author: BOYD, Chief Justice.

text:
    Linda WILLIAMS and John W. Williams, Individually and as Representatives of The Estate of John Wesley Williams, Deceased, Appellants, v. Stanley CHATMAN; Carolyn Thompson; Melissa Gebhart; Larry Reat; Dorothy Johnson; and Bobbie Patterson, Appellees.
    No. 07-98-0310-CV.
    Court of Appeals of Texas, Amarillo.
    Oct. 20, 1999.

      Law Office of George Hanko, III, George J. Hanko, III and Theodore G. Skarbowski, Austin, for appellant.
    McWhorter, Cobb & Johnson, Ann Manning, R. Michael McCauley, Jr., Craig, Terrill & Hale, Robert L. Craig, Jr., Lubbock, for appellee.
    Before BOYD, C.J., and QUINN and REAVIS, JJ.
   BOYD, Chief Justice.

This appeal arises out of a suit by Linda and John W. Williams, individually and as representatives of the estate of their son John Wesley Williams (the Williams), against six school employee defendants and others for the death of John. They now appeal from a summary judgment in favor of the school employees based on the statutory immunity provided by Section 22.051 of the Texas Education Code. Finding no reversible error in the judgment of the trial court, we affirm.

Although many of the relevant facts are disputed by the parties, in accordance with the standards applicable to the review of summary judgments, we accept as true those facts alleged by the Williams, the non-movants below. In the spring of 1995, John Wesley Williams was a . student at W.G. Alderson Junior High School in Lubbock. On May 22, 1995, after payment of a $3 fee, he attended a party sponsored by his school at the Texas Tech University Aquatic Center. Several teachers and other school employees also attended the party. At the urging of other students, John got onto the diving board. Although he told the other students he was unable to swim, they refused to let him climb down from the diving board, insisting that he jump into the water. Shortly after he jumped from the board, some of the school employees noticed that he did not resurface and called that to the attention of a Texas Tech lifeguard. John was revived using CPR. He was taken by ambulance to a local hospital but died the following day of cardiac arrest.

The Williams, individually and as representatives of his estate, brought suit against Texas Tech, the lifeguards, their supervisors, the Lubbock Independent School District, and several school employees present at the event. The Williams’ third amended petition named the following defendants each in their individual capacities: Kat Powell, director of the Texas Tech Recreation Center; Joe Maclean, director of the Texas Tech Aquatic Center; Andrew Copple, Dawn Carlson, Randi Finkelberg; Jennifer Fuller, and Joel Schuh, lifeguards at the aquatic center; Stanley Chatman, school principal; Carolyn Thompson and Melissa Gebhart, assistant principals; Larry Reat and Dorothy Johnson, teachers at the school; and Bobbie Patterson, a school counselor.

Each of the school employees moved for summary judgment, asserting that they were entitled to immunity under Section 22.051 of the Texas Education Code. The Williams responded to these motions with several objections, including special exceptions and objections to their summary judgment evidence. Without ruling on these objections, the trial court granted each of the motions and severed the claims against the school employee parties, thus making the judgment final. The court subsequently overruled each of the objections to the summary judgment evidence and, as well, the motions for new trial.

The Williams now challenge the judgment in favor of those defendants. In support of that challenge, they present six allegations of error in the trial court’s judgment. » They are that the court erred in: 1) granting summary judgment on the issue of statutory immunity; 2) granting summary judgment on their claims of gross negligence; 3) granting summary judgment on issues not raised in the pleadings; 4) granting summary judgment for Larry Reat on issues not before the court; 5) considering inadmissible summary judgment evidence; and 6) overruling their motions for new trial.

It is fundamental that summary judgment for a defendant is proper only when the defendant negates at least one element of each of the plaintiffs theories of recovery, or pleads and conclusively establishes each element of an affirmative defense. Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979). When reviewing a summary judgment, we take as true all evidence favorable to the non-movant and indulge every reasonable inference in the non-movant’s favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 549 (Tex.1985).

The Williams’ first assignment of error questions the applicability of the statutory immunity afforded by Section 22.051 of the Texas Education Code. Subsection (a) of that statute provides:

A professional employee of a school district is not personally liable for any act that is incident to or within the scope of the duties of the employee’s position of employment and that involves the exercise of judgment or discretion on the part of the employee, except in circumstances in which a professional employee uses excessive force in the discipline of students or negligence resulting in bodily injury to students.

Tex. Edue.Code Ann. § 22.051(a) (Vernon 1996). Subsection (c) of the statute defines “professional employee” to include: a superintendent, principal, teacher, supervisor, social worker, counselor, nurse, and teacher’s aide. The immunity afforded by this statute contains four elements which must be established by the person asserting it: 1) he or she is a professional employee of a school district, 2) acting incident to or within the scope of duties, 3) which involve the exercise of judgment or discretion, and 4) are not within the stated exceptions. Downing v. Brown, 925 S.W.2d 316, 320 (Tex.App.—Amarillo), reversed in part on other grounds, 935 S.W.2d 112 (Tex.1996).

The Williams do not contest that each defendant is a professional employee as that term is defined in Section 22.051. Nor do they assert any dispute as to the inapplicability of the statute’s exceptions. Their argument is that appellees failed to conclusively establish the second and third elements required for immunity.

Within Scope of Duties

Appellees’ motions for summary judgment, and their brief on appeal, only address whether their conduct was within the scope of their duties. Because they did not argue that the conduct was incident to their duties, we may not consider that as a basis on which to affirm the judgment. Stiles v. Resolution Trust Corp., 867 S.W.2d 24, 26 (Tex.1993) (holding summary judgment cannot be affirmed on grounds not expressly set out in the motion or response).

The Williams argue there is a genuine question of fact on whether appellees were acting within the scope of their duties at the party because: 1) the party was not on school property, 2) it occurred after normal school hours, 3) they were not required to attend, and 4) they were not paid for attending the party. They have cited no authority holding the scope of a professional school employee’s duties are limited to the geographical boundaries of school property or to regular school hours.

The Williams cite the deposition of Larry Reat and the principal, Stanley Chatman. The Williams characterize Reat’s testimony as stating that he did not get paid extra to attend the party and his regular pay did not cover such activities and therefore his attendance at the party was not within the scope of his duties. An examination of Reat’s testimony and other summary judgment evidence leads to the contrary conclusion. Reat answered an unequivocal yes when asked if he felt it was part of his job to attend the function. When asked whether the function was “a part of [his] paycheck too,” Reat responded that “[t]he paycheck doesn’t cover it.” He elaborated on this statement by explaining that he thought he would be making less than minimum wage if he counted all the time spent on school activities outside school hours. The final deposition question on this issue was “do you feel that your paycheck covers extracurricular activities or activities such as off-campus field trips after-hours?” Reat’s answer was: “Actually, I really don’t give it a lot of consideration.”

Reat’s testimony that he felt it was part of his job to attend the party is not controverted by the apparently facetious comment concerning his pay. This is so for-several reasons. First, the record contains a copy of each of the defendants’

employment contracts for the 1994-95 school year. Those contracts specifically provide the employees were to be paid an annual salary and not an hourly wage. Consequently, the fact that the school did not provide extra pay for attending the party is irrelevant. The contracts provided that the salary was in consideration of “any additional duties, responsibilities, tasks, and transfers,” and that the employee could be assigned “other or additional duties during the terms (sic) of this contract.” Additionally, we have held that the scope of employment issue is not determined by the payment of wages, the controlling factors concern the employer’s right of control. Doe v. Boys Clubs of Greater Dallas, 868 S.W.2d 942, 948-49 (Tex.App.—Amarillo, 1994), aff'd, 907 S.W.2d 472 (Tex.1995).

The Williams next focus on the testimony of Principal Chatman concerning whether he “directed” or “requested” the school staff to attend the party. They do not cite authority which would suggest that a “request” to an employee precludes performance of the requested task from being within the scope of their duties. Rather, they contend that the evidence shows a conflict on this issue, thus presenting a fact question and precluding summary judgment. Even if the evidence on this issue is conflicting, whether Chatman directed or requested the staff to attend is not material to the issue,of their immunity. To adopt the Williams’ argument whether an employee was acting within the scope of their duties would turn on the specific wording chosen by their supervisor. We do not agree that the “scope of duties” determination turns on such hyper-technical analysis. It would lead to inconsistent results in cases with virtually identical facts.

The relevant issue is whether the conduct of the school employees attending the party was in the scope of their employment, not whether every teacher was required to be present. The affidavits of each of the employees are couched in terms of their obligation to supervise the students at the party. Chatman’s affidavit states that he told the teachers and administrators that he “expected them to attend the party to help supervise the students.” The affidavits of each of the other defendants, except Gebhart, stated that Chatman requested them to attend, and discussed their obligation to supervise students. Gebhart’s affidavit recites that at the party, she asked Chatman where he wanted her to supervise students, showing her belief that she was obligated to perform that duty. Taking evidence favorable to the Williams as true that Chatman merely requested the school employees to attend, it is clear that the purpose of their attendance was to supervise the students, an obligation they would not have but for their employment with the school district.

The Williams also argue that there is “no competent summary judgment evidence ... that the defendants were hired to take children to parties.” Appellees have presented the affidavit of the school superintendent, Curtis Culwell, which specifically addresses that issue. Culwell’s affidavit states “the employees are expected to attend school-sponsored activities, including field trips, at the direction or request of their principal. Failure to comply with this request, without prior approval from the principal, could result in discipline of the employee.” This uncon-troverted summary judgment evidence establishes that “taking children to parties” was within the scope of appellees’ duties.

The Williams finally argue there is a fact question on whether appellees were acting within the scope of their duties because they “violated the Texas Tech facility rules.” They argue our decision in Dickerson v. Davis, 925 S.W.2d 128 (Tex.App.—Amarillo 1996, writ dism’d w.o.j.), suggests that violation of such rules precludes a finding that they were acting in the scope of their duties. We disagree.

The rules allegedly violated required that children under the age of 17 be supervised at all times and that only one person was allowed on the diving board at a time. We initially note that the Williams provide no citations to evidence in the record supporting either contention! The summary judgment evidence shows that numerous faculty members were present continuously during the party for the purpose of supervising the students. Secondly, an employee’s negligent performance of their duties does not prevent the acts from being within the scope of their duties. See Leadon v. Kimbrough Bros. Lumber Co., 484 S.W.2d 567 (Tex.1972). This rule is illustrated in the context of school employee immunity in Pierson v. Houston Independent School Disk, 698 S.W.2d 377, (Tex.App.—Houston [14th Dist.] 1985, writ refd n.r.e.), where the court of appeals noted that even assuming the defendant principal’s conduct was in violation of city ordinances or state law, that would not bar the application of his statutory immunity. Id. at 381. Finally, Dickerson did not discuss whether the defendant was acting within the scope of his authority because both parties agreed that he was so acting. 925 S.W.2d at 125. The issue there was whether the city employee was performing a discretionary act. Id. at 126.

We find appellees’ summary judgment evidence established, as a matter of law, that they were acting within the scope of their duties as defined in section 22.051(a) of the Texas Education Code.

Exercise of Judgment or Discretion

The third element a school employee must establish to be entitled to immunity under Section 22.051 is that the act or acts upon which the claims are based involved the exercise of judgment or discretion. The Williams question whether appellees’ duty to supervise the students was ministerial or discretionary. This is not a proper characterization.

It is undisputed that appellees had a mandatory duty to supervise the students. This was supported by the deposition testimony of Chatman, Reat, the school superintendent and the Williams’ expert witness, Jeffrey L. Ellis. Appellees presented evidence that the school district had no policies directing teachers how to supervise students as well as Chatman’s affidavit that he did not tell teachers how to supervise the students. Even when Melissa Gebhart specifically asked Chat-man where he wanted her at the party, his instruction was to “just walk around and keep checking on the kids.” This vague instruction is evidence that she was to use her own judgment.

The Williams argue the mandatory duty to supervise made the act ministerial and therefore did not involve the exercise of judgment or discretion. Although they contend the supreme court’s opinion in Downing v. Brown, 935 S.W.2d 112 (Tex.1996) supports that contention, we are convinced that the holding in Downing establishes that appellees’ duty to supervise involved the exercise of judgment or discretion.

The supreme court’s opinion in Downing was a review of this court’s opinion in Downing v. Brown, 925 S.W.2d 316 (Tex.App.—Amarillo 1996). In that case, we held that a school district policy requiring teachers to develop and post a discipline management plan left the teacher no discretion as to whether she developed and posted a plan, distinguishing those mandatory duties from her discretion in determining the plan’s content. Id. at 321. This distinction was supported by a fine of cases recognizing the difference between a duty to perform an act and the exercise of discretion as to how the act is performed. See, e.g., Greenberg, Benson, Fisk and Fielder, P.C. v. Howell, 685 S.W.2d 694, 695 (Tex.App.—Dallas 1984) (orig.proceeding); Boswell, O’Toole, Davis and Pickering v. Stewart, 531 S.W.2d 380, 382 (Tex.Civ.App.—Houston [14th Dist.] 1975) (orig.proceeding); Jones v. Smith, 470 S.W.2d 305, 307 (Tex.Civ.App.—Houston [1st Dist.] 1971) (orig.proceeding). Citing only the purpose of Section 22.051, our supreme court declined to follow the reasoning in this line of cases and apparently viewed all aspects of the “broad responsibility of maintaining classroom discipline” as discretionary. Downing, 935 S.W.2d at 114.

The court’s reference to the teacher’s “responsibility” in Downing implied a duty to maintain discipline. The existence of this duty did not prevent the court from holding it was a duty which involved the exercise of judgment or discretion. Accepting as true the Williams’ claim of a mandatory duty to supervise the students, they offer no distinction between this duty and the duty to maintain discipline in Downing. We find that, under our supreme court’s opinion in Downing, appel-lees’ duty to supervise involved the exercise of judgment or discretion within the meaning of Section 22.051. Several cases decided under the predecessor to Section 22.051 support the conclusion that the statutory immunity provided to professional school employees applies to claims of failure to supervise or negligent supervision. See Barr v. Bernhard, 562 S.W.2d 844 (Tex.1978) (immunity applied to claims of failure to supervise); Diggs v. Bales, 667 S.W.2d 916 (Tex.App.—Dallas 1984, writ refd n.r.e.) (negligent supervision); Schumate v. Thompson, 580 S.W.2d 47 (Tex.Civ.App.—Houston [1st Dist.] 1979, writ refd n.r.e.) (failure to supervise). But see, Foster v. Estrada, 974 S.W.2d 751, 754 (Tex.App.—San Antonio 1998, pet. denied).

The Williams next argue summary judgment was improper because appellees were “not immune from civil liability for violation of their independent duty to supervise under the common-law doctrine of in loco parentis ” or their duty to follow the Texas Tech Aquatic Center rules. These arguments are without merit. The Williams offer no support for the implicit assumption that the grant of immunity contained in Section 22.051 only applies to some theories of liability. The plain language of the statute imposes no such limitation. Where the elements of an immunity defense are established, the statute provides the employee “is not personally liable.” . This immunity applies without regard to the plaintiffs theory of liability. See Duson v. Midland County Independent School Dist., 627 S.W.2d 428, 429 (Tex.Civ.App.—El Paso 1981, no writ) (rejecting a similar argument in a claim against a school district).

We also reject the Williams’ argument, based on Kassen v. Hatley, 887 S.W.2d 4 (Tex.1984), that appellees’ discretion was not “governmental” discretion. That case involved claims of medical malpractice against medical personnel employed by a government entity. In addressing the defendants’ claims of official immunity, the court rejected the notion that it only applied to activities which were “uniquely governmental.” Id at 10. Even so, based on public policy, the court held that official immunity did not apply to the exercise of “medical discretion.” Id at 11. Although no case applies this analysis to the statutory immunity granted under Section 22.051, the Williams argue that the Kassen distinction is analogous to the facts before us. We disagree. Cases addressing the issue uniformly hold school sponsored activities as “governmental.” See Gravely v. Lewisville Independent School Dist, 701 S.W.2d 956, 957 (Tex.App —Fort Worth 1986, writ ref d n.r.e.).

After reviewing each of the arguments advanced by the Williams in support of their first issue, we find the summary judgment evidence sufficient to establish appellees’ affirmative defense of immunity as a matter of law and overrule the Williams’ first issue.

Immunity for Gross Negligence

The Williams’ second issue challenges the summary judgment on the ground that the immunity provided by Section 22.051 of the Texas Education Code does not apply to claims of gross negligence. They cite Campbell v. Jones, 153 Tex. 101, 264 S.W.2d 425 (1954), for the proposition that government officials have no immunity when they act willfully or maliciously or in cases of intentional torts. We initially note that neither Campbell nor the case before us contain any allegation of intentional torts. Moreover, the Williams’ petition did not allege that appellees acted with malice, it merely alleged gross negligence. Although it has since been modified, the governing version of Section 41.003 of the Civil Practice and Remedies Code permitted the recovery of exemplary damages for gross negligence and malice, with each term being defined in Section 41.001.

The Williams’ logic appears to be that since Campbell stated, even in dicta, that public officials can be hable for acts committed with malice, and exemplary damages may be recovered for both malice and gross negligence, immunity must not be available for gross negligence. We find this reasoning unpersuasive.

First, Campbell actually involved the liability of school board members for breach of contract, not a tort. Id. at 425. It did not involve a claim for exemplary or punitive damages. Additionally, and significantly, Campbell was decided before the legislature enacted the progenitor to Section 22.051, former Section 21.912. Acts of May 30, 1995, 74th Leg., R.S., ch. 260, §§ 58, 86, 1995 Tex.Gen.Laws 2207, 2498, 2505.

Appellees’ response to the Williams’ contention focuses on the rules of statutory construction. In particular, they emphasize the rule that words excluded from a statute must be presumed to have been excluded for a purpose. Cameron v. Terrell and Garrett, Inc., 618 S.W.2d 535, 540 (Tex.1991). They point to Sections 22.052 and 22.053, which also address the immunity of school employees and volunteers and expressly state the immunity granted does not apply to liability for gross negligence. The legislature’s omission of this limitation from Section 22.051, they argue, supports the conclusion that the immunity it provides is applicable to claims of gross negligence. See Laidlaw Waste Systems, Inc. v. City of Wilmer, 904 S.W.2d 656, 659 (Tex.1995). We agree. Applying these well established rules of statutory construction we hold the trial court did not err in applying the immunity of Section 22.051 to the Williams’ claims of gross negligence. We overrule their second issue.

In their third issue, the Williams assign error to the granting of summary judgment “on issues not raised by the plaintiffs’ pleadings or defendants’ motion.” Their specific complaint is that their live pleading alleged the defendants “failed to supervise” John and the other students and violated the Aquatic Center rules, but that appellees’ motion for summary judgment attempted to negate only the “negligent supervision” allegations and did not address the issue of “failing to supervise.” Consequently, they allege, the motions did not negate the claims actually asserted and summary judgment was improper. We disagree.

Summary judgment was granted on immunity, the sole ground raised in ap-pellees’ motions. As discussed above, a defendant’s entitlement to immunity is determined by their ability to establish the elements of that immunity. Once established, the immunity applies without regard to the particular theory alleged by the plaintiff. Here, appellees established each of the statutory elements of immunity under Section 22.051 and the inapplicability of the statute’s exceptions. That immunity defeats the Williams’ negligence claims regardless of whether those claims were based on appellees’ actions or failure to act. We overrule the Williams’ third issue.

The Williams’ fourth issue assigns error to the granting of summary judgment for Larry Reat on the grounds of no evidence of duty or proximate cause because 1) those grounds were withdrawn before the hearing on the motion for summary judgment, and 2) there were genuine issues of material fact on those issues. The withdrawal of these grounds is supported by an order signed August 19,1998. This point is easily addressed by reference to the well-established rule that if a trial court’s order granting summary judgment does not specify the ground or grounds relied upon for its ruling, summary judgment will be upheld if at least one ground advanced in the motion survives review. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989). Here, Reat’s motion closely tracked the other motions in asserting statutory immunity. Our holding that the summary judgment evidence supports the trial court’s finding that immunity applies is sufficient to sustain that judgment and obviates the need to address any other theories which may have been advanced by appellees in the trial court. We overrule the Williams’ fourth issue.

The fifth issue raised by the Williams alleges error in considering improper evidence. In their first subdivision of this issue, they contend the trial court “admitted and considered evidence and argument contrary to the judicial admissions of [Cul-well, Chatman and Reat] that supervising students is a mandatory act which [they] have no discretion in determining to do.” This argument merely reasserts the argument made in support of their first issue. As discussed above, under our supreme court’s holding in Downing, appellees’ concession of a mandatory duty to supervise was not inconsistent with it being a discretionary act within the meaning of Section 22.051.

In their second assertion under this issue, the Williams challenge the overruling of their objections to appellees’ summary judgment evidence. We initially note that the manner of their presentation of this issue is violative of Rule 38.4 of the Rules of Appellate Procedure. That rule imposes a 50-page limit on an appellant’s or appellee’s brief. Rule 38.1(j)(2) specifically provides that items should not be included in an appendix in an attempt to avoid the page limits imposed by the rules. That appears to be exactly what the Williams have done. In connection with this issue their brief, which is just under the 50-page limit, contains a bare listing of the statements to which they object. Review of their argument in support of these objections requires examination of a 27-page appendix. Although we have reviewed that material in this case, we caution counsel to strictly adhere to the limitations imposed by the Rules of Appellate Procedure.

The first two objections in the Williams’ brief are representative of these objections. The first objection is to the statement in the affidavit of Chatman, the school principal, that “if transportation is required [to attend a school sponsored trip] Board policy FMG (LOCAL)(see exhibit I) requires that the students are transported in transportation provided by the school to and from the event, unless the parent authorized otherwise.” They object on the basis that the statement is conclusory, contains uncontrovertible information, represent his subjective and unilateral beliefs and are unsupported by any factual information and provides no basis for any of the opinions, beliefs or conclusions. It is clear from the quoted portion of the affidavit that the objections are without merit. The affidavit refers to the school board’s written policies which were attached to the affidavit. Examination of that document clearly supports the challenged affidavit statement.

The objection to the description of the event as school-sponsored, is similarly baseless. ' They assert that Chatman’s characterization of the party as school-sponsored is controverted by the affidavit of assistant superintendent Wayne Havens. An examination of Havens’s affidavit strongly supports Chatman’s statement. Havens’s affidavit provided:

Whenever a Principal wishes to take ... a group of their students, to an off-campus destination, they must contact my office and receive prior approval. In May, 1995, Stanley Chatman called my office and I gave approval for the Alder-son students to go to the Texas Tech Recreation Center for their end-of-school party. Whenever a school-sponsored event or field trip takes place, and transportation is needed, it is required that the students are transported to and from the event by transportation provided by the district.

The affidavit of Dorothy Johnson expressly stated the party was a school-sponsored event.

We have examined each of the objections advanced in the Williams’ 27 pages of objections to appellees’ summary judgment evidence and find none of them to be meritorious. Addressing them individually in this opinion would only serve to lengthen the opinion. We overrule the Williams’ fifth issue.

The Williams’ sixth and final issue recasts their previous issues by alleging the trial court abused its discretion in overruling their motion for new trial “based upon the errors noted in issues number 1, 2, 3, 4, and 5 above.” Because we find no reversible error in those issues, we likewise overrule the Williams’ sixth issue. The judgment of the trial court is hereby affirmed.

      . All statutory references are to the Texas Education Code Annotated (Vernon 1996 & Supp.1999), unless otherwise noted.

      . A brief of amicus arguing their conduct was "incident to” their duties overlooks this well-established rule.

      . Examples would include cases like Victory v. Faradineh, 993 S.W.2d 778 (Tex.App.—Dallas 1999, n.w.h.), where a deputy sheriff struck a car while driving to deliver film to a photographic laboratory. The rule advocated by the Williams would have the government employer's liability determined on whether the deputy’s supervisor directed or requested him to make the delivery.

      . As discussed below, Reat’s motion asserted additional grounds.


source: Caselaw Access Project

author: DON H. REAVIS, Justice.

license: Public Domain

text:
    Timothy Lewis HUSEMAN, Appellant, v. The STATE of Texas, Appellee.
    No. 07-98-0232-CR.
    Court of Appeals of Texas, Amarillo.
    Nov. 3, 1999.
    Discretionary Review Refused May 3, 2000.
    Eric Willard, Plainview, for appellant.
    Terry McEachern, Dist. Atty., Robert W. Kinkaid, Jr., Asst. Dist. Atty., Plain-view, for appellee.
    Before QUINN and REAVIS and JOHNSON, JJ.
   DON H. REAVIS, Justice.

Appellant Timothy Lewis Huseman pled guilty to aggravated assault with a deadly weapon and the jury assessed punishment at 15 years incarceration and a $10,000 fíne. Appellant now appeals his conviction presenting seven points of error. Appellant contends the trial court erred in: 1) refusing to allow him to withdraw a guilty plea, waiver of jury trial, and stipulation of evidence, 2) failing to read the indictment in open court and not permitting appellant to enter a plea, 3) denying appellant’s motion for change of venue and mistrial due to excessive publicity, 4) not quashing the jury panel due to the inclusion of a checkoff on the jury questionnaires for contributing jury service fee to the Crisis Center, 5) denying challenges for cause to three jurors, 6) admitting into evidence the postoperative photographs, appellant’s oral statement, and prior incidents of domestic violence, and 7) excluding evidence of the victim’s past behavior. Based upon our review of appellant’s first two points which we consider together, the judgment of the trial court must be reversed and the cause remanded for a new trial.

Except for noting that appellant was convicted of aggravated assault with a deadly weapon upon his former wife, a detailed historical statement of the facts is not necessary to our disposition. The jury was qualified, selected, and seated on May 5, 1998, for trial on appellant’s plea of not guilty. Then, on May 6, before the jury was seated and the State proceeded, appellant announced his desire to withdraw his plea of not guilty, and that he desired to proceed upon a plea of guilty with his election for the jury to set punishment. After appropriate admonishment by the court, appellant signed a stipulation of evidence. When the jury was seated and the indictment read, appellant pled guilty. Rudina Heard Huseman, the victim, was called to testify the morning of May 7 and was on the witness stand when the trial court announced that it was time to take the noon recess. However, as she was stepping down from the witness stand, she asked one of the jurors what was written on her juror’s badge. Following the granting of a mistrial, the case was set to commence on May 19. However, this setting was vacated due to the death of the victim’s mother, and the case was again reset for trial on June 16.

On June 16, counsel appeared and before the jury arrived, the court considered numerous pre-trial matters. The pre-trial conference concluded with counsel for appellant presenting a written motion to withdraw his guilty plea, and recant his judicial stipulation and waiver of jury trial. During argument out of the jury’s presence, among other things, appellant’s counsel urged that appellant should be “restored to his original position” prior to the mistrial and the guilty plea. Before ruling on appellant’s motion, the trial court granted a recess to allow State’s counsel to research the question. After the recess, upon noting that the trial court considered the effectiveness of the guilty plea, waiver of a jury trial, and adjudication of guilt on May 6, notwithstanding the prior mistrial, the trial court denied appellant’s motion because it was untimely presented, and proceeded'to trial without any plea being made before the jury was seated. The trial court did, however, note appellant’s objection and gave him a continuing objection. Following presentation of the evidence and the trial court’s instructions and charge, the jury returned its verdict finding appellant guilty as instructed and set his punishment.

By his first point of error, appellant contends the trial court was required to permit him to withdraw his guilty plea. By his second point, he contends the trial court erred because it failed to accept his plea of not guilty. By his argument, appellant reasons that in effect, the granting of a mistrial restored the status of the prosecution to the same position as it was,. before the commencement of the trial on May 6. We agree and will discuss these points together. In our analysis, we are required to determine (1) whether the trial court had the authority to grant a mistrial as to the punishment phase only, (2) the legal effect of granting the mistrial, and (8) whether the conviction is null and void because appellant was not allowed to enter a plea during the June proceeding.

We first consider whether the trial court had authority to grant a mistrial limited to the punishment phase only. In State v. Bates, 889 S.W.2d 306, 310 (Tex.Cr.App.1994), the Court affirmed a decision by the Eastland Court of Appeals holding that a trial court does not have authority to grant a new trial as to the punishment stage only, because of the specific language in article 44.29 of the Texas Code of Criminal Procedure Annotated (Vernon Supp.1999). See also State v. Hight, 907 S.W.2d 845, 846 (Tex.Cr.App.1995), following Bates and holding that only appellate courts have the authority to grant a new trial on the basis of an error or errors made in the punishment stage of trial. Because a mistrial occurs before the completion of a trial and a new trial follows a completed trial, the terms are not synonymous; however, for these purposes there is no significant distinction, Tex.R.App. P. 21.1, and the two are functionally equivalent. Durst v. State, 900 S.W.2d 134, 138-39 (Tex.App.—Beaumont 1995, pet. refd). Even though article 44.29 does not mention a “mistrial,” because (i) the Legislature has expressed its policy regarding new trials, (ii) the legal effect of a mistrial is a “nugatory proceeding,” as discussed below, (iii) a mistrial and a new trial are functionally equivalent, and (iv) in the interest of judicial consistency and uniformity, we hold the trial court did not have the authority to grant a mistrial limited to the punishment phase only.

Next, we consider the legal effect of the grant of a mistrial. In Bullard v. State, 168 Tex.Crim. 627, 331 S.W.2d 222, 223 (1960), the Court held that after a mistrial, the case stands as it did before the mistrial. Later, in Rodriguez v. State, 852 S.W.2d 516, 520 (Tex.Cr.App.1993), the Court held that “a declaration of mistrial renders a pending trial a ‘nugatory’ proceeding....” These cases demonstrate that when a mistrial is declared, the proceedings before the granting of the mistrial become legally ineffective upon a mistrial being declared. Therefore, appellant’s plea of guilty on May 6, before the mistrial was granted, was rendered void by the declaration of mistrial on May 7.

When the trial court empaneled the jury to hear the punishment phase on June 17, following the grant of a mistrial on May 7, the case proceeded without appellant entering a plea. Instead, the trial court denied appellant’s request to withdraw his prior plea and his argument that he should be restored his former status, and the trial court proceeded based on appellant’s original plea of guilty entered before the mistrial was granted. Because appellant’s plea of guilty on May 6 was void, the case proceeded to trial at the punishment stage without appellant entering any plea. However, a plea is essential in every criminal case and where none is entered, the trial is a nullity. Willis v. State, 389 S.W.2d 464 (Tex.Cr.App.1965). Moreover, triable issues are not joined until the indictment is read and a plea is entered. Peltier v. State, 626 S.W.2d 30, 31 (Tex.Cr.App.1981). In Warren v. State, 693 S.W.2d 414, 415 (Tex.Cr.App.1985) citing article 36.01 of the Texas Code of Criminal Procedure, the Court held that without the reading of the indictment and the entering of a plea, no issue is joined and this procedure is also mandatory at the penalty stage of a bifurcated trial. Points of error one and two are sustained which pretermits our consideration of the remaining points of error. Tex.R.App. P. 47.1.

Accordingly, we reverse the judgment of the trial court and remand the cause for further proceedings.

      . Guilty plea entered before the grant of a mistrial.

      . The State acknowledges that whether a defendant can waive his right to a trial by jury regarding the guilt/innocence phase of a trial, submitting such issue to the trial court, and then have a jury determine the issue of punishment may be a case of first impression in Texas.

      . All dates referred to are in the year 1998.

      . Although the remark may appear to be innocent and not intended to result in bias, because the permanency of the victim’s eyesight impairment as a result of the attack was a significant question, the trial court granted a mistrial.

      .We note that the judgment, signed June 25, recites that appellant, on May 6, entered a plea of guilty, stipulated to the evidence and waived his right to a trial by jury regarding his guilt/innocence. Also the judgment recites that on May 6, the court found appellant guilty of the offense.

      . The judgment does recite that appellant pled guilty on May 6.


author: W.G. ARNOT, III, Chief Justice.

text:
    CAPROCK INVESTMENT CORP., Appellant, v. FEDERAL DEPOSIT INSURANCE CORPORATION et al., Appellees.
    No. 11-97-00099-CV.
    Court of Appeals of Texas, Eastland.
    Feb. 10, 2000.
    Opinion Overruling Rehearing April 27, 2000.

      D. Patrick Long, Patton Boggs LLP, David L. Swanson, Ford Youngblut White & Salazar, Dallas, for appellant.
    Elton Montgomery, Montgomery & Peavy, Graham, Ivan Cintron, Federal Deposit Ins. Corp., David A. Groveman, Dallas, William F. (Pete) Baker, McClesky
    Harriger Brazill <⅞ Graf, Lubbock, Lance Hall, Sweetwater, for appellees.
    Panel consists of: ARNOT, C.J., and WRIGHT, J., and DICKENSON, S.J.

       Bob Dickenson, Retired Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.

   OPINION ’

W.G. ARNOT, III, Chief Justice.

This appeal arises out of the attempt to collect on a delinquent note. On December 30, 1987, Elton Montgomery, A1 Jon-ietz, Vernon Stevens, Tom Griffin, and Charles L. Cook, as individuals, executed a promissory note in the amount of $180,-000.00 payable to the Texas Bank & Trust Co. in Sweetwater, Texas. The loan was given for the purchase of producing oil, gas, and mineral leases in New Mexico and Oklahoma. The properties were purchased by Montgomery First Corp. and LEOH Management Co., a general partnership whose partners were Jonietz, Stevens, Griffin, and Cook. Montgomery First Corp., Jonietz, Stevens, Griffin, and Cook executed deeds of trust to Texas Bank & Trust Co. pledging the properties to secure the loan. In 1988, the borrowers defaulted on the note, and Texas Bank & Trust Co. made demand and initiated suit and foreclosure proceedings.

Although properly served, none of the borrowers originally filed an answer. On June 21, 1989, the trial court entered a default judgment against the borrowers for the sum of $154,349.16, the amount of unpaid principal and the accumulated interest owing; ordered foreclosure of the deed of trust liens; and ordered the sale of the secured property. Unknown to Texas Bank & Trust Co., Jonietz, one of the borrowers, had filed for protection in the bankruptcy court on June 1, 1989. On July 11, 1989, Jonietz filed a motion to set aside the trial court’s default judgment which was granted by the court on July 20, 1989. Jonietz has been subsequently severed from this suit.

On July 27, 1989, Texas Bank & Trust Co. failed, and its assets were transferred to the Federal Deposit Insurance Corporation as Receiver (FDIC-R). On March 17, 1992, Montgomery First Corp. filed an answer and a counterclaim against Texas Bank & Trust Co., and Elton Montgomery intervened in this suit asking for a declaratory judgment as to the rights and legal status between Texas Bank & Trust Co., its receivers, Montgomery First Corp., and Elton Montgomery, individually.

FDIC-R entered into a purchase and assumption agreement with First National Bank, Sweetwater, which agreed to purchase some of the assets and assume the deposits and certain other liabilities of the failed Texas Bank & Trust Co. FDIC-R requested that the Federal Deposit Insurance Corporation (FDIC-C) purchase certain assets of Texas Bank & Trust Co. to facilitate its purchase and assumption agreement with First National Bank, Sweetwater. On July 27,1989, the FDIC-C entered into a contract of sale with the FDIC-R, agreeing to purchase those assets of Texas Bank & Trust Co. not purchased by First National Bank, Sweetwa-ter. The contract specifically provided that FDIC-R would prepare a Schedule “A” describing the assets to be included in the sale to FDIC-C even if the schedule was not completed as of the date of sale. Also, on July 27, 1989, FDIC-R conveyed all of Texas Bank & Trust Co.’s assets not purchased by First National Bank, Sweet-water, to FDIC-C.

On April 21, 1992, FDIC-C sold the Montgomery note to Caprock Investment, Corp. On July 10, 1992, stating that it had purchased the note and that it was a successor in interest to Texas Bank & Trust Co. and FDIC-C, Caprock filed a notice of its intent to substitute itself as plaintiff and filed an amended petition suing Elton Montgomery, individually, and Montgomery First Corp. on the note, as well as the remaining partners of LEOH Management Co., Cook, Griffin, and Stevens. Elton Montgomery filed an objection to Ca-proek’s intervention. Elton Montgomery, Montgomery First Corp., Stevens, FDIC-R, and Caprock all filed motions for summary judgment.

On February 28, 1994, and on March 25, 1994, the trial court entered orders denying Caprock’s right to intervene in this cause, striking Caprock’s pleadings including its motion for summary judgment, denying FDIC-R’s motion for summary judgment, and granting summary judgment for Elton Montgomery and Stevens. On December 9, 1996, the trial court signed an order granting Montgomery First Corp.’s motion for summary judgment. The trial court later severed the actions against LEOH Management Co., Griffin, and Cook from this suit. Caprock appeals, bringing 12 points of error. We reverse and remand.

In its first five points of error, Caprock urges that the trial court erred in denying its right to intervene in this cause and in striking its pleadings. We agree.

In Guaranty Federal Savings Bank v. Horseshoe Operating Company, 793 S.W.2d 652 (Tex.1990), the Supreme Court addressed this issue. Under TEX. R.CIV.P. 60, a person or entity has the right to intervene if he could have brought the same action or any part thereof in his own name or if he would be able to defeat recovery, or some part thereof, if the action had been brought against him. Texas Supply Center, Inc. v. Daon Corporation, 641 S.W.2d 335, 337 (Tex.App.—Dallas 1982, writ ref d n.r.e); Inter-Continental Corporation v. Moody, 411 S.W.2d 578, 589 (Tex.Civ.App.—Houston [1st Dist.] 1966, writ refd n.r.e.). The interest asserted by the intervenor may be legal or equitable. Inter-Continental Corporation v. Moody, supra at 589. Although the trial court has broad discretion in determining whether an intervention should be stricken, it is an abuse of discretion to strike a plea in intervention if (1) the intervenor meets the above test, (2) the intervention will not complicate the case by an excessive multiplication of the issues, and (3) the intervention is almost essential to effectively protect the interve-nor’s interest. Texas Supply Center, Inc. v. Daon Corporation, supra at 337; Inter-Continental Corporation v. Moody, supra at 589.

Elton Montgomery and Stevens allege that, because Caprock never produced the Schedule A described in the contract of sale and referred to in the assignment of assets from FDIC-R to FDIC-C, Caprock cannot prove that it is the owner of the Montgomery and Stevens’ note and that it has no right to intervene. Elton Montgomery and Stevens assert that the parties stipulated that the production of Schedule A would identify whether the note was in fact sold by FDIC-R to FDIC-C and that, having failed to produce Schedule A, Ca-prock was properly struck as a party by the court.

The stipulation referred to by Elton Montgomery and Stevens is not in the record before us. TEX.R.CIV.P. 11. In its August 1993 order setting aside its July 1993 order which allowed Caprock to appear as a substitute plaintiff, the trial court stated: “Through its failure to deliver [Schedule A], Caprock has failed to present evidence of title or ownership of the promissory note made the basis of this cause.” However, the trial court should determine the party’s justiciable interest on the basis of the sufficiency of the petition in intervention. Metromedia Long Distance, Inc. v. Hughes, 810 S.W.2d 494 (Tex.App.—San Antonio 1991, writ den’d); McCord v. Watts, 777 S.W.2d 809, 812 (Tex.App.—Austin 1989, no writ). ■ The sufficiency of the petition is tested by its allegations of fact construed in conjunction with the allegations of fact set out in the pleadings of those persons resisting the intervention. Rogers v. Searle, 533 S.W.2d 440, 442 (Tex.Civ.App.—Corpus Christi 1976, no writ).

Failure to produce Schedule A was not fatal to Caprock’s ability to prove that it is the owner of the note. Transfer of a note may be proved by testimony as well as by documentation. Christian v. University Federal Savings Association, 792 S.W.2d 533 (Tex.App.—Houston [1st Dist.] 1990, no writ). The missing exhibit was not necessary to establish Caprock as the owner. TEX. BUS. & COM. CODE ANN. § 3.301 (Vernon Supp.2000). See Lloyd v. Lawrence, 472 F.2d 313 (5th Cir.1973); Bailey, Vaught, Robertson and Company v. Remington Investments, Inc., 888 S.W.2d 860 (Tex.App.—Dallas 1994, no writ).

Because we find that the trial court abused its discretion in denying Caprock’s intervention, Caprock’s Points of Error Nos. 1 through 5 are sustained.

We next address Caprock’s Points of Error Nos. 6 through 11, asserting that the trial court erred in granting Elton Montgomery’s and Stevens’ motions for summary judgment. When reviewing a summary judgment, this court will adhere to 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 deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true; and
(3) Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor.

TEX.R.CIV.P. 166a; Nixon v. Mr. Property Management Company, Inc., 690 S.W.2d 546, 548-49 (Tex.1985). Issues that are not expressly presented to the trial court in writing cannot be urged on appeal. Goswami v. Metropolitan Savings and Loan Association, 751 S.W.2d 487, 491 (Tex.1988); Nixon v. Mr. Property Management Company, Inc., supra at 548-49; City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671 (Tex.1979).

When both an appellant’s and an appellee’s motions for summary judgment are properly before the trial court, all evidence accompanying both motions is considered in deciding them. DeBord v. Muller, 446 S.W.2d 299, 301 (Tex.1969). In discharging its burden of demonstrating that the trial court’s decision was erroneous because the appellees failed to establish as a matter of law the absence of an issue of material fact, appellant must point out any fact question which allegedly existed on material issues. Kimble v. Aetna Casualty and Surety Company, 767 S.W.2d 846, 847 (Tex.App.—Amarillo 1989, writ den’d).

At issue in Elton Montgomery’s, and Stevens’ motions for summary judgment was the position that Jonietz’ discharge in bankruptcy, as a matter of law, satisfied their obligation on the note because Jon-ietz was a co-maker and that Caprock was estopped from collecting its debt against them. Elton Montgomery and Stevens contended that the bankruptcy court’s confirmation of Jonietz’ plan paid or otherwise satisfied the note because Jonietz valued his interest in the collateral in an amount greater than the amount owing on the note as stated in the proof of claim filed by FDIC-C. In Jonietz’ bankruptcy case, FDIC-C’s proof of claim showed that approximately $165,000.00 was owed on the debt. Jonietz listed the value of the oil and gas properties pledged as collateral as having a value of $180,000.00. Elton Montgomery and Stevens were listed as additional creditors in Jonietz’ bankruptcy. Elton Montgomery and Stevens argue that, because FDIC-C failed to object to this valuation in Jonietz’ bankruptcy and because the plan was adopted, Caprock was estopped from collecting on the note as a matter of law. We disagree.

The effect of collateral estoppel is to preclude a reexamination in the second suit of any matter that was necessarily determined in the first suit. Wilhite v. Adams, 640 S.W.2d 875 (Tex.1982); Benson v. Wanda Petroleum Company, 468 S.W.2d 361 (Tex.1971). While the bankruptcy court’s confirmation of a plan binds the debtor and all creditors as to that debtor, it does not follow that a discharge in bankruptcy alters the rights of a creditor to collect from third parties. 11 U.S.C.A. § 524(e) (West 1993); First Fidelity Bank v. McAteer, 985 F.2d 114 (3rd Cir.1993). Unless an instrument specifies otherwise, co-makers are severally and jointly liable for the debt. TEX. BUS. & COM. CODE ANN. § 3.116 (Vernon Supp. 2000); Bixenstine v. Palacios, 805 S.W.2d 889 (Tex.App.—Corpus Christi 1991, no writ). It is clear from the language and history of Section 524(e) that the discharge of a debtor’s obligation by operation of the Bankruptcy Code does not discharge or affect in any way a co-maker’s liability on his obligation.

Elton Montgomery and Stevens have not shown that their debt has been previously discharged as a matter of law. Consequently, the trial court erred in granting their motions for summary judgment. Ca-prock’s Points of Error Nos. 6 through'll are sustained.

In its final point of error, Caprock urges that the trial court erred in not granting FDIC-R’s motion for summary judgment. We disagree. After considering all of the summary judgment evidence, there is a material question of fact concerning the deficiency, if any, owing by the makers after the disposal of the oil and gas properties given as collateral. A secured party is not required to first sell collateral before suing on the note. Schmid v. Texas Commerce Bank-Fort Worth, N.A, 912 S.W.2d 845 (Tex.App.—Fort Worth 1995, writ den’d). The only limits on the creditor’s disposition of the collateral is that it must be commercially reasonable and must be made only after notification to the debtor as required by former TEX. BUS. & COM. CODE § 9.504 (1991) now TEX. BUS & COM. CODE ANN. §§ 9.610 & 9.611 (Vernon Supp.2000). Greathouse v. Charter National Bank-Southwest, 851 S.W.2d 178 (Tex.1992). However, if the collateral is sold, the debtors are entitled to credit for the proceeds received from the collateral. The final point of error is overruled.

The judgment of the trial court is reversed, and the cause is remanded for trial on the merits.

ON MOTION FOR REHEARING

Elton Montgomery complains of Caprock Investment Corp.’s failure to produce Schedule “A,” a document listing the assets transferred from FDIC-R to FDIC-C. We note that the capacity in which the FDIC transfers assets (FDIC-R or FDIC-C) does not affect the relevant chain of title which gives the FDIC status as holder of the asset. See Federal Deposit Insurance Corporation v. Patel, 46 F.3d 482 (5th Cir.1995); Bosque Asset Corp. v. Greenberg, 19 S.W.3d 514 (Tex.App.—Eastland 2000, rehearing filed).

In his motion for rehearing, Montgomery also contends that the parties stipulated that Caprock would produce Schedule A and that this alleged stipulation controls Caprock’s right to intervene. We note that, under TEX.R.CIV.P. 11, an agreement between parties that touches a pending suit is not enforceable “unless it be in writing, signed and filed with the papers as part of the record, or unless it be made in open court and entered of record.”

Montgomery admits that the alleged stipulation is not “in writing, signed and filed with the papers as part of the record.” Rule 11. He argues, however, that the stipulation should be given effect as it was made in open court and entered of record. In support of this, Montgomery cites the trial court’s order which states that:

[C]ounsel for all parties present stipulated and agreed that Caprock Investments, Inc. could enter its appearance ... provided Caprock Investments forwarded to all counsel Exhibit “A” of the Contract of Sale between FDIC-C and FDIC-R.

A reference in the trial court’s order to a stipulation that does not appear anywhere in the record does not satisfy the requirements of Rule 11. Markman v. Gaitz, 499 S.W.2d 692, 697 (Tex.Civ.App.—Houston [1st Dist.] 1973, writ ref d n.r.e.). Because the stipulation alleged to exist does not comply with the mandates of Rule 11, it is without effect.

Montgomery also asserts that the stipulation is enforceable despite noncompliance with Rule 11 as the stipulation is undisputed. The Supreme Court has held that, while Rule 11 “means precisely what it says,” courts may enforce undisputed stipulations whether or not they comply with the requirements of Rule 11. Kennedy v. Hyde, 682, S.W.2d 525, 529 (Tex.1984). Caprock concedes that it agreed to produce Exhibit “A” of the contract of sale between FDIC-C and FDIC-R. However, Caprock argues that the stipulation was of no effect. Even assuming that this is the type of undisputed stipulation that falls within an exception to Rule 11, we agree with Caprock.

Stipulations as to legal conclusions, as opposed to facts, are not binding on courts or parties. Cartwright v. MBank Corpus Christy N.A., 865 S.W.2d 546, 549 (Tex.App.—Corpus Christi 1993, writ den’d). The question of whether Caprock was the proper plaintiff was a question of law. See Guaranty Federal Savings Bank v. Horseshoe Operating Company, 793 S.W.2d 652, 657 (Tex.1990). Therefore, the stipulation between the parties could not be determinative on this point. See Smith v. Morris and Company, 694 S.W.2d 37, 39 (Tex.App.—Corpus Christi 1985, writ ref d n.r.e.).

Next, in his motion for rehearing, Montgomery argues that the FDIC’s debt was discharged in Al Jonietz’ bankruptcy case and that, under the federal rules of res judicata, Caprock is barred from seeking to collect payment on the note from Montgomery and Stevens, the comakers. Under federal law, the doctrine of res judicata will apply if the parties are identical in both suits, if the prior judgment is rendered by a court of competent jurisdiction, if there is a final judgment on the merits, and if the same cause of action is involved in both cases. Russell v. SunAmerica Securities, Inc., 962 F.2d 1169, 1172 (5th Cir.1992); Eagle Properties, Ltd. v. Scharbauer, 807 S.W.2d 714 (Tex.1990). Montgomery relies on Geary v. Texas Commerce Bank, 967 S.W.2d 836 (Tex.1998), for the proposition that a confirmation order, under the principal of res, judicata, is final as to all issues decided or which could have been decided at the hearing on confirmation. Unlike in Geary, the order confirming the plan before us does not purport to release the debt of the comakers. Shade v. Basse (In re Fasse), 40 B.R. 198 (Bankr.D.Colo.1984). The plan itself was never introduced into summary judgment evidence. Montgomery describes the issue that was tried before the bankruptcy court as whether the indebtedness was fully satisfied by the valuation of the collateral. However, the issue in the bankruptcy court was the discharge of Jonietz’ liability on the note, not that of his comakers. In re Fox, 142 B.R. 206, 210 (Bankr.S.D.Ohio 1992).

The motion for rehearing is overruled.

      . Although he was an individual maker on the note, Elton Montgomery was not a party to the original suit. However, Montgomery First Corp., the owner of the property, was. Judgment was originally taken against the corporation only.


author: LEE DUGGAN, Jr., Justice (Retired).

text:
    Roger Lavoy DODD, Appellant, v. Fannie Eugene Atkins DODD, Appellee.
    No. 01-98-00593-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    March 16, 2000.

      Roger Lavoy Dodd, Rosharon, for appellant.
    John W. Williford, Jr., Huntsville, for appellee.
    Panel consists of Chief Justice SCHNEIDER, and Justices ANDELL and DUGGAN.

       The Honorable Lee Duggan, Jr., retired Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.

   OPINION

LEE DUGGAN, Jr., Justice (Retired).

Appellant, Roger Lavoy Dodd, an inmate of the Texas Department of Criminal Justice — Institutional Division, appeals from a judgment declaring void his purported marriage to appellee, Fannie Eu~ gene Atkins Dodd, and awarding title to property.

I.

Introduction

On December 28, 1996, appellant and appellee were ceremonially married. Subsequently, appellee discovered that appellant was already married to, and apparently not divorced from, Bernice Walters Dodd. Appellant had filed a divorce suit against Bernice in a Harris County district court before his marriage to appellee, but his suit was dismissed for want of prosecution on June 23, 1997. Appellee filed a petition to have her marriage to appellant declared void because of his existing marriage, and to have the trial court award each party title to the property then in his or her possession. Although appellant was incarcerated and did not attend the proceedings, he repeatedly requested in his pleadings and correspondence to the court to be bench warranted to attend the trial. The record indicates -that the court never addressed appellant’s request for a bench warrant, but simply noted in its judgment that appellant did not attend trial.

Following appellee’s appearance and testimony at trial on April 30, 1998, the county court entered judgment finding that appellee’s allegations (including the allegation that appellant was still married to someone else and that a trailer home in which appellant alleged an interest was paid for primarily by her funds) were materially correct, declaring her marriage to appellant void, and awarding each party the property then in his or her possession. The trailer home was in appellee’s possession.

II.

Discussion

Many of appellant’s 13 points of error assert arguments that are either irrelevant to the appeal or unsupported by relevant authorities or citations to the record. They are therefore waived. See TEX. R. APP. P. 38.1(h); Sisters of Charity of Incarnate Word v. Gobert, 992 S.W.2d 25, 31 (Tex.App.—Houston [1st Dist.] 1997, no pet.).

Appellant urges several matters that are cognizable points of error on appeal. First, he challenges the legal sufficiency of the evidence to support the judgment declaring his marriage to appellee void, contending that the evidence does not show he was already married to someone else. We. reject this contention. Appellant’s own pleadings acknowledge his earlier marriage and recite, as a mitigating factor, that he had initiated a divorce action against Bernice in October 1996 and that he had been under the presumption that his “divorce was final” when he married appellee. Appellant does not argue, however, that he actually received a divorce in the prior action, and he acknowledges the order dismissing his divorce action. The evidence introduced included a certified copy of a judgment of dismissal for want of prosecution in appellant’s divorce action against Bernice—issued months after appellant’s marriage to ap-pellee. The trial court did not err in declaring appellant’s marriage to appellee was void. We overrule this point.

Among his other points of error are complaints that he should have been bench warranted to attend the trial and permitted to present evidence concerning title to a trailer home he claims as his separate property.

We first address appellant’s assertion that the trial court erred and denied his right to due process by ignoring his requests for a bench warrant to attend his trial.

A trial court’s decision to grant or deny a prisoner’s bench warrant request is reviewed for abuse of discretion. Pedraza v. Crossroads Sec. Systems, 960 S.W.2d 339, 342 (Tex.App.—Corpus Christi 1997, no pet.); Armstrong v. Randle, 881 S.W.2d 53, 57 (Tex.App.—Texarkana 1994, writ denied).

A prisoner in Texas has a constitutional right of access to the courts, but only a qualified right to appear personally at a civil proceeding. In re M.M., 980 S.W.2d 699, 701 (Tex.App.—San Antonio 1998, no pet.); Pedraza, 960 S.W.2d at 342; Armstrong, 881 S.W.2d at 56. In determining whether a personal appearance is warranted, “appellate courts have held that the trial court must balance, by considering various factors, the government’s interest in protecting the integrity of the correctional system against the prisoner’s right of access to the courts.” Nance v. Nance, 904 S.W.2d 890, 892 (Tex.App.—Corpus Christi 1995, no writ). Key factors include whether an inmate is represented by counsel or is pro se, and whether the inmate is a civil defendant rather than a plaintiff. See Armstrong, 881 S.W.2d at 57; In Pruske v. Dempsey, 821 S.W.2d 687, 689 (Tex.App.—San Antonio 1991, no writ); Nichols v. Martin, 776 S.W.2d 621, 623 (Tex.App.—Tyler 1989, no writ). Armstrong noted that, in cases finding “error in the denial of an inmate’s right to personally appear, the ruling was not based solely on the fact that the inmate was a [civil] defendant, but was based on additional reasons, viz., the inmate had no lawyer, was proceeding pro se, or was denied the right to communicate with his lawyer, all of which effectively barred his access to the courts.” Armstrong, 881 S.W.2d at 57-58. We therefore consider whether the trial court abused its discretion in failing to bench warrant appellant to attend trial without first making a finding on his bench warrant request and considering other methods to provide him access to the court.

The right of a prisoner to have access to the court entails not so much his personal presence as the opportunity to present evidence or contradict the evidence of the opposing party.

Clearly all litigants who are forced to settle disputes through the judicial process have a fundamental right under the federal constitution to be heard at a meaningful time in a meaningful manner. Boddie v. Connecticut, 401 U.S. 371, 377-378, 91 S.Ct. 780, 785-86, 28 L.Ed.2d 113 (1971). The right to be heard includes the opportunity to introduce evidence, to cross-examine witnesses, to be heard on questions of law and to have judgment rendered only after trial.

Nichols, 776 S.W.2d at 623 (emphasis added). We agree with the analysis in Nichols that the critical inquiry is whether the prisoner can “be heard at a meaningful time in a meaningful manner” by the court. This right may be accomplished without the prisoner appearing in person. As the Beaumont Court of Appeals has suggested,

Should the court find that the pro se plaintiff inmate in a civil action is not entitled to leave prison to appear personally in court, then the prisoner should be allowed to proceed by affidavit, deposition, telephone, or other effective means.

Byrd v. Attorney General, 877 S.W.2d 566, 569 (Tex.App.—Beaumont 1994, no writ) (emphasis added).

The Byrd court also noted that, from the appellate transcript, it could not determine that the trial court “ever ruled on appellant’s request to appear at the ... hearing by way of a court ordered bench warrant,” and found the trial court’s failure to act on appellant’s motion requesting a bench warrant constituted an abuse of discretion and required a reversal. Id. at 569.

In our case, the record does not reflect that the trial court addressed appellant’s repeated requests for a bench warrant. The prisoner in Byrd was a civil plaintiff, not a defendant. Id. at 567. The facts are stronger in the instant case because appellant did not initiate the suit. Had the .trial court addressed his request, it might have found that appellant was not entitled to appear; however, it might also have provided some safeguard such as a phone conference to provide appellant, who had no attorney, access to the court for the trial of a suit he did not initiate to assign disputed property claims.

Because appellant had a qualified right to appear in person at trial, and requested to do so, the trial court should have considered and ruled upon his request, making appropriate findings weighing his right to attend against factors including, among others, (1) the state’s interest in preserving the integrity of the corrections system, (2) the appellant’s status as a pro se civil defendant rather than a plaintiff, (3) alternate means for him to present and respond to evidence, and' (4) the nature and-circumstances of the claim. In failing to do so, the trial court abused its discretion.

In response to appellant’s request to appear personally, the trial court should have (1) made findings as to the need for his presence in light of the issues raised by appellant’s pro se defendant status, and (2) determined alternate means for him to present and respond to evidence.

Under these facts, we conclude the trial court abused its discretion. Because we sustain this point of error, we do not address appellant’s other arguments.

We affirm the trial court’s declaration that appellant’s marriage to appellee is void. We reverse and remand that portion of the judgment dividing property.

      . At least two other Texas appellate courts have held that the failure to issue a bench warrant constituted abuse of discretion in the circumstances represented there. In Pruske, an appellant who requested to appear personally had not initiated the suit, but merely sought to defend a claim for a money judgment. Pruske, 821 S.W.2d at 689 (Tex.App.—San Antonio 1991, no writ). The court noted his “predicament of being unable to hire a lawyer to defend him and the further inability to appear in person and defend himself.” Id. In reversing the trial court’s judgment, the San Antonio court held:
      While we are not prepared to hold that Mr. Pruske has an absolute right to appear in person, we do hold that the trial court should, in these situations, directly address the issue by weighing the protection of the integrity of the correctional system against the prisoner’s right of access to the courts and strike a balance that is fundamentally fair.

        Id.

      In Nichols, the appellate court addressed a situation in which the family court judge refused to appoint counsel for the appellant in a child custody dispute and also denied his request to appear personally and represent himself. Nichols, 776 S.W.2d at 622-23. The court observed that "whether denial of an appearance would foreclose a litigant’s right to be heard at all” was particularly relevant in the trial court’s inquiry as to whether a personal appearance is necessary. Id. at 623. The court granted a conditional writ of mandamus after commenting that, "[ajbsent substantial countervailing state justification, refusal to permit a pro se inmate to present his case would deny him due process.” Id.


text:
    William A. WHITTLE, Appellant, v. MCORP PROPERTIES, Appellee.
    No. 07-99-0166-CV.
    Court of Appeals of Texas, Amarillo.
    March 29, 2000.
    Rehearing Overruled June 5, 2000.

      Whittle Law Firm PLLC, William A. Whittle, Michael W. Gordon, Corpus Christi, for appellant.
    Stephen G. Scholl, Brian W. Zimmerman, Houston, for appellee.
    Before BOYD, C.J., and REAVIS and JOHNSON, JJ.
   DON H. REAVIS, Justice.

Appellant William A. Whittle appeals from a summary judgment that appellee MCorp Properties recover $15,000 plus interest, attorney’s fees and costs, on its action upon an unsecured promissory note. By one issue, Whittle contends the six-year statute of limitations provided in section 3.118(a) of the Texas Business and Commerce Code Annotated (Vernon Supp. 2000) did not apply and that the four-year statute of limitations under section 16.004 of the Texas Civil Practice and Remedies Code Annotated (Vernon Supp.2000) barred MCorp’s action. Based on the rationale set out below, we affirm.

On December 2, 1992, Whittle executed and delivered an unsecured note payable to MCorp in the principal amount of $15,-000, bearing interest at the rate of eight per cent per annum. According to the note, the principal and interest were due and payable on the second day of each and every month in installments of $678.41, beginning February 2, 1993, and continuing each month thereafter until fully paid. After Whittle defaulted in the payment of all installments, MCorp filed its original petition on December 10, 1997, to recover all principal, interest, and attorney’s fees. In response, among other things, Whittle affirmatively plead the four-year statute of limitations under section 16.004. Whittle additionally asserted that section 3.118(a) did not apply to MCorp’s action. Following a hearing on MCorp’s motion for summary judgment, the trial court rendered judgment that MCorp recover $15,000 principal; $6,417.53 interest to April 8, 1998; interest from April 8,1998 to date of judgment at the rate of $3.2877 per day; attorney’s fees; and judgment interest, of and from Whittle.

Standard of Review

In reviewing a summary judgment, this Court must apply the standards established in Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985), which are:

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 deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true.
3. Ever reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor.

By his sole issue, Whittle contends the trial court erred in granting MCorp’s motion for summary judgment because the claims asserted by MCorp were barred by limitation. We disagree. Because Whittle presents only a question of law, we will limit our review of the summary judgment evidence as is necessary to resolution of which statute of limitations is applicable.

At the time the note was signed on December 2, 1992, the four-year statute of limitations applied to an action to recover a debt. The first monthly installment on the note became due on February 2, 1993; however, Whittle did not make the first or any of the subsequent payments due on the note. Accordingly, the statute of limitations commenced running on each installment upon Whittle’s default. Hoarel Sign Co. v. Dominion Equity Corp., 910 S.W.2d 140, 144 (Tex.App.—Amarillo 1995, writ denied). While the four-year limitation statute was running, but had not fully matured on any installment, the Legislature passed section 3.118(a) which specifically applies to actions on notes. This section, which became effective January 1, 1996, provides that the statute of limitations on an action to recover on a note is six years and, as material here, was enacted before the four-year statute had fully run on any of the installment payments then past due on Whittle’s note. When MCorp filed its suit on January 10, 1997, the four-year statute of limitations had completely run on the first eleven of the twenty-four monthly installments due on the note; however, because the four-year statute had not run on any installments when section 3.118(a) became effective, we must determine which statute is applicable.

Statutes of limitation do not confer any right of action, but instead are enacted to restrict the period within which a claim might be asserted. American Nat’l Ins. Co. v. Hicks, 35 S.W.2d 128, 130 (Tex.Comm’n App.1931, judgm’t adopted); accord Salvaggio v. Houston Indep. Sch. Dist., 752 S.W.2d 189, 191-92 (Tex.App.—Houston [14th Dist.] 1988, writ denied). Limitation statutes are also considered procedural in nature and do not constitute substantive law or create a right of action belonging to a particular party. See Hicks, 35 S.W.2d at 130. Rather, these statutes are enacted to restrict the period within which an otherwise unlimited right might be asserted, so that the opposing party has a fair opportunity to defend itself. Matthews Constr. Co. v. Rosen, 796 S.W.2d 692, 694 (Tex.1990). Moreover, the defense of statute of limitations is a plea in bar and although the debt may no longer be collected through legal process, a moral obligation to pay or perform survives the running of the statute of limitations. Rhodes v. McCarron, 763 S.W.2d 518, 521 (Tex.App.—Amarillo 1988, writ denied). Generally, the statute of limitations in force at the time suit is brought provides the applicable limitations period. Raley v. Wichita County, 123 Tex. 494, 72 S.W.2d 577, 579 (Tex.1934). However, if a shorter limitations period had not fully run on the effective date of a new statute, the longer limitations period will apply because the defense of limitations does not become a vested right until the limitations period has actually run. National Mar-Kit, Inc. v. Forrest, 687 S.W.2d 457, 460 (Tex.App.—Houston [14th Dist.] 1985, no writ); Coffey v. Young, 704 S.W.2d 591, 593 (Tex.App.—Ft. Worth 1986, no writ).

In the case at bar, Whittle’s statutory limitations plea began running when he failed to make his installment payments, but the defense had not vested when the new statute became effective. Forrest, 687 S.W.2d at 460; Young, 704 S.W.2d at 593. Because Whittle’s defense based on the four-year statute of limitations had not matured when the six-year statute became effective, we overrule his sole issue. See section 3.118(a).

Accordingly, the judgment of the trial court is affirmed.

      . Hereinafter referred to as section 3.118(a).

      . Hereinafter referred to as section 16.004.

      . Section 16.004(a)(3) uses the broader term "debt,” not "note.”

      . This section specifically applies to a note payable and does not apply to an action involving a real property lien covered by section 16.035 or 16.036 of the Texas Civil Practice and Remedies Code. Tex. Bus. & Com.Code Ann. § 3.118(a) & (h) (Vernon Supp.2000).