author: DAVIE L. WILSON, Justice.

text:
    AMERICAN MOTORISTS INSURANCE COMPANY, Appellant, v. OCCIDENTAL CHEMICAL CORPORATION, Appellee.
    No. 01-98-00632-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    March 30, 2000.

      H. Dwayne Newton, Houston, for Appellant.
    Barrett H. Reasoner, Houston, for Ap-pellee.
    Panel consists of Justices MIRABAL, WILSON, and ANDELL.
   OPINION

DAVIE L. WILSON, Justice.

This appeal presents a novel question of insurance coverage. The insured, Houston Scale Company, Inc., purchased a comprehensive general liability (“CGL”) policy from appellant, American Motorists Insurance Company. Houston Scale contracted with appellee, Occidental Chemical Corporation, to name Occidental as an additional insured under the CGL policy; however, Houston Scale failed to name Occidental as an additional insured. When a personal injury suit was filed against Occidental, Occidental was unable to file a CGL insur-anee claim 'with American Motorists because Occidental was not a named insured. At the time Houston Scale purchased the CGL policy, it also purchased a commercial catastrophe liability policy from American Motorists which provides both (1) excess CGL coverage over the underlying CGL policy limits and (2) replacement CGL coverage if the underlying CGL policy does not apply. The commercial catastrophe policy defines the term “insured” under that policy to include a person or entity to which the primary insured — in this case Houston Scale — is contractually obligated to provide CGL insurance.

We must decide if Occidental, which was not named as an additional insured on the underlying CGL policy, can nonetheless file a claim under the replacement CGL coverage provisions of the commercial catastrophe policy. Because Houston Scale was contractually obligated to provided CGL insurance to Occidental, we hold that Occidental is an insured under the commercial catastrophe policy and, therefore, is entitled to file a claim with American Motorists under the replacement CGL coverage provisions.

The trial court rendered an interlocutory summary judgment in favor of Occidental, holding Occidental was an insured under the commercial catastrophe policy. The judgment became final when the trial court granted Occidental’s request for attorney’s fees. American Motorists contends the trial court erred in (1) granting Occidental’s motion for summary judgment, (2) denying American Motorist’s motion for summary judgment, and (3) awarding attorney’s fees to Occidental. We affirm.

Factual and Procedural Background

Nasrollah Ghaemi sued Occidental for injuries he sustained while working as an employee for Houston Scale. At the time of Ghaemi’s injury, he was performing work at Occidental’s facility pursuant to a purchase order agreement between Houston Scale and Occidental. The underlying suit was settled between Occidental and Ghaemi for $500,000. Houston Scale had CGL and commercial catastrophe insurance policies from American Motorists. Later, Occidental sued Houston Scale and American Motorists, alleging that (1) Houston Scale breached the purchase order agreement for failing to name Occidental as an additional insured under CGL policy number 3MW 274 506-00 and (2) Occidental is an additional insured under commercial catastrophe policy number 3SB 036 884-00. Occidental has since settled with Houston Scale.

Both Occidental and American Motorists filed motions for summary judgment. The trial court granted Occidental’s motion and denied American Motorists’s motion, holding Occidental was an insured under the commercial catastrophe policy. Occidental and American Motorists then stipulated to the remaining facts except those concerning attorney’s fees. The trial court eventually rendered a final judgment that awarded Occidental $500,000 in actual damages and $38,000 in attorney’s fees.

Was Occidental an Insured?

In points of error one and two, American Motorists contends the trial court erred in granting Occidental’s motion for partial summary judgment and in denying its motion for summary judgment because Occidental is not an insured under the commercial catastrophe policy. A party moving for summary judgment has the burden of proving there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex.1985). In deciding whether there is a disputed material fact issue precluding summary judgment, we accept the evidence that favors the nonmovant as true and indulge all reasonable inferences and resolve all doubts in favor of the nonmov-ant. Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.1996). When the defendant produces competent evidence to negate a necessary element of the plaintiffs cause of action, to preclude summary judgment, the plaintiff must introduce evidence sufficient to raise a fact issue with respect to the element the defendant seeks to negate. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979). We must affirm the judgment if any theory advanced by a defendant in its motion is meritorious. See Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625 (Tex.1996). When both parties move for summary judgment and the trial court grants one motion and denies the other, as here, the losing party may challenge the denial of its motion as well as the grant to the prevailing party. Jones v. Strauss, 745 S.W.2d 898, 900 (Tex.1988); Phillips Natural Gas Co. v. Cardiff, 823 S.W.2d 314, 317 (Tex.App.— Houston [1st Dist.] 1991, writ denied). Under these circumstances, if we find the law contrary to the trial court, then we may reverse the trial court’s judgment and render judgment for the appealing party. See Jones, 745 S.W.2d at 900.

Under the purchase order agreement, Houston Scale was obligated to provide Occidental CGL coverage for liability arising out Houston Scale’s work for Occidental, with specific minimum coverage limits. The insurance requirements in the purchase order agreement are as follows:

INSURANCE: Prior to commencement of any of the work, CONTRACTOR and its subcontractors shall obtain and maintain at its sole cost and expense through out [sic] the performance of the work as follows:
A. Workers’ Compensation....
B. Comprehensive General Liability with minimum limits of not less than $1,000,000 Property Damage and not less than $1,000,000/ $3,000,000 Bodily Injury. Such policies shall also provide:
1. Broad form property damage liability endorsement.
2. Contractor’s Protective Liability-
3. Blanket contractual liability insurance sufficiently broad to include paragraph 8 “INDEMNIFICATION.”
4. Completed operations liability insurance including Broad Form Property Damage provisions.
5. If the work includes excavating or blasting an endorsement eliminating the excavating and blasting exclusions.
C.Automobile Liability....
OWNER shall be named additional insured on policies specified in Section B and C and shall be furnished insurance certificates evidencing the coverages requested prior to the commencement of the WORK, the policies will not be canceled or materially changed without thirty (30) days written notice to OWNER.

Although CGL policy number 3MW 274 506-00 contained the types of coverage required by the contract, it is undisputed that Houston Scale did not name Occidental as an additional insured. As a result, Occidental sued American Motorists under commercial catastrophe policy number 3SB 036 884-00, claiming to be an additional insured under the replacement CGL coverage provisions (Coverage B).

To support its position that it is an additional insured under Coverage B, Occidental relies on two sections of the commercial catastrophe policy. Section III, paragraph 4 defines an “insured” as:

Any person or organization to whom or to which you are obligated by virtue of a written contract to provide such insurance as afforded by this Coverage Part [B] is an insured, but only with respect to liability arising out of “your work,” “your product” and to property owned or used by you.

Occidental also relies on section I, paragraph 1 of Coverage B, that states in pertinent part:

We will pay those sums that the insured becomes legally obligated to pay as damages, because of “bodily injury,” “property damage,” “personal injury,” or “advertising injury” to which this insurance applies, but only if “underlying insurance” does not apply. We will pay only the amount in excess of “Retained Limit.”....

It is undisputed that the CGL policy is the “underlying insurance” for purposes of the commercial catastrophe policy.

Occidental’s argument against American Motorists is: (1) Because Houston Scale failed to name Occidental as an additional insured, the underlying insurance — the CGL policy — did not apply for purposes of section I, paragraph 1 of Coverage B of the commercial catastrophe policy; (2) Occidental was legally obligated to pay the $500,000 in damages for Ghaemi’s injuries; (3) Ghaemi’s injuries were injuries covered under Coverage B; (4) Occidental is an insured under Coverage B because Houston Scale, the primary insured under the commercial catastrophe policy, was contractually obligated to provide CGL insurance to Occidental; (5) therefore, American Motorists is directly hable to Occidental as a matter of law under the commercial catastrophe policy for the $500,000 judgment. In this appeal, American Motorists contests only the issue of Occidental’s status as an insured under the commercial catastrophe policy.

On appeal, American Motorists argues that Occidental is not an insured under the commercial catastrophe policy because Occidental did not contractually require Houston Scale to provide “excess” coverage. By its characterization of the commercial catastrophe policy as an “excess” policy, American Motorists attempts to avoid the application of section III, paragraph 4 (“Any person or organization to whom or to which you are obligated by virtue of a written contract to provide such insurance as afforded by this Coverage Part is an insured, but only with respect to liability arising out of ‘your work,’ ‘your product’ and to property owned or used by you.”). The ultimate issue, therefore, is whether the commercial catastrophe policy is a CGL policy.

American Motorists invites us to read the commercial catastrophe policy in the most narrow manner, suggesting that an insurance policy is not a CGL policy unless it provides primary CGL coverage. This, however, is not how the law dictates that we construe insurance contracts.

Insurance policies are subject to the same rules of construction as other contracts. Trinity Universal Ins. Co. v. Cowan, 945 S.W.2d 819, 828 (Tex.1997). The policy must be considered as a whole and effect given to each part if reasonably possible. National Sec. Life & Cas. Co. v. Davis, 152 Tex. 816, 257 S.W.2d 943, 944 (1953). The plain, ordinary, and generally accepted meaning of words is preferred unless the policy itself shows that the terms have been used in a technical or different sense. Ramsay v. Maryland Am. Gen. Ins. Co., 533 S.W.2d 344, 346 (Tex.1976). If an insurance contract can be given more than one reasonable interpretation, it is ambiguous, and the interpretation that most favors coverage will be adopted. Grain Dealers Mut. Ins. Co. v. McKee, 943 S.W.2d 455, 458 (Tex.1997). An intent to exclude coverage must be expressed in clear and unambiguous language. See State Farm Fire & Cas. Co. v. Reed, 873 S.W.2d 698, 699 (Tex.1993).

CGL policies are designed to protect an insured from losses arising out of business operations. 9 Lee R. Russ & Thomas F. Segalla, Couch on Insurance 3d § 129.1 (Dec.1997). The basic nature and requirements of the insurer’s liability and the broad risk/loss provisions identifying the insureds, the premises and areas covered, and what constitutes an “accident” or “occurrence,” are all contract provisions common to liability insurance in general. Id. What is specific to basic CGL policies are the exclusions that limit the insurer’s exposure and, thus, limit the coverage to business operations. Id.

American Motorists has not cited us to any authority, and we are aware of none, in which a general reference to CGL coverage has been construed to apply only to primary CGL coverage. The specific policy provision speaks only of “[a]ny ... organization ... to which you are obligated by virtue of a written contract to provide such insurance as afforded by this Coverage Part is an insured.” (Emphasis added). The Coverage B provisions of the commercial catastrophe policy in this appeal are clearly a CGL policy designed to replace the underlying CGL policy in the event that underlying policy does not apply. Although American Motorists uses the term “excess” policy, a reference to the Coverage A provisions, in an attempt to narrow the definition of CGL coverage to a particular form of CGL coverage, we are unpersuaded. We therefore hold that the commercial catastrophe policy contains a type of CGL coverage contemplated by the parties to the purchase order agreement.

We overrule points of error one and two.

Was Occidental Entitled to Attorney’s Fees?

In point of error three, American Motorists contends the trial court committed error in awarding attorney’s fees under Civil Practice and Remedies Code section 38.001(8). Tex. Civ. PRAC. & Rem.Code Ann. § 38.001(8) (Vernon 1997). Section 38.001(8) allows a person to recover attorney’s fees if the claim is for a written contract. Id. American Motorists argues that section 38.001(8) does not apply in this case due to the exemption for insurers in section 38.006. Tex. Civ. FRAG. & Rem.Code Ann. § 38.006 (Vernon 1997).

The purpose of the exceptions set forth in section 38.006 was to exclude only those actions for which attorney’s fees were already recoverable under a provision of the Insurance Code. Texas Property & Cas. Ins. Guar. Ass’n v. Southwest Aggregates, Inc., 982 S.W.2d 600, 612-15 (Tex.App. — Austin 1998, no pet.); see Whitehead v. State Farm Mut. Auto. Ins. Co., 952 S.W.2d 79, 87 (Tex.App. — Texarkana 1997), rev’d on other grounds, 988 S.W.2d 744 (Tex.1999). For this reason, Texas courts have construed section 38.006 and its precursor to preclude an award of attorney’s fees only for those claims against insurance companies that allow for attorney’s fees under other statutes, i.e., when the recovery sought is based on an insurance theory for which attorney’s fees are already available. Therefore, when the suit against the insurer is an action on the insurance contract, section 38.006 does not prevent an award of attorney’s fees otherwise allowed under section 38.001(8). Id.

We overrule point of error three.

Conclusion

We affirm the judgment of the trial court.

      . American Motorists describes its policy as "commercial catastrophe liability coverage.”

      .Section VI, paragraph 16 defines "Underlying Insurance” as follows:
      "Underlying Insurance” means the self-insurance coverage or insurance afforded by the policies listed in the Schedule of Underlying Insurance contained in the Declarations, including their renewals and replacements.
      The declaration page of commercial catastrophe policy number 3SB 036 884-00 lists CGL policy number 3MW 274 506-00 as an underlying policy.
      Section V, paragraph 9 states the following conditions for "Underlying Insurance”: "Underlying Insurance”
      a.In the event of bankruptcy, insolvency or financial impairment of the insurance company that issued the "underlying insurance,” we shall be liable under Coverage A only to the extent we would otherwise have been liable,
      b.If no coverage exists under the "underlying insurance” because you or any involved insured failed to comply with the policy terms and conditions, we shall be liable under Coverage A and Coverage B only to the extent we would have otherwise been liable,
      c.If any aggregate limit in any "underlying insurance” becomes completely used up, you must see to it that we receive written notice as soon as practicable.
      The effect, if any, of these conditions is not an issue in dispute.

      . "Retained Limit is defined in section VI, paragraph 14:
      "Retained Limit” means the greater of: a. The amount stated in the Declarations as Retained Limit [$25,000]; or
      b. The amount payable as damages under any other valid and collectible insurance available to the insured, other than "underlying insurance" or insurance purchased specifically in excess of this insurance.

      . If the CGL policy were not the "underlying insurance," then it would be considered "other insurance” under the commercial catastrophe policy, and the applicability of Coverage B would change.

      . We recognize the irony of this unusual fact pattern — due to the definition of "insured” in the commercial catastrophe policy, American Motorists must cover Occidental as an insured even though Occidental was not listed as an additional insured on the primary CGL policy (and no "additional insured” premium was paid). American Motorists, of course, can modify future commercial catastrophe policies to include a specific exclusion for this happenstance.


source: Caselaw Access Project

author:
DON BURGESS, Justice.
      RONALD L. WALKER, Chief Justice,

license: Public Domain

text:
    James Lee TRAHAN, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 09-99-337 CR.
    Court of Appeals of Texas, Beaumont.
    Submitted March 9, 2000.
    Decided April 5, 2000.
    Ken J. McLean, Houston, for appellant.
    Tom Maness, Crim. Dist. Atty., Wayln G. Thompson, Asst. Crim. Dist. Atty., Beaumont, for State.

      Before WALKER, C.J., BURGESS, and STOVER, JJ.
   OPINION

DON BURGESS, Justice.

James Lee Trahan, Jr. was charged with possession of a controlled substance. Following the denial of his pre-trial motion to suppress, Trahan pleaded guilty pursuant to a plea bargain. Trahan was sentenced to two years’ confinement in a state jail facility, suspended for three years, and fined $750. Trahan appeals raising two points of error.

Because it is dispositive of this appeal, we first address Trahan’s second point of error. Trahan contends “[t]he stop of [his] vehicle for failing to give a turn signal when exiting the freeway was not authorized under §§ 545.103 or 545.104, Transportation Code, and therefore not a violation of law for which a valid traffic stop may be made.” Section 545.104(a) provides “[a]n operator shall use the signal ... to indicate an intention to turn, change lanes, or start from a parked position.” Tex. Transp. Code Ann. § 545.104(a) (Vernon 1999). Section 545.103 provides “[a]n operator may not ... otherwise turn the vehicle from a direct course, or move right or left on a roadway unless movement can be made safely.” Tex. Transp. Code Ann. § 545.103 (Vernon 1999). The State argues failure to give a turn signal, in and of itself, is a traffic offense for which a valid stop may be made.

The plain language of section 545.104(a) indicates that signals are mandatory when turning, changing lanes, or starting from a parked position. However, in this case, there is no evidence Trahan “turned” or changed lanes in order to exit the freeway. Officer Danny Bucholz testified he stopped Trahan for failing to signal his exit from the freeway. The State argues the “process of exiting the freeway necessitates a turn by its very nature, as one cannot continue a straight path on a highway and suddenly find himself on an adjacent feeder road.” The State asks this court to assume facts not in evidence. There is simply no evidence that the exit taken by Trahan required a “turn.”

The State contends it is not necessary that a turn consist of a ninety degree turn onto a cross street. However, a ninety degree turn is exactly the type of turn contemplated by Subchapter C of the Transportation Code, titled “Turning and Signals for Stopping and Turning.” The “turns” discussed in Subchapter C are those “at intersection,” Tex. Transp. Code Ann. § 545.101 (Vernon 1999), and turns “to move in the opposite direction when approaching a curve or the crest of a grade.” Tex. Transp. Code Ann. § 545.102 (Vernon 1999). As noted above, Tex. Transp. Code Ann. § 545.103 (Vernon 1999), provides that “an operator may not ... otherwise turn the vehicle from a direct course, or move right or left on a roadway unless movement can be made safely.” Thus, the code does not equate moving right or left to a “turn,” and the only condition placed upon an operator for moving right or left is that the movement be made safely. There is no evidence in the record that Trahan’s exit from the freeway was unsafe. Accordingly, there was no basis for the stop. See Garcia v. State, 827 S.W.2d 937, 944 (Tex.Crim.App.1992)(holding that “[a]s long as an actual violation occurs, law enforcement officials are free to enforce the laws and detain a person for that violation”). As the consent to the search is a fruit of the illegal stop, the evidence obtained in the search should have been suppressed. See Viveros v. State, 828 S.W.2d 2, 4 (Tex.Crim.App.1992). Accordingly, the trial court abused its discretion in denying Trahan’s motion to suppress. Point of error two is sustained. The judgment of the trial court is reversed and the cause remanded for a new trial.

REVERSED AND REMANDED.

RONALD L. WALKER, Chief Justice,

concurring.

I concur with both the reasoning and result of the majority opinion. This concurrence is to point out the distinction between the facts of the present case and those in Ehrhart v. State, 9 S.W.3d 929 (Tex.App. — Beaumont 2000, no pet. h.), wherein I dissented. In the present ease, the evidence produced by the Sate may show that safe driving practice dictates signaling when exiting the freeway, however to say that Tex. Transp. Code Ann. §§ 545.103 or 545.104 requires same is a stretch of the plain meaning of those statutes. In Ehrhart, I believe the facts show clear authorization to stop the accused for suspicion that Ehrhart was driving while intoxicated. Not so in the present case.


text:
    TSP DEVELOPMENT, LIMITED, Appellant, v. TEXAS NATURAL RESOURCE CONSERVATION COMMISSION, Appellee.
    No. 03-99-00094-CV.
    Court of Appeals of Texas, Austin.
    April 6, 2000.

      James W. Ingram, Paul Seals, Akin, Gump, Strauss, Hauer & Feld, L.L.P., Austin, for TSP.
    Amanda Atkinson Cagle, Asst. Atty. Gen., Natural Resources Division, Austin, for TNRCC.
    Before Chief Justice ABOUSSIE, Justices JONES and POWERS.

       Before John E. Powers, Senior Justice (retired), Third Court of Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1998).

   JOHN E. POWERS, Senior Justice (Retired).

TSP Development, Limited (“TSP”) appeals from a trial court judgment denying TSP relief on statutory causes of action brought against the Texas Natural Resource Conservation Commission (the “Commission”). We will reverse the judgment and remand the controversy to the Commission. See Tex.R.App. P. 43.2.

THE CONTROVERSY

The material facts are undisputed and the relevant issues on appeal raise pure questions of law only, as discussed hereafter.

The legislature has authorized the Commission to issue permits for the construction, operation, and maintenance of solid-waste disposal facilities. See Tex. Health & Safety Code Ann. § 361.061 (West Supp. 2000). TSP filed with the Commission an application for the requisite permit to construct and operate such a facility within Chambers County. In the course of the administrative proceeding that followed, the Commission suspended consideration of the application and returned it to TSP. For reasons that will appear below, TSP contends on appeal that the agency action was prejudicial and legally erroneous. A chronological summary will aid in understanding the controversy.

October 1996. TSP filed with the Commission TSP’s application for the permit. At the time, a subsisting statute provided as follows:

The approval, disapproval, or conditional approval of an application for a permit shall be considered by each regulatory agency solely on the basis of any orders, regulations, ordinances, rules, expiration dates, or other duly adopted requirements in effect at the time the original application for the permit is filed.

Tex. Gov’t Code Ann. § 481.143(a) (since repealed).

February 1997. The Commission determined that TSP’s application was “administratively complete” and began a “technical review” of the application. The quoted terms refer to stages of the Commission’s consideration of such applications under applicable statutory provisions and regulations.

June 1, 1997. The legislature repealed former section 481.143(a) of the Texas Government Code requiring that permit applications be considered solely on the basis of regulations, ordinances, “or other duly adopted requirements in effect at the time the original application for the permit is filed.” 0See supra note 2 and accompanying text).

February 17, 1998. Chambers County adopted an ordinance designating specified areas of the county in which solid waste may be disposed and prohibiting the disposal of such wastes in all other areas of the county. The facility site proposed by TSP in its application lies outside the areas where solid waste may be disposed and is, therefore, subject to the prohibition.

March 11,1998. In a letter sent to TSP, the Commission’s executive director informed TSP as follows:

The [Chambers County] Ordinance appears to be facially valid and prohibits TSP from disposing of solid waste on its proposed site....
Under § 305.50(2) of the Commission’s rules, an application for an industrial solid waste disposal permit must contain sufficient information to ascertain whether the facility will be constructed and operated in compliance with all pertinent state and local law relating to air, public health, and solid waste, 30 Texas Administrative Code § 305.50(2). At this point, it appears that TSP’s proposed facility could not be operated in compliance with the new Ordinance, which relates to solid waste.

In addition, the letter referred to section 305.50(3) of the Commission’s regulations, which required the executive director to ensure that any proposed facility would comply with the requirements of the Texas Solid Waste Disposal Act, including the requirement that a proposed site be “acceptable.” “It appears that TSP’s proposed site is not acceptable,” the Commissioner stated, “because local law [the Chambers County ordinance] prohibits the siting of the facility in the area proposed by TSP.”

The executive director concluded the letter by asking that TSP provide information demonstrating that the “proposed site will comply with the” Chambers County ordinance, stating that he intended to return the application to TSP if the information was not furnished; or, alternatively, “TSP may have the question of sufficiency of necessary technical data referred to the Commission in lieu of the Executive Director returning the application to TSP.”

April 1998. Chambers County amended the ordinance in particulars not material here.

May 1998. After TSP elected to have the Commission determine the question of “sufficiency of necessary technical data,” the Commission considered the question and voted to affirm the executive director’s decision.

June 1, 1998. The Commission issued its order affirming the executive director’s “decision to discontinue technical review of’ the TSP application and to return it to TSP.

June 5,1998. TSP sued in district court the present cause for relief from the Commission’s decision.

February 4, 1999. The district court signed a final judgment affirming the Commission’s order.

TSP perfected an appeal to this Court from the trial court judgment, assigning seven errors as grounds for reversing the judgment. We need consider only the first assignment of error, to-wit: “The Commission erred when it required TSP to demonstrate compliance with an ordinance adopted by Chambers County after TSP filed its permit application” with the Commission.

DISCUSSION AND HOLDINGS

TSP contends former section 481.148(a) of the Texas Health and Safety Code required the Commission to consider TSP’s application “solely on the basis of ... ordinances ... in effect at the time” TSP filed its application. Tex. Health & Safety Code § 481.143(a) (since repealed, see supra note 2). Consequently the Commission erred to TSP’s prejudice when the agency suspended consideration of TSP’s application solely on the basis of a Chambers County ordinance that was adopted more than a year after TSP filed its application.

Nevertheless, Chambers County adopted the ordinance after the legislature’s 1997 repeal of former section 481.143(a); and, of course, the Commission issued afterward its order dated June 1, 1998, of which TSP complains on appeal.

Unless the legislature qualified or limited the effect of its 1997 repeal of former section 481.143(a), the Commission was required to give the repeal immediate effect in the administrative proceeding then before the agency, and any right TSP possessed under former section 481.143(a) terminated contemporaneously with its repeal. See Knight v. International Harvester Credit Corp., 627 S.W.2d 382, 384 (Tex.1982); National Carloading Corp. v. Phoenix-El Paso Express, Inc., 142 Tex. 141, 176 S.W.2d 564, 568 (1943).

After the Commission issued its order of June 1, 1998, and after the district court affirmed the order in a final judgment signed February 4, 1999, the supreme court delivered its decision on motion for rehearing in Quick v. City of Austin, 7 5.W.3d 109 (Tex.1999). The court held that the 1997 repeal of former section 481.143(a) was, indeed, qualified and limited by the general savings provisions found in section 311.031(a) of the Government Code. See Tex. Gov’t Code Ann. § 311.031(a) (West 1998); Quick, 7 S.W.3d at 130.

Because Quick holds the 1997 repeal of former section 481.43(a) was qualified and limited by section 311.031(a), the repeal “does not affect” the pre-repeal operation of former section 481.143(a) or any action taken under it, any right or privilege previously acquired or accrued under that section, or any proceeding concerning any privilege or obligation, as if section 481.143(a) had never been repealed, all as stated in section 311.031(a). Consequently, we hold that TSP is entitled to have the Commission consider TSP’s application as if section 481.143(a) were in effect during the entire course of the permit-application proceeding in the Commission.

The Commission contends the Quick decision is limited to the situation where a regulatory agency (the City of Austin in Quick) seeks to apply its oim regulation to an application filed before adoption of the regulation: “Quick does not speak specifically to the issue in this case,” the Commission argues, “which concerns whether one governmental body has a duty to continue processing a permit application when another governmental body takes action that would make the issuance of the permit a useless act” wasteful of the Commission’s time and resources. See City of Plano v. Public Util. Comm’n, 963 S.W.2d 416, 422 (Tex.App. — Austin 1997, no writ) (utility commission’s issuance of certificate of convenience and necessity does not exempt regulated utility from compliance with city ordinances); 30 Tex. Admin. Code § 305.122(a) (1999) (“[t]he issuance of a permit does not authorize any ... infringement of state or local law or regulations.”); see also Tex. Health & Safety Code Ann. § 361.096(a) (West 1992) (“except as specifically provided by this chapter, this subchapter does not limit the powers and duties of a local government or other political subdivision of the state as conferred by this or other law.”).

We disagree entirely with the Commission’s interpretation of the Quick opinion. Nothing in the text of the opinion suggests a theory that former section 481.143(a) continues in force after its repeal only in selected cases — those in which a regulatory agency seeks to apply its own regulation to a previously filed application — but was repealed without limitation or qualification in all other cases. The tenor and effect of the Quick opinion will not sustain such a theory. Quick holds simply that all rights and privileges acquired under former section 481.143(a) before its repeal were not abolished by the repeal. One such acquired right is TSP’s statutory right to have its application considered by the Commission solely on the basis of regulations and ordinances in effect at the time TSP filed its application, as stated explicitly in former section 481.143(a).

We disagree as well with the other elements of the Commission’s argument. The applicability, not the validity, of the Chambers County ordinance is in question here. It is and remains a presumptively valid ordinance until proved otherwise; but it cannot apply to the Commission’s consideration of TSP’s application by reason of the right acquired by TSP before the repeal of former section 481.143(a). And the Chambers County ordinance was the sole basis upon which the Commission suspended consideration of TSP’s application in the agency’s order of June 1, 1998 — a legally erroneous basis under Quick.

We cannot now speculate as to the outcome of any future administrative or judicial proceeding in which Chambers County might seek to enforce its ordinance in the face of a Commission permit, should one ultimately be issued to TSP after proper consideration, authorizing a waste-disposal facility at the site requested by TSP. Consequently, we cannot assume that the Commission’s further processing of TSP’s application in the ordinary manner will be a wasteful and useless act.

The sole issue here is whether the Commission was justified in considering the Chambers County ordinance in its technical review of TSP’s application, as against the explicit prohibition of former section 481.143(a) and the right acquired by TSP before repeal of that statute. Quick construed former section 481.143(a) to forbid such consideration. By considering the ordinance as the sole basis of the agency’s order of June 1, 1998, the Commission abused its discretion.

We reverse the trial court judgment and remand the controversy to the Commission.

      . TSP sued the Commission for declaratory and ancillary relief under the Uniform Declaratory Judgments Act, Tex. Civ. Prac. & Rem. Code Ann. § 37.003 (West 1997) and as "[a] person affected by a ruling, order, decision, or other act of the commission” under the Tex. Health & Safety Code Ann. § 361.321(a) (West Supp.2000) and the Texas Water Code Ann. § 5.351(a) (West 1988).

      . See Act of May 30, 1987, 70th Leg., R.S., ch. 374, § 1, sec. 7.003(a), 1987 Tex. Gen. Laws 1823, 1839, amended by Act of May 24, 1995, 74th Leg., R.S., ch. 794, § 1, sec. 481.143, 1995 Tex. Gen. Laws 4147, 4147, repealed by Act of June 1, 1997, 75th Leg., R.S., ch. 1041, § 51(b), 1997 Tex. Gen. Laws 3943, 3966. In section 481.12, the statute defined the word "permit” in terms that include the permit requested by TSP and the term “regulatory agency” to include the Commission. The statute included certain exceptions to its scope; none of the exceptions are applicable in the present litigation. Section 481.142 was repealed in 1997 by the legislative enactment of that year.

      .The Commission is authorized to prescribe the form of permit applications, make reasonable requirements in that regard, and lay down "the procedures for processing” such applications. Tex. Health & Safety Code Ann. § 361.064 (West Supp.2000). An application is deemed "administratively complete” when submitted to the Commission together with any required reports and fees, at which point the application becomes ready for "technical review in accordance with” agency regulations. Id. § 361.068(a)(1), (2). After the Commission determines that "an application is administratively and technically complete,” the application becomes "the subject of a contested case under Section 2001.003, Government Code," and "the commission may not revoke the determination that an application is administratively or technically complete.” Id. § 361.068(b)(1).
      After an application is determined to be "administratively complete," the Commission's executive director must “commence a technical review as necessary and appropriate”; the technical review must be completed within a specified period of time that may be adjusted for specified reasons and eventualities. See 30 Tex. Admin. Code § 281.19(a) (1999). The executive director must notify the applicant promptly if "additional technical material” is necessary for a complete review and give the applicant time to furnish the material. If essential additional information is not timely furnished, the executive director may return the application to the applicant, such decisions to "be made on a case by case basis.” Id. § 281.19(b). The applicant may elect, however, to have "the question of sufficiency of necessary technical data referred to the commission for a decision instead of having the application returned.” Id.

      If the technical review proves satisfactory, the executive director prepares a draft permit and technical summary, with specified contents, to accompany the application. Id. § 281.21. These documents are referred then to the Commission for filing and setting. Id. § 281.22.

      . A "county may prohibit the disposal of solid waste in the county if the disposal of the solid waste is a threat to the public health, safety, and welfare.” Tex. Health & Safety Code Ann. § 364.012(a) (West Supp.2000). To do so, an ordinance must be adopted by the commissioners court of the county in the general form prescribed for municipal ordinances and specifically designate "the area of the county in which solid waste disposal is not prohibited.” Id. § 364.012(b) (emphasis added).

      . Section 305.50(2) of the Commission's regulations governs the contents of an application for an "Industrial Solid Waste Permit,” and requires that “[t]he information provided shall be sufficiently detailed and complete to allow the executive director .to ascertain whether the facility will be constructed and operated in compliance with all pertinent state and local air, water, public health, and solid waste statutes.” 30 Tex. Admin. Code § 305.50(2) (1999). Subsection (3) requires that an applicant submit any other information the executive director deems necessary to determine whether a proposed facility will comply with the Texas Solid Waste Disposal Act. See id. § 305.50(3).
      section 351.069 of the Texas Solid Waste Disposal Act, given by the executive director as an additional basis for his action, provides as follows: “The commission in its discretion may, in processing a permit application, make a separate determination on the question of land use compatibility, and, if the site is acceptable, may at another time consider other technical matters concerning the application." Tex. Health & Safety Code Ann. § 361.069 (West Supp.2000) (emphasis added).

      . With exceptions not material here, section 311.031(a) of the Texas Government Code provides that "the reenactment, revision, amendment, or repeal of a statute does not affect:
      (1) the prior operation of the statute or any prior action taken under it;
      (2) any validation, cure, right, privilege, obligation, or liability previously acquired, accrued, accorded, or incurred under it;

      (4) any investigation, proceeding, or remedy concerning any privilege, obligation, liability, penalty, forfeiture, or punishment; and the investigation, proceeding, or remedy may be instituted, continued, or enforced ... as if the statute had not been repealed or amended.
      Tex. Gov’t Code Ann. § 311.031(a) (West 1998).

      . We observe, however, that the powers and duties of local governments and their relationship to the Commission's authority are governed particularly, in the management of solid waste, by sections 361.151-167 of the Texas Health and Safety Code. See Texas Health & Safety Code Ann. §§ 361.151-.167 (West 1992 & Supp.2000). A county’s exercise of its powers in the field does not preclude the Commission’s exercise of its powers, including the Commission's powers pertaining to the issuance of "a permit to construct, operate, and maintain a facility to process, store, or dispose of solid waste" (§ 361.151(b)), and the Commission may, “by specific action or directive ... supersede any authority granted to or exercised by a county under” Chapter 361 of the Code (§ 361.151(c)). These would appear to be an exception "specifically provided by” Chapter 361. That matter is not now before us, however, as explained in the text above.

      . See supra note 7.


author: PER CURIAM.

text:
    In re L.C.D., a minor.
    No. 09-00-118 CV.
    Court of Appeals of Texas, Beaumont.
    Submitted March 30, 2000.
    Decided April 6, 2000.

      J. Martin Green, J. Stephen Green, Green & Green, P.C., Conroe, for relator.
    Darlene Payne Smith, Susan W. McCar-they, Crain, Catón & James, Houston, Margaret L. Alexander, Conroe, Judith W. Lenox, Dinkins, Kelly, Lenox & Lamb, L.L.P., Houston, for real parties in interest.
    Craig Smyser, Smyser Kaplan & Vesel-ka, L.L.P., Houston, for amicus curiae.
    Before WALKER, C.J., BURGESS and STOVER, JJ.
   OPINION

PER CURIAM.

J. Stephen Green, the attorney ad litem for L.C.D., an incapacitated minor, petitioned this Court for a writ of mandamus to compel the Honorable Dennis Watson, judge of the County Court at Law No. 1, Montgomery County, Texas, to withdraw his order of February 26, 2000, in trial court cause No. 96-15,824-P, ordering the guardian of the person of L.C.D. to execute a Directive to Physicians. See Tex. Health & Safety Code Aun. § 166.038 (Vernon Supp.2000).

Seventeen-year-old L.C.D. was born with severe disabilities and cannot speak, read, or write. He is totally dependent upon his guardian for even his most basic needs. L.C.D. recently suffered abdominal sepsis following a series of surgeries removing substantial portions of L.C.D.’s small intestine. His attending physician certified in writing that L.C.D.’s prognosis is extremely poor. The parties agree that L.C.D. is a “qualified person” under Chapter 166 of the Health and Safety Code because his condition is terminal or irreversible. See Tex. Health & Safety Code Ann. § 166.031 (Vernon Supp.2000).

Bertha G. Levy, a non-relative, was appointed guardian of the person of L.C.D. in August 1996. Levy’s periodic reports on L.C.D.’s condition have been approved by the court, as has a motion to relocate L.C.D.’s residence. On January 19, 2000, Levy filed a “Motion for Instructions” that sought the following relief:

Based on the condition of the Ward and the recommendation of his physician, Movant seeks an instruction from this Court as to whether it would be in the best interest of the Ward to consent to a “directive” to “withhold or withdraw life-sustaining treatment” for the Ward, pursuant to Sections 161.031, 161.033, and 161.035 of the Texas Health and Safety Code, and if so, to grant Movant authority to execute such directive.

L.C.D.’s mother and father both executed affidavits expressing the desire that a directive be executed. The trial court conducted a hearing, in which L.C.D.’s physician explained that the future for L.C.D. involved “a lot of pain and suffering for a very marginal end.”

Mandamus is not available unless there is no adequate remedy at law by appeal. A final order of a court that exercises probate jurisdiction is appealable to the Court of Appeals. Tex. PROb.Code Ann. § 606(f) (Vernon Supp.2000). In this instance however, no justiciable controversy has been presented to the trial court; therefore, there is nothing to appeal.

Before a court may address the merits of any case, the court must have jurisdiction over the party or the property subject to the suit, jurisdiction over the subject matter, jurisdiction to enter the particular judgment, and capacity to act as a court. The State Bar of Texas v. Gomez, 891 S.W.2d 243, 245 (Tex.1994). Subject matter jurisdiction requires that the party bringing the suit have standing, that there be a live controversy between the parties, and that the case be justiciable. Texas Ass’n of Business v. Texas Air Control Bd., 852 S.W.2d 440, 443-46 (Tex.1993).

We have carefully reviewed the Motion for Instructions and the reporter’s record of the hearing on that motion. No controversy was presented to the court through the motion. The guardian did not seek permission to execute a directive to physicians, nor did she seek ratification of her decision to either execute a directive or not execute a directive, nor has any interested party claimed that the guardian has acted, or failed to act, in a manner inconsistent with the best interests of the ward of the court. The guardian merely sought the advice of the court regarding whether a directive was appropriate.

The Probate Code gives the county court at law jurisdiction over guardianship matters. Tex. PROb.Code Ann. § 606(c) (Vernon Supp.2000). L.C.D. is a ward of County Court at Law No. 1 of Montgomery County, Texas. The judge of the County Court at Law No. 1 of Montgomery County has the duty to use reasonable diligence to determine whether the guardian is performing her duties, and the proper execution of that duty is reflected in the annual reports filed with the court in this guardianship. See Tex. PROb.Code Ann. § 671 (Vernon Supp.2000). As L.C.D.’s duly appointed guardian, Bertha Levy already has the power to consent to medical, psychiatric, and surgical treatment of L.C.D. without court intervention. Tex. PROb.Code Ann. § 767(4) (Vernon Supp. 2000). The Health and Safety Code specifically authorizes the guardian to execute the directive. Tex. Health & Safety Code Ann. § 166.035 (Vernon Supp.2000).

Decisions regarding medical treatment are the guardian’s to make, not the trial court’s. The trial court exceeded its authority by ordering the guardian to execute a directive to physicians. ■ Furthermore, by ordering that the directive be irrevocable, the trial court exceeded the statutory authority provided even to the guardian. Tex. Health & Safety Code Ann. § 166.042 (Vernon Supp.2000).

The relator’s petition for writ of mandamus is conditionally granted. We direct Judge Watson to vacate his February 25, 2000, order commanding the guardian of L.C.D. to execute an irrevocable directive to physicians. The writ shall issue, only if he fails to comply with our order.

WRIT CONDITIONALLY GRANTED.