of which are clearly outside the bounds of proper discovery, we decline to transfer the burden of drafting proper discovery from the party that drafted it in the first place and place it on the courts. We believe the better practice under these circumstances is to direct the trial court to enter the ruling that should have been entered at the hearing. See Tex.R.App. P. 52.8(c).

We next address Request to Produce Numbers 30-31, 58, 100-101, and 110-113. TIG did not object that these requests were overly broad, but asserted various other objections.

In Request to Produce Number 30, Beck requested TIG’s file regarding its decision not to provide Beck a defense in the underlying asbestos suits. The request, as worded, specifically excludes privileged documents, but did request a privilege log in the event that privileged documents were withheld. TIG objected that the request was vague and ambiguous, and subject to the objection, indicated that it would make the documents available. We hold that the trial court acted within its discretion to order TIG to comply with the request.

In Request to Produce Number 31, Beck requested that TIG produce all manuals, written policies, written procedures, memorandums and/or written guidelines it reviewed in determining whether or not to provide a defense to Beck in the underlying asbestos suits. The request, as worded, specifically excludes privileged documents, but did request a privilege log in the event that privileged documents were withheld. TIG objected that the request was vague and ambiguous, and subject to the objection, indicated that it would make the documents available. We hold that the trial court acted within its discretion to order TIG to comply with the request.

In Request to Produce Number 58, Beck requested that TIG produce all documents identified and described in its answers to interrogatories. TIG filed no objection, and indicated it would make any responsive documents available. We hold that the trial court acted within its discretion to order TIG to comply with the request.

In Request to Produce Numbers 100 and 101, Beck requested all reports, studies, memoranda, and similar documents that address or pertain to actual or projected costs of defense for Beck in the pending or future asbestos litigation. TIG filed no objection, and indicated it would make any responsive documents available. We hold that the trial court acted within its discretion to order TIG to comply with the request.

In Request to Produce Number 110, Beck requested TIG produce all lists of documents relating to or identifying Beck’s insurance coverage, whether from TIG or others, for asbestos claims prior to 1986. TIG objected to producing documents that were attorney work product, but that subject to such privilege TIG stated it would produce documents, if any were available, at a reasonable time and place. At the hearing, Beck failed to demonstrate that it complied with Tex.R. Crv. P. 193.3(b), that provides, “After receiving a response indicating that material or information has been withheld from production, the party seeking discovery may serve a written request that the withholding party identify the information and material withheld.” Further, Tex.R. Civ. P. 193.2(f) provides:

A party should not object to a request for written discovery on the grounds that it calls for production of material or information that is privileged but should instead comply with Rule 193.3. A party who objects to production of privileged material or information does not waive the privilege but must comply with Rule 193.3 when the error is pointed out.

Because Beck did not follow the procedure regarding obtaining information potentially subject to the attorney work product privilege, the question of whether a work product privilege existed as to Request to Produce Number 110 was not properly before the trial court. In Walker v. Packer, 827 S.W.2d 833 (Tex.1992)(orig.proceeding), with regard to a claim of privilege, the Texas Supreme Court stated:

[A] party will not have an adequate remedy by appeal when the appellate court would not be able to cure the trial court’s discovery error. This occurs when the trial court erroneously orders the disclosure of privileged information which will materially affect the rights of the aggrieved party, such as documents covered by the attorney-client privi-lege_ As we noted in Crane [v. Tunks, 160 Tex. 182, 190, 328 S.W.2d 434, 439 (1959) ]: “After the [privileged documents] had been inspected, examined and reproduced ... a holding that the court had erroneously issued the order would be of small comfort to rela-tors in protecting their papers.”

Walker, 827 S.W.2d at 843 (citations omitted).

Additionally, the Motion to Compel and the notice of the hearing on the Motion to Compel did not indicate that the attorney work product privilege assertions were to be the subject of the Motion to Compel hearing. At the hearing, no party addressed the specific subject of the attorney work product privilege, and the hearing focused on whether TIG was responsible for the objections filed by its former counsel.

The rules of procedure contemplate that the parties will itemize the documents claimed to be privileged, and then produce evidence regarding the documents claimed privileged if, based on the documents withheld, the proponent of the discovery desires to pursue an attempt to obtain the documents. See generally In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218 (Tex.2004) (orig.proceeding)(demonstrating the procedure followed to itemize privileged documents). It is clear that the procedures outlined by the rules regarding attorney work product privilege were not followed by the parties in this instance.

Under the record presented here, the issue of attorney work product was not properly before the trial court. The parties may choose to proceed pursuant to Rules 193.3 and 193.4 on Request to Produce Number 110 if they desire to do so. See In re Shipmon, 68 S.W.3d 815, 822 (Tex.App.-Amarillo, 2001, orig.proceeding). We hold that the trial court erred in overruling the objection to Request to Produce Number 110.

In Request to Produce Number 111, Beck sought to require TIG to produce reports and other tangible documents from any of its consulting experts, if such information has been reviewed by a testifying expert. TIG objected that this request exceeded the parameters of expert discovery under the rules of discovery. We do not agree that TIG was correct in this regard, since information regarding consulting expert discovery is not governed exclusively by Tex.R. Civ. P. 195.1. TIG made no objection pursuant to Tex.R. Civ. P. 192.4(a) that the discovery accomplished by Request to Produce Number 111 would unreasonably duplicate information that would be disclosed regarding consulting experts under Tex.R. Civ. P. 194.2(f)(4)(A), requiring disclosure of all documents and reports provided to any testifying expert. In the absence of any objection other than the one lodged by TIG here, we hold that the trial court acted within its discretion to order TIG to comply with the request.

In Request to Produce Number 112, Beck requested TIG produce all photographs, films, slides, videotapes or other visual reproductions related to the lawsuit. TIG objected that the request invaded the attorney work product doctrine. For the same reasons discussed with respect to Request to Produce Number 110, we hold that the question of whether a work product privilege existed as to Request to Produce Number 112 was not properly before the trial court, and the parties may choose to proceed, if they desire to do so, pursuant to Rules 193.3 and 193.4.

In Request to Produce Number 113, Beck asked TIG to produce all tangible evidence that TIG intended to introduce at trial. TIG objected that the request invaded the attorney work product doctrine and impermissibly required TIG to marshal its evidence. For the same reasons discussed with respect to Request to Produce Numbers 32-36, we hold the request fails to identify the documents with reasonable particularity to comply with Rule 196.1(b). We hold that the trial court erred in overruling TIG’s objection under the circumstances presented on this record.

In order to show entitlement to mandamus relief, TIG must show that it has no adequate appellate remedy. Having to produce overbroad discovery that is almost unlimited in time, to produce in response to vague requests that are not reasonably specific, or to produce attorney work product as a consequence of a hearing where the attorney work product privilege was not properly before the court would result in time, labor, and money spent on improper production that could not be retrieved. To the extent attorney work product is produced, the information learned by the other party cannot, as a practical matter, be extracted even if the documents are subsequently retrieved. We hold that there is no adequate remedy by appeal from the trial court’s order that would require TIG to produce overbroad discovery not sufficiently limited in time, to produce in response to an overly vague request and to produce attorney work product. See In re CSX Corp., 124 S.W.3d at 153; Crane v. Tunks, 160 Tex. 182, 190, 328 S.W.2d 434, 439 (1959).

Finally, TIG complains that the trial court abused its discretion in ordering that TIG pay $10,000 in attorney’s fees within ten days of the signing of the order on the motion to compel. TIG requests that we vacate the award, or that we abate the award until the entry of a final judgment. The argument centers on the fact that its former trial attorney failed t get express approval from TIG to file objections, and therefore, TIG argues, discovery sanctions should not be imposed upon TIG for any problems that might have been created by its former trial counsel’s responses to discovery filed on its behalf.

The $10,000 sanction award, made payable within ten days, would generally not be reviewed on mandamus because TIG has an adequate remedy by appeal. Tex.R. Civ. P. 215.3 provides, in pertinent part, “Such order of sanction shall be subject to review on appeal from the final judgment.” See also Braden v. Downey, 811 S.W.2d 922, 929 (Tex.1991)(orig.proeeeding) (mandamus is proper for review of a sanction only when it terminates or inhibits the presentation of the merits of a party’s claims). However, where sanctions are imposed, the trial court should delay the payment of sanctions until the termination of the lawsuit, or make a written finding that the payment of sanctions would not obstruct the ability of the party being sanctioned to defend the suit. Braden, 811 S.W.2d at 929 (citations omitted); In re Lavernia Nursing Facility, Inc., 12 S.W.3d 566, 572(Tex.App.-San Antonio 1999, orig proceeding)($10,000 sanction payable prior to conclusions remanded for necessary finding that sanction would not preclude defendant’s ability to defend case). No written findings regarding the fact that the award would not obstruct TIG’s ability to defend were made by the trial court, nor can we determine whether the sanctioned conduct was related to the rulings of the trial court that we have sustained.

Since the trial court did not make the requisite finding, we remand the issue involving the sanction award to the trial court to give it an opportunity to modify its order in accordance with Braden. The trial court is not prohibited from revisiting the issue of whether discovery sanctions are justified with the benefit of the hindsight of this proceeding.

In summary, we hold that discovery request numbers 1-29, 32-57, 59-99, 102-109, and 113 were overly broad because they are not appropriately limited in time and subject matter, or did not put the defendant on notice of the document to be produced with reasonable specificity, or were not shown to be within the scope-of-discovery as it relates to the case and controversy. Accordingly, we conditionally grant mandamus relief, and direct the trial judge to vacate his June 3, 2005 order pertaining to Requests to Produce Numbers 1-29, 32-57, 59-99, 102-109 and 113, and enter an order sustaining TIG’s objections to these requests. Our ruling does not prohibit Beck from propounding requests for production properly tailored to the ease, should it choose to do so.

We further hold that with respect to discovery request numbers 110 and 112, the issue of whether privileged work product documents were requested was not before the trial court under the circumstances of this record. Accordingly, we conditionally grant mandamus relief, and direct the trial judge to vacate his June 3, 2005 order pertaining to request numbers 110 and 112. The parties may choose to proceed regarding these requests pursuant to Tex.R. Civ. P. 193.3 and 193.4.

We further hold the trial court did not abuse its discretion when it ordered the production of documents in response to discover request numbers 30-31, 58, 100-101, and 111. We deny the petition for writ of mandamus with respect to this portion of the trial court’s order.

Finally, we decline to vacate the trial court’s order granting $10,000 in attorney’s fees to Beck at this time, but remand the sanctions award to the trial court to review our rulings in this opinion. However, in any event, the trial court should have delayed the payment of sanctions until the termination of the lawsuit, or made a written finding that the payment of sanctions would not obstruct TIG’s ability to defend the lawsuit. We conditionally grant the petition in part to allow the trial court to modify its order within twenty days of the date of this opinion.

With respect to the relief granted herein, the writ will issue only if the trial court fails to act promptly in accord with this opinion.

WRIT DENIED IN PART; CONDITIONALLY GRANTED IN PART.


source: Caselaw Access Project

author: TERRIE LIVINGSTON, Justice.

license: Public Domain

text:
    Lawton Frederick TYSON a/k/a Lawton F. Tyson, Appellant, v. The STATE of Texas, State.
    Nos. 2-03-375-CR, 2-03-376-CR.
    Court of Appeals of Texas, Fort Worth.
    Aug. 11, 2005.
    Rehearing Overruled Sept. 8, 2005.
    Discretionary Review Refused Dec. 7, 2005.

      Joe L. Sheppard, Burleson, Richard Alley, Fort Worth, for Lawton Frederick Tyson.
    Tim Curry, Criminal Dist. Atty., Charles M. Mallin, Anne Swenson, David M. Curl, Shawn Paschall, and Amy Collum, Asst. Criminal Dist. Attys., Fort Worth, for State.
    PANEL F: LIVINGSTON, GARDNER and WALKER, JJ.
   OPINION

TERRIE LIVINGSTON, Justice.

Appellant Lawton Frederick Tyson a/k/a Lawton F. Tyson appeals from his convictions on one count of aggravated sexual assault of a child under the age of fourteen and five counts of sexual assault of a child under the age of seventeen. In three points, he contends that the trial court reversibly erred by permitting the State to amend the indictment on the day of trial, by granting the State’s motion to cumulate the sentences for each count and each offense, and by charging the jury on counts two through five of the sexual assault offense in the disjunctive. In a fourth point, he contends that his constitutional protection against double jeopardy was violated by being convicted and punished consecutively for offenses occurring in the same criminal episode that constitute a single offense. We affirm as to the aggravated sexual assault and as to count one of the sexual assault, but we reverse and remand for a new trial on counts two through five of the sexual assault.

Background Facts

Police found sexually explicit photographs of children while searching the home of Jeffrey Cissell, an associate of appellant’s. After identifying two of the children in the photographs, the two complainants in this case, police obtained a statement from the girls that appellant had sexually assaulted them. The younger girl, who was twelve at the time of the events, testified at trial that appellant penetrated her sexual organ with his finger more than once. The older girl, who is the older sister of the younger girl and who was fourteen at the time of the events, testified that on one occasion, appellant touched her under her clothing on her bottom, sexual organ, and breast with his hand. He also touched her breast with his penis, put his finger inside her sexual organ, and placed his mouth on her sexual organ. She also testified about another time when appellant touched her on and in her sexual organ with his penis.

Appellant was charged in case number 0870880D with one count of aggravated sexual assault of the younger child by inserting his finger into her female sexual organ on August 15, 1999. In case number 0899697R, the State charged appellant with five counts of sexual assault of the older child: count one alleged that on June 20,1999, appellant caused the sexual organ of the child to contact his sexual organ; counts two through five alleged that on June 10, 1999, appellant caused the child’s sexual organ to contact his mouth, caused the child’s mouth to contact his sexual organ, penetrated the child’s female sexual organ by inserting his finger into it, and caused the child’s sexual organ to contact his sexual organ. The trial court permitted the State to amend the indictment in number 0899697R on the day of trial to change the year of all of the dates to 2000 and to change the dates in counts two through five to June ll. The trial court also permitted the State to amend the date in the indictment in 0870880D to June 15, 2000. Appellant’s counsel told the trial court that she had no objection to the amendment.

The jury convicted appellant in number 0870880D and assessed his punishment at ninety-nine years’ confinement. The jury also convicted appellant in number 0899697R of count one and counts two through five, which were charged disjunc-tively, and assessed appellant’s punishment at twenty years’ confinement on count one and twenty years’ confinement on counts two through five. The trial court’s judgment, however, sentenced appellant to twenty years’ confinement on each of counts two through five. The trial court granted the State’s motion to cumu-late or “stack” the sentences so that the sentences in number 0899697R ran consecutively to the sentence in 0870880D, and the sentences on the different counts in 0899697R ran consecutively to each other.

Amendment of Indictment

In his first point, appellant contends that the trial court reversibly erred and abused its discretion by permitting the State to amend the indictment on the day of trial. When the State asked to amend the indictment, appellant’s counsel affirmatively stated that she had no objection to the amendment and that appellant waived the ten-day notice afforded at the defendant’s request under article 28.10 of the code of criminal procedure. See Tex.Code CRiM. PROC. Ann. art. 28.10(a) (Vernon 1989).

An indictment may not be amended on the day of trial. See State v. Murk, 815 S.W.2d 556, 558 (Tex.Crim.App.1991). But in order to preserve the error for appeal, a defendant must object; otherwise, the error is forfeited. Id.; Hoitt v. State, 30 S.W.3d 670, 674 (Tex.App.-Texarkana 2000, pet. refd); Briones v. State, No. 2-04-00250-CR, 2005 WL 1120018, at *2 (Tex.App.-Fort Worth May 12, 2005, no pet.) (mem.op.) (not designated for publication); see also Hernandez v. State, 127 S.W.3d 768, 772 (Tex.Crim.App.2004) (recognizing that article 28.10(c) provides that indictment or information may not be amended over defendant’s objection as to form or substance if indictment or information charges defendant with additional or different offense or if substantial rights of defendant are prejudiced); Garrett v. State, 161 S.W.3d 664, 669 (Tex.App.-Fort Worth 2005, pet. ref'd) (same). We overrule appellant’s first point.

Propriety of “Stacked” Sentences

Appellant’s second point complains that he was denied due process when the trial court cumulated or “stacked” his sentences without prior notice, either in the indictment or from the trial court prior to its granting the State’s motion to cumu-late. Appellant also appears to argue that the statutes allowing the trial court to cumulate the sentences in this way violate the Apprendi-Blakely-Ring line of cases recently handed down by the United States Supreme Court by increasing the maximum punishment for the offenses without a jury finding. Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004); Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002); Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Appellant does not argue that the stacking order violated a statutory provision. See Tex.Code CRim. PROC. Ann. art. 42.08 (Vernon Supp.2004-05); Tex. Penal Code Ann. § 3.03 (Vernon 2003); see also LaPorte v. State, 840 S.W.2d 412, 415 (Tex. Crim.App.1992) (holding that cumulation order not authorized by statute is in essence a void sentence and any error cannot be waived).

Both the Austin and Waco courts of appeals have held that a defendant is not entitled to prior notice before the trial court “stacks” sentences in accordance with the code of criminal procedure and the penal code. See Millslagle v. State, 150 S.W.3d 781, 784-85 (TexApp.-Austin 2004, pet. dism’d); Miller v. State, No. 10-05-00004-CR, 2005 WL 1654754, at *1 (Tex.App.-Waco July 13, 2005, no pet. h.) (mem.op.) (not designated for publication); see also Tex.Code Crim. Proc. Ann. art. 42.08; Tex. Penal Code Ann. § 3.03(b). Those courts hold that the trial court has discretion to cumulate sentences in almost every case and that the statutes authorizing cumulation do not require notice. See Millslagle, 150 S.W.3d at 784-85; Miller, 2005 WL 1654754, at *1.

We agree with those courts. The plain language of the statutes does not require any prior notice. And the statutes themselves provided appellant notice that “[b]e-cause of the nature of the offenses for which [he] was convicted, the trial court was authorized to cumulate the sentences whether or not the offenses arose out of the same criminal episode.” See Millslagle, 150 S.W.3d at 785; see also Tex.Code Crim. PROC. Ann. art. 42.08; Tex. Penal Code Ann. § 3.03(b).

As to appellant’s Apprendi-Blakely-Ring complaint, “[t]he federal appellate courts have uniformly rejected the contention that Apprendi is violated when a trial court orders the cumulation of sentences which individually lie within the statutory range of punishment but for which the cumulative total exceeds the prescribed statutory maximum for any single offense.” Marrow v. State, 169 S.W.3d 328, 330 (Tex.App.-Waco 2005, pet. filed) (holding that no Apprendi violation shown when trial court cumulated sentences for aggravated sexual assault and indecency with a child when appellant did not dispute that sentence for each count was within statutory range); see, e.g., U.S. v. Davis, 329 F.3d 1250, 1253-55 (11th Cir.), cert. denied, 540 U.S. 925, 124 S.Ct. 330, 157 L.Ed.2d 225 (2003); U.S. v. Chorin, 322 F.3d 274, 278-79 (3d Cir.), cert. denied, 540 U.S. 857, 124 S.Ct. 158, 157 L.Ed.2d 104 (2003); U.S. v. McWaine, 290 F.3d 269, 275-76 (5th Cir.), cert. denied, 537 U.S. 921, 123 S.Ct. 311, 154 L.Ed.2d 210 (2002); U.S. v. Feola, 275 F.3d 216, 218-20 & n. 1 (2d Cir.2001); see also Apprendi, 530 U.S. at 474, 120 S.Ct. at 2354 (“The sentences on counts 3 and 22 have no more relevance to our disposition than the dismissal of the remaining 18 counts”). Some Texas courts have reached the same conclusion but only in unpublished cases. Marrow, 169 S.W.3d at 331; see Peterson v. State, Nos. 01-02-00603-CR, 01-02-00604-CR, 2003 WL 22681607, at *5 (Tex.App.-Houston [1st Dist.] Nov. 13, 2003, pets, refd) (mem.op.) (not designated for publication); Jaramillo v. State, No. 04-01-00846-CR, 2003 WL 21395548, at *2 (Tex.App.-San Antonio June 18, 2003, pet. refd) (not designated for publication). We agree with Marrow, and the federal authority and unpublished state cases cited in Marrow, and hold that the trial court did not violate the Appren-di-Blakely-Ring line of cases when it stacked appellant’s sentences in accordance with article 42.08 and section 3.03(b). We overrule appellant’s second point.

Jury Charge Error

In his third point, appellant complains that the trial court’s charge in number 0899697R, which charged in the disjunctive as to counts two through five of the indictment, but for which the trial court sentenced him to separate twenty-year sentences for each count, essentially amounted to an instructed verdict to find him guilty of all four counts if it found him guilty of only one of the counts.

The trial court’s charge charged the four counts disjunctively; in other words, it instructed the jury that if it found appellant committed any one of the four alleged acts, then it should find appellant guilty of one offense. The State objected to the charge on the ground that section 3.03 “would allow multiple convictions of a same or similar offense committed in the same criminal episode when it’s for an offense of sexual assault.” Appellant’s counsel responded, “[W]e believe it’s charged properly.” The trial court overruled the State’s objection, stating that “the Court views this as one offense of sexual assault alleged on the same day at the same time and this will be four ways of committing the offense of sexual assault.” In other words, the trial court believed that the four counts were simply different methods of committing one offense. The trial court stated that it made its ruling after reading Dalton v. State, 898 S.W.2d 424 (Tex.App.Fort Worth 1995, pets. refd).

The four allegations were pled in the indictment as counts. The term “count” is used to charge a separate offense; a paragraph is a portion of a count and charges a method of committing an offense. Watkins v. State, 946 S.W.2d 594, 601 (Tex.App.-Fort Worth 1997, pet. refd). The substance of the allegation rather than the label it is given determines whether it is a count or paragraph. Id. Although a trial court may submit a disjunctive jury charge and obtain a general verdict when alternate theories involve the commission of the same offense, “separate offenses” may not be submitted to the jury in the disjunctive because of the possibility of a nonunanimous jury verdict. Francis v. State, 36 S.W.3d 121, 124-25 (Tex.Crim. App.2000) (op. on reh’g); Finster v. State, 152 S.W.3d 215, 218 (Tex.App.-Dallas 2004, no pet.). Thus, we must determine whether counts two through five alleged the same or separate offenses.

In Dalton and Watkins, this court affirmed aggravated sexual assault convictions in which the indictments alleged the performance of different acts labeled as “counts” and the trial court charged the jury in the disjunctive as to each “count,” thus allowing the jury to return a general verdict. Watkins, 946 S.W.2d at 600-02; Dalton, 898 S.W.2d at 426-27. In both of these cases, the State conceded that the counts were actually mislabeled paragraphs. Watkins, 946 S.W.2d at 601; Dalton, 898 S.W.2d at 426. But since these cases were decided, the court of criminal appeals has held that in a prosecution for aggravated sexual assault of a child based on different acts occurring in the same transaction, each act is a separate violation of the child under section 22.021 of the penal code and constitutes a separate offense. Lopez v. State, 108 S.W.3d 293, 303 (Tex.Crim.App.2003); Vick v. State, 991 S.W.2d 830, 833 (Tex.Crim.App.1999); Hendrix v. State, 150 S.W.3d 839, 846 (Tex.App.-Houston [14th Dist.] 2004, pet. ref'd).

We have found no opinions addressing whether the different acts described in the sexual assault statute, penal code section 22.011(a)(2), constitute separate violations and, thus, separate offenses even if occurring during the same transaction, or whether the acts describe “one offense capable of being committed under alternate theories.” Finster, 152 S.W.3d at 218. But a review of both section 22.021(a)(1)(B) and section 22.011(a)(2) shows that the same types of specific conduct that are described in section 22.021(a)(1)(B) are described in section 22.011(a)(2). Tex. Penal Code Ann. §§ 22.011(a)(2), 22.021(a)(1)(B) (Vernon Supp.2004-05). In addition, the acts in section 22.011(a)(2) are described in separate sections, which are separated by the word “or,” the same as the acts in section 22.021(a)(1)(B). See Vick, 991 S.W.2d at 832-33. Thus, we conclude that the different types of conduct described in section 22.011(a)(2) constitute separate offenses even if the different types of conduct occur in the same transaction except in cases in which one of the acts would necessarily be subsumed by another, such as contact being subsumed by penetration. See Patterson, 152 S.W.3d at 92; Hendrix, 150 S.W.3d at 847-48 (holding that charges submitting instances of penetration and contact occurring in the same transaction did not deprive the appellant of a unanimous verdict because “all of the jurors who believed there was penetration necessarily also believed that antecedent contact had occurred”).

Here, counts two through five each alleged different, specific instances of conduct described separately in section 22.011(a)(2). Tex. Penal Code Ann. § 22.011(a)(2). None of the alleged offenses is subsumed within another. Thus, we conclude that the trial court erred in submitting counts two through five in the disjunctive.

Because appellant did not object at trial to the error in the court’s charge, we must decide whether the error was so egregious and created such harm that appellant did not have a fair and impartial trial — in short, that “egregious harm” has occurred. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985) (op. on reh’g); see Tex.Code CRiM. PROC. Ann. art. 36.19 (Vernon 1981); Hutch v. State, 922 S.W.2d 166, 171 (Tex.Crim.App.1996).

In making this determination, “the actual degree of harm must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole.” Almanza, 686 S.W.2d at 171; see generally Hutch, 922 S.W.2d at 172-74. The purpose of this review is to illuminate the actual, not just theoretical, harm to the accused. Almanza 686 S.W.2d at 174. Egregious harm is a difficult standard to prove and must be determined on a case-by-case basis. Ellison v. State, 86 S.W.3d 226, 227 (Tex.Crim.App.2002); Hutch, 922 S.W.2d at 171.

Because four separate offenses were submitted as one, it is impossible to tell whether the jury unanimously found all of the facts for each or even one of the offenses. Thus, it is possible that the jury returned a nonunanimous verdict. See Hendrix, 150 S.W.3d at 849 (holding that court’s erroneous disjunctive charge on one of several indictments against the appellant was harmful error under Almanza standard because the erroneous charge made it possible for the jury to return a nonunanimous verdict). Moreover, in this case, the trial court’s judgment sentenced appellant to twenty years’ confinement on each of counts two through five. Therefore, although the jury assessed only one twenty-year sentence as to all four counts, the trial court entered a separate twenty-year sentence as to each count. Consequently, we conclude that the charge error constituted “egregious harm.” We sustain appellant’s third point.

Conclusion

Having overruled appellant’s first and second points and sustained his third, we affirm the trial court’s judgments in number 0870880D and on count one in number 0899697R. We reverse the trial court’s judgment in number 0899697R as to counts two through five and remand for a new trial on those counts in accordance with this opinion.

      . They also changed the offense from sexual assault of a child under fourteen to sexual assault of a child under seventeen.

      . The State contends appellant should be es-topped from complaining about any error in the jury charge because appellant "actively opposed the State’s attempt ... to fix the charging mistake” and thus invited error. But the invited error rule applies when the trial court submits the erroneous instruction at an appellant’s request. See Turner v. State, 87 S.W.3d 111, 117 (Tex.Crim.App.2002), cert. denied, 538 U.S. 965, 123 S.Ct. 1760, 155 L.Ed.2d 519 (2003); Prystash v. State, 3 S.W.3d 522, 531 (Tex.Crim.App.1999), cert. denied, 529 U.S. 1102, 120 S.Ct. 1840, 146 L.Ed.2d 782 (2000); Quattrocchi v. State, 173 S.W.3d 120, 122, No. 02-04-00421-CR, 2005 WL 1792034, at *5 (Tex.App.-Fort Worth July 28, 2005, pet. filed); Willeford v. State, 72 S.W.3d 820, 823 (Tex.App.-Fort Worth 2002, pet. ref'd). Appellant’s statement in this case is more akin to a lack of an objection than to the vigorous defense of an erroneous charge or an affirmative request to submit the instruction. See Bluitt v. State, 137 S.W.3d 51, 53 (Tex.Crim.App.2004). Indeed, had the trial court’s judgment comported with the jury’s verdict, appellant would have received only one twenty-year sentence rather than four twenty-year sentences.

      . But see Patterson v. State, 152 S.W.3d 88, 92 (Tex.Crim.App.2004) (stating, in discussion of whether indecency with child by exposure was distinct offense from penetration by contact, that "penile contact with mouth, genitals, or anus in the course of penile penetration” would be subsumed within the penetration offense and would not be a separate and distinct offense from the penetration).

      . In light of our disposition of appellant’s third point, we need not address his fourth point. See Tex.R.App. P. 47.1.


author: BOB McCOY, Justice.

text:
    In the Interest of C.D.S., A Child.
    No. 2-04-189-CV.
    Court of Appeals of Texas, Fort Worth.
    Aug. 11, 2005.

      Doshier & Associates, P.C. and Robert J. Doshier, Granbury, for Appellant.
    Gerry Williams and Lana Shadwick, Houston, for Appellee.
    PANEL B: HOLMAN, GARDNER, and McCOY, JJ.
   OPINION

BOB McCOY, Justice.

I. Introduction

In a single issue, Christy Amador (“Amador”) complains that the trial court erred in failing to appoint for her an attorney ad litem, pursuant to Texas Family Code section 107.013(a), in proceedings that led to the termination of her parental rights to her child, C.D.S.

II. Background

In April of 2003, Child Protective Services of Hood County received a report regarding the physical neglect of C.D.S. by his mother, Christy Amador. Purportedly, Amador was using drugs, leaving C.D.S. with caretakers without their permission, and not bonding with her child, who had a diaper rash. An investigation into this report led to an admission by Amador that she had smoked marijuana while C.D.S. was in her care. In July 2003, Amador submitted to a urine test as part of a recommended outpatient treatment program, tested positive for “ice,” which is a form of methamphetamine, failed to complete the eight-week program, leading to a recommendation that she go to in-patient rehabilitation. She began the program but subsequently decided to leave.

On August 6, 2003, the Texas Department of Family and Protective Services (“TDFPS”) filed an original petition for protection of a child, for conservatorship and for termination in suit affecting the parent-child relationship. Served with a citation and a copy of this petition on August 6, Amador appeared at the courthouse to attend the emergency removal hearing scheduled for that date. The TDFPS was named temporary sole managing conservator of C.D.S. at that time, and a full advisory hearing was scheduled for August 14, 2003. Also on the 6th, Amador completed and filed with the court an application for appointment of counsel, attached to which was a declaration of financial inability to employ counsel, indicating that she was receiving temporary assistance for needy families in the amount of $167.00 and food stamps in the amount of $376.00, was unemployed, had no real or personal property, and had no cash and no property which could be liquidated for cash.

On August 8, 2003, the trial court judge found that Amador was not an indigent person too poor to employ counsel and denied her application for appointment of an attorney ad litem. An attorney ad litem was appointed to represent C.D.S. On August 12, 2003, a Court-Appointed Special Advocate (“CASA”) volunteer was appointed as a special advocate for C.D.S. At an adversary hearing, held August 14, 2003, a caseworker testified that it was in the child’s best interest to have the biological parents’ parental rights terminated, which was the same testimony given by the CASA volunteer. At the hearing, Ama-dor did not make another request or inquiry about counsel being appointed for her. Amador testified at the hearing that, among other things, her present boyfriend (not C.D.S.’s father), with whom she lived, was on probation for burglary of a habitation and on one occasion they had used methamphetamines together. The court found that Amador was a parent who responded in opposition to termination but that she was not indigent and as a result no attorney ad litem was appointed to represent her interests as a parent. On this same date, an urinalysis of Amador was negative for methamphetamine, cocaine, and marijuana.

On August 26, 2003, a temporary order following adversary hearing was issued wherein TDFPS was appointed temporary managing conservator for the minor. On September 23, 2003, a permanency plan and permanency progress report filed by TDFPS indicated, among other things, that (1) Amador was drug free at that time, but that her visit with C.D.S. demonstrated a lack of bonding, (2) she could not meet the basic needs of her family because of insufficient income or lack of resources, and (3) she needed assistance securing appropriate housing. Two days later, a report filed by the special advocate indicated that Amador stated that she could not go into recommended in-patient drug treatment because she had obtained a job at Big Lots; however, she did not have that job.

On January 23, 2004, a permanency plan and permanency progress report was filed again, indicating that Amador had tested negative for illegal drugs, but again stated that she had not been able to maintain proper housing or obtain stable employment. A report by the special advocate filed three days later also again indicated that Amador had not completed her drug treatment program, had not obtained a job, was unable to understand the development of C.D.S., and had missed visits with the child. On February 5, 2004, a permanency hearing was held, and the court found that Amador had not demonstrated adequate and appropriate compliance with her service plan and continued all previous issues ordered by the court regarding Amador and C.D.S. Eight days later, a family service plan was filed and indicated that Amador had not demonstrated the ability to maintain proper housing or to secure stable employment as of January 22, 2004. On May 14, 2004, another report filed by the special advocate found that (1) as of March 11, 2004, Amador’s living situation was very temporary and very unsafe; (2) on March 25, she had decided to relinquish her rights to C.D.S. and scheduled a good bye visit for April 1; (3) she had changed her mind about the relinquishment on March 31, but then missed her regularly scheduled visit the following day; and (4) after a visit with C.D.S. on April 15, she indicated she was ready to sign the relinquishment papers.

On April 15, 2004, Amador executed an affidavit of voluntary relinquishment of parental rights to the TDFPS, and her parental rights were terminated pursuant to Texas Family Code, section 161.001(1)(K). Tex. Fam.Code Ann. § 161.001(1)(K) (Vernon 2002). The trial court also found that termination was in the best interest of the child. Id. § 161.001(2).

On the day of the termination trial, Amador nodded in response to the trial court’s inquiry that she was representing herself. She also told the trial court that she had signed an affidavit of relinquishment and that the affidavit bore her signature. She answered in the affirmative that she had read the affidavit of relinquishment, completely understood it, and executed it in the presence of the two witnesses under oath. The form documents included a waiver of citation and a notice of hearing as well as the relinquishment of her parental rights, and also a statement that the affidavit was executed freely and voluntarily. The CPS caseworker testified that Amador read the affidavit of relinquishment and seemed to understand it. There was also testimony that Amador understood the document because of prior termination proceedings in which she had been involved. Moreover, at the termination trial, Amador stated, “What I would like to say is I think it’s in [C.D.S.j’s best interest and mine that he be adopted.” At the adversary hearing, Amador had agreed that a child is endangered if the child lives in a home where drugs are bring used by family members or friends. Finally, the order terminating the parental rights of Amador was issued by the court on May 20, 2004. Two weeks later, Amador filed a notice of appeal in the district court complaining that she was denied representation by legal counsel. This appeal does not involve the legal or factual sufficiency of evidence to support the termination.

III. Right to Counsel and Indigency

In her only issue, Amador complains that the trial court erred in failing to appoint an attorney ad litem to represent her interest, as an indigent parent responding in opposition to the termination of her parental rights, pursuant to Texas Family Code section 107.013(a)(1) that reads as follows:

(a) In a suit filed by a governmental entity in which termination of the parent-child relationship is requested, the court shall appoint an attorney ad litem to represent the interests of:
(1) an indigent parent of the child who responds in opposition to the termination. ...

Tex. Fam.Code Ann. § 107.013(a)(1) (Vernon Supp.2004-05).

We review the trial court’s determination of indigency under an abuse of discretion standard. To determine whether a trial court abused its discretion, we must decide whether the trial court acted without reference to any guiding rules or principles; in other words, whether the act was arbitrary or unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986). Merely because a trial court may decide a matter within its discretion in a different manner than an appellate court would in a similar circumstance does not demonstrate that an abuse of discretion has occurred. Id.

An abuse of discretion does not occur where the trial court bases its decisions on conflicting evidence. Davis v. Huey, 571 S.W.2d 859, 862 (Tex.1978), reversed on other grounds, Davis v. Huey, 620 S.W.2d 561 (Tex.1981); see also Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex.1997). Furthermore, an abuse of discretion does not occur as long as some evidence of substantive and probative character exists to support the trial court’s decision. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex.2002).

TDFPS argues that at the adversary hearing on August 14, Amador had not appeared in opposition to the termination and had not filed an answer as of the date of the adversary hearing; therefore, the trial court’s finding that she appeared in opposition was erroneous. Because Amador testified at the adversary hearing that she was opposed to the removal of her child, we find no merit in TDFPS’s position.

The Texas Family Code does not favor us with a definition of “indigency.” However, in a similar situation, a party may appeal as an indigent by filing an affidavit of indigency pursuant to Rule 20.1 of the Texas Rules of Appellate Procedure, and if this is contested, must prove his indigency, the test being whether by a preponderance of the evidence she demonstrates that she would “be unable to pay costs if [s]he really wanted to and made a good faith effort to do so.” White v. Bayless, 40 S.W.3d 574, 576 (Tex.App.-San Antonio 2001, no pet.) (emphasis supplied); see also Tex.R.App. P. 20.1. “Indigent” is defined by Black’s Law Dictionary as:

(1) A poor person. (2) A person who is found to be financially unable to pay filing fees and court costs and so is allowed to proceed in forma pauperis.

Black’s Law Dictionaky 788 (8th ed.2004).

Having determined that there is a paucity of guidance as to the determination of indigency for purposes of this civil statute, we hold that the term “indigent” in section 107.013(a)(1) of the Texas Family Code means a person who does not have the resources, nor is able to obtain the resources, to hire and retain an attorney for representation in the termination case. In making this determination, the court can consider the purported indigent’s income, source of income, assets, property owned, outstanding obligations, necessary expenses, number and ages of dependents, and spousal income available to the defendant. These considerations are consistent with the indigency determination made under the Fair Defense Act, contained in article 26.04(m) of the Texas Code of Criminal Procedure. Tex.Code CRIm. Proc. Ann. art. 26.04(m) (Vernon Supp.2004-05).

IV. Application

On August 6, 2003, Amador filed a Declaration of Financial Inability to Employ Counsel wherein she indicated she was receiving $376 in food stamps and $167 from temporary assistance for needy families but failed to indicate on the form whether this was weekly or monthly. She also indicated that because C.D.S. “is gone, this will be lowered.” Receipt of public assistance benefits is prima facie proof of indigency. Griffin Indus., Inc. v. 13th Court of Appeals, 934 S.W.2d 349, 351 (Tex.1996); Goffney v. Lowry, 554 S.W.2d 157, 159-60 (Tex.1977). Also, Rule 145 of the Texas Rules of Civil Procedure, “Affidavit of Inability,” reads in part,

A “party who is unable to afford costs” is defined as a person who is presently receiving a governmental entitlement based on indigency or any other person who has no ability to pay costs.

Tex.R. Civ. P. 145. Amador also indicated that she owned no property, had no money, had no relatives or friends that would loan her money to hire an attorney and owed a “bondslady” $495. In its order for protection of a child in an emergency and notice of hearing, signed August 6, 2003, the court ordered that Amador,

furnish to the Department and the Court information sufficient to accurately identify the parent’s net resources and ability to pay child support along with copies of income tax returns for the past two years, any financial statements, bank statements, and current pay stubs pursuant to Rule 196, Texas Rules of Civil Procedure and § 154.063, Texas Family Code.

There is no information in the record that this documentation was supplied to the department or court. An examination of the adversary hearing testimony held August 14, 2003 reveals that there was no discussion whatsoever concerning the financial status of Amador, nor does she request an attorney or complain to the court that the hearing was proceeding without representation for her. On August 26, 2003, the trial court signed an order entitled temporary order following adversary hearing wherein the court found that “Christy Dawn Amador is a parent who has responded in opposition to the termination of the parent-child relationship, but that Christy Dawn Amador is not indigent. Therefore, no attorney ad litem, is appointed to represent the interests of this parent.”

Applying the definition, previously enunciated, of “indigency,” we hold that the trial court erred in failing to find that Christy Amador was indigent. The State also argues because there is not a timing requirement for the appointment of counsel, the failure to appoint counsel may not have been error. While acknowledging that section 107.013(a) of the Texas Family Code does not require the immediate appointment of an attorney ad litem, we reject this argument since under the facts of this case by the time her parental rights were terminated pursuant to her voluntary relinquishment some eight months later on the eve of trial following numerous reports to the court involving Amador, counsel was required to be appointed. We sustain Amador’s first issue.

Y. Error

The natural rights existing between a parent and his (her) natural child are of constitutional dimensions, and involuntary termination of parental rights statutes must be strictly construed in favor of the parent.... We hold that the trial court was required to appoint an attorney ad litem to represent appellant in this case, and the failure to do so constitutes reversible error.

Odoms v. Batts, 791 S.W.2d 677, 680 (Tex.App.-San Antonio 1990, no writ). We agree with this holding and with the holding of two other cases which have considered the question. See In re 31 S.W.3d at 354 (complete failure of a trial court to appoint counsel for indigent parents constitutes reversible error) and In re T.R.R., 986 S.W.2d 31, 37 (Tex.App.-Corpus Christi 1998, no pet.) (the trial court was required to appoint appellant an attorney ad litem in the termination proceeding; the failure to do so is reversal error and calls for a new trial).

VI. Conclusion

Having sustained appellant’s first point and determined that the error by the trial court is reversible, the judgment of the trial court is reversed and the case is remanded to the trial court for appointment of an attorney ad litem consistent with the Texas Family Code section 107.013(a) and a new trial.

      . TDFPS argues without citation to authority that Amador waived her right to appointed counsel by not re-urging her request at the hearing. We reject this argument and hold that once Amador filed her application for appointment of counsel, it remained before the court. For this same reason, we reject TDFPS's argument that on the day she requested counsel she had not appeared in opposition to termination, and therefore was not entitled to representation.

      . At the adversary hearing, Amador testified that "[a]ll I know is that I want [C.D.S.] home. I believe I can take care of him. I don’t need to use drugs to have him in the home.... I will take anything just to have him home.”

      . One court has held that a six month delay in the appointment of an attorney ad litem was not a violation of this section, but in that case the parent was represented by appointed counsel for over a year prior to the actual trial date. See In re 31 S.W.3d 347, 353-54 (Tex.App.-San Antonio 2000, pet. denied).


author: Opinion by Justice LANG.

text:
    Jimmy HULL, Appellant, v. The STATE of Texas, Appellee.
    Nos. 05-04-01584-CR, 05-04-01585-CR, 05-04-01689-CR.
    Court of Appeals of Texas, Dallas.
    Aug. 16, 2005.
    Rehearing Overruled Sept. 30, 2005.

      Catherine Bernhard, Red Oak, TX, for Appellant.
    William T. (Bill) Hill, Jr., Larissa Roe-der, Asst. Criminal District Atty., Dallas, TX, for State.
    Before MORRIS, LANG, and MAZZANT.
   OPINION

Opinion by Justice LANG.

Jimmy Hull was indicted for the following offenses, which were alleged to have occurred on three different days: the first degree felony offense of aggravated robbery of Joanne Crawford on April 14, 2003, and the second degree felony offenses of robbery of Josephine McNally on April 4, 2003 and of Lou Harbert on April 11, 2008. These cases were consolidated for trial. Appellant entered non-negotiated pleas of no contest to each charge. The trial court heard evidence as to punishment and sentenced appellant to concurrent sentences of twenty years’ confinement and a $5,000 fine in the aggravated robbery case, and twelve years’ confinement and a $2,500 fine in each of the robbery cases. In one issue, appellant contends that the judgments in two earlier juvenile cases were not properly certified and should not have been admitted. We affirm.

I. FACTUAL CONTEXT

At the punishment hearing, the State asked appellant whether he had a juvenile record. Appellant objected “to going into anything other than a final a[d]judication.” Appellant stated, “It’s improper impeachment, Your Honor, to try to impeach this witness with anything like that but with the final a[d]judication of juvenile determination.” The trial court sustained the objection.

The State then offered two exhibits. Exhibit No. 2 consisted of copies of (i) an April 1998 order of adjudication for a 1997 burglary offense, (ii) an April 1998 original order granting probation for that offense, and (iii) a November 2000 original order granting probation for offenses in 2000. Exhibit No. 3 consisted of copies of (i) a November 2000 order of adjudication for a series of offenses from May to September 2000, including aggravated assault and other offenses, and (ii) a December 2000 “Order on Motion to Modify Revoking Probation and TYC Commitment” for the 2000 offenses. Appellant objected, “Judge, I’ve looked at them, and they, in my view, don’t appear to be properly certified, and we would object to them on that basis.” The trial court inspected the exhibits, overruled appellant’s objection, and admitted them.

In his single issue on appeal, appellant contends the juvenile judgments were not properly certified and should not have been admitted because they contained no seals as required by rule of evidence 902(1), (2), and (4). Appellant does not dispute that the exhibits relate to his juvenile adjudications.

The two orders of adjudication, the April 1998 original order granting probation, and the December 2000 order on motion to modify are multi-page documents. On the last page of each document is a stamp which states as follows:

A CERTIFICATED COPY
ATTEST WU 20(⅛
LINDA BROOKS, COUNTY CLERK
HUNT COUNTY, TEXAS
BY Christy Wooten DEPUTY
(Italics indicate handwriting.) On each preceding page is a stamp that reads:
TRUE AND CORRECT
COPY OF ORIGINAL
FILED IN HUNT
COUNTY CLERK’S OFFICE

In addition, the April 1998 original order granting probation bears the seal of the Hunt County Court and the following statement: “GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the 20 day of April, 1998. Receipt acknowledged on day of entry thereof, one (1) certified copy of the above order.” Following this statement is the signature of the Hunt County Juvenile Court Clerk. Likewise, the November 2000 order granting probation bears the seal of the Hunt County Court and the following statement: “GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the 6 day of November, 2000. Receipt acknowledged on day of entry thereof, one (1) certified copy of the above order.” It is signed by the Hunt County Juvenile Court Clerk. However, the November 2000 order granting probation does not bear the Hunt County Clerk’s April 14, 2004 “certified copy” stamp, as do the other documents.

II.STANDARD OF REVIEW

We review a trial court’s ruling to admit evidence under an abuse of discretion standard. Angleton v. State, 971 S.W.2d 65, 67 (Tex.Crim.App.1998). We reverse only when the trial court’s decision was so clearly wrong as to lie outside the zone of reasonable disagreement. Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim.App.2002). We uphold the trial court’s ruling if it was correct on any theory reasonably supported by the evidence and applicable to the case. Id.

III.APPLICABLE LAW

A document may be properly authenticated under either rule of evidence 901 or 902, and need not be authenticated under both. Reed v. State, 811 S.W.2d 582, 586 (Tex.Crim.App.1991). Rule 901(a) provides, “The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Tex.R. Evid. 901(a). This provision does not limit the type of extrinsic evidence which may be used. Reed, 811 S.W.2d at 586. Rule 901(b) then provides illustrations of the type of extrinsic evidence which would satisfy the requirement of authentication. Tex.R. Evid. 901(b); Reed, 811 S.W.2d at 586. Example (7) specifically addresses “[p]ublic records or reports,” and provides that authentication is established by “[e]vidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept.” Tex.R. Evid. 901(b)(7). Thus, one means of authenticating a public record under 901 is showing that the document is from a public office authorized to keep such a record. Reed, 811 S.W.2d at 587.

Rule of evidence 902 provides for self-authentication of domestic public documents under seal. Tex.R. Evid. 902(1). Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to these documents. Instead, “[a] document bearing a seal purporting to be that of ... any State, ... or of a ... department, officer, or agency thereof, and a signature purporting to be an attestation or execution” is self-authenticating. Id.

IV.ANALYSIS AND CONCLUSION

Here, the April 14, 2004 certification on the two orders of adjudication, the April 1998 original order granting probation, and the December 2000 order on motion to modify shows these documents are from the Hunt County clerk’s office. Because the documents are from the Hunt County Juvenile Court, it seems clear that the Hunt County clerk’s office is authorized to keep them. See Reed, 811 S.W.2d at 587 (noting that “it seems clear” that the TDCJID was authorized to keep records of judgment and sentence in the “pen packet” for a prisoner is custody). Pursuant to Reed, we need not decide whether the Hunt County clerk’s office is a public office because the fact that the documents are correct copies of those upon which the clerk’s office relies in accounting for a juvenile’s record “constitutes extrinsic evidence that the records are what the proponent claims them to be.” See id. (citing rule of evidence 901(a)); see also United States v. Jimenez Lopez, 873 F.2d 769, 770-71 (5th Cir.1989) (conclusive proof of authenticity not required for admission; testimony of chain of custody of photocopy combined with “internal indicia of reliability within the document” justified admission pursuant to federal rule of evidence 901). Moreover, rule 901(b)(7) does not require seals. See Tex.R. Evid. 901(b)(7); see also Tex. Dep’t of Pub. Safety v. Guajardo, 970 S.W.2d 602, 608-09 (Tex.App.Houston [14th Dist.] 1998, no pet.) (holding certified copy of DPS document met requirements of rule 901); Redd v. State, 768 S.W.2d 439, 440 (Tex.App.-Houston [1st Dist.] 1989, pet. refd) (holding certified copy of pen packet met requirement of rale 901). We conclude these documents were sufficiently authenticated in accordance with rale 901(b)(7). See Reed, 811 S.W.2d at 587. Therefore, we need not consider appellant’s argument that they are not properly certified pursuant to rale 902. See id. at 586.

The November 2000 original order granting probation does not contain the April 14, 2004 certification. However, it is properly self-authenticated pursuant to rule of evidence 902(1) because it contains the seal of the Hunt County Court and the signature of the Hunt County Juvenile Court Clerk. See Tex.R. Evid. 902(1).

We resolve appellant’s single issue against him and affirm the trial court’s judgments.

      . Trial court cause number F03-40667-WP; appellate court cause number 05-04-01584-CR.

      . Trial court cause number F03-40706-WP; appellate court cause number 05-04 — 01585-CR.

      .Trial court cause number F03-40718-WP; appellate court cause number 05-04-01689-CR.

      . The November 2000 original order granting probation clearly relates to the offenses that were the subject of the order of adjudication and order granting probation in Exhibit No. 3, and was apparently mistakenly offered as part of Exhibit No. 2, as acknowledged by appellant and the State in their briefs.

      . The handwriting is such that it is difficult to read the deputy's first name, but this appears to be her first name.


author: Opinion by Justice RICHTER.

text:
    The STATE of Texas, Appellant, v. Michelle K. HOWARD, Appellee.
    No. 05-04-01543-CR.
    Court of Appeals of Texas, Dallas.
    Aug. 17, 2005.
    Rehearing Overruled Sept. 30, 2005.

      Blake Withrow, Dallas, TX, for Appellee.
    Chad Copeland, Dallas, TX, for Appellant.
    Before Justices O’NEILL, RICHTER, and FRANCIS.
   OPINION

Opinion by Justice RICHTER.

In this appeal, we must determine whether the trial judge properly granted Michelle K. Howard’s motion to quash or dismiss the information charging her with violating the “no touch” provision of the Dallas City Code regulating sexually oriented businesses and the conduct of their employees. See Dallas, Tex., Code 41A-18.1(a) (2000). After a de novo review of the order granting the motion, see State v. Moff, 154 S.W.3d 599, 601 (Tex.Crim.App.2004), we conclude the trial judge properly granted the motion and affirm the order.

Background

Howard, a dancer at an adult cabaret, was charged by information with violating the “no touch” provision by “recklessly” rubbing her breasts against a customer’s head while exposing her buttocks “which were less than completely and opaquely covered.” See Dallas, Tex., Code §§ 41A-2(4), (29), 41A-18.1(a). Although the information alleged a culpable mental state of “recklessly,” the Dallas City Code specifically makes a violation of the “no touch” provision a strict liability offense, criminalizing conduct based on touching alone, regardless of any culpability. See id. § 41A-21(b); Thompson v. State, 44 S.W.3d 171, 177 (Tex.App.-Houston [14th Dist.] 2001, no pet.).

Prior to trial, Howard moved to quash or dismiss the information arguing, inter alia, that because topless/exotic dancing is constitutionally protected expressive conduct, a culpable mental state is required to criminalize contact between the dancer and a customer and the dispensation of a culpable mental state in the “no touch” provision in the Dallas City Code rendered the “no touch” provision void. Additionally, Howard argued the State could not correct “this problem” by alleging the culpable mental state of “recklessly.” Agreeing with Howard, the trial judge granted the motion. On appeal, the State argues in two issues that the judge erred in granting Howard’s motion because the City of Dallas could properly dispense with the requirements of a culpable mental state under Texas Penal Code section 6.02(b), and even though a culpable mental state was not required, the State properly alleged the culpable mental state of “recklessly.”

Discussion

Topless/exotic dancing is constitutionally protected expressive conduct under the First and Fourteenth Amendments to the United States Constitution. See U.S. Const, amends. I, XIV; Barnes v. Glen Theatre, Inc., 501 U.S. 560, 565-66, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991); Kaczmarek v. State, 986 S.W.2d 287, 290 (Tex.App.-Waco 1999, no pet.); 2300, Inc. v. City of Arlington, Texas, 888 S.W.2d 123, 127 (Tex.App.-Fort Worth 1994, no pet.). However, this protection does not guarantee a dancer the right to engage in the protected expression at all times and places or in any manner that may be desired. See Hang On, Inc. v. City of Arlington, 65 F.3d 1248, 1254 (5th Cir.1995); 2300, Inc., 888 S.W.2d at 127. A governmental entity, when acting to further legitimate ends of the community, may impose incidental burdens on this protected expression through “content-neutral” regulations of time, place, or manner. See Hang On, Inc., 65 F.3d at 1254; 2300, Inc., 888 S.W.2d at 128. An ordinance is content-neutral if it is justified without reference to the content of the regulated speech or expression and serves purposes unrelated to the content of expression. See City of Renton v. Playtime Theatres, 475 U.S. 41, 49, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986). “No touch” provisions, such as the one at issue here, have been deemed to be content-neutral because they do not discriminate on the basis of the content of the dance performance and are directed toward the secondary effects of adult cabarets, including prostitution, drug dealing, and assault. 2300, Inc., 888 S.W.2d at 128; see also Millennium Rest. Group, Inc. v. City of Dallas, Tex., 181 F.Supp.2d 659, 665 (N.D.Tex.2001).

Although a governmental entity may regulate protected expression through content-neutral ordinances, its authority to regulate is not unfettered and the ordinance must fall within the bounds of the Constitution. We will find a content-neutral regulation to be constitutional, despite its adverse impact on the exercise of First Amendment rights, if (1) it is within the constitutional power of the government; (2) it furthers an important or substantial governmental interest; (3) the asserted governmental interest is unrelated to the suppression of free expression; and (4) the incidental restrictions on alleged First Amendment freedoms are no greater than is essential to the furtherance of that interest. Barnes, 501 U.S. at 566-67, 111 S.Ct. 2456; United States v. O’Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968); Millennium, 181 F.Supp.2d at 666.

Here, Chapter 41A of the Dallas City Code was adopted pursuant to chapter 243 of the Texas Government Code, which grants municipalities such as the City of Dallas the authority to regulate sexually oriented businesses and the conduct of their employees, and pursuant to Texas Penal Code section 6.02(b), which provides for the dispensation in the definition of an offense of a culpable mental state. Tex. Pen.Code Ann. § 6.02(b) (Vernon 2004); Tex. Loc. Gov’t Code Ann. §§ 243.001-.il; Dallas, Tex., Code § 41A-1; Ex parte Smalley, 156 S.W.3d 608, 611 (Tex.App.-Dallas 2004, pet. granted). Accordingly, the “no touch” provision at issue satisfies the first factor of being within the constitutional power of the government. The provision also satisfies the second factor of “furthering a substantial governmental interest” by serving to prevent prostitution, drug dealing, and assault. Hang On, 65 F.3d at 1254. And, for this same reason, it satisfies the third factor of being unrelated to the suppression of free expression. Id. However, it fails to satisfy the fourth factor of restricting the protected conduct narrowly to do only what is necessary to prevent the “secondary effects” of adult cabarets. See Millennium, 181 F.Supp.2d at 665. Criminalizing the touching of a customer without requiring any culpable mental state criminalizes accidental or inadvertent touching and thus is a greater restriction on free expression than is essential to further the City’s interests. See Hang On, 65 F.3d at 1254 (rejecting this argument where “no touch” provision required culpable mental state); Millennium, 181 F.Supp.2d at 665 (finding section 41A-10 of Dallas City Code, a strict-liability provision also, “suspect” because lack of culpable mental state imposed greater restriction on free expression than essential to further governmental interest). Because it dispenses with a culpable mental state, thereby providing a greater restriction on free expression than is essential to further the City’s interests, we conclude the “no touch” provision at issue is unconstitutional and void.

We find support for our conclusion in United States Supreme Court holdings requiring a culpable mental state for offenses tending to work a substantial restriction on the freedom of speech and expression. See New York v. Ferber, 458 U.S. 747, 765, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982) (criminal responsibility under child pornography laws may not be imposed without some element of culpability); Smith v. California, 361 U.S. 147, 153-55, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959) (ordinance dispensing with element of culpability and imposing strict liability on bookseller possessing obscene material void). We also find support for our conclusion in the fact that strict liability is associated with civil violations that incur only a fine and criminal offenses characterized as malum prohibitum or “prohibited evil.” See Aguirre v. State, 22 S.W.3d 463, 472 (Tex.Crim.App.1999); Thompson, 44 S.W.3d at 178-79. Mala prohibita offenses are acts that are crimes merely because they are prohibited by statute, although they are not necessarily immoral. Thompson, 44 S.W.3d at 178. Examples include speeding, illegal dumping of trash, and possession of a firearm while under a domestic restraining order. Id. By contrast, offenses requiring a culpability requirement are normally considered malum in se or “inherently evil.” They are acts that are inherently immoral such as rape, arson, and murder. Id. Although regulatory violations are often characterized as mala prohibita offenses, under common law, public nudity was classified as a malum in se offense. Barnes, 501 U.S. at 568, 111 S.Ct. 2456; Aguirre, 22 S.W.3d at 477. Thus, under common law, public nudity would require a culpable mental state.

Our conclusion does not mean that a topless/exotic dancer may freely engage in touching, and we do not pass on the degree of culpability required for a constitutionally permissible prosecution of a topless/exotic dancer who touches a customer. We simply conclude that, as adopted, without a culpable mental state element, the “no touch” provision at issue here is unconstitutional and void. We resolve the State’s first issue against it.

Because we conclude the “no touch” provision at issue is unconstitutional and void, we need not address the State’s second issue that the charge against Howard can stand because, even though no culpable mental state was required, the information alleges a culpable mental state of “recklessly.”

We affirm the trial court’s order granting Howard’s motion to quash or dismiss the indictment.