author: SARAH B. DUNCAN, Justice. HARDBERGER, Chief Justice,

text:
    The STATE of Texas, Appellant, v. Daniel R. RUTHERFORD, Appellee.
    No. 04-98-00763-CR.
    Court of Appeals of Texas, San Antonio.
    Oct. 13, 1999.
    Opinion Dissenting to Denial of Rehearing Jan. 26, 2000.

      Daniel Thornberry, Asst. Dist. Atty., San Antonio, for appellant.
    Harry A. Nass, Jr., R. Robert Willmann, Jr., Stephen Tyler Rutherford, Rutherford, Rutherford & Bettersworth, P.L.L.C., San Antonio, for appellee.
    Sitting: TOM RICKHOFF, Justice SARAH B. DUNCAN, Justice, KAREN ANGELINI, Justice.
   Revised Opinion and Denial of Motion FOR Rehearing

Opinion by:

SARAH B. DUNCAN, Justice.

We withdraw the opinion issued in this case on August 25,1999, and substitute the following opinion in its stead. However, we deny Daniel R. Rutherford’s motion for rehearing and do not modify the judgment issued in this case on August 25, 1999.

The State appeals the trial court’s order dismissing the indictment against Daniel R. Rutherford for aggravated perjury and suppressing Rutherford’s grand jury testimony in the related prosecution. We reverse the trial court’s rulings and remand the cause for further proceedings.

Factual and Procedural Background

Rutherford was brought before a grand jury to testify regarding his client’s “possession and disposal of an IRS check in the amount of $22,172.47 that was issued on ¾9 of ’94.” Before questioning began, Rutherford was told by an assistant district attorney he was “not a target of this Grand Jury” or “the suspect or the accused in this investigation.” “[D]ue to instructions from the top,” Rutherford was further warned as follows:

Number one, your testimony before this Grand Jury is under oath. Number two, any material question that is answered falsely before this Grand Jury subjects you to being prosecuted for aggravated perjury. Number three, you have the right to refuse to make answers to any question, the answer to which would incriminate you in any manner. Number four, you have the right to have a lawyer present outside this chamber to advise you before making answers to questions you feel might incriminate you. Number five, any testimony you give may be used against you at any subsequent proceeding. Number six, if you are unable to employ a lawyer, you have the right to have a lawyer appointed to advise you before making an answer to a question, the answer to which you feel might incriminate you.

After Rutherford signed a written copy of these warnings, he testified his client gave him the check as payment for his legal services, which he believed his client was entitled to do, and he then deposited the check in his trust account. When asked whether he received any other payments from this client, Rutherford replied “No, we went to — we switched to pro bono....” Several times during the questioning, Rutherford stepped outside the grand jury room to consult with his attorney.

At the time the assistant district attorney assured Rutherford he was not a target of or the suspect in the investigation, several police documents indicated Rutherford was in fact the second suspect in the theft of the cheek, and he was later indicted not only for theft of the check but also for aggravated perjury. In the aggravated perjury charge, the State alleged Rutherford falsely testified he received only one payment for legal services from the client in question.

Before trial, Rutherford moved to suppress his grand jury testimony and, on similar grounds, dismiss the indictment. Without specifying grounds for its rulings, the trial court suppressed Rutherford’s grand jury testimony and dismissed the aggravated perjury charge. The State appeals, arguing the trial court erred in suppressing Rutherford’s grand jury testimony in the perjury case and dismissing the perjury indictment.

Standard of Review

We review the trial court’s rulings under the abuse of discretion standard. See Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997); State v. Perez, 906 S.W.2d 558, 559 (Tex.App.—San Antonio 1995), aff 'd 947 S.W.2d 268 (Tex.Crim.App.1997). Under this standard, we “view the evidence in the light most favorable to the trial court’s ruling,” giving the trial court almost total deference concerning findings of historical fact supported by the record. Guzman, 955 S.W.2d at 89. We review the trial court’s determination of the applicable law, as well as its application of the appropriate law to the facts it has found, de novo. Id.

Suppression

The State contends the trial court erred in suppressing Rutherford’s grand jury testimony in the aggravated perjury prosecution under article 38.23 of the Texas Code of Criminal Procedure and the attenuation doctrine recognized in Johnson v. State, 871 S.W.2d 744 (Tex.Crim.App.1994). We agree.

Article 38.23 requires the exclusion of evidence “obtained ... in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America....” Tex.Code Crim. PROC. Ann. art. 38.23 (Vernon Supp.1998). Article 38.23’s plain language thus requires exclusion only if the accused establishes a sufficient causal relationship between the alleged violation of law and the procurement of the evidence sought to be suppressed. See Johnson, 871 S.W.2d at 749-51. Because this causal relationship is required, evidence is not and cannot be “obtained in violation of the law” if a crime had not been committed, and thus evidence of the crime did not exist, when the officer allegedly violated the law. See State v. Mayorga, 901 S.W.2d 943, 945-46 (Tex.Crim.App.1995) (holding allegedly illegal arrest did not require suppression of evidence of re-' sisting arrest under article 38.23 because evidence of resisting arrest did not exist before and thus was not obtained by allegedly illegal arrest); Cooper v. State, 956 S.W.2d 95, 97 (Tex.App.—Tyler 1997, pet. ref d) (holding allegedly illegal arrest did not require suppression of evidence of assaulting a peace office under article 38.23 because evidence of assault did not exist before and thus was not obtained by allegedly illegal arrest). So it is here.

Rutherford alleges the State obtained his grand jury testimony in violation of the law because the assistant district attorney misrepresented his status as a suspect. However, because Rutherford’s grand jury testimony did not exist before the alleged misrepresentation, the misrepresentation could not have been motivated by an effort to obtain evidence to use against Rutherford in an aggravated perjury prosecution. Suppression is therefore not required under article 38.23. Mayorga, 901 S.W.2d at 945-46. Accordingly, we hold the trial court erred in suppressing Rutherford’s grand jury testimony in the aggravated perjury prosecution.

Dismissal

The State also argues the trial court erred in granting Rutherford’s motion to dismiss the aggravated perjury indictment. We again agree.

Absent prosecutorial request, dismissal must be authorized by constitutional, statutory, or common law, see State v. Terrazas, 962 S.W.2d 38, 41 (Tex.Crim.App.1998), such as when a defendant’s Fifth Amendment right to a speedy trial has been violated, when a defendant’s Sixth Amendment right to counsel has been violated, when there is a defect in the indictment, or when the indictment is unduly delayed. See id.; State v. Johnson, 821 S.W.2d 609, 612 n. 2 (Tex.Crim.App.1991).

In support of his motion to dismiss, Rutherford argued the State obtained his grand jury testimony in violation of his federal and state constitutional rights; articles 20.17, 38.21, and 38.22 of the Texas Code of Criminal Procedure; and article 30.007 of the Texas Civil Practice and Remedies Code. None of these grounds supports dismissal.

Article 20.17, the Privilege Against Self-Incrimination,and the Rights to Counsel and Due Process

Rutherford’s dismissal motion centered upon the State’s alleged failure to comply with its obligation under article 20.17 of the Texas Code of Criminal Procedure to inform him he was suspected of committing a crime. See Tex.Code CRiM. Proc. Ann. art. 20.17(a) (Vernon Supp. 1998). If the State had met its obligation, Rutherford argues, he would have sought the assistance of his lawyer, who would have advised him to exercise his privilege against self-incrimination. Rutherford thus argues the State violated his privilege against self-incrimination and his rights to counsel and due process under the federal and state constitutions. See U.S. Const. amends. V, VI, XIV; Tex. Const, art. 1, §§ 10,19.

The privilege against self-incrimination protects a grand jury witness from being compelled to give self-incriminating testimony. See Andino v. State, 645 S.W.2d 615, 620 (Tex.App.—Austin 1983, no pet.). However, this privilege does not provide a witness with “protection for the commission of perjury.” Butterfield v. State, 992 S.W.2d 448, 450 (Tex.Crim.App.1999); see United States v. Wong, 431 U.S. 174, 178, 97 S.Ct. 1823, 52 L.Ed.2d 231 (1977). As the Fifth Circuit has so aptly stated:

While we strongly disapprove of any prosecutorial misleading of a grand jury witness, it likewise would ill serve the administration of justice to suggest that a judicially cognizable nexus may exist between a grand jury witness’ belief that he personally is not a target of the investigation and his decision to thereafter give false testimony under oath to the grand jury.

United States v. Williams, 874 F.2d 968, 975 (5th Cir.1989); see United States v. Babb, 807 F.2d 272, 277 (1st Cir.1986).

A violation of due process is likewise no “defense to ... perjury.” Yarbrough v. State, 617 S.W.2d 221, 229 (Tex.Crim.App.1981). Similarly unavailing is the right to counsel. A grand jury witness does not have a constitutional right to have his attorney present during a grand jury proceeding. United States v. Mandujano, 425 U.S. 564, 581, 96 S.Ct. 1768, 48 L.Ed.2d.212 (1976); see also Conn v. Gabbert, 526 U.S. 286, -, 119 S.Ct. 1292, 1296, 143 L.Ed.2d 399 (1999).

Unreasonable Search and Seizure

Rutherford also argued dismissal was required because his grand jury testimony was the result of an unreasonable search and seizure. See U.S. Const. Amend. IV; Tex. Const, art. I, § 9. However, a grand jury subpoena is not a seizure under either the federal or state constitution. United States v. Dionisio, 410 U.S. 1, 10, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973) (quoting Fraser v. United States, 452 F.2d 616, 620 (7th Cir.1971)); Johnson v. State, 912 S.W.2d 227, 233-34 (Tex.Crim.App.1995).

Texas Civil Practice and Remedies Code Section 30.007

Finally, Rutherford’s motion argued that dismissal was required because his bank failed to comply with section 30.007 of the Texas Civil Practice and Remedies Code in turning over information on his bank account. However, Section 30.007 “does not apply to ... a record request from or report to a government agency arising out of the investigation or prosecution of a criminal offense.” Tex. Civ. Prac. & Rem.Code Ann. § 30.007(b) (Vernon 1997).

Conclusion

There is no support for the trial court’s suppression of Rutherford’s grand jury testimony in the aggravated perjury prosecution or its dismissal of the aggravated perjury indictment. We therefore reverse the trial court’s order to the extent it dismisses the perjury indictment and suppresses the grand jury testimony in the perjury prosecution and remand the cause for further proceedings.

HARDBERGER, Chief Justice,

dissents to denial of motion for rehearing en banc.

I respectfully dissent to the en banc court’s denial of the motion for rehearing. Rutherford’s testimony was obtained in violation of a specific Texas statute — article 20.17 of the Texas Code of Criminal Procedure (“Code”). TexCode CRIM. PROC. Ann. art. 20.17 (Vernon Supp.1999). This statute requires both the State and the defendant to tell the truth.

I agree with the majority that the trial court’s denial of the motion to suppress cannot be based upon a violation of Rutherford’s state or federal constitutional rights. Several federal cases and Butterfield v. State, 992 S.W.2d 448 (Tex.Crim.App.1999), hold that neither the Fifth Amendment privilege nor due process rights bars a prosecution for perjury based on a prosecutor’s misrepresentation that a person is not a suspect. See, e.g., United States v. Babb, 807 F.2d 272, 277-279 (1st Cir.1986); United States v. Scrimgeour, 686 F.2d 1019, 1026 (5th Cir.1981); United States v. Crocker, 568 F.2d 1049, 1053-56 (3rd Cir.1977). However, Rutherford is not simply asserting his constitutional rights. He asserts, and I agree, that his testimony was obtained in violation of article 20.17 of the Code. Tex.Code Crim. Proc. Ann. art. 20.17 (Vernon Supp.1999). This provision requires the State to inform a suspect that he is a suspect before he is placed before the grand jury. The State did the opposite. Because of this, the trial court properly suppressed Rutherford’s testimony. Even the federal courts, which have rejected the federal constitutional arguments for suppressing perjured testimony, have exercised their supervisory powers to order the suppression of grand jury testimony where the prosecutors act in violation of a uniform procedure of warning target defendants that they are suspects. See Crocker, 568 F.2d at 1055-56 (citing cases from the Second and Third circuits). In this case, the State violated not only a uniform procedure, but a state statute. The State told Rutherford that he was not a suspect when, in fact, he was.

Under article 38.23 of the Code, evidence obtained in violation of any law of the State of Texas must be excluded from evidence. Tex.Code Crim. Proc. Ann. art. 38.23 (Vernon Supp.1999). In this case, Rutherford’s testimony was obtained in violation of article 20.17 of the Code because the State failed to inform Rutherford that he was suspected of committing a crime before he testified before the grand jury. TexCode Crim. Proc. Ann. art. 20.17 (Vernon Supp.1999). The majority holds that “because Rutherford’s grand jury testimony did not exist before the alleged misrepresentation, the misrepresentation could not have been motivated by an effort to obtain evidence to use against Rutherford in an aggravated perjury prosecution.” The majority relies on three cases to support its reasoning that the misrepresentation and Rutherford’s grand jury testimony were not causally related: State v. Mayorga, 901 S.W.2d 943 (Tex.Crim.App.1995); Johnson v. State, 871 S.W.2d 744 (Tex.Crim.App.1994); and Cooper v. State, 956 S.W.2d 95 (Tex.App.—Tyler 1997, pet. ref d). Each of those cases is distinguishable from the facts presented in this case.

In State v. Mayorga, Mayorga was charged with resisting arrest. 901 S.W.2d 943 (Tex.Crim.App.1995). She sought to suppress the evidence of her resistance because the arrest which she resisted was unlawful. Id. at 944. (The officers were attempting to arrest her for outstanding warrants, but no outstanding warrants actually existed.) The Court of Criminal Appeals held that where officers arrest a person based on objectively reasonable information, and that person resists arrest, the evidence of the resistance is not obtained in violation of the law as article 38.23 contemplates, and therefore, the exclusionary rule is not applicable. See id. at 946. The Court quoted the following explanation offered by the lower court:

[W]hen a defendant [resists] at the time and place of arrest, the evidence of resistance comes into existence contemporaneously with the officer’s attempt to arrest him. Because the evidence does not exist prior to the illegal arrest and may never exist, the police cannot suspect its existence and arrest a defendant for the purpose of gaining the evidence. The police correspondingly cannot foresee getting the evidence as a consequence of their actions; their decision to arrest cannot be motivated by the possible acquisition and use of evidence. Absent other facts inculpating the police conduct, the evidence of resisting arrest simply does not come into existence at a time and place or under circumstances to be within the field of exploitation.

Id. (emphasis added). The State did nothing wrong in Mayorga. The focus of the decision was on the objective reasonableness of the police officers’ conduct and the absence of any ability of the officers to foresee obtaining evidence as a consequence of their actions.

The State did do something wrong in this case. That is a big difference. The prosecutor’s action was not objectively reasonable and the grand jury testimony did come into existence under circumstances within the field of exploitation. Deferring to the trial judge with regard to historical facts, the trial court rejected the notion that Rutherford was not a suspect:

THE COURT: All right. Now answer me with a straight face. When Mr. Rutherford was called in front of that grand jury, are you telling me he is not a suspect?
MR. THORNBERRY: That is what I am telling you.
THE COURT: Okay. I find that incredulous, based upon the police reports of an investigation that went on for almost three years. I mean, they issued a subpoena for that IRS check three years prior to even calling him in front of a grand jury.

In Mayorga, the Court noted that excluding the evidence in that case would have no other result than to stymie a police officer in carrying out his duties in the future. In this case, excluding the evidence would have the result of enforcing the statutory obligation to warn a grand jury witness of his status as a suspect. Such a warning obviously impacts the witness’s choice as to whether he should invoke his Fifth Amendment privilege.

Similarly, in Cooper v. State, the evidence sought to be suppressed related to actions taken by the appellant in response to objectively reasonable actions of a police officer. 956 S.W.2d 95 (Tex.App.—Tyler 1997, pet. refd). In that case, a police officer observed suspicious activity and stopped to investigate. See id. at 96. He asked appellant to identify himself, and appellant refused to answer and sought to escape. See id. Appellant hit the officer, and the incident escalated into a struggle over a pistol. See id. Appellant was charged with aggravated assault on a police officer. See id. The court relied on the reasoning in Mayorga that no evidence of the offense would have come into existence if appellant had acted reasonably in response to the officer’s objectively reasonable actions. See id. at 98.

Finally, in Johnson v. State, the evidence sought to be suppressed was obtained after an arrest warrant was obtained that “attenuated” the prior warrantless arrest. 871 S.W.2d 744 (Tex.Crim.App.1994). Importantly, the court noted four factors that should be considered in applying the attenuation doctrine: (1) whether Miranda warnings were given; (2) the temporal proximity of the arrest and the confession; (3) the presence of intervening circumstances; and (4) the purpose and flagrancy of the official miseon-duct. See id. at 751. These four factors are applied to determine whether a causal relationship exists between the legal violation and the obtaining of evidence. The Court concluded that the intermediate court’s analysis of the attenuation issue was adequate to conclude that the taint was attenuated. See id. The intermediate court reasoned that appellant had been given his Miranda warnings, the arrest warrant arrived before appellant signed the written statement, and the police did not act in a flagrant and purposeful manner. See id.

Although the majority opinion refers to the attenuation doctrine, it does not discuss the four relevant factors. Applying the factors to the facts in this case, it is apparent that the attenuation doctrine does not remove the taint of failing to inform Rutherford that he was a grand jury suspect.

Although the warnings given a suspect were provided to Rutherford, it was after he was repeatedly assured that he was not a suspect. The misrepresentations were made in proximity with Rutherford’s testimony and without any intervening circumstances. Finally, the official misconduct was purposeful and flagrant. The trial judge found the prosecutor’s statement that Rutherford was not a suspect “incredulous.” Given the records that the prosecutor had subpoenaed regarding Rutherford during the three year investigation and the fact that Rutherford is listed as a suspect in the police investigative documents, there is ample evidence to support the trial judge’s finding.

All of the cases cited by the majority involve circumstances where the police officers’ actions were objectively reasonable. No facts were present in those cases that inculpated the police conduct. In our case, not only did the prosecutor violate a state statute, but she totally misrepresented the true state of affairs.

Given the documentation in the prosecutor’s possession, including the police investigative reports that list Rutherford as a suspect, the decision to question Rutherford under the guise that he was not a suspect was probably motivated by the desire to obtain additional evidence to be used against him. I would grant the rehearing en banc.

Justice ALMA L. LÓPEZ and Justice CATHERINE STONE, joined.

      . We have found support for dismissal based on the Sixth Amendment but not on any other ground included in Rutherford’s motion. See e.g., 41 George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice and Procedure § 18.46 (1995) (remedy for violation of article 20.17 is probably exclusion of incriminating statements made during the improper questioning, not an attack on the indictment); State v. Nolan, 808 S.W.2d 556, 560-61 (Tex.App.—Austin 1991, no pet.) (appropriate remedy for violation of defendant's right against unreasonable search and seizure is suppression of the evidence not dismissal of the indictment). We nonetheless consider all grounds urged in Rutherford’s motion on their merits.

      . Because Rutherford’s Fifth Amendment claim fails, so does his claim under articles 38.21 and 38.22 of the Texas Code of Criminal Procedure. See Parks v. State, 666 S.W.2d 597, 599 (Tex.App.—Houston [1st Dist.] 1984, no pet.) (scope of protection under Texas Code of Criminal Procedure is no broader than that under the Fifth Amendment).


source: Caselaw Access Project

author: Justice DORSEY.

license: Public Domain

text:
    VALLEY BAPTIST MEDICAL CENTER, Appellant, v. Michael GONZALEZ, Jr., Appellee.
    No. 13-99-361-CV.
    Court of Appeals of Texas, Corpus Christi.
    Dec. 30, 1999.
    Rehearing Overruled Feb. 3, 2000.

      Roger W. Hughes, Ferriel C. Hamby, Jr., Adams & Graham, Attys. at Law, R. K. Whittington, Law Offices of R. K. Whit-tington, Harlington, for Appellant.
    Elizabeth B. Hawkins, Benjamin L. Hall, III, 0‘Quinn <& Laminack, Houston, W. Lassiter Holmes, III, Atty. at Law, Edinburg, for Appellee.
   OPINION ON MOTION FOR REHEARING

Opinion by

Justice DORSEY.

We issue this opinion on rehearing and withdraw our prior opinion. We hold that this Court does not have jurisdiction over an appeal of a trial court’s Rule 202 order granting pre-suit discovery when the discovery is sought in anticipation of filing suit against the person from whom the discovery is sought.

FACTS

Esther Gonzales, petitioner, brought a petition to investigate potential claims against Valley Baptist Medical Center and Erwin R. Mierisch, M.D. Gonzales seeks information regarding a fetal vacuum extractor device used during the delivery of Michael Gonzales, Jr. On June 8, 1999, the trial court entered an order allowing Gonzales to take the depositions of both the doctor and the corporate representative of the hospital.

The hospital filed notice of appeal of this order on June 10, and a petition for writ of mandamus on June 16. Both sought temporary relief staying the deposition. On June 25, this court stayed the deposition pending resolution of the mandamus. Then, on July 8, we denied mandamus and vacated the stay. Defendants then filed a mandamus action in the supreme court, which was denied on July 13.

In the meantime, the direct appeal of the discovery order continued. On July 15, this court granted another stay of the deposition and all other proceedings in the trial court pending further order. This court denied Appellee’s motion to vacate the stay and to dismiss the appeal for want of jurisdiction on August 5. However, now having reconsidered the jurisdictional issue, we now hold that an appeal will not lie from such an order and dismiss this appeal for want of jurisdiction.

ANALYSIS

Rule 202 of the Texas Rules of Civil Procedure allows a person to petition the court for an order authorizing the taking of an oral or written deposition to either: (1) perpetuate testimony for use in an anticipated suit, or (2) to investigate a potential claim or suit. Tex.R. Civ. P. 202.1. The proceeding is not, in itself, a separate lawsuit, but is incident to and in anticipation of a suit. Office Employees Int’l Un. v. Southwestern Drug Corp., 391 S.W.2d 404, 406 (Tex.1965). It is an ancillary proceeding. Texacadian Energy, Inc. v. Lone Star Energy Storage, Inc., 829 S.W.2d 369, 372 (Tex.App.—Corpus Christi 1992, writ denied). Prior to enactment of the current version of Rule 202 in 1998, bills of discovery were provided for by Rule 737. There is no indication that the appealability of a bill of discovery order has been affected by the change.

Rule 202 governs all pre-suit discovery, combining the old rules regarding depositions to perpetuate testimony (former Tex.R. Civ. P. 187) and bills of discovery (former Tex.R. Civ. P. 737). Rule 202 contains detailed pleading and notice requirements. Tex.R. Civ. P. 202.2-202.3. Any order allowing a deposition to be taken under this rule must be based on specific findings by the trial court. Id. at 202.4. The trial court must find that: (1) allowing the petitioner to take the deposition may prevent a failure or delay of justice in an anticipated suit, or, (2) the likely benefit of allowing the petitioner to take the deposition outweighs the burden or expense of the procedure. Id. at 202.4(a). The order must also contain any protections the court finds necessary or appropriate to protect the witness or any person who may be affected by the procedure, and the court may restrict or prohibit the use of a deposition taken under the rule in a subsequent suit to protect a person not served with notice or to prevent the abuse of this rule. Commentators have predicted that the use of the Rule 202 pre-suit discovery procedure will gain popularity as sanctions for filing frivolous or groundless lawsuits become increasingly common. See Michael O’Connor, Diane M. GuaRiglia & PRofessoR ByRON Davis, O’Connor’s Texas Rules Civil Trials 1999, Commentaries, § 14 at 350 (1998).

In the absence of a special statute making an interlocutory order appeal-able, a judgment must dispose of all issues and parties in the case before it becomes final and appealable. Gonzalez v. Avalos, 907 S.W.2d 443 (Tex.1995); New York Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 678-79 (Tex.1990); City of Alamo v. Holton, 934 S.W.2d 833, 835 (Tex.App.—Corpus Christi 1996, no writ). As a general rule, orders relating to discovery in aid of a pending or contemplated cause, even when filed in a separate action, are considered interlocutory and are not appealable except in connection with appeal upon final disposition of the main cause on the merits. Equitable Trust Co. v. Jackson, 129 Tex. 2, 101 S.W.2d 552, 553 (1937); Pelt v. State Bd. of Ins., 802 S.W.2d 822, 827 (Tex.App.—Austin 1990, no writ); Warford v. Childers, 642 S.W.2d 63, 65 (Tex.App.—Amarillo 1982, no writ); Itz v. Kunz, 511 S.W.2d 77, 77 (Tex.Civ.App.—San Antonio 1974, writ refd n.r.e.). The finality of an order granting or refusing discovery, for purposes of appeal, depends on the context in which the order is entered. McDonald Texas Civil Practice § 12:6[c] (1992 & Supp.1999). The rule that has developed is that when a bill of discovery is ancillary to or essentially a part of another suit— whether ongoing or contemplated — the bill is an interlocutory discovery order and not appealable. Id. However, when the bill of discovery is a separate suit having as its sole object the obtaining of the information requested, the order granting discovery is final for appeal. Id. An order allowing discovery against a third party not liable to petitioner in order to determine the names of persons against whom an action is maintainable would fall under this second category. Id. Essentially, the question becomes whether an order for pre-suit discovery should be treated as a discovery order or as a separate lawsuit.

Whether a bill of discovery proceeding is ancillary to or essentially a part of a “primary” suit is not always clear. When a subsequent action is filed against the party from whom discovery was ordered, clearly the pre-suit discovery order was ancillary to that suit. We believe that direct appeal should be limited to situations where the discovery order sought is clearly a separate action against a third party. The Houston 14th court of appeals recently addressed the question of whether an order imposing sanctions for failure to comply with a pre-suit discovery request was a final, and thus, appealable, order. Jacintoport Corp. v. Almanza, 987 S.W.2d 901, 902 (Tex.App.—Houston [14th Dist.] 1999, no pet.). In Jacintoport, an injured longshore worker filed a bill of discovery seeking to clarify identity of his employer and potentially responsible third parties. The court did not mention the relationship between petitioner and Jacin-toport, but it appears that Jacintoport was an employer of the petitioner.

The Houston Court stated that bill of discovery orders are final and appealable when they direct discovery against third parties against whom suit is not pending and is not contemplated because in that situation, a bill of discovery order resolves all discovery issues between the bill of discovery plaintiff and the discovery defendant. Id. It is an end in itself and becomes a final and appealable judgment against the discovery defendant. Id. The court noted, though, that conversely, when a bill of discovery is brought against a party against whom there is a suit pending or against whom a suit is specifically contemplated, the bill of discovery order is not final and appealable and that such an order does not become appealable until final judgment is rendered in the main suit which was pending or contemplated. Id.

In his “Petition in the Nature of a Bill of Discovery,” Almanza specifically stated that he had a reasonable basis for believing that a cause of action existed on his behalf if Jacintoport’s negligence and/or gross negligence was the producing cause of the occurrence in question or his damages. Id. He later stated that he sought the information because it was necessary for a contemplated lawsuit. Id. Additionally, nine months after he filed his bill of discovery Almanza filed a lawsuit against Jacintoport and other defendants, alleging causes of action for negligence and gross negligence, which was pending in the district court at the time appeal was sought. Id. at 902-08. The Jacintoport court held that the discovery order was interlocutory and not appealable because the express language in the petition left little doubt that Almanza contemplated a suit against Jacintoport at the time he filed the bill of discovery. Id. at 903.

In the instant case, Gonzales seeks discovery of information related to the birth and delivery of the baby from the hospital and doctor who performed the delivery. The reason is to investigate claims for damage for injuries that occurred during the delivery. We hold that this pre-suit discovery proceeding is incident and ancillary to a contemplated suit against Valley Baptist and/or the doctor. Accordingly, this court is without jurisdiction to hear this appeal.

While Gonzales only seeks information related to the fetal vacuum system used in delivering Michael Jr., the suit contemplated is one to recover for injuries which occurred during the birth. Gonzales named the doctor and the hospital in her petition as persons who may have interests adverse to hers in any anticipated suit. Even though Gonzales targets only the manufacturer of the fetal extractor device, it is difficult to imagine that the doctor who performed the delivery and the hospital where the delivery was performed would not also be contemplated defendants in such an action. If Gonzales had stated that this bill of discovery was intended to seek information regarding the potential liability of the hospital and the doctor, rather than the manufacturer of the medical device, the law is clear that interlocutory appeal would not be an available remedy for an order granting discovery under Rule 202. We see no meaningful difference where the defendants from whom discovery is sought are clearly contemplated defendants in a subsequent proceeding under the particular facts of a case, regardless of the petitioner’s express statements in the petition.

Moreover, Rule 202 provides adequate safeguards for a defendant from whom discovery is sought. The court is required to find that either allowing the discovery may prevent a failure or delay of justice in an anticipated suit, or that the likely benefit of allowing the deposition outweighs the burden or expense of the procedure. Tex.R. Civ. P. 202.4(a). Mandamus is available if the trial court commits a clear abuse of discretion. Additionally, the trial court has authority to restrict or prohibit the use of a deposition taken under this rule in a subsequent suit to protect a person not given notice of the deposition or to prevent abuse of the rule. Id, at 202.5.

Finally, we note that Rule 202.4(b) states that the order must contain any protections the court finds necessary or appropriate to protect the witness or any person who may be affected by the procedure. Tex.R. Civ. P. 202.4(b). Because this suit is essentially an equitable procedure, it seems entirely appropriate for a court to fashion protections in the order tailored to the situation. For example, requiring a bond to cover defendant’s costs may be appropriate,' when it appears possible that plaintiff has used the procedure for improper purposes or to require plaintiff to bear the burden of risk of deposing an entirely innocent potential defendant.

Further, we find the normal protections afforded litigants against discovery abuse adequate and more appropriate than direct appeal. See e.g., Tex.R. Civ. P. 192.6 (providing for protective order against discovery); Tex.R. Civ. P. 199.4 (providing for motion to quash deposition objecting to time and place). In recognizing that the Rule 202 procedure generally benefits potential defendants overall by allowing plaintiffs to weed out unmeritorious claims through discovery without having to file suit, we find that the slight risk of harm that may occur is properly born by defendants for situations where a bill was improvidently granted by a trial court but the circumstances of its granting are not egregious enough to warrant mandamus relief and where a later suit does not follow.

Accordingly, we vacate our prior order staying the deposition and other trial court proceedings and dismiss this appeal for want of jurisdiction.


author: PHIL HARDBERGER, Chief Justice.

text:
    Juan HERNANDEZ, Appellant, v. TEXAS WORKFORCE COMMISSION and Greyhound Lines, Inc., Appellees.
    No. 04-99-00352-CV.
    Court of Appeals of Texas, San Antonio.
    Jan. 26, 2000.
    Rehearing Overruled Feb. 16, 2000.

      Israel M. Reyna, Texas Rural Legal Ad, Inc., Laredo, for appellant.
    David L. Phillips, Phillips <& Akers, P.C., Houston, Seth O. Smith, Asst. Atty. Gen., Taxation Division, Austin, for appellee.
    Sitting: PHIL HARDBERGER, Chief Justice, CATHERINE STONE, Justice, SARAH B. DUNCAN, Justice.
   Opinion by:

PHIL HARDBERGER, Chief Justice.

Juan Hernandez (“Hernandez”) appeals the Texas Workforce Commission’s decision disqualifying him from the receipt of unemployment benefits. Hernandez raises four issues in his brief, contending: (1) the act which the TWC found to be misconduct and on which the TWC based its disqualification decision was not the stated reason for Hernandez’s discharge; (2) the stated reason for Hernandez’s discharge was not misconduct; (3) the trial court could not affirm the TWC’s decision on an act of misconduct that differed from the stated reason for Hernandez’s discharge; and (4) the trial court’s judgment affirming the TWC’s decision on a basis other than the stated reason for Hernandez’s discharge violated his due process rights. We affirm the trial court’s judgment.

Factual and PROCEDURAL History

Hernandez was employed by Greyhound Lines, Inc. (“Greyhound”) as a customer service associate/ticket agent. Louis Iba-nez (“Ibanez”) was the terminal manager at the location where Hernandez worked, and Diana Navarro (“Navarro”) was Hernandez’s immediate supervisor.

Ibanez ordered Navarro to conduct an audit on the terminal’s phone bill after she discovered that numerous phone calls were being made to Renville, Minnesota. After completing the audit, it was discovered that approximately 300 phone calls had been made to Renville, at a cost of approximately $500. Around the same time, an unemployment claim form was received from Belia Martinez (“Martinez”), who lived in Renville, Minnesota. Martinez had been a co-worker and close friend of Hernandez before she was discharged from Greyhound. Martinez was also a friend of Navarro.

Prior to the date Martinez was discharged, she would take leaves of absence to work in the fields in Minnesota as a migrant worker. While she was on leave, Hernandez would call her while he was on duty. Hernandez testified that Navarro was aware that he was making these calls, and, on occasion, Navarro would speak to Martinez when he called her. Hernandez and Martinez testified that Navarro would joke with them upon receiving the phone bills as to who was going to pay for the phone calls.

After Ibanez discovered the history of the phone calls, he confronted Hernandez. There is a conflict in the evidence as to the specificity of Ibanez’s initial inquiry. Iba-nez testified that he specifically asked Hernandez whether he recognized the phone calls to Renville. Hernandez testified that Ibanez asked if he was aware of long distance phone calls made during his shift without specifying a number or city. Hernandez initially denied any knowledge. Hernandez explained his initial denial was due to the vague nature of the question, and he did not believe he was responsible because everyone used the phone for personal reasons. Hernandez testified that he admitted that he made the phone calls when Ibanez specified the calls to Martinez. Ibanez testified that Hernandez only admitted that he made the phone calls when Ibanez showed him Martinez’s name with a Renville address from an unemployment claim form.

Hernandez filed a claim for unemployment compensation. Hernandez’s claim states that he was discharged because he made personal long distance calls. Greyhound responded to the initial claim, stating: “Numerous long distance calls were made to Renville, Mn. only when Juan Hernandez was on duty, that is the reason why Juan’s employment with Greyhound was terminated.” Hernandez’s initial claim was denied, and he appealed to the Appeal Tribunal.

The Appeal Tribunal reversed the initial claim determination, holding that Hernandez’s actions did not rise to the level of misconduct connected with his work. The Appeal Tribunal’s decision states:

Although there are specific points on which the claimant and the employer disagree concerning the use of the telephone, the testimony presented here convinces me the claimant knew he was violating the employer’s policy. However, the evidence also establishes that he did so with the approval of his immediate supervisor. Therefore, it cannot be held that his actions rise to the level of misconduct connected with the work.

The findings of fact in the Appeal Tribunal decision do not mention the confrontation between Ibanez and Hernandez when Hernandez initially denied having made the phone calls.

Greyhound appealed the Appeal Tribunal’s decision to TWC. In its letter requesting the appeal, Greyhound also asked that it be permitted to present a new witness to testify. It appears from the wording of the request that Greyhound wanted to call Navarro to testify. It is unclear from the record whether this request was granted.

The TWC reversed the Appeal Tribunal decision, in a 2-1 decision joined by the Chairman and the Commissioner Representing Employers. The findings of fact in the TWC’s decision recite that Hernandez was discharged for dishonesty. The findings of fact state: “The claimant’s act of dishonesty occurred when he initially, upon being confronted by the employer, denied having any knowledge as to the calls being made when he in fact made them.” The TWC’s decision concludes: “that the claimant’s failure to fully and honestly cooperate in the employer’s investigation of the long-distance calls constituted intentional wrongdoing and thus misconduct.” The Commissioner Representing Labor dissented from the ruling. The dissent states:

The evidence clearly establishes that claimant used the employer’s phone system for personal calls. The evidence establishes this was a common practice. While the claimant denied responsibility for all calls when first questioned, he promptly admitted responsibility for the calls which he did make when they were specified.

Hernandez appealed the TWC’s decision to the trial court. The transcript of the testimony of the witnesses at the TWC hearing was not presented as evidence at trial. Only one page of Ibanez’s testimony and one page of Hernandez’s testimony before the TWC was admitted. It appears from the TWC’s decision and dissent that testimony was presented by Ibanez and Hernandez at the TWC hearing regarding Hernandez’s initial denial. As previously noted, the two witnesses presented conflicting testimony at trial regarding the specificity of Ibanez’s initial inquiry. The trial court affirmed the TWC’s decision, and Hernandez timely filed this appeal.

STANDARD OF REVIEW

Judicial review of a TWC decision is by trial de novo. Tex. LaboR Code Ann. § 212.202 (Vernon 1996). A trial de novo review of a TWC decision requires the court to determine whether there is substantial evidence to support the TWC’s ruling. Mercer v. Ross, 701 S.W.2d 830, 831 (Tex.1986); Direct Communications, Inc. v. Lunsford, 906 S.W.2d 537, 541 (Tex.App.—Dallas 1995, no writ); Arrellano v. Texas Employment Comm’n, 810 S.W.2d 767, 769 (Tex.App.—San Antonio 1991, writ denied). Reviewing courts are not bound by, nor do they review, the TWC’s findings of fact. Direct Communications, Inc. v. Lunsford, 906 S.W.2d at 541. The trial court rules on the evidence admitted at the trial de novo — not the evidence presented at the TWC hearing. Mercer, 701 S.W.2d at 831.

The determination of whether the TWC’s decision is supported by substantial evidence is a question of law. Arrellano, 810 S.W.2d at 770. The TWC is the primary fact-finding body, and the reviewing court may not substitute its judgment for that of the agency on controverted issues of fact. Id. The reviewing court may only set aside the TWC’s decision if the decision was made without regard to the law or the facts and therefore was unreasonable, arbitrary or capricious. Mercer, 701 S.W.2d at 831. It is for the reviewing court to decide whether the evidence is such that reasonable minds could not have reached the conclusion the agency must have reached in order to justify its actions. Direct Communications, Inc. v. Lunsford, 906 S.W.2d at 541.

Reason for DischaRge

In his first issue, Hernandez contends that the TWC’s decision that he engaged in misconduct by failing to honestly cooperate with Greyhound’s investigation is unreasonable, arbitrary, or capricious, and was made without regard to the facts or the law, because Greyhound’s stated reason for Hernandez’s discharge was the making of personal long distance calls. Hernandez asserts that the TWC’s decision, therefore, disqualified him from the receipt of benefits for an act of purported “misconduct” that was not the reason given for his discharge. In his second issue, Hernandez asserts that the trial court could not affirm the TWC’s decision based on a finding that Hernandez was discharged for misconduct because he made personal long distance phone calls.

The TWC responds by contending that there is substantial evidence to support the TWC’s decision that Hernandez was discharged for dishonesty, which is an act of misconduct disqualifying him from the receipt of benefits. The TWC contends that Hernandez had the burden of showing the absence of substantial evidence to support the decision on any possible basis for upholding the decision and not solely on TWC’s stated basis.

TWC is correct that the Texas Supreme Court held in Texas Employment Comm’n v. Hays that if TWC’s conclusion is correct, whether it proceeded to that conclusion on an erroneous theory or gave an unsound reason for reaching it is immaterial. 360 S.W.2d 525, 527 (Tex.1962). However, that rule does not mean that a trial court can determine a material controverted fact question which was not passed on at all by TWC in order to sustain the TWC’s decision. Gulf Land Co. v. Atlantic Refining Co., 134 Tex. 59, 131 S.W.2d 73, 84 (1939) (cited as support in Hays). As clarified by the Austin court of appeals, the principle that a reviewing court is obligated to sustain an agency order on any legal basis shown in the record is sometimes confused with the erroneous idea that a reviewing court must sustain an agency order on any “valid basis” shown in the record. Public Utility Com’n of Texas v. Southwestern Bell Telephone Co., 960 S.W.2d 116, 121 & n. 7 (Tex.App.—Austin 1997, no writ). The principle does not mean that the reviewing court may sustain the agency upon a factual basis not passed upon by the agency. Id.

TWC did not decide whether Hernandez’s making of personal long distance calls was misconduct. This was a disputed factual question that the Appeal Tribunal resolved in Hernandez’s favor. Rather than addressing that factual question, TWC found that Hernandez’s initial denial of having made the calls constituted misconduct. Since TWC did not decide whether the act of making the personal long distance calls constituted misconduct, we may not sustain the TWC’s decision on that factual basis.

We agree that the TWC must base its disqualification decision on the same act of misconduct for which Greyhound terminated Hernandez. See Hawkins v. Leach, 115 Ohio App. 259, 270, 185 N.E.2d 36, 44 (1961); see also Green v. District Unemployment Comp. Bd., 346 A.2d 252, 256 (D.C.1975) (finding of misconduct must be based fundamentally on reasons specified by the employer for the discharge); Voss v. Review Bd. of Employment, 533 N.E.2d 1020, 1021 (Ind.Ct.App.1989) (agency decision must be based on stated grounds for discharge); Mine Safety Appliances Co. v. Commonwealth Unemployment Comp. Bd. of Review, 55 Pa.Cmwlth. 517, 521 423 A.2d 798, 800 (1980) (denial of compensation must be based on stated reason for discharge not other act constituting misconduct). Under section 207.044, an individual is disqualified for benefits if the individual was discharged for misconduct. Tex. Labor Code Ann. § 207.044 (Vernon 1996). This provision contemplates that the reason the individual was discharged must amount to misconduct, not that the individual was discharged and, at some time while he was employed, he engaged in misconduct. The TWC’s decision disqualifying Hernandez must be based on the same ground that Greyhound based its decision to discharge Hernandez.

The next question that arises is whether Greyhound discharged Hernandez for making the personal phone calls or whether Greyhound discharged Hernandez for his initial denial of having made the calls. The decision of the TWC carries a presumption of validity. See Mercer, 701 S.W.2d at 831. Absent any controverting evidence, we must presume that Greyhound introduced evidence before the TWC, stating that Hernandez’s initial denial was the basis for his discharge. There is no controverting evidence in the record before us. Hernandez did not introduce the record of the TWC’s proceedings to demonstrate that Greyhound failed to introduce evidence that Hernandez’s initial denial of having made the phone calls was the basis for his discharge. See Nuernberg v. Texas Employment Comm’n, 858 S.W.2d 364, 365 (Tex.1993) (individual items within the agency record may be independently introduced at trial pursuant to the Texas Rules of Evidence); Direct Communications, Inc. v. Lunsford, 906 S.W.2d at 540 (evidence heard by agency, while not per se admissible, may be admissible depending upon its merits under the general rules of evidence); Haas v. Texas Employment Comm’n, 683 S.W.2d 462, 464 (Tex.App.—Dallas 1984, no writ) (evidence of commission hearing to be considered when properly introduced in trial court). In addition, Ibanez testified at trial that he mentioned the denial of the phone calls as a basis for Hernandez’s discharge before the TWC. Therefore, the evidence before the trial court was insufficient to rebut the presumption that the TWC’s decision was valid and that the TWC’s decision disqualifying Hernandez was based on the reason given by Greyhound for his discharge.

Grounds for Trial Court’s Decision

In his third issue, Hernandez contends that the trial court could not affirm the TWC’s decision for reasons not presented to the TWC. As previously noted, however, Ibanez testified that he mentioned the denial of the phone calls as a basis for Hernandez’s discharge before the TWC. In the absence of controverting evidence, we must presume that the initial denial of the phone calls was the basis for the discharge that was presented to the TWC.

Due Process

In his fourth issue, Hernandez asserts that his due process rights were violated if the TWC’s decision is based on an alleged act of misconduct that differs from the alleged act of misconduct for which he was discharged. Hernandez relies on Gonzales v. Texas Employment Commission to support this contention. 653 S.W.2d 308, 310-11 (Tex.App.—San Antonio 1983).

In Gonzales, the court’s concern was that the absence of notice that the employer based its discharge decision on “misconduct” rather than “voluntary termination of employment,” deprived the employee of the opportunity to adequately prepare his side of the controversy. See id. The court stated that with proper notice, the employee would have introduced additional evidence. Id. at 311. In this case, Hernandez does not contend that he was unable to present his side of the controversy with regard to his initial denial of having made the phone calls. It is clear from the dissenting opinion to the TWC’s decision that Hernandez was afforded this opportunity and convinced at least one of the members of the decision panel that his initial denial did not amount to misconduct.

Conclusion

The evidence before the trial court was insufficient to rebut the presumption that the TWC’s decision was valid and that the TWC’s decision disqualifying Hernandez was based on the reason given by Greyhound for his discharge. The trial court’s judgment is affirmed.

SARAH B. DUNCAN, Justice, concurring in the judgment only.


author: KAREN ANGELINI, Justice. PHIL HARDBERGER, Chief Justice,

text:
    Thomas HENRY and Michael Hearn, Appellants, v. Hector GONZALEZ, Appellee. In re Thomas Henry and Michael Hearn.
    Nos. 04-99-00478-CV, 04-99-00479-CV.
    Court of Appeals of Texas, San Antonio.
    Jan. 26, 2000.
    Rehearing Overruled May 19, 2000.

      Richard W. Avery, James I. Smith, Jr., Glast, Phillips & Murray, P.C., Houston, Douglas E. Chaves, Audrey Mullert Vick-nair, Mark De Koch, Roberta S. Dohse, Chaves, Gonzales & Hoblit, L.L.P., Corpus Christi, for appellant.
    William J. Tinning, Law Offices of William J. Tinning, Portland, David T.. Garcia, Falfurrias, for appellee.
    Sitting: PHIL HARDBERGER, Chief Justice, SARAH B. DUNCAN, Justice, KAREN ANGELINI, Justice.
   Opinion by:

KAREN ANGELINI, Justice.

Appellants/Relators, Thomas Henry and Michael Hearn, seek relief from the trial court’s denial of their motion to compel arbitration and grant of appellee’s motion for summary judgment. Henry and Hearn have filed an interlocutory appeal pursuant to the Texas Arbitration Act and a petition for writ of mandamus pursuant to the Federal Arbitration Act. The two proceedings have been consolidated. •

We conclude the Texas Arbitration Act applies; therefore, we deny Henry and Hearn’s petition for writ of mandamus. We reverse and remand the trial court’s denial of Henry and Hearn’s motion to compel arbitration and grant of appellee’s motion for summary judgment because we conclude the trial court abused his discretion by holding the termination of the attorney/client contract invalidated the internal arbitration agreement.

Factual and Procedural Background

Hector and Noela Gonzalez wished to pursue a medical malpractice action in Fal-furrias, Texas, and in March 1997 hired Thomas Henry and Michael Hearn to represent them. Hector Gonzalez executed a contract manifesting this relationship with Henry and Hearn. On December 17,1997, prior to filing an original petition in the case and approximately two weeks before expiration of the statute of limitations, Henry sent a letter to the Gonzalezes stating the attorneys’ intent to terminate the attorney/client contract. The Gonzalezes immediately contacted another attorney, Raul Garcia, who wrote a letter to Henry encouraging him to continue on the case through filing the original petition. Henry subsequently filed a petition in Corpus Christi, a place of improper venue, against the defendants in the medical malpractice case. Henry did not notify the Gonzalezes or Garcia that he filed the petition, nor did he return the case file to them. Although he signed the petition as the attorney of record, Henry titled it as a “pro se” petition. Henry did not serve the defendants, and the statute of limitations expired without a proper suit being filed.

The Gonzalezes subsequently filed suit against Henry and Hearn alleging causes of action for legal malpractice, breach of fiduciary duty, and violations of the Deceptive Trade Practices Act. The Gonzalezes also sought a declaratory judgment that the arbitration clause in the attorney/client contract was unenforceable and void as a matter of public policy. Henry and Hearn filed a motion to compel arbitration against Hector Gonzalez, contending the attorney/client contract mandated such disposition. The Gonzalezes filed a motion for summary judgment on their declaratory action contending the suit fell outside the original contract, and any arbitration clause was ambiguous. The trial court entered an order granting the Gonzalezes’ motion for summary judgment, holding that “no mandatory referral for binding arbitration has been shown by the applicable contract relied upon by the defense to be authorized.” It is from this order that Henry and Hearn seek relief by filing a petition for writ of mandamus under the Federal Arbitration Act (FAA) and an interlocutory appeal under the Texas Arbitration Act (TAA). Both the mandamus and the interlocutory appeal address the same issue: the propriety of the trial court’s denial of their motion to compel arbitration and the trial court’s grant of the Gonzalezes’ motion for summary judgment.

Because the Gonzalezes’ motion for summary judgment on their request for declaratory relief addressed the same issue as Henry and Hearn’s motion to compel arbitration, these two motions compete and complicate the procedural posture of this case. The trial court’s order addressing these two competing motions further complicates its posture on appeal. The trial court’s order is titled, “ORDER ON PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT ON DECLARATORY JUDGMENT ACTION/DEFENDANTS’ CLAIM OF MANDATORY ARBITRATION.” However, in the body of the order the trial court only granted the motion for summary judgment, without specifically denying the motion to compel arbitration. Because the trial court’s action effectively denied Henry and Hearn’s motion to compel arbitration and because the title of the order implied an intent to address both motions jointly, we may assume Henry and Hearn’s motion to compel arbitration was denied.

Although the grant of the Gonzalezes’ motion for summary judgment and the denial of Henry and Hearn’s motion to compel arbitration had the same effect, this court’s review of these types of motions and the parties’ burden of proof for each is different and requires different analysis. We will begin with the review of the trial court’s action on Henry and Hearn’s motion to compel arbitration, as this review most clearly addresses the true substance of all the disputed issues. We will then address the merits of the trial court’s grant of the Gonzalezes’ motion for summary judgment, which will obviously follow our decision on the trial court’s denial of the competing motion to compel arbitration.

Discussion

Before we proceed on the merits of the dispute, this court must first determine whether state or federal arbitration laws govern this dispute. See Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 271-72 (Tex.1992); see also Pepe Int’l Dev. Co. v. Pub Brewing Co., 915 S.W.2d 925, 932 (Tex.App.-Houston [1st Dist.] 1996, no writ). The parties attempted to resolve this issue in the attorney/chent contract. Provision 10 of the attorney/client contract provides that the “Agreement shall be construed under and in accordance with the laws of the State of Texas, ... and regarding anything covered by this Agreement shall be governed by the laws of the State of Texas.” Provision 11, however, provides that all disputes “shall be resolved by binding arbitration pursuant to the Federal Arbitration Act in accordance with the commercial Arbitration Rules then in effect with the American Arbitration Association. ... This arbitration provision shall be enforceable ... pursuant to the substantive federal laws established by the Federal Arbitration Act.” Contradictory to Provision 11, the contract contains a clause which appears in all capital letters immediately above the signature lines which states: “THIS CONTRACT IS SUBJECT TO ARBITRATION UNDER THE TEXAS GENERAL ARBITRATION STATUTE.” Therefore, the contract itself is internally inconsistent as to whether the FAA or the TAA governs.

In interpreting the contract, we examine the entire agreement in an effort to harmonize and give effect to all provisions of the contract so that none will be meaningless. Bush v. Brunswick Corp., 783 S.W.2d 724, 728 (Tex.App.-Fort Worth 1989, writ denied). If provisions in the contract appear to conflict, they should be harmonized, if possible, to reflect the intentions of the parties. Ogden v. Dickinson State Bank, 662 S.W.2d 330, 332 (Tex.1983); Bush, 783 S.W.2d at 728. Therefore, we cannot strike down any portion of the contract unless there is an irreconcilable conflict. Ogden, 662 S.W.2d at 332.

Provision 11 is in irreconcilable conflict with the other relevant portions of the contract. While Provision 11 states that the FAA shall govern any arbitration, we cannot harmonize this provision, and therefore, construe this conflict as drafting error. Additionally, we avoid application of the FAA because performance of the contract does not relate to interstate commerce, and the FAA is implicated in transactions relating to interstate commerce. See Cantella & Co., Inc. v. Goodwin, 924 S.W.2d 943, 944 (Tex.1996); Anglin, 842 S.W.2d at 269-70. We strike down Provision 11 and conclude that this dispute is governed by the TAA because: (1) Provision 10 provides that “anything covered” in the contract shall be governed by Texas law, (2) the prominent bold type states that any arbitration will be governed by the TAA, and (3) all parties involved in the suit are Texas residents, the contract was signed in Texas, the contract was to be performed in Texas, only, and the dispute does not relate in any way to interstate commerce. Because we conclude that this dispute is governed by the TAA, we deny appellants’ petition for writ of mandamus filed pursuant to the FAA. We now proceed to the merits of the interlocutory appeal.

Standards of Review and Burdens of Proof

a) Motion to Compel Arbitration

In determining whether to compel arbitration, the trial court must decide the following: (1) whether a valid, enforceable arbitration agreement exists, and (2) if so, whether the claims asserted fall within the scope of that agreement. Dallas Cardiology Assoc., P.A. v. Mallick, 978 S.W.2d 209, 212 (Tex.App.Texarkana 1998, writ denied). If the answers to both prongs are affirmative, the trial court has no discretion but to compel arbitration and stay its proceedings pending arbitration. Id. The party seeking arbitration has the initial burden to establish his right to the remedy under the first prong; that is, to establish that a valid arbitration agreement exists. Id. Once the existence of an arbitration agreement has been established, a presumption attaches favoring arbitration. Id. At this point, the burden shifts to the opposing party to establish some ground for the revocation of the arbitration agreement. Such grounds include fraud, waiver, unconscionability, or that the dispute falls outside the scope of the agreement. Id. Under the second prong, to determine whether a claim falls within the scope of an arbitration agreement, the trial court must examine the factual allegations of the complaint, rather than the legal causes of action asserted. Id. The trial court must resolve any doubt about these issues in favor of arbitration. Id.

Appellate courts use a “no evidence” standard for review of the trial court’s factual determinations. See Pony Express Courier Corp. v. Morris, 921 S.W.2d 817, 820 (Tex.App.-San Antonio 1996, no writ). In a “no evidence” point, we consider only the evidence that supports the fact finding, while disregarding the evidence to the contrary. Hearthshire Braeswood Plaza Ltd. Partnership v. Bill Kelly Co., 849 S.W.2d 380, 384 (Tex.App.-Houston [14th Dist.] 1993, writ denied). If there is any evidence of probative force to support the finding, the trial court’s finding must be upheld. See id. However, when the trial court decides a matter involving both factual determinations and legal conclusions, we employ the abuse of discretion standard of review. See Pony Express Courier Corp., 921 S.W.2d at 820. Under the abuse of discretion standard, this court defers to the trial court’s factual determinations while reviewing legal conclusions de novo. Id. Pure legal conclusions, or matters not requiring extrinsic evidence are subject to de novo review under the abuse of discretion standard. See Id. at 820 n. 2; see also Fridl v. Cook, 908 S.W.2d 507, 511 (Tex.App.-El Paso 1995, writ dis’d w.o.j.).

b) Summary Judgment

In a motion for summary judgment, the movant has the burden of showing there is no genuine issue of material fact, and it is entitled to judgment as a matter of law. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex.1985). Evidence favorable to the nonmovant is taken as true, and every reasonable inference in favor of the nonmovant will be resolved in its favor. Id. at 548-49. Accordingly, under both analyses, the presumptions he in favor of Henry and Hearn, as the nonmov-ants of the motion for summary judgment and as the movants of the motion to compel arbitration.

This court’s review of the trial court’s denial of the motion to compel arbitration and the grant of summary judgment focuses on the following language of the original attorney/client contract:

11. ARBITRATION

Any and all disputes, controversies, claims, or demands arising out of or relating to this Agreement or any provision hereof, the providing of services by Attorneys to Client, or in any way relating to the relationship between Attorneys and Client whether in contract, tort, or otherwise, at law or in equity, for damages or any other relief, shall be resolved by binding arbitration pursuant to the Federal Arbitration Act in accordance with the commercial Arbitration Rules then in effect with the American Arbitration Association.

Just above the signature line, the contract contained the following inscription:

THIS CONTRACT IS SUBJECT TO ARBITRATION UNDER THE TEXAS GENERAL ARBITRATION STATUTE.

The top of the first page of the contract contains the following inscription:

THIS CONTRACT IS SUBJECT TO ARBITRATION

In their first, second, and third points of error, Henry and Hearn contend the trial court erred by denying their motion to compel arbitration because they established the existence of an arbitration agreement under the Federal Arbitration Act and the Texas Arbitration Act, they showed that the claims raised by Gonzalez fell within the scope of the arbitration agreement, and Gonzalez failed to show that the agreement was unenforceable.

The primary disputed issue under these points of error relate to Henry and Hearn’s burden of proof: the existence of a valid arbitration agreement. This disputed issue is whether Henry and Hearn’s termination of the attorney/client contract also terminated any application of the internal mandatory arbitration clause. Because this issue is a question of law, it is subject to de novo review. See Pony Express, 921 S.W.2d at 820.

At the time the attorney/client contract was executed, the TAA provided:

A written agreement to submit any controversy to arbitration or a provision in a written contract to submit to arbitration any controversy thereafter arising between the parties is valid, enforceable and irrevocable, save upon such grounds as exist at law or in equity for the revocation of any contract.

Tex. Civ. PRAC. & Rem.Code Ann. § 171.001 (West 1997)(amended by Tex. Civ. Prac. & Rem.Code Ann. § 171.001(a),(b)(West Supp.2000), effective Sept. 1,1997).

The issue whether an arbitration agreement survives repudiation of the contract was addressed in Pepe Int’l Dev. Co. v. Pub Brewing, 915 S.W.2d 925, 932 (Tex.App.-Houston [1st Dist.] 1996, no writ). In Pepe, the Houston Court of Appeals recognized that the TAA mandated that the agreement to arbitrate contained in a written contract is separable from the entire contract. Id. (citing Miller v. Puritan Fashions Corp., 516 S.W.2d 234, 238 (Tex.Civ.App.-Waco 1974, writ ref. n.r.e.)(addressing the issue under the FAA)). The Pepe court held that any arbitration agreement contained within the contract is valid and enforceable in spite of any attack made upon the contract as a whole. Id.; Miller, 516 S.W.2d at 238. More recently, the Dallas Court of Appeals followed Pepe in a case brought under the TAA in its present form. See Dallas Cardiology Assoc., 978 S.W.2d at 213; see also Tex. Civ. Prac. & Rem.Code Ann. § 171.001(a),(b) (West Supp.2000). The Dallas Court of Appeals held that the arbitration clause contained within a contract between the parties remained in effect and enforceable in spite of any alleged or disputed breach of the contract. Id.

We follow this line of reasoning and hold that an arbitration agreement contained within a contract survives the termination or repudiation of the contract as a whole. See Dallas Cardiology Assoc., 978 S.W.2d at 213; Pepe Int’l Dev. Co., 915 S.W.2d at 932; Miller, 516 S.W.2d at 238. Under this reasoning, the trial court has a duty to determine the validity of an arbitration clause contained in a contract separately from the validity of the contract itself. See Dallas Cardiology Assoc., 978 S.W.2d at 213; Miller, 516 S.W.2d at 238. Accordingly, the trial court abused its discretion by concluding that Henry and Hearn’s termination of the contract also terminated the arbitration agreement contained within the contract. See Dallas Cardiology Assoc., 978 S.W.2d at 213; Pepe Int’l Dev. Co., 915 S.W.2d at 932; Miller, 516 S.W.2d at 238. The trial court should have determined the validity of the arbitration agreement regardless of any termination of the contract itself. However, we will review the record to determine whether the trial court’s judgment was otherwise proper, or whether the trial court should have ordered arbitration.

The record contains evidence, and the parties do not dispute, that an arbitration agreement existed between the parties, as it was contained within the attorney/client contract signed by Gonzalez. We have determined that Henry and Hearn’s termination of the contract did not affect the validity of the internal arbitration agreement. Therefore, Henry and Hearn satisfied their burden of proof to establish their right to the remedy of arbitration. To overcome the application of the arbitration clause to him, Gonzalez was then required to establish some ground for revocation of the arbitration agreement. See Dallas Cardiology Assoc., 978 S.W.2d at 212.

Gonzalez argues two grounds for revocation of the arbitration agreement: (1) the application of the arbitration clause to this case violates public policy, and; (2) fraudulent inducement. Gonzalez’s public-policy contentions are unfounded because well established caselaw favors mandatory arbitration and holds that arbitration does not deny parties their right to a jury trial, as a matter of law. See Jack B. Anglin Co., Inc., 842 S.W.2d at 268; Fridl, 908 S.W.2d at 511; D. Wilson Const. Co., Inc. v. McAllen Ind. Sch. Dist., 848 S.W.2d 226, 231 (Tex.App.-Corpus Christi 1992, writ dis’d w.o.j.).

To the extent Gonzalez argues that he was fraudulently induced to sign the contract containing the arbitration clause due to his decreased mental capacity and the fact that the arbitration clause was not conspicuous, his argument fails. An allegation that the contract itself was fraudulently induced is a matter to be decided by the arbitrator. See In re Weekley Homes, 985 S.W.2d 111, 115 (Tex.App.-San Antonio 1998, writ denied); Pepe Int’l Dev. Co. v. Pub Brewing Co., 915 S.W.2d at 930. Fraudulent inducement to sign the contract, thus, cannot support the trial court’s order denying Henry and Hearn’s motion to compel arbitration, as a matter of law.

To the extent Gonzalez argues he was fraudulently induced to agree to arbitration, his argument also fails. Although this question usually requires a fact determination by the trial court, Gonzalez had the burden to prove this issue, and under the “no evidence” standard of review, this court may determine whether the record contains any evidence to support the trial court’s judgment. We hold that it does not. To support them motion for summary judgment and in opposition to Henry and Hearn’s motion to compel arbitration, the Gonzalezes submitted (1) the original, signed contract; (2) an affidavit of Noela Gonzalez, and (3) Thomas Henry’s deposition. The contract reveals that the arbitration clause was noticeable, sufficiently conspicuous, and prominently displayed to alert a person of its presence. Noela’s affidavit provides no evidence of fraudulent inducement, but instead contains only argument that she did not know the arbitration clause was contained in the contract and that neither she nor her husband would have signed any contract had they known it contained this agreement. This affidavit is insufficient to show fraudulent inducement of the arbitration agreement because Noela was not present when Hector signed the contract forming the basis of this lawsuit, she cannot attest to her husband’s intent or state of mind, and the affidavit does not provide evidence that Henry and Hearn took advantage of any decreased mental capacity. Thomas Henry’s deposition does not provide evidence of any ground for revocation of the arbitration agreement. Because we conclude a valid arbitration agreement existed, Gonzalez provided no evidence to support revocation of the arbitration agreement based on fraudulent inducement, and Gonzalez’s other contentions of revocation fail as a matter of law, we must continue to determine whether this dispute falls within the scope of the arbitration agreement.

This court may determine this final prong because the parties do not dispute the underlying facts necessary to make this determination, and whether a matter falls within the scope of an arbitration agreement is a question of law to be reviewed de novo. See Leander Cut Stone Co., Inc. v. Brazos Masonry, Inc., 987 S.W.2d 638, 640 (Tex.App.-Waco 1999, no writ). The matters in controversy fall within the scope of the arbitration agreement because the factual allegations forming the bases of the Gonzalezes’ legal malpractice and breach of fiduciary duty causes of action necessarily arose from Henry and Hearn’s representation of the Gonzalezes under the attorney/client contract. The Gonzalezes’ DTPA cause of action falls within the scope of the arbitration agreement because the actions forming the basis of this cause of action related to “the providing of services” by Henry and Hearn to the Gonzalezes, necessarily related to that relationship, and were so factually interwoven with the contract that such action could not stand alone. See Ford v. NYLCare Health Plans of Gulf Coast, Inc., 141 F.3d 243, 250 (5th Cir. 1998).

We sustain Henry and Hearn’s first, second, and third points of error. We need not reach the fourth point of error. Because the evidence shows that a valid arbitration agreement existed, río other ground exists to hold the arbitration agreement revocable, and the claims raised fell within the scope of this agreement, the trial court had no discretion but to compel arbitration. See Dallas Cardiology Assoc., 978 S.W.2d at 212.

In the same respect, the trial court erred by granting summary judgment in favor of Gonzalez. Gonzalez failed to show the absence of any material fact, and faded to show he was entitled to declaratory judgment as a matter of law. To the contrary, the evidence showed that arbitration should have been compelled. Accordingly, we sustain Henry and Hearn’s points of error relating to the trial court’s granting of the Gonzalezes’ motion for summary judgment.

Conclusion

We reverse the trial court’s order granting summary judgment and denying the motion to compel arbitration and remand this cause with instructions to the trial court to enter an order compelling arbitration between the plaintiff, Hector Gonzalez, and the defendants, Thomas Henry and Michael Hearn, and staying all other proceedings pending the outcome of the arbitration. We deny Henry and Hearn’s petition for writ of mandamus.

Dissenting opinion by: PHIL HARDBERGER, Chief Justice.

PHIL HARDBERGER, Chief Justice,

dissenting.

This interlocutory appeal arises from two attorneys’ efforts to compel arbitration of a legal malpractice claim against them. The trial court denied the attorneys’ motion to compel arbitration. The majority reverses the trial court’s order and remands the cause to the trial court with instructions to enter an .order compelling arbitration.

Among other issues addressed by the majority is the client’s argument that the arbitration provision violates public policy. The majority dismisses this argument in a single sentence, asserting: “Gonzalez’s public policy contentions are unfounded because well established caselaw favors mandatory arbitration and holds that arbitration does not deny parties a right to a jury trial, as a matter of law.” The majority then cites three cases in support of its assertion, none of which involve an arbitration provision in an agreement between an attorney and a client. Because special public policy considerations are implicated when an attorney imposes an arbitration provision on his or her client, I respectfully dissent.

The legal and ethical implications of arbitration provisions in contracts between attorneys and their clients have been the subject of a number of articles. See, e. g., Clark, The Legal and Ethical Implications of Pre-Dispute Agreements Between Attorneys and Clients to Arbitrate Fee Disputes, 84 Iowa L. Rev. 827 (1999) (additional authorities cited in footnotes 5-8; cited herein as Clark); Powers, Ethical Implications of Attorneys Requiring Clients to Submit Malpractice Claims to ADR, 38 S. Tex. L.Rev. 625 (1997) (cited herein as Powers); Jane Massey Draper, B.C.L., Annotation, Validity and Construction of Agreement Between Attorney and Client to Arbitrate Disputes Arising Between Them, 26 A.L.R. 5th 107 (1995). The essence of these articles is that whatever public policy may be served by enforcing arbitration agreements is more than offset by the public policy of not allowing attorneys to take advantage of their clients. Trust is the essential ingredient in an attorney-client relationship. The great majority of clients are not even close to being in an equal bargaining position with their attorneys. They go to an attorney so the attorney can tell them what to do, not vice-versa.

In a serious personal injury case, such as this, clients are typically deeply in grief and overwhelmed by the circumstances that have come upon them. Pain and disability have entered their lives, and the breadwinner is no longer able to bring home wages for the family. As bills pour in, with no offsetting income, a true state of desperation exists. Are we then to allow attorneys, who represent such clients, to take away them rights to a jury should legal malpractice occur? I agree with the commentators in the cited articles and with the laws established in other jurisdictions that conclude that such a practice is against public policy. Certainly it should be against public policy in the absence of some additional protections for the client, which do not exist in the case.

The traditional advantages of arbitration may not be so advantageous in the context of a legal malpractice claim. For example, the savings of cost and time would likely be more of a disadvantage to the attorney alleged to have committed malpractice than to the client because the client’s new attorney will typically be handling the claim on a contingency basis. See Powers, 38 S. Tex. L. Rev. at 637; see also Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 268 (Tex.1992) (noting efficiency and lower costs are frequently cited as the main benefits of arbitration). In addition, the ability to pursue the claim in court may provide the client with a bargaining advantage in negotiating with an attorney who seeks to avoid litigation and its potential negative publicity. Id.

More importantly, the fundamental fiduciary nature of the attorney-client relationship dictates against an attorney’s ability to impose an arbitration condition on a client. Clients are often in vulnerable positions, requiring them to bestow a large amount of trust in their attorneys. “The client’s vulnerability vis-a-vis the attorney is often exacerbated by the Ghent’s current legal situation.... He is neither expecting, nor emotionally prepared, to ‘do battle’ with his chosen attorney to protect his own rights.” Power, 38 S. Tex L. Rev. at 648. Applying general contractual principles to an arbitration provision in the attorney-client context ignores the practical reality that in most instances the attorney and his or her client are not engaged in an arm’s length transaction during their initial negotiations. See Clark, 84 Iowa L. Rev. at 852.

Attorneys generally have a greater advantage over their clients in an arbitration setting. Attorneys are trained to conduct arbitration to the best advantage of their clients, in this case themselves. See Powers, 38 S. Tex. L. Rev. at 631. Since one of the “selling points” of arbitration is the ability to proceed without an attorney, the client with the malpractice claim may not seek additional counsel, leaving the trained attorney with a distinct advantage. See id.

In a profession that is called upon to police itself, how can we justify allowing attorneys to take advantage of those who call upon their services? We cannot. Although the traditional contractual defenses, like unconscionability, may be available to clients who are taken advantage of, such a situation should never be allowed to arise. Clients who are in a weaker bargaining position may not be able to meet the burden of proving unconscionability. See Powers, 38 S. Tex L. Rev. at 639-42. This does not mean that the attorney would not have taken advantage of his or her client. It simply means that the legal definition of unconscionability, created by attorneys, is an uncertain road for an already burdened client.

Recognizing these public policy concerns, other states have prohibited or limited the inclusion of arbitration provisions in attorneys’ engagement letters. For example, Pennsylvania has adopted a rule that permits an arbitration provision in an engagement letter only if: (1) the advantages and disadvantages are fully disclosed by the attorney; (2) the client is advised of his right to consult independent counsel and is given the opportunity to do so; and (3) the Ghent’s consent is in writing. See Clark, 84 Iowa L. Rev. at 857-58. Both the District of Columbia and Michigan have taken a more restrictive approach and prohibit arbitration clauses in engagement letters unless the client has the advice of independent counsel. See id. at 858-863. Finally, Ohio has taken the most restrictive approach and simply prohibits pre-dispute arbitration agreements between attorneys and their clients. See id. at 862-64. Ohio reasons that requiring a client to hire a lawyer in order to hire a lawyer sends the wrong message. See id. at 863.

Public policy mandates that some restrictions must be placed on an attorney’s ability to include an arbitration provision in an engagement letter. Because no such restrictions were imposed in this case, I would conclude that the arbitration clause violates public policy and affirm the trial court’s ruling. I respectfully dissent.

      . Henry and Hearn concede that the arbitration clause does not apply to Noela Gonzalez because she did not sign the contract. Accordingly, this appeal relates only to the relationship between Hector Gonzalez and Henry and Hearn.

      . The trial court did not specify whether it applied the FAA or the TAA to the contract in question, and the parties do not address this issue in their briefs.