author: DIXON W. HOLMAN, Justice. ANNE GARDNER, Justice,

text:
    William CHU, Appellant, v. Chong Hui HONG, Appellee.
    No. 2-04-279-CV.
    Court of Appeals of Texas, Fort Worth.
    Oct. 20, 2005.
    Rehearing Overruled Jan. 5, 2006.

      Lively, Padfield & Stout, David F. Far-ris, Fort Worth, for Appellant.
    Cramb & Marling, L.L.P., G. Stanley Cramb, Bedford, for Appellee.
    Panel B: LIVINGSTON, HOLMAN, and GARDNER, JJ.
   OPINION

DIXON W. HOLMAN, Justice.

This appeal concerns a lawyer, Appellant, who conspired with Appellee’s husband for the purpose, and with the effect, of cheating Appellee out of her share of the family business, a donut shop. The jury found Appellant’s conduct was conspiratorial, fraudulent, malicious, and violated the Texas Uniform Fraudulent Transfer Act.

The State Bar’s rules of professional conduct forbid a lawyer to commit any act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer, or to engage in conduct that involves dishonesty, fraud, deceit, or misrepresentation. See Tex. DISCIPLINARY R. PROf’l Conduct 8.04(a)(1), (2), and (3) reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G app. A (Vernon 2005) (Tex. State Bae R. art. X, § 9). For Appellant to engage in such conduct and, in this appeal, to attempt to explain it as merely negligence on his part conflicts with the jury’s findings that Appellant’s actions were conspiratorial, fraudulent, and malicious. Negligence may occur when the actor fails to exercise the standard of care that the law would require of a reasonable man in the circumstances. Here, however, the jury found Appellant’s conduct was wilful and fraudulent. It was not negligent. After considering the five issues raised by Appellant, we affirm.

Background

Appellee, Chong Hui Hong, and her husband, Gyu Chul Kim (Gyu), were married from 1996 until 1999, when they separated, stopped living together as husband and wife, and eventually divorced. While married, they jointly purchased, owned, and operated a donut shop, for which they filed an Assumed Name Certificate in the records of the Tarrant County Clerk. In 1998, they both signed an agreement to sell the donut shop to buyers whose attorney was Appellant, William Chu.

The original agreement required the buyers to pay Appellee and her husband, Gyu, a total price of $210,000 for the donut shop, including a $20,000 down payment. On November 6, 1998, the buyers gave Appellee and her husband a check for the $20,000 down payment. On November 18, 1998, before Appellee and her husband, Gyu, cashed the check, the agreement was modified in writing to reduce the total sales price to $180,000. The modification specified the down payment as the $20,000 already paid to Appellee and her husband, Gyu. Finally, the buyers ordered payment of the $20,000 check stopped and refused to pay anything.

Appellee notified both the buyers and her husband, Gyu, that Appellee would not close the sale of the donut shop because she considered their agreement had become void. In response, the buyers’ attorney, Appellant, William Chu, wrote a letter to Appellee and her husband, Gyu, demanding that either they close under the terms of the modified agreement or face litigation. Appellee still refused to close.

Without Appellee’s knowledge, authority, or consent, her husband, Gyu, went to Appellant’s office and, with Appellant’s knowledge of the circumstances, signed another amendment to the agreement stating for the first time that Gyu was sole owner of the donut shop. Gyu then signed documents prepared by Appellant’s office staff pursuant to Appellant’s instruction that purported to convey the entire title and possession of the donut shop to the buyers. Appellant testified that when Gyu was in his office, Appellant was aware that Appellee had an ownership interest in the donut shop. Appellant’s only explanation for not contacting Appellee and asking that she furnish him her power of attorney (that could have authorized Gyu to act for her in the sale) was: “I wasn’t requested to get one.” Appellee first learned of the sale from Gyu to the buyers when she went to work at the donut shop on February 24, 1999, discovered the buyers in possession, and was ordered to leave the premises. After the sale of the donut shop, Gyu sent the proceeds by wire transfer to Korea. Soon thereafter, Gyu returned to Korea.

Appellee’s suit was filed March 16, 1999, only against Gyu and one of the buyers of the donut shop seeking a declaratory judgment finding that the agreement between Gyu and the buyers was void. See Tex. Civ. PRAc. & Rem.Code Ann. § 37.004 (Vernon 2002). Appellee also sought damages for conversion and Gyu’s fraudulent conveyance of Appellee’s property. On March 18, 1999, Gyu filed his original petition seeking a divorce from Appellee. Appel-lee’s final pleading before trial asked that she be divorced from Gyu and that she be awarded a division of community property. Appellee also sued Appellant for fraudulently transferring the donut shop and for conspiring with Gyu to convert the business to the buyers. The suits were consolidated on March 31, 1999. Appellee’s pleading alleged that she sought the remedies and relief authorized by section 24.008 of the business and commerce code.

The jury found that: (a) Gyu fraudulently transferred the donut shop to the buyers; (b) Appellant, Gyu, and the buyers converted the donut shop that belonged to Appellee; (c) Gyu did not comply with his fiduciary duties to Appellee; (d) Appellant and the buyers were part of a conspiracy that damaged Appellee; and (e) clear and convincing evidence established that the harm to Appellee resulted from the malice or fraud of Appellant, Gyu, and the buyers.

Further, the jury found that Appellee suffered actual damages of $140,000 as the value of the donut shop, plus $190,000 for lost profits during the time she was denied access to, possession, and ownership of the donut shop. The jury also found that Appellant acted toward Appellee with malice or fraud and awarded Appellee $1,500,000 punitive damages for Appellant’s conduct.

The jury awarded Appellee attorney’s fees of $65,000 through trial, $10,000 for appeal, and another $10,000 for appeal, if any, to the supreme court. The trial court’s judgment does not condition the award of appellate attorney’s fees upon Appellee’s success on appeal, and Appellant does not complain of that feature.

The trial court’s judgment grants a divorce to Appellee and recites that Appellee is entitled to judgment against Appellant based on the jury’s verdict. The jury found that Appellant, Gyu, and the buyers conspired to fraudulently transfer the do-nut shop to the buyers, which constituted fraud and malice against Appellee. The judgment awards damages in accordance with the jury’s verdict. The trial court found that the purported sale of the donut shop was void and ordered the buyers divested of ownership and possession. The court awarded possession of the donut shop to Appellee, effective at 1:30 p.m. on March 13, 2004. Finally, the judgment awarded Appellee authority to levy against the assets of the donut shop to enforce the judgment and recover assets. Only Appellant appeals the trial court’s judgment.

Appellant’s First Issue

Appellant’s first issue asks whether the Uniform Fraudulent Transfer Act creates personal liability for Appellant’s conduct. We are convinced that it does.

The question of whether a debtor has conveyed property with the intent to defraud creditors is ordinarily a question for the trier of fact. Flores v. Robinson Roofing & Constr. Co., 161 S.W.3d 750, 754-55 (Tex.App.-Fort Worth 2005, pet. denied) (op. on reh’g). A fraudulent transfer occurs when a debtor makes a transfer with intent to hinder, delay, or defraud his creditors by placing the debtor’s property beyond the creditor’s reach. Nobles v. Marcus, 533 S.W.2d 923, 925 (Tex.1976). The purpose of the Uniform Fraudulent Transfer Act is to prevent transfers of property with intent to defraud creditors. Flores, 161 S.W.3d at 754. Intent is a fact question uniquely within the realm of the trier of fact because it depends upon the credibility of the witnesses and the weight to be given to their testimony. Spoljaric v. Percival Tours, Inc., 708 S.W.2d 432, 434 (Tex.1986).

The relationship between a husband and wife creates a fiduciary relationship so that the spouses are bound by a fiduciary duty when dealing with the community estate. Southwest Tex. Pathology Assocs. v. Roosth, 27 S.W.3d 204, 208 (Tex.App.-San Antonio 2000, pet. dism’d w.o.j.); Connell v. Connell, 889 S.W.2d 534, 541 (Tex.App.-San Antonio 1994, writ denied). Moreover, unfairly disposing of the other spouse’s community property results in the presumption of constructive fraud and may impose liability on a third party, such as Appellant, who knowingly participates in the breach of the fiduciary duty. See Connell, 889 S.W.2d at 541. Whether the conveyance was made with intent to defraud creditors or whether the third party had knowledge or notice of such intent are fact questions for the jury. See id. at 542.

For purposes of the Uniform Fraudulent Transfer Act, an “insider” is an entity (Appellant) whose close relationship with the debtor (Gyu) subjects any transactions made between the debtor and the insider to heavy scrutiny. Tel. Equip. Network, Inc. v. TA/Westchase Place, Ltd., 80 S.W.3d 601, 609 (Tex.App.-Houston [1st Dist.] 2002, no pet.).

First, we turn to the definitions contained in the Uniform Fraudulent Transfer Act. “Creditor” means “a person ... who has a claim,” such as Appellee. “Claim” means a “right to property.” “Debtor” means “a person who is liable on a claim,” such as Appellant. “Transfer” means “every mode of parting with an interest in an asset,” such as the conveyance of Appel-lee’s share of community property under the guise that Appellee has no ownership rights in it, or that it is exclusively owned by someone else. “Property” means “anything that may be the subject of ownership.” See Tex. Bus. & Com.Code Ann. § 24.002 (Vernon 2002).

The jury was instructed by the court’s charge that a debtor’s transfer is fraudulent as to a creditor, whether the creditor’s claim arose within a reasonable time before or after the transfer, provided the transfer is done with actual intent to hinder, delay, or defraud the creditor. The court’s charge also informed jurors that the term “convert” or “conversion” as used in jury question No. 2 means taking of the property without Appellee’s authorization or consent. In answering question No. 2, the jury unanimously found from the evidence that Appellant converted property belonging to Appellee without her consent.

In other answers to jury questions, the jury unanimously found from the evidence (question No. 4) that Appellant knowingly participated, aided, or assisted in the breach of fiduciary duty owed Appellee by her husband. The jury also found from the evidence (question No. 5) that Appellant was part of a conspiracy with the other defendants that damaged Appellee.

The charge included an instruction with question No. 5 that to be part of a conspiracy, Appellant “must have had knowledge of, agreed to, and intended a common objective or course of action that resulted in damage to [Appellee].” Further, the charge instructed that “a civil conspiracy is a combination of two or more persons to accomplish an unlawful purpose by unlawful means” and that to be liable for conspiracy, it must be shown that Appellant intended to cause the injury or was aware of the harm likely to result from the wrongful conduct.

In question No. 9, the jury found from clear and convincing evidence (that produced a firm belief or conviction of the truth of the allegations against Appellant) that Appellant’s conduct toward Appellee resulted from malice or fraud. Malice was defined for the jury as either Appellant’s specific intent to cause substantial injury to Appellee, or Appellant’s act or omission that from his standpoint at the time involved an extreme degree of risk known to him and with which he nevertheless proceeded with conscious indifference to the rights, safety, or welfare of others.

Section 24.005 of the Uniform Fraudulent Transfer Act contains a non-exclusive list of facts and circumstances, known as the badges of fraud, that may be considered in determining fraudulent intent. See Tex. Bus. & Com.Code Ann. § 24.005(b); Flores, 161 S.W.3d at 755. The evidence clearly shows and convinced the jury that Gyu, a debtor, aided by Appellant, a third party, made the transfer of community property, the donut shop, with actual intent to hinder, delay, or defraud a creditor, Appellee. The evidence also shows that soon after the transfer of ownership in the donut shop, Gyu sent the proceeds of the sale to Korea and actually went to Korea himself. Moreover, the evidence shows that Appellant knew from the start of their relationship that Gyu was not the only owner of the donut shop, but Appellant nevertheless conspired to transfer the business from Gyu alone to the buyers. As a conspirator, the evidence shows that Appellant was present on February 23, 1999 when the transaction between Gyu and the buyers was completed in Appellant’s office. At that time, the buyers tendered the agreed upon sales price and Gyu signed a bill of sale. The bill of sale states that it was executed by Gyu on December 1,1998, and the notary certification lists the same date. The notary was an employee in Appellant’s office. Although Appellant denied having knowledge that his employee backdated the bill of sale, Appellant admitted that the December 1, 1998 dated listed on the bill of sale, notarized by his employee, was incorrect and the date should have been listed as February 23,1999.

The evidence shows that in the transfer of the donut shop, Appellant acted as an “insider” who, because of his close relationship to Gyu in their conspiratorial purpose of defrauding Appellee, will have the transfer subjected to heavy scrutiny. See Tel. Equip. Network, Inc., 80 S.W.3d at 609. Here, the jury found from the evidence that Appellant and Gyu had joined forces and schemed to divest Appellee of her share of the business. Appellant’s own conduct, including the failure to request a power of attorney from Appellee, made himself an “insider” in that fraudulent enterprise with Gyu. The principal factors in determining insider status are the closeness of the relationship between the transferees (buyers) of the property, their attorney (Appellant), and the debtor (Gyu). Id. An attorney, such as Appellant, is liable for knowingly committing a fraudulent act that injures someone such as Appellee, or for knowingly entering into a conspiracy to defraud someone such as Appellee. See Likover v. Sunflower Terrace II, Ltd., 696 S.W.2d 468, 472 (Tex.App.-Houston [1st Dist.] 1985, no pet.).

Moreover, the provisions of the Uniform Fraudulent Transfer Act do not displace principles of equity or the law relating to fraud, and those principles, as' well as the law, supplement its provisions. See Tex. Bus. & Com.Code Ann. § 24.011 (Vernon 2002). Because we answer the question raised by Appellant’s first issue in the affirmative, that on the facts the jury found in this case the Uniform Fraudulent Transfer Act does create personal liability for Appellant’s conduct, we overrule his first issue. See Tex. Bus. & Com.Code Ann. §§ 24.002, 24.005, 24.006, 24.008, 24.010 (Vernon 2002).

Appellant’s Punitive Damages Issues

Appellant’s next three issues ask whether the Uniform Fraudulent Transfer Act authorizes an award of punitive damages and whether there is legally and factually sufficient, clear and convincing evidence of actual malice or fraud to support the award of punitive damages and whether the size of the punitive damages awarded is so constitutionally excessive, or so against the great weight and preponderance of the evidence, as to be manifestly unjust. We will discuss the three issues as one.

To be entitled to an award of punitive damages, Appellee had to prove by clear and convincing evidence that the harm with respect to which Appellee seeks recovery of exemplary damages resulted from fraud or malice committed by Appellant. See Tex. Civ. PRAC. & Rem.Code Ann. § 41.003 (Vernon Supp.2004-05). Clear and convincing evidence is defined as that measure or degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established. Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 31 (Tex.1994). This intermediate standard falls between the preponderance standard of civil proceedings and the reasonable doubt standard of criminal proceedings. In re G.M., 596 S.W.2d 846, 847 (Tex.1980).

The Texas Supreme Court has recently reiterated the appropriate scope of appellate review when the burden of proof at trial was clear and convincing evidence and the appellant on appeal challenges the sufficiency of a fact finding:

In a legal sufficiency review, a court should look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true. To give appropriate deference to the fact-finder’s conclusions and the role of a court conducting a legal sufficiency review, looking at the evidence in the light most favorable to the judgment means that a reviewing court must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable fact-finder could do so. A corollary to this requirement is that a court should disregard all evidence that a reasonable fact-finder could have disbelieved or found to have been incredible. This does not mean that a court must disregard all evidence that does not support the finding. Disregarding undisputed facts that do not support the finding could skew the analysis of whether there is clear and convincing evidence.
If, after conducting its legal sufficiency review of the record evidence, a court determines that no reasonable factfinder could form a firm belief or conviction that the matter that must be proven is true, then that court must conclude that the evidence is legally insufficient.

Southwestern Bell Tel. Co. v. Garza, 164 S.W.3d 607, 627 (Tex.2004).

Appellant argues that the evidence the jury heard of his misconduct shows only that he was guilty of professional negligence, nothing more. We disagree and can only conclude that his misconduct shows that, as the jury found, Appellant clearly had a fraudulent and malicious intent to act as the catalyst for defrauding Appellee by acting with Gyu and the buyers of the donut shop to deprive Appellee of her property. Appellant’s misconduct was shown fully by the evidence and sufficiently supports the $1,500,000 punitive damages the jury awarded as punishment and deterrence. The punitive damages are not unconstitutionally excessive because they are reasonably proportionate to the actual damages the jury found before any reduction or remittitur was made. Southwestern Inv. Co. v. Neeley, 452 S.W.2d 705, 708 (Tex.1970).

Based upon the evidence, the jury awarded Appellee actual damages of $330,000 and punitive damages of $1,500,000. The trial court ordered that Appellee is entitled to immediate possession of the donut shop and thus remitted $140,000 as the jury’s finding of the value of the business. The court entered judgment against Appellant for $190,000 actual damages plus prejudgment interest of $57,000 on that amount. Because of Appellant’s misconduct, and applying the appropriate standard of review, we do not find the punitive damages of $1,500,000 to be excessive, or against the great weight and preponderance of the evidence, or manifestly unjust. We hold there was clear and convincing evidence to support the punitive damages award in favor of Appellee. We overrule each of Appellant’s challenges to, and concerns about, the punitive damages that are included in the second, third, and fourth issues.

The Attorney’s Pees Issue

In his fifth issue, Appellant asks whether awarding attorney’s fees in this case is appropriate. In other words, he challenges Appellee’s entitlement to attorney’s fees, not the amount of fees actually awarded. We conclude that the only applicable provision for attorney’s fees in this case is that of section 24.013 of the Uniform Fraudulent Transfer Act that enables the trial court to award costs and reasonable attorney’s fees as are equitable and just. See Tex. Bus. & Com.Code Ann. § 24.013 (“the court may award costs and reasonable attorney’s fees as are equitable and just”). That provision of the statute gave the trial court the sound discretion to award the attorney’s fees to Appellee based upon the evidence the court heard. See Bocquet v. Herring, 972 S.W.2d 19, 20-21 (Tex.1998) (reviewing similar statutes that provide a court “may award” attorney’s fees). The fees are equitable and just.

This case is totally unlike Thomas v. Casale, 924 S.W.2d 433 (Tex.App.-Fort Worth 1996, writ denied), where a trial court made neither an actual nor an implied finding of fact nor a conclusion of law that the Uniform Fraudulent Transfer Act had any application to that case, because of an absence of evidence. Id. at 437. We overrule Appellant’s fifth issue.

Conclusion

Having overruled all of Appellant’s issues after careful consideration of each one, we affirm the judgment of the trial court.

GARDNER, J., dissents.

ANNE GARDNER, Justice,

dissenting.

I disagree that the Texas Uniform Fraudulent Transfer Act (TUFTA) creates personal liability of Appellant for the damages and attorney’s fees assessed against him. I share the majority’s reaction to Appellant’s egregious misconduct as a lawyer. I believe he should be referred to the grievance committee. But I cannot agree that Appellee was entitled to maintain an independent cause of action against him under that Act in seeking to void the fraudulent transfer of community property and in seeking damages in the context of her divorce. By upholding liability of Appellant under TUFTA, I believe the majority clouds the remedies applicable to spouses on divorce as well as the scope of TUFTA. I also believe the majority opinion conflicts with current Texas law.

The majority affirms based upon the jury’s finding that Appellant conspired with the buyers and Appellee’s husband to fraudulently transfer the donut shop. But the majority does not address an essential prerequisite for a civil conspiracy. Liability for civil conspiracy requires participation in an underlying tort for which the plaintiff seeks to hold at least one of the named defendants liable. The underlying tort Appellee relies on is her husband’s violation of TUFTA by fraudulently transferring the donut shop business to Appellant’s clients, as found by the jury. If Appellee had no cause of action against her husband under that Act, then Appellant cannot be liable for conspiracy to violate that Act. The preliminary question we must answer, then, is whether Appellee had a cause of action against her husband under TUFTA.

The purpose of TUFTA is to provide a statutory cause of action through which creditors may seek recourse for fraudulent transfers of assets by debtors. The majority accepts Appellee’s argument that, as a spouse, she is a “creditor” under TUFTA as to her husband’s fraudulent transfer, concluding that she has a valid, underlying tort cause of action against her husband under that Act. I disagree. Section 24.002(4) of TUFTA includes “a spouse” in the definition of the term “creditor,” but it is a logical fallacy to conclude that all spouses are therefore creditors within the meaning of the Act. There are at least two reasons why that cannot be so. First, that is not what the section says. Section 24.002 provides the following definitions:

(3) “Claim” means a right to payment or property ...
(4) “Creditor” means a person, including a spouse, ... who has a claim.
(6) “Debtor” means a person who is liable on a claim.

Section 24.005(a), the operative section of TUFTA, states:

A transfer made ... by a debtor is fraudulent as to a creditor, whether the creditor’s claim arose before or within a reasonable time after the transfer was made or the obligation was incurred, if the debtor made the transfer or incurred the obligation:
(1) with actual intent to hinder, delay, or defraud any creditor or debtor[.]

The transfer fraudulently deprived Ap-pellee of her ownership right in the donut shop. But nothing in the briefs or record suggests that Appellee had a “claim” against her husband either before or within a reasonable time after his transfer of the donut shop apart from the fraudulent transfer. Without such a claim, Appellee is not a “creditor,” even though she is a “spouse.” Likewise, her husband was not a debtor apart from the transfer. The language , of Section 24.005(a) contemplates a claim that existed “before” or “within a reasonable time after” and apart from the fraudulent transfer, not a claim created by the transfer itself. Absent evidence of a claim that either pre-existed or came into existence shortly after the transfer, I would hold that Appellee had no statutory cause of action as a “creditor” against her husband within TUFTA.

In addition, I have grave doubts that the majority’s holding can be squared with current law. Appellee could not become a “creditor” as a result of the fraudulent transfer because the donut shop was community property. The injury resulting from the fraudulent transfer was to the community estate, not to Appellee personally. In Schlueter v. Schlueter, the Supreme Court of Texas held that a spouse has no independent cause of action for actual or exemplary damages for fraud in disposing of community assets. Instead, the concept is one of “fraud on the community,” the essential character of which is “a deprivation of community assets as opposed to a tort committed against a person or his or her separate property.” The trial court may consider the wrong in awarding a disproportionate division of the community estate to the injured spouse to compensate for the community property wrongfully expended, transferred, or dissipated. But TUFTA does not define “creditor” to include the community estate on divorce.

Holding that a spouse has an independent cause of action under TUFTA for a fraudulent transfer of community property seems to conflict with Schlueter’s holding that no independent cause of action for a fraudulent transfer of community property exists. As the supreme court in Schlueter explained in describing the remedies of a spouse for fraud on the community, the trial court may consider actual or constructive fraud by one spouse in disposing of community property when it divides the community estate. The claim for fraud on the community “is a means to an end ... to obtain a greater share of the community estate, in order to compensate the wronged spouse for his or her lost interest in the community estate.” As additional remedies for fraud on the community, the court may allow the wife to establish her ownership right in specific property fraudulently transferred as against third party possessors. The court may also award a money judgment from one spouse to the other to achieve an equitable division up to the specific value of the lost community property. But because the amount of a money judgment is directly referable to the specific value of the lost community property, the award will never exceed the value of the community estate. Exemplary damages may not be awarded for fraud on the community estate.

TUFTA preceded Schlueter, and provides remedies that are similar but broader, including allowance of attorney’s fees and “any other relief the circumstances may require,” which may include actual and punitive damages. However, I believe that, unless and until the supreme court says differently, Schlueter precludes a holding that TUFTA provides an independent tort cause of action for Appellee against her husband under these facts.

In addition to finding a fraudulent transfer in violation of TUFTA by the husband, the jury also found that the husband converted Appellee’s ownership interest in the donut shop and breached his fiduciary duties to Appellee. However, claims of constructive fraud, breach of fiduciary duty, conversion, or waste in disposing of the community estate, like claims of fraud in transferring community property, cannot be brought as independent torts in a divorce proceeding, as those claims are also subsumed within the spouse’s claim of “fraud on the community” to be considered in the division of the community estate. Thus, those additional jury findings against Appellee’s husband do not establish an independent tort committed against Appellee, without which she has no action for conspiracy by Appellant.

I would sustain Appellant’s first issue and hold that the trial court erred in rendering judgment against Appellant for personal liability based upon TUFTA. It appears that the trial court reached the right result as to the husband and buyers in setting aside the transfer and awarding Appellee the business as a part of the property division in the divorce decree, even though it was for the wrong reason. Those parties have not appealed, and Appellant does not challenge the assessment of actual damages against him for the lost profits nor does he challenge the award of punitive damages other than to argue that it was excessive. In Schlueter, the supreme court expressly declined to consider whether and to what extent a spouse may maintain an action against a third party who participated or conspired with the other spouse to commit a fraud on the community. I believe that the issue is sufficiently raised here, and that we should proceed to consider whether all or some portion of the judgment may be upheld against Appellant based upon conspiracy to commit fraud on the community, or, alternatively, based upon the separate jury finding against him of common law conversion.

      . Tex. Bus. & Com.Code Ann. § 24.005(a)(1) (Vernon 2002).

      . Tilton v. Marshall, 925 S.W.2d 672, 681 (Tex.1996); Cmty. Initiatives, Inc. v. Chase Bank of Tex., 153 S.W.3d 270, 285 (Tex.App.-El Paso 2004, no pet.).

      . Blackthorne v. Bellush, 61 S.W.3d 439, 443 (Tex.App.-San Antonio 2001, no pet.); see also Tel. Equip. Network, Inc. v. TA/Westchase Place, Ltd., 80 S.W.3d 601, 607 (Tex.App.Houston [1st Dist.] 2002, no pet.) (noting Act designed to prevent transfers of property by debtor who intends to defraud creditors by placing assets beyond their reach).

      . Appellee relies upon Thomas v. Casale, 924 S.W.2d 433 (Tex.App.-Fort Worth 1996, writ denied). In that case, as noted by the majority on the instant case, this court did not hold that TUFTA applied but reversed on the basis that the judgment could not be upheld under Section 3.57 of the Texas Family Code, which enables a court to void a community property transfer made by a spouse after a divorce petition is filed, provided the spouse who asks the court to grant that remedy meets the burden of proving that the transferee had notice of the transferor’s intent to injure the other spouse's rights. Id.; see Act of May 4, 1979, 66th Leg., R.S., ch. 193, § 1, 1979 Tex. Gen. Laws 421, 421, recodified by Act of Apr. 3, 1997, 75th Leg., R.S., ch. 7, § 1, 1997 Tex. Gen. Laws 8, 32-33 (current version at Tex. Fam.Code Ann. § 6.707 (Vernon 1998)).

      . Tex. Bus. & Com.Code Ann. § 24.002(3), (4), (6) (Vernon 2002) (emphasis added).

      . Id. § 24.005(a) (emphasis added).

      . See, e.g., Mladenka v. Mladenka, 130 S.W.3d 397, 401-02 (Tex.App.-Houston [14th Dist.] 2004, no pet.) (affirming judgment setting aside conveyance by ex-husband to brother of all his non exempt assets as fraudulent conveyance under TUFTA in post judgment enforcement action by wife as judgment creditor); Goodwin v. Goodwin, 451 S.W.2d 532, 534 (Tex.Civ.App.-Amarillo 1970) (holding that wife with divorce judgment granting lien on airplane that had been part of community estate was creditor entitled to set aside conveyance by husband pending divorce), rev’d on other grounds, 456 S.W.2d 885 (Tex.1970).

      . Schlueter v. Schlueter, 975 S.W.2d 584, 585-86, 589-90 (Tex.1998); see also Mayes v. Stewart, 11 S.W.3d 440, 447-48 (Tex.App.-Houston [14th Dist.] 2000, pet. denied); In re Marriage of Moore, 890 S.W.2d 821, 827 (Tex.App.-Amarillo 1994, no writ); Belz v. Belz, 667 S.W.2d 240, 247 (Tex.App.-Dallas 1984, writ ref'd n.r.e.).

      . Schlueter, 975 S.W.2d at 589.

      . Id. at 588 (citing Belz, 667 S.W.2d at 247).

      . Mat 588-89.

      . Id. at 588 (quoting Belz, 667 S.W.2d at 246-47).

      . See Cohrs v. Scott, 161 Tex. 111, 338 S.W.2d 127, 132-133 (1960) (recognizing and citing prior cases allowing recovery against "third party possessor” and establishing resulting trusts in favor of dispossessed spouse in community property fraudulently transferred); Ginsburg v. Chernoff/Silver & Assocs., Inc., 137 S.W.3d 231, 237 (Tex.App.-Houston [1st Dist.] 2004, no pet.); cf. J. Michael Putman, M.D.P.A. Money Purchase Pension Plan v. Stephenson, 805 S.W.2d 16, 17-19 (Tex.App.-Dallas 1991, no writ) (setting aside deed to third party "insider” by husband pledging community interest in real estate as collateral for existing note).

      . Schlueter, 975 S.W.2d at 588.

      . Lucy v. Lucy, 162 S.W.3d 770, 777 (Tex.App.-El Paso 2005, no pet.) (citing Schlueter, 975 S.W.2d at 588).

      . Schlueter, 975 S.W.2d at 589; see also In re Marriage of Moore, 890 S.W.2d at 825-29.

      . Tex Bus. & Com.Code Ann. § 24.008(a), 24.009(b) (Vernon 2002) (allowing recovery of monetary damages equal to value of asset or amount of debt, whichever is less). But see Flores v. Robinson Roofing & Constr. Co., 161 S.W.3d 750, 756-57 (Tex.App.-Fort Worth 2005, pet. denied) (op. on reh'g) (applying catchall provision in Section 24.008(a) for "any other relief" to allow remedies other than value of asset transferred); Airflow Houston, Inc. v. Theriot, 849 S.W.2d 928, 933-934 (Tex.App.-Houston [1st Dist.] 1993, no writ) (allowing recovery of full amount of debt owed in excess of value of asset under catchall provision). Courts are split on whether punitive damages may be recovered under various versions of the Uniform Fraudulent Transfer Act. See DFS Secured Healthcare Receivables Trust v. Caregivers Great Lakes, Inc., 384 F.3d 338, 354-55 (7th Cir.2004) (certifying question to Indiana Supreme Court and listing jurisdictions allowing and disallowing punitive damages under Act).

      . See Lubbock County v. Trammel’s Lubbock Bail Bonds, 80 S.W.3d 580, 585 (Tex.2002) (explaining that once the supreme court announces a proposition of law, the decision is considered binding precedent, and it is not for courts of appeals to abrogate or modify such precedent).

      . Schlueter, 975 S.W.2d at 589 (citing In re Marriage of Moore, 890 S.W.2d at 829); see also Lucy, 162 S.W.3d at 777-78 (holding waste, mismanagement, and breach of fiduciary duty in connection with community funds constituted fraud on community, not separate causes of action of wife); Loaiza v. Loaiza, 130 S.W.3d 894, 902 (Tex.App.-Fort Worth 2004, no pet.) (holding breach of fiduciary duty and constructive fraud by husband in making expenditures for girlfriend did not constitute independent causes of action, precluding damages and exemplary damages as matter of law); Harper v. Harper, 8 S.W.3d 782, 784 (Tex.App.-Fort Worth 1999, pet. denied) (holding wife could not recover damages for separate cause of action in divorce suit for fraud against husband and his future wife).

      . See Tilton, 925 S.W.2d at 681; Cmty. Initiatives, Inc., 153 S.W.3d at 285.

      . See Lucy, 162 S.W.3d at 777-78 (upholding mislabeling of award such that reversal was not required and upholding disproportionate division of community estate based on fraud on the community even through trial court stated award was reimbursement).

      . Schlueter, 975 S.W.2d at 590.


source: Caselaw Access Project

author: MACKEY K. HANCOCK, Justice.

license: Public Domain

text:
    TRI-STATE CHEMICALS, INC., Appellant, v. FIRST STATE BANK, STRATFORD, Texas; B.A. Donelson; and Doak Crabtree, Appellees.
    No. 07-04-0489-CV.
    Court of Appeals of Texas, Amarillo.
    Nov. 22, 2005.
    Rehearing Overruled Dec. 22, 2005.

      Joanne L. Zimolzak, Kristin H. Landis, McKenna Long & Aldridge, Washington, DC, Thomas D. Farris, Peterson Farris Pruitt & Parker, P.C., Amarillo, for Appellant.
    Robert H. Smith, Smith & Stone, L.L.P., Amarillo, for Appellee.
    Before QUINN, C.J., and REAVIS and HANCOCK, JJ.
   OPINION

MACKEY K. HANCOCK, Justice.

Tri-State Chemicals, Inc. (Tri-State) appeals the trial court’s grant of summary judgment in favor of First State Bank (Bank). The summary judgment ordered that Tri-State take nothing from Bank on its claims for conversion, conspiracy to convert, assumpsit, money had and received (unjust enrichment), tortious interference with contract and theft, under the Texas Theft Liability Act. Concluding that genuine issues of material fact exist as to all claims asserted by Tri-State, we reverse the judgment of the trial court and remand for further proceedings.

STANDARD OF REVIEW

A party may prevail on a summary judgment motion by conclusively establishing the absence of any genuine issue of a material fact and that the party is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c). We review the granting of such a conclusively-established summary judgment using the following standards:

1. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.
2. In determining whether there is a disputed issue of material fact precluding summary judgment, evidence favorable to the non-movant will be taken as true.
3. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor.

Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). A general issue, such as that presented by TriState, allows argument as to all possible grounds upon which summary judgment should have been denied. See Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex.1970).

BACKGROUND

As this appeal is a review of a conclusively-established summary judgment, we must take all evidence favorable to TriState as true and indulge all reasonable inferences in favor of Tri-State. Nixon, 690 S.W.2d at 548-49. Doing so, we find the evidence shows the following.

Tri-State entered into a consignment agreement with Panhandle Agri-Tech, Inc. (Panhandle) on April 24, 1995. By this agreement, Panhandle acknowledged that it did not take title to the consigned goods; that all payments received for sale of the goods, including payments received on accounts, were the absolute property of TriState and were to be kept separate from Panhandle’s accounts; and that no creditor of Panhandle would have any right to or interest in the goods or the proceeds from the sale of the goods. Further, the agreement expressly provided that the risk of loss, save for loss due to Panhandle’s negligence or willful misconduct, would remain with Tri-State.

In late 1995, Panhandle sought a small business loan from Bank. Prior to its approval of the loan, Bank was provided a copy of the consignment agreement between Tri-State and Panhandle and even participated in negotiations regarding the terms of this consignment agreement. As collateral for the loan, Bank took a security interest, which it perfected by filing with the Secretary of State, in all of Panhandle’s inventory, equipment, accounts or contract rights, and cash or non-cash proceeds thereof. Six days after Bank filed its security agreement, Tri-State filed a financing statement with the Secretary of State covering its consigned goods. However, Tri-State’s financing statement did not specifically address proceeds from the sale of the consigned goods.

In 1997, Panhandle, experiencing severe financial difficulties, began commingling payments made on accounts created by the sale of Tri-State’s consigned goods with its own resources. Although in dire financial circumstances, of which Bank was aware, Panhandle paid off the loan. Tri-State contends that the loan payments, at least to some extent, came from payments made on open accounts owned by Tri-State. Thus, Tri-State seeks to recoup these proceeds, which were wrongfully appropriated by Panhandle.

Tri-State filed suit against Bank alleging conversion, conspiracy to convert, as-sumpsit, money had and received (unjust enrichment), tortious interference with contract and theft, under the Texas Theft Liability Act. Bank filed a Motion for Summary Judgment which was granted by the trial court, but reversed and remanded by this Court for procedural defects. See Tri-State Chems., Inc. v. First State Bank, No. 07-00-0180-CV, 2001 WL 99441, at *5, 2001 Tex.App. LEXIS 787, at *20-*21 (Tex.App.-Amarillo February 6, 2001, no pet.).

Upon remand, Bank filed an Amended Motion for Summary Judgment by which Bank contended that it was entitled to summary judgment on the conversion, conspiracy to convert, assumpsit, money had and received, and theft claims because the summary judgment evidence conclusively established that, as a matter of law, TriState could not prove that it had a superi- or right to or owned the money that it claimed. Bank further contended, by its motion, that the summary judgment evidence conclusively established, as a matter of law, that Bank had exercised a superior or equal right to the subject matter of the contract, which is an affirmative defense to a tortious interference with contract claim. The trial court again granted summary judgment in favor of Bank.

Tri-State appeals contending that the trial court erred in granting summary judgment in favor of Bank. Within this general issue, Tri-State argues, inter alia, that Bank’s actual knowledge of the consignment between Tri-State and Panhandle prohibited transference of title to Panhandle, see Tex. Bus. & Comm.Code Ann. § 2.326(c)(2) (Vernon 1968), that Bank’s actual knowledge of the consignment makes Texas Business and Commercial Code section 9.114 inapplicable, see Tex. Bus. & Comm.Code Ann. § 9.114 (Vernon 1994). In its response, Bank contends that this appeal, at its essence, presents a question of who, as between a consignor and a creditor of the consignee, has priority to proceeds generated through collection of open accounts or accounts receivable resulting from the sale of consigned goods. As all grounds for summary judgment asserted by Bank were based on having superior or equal rights to the proceeds from the open accounts, a determination of whether, based on the summary judgment evidence, Bank had superior or equal rights to these proceeds as a matter of law will determine whether Bank was entitled to summary judgment.

DISCUSSION

As a general proposition, we note that the owner of personalty wrongfully taken from him may recoup it, or the proceeds or mutations thereof, from the possession of one who took it or his transferee. Tri-State Chems., Inc. v. W. Organics, Inc., 83 S.W.3d 189, 195-96 (Tex.App.-Amarillo 2002, pet. denied). This is true even if the possessor is a good faith purchaser for value. Id. at 199. To recoup the property, the claimant need only trace his property into the asset he seeks. Id. at 196. Thus, if Tri-State owned the proceeds paid to Bank in satisfaction of Panhandle’s loan, Tri-State is entitled to recoup those proceeds to the extent that it can trace the proceeds back to the property that it owned.

Under section 2.326, goods delivered to another primarily for resale are considered “sale or return” goods and are subject to claims of the “buyer’s” creditors unless one of four exceptions apply. TriState contends that the summary judgment evidence established that the consignment was not a sale or return because Bank had actual knowledge that Panhandle was “substantially engaged in the selling of the goods of others.” See § 2.326(c)(2). In its motion, Bank contended that the undisputed evidence established that the section 2.326(c) exceptions did not apply and, therefore, the “consignment” was a deemed sale or return. Thus, the dispute presented to the trial court turned on whether Bank established, as a matter of law, that the “consignment” was actually a sale or return or whether the summary judgment evidence presented a genuine issue of material fact as to whether the “general knowledge” exception of section 2.326(c)(2) applied.

Taking the evidence favorable to TriState as true and indulging all reasonable inferences from the evidence in favor of Tri-State, we conclude that a genuine issue of material fact exists as to whether Bank had actual knowledge that Panhandle was substantially engaged in selling the goods of others. However, the section 2.326(c)(2) exception applies when the “consignee’s” creditors generally know that their debtor is substantially engaged in selling the goods of others. Bank contends that its actual knowledge is irrelevant to a determination of what Panhandle’s creditors generally knew.

The purpose of inclusion of the knowledge-based exceptions to section 2.326 was to permit creditors to deal with a debtor “upon the assumption that all property in his possession is unencumbered, unless the contrary is indicated by their own knowledge or by public records.” Bufkor, Inc. v. Star Jewelry Co., 552 S.W.2d 522, 523-24 (Tex.Civ.App.-Beaumont 1977, writ ref'd n.r.e.) (emphasis added). In furtherance of this purpose, we hold that the exception contained in section 2.326(c)(2) is met, as to a particular creditor, by proof that the creditor had actual knowledge, prior to its extension of credit, that the debtor was substantially engaged in selling the goods of others. Therefore, the genuine issue of material fact that exists as to whether Bank had actual knowledge of the consignment agreement between Tri-State and Panhandle prior to its extension of credit to Panhandle precludes a finding that, as a matter of law, the goods were delivered on sale or return. As a result, we conclude that the trial court erred in granting Bank’s motion for summary judgment.

Additionally, Bank argued that it had priority to payments made on accounts created by the sale of Tri-State’s consigned goods under section 9.114. However, the express language of section 9.114 indicates that its application is limited to, “A person who delivers goods under a consignment which is not a security interest and who would be required to file under this chapter by Subsection (c)(3) of Section 2.326 ....” (emphasis added). A consignor that can establish that its consignment met one of the section 2.326(c) exceptions other than the filing exception contained in (c)(3) is not required to file a financing statement to protect its ownership interest in the consigned goods. See In re Alper-Richman Furs, Ltd., 147 B.R. 140, 149 (Bankr.N.D.Ill.1992). Thus, as we have previously determined that a genuine issue of material fact exists regarding whether Tri-State met the section 2.326(c)(2) exception, we cannot determine whether section 9.114 has any application to Tri-State’s claims.

CONCLUSION

Having found that a genuine issue of material fact exists as to whether Panhandle’s creditors generally knew that Panhandle was substantially engaged in selling the goods of others, we reverse the summary judgment and remand the cause for further proceedings.

      . Acts 1967, 60th Leg., R.S., ch. 785, § 1, 1967 Tex. Gen. Laws 2343, 2377, amended by Acts 1999, 76th Leg., R.S., ch. 414, § 2.16, 1999 Tex. Gen. -Laws 2739, 2739. As the 1999 amendments to section 2.326 are not applicable to this case, all further references to "section 2.326” or " § 2.326” will be references to the pre-amendment provision.

      . Acts 1973, 63rd Leg., R.S., ch. 400, § 5, 1973 Tex. Gen. Laws 997, 1006, repealed by
        Acts 1999, 76th Leg., R.S., ch. 414, § 1.01, 1999 Tex. Gen. Laws 2639, 2658. As the events giving rise to this case occurred prior to the 1999 repeal of section 9.114, all further references to this provision will be by reference to "section 9.114’’ or " § 9.114.”

      . The exceptions, as applicable to this case, are found in section 2.326(c), which provides, "Where goods are delivered to a person for sale and such person maintains a place of business at which he deals in goods of the kind involved, under a name other than the name of the person making delivery, then with respect to claims of creditors of the person conducting the business the goods are deemed to be on sale or return.... However, this subsection is not applicable if the person making delivery
      (2) establishes that the person conducting the business is generally known by his creditors to be substantially engaged in selling the goods of others, or
      (3) complies with the filing provisions of the chapter on Secured Transactions (Chapter 9).”

      . On appeal, Bank takes the position that the consignment was not deemed a sale or return by section 2.326 because Tri-State filed a financing statement. See § 2.326(c)(3). However, this argument does not comport with the argument presented to the trial court in Bank's motion. To preserve an issue for appellate review, all theories in support of or opposition to a motion for summary judgment must be presented to the trial court in writing. See Casso v. Brand, 776 S.W.2d 551, 553 (Tex.1989). Therefore, we will limit our review to a determination of whether the arrangement between Tri-State and Panhandle would constitute a deemed sale or return under section 2.326.

      . We note that section 9.114 is inapplicable to a "consignment” that is deemed a sale or return by section 2.326. However, we will construe Bank’s argument -under section 9.114 as being made in the alternative.

      . "[A]s against the consignee’s creditors, the consignor who fails to file a financing statement has priority to the consigned goods if [another] of the § 2-326(3) exceptions applies; otherwise, § 9-114 applies, and the consignee’s secured creditors have priority. This view is in accord with the Uniform Commercial Code’s mandate against reading its provisions to render other provisions meaningless. See § 1-104. The majority of courts considering the issue have also adopted this view. See, e.g., In re State Street Auto Sales, 81 B.R. 215, 217-18 [(Bankr.D.Mass.1988)] (§ 9-114 should be limited to situations where the other exceptions to § 2-326(3) do not apply, noting that 'most courts and commentators’ have so held); Matter of Great American Veal, Inc., 59 B.R. 27, 32 (Bankr.D.N.J.1985) (§ 9-114 does not apply where other exceptions to § 2-326(3) do); In re Lebus-Albrecht Lumber Co., 38 B.R. 58, 61 (Bankr.D.N.D.1984) (same).”


author: DON H. REAVIS, Justice.

text:
    Orlando Antwonie HARRIS, Appellant, v. The STATE of Texas, Appellee.
    No. 07-04-0505-CR.
    Court of Appeals of Texas, Amarillo.
    Jan. 13, 2006.
    L. Van Williamson, Amarillo, for Appellant.
    Habón Y. Mohamed, Asst. Potter Co. Atty., Amarillo, for Appellee.
    Before QUINN, C.J., and REAVIS and HANCOCK, JJ.
   MEMORANDUM OPINION

DON H. REAVIS, Justice.

Following a plea of not guilty, appellant Orlando Antwonie Harris was convicted by a jury of indecent exposure and assessed a $1,000 fíne. The fine was suspended in favor of two years community supervision. Presenting two issues, appellant contends (1) the trial court’s grant of community supervision was not authorized by law, and (2) because the grant of community supervision was unlawful, the sentence and underlying conviction are void. We affirm in part and reverse and render in part.

By his first issue, appellant claims suspension of the fine was not authorized by law because the relevant community supervision statutes do not allow for suspension of a fine only. In support of his argument, appellant directs us to article 42.12, section 4 of the Code of Criminal Procedure which provides that “[a] jury that imposes confinement as punishment for an offense may recommend to the judge that the judge suspend the imposition of the sentence and place the defendant on community supervision.” Tex. Code Crim. Proc. Ann. art. 42.12, § 4(a) (Vernon Supp.2005). Section 4 makes no mention of community supervision as an option in the absence of a sentence of confinement. Appellant also relies on Ex parte McIver, 586 S.W.2d 851 (Tex.Cr.App.1979), wherein the Court examined the statutory authority behind a jury verdict sentencing the defendant to both a term of confinement and a fine, with only the fine being probated. After examining article 42.12, the Court concluded “the Legislature did not contemplate that fines would be probated.” Id. at 855.

In the present case, citing section 4(a), the State concedes the jury lacked the statutory authority to recommend that the fine be suspended in the absence of a term of confinement. Considering the lack of statutory authority to the contrary, we agree and conclude the suspension of appellant’s fine in favor of community supervision was unlawful. Appellant’s first issue is sustained.

By his second issue, appellant argues that because the suspension of his fine was not authorized by law, both his sentence and underlying conviction are void. We disagree.

Generally, when a punishment is unauthorized by law, the sentence imposing the punishment is void. E.g., Heath n State, 817 S.W.2d 335, 336 (Tex.Cr.App.1991), overruled on other grounds by Ex parte Williams, 65 S.W.3d 656 (Tex.Cr.App.2001); Coleman v. State, 955 S.W.2d 360, 364 (Tex.App.-Amarillo 1997, no pet.). However, in Ex parte Williams, 65 S.W.3d 656, 657 (Tex.Cr.App.2001), the Court determined that “illegal sentences and unauthorized probation orders are two different things.” In Williams, the defendant was convicted of aggravated assault and granted ten years probation despite the fact he was statutorily ineligible. Id. The Court ruled that the defendant’s sentence was not void because the unauthorized probation order did not constitute an illegal sentence. The Court then explained that community supervision is separate and distinct from the sentence, and therefore, an unlawful grant of community supervision is not subject to the rules that govern unlawful sentences. Id. See also Speth v. State, 6 S.W.3d 530, 533 (Tex.Cr.App.1999) (defining community supervision as “an arrangement in lieu of the sentence, not as part o/the sentence”).

Similarly, we do not find appellant’s conviction or sentence in the present case to be unlawful and void. Appellant cites no authority, statutory or otherwise, in which an unlawful grant of community supervision renders the underlying conviction void. Furthermore, the sentence of a $1,000 fine assessed by the jury is within the range of punishment prescribed by the applicable statute. See Tex. Pen.Code Ann. § 12.22(1) (Vernon 2003). It is the court’s grant of community supervision that is unsupported by authority, and based on Williams, an unlawful grant of community supervision does not render appellant’s sentence or conviction void. His second issue is overruled.

Accordingly, that part of the judgment suspending payment of the $1,000 fine in favor of two years community supervision is reversed and judgment is hereby rendered that appellant’s punishment stands at a $1,000 fine; in all other respects, the judgment is affirmed. See Tex.R.App. P. 43.2.


author: RICHARD H. EDELMAN, Justice.

text:
    In re Tara COMPTON, Relator.
    No. 14-05-00450-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Jan. 24, 2006.
    Sallee S. Smyth, Bill De La Garza, Houston, for relator.
    Gregory B. Enos, Webster, for respondent.
    Panel consists of Justices EDELMAN, SEYMORE, and GUZMAN.
   OPINION

RICHARD H. EDELMAN, Justice.

Relator, Tara Compton, seeks an order compelling the respondent, the Honorable Janis Yarbrough, Judge of the 306th District Court of Galveston County (the “Galveston court”), to transfer a suit affecting the parent-child relationship (“SAPCR”) from Galveston County to Harris County. We conditionally grant the petition for writ of mandamus.

Background

In May of 2004, Compton and the real party in interest, Greg Russell, an unmarried couple, entered into an agreement for conservatorship of their child, P.R., which was approved and incorporated into a final order by the Galveston court. Pursuant to that agreement and order, Compton and Russell were designated joint managing conservators with Compton having the exclusive right to establish the residence of the child. Compton and P.R. thereafter moved to Harris County.

On February 4, 2005, Russell filed a SAPCR (the “modification proceeding”) in the Galveston court, seeking to modify custody and obtain an emergency temporary restraining order (“TRO”), and temporary injunction. On February 5, 2005, a TRO was issued, and Compton was served with notice to appear at a show cause hearing. On February 10, Compton and her counsel appeared at the show cause hearing before an associate judge. However, the hearing was concluded on February 15, and the associate judge awarded temporary custody to Russell on February 16.

In the interim, on February 11, Compton filed a motion (“the motion”) to transfer the suit to Harris County on the ground that P.R. had lived in Harris County for the preceding six months. Following a hearing on the motion, respondent issued an order denying the transfer.

Standard of Review

An erroneous denial of a mandatory venue transfer is subject to mandamus relief without a showing of inadequate remedy by appeal. In re Tex. Ass’n of Sch. Bds., Inc., 169 S.W.3d 653, 656 (Tex.2005). With other exceptions not applicable to this case, a SAPCR must be filed in the county where the child resides unless another court has continuing exclusive jurisdiction. Tex. Fam.Code Ann. § 103.001(a)(1) (Vernon 2002). A court acquires such continuing, exclusive jurisdiction by rendition of a final order. Id. § 155.001 (Vernon 2002). If an action to modify or enforce an order is filed with the court having continuing, exclusive jurisdiction of a suit, then on the timely motion of a party, the court shall transfer the proceeding to the county in which the child has resided for six months or longer. Id. § 155.201(b) (Vernon Supp.2005) (emphasis added). Such a transfer is a mandatory ministerial duty. Proffer v. Yates, 734 S.W.2d 671, 673 (Tex.1987).

Timeliness of Motion

It is undisputed in this case that: (1) in having rendered the final order in the original custody determination, the Galveston court had continuing, exclusive jurisdiction with regard to P.R. when this modification proceeding was filed; (2) P.R. had resided in Harris County more than six months at that time; and, thus, (3) a transfer to Harris County was mandatory if Compton’s motion was timely within the meaning of Section 155.201(b). Such a motion to transfer (by a party other than a petitioner or movant) is timely if made on or before the first Monday after the 20th day after the date of service of citation or notice of the suit (the “answer date”) or before the commencement of the hearing, whichever is sooner. Tex. Fam.Code Ann. § 155.204(a) (Vernon 2002) (emphasis added).

The disposition of this case thus turns on whether “the hearing” for purposes of section 155.204(a) means: (1) as Russell contends, any hearing in the suit, including a hearing on temporary orders, such that the motion was untimely for not being filed before the earlier of the answer date or commencement of the TRO hearing; or, alternatively, (2) as Compton contends, only the final trial on the merits, as contrasted from a hearing on temporary orders or other preliminary matters, such that her motion was timely for being filed before the earlier of the answer date or final hearing on the merits (which had not occurred on the answer date).

Our objective in construing a statute is to ascertain and give effect to the Legislature’s intent. Tex. Dep’t of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 642 (Tex.2004). In doing so, we give meaning to the language consistent with other provisions of the statute and considering the objective the law seeks to obtain and the consequences of a particular construction. Id. We may also look to the context of . the term to determine the Legislature’s intended meaning. Tex. Dep’t of Transp. v. Garza, 70 S.W.3d 802, 806 (Tex.2002).

Although no Texas case has applied Russell’s construction of section 155.204, he cites several examples in Title 5 of the Family Code to show that the Legislature has repeatedly distinguished between the words “hearing” and “trial,” and thus that it intended the term “hearing” to include any hearing in the matter, including a hearing for temporary relief, because it would have employed the term “trial” if it had meant the final trial on the merits.

Conversely, the Legislature’s use of the language “the hearing” in section 155.204(a) suggests that a single, particular hearing, rather than any hearing, was intended, or the Legislature would have used “a” or “any” in place of “the.” Moreover, many of the sections Russell references use the term “a hearing” (105.001(b), 105,004, 154.181(a)) or “a trial or hearing” (or “a hearing or trial”) (107.002(d), 153.0072(e)), neither of which are instructive of the meaning of “the hearing.” Another section he cites (154.122) uses “the hearing” to refer to any hearing at which child support is calculated. However, if anything, this use of the term suggests that “the hearing” is not used to mean any hearing on any subject, but instead only some particular hearing. In addition, even though some contexts may require the terms “hearing” and “trial” to be distinguished, it does not logically follow that all contexts must do so. Thus, for example, section 105.004 expressly uses “hearing” to refer to a trial on the merits:

After a hearing, the court may: (1) grant a motion filed by a party or the attorney or guardian ad litem for the child for a preferential setting for a trial on the merits; and (2) give precedence to that hearing over other civil cases if the court finds that the delay created by ordinary scheduling practices will unreasonably affect the best interest of the child.

Tex. Fam.Code Ann. § 105.004 (Vernon Supp.2005) (emphases added).

In addition, Russell contends that, because at least 45 days notice of trial is required under Texas Rule of Civil Procedure 245, a trial on the merits could never occur before the answer date. See Tex.R. Crv. P. 245. Therefore, Russell contends that Compton’s interpretation would render the answer date language in section 155.204(a) meaningless. On the contrary, however, Rule 245 requires 45 days notice only for contested cases and, even for those, allows a shorter period by agreement of the parties. Therefore, depending on the court’s docket, the nature and scope of the relief sought, and the preferences of the parties, a matter that is relatively small, simple, or uncontested might well have a hearing on the merits in fewer than the possible 26 or so days from the SAPCR’s filing date to its answer date.

Moreover, the only Texas decision on this issue has applied the relevant statutory language in the manner advocated by Compton. See Greene v. Barker, 806 S.W.2d 274 (Tex.App.-Fort Worth 1991, orig. proceeding). Although Greene interpreted Section 11.06(f), the predecessor to Section 155.204(a), the relevant language of Section 11.06(f) did not change when it was recodified in Section 155.204(a), and it is undisputed that Greene is factually on point with this case.

With regard to Greene, Russell contends: (1) its holding rests on superseded venue procedures (involving pleas of privilege and interlocutory appeals) and thus on case law that no longer reflects the intent of the Legislature with regard to venue issues in the family law context; (2) those procedures focused on whether the parties were litigating a preliminary matter or issues that invoked the jurisdiction in the main case, such that “venue relate[d] to a trial upon the merits and not to temporary and preliminary orders which [did] not invoke the court’s general jurisdiction in the main suit”; (3) changes made to the Texas Family Code since Greene created the distinct concept of continuing, exclusive jurisdiction and thereby eviscerated the prior venue rules and procedures; (4) the distinction is important in this case because under the current Family Code, venue in Chapter 103 addresses the county in which a case should be filed originally, whereas the continuing, exclusive jurisdiction addresses which specific court has the sole power to modify a prior final order; (5) with the enactment of section 155.204(a), the Family Code changed from the former venue focus on the issues being litigated to a definitive rule that a motion to transfer must be filed prior to any hearing; and (6) unlike venue (as it was formerly applied), continuing, exclusive jurisdiction does apply to interlocutory orders because a court without continuing, exclusive jurisdiction cannot issue temporary orders.

However, because the Legislature reco-dified the relevant portion of former section 11.06(f) to current section 155.204(a) after Greene was decided without changing the language, we must presume it adopted that interpretation. See Grapevine Excavation, Inc. v. Md. Lloyds, 35 S.W.3d 1, 5 (Tex.2000). Moreover, we fail to perceive how the changes in venue procedure, or their underlying rationale, even bear on the question before us.

Although the concept of continuing, exclusive jurisdiction is a fundamental and vital aspect of the SAPCR provisions of the Family Code, it is clearly subject to a mandatory exception where a child has resided in another county more than six months. This suggests that the policy of maintaining continuing, exclusive jurisdiction is subordinate to the policy dictating that matters affecting the parent-child relationship be conducted in the county where the child resides. Cf. In re T.J.L., 97 S.W.3d 257, 264 (Tex.App.-Houston [14th Dist.] 2002, no pet.). This was also trae under former statutory law. See Cassidy v. Fuller, 568 S.W.2d 845, 847 (Tex.1978). If anything, Russell’s interpretation of Section 155.204 that contesting a motion for temporary relief at an emergency hearing waives a party’s right to mandatory transfer can only create a trap that thwarts this policy.

Nor is it apparent how any other intent or purpose of the Family Code (or any other useful purpose) is advanced by Russell’s interpretation, or how a party might ever be prejudiced by the contrary approach. Under limited circumstances, temporary orders can be entered by courts other than the one with continuing, exclusive jurisdiction; and, conversely, the court with continuing, exclusive jurisdiction can enter temporary orders even after a motion for mandatory transfer has been filed. Tex. Fam.Code Ann. § 155.005 (Vernon 2002). The potential urgency for the protection afforded by temporary orders, on the one hand, and the general policy that SAPCR proceedings be conducted in the county of the child’s residence, on the other, need not be at odds and can only suffer if made so.

Based on the foregoing, we conclude that: (1) “the hearing” in section 155.204 refers to whatever final hearing is conducted to ultimately dispose of the pending SAPCR action; and, accordingly, (2) a hearing on a motion for temporary relief or other preliminary matter conducted before the answer date is not a deadline for filing a motion to transfer. Because Compton’s motion was therefore timely, and Russell stipulated that P.R. had lived in Harris County for six months or longer, a transfer to Harris County was mandatory, and the trial court abused its discretion by denying the motion. Accordingly, we conditionally grant the petition for writ of mandamus and direct the trial court to vacate its March 18, 2005, order denying the motion and to enter an order transferring the case to Harris County.

      . The denial of a mandatory transfer is not subject to interlocutory appeal. See Tex Fam. Code Ann. § 155.204(e) (Vernon 2002). Because the motion to transfer in this case was filed before June 18, 2005, it is governed by the version of Section 155.204 in effect before being amended as of that date. See Act of June 19, 1999, 76th Leg., R.S., ch. 1390, § 14, 1999 Tex. Gen. Laws 4043, amended by Act of June 18, 2005, 79th Leg., R.S., ch. 916, §§ 15, 28, 2005 Tex. Gen. Laws 3153, 3155.

      . See supra note 1.

      . See Tex. Fam.Code Ann. § 105.001(b) (Vernon Supp.2005) (stating that temporary orders may not be rendered "except after notice and a hearing " (emphasis added)); id. § 105.004 (stating that, "[a]fter a hearing, the court may. (1) grant a motion filed by a party or the attorney or guardian ad litem for the child for a preferential setting for a trial on the merits” (emphasis added)); id. § 107.002(d) (stating that the “[c]ourt may compel the guardian ad litem to attend a trial or hearing and to testify as necessary for the proper disposition of the suit” (emphasis added)); id. § 153.0072(e) (Vernon 2002) (stating that "a court that is notified 30 days before trial that the parties are using collaborative law procedures to attempt to settle a dispute may not, until a party notifies the court that the collaborative law procedures did not result in a settlement: (1) set a hearing or trial in the case” (emphasis added)); id. § 154.122 (stating that "[t]he amount of a periodic child support payment established by the child support guidelines in effect in this state at the time of the hearing is presumed to be reasonable” (emphasis added)); id. § 154.181(b) (Vernon Supp.2005) (stating that, "[bjefore a hearing on temporary orders or a final order, if no hearing on temporary orders is held, the court shall ....” (emphasis added)); id. § 201.005(b) (Vernon 2002) (stating that "[a] trial on the merits is any final adjudication from which an appeal may be taken to a court of appeals”).

      . See Tex.R. Civ. P. 245 ("The Court may set contested cases on written request of any party, or on the court’s own motion, with reasonable notice of not less than forty-five days to the parties of a first setting for trial, or by agreement of the parties .... ” (emphasis added)).

      . See also Green v. Green, 424 S.W.2d 479, 481 (Tex.Civ.App.-Tyler 1968, no writ) (holding under general venue principles that mother’s appearance at a show cause hearing set by father in change of custody proceeding did not waive her venue challenge).

      .Former Section 11.06(f) read:
      A motion to transfer by any other party [than petitioner or movant] is timely if it is made on or before the Monday next after the expiration of 20 days after the date of service of citation or notice of the action or before the commencement of the hearing, whichever is sooner.
      Act of June 10, 1981, 67th Leg., R.S., ch. 355, § 1, sec. 11.06(f)-(i), 1981 Tex. Gen. Laws 942, amended by Act of April 20, 1995, 74th Leg., R.S., ch. 20, § 1, sec. 155.204, 1995 Tex. Gen. Laws 113, 171 (codified at Tex Fam.Code Ann. § 155.204).

      . Calloway v. Calloway, 442 S.W.2d 926, 928 (Tex.Civ.App.-Eastland 1969, no writ).

      . See Tex. Fam.Code Ann. §§ 105.001,156.006 (Vernon Supp.2005); see also id. §§ 82.003, 85.062 (Vernon 2002) (concerning venue and protective orders; allowing protective order to be entered by a court other than the court of continuing, exclusive jurisdiction); id. § 152.204 (Vernon 2002) (granting "temporary emergency jurisdiction” to any court in the State if the child is present in the State and emergency protection is required).

      . A formal writ of mandamus will not issue unless the trial court fails to comply with this conditional order.


author: Opinion by Chief Justice MORRISS.

text:
    In the Interest of V.M.P., J.R.P. and B.L.P., Children.
    No. 06-04-00128-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted Oct. 5, 2005.
    Decided Jan. 31, 2006.

      Wayne Toliver, Gilmer, for appellant.
    Alex Tyra, Law Office of Alex Tyra, Longview, for appellee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by Chief Justice MORRISS.

By the time the trial court began issuing orders in this ongoing child support dispute between ex-spouses Virginia Denise Magouirk and Douglas Edward Pace, there were five motions pending regarding Douglas’ child support obligations — originally ordered in 1993 — -including Virginia’s motions to modify, enforce, and clarify, as well as Douglas’ motions to modify and clarify. Springing from those five motions, a collection of relevant court orders, and Virginia’s responses to those orders, are revealed by the record. The collection is detailed in the following list:

August 18, 2004 Trial court signs order denying Virginia’s motion to enforce.
September 22, 2004 Virginia files a motion for new trial.
October 13, 2004 Two additional orders are signed.
(A) The trial court signs “Order Modifying Child Support Obligations.” This order directs Douglas to pay weekly child support of $211.46 (as long as there were three minor children, none of whom had graduated from high school, become married, or otherwise become emancipated), $176.22 (when two children remained), and $140.97 (when one child remained).
(B) The trial court also signs an order titled “Amended Order Denying [Virginia’s] Motion for Enforcement of Child Support and Order of Clarification.”
November 12, 2004 Virginia files a notice of appeal.

The end result of the trial court’s orders is the denial of Virginia’s motion to enforce Douglas’ child support obligation and the modification of his obligation. On appeal, Virginia attacks various aspects of the trial court’s denial of her motion to enforce and the fact that the trial court “clarified” the original child support order. We affirm because (1) Virginia did not timely appeal the denial of her motion to enforce, and (2) the trial court was empowered to modify Douglas’ child support obligation.

(1) Virginia Did Not Timely Appeal the Denial of Her Motion to Enforce

Before we address the issues Virginia presents, we must first determine the proper scope of our appellate jurisdiction over those issues. See, e.g., Am. Broadcasting Cos. v. Gill, 6 S.W.3d 19, 26 (Tex.App.-San Antonio 1999, pet. denied), overruled in part on other grounds by Turner v. KTRK TV., Inc., 38 S.W.3d 103 (Tex.2000). On August 18, 2004, the trial court signed an order denying Virginia’s motion for enforcement and held the original divorce decree was too vague and ambiguous to be enforced. Virginia’s motion for new trial — filed more than thirty days after the trial court signed the order denying enforcement — was untimely. See Tex.R. Crv. P. 329(a) (motion for new trial due within thirty days from date appeal-able order is signed). Therefore, Virginia’s notice of appeal, filed November 12, 2004, was submitted too late to properly appeal the August 18 order denying enforcement. See Tex.R.App. P. 26.1 (notice of appeal due within thirty days of appeal-able order if motion for new trial not timely filed). As Virginia’s first through fifth issues all relate to the propriety of the August 18 order, we must overrule each for want of jurisdiction.

(2) The Trial Court Was Empowered to Modify Douglas’ Child Support Obligation

In her final point of error, Virginia contends the trial court’s October 13 “clarification” order amounts to an improper substantive change. While we agree that the “clarification” was, indeed, a modification, we conclude the trial court had authority to modify the child support obligation, and thus committed no error in doing so.

Article 157.421 of the Texas Family Code permits a trial court to “clarify” a previous child support order by “rendering an order that is specific enough to be enforced by contempt.” Tex. Fam.Code Ann. § 157.421 (Vernon 2002). However, “[a] court may not change the substantive provisions of an order to be clarified.... ” Tex. Fam.Code Ann. § 157.428 (Vernon 2002) (emphasis added). A substantive change made through a clarification order is unenforceable. Id.

“A clarification order is analogous to a judgment nunc pro tunc in that it cannot substantively change a final order.” In re Marriage of Ward, 137 S.W.3d 910, 913 (Tex.App.-Texarkana 2004, no pet.) (citing Escobar v. Escobar, 711 S.W.2d 230, 231 (Tex.1986)). “To be clerical in nature, the error must be one that is not the result of judicial reasoning, evidence, or determination.” Ward, 137 S.W.3d at 913 (citing Andrews v. Koch, 702 S.W.2d 584, 585 (Tex.1986)). “Correction of a clerical error does not effect a substantive change in the court’s order.” Ward, 137 S.W.3d at 913 (citing Dickens v. Willis, 957 S.W.2d 657, 659 (Tex.App.-Austin 1997, no pet.)). “On the other hand, judicial error results from judicial reasoning or determination.” Ward, 137 S.W.3d at 913 (citing Dickens, 957 S.W.2d at 659). “Substantive change results from correction of a judicial error.” Id.

In the instant case, the 1993 decree ordered Douglas to pay child support of “$97.50 per week, or 30% of his net weekly income (as defined by the Family Code), whichever is more.... ” The trial court’s “clarification” order ordered Douglas to pay only $97.50 per week, without providing for potential percentage increase that was clearly envisioned by the 1993 order. This is clearly a substantive change, which our Code expressly forbids — unless there is authority to modify.

And, in this case, the trial court did have authority (pursuant to the parties’ motions requesting modification) and jurisdiction (pursuant to Tex. Fam.Code Ann. § 156.401 (Vernon Supp.2005)) to modify Douglas’ child support obligation. Thus, to the extent that the trial court’s “clarification” order of October 13, 2004, amounted to a substantive modification, such change would certainly have been permissible if it were rendered as part of a “modification” order. We, therefore, conclude the trial court, while mistaken in titling its order, did not err in entering the order. Accordingly, we overrule Virginia’s final point of error.

There being no other issues presented, and for the reasons stated, we affirm the trial court’s judgment.

      . Virginia alleged that Douglas owed her $24,874.58 in overdue child support.

      . Virginia’s appeal raises six issues: (1) the trial court erroneously found the 1993 decree vague and ambiguous because the court’s ruling came after it conducted a trial on Virginia’s motion for enforcement; (2) the court lacked jurisdiction to declare the original divorce decree vague and ambiguous because the trial court’s jurisdiction to do so expired in 1993; (3) the court erroneously found the 1993 divorce decree vague and ambiguous because it is specific enough to be enforced through money judgment; (4) the court erroneously ruled contrary to Douglas’ judicial admissions; (5) the court erred by failing to award Virginia's attorneys’ fees; and (6) the court erred by clarifying a substantive provision of the 1993 decree. Issues one through five all attack the trial court’s denial of Virginia’s motion to enforce. Issue six attacks the "clarification” of Douglas’ child support obligation.

      . The trial court’s October 13, 2004, order purporting to deny, again, Virginia’s motion to enforce was ineffective to extend her deadline to file a notice of appeal because the order was issued after expiration of the trial court’s plenary power to change its order on the motion to enforce. See Tex.R. Civ. P. 329b(d) (plenary power exists for thirty days after judgment signed).

      .Relative to Virginia’s third point of error, we note some apparent confusion as to whether a finding that the 1993 child support order was insufficient to support a contempt finding also meant that the 1993 child support order was sufficiently vague to preclude a money judgment and, therefore, subject to clarification by the trial court.
      The remedies for delinquent child support — of either (1) pursuing contempt or (2) obtaining a money judgment — are "separate and distinct." In re Dickinson, 829 S.W.2d 919, 921 (Tex.App.-Amarillo 1992, no writ). For contempt, the trial court looks primarily to the four corners of the underlying order to determine whether the obligor has violated that order. See, e.g., Ex parte Lindeman, 492 S.W.2d 599 (Tex.App.-Fort Worth 1973, orig. proceeding) (examining original decree to determine if sufficiently specific to support subsequent contempt finding). For a money judgment, the trial court is less concerned with the four comers of the original decree and more concerned with whether the mov-ant’s proof is sufficient to support a dollar amount. See Tex. Fam.Code Ann. § 157.162(a) (Vernon 2002). And unlike a contempt proceeding, see Tex. Fam.Code Ann. § 157.114 (Vernon 2002), the respondent need not be present at the hearing on a motion to enforce in order for the movant to be awarded a money judgment. Tex. Fam.Code Ann. § 157.115 (Vernon 2002). Nor does a finding that the respondent is not in contempt preclude the award of a money judgment for back-owed child support. Tex. Fam.Code Ann. § 157.162(b). Therefore, while a child support order may be too vague to support a finding of contempt, such a finding does not preclude the award of a money judgment. See Gross v. Gross, 808 S.W.2d 215, 219 (Tex.App.-Houston [14th Dist.] 1991, no writ).
      Because we lack jurisdiction to review the trial court's finding that the 1993 order was too vague, we do not decide whether the trial court erred by finding the 1993 order was too vague to enforce.


author: Justice CASTILLO.

text:
    Andre Lamon MORGAN, Appellant, v. The STATE of Texas, Appellee.
    No. 13-05-106-CR.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    Feb. 2, 2006.

      Jonathan Munier, Houston, for appellant.
    Donald W. Rogers, Jr., Asst. Dist. Atty., William J. Delmore, III, Chief Prosecutor, Appellate Division, Houston, for state.
    Before Justices HINOJOSA, YÁÑEZ, and CASTILLO.
   OPINION

Opinion by

Justice CASTILLO.

Appellant, Andre Lamon Morgan, raises six issues on appeal, contending that his plea of no contest to the offense of murder was involuntary, the trial court erred in failing to withdraw the plea sua sponte, the conviction is void because the pre-sentence investigation report was reviewed prior to a finding of guilt, in violation of his rights to due process under the federal and the state constitutions, and the sentence of thirty years constitutes cruel and unusual punishment in violation of his rights under the federal and state constitutions. The State has filed a motion to dismiss for want of jurisdiction. We dismiss for want of jurisdiction.

I. BACKGROUND

Court documents dated September 20, 2004, show the following: (1) the State agreed to (a) abandon the two enhancement counts alleged in the indictment, (b) a pre-sentence investigation (“PSI”), and (c) a cap on punishment at forty years’ confinement in the Texas Department of Criminal Justice; (2) Morgan judicially confessed to committing murder as alleged in the indictment; (3) Morgan waived his constitutional rights to a jury trial and to confront witnesses, and his right against self-incrimination; and (4) he acknowledged in writing his understanding of the statutory admonishments and the proceedings against him and the consequences of his plea of no contest. On September 20, 2004, Morgan appeared before the trial court to enter a plea of no contest to the offense of murder. At the plea hearing, the State abandoned the enhancement allegations in the indictment. After admonishing Morgan, the trial court affirmatively accepted Morgan’s no contest plea but deferred a finding of guilt, pending completion of the PSI.

On January 7, 2005, Morgan filed a motion to withdraw his plea on grounds that it was not knowingly and voluntarily made. At a hearing held January 12, 2005, Morgan testified as to his motion to withdraw the plea, and the trial court denied the motion. The trial court stated that the PSI was complete, and it sustained the defense’s sole objection to the PSI on grounds that it contained recorded testimony that was not subject to cross-examination. Morgan testified during the sentencing phase and adduced evidence to support his claim of innocence and the involuntariness of his guilty plea. The trial court pronounced Morgan guilty of murder, assessed punishment at a thirty-year prison term, and entered judgment accordingly. This appeal ensued. The trial court has certified that this is not a plea bargain case and Morgan has the right of appeal. See Tex.R.App. P. 25.2(a)(2), (d).

II. JURISDICTION

The State filed a motion to dismiss for want of jurisdiction on grounds that this is a plea-bargain case and Morgan does not have the right to appeal under rule 25.2(a)(2) of the Texas Rules of Appellate Procedure. See Tex.R.App. P. 25.2(a)(2). The State reasserts its argument in its appellate brief. In a plea-bargain case, we review the record to determine (1) our jurisdiction, and (2) whether the trial court’s certification is correct. See Dears v. State, 154 S.W.3d 610, 613 (Tex.Crim.App.2005); see also Greenwell v. Court of Appeals 13th Judicial Dist., 159 S.W.3d 645, 649 (Tex.Crim.App.2005); Ernst v. State, 159 S.W.3d 668, 670 (Tex.App.-Corpus Christi 2005, no pet.). We turn to the record to determine first whether this is a plea-bargain case.

During the hearing on his motion to withdraw the no contest plea, Morgan testified as follows on cross-examination:

Q: You plead no contest to this charge, right?
A: Yes.
Q: [Defense counsel] explained to you what the plea bargain in this case was, right? right?
A: Yes, sir.
Q: That the State would abandon two enhancement paragraphs and cap your punishment, possible punishment at 40 years, right?
A: Yes, sir.

There are two basic kinds of plea-bargaining, charge-bargaining and sentence-bargaining. See Shankle v. State, 119 S.W.3d 808, 813 (Tex.Crim.App.2003) (en banc). Charge-bargaining involves whether a defendant will plead guilty to the offense that has been alleged or to a lesser or related offense, and whether the prosecutor will dismiss, or refrain from bringing, other charges. Id. Sentence-bargaining may be for binding or non-binding recommendations to the court on sentences, including a recommended “cap” on sentencing and a recommendation for deferred-adjudication probation. Id.; see Perkins v. Court of Appeals, 738 S.W.2d 276, 283 (Tex.Crim.App.1987) (construing “cap” on punishment as part of a plea agreement). A plea-bargained case is one in which the defendant pleaded guilty or nolo contendere and the punishment did not exceed the punishment recommended by the prosecutor and agreed to by the defendant. Threadgill v. State, 120 S.W.3d 871, 872 (Tex.App.Houston [1st Dist.] 2003, no pet.); Waters v. State, 124 S.W.3d 825, 826 (Tex.App.Houston [14th Dist.] 2003, pet. ref'd) (holding that a conviction based on an agreement that puts a cap on punishment for the charged offense is subject to the restrictions on appeals from plea bargains set forth in Texas Rule of Appellate Procedure 25.2) (citing Tex.R.App. P. 25.2).

In this case, the trial court, without objection, treated the plea consistent with proceedings in a plea-bargain case. In accordance with the terms of the plea-bargain agreement with the State, the trial court sentenced Morgan to confinement for a term within the agreed-to cap on punishment. We conclude that Morgan entered a no contest plea with a recommendation from the State with regard to punishment. Thus, rule 25.2(a)(2) applies.

In a plea bargain case — that is, a case in which a defendant’s plea was guilty or nolo contendere and the punishment did not exceed the punishment recommended by the prosecutor and agreed to by the defendant — a defendant may appeal only: (A) those matters that were raised by written motion filed and ruled on before trial, or (B) after getting the trial court’s permission to appeal.

Tex.R.App. P. 25.2(a)(2). The plain import of the rule is that appeals from plea-bargain cases are limited to the situations set forth in the rule. See Greenwell, 159 S.W.3d at 649. However, our inquiry does not end there. We must decide whether the trial court’s certification is correct. Dears, 154 S.W.3d at 613; Greenwell, 159 S.W.3d at 649.

Our conclusion that this is a plea-bargain case conflicts with the trial court’s rule 25.2 certification indicating that “this is not a plea-bargain case.” The purpose of the certification requirement is to efficiently sort appealable cases from non-appealable cases. Greenwell, 159 S.W.3d at 649. Certification allows appealable cases to move through the system unhindered while eliminating, at an early stage, the time and expense associated with non-appéalable cases. Id. When appeal is barred by rule 25.2(a)(2), the clerk’s and court reporter’s records need not be prepared, counsel need not be appointed, and briefs need not be filed. Id. On the other hand, if there is something in whatever record does exist that indicates that an appellant has the right to appeal, the court of appeals must determine whether the certification is deficient and resolve the conflict. Id. Thus, we must resolve the conflict. Id.

We have reviewed the record, as Dears instructs, and conclude that this is a plea-bargain case. Morgan pleaded no contest to the charged offense, the punishment did not exceed the punishment recommended by the State, and it is consistent with Morgan’s agreement, as the evidence demonstrates. There is no written motion ruled on before trial. See Tex.R.App. P. 25.2(a)(2)(A). The trial court did not affirmatively grant permission to appeal. See Tex.R.App. P. 25.2(a)(2)(B). The trial court certified that Morgan has the right to appeal on grounds that the case “is not a plea-bargain case.” We conclude that the certification is incorrect. The record does not demonstrate that Morgan has the right to appeal. We resolve the deficiency in the trial court’s certification against a finding of jurisdiction. Accordingly, we do not have jurisdiction to review Morgan’s issues on appeal. Tex.R.App. P. 25.2(a); see Young v. State, 8 S.W.3d 656, 666-67 (Tex.Crim.App.2000) (en banc).

III. DISPOSITION

We grant the State’s motion and dismiss the appeal for want of jurisdiction. Tex. R.App. P. 25.2(a)(2).

      . See Tex. Pen.Code Ann. § 19.02(b) (Vernon 2003).

      . Morgan authenticated the documents in writing and orally.

      . Dears v. State, 154 S.W.3d 610, 613 (Tex.Crim.App.2005).