author: Justice ROSS.

text:
    Joan Carol Ellis ROBERTS, Appellant, v. TITUS COUNTY MEMORIAL HOSPITAL, Appellee.
    No. 06-04-00056-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted Feb. 16, 2005.
    Decided March 15, 2005.

      Joan Carol Ellis Roberts, Mount Pleasant, pro se.
    Jeffery C. Lewis, Atchley, Russell, Wal-drop & Hlavinka, LLP, Texarkana, for appellee.
    Before ROSS, CARTER, and CORNELIUS, JJ.

       William J. Cornelius, C J., Retired, Sitting by Assignment.

   OPINION

Opinion by

Justice ROSS.

Joan Carol Ellis Roberts sued Titus County Memorial Hospital, claiming she was denied a promotion and ultimately lost her job because she blew the whistle on wrongdoing by Hospital officials. The Hospital obtained a summary judgment against her claims. Roberts represented herself both at trial and on appeal.

Procedural Issues

Roberts advances a number of procedural issues in her appeal. She contends the Hospital was required to attack the sufficiency of her pleadings to allege suit within limitations by using special exceptions rather than by pursuing a summary judgment. The cases have almost universally accepted the concept that a party may use several different procedures to reach the same result. See Drilltec Techs., Inc. v. Remp, 64 S.W.3d 212, 214 (Tex.App.-Houston [14th Dist.] 2001, no pet.) (holding subject matter jurisdiction can be attacked by plea to the jurisdiction, motion for summary judgment, and special exception, among other means). Indeed, there is one case assuming that, because limitations under the Texas Whistleblower Act is often raised by summary judgment, then it must be raised by summary judgment. Univ. of Houston v. Elthon, 9 S.W.3d 351, 356-57 (Tex.App.-Houston [14th Dist.] 1999, pet. dism’d w.o.j.). Most courts have freely acknowledged that there is some confusion and considerable leeway in bringing this type of contention, and that no single type of pleading is required to raise the issue. See Tex. S. Univ. v. Carter, 84 S.W.3d 787, 790 (Tex.App.-Houston [1st Dist.] 2002, no pet.).

The issue was raised by summary judgment in this case. That has repeatedly been held at least an acceptable method of raising limitations, and occasionally as the only proper method. Error has not been shown.

Roberts also contends the court, in rendering its judgment, relied on information that was not a part of the summary judgment evidence. Her position appears to be that depositions and other discovery documents attached to the motion—but not referenced or incorporated in the motion—are not proper summary judgment evidence.

Rule 166a of the Texas Rules of Civil Procedure addresses summary judgment and the evidence to be considered by the court. See Tex.R. Civ. P. 166a. The Texas Supreme Court has interpreted this rule to mean that the summary judgment record consists of “evidence attached either to the motion or to a response.” Wilson v. Burford, 904 S.W.2d 628, 629 (Tex.1995); accord Guinn v. Bosque County, 58 S.W.3d 194, 199 (Tex.App.-Waco 2001, writ denied); McIntosh v. NationsBank, 963 S.W.2d 545, 547 (Tex.App.-Houston [14th Dist.] 1997, writ denied). Thus, a trial court must grant a motion for summary judgment if the evidence attached either to the motion or to a response demonstrates the absence of any genuine issue of material fact and shows the movant’s entitlement to judgment as a matter of law on the grounds set forth in the motion. See Wilson, 904 S.W.2d at 629.

All of the evidence of which Roberts complains was attached to the summary judgment motion. It was thus properly before the court, and this contention is without merit.

Roberts also contends the trial court erred by modifying the judgment without providing her with notice of the proposed changes. The trial court signed its first summary judgment April 6, 2004. It signed a second judgment April 20, 2004. The changes were the addition of language upholding “all of Defendant’s objections” and assessing costs against Roberts. Roberts admits in her brief, and confirmed at oral argument, that the Hospital had no outstanding objections at the time the trial court signed its final summary judgment. Hence, the additional language upholding objections was mere surplusage. As for the additional language assessing costs against Roberts, the Hospital, as the successful party, was entitled to recovery of its costs. See Tex.R. Civ. P. 131. Because a trial court has plenary authority to modify, correct, or reform a judgment for thirty days after the judgment is signed (Tex.R. Gw. P. 329b(d)), it was appropriate for the trial court to include such language in its final judgment.

Sufficiency of Hospital’s Motion

Although not a specific complaint in Roberts’ appeal, we note that the Hospital’s motion for summary judgment is not a model for clarity. It is three pages long and is supported by a number of exhibits and a lengthy brief. The motion seeks summary judgment based on Roberts’ failure to prove all necessary elements of her claims. It states that all but count one of her claims are barred by limitations under the Whistleblower Act or that she did not file the necessary grievances required by the Act. It also states Roberts has not demonstrated that: she acted in good faith in making a report, the report involved a violation of law by an agency or employee, the report was made to an appropriate law enforcement authority, or she suffered discriminatory or retaliatory conduct by the employer as a result of the report. The motion concludes, “Therefore, pursuant to T.R.C.P. 166(a) [sic], there are no genuine issues as to any material fact as to the claim asserted by the Plaintiff.”

The motion provides little guidance either for the trial court or for this Court in determining which arguments apply to which variation of summary judgment. Although it states there are no fact issues (one type of summary judgment), the argument made is more like a no-evidence motion under Tex.R. Crv. P. 166a(i). The attached trial brief complains that there is no evidence, but it also takes the position that, based on the pleadings, there are no fact issues on different aspects of the allegations. The arguments advanced in that brief make it further appear the motion was intended as a federal 12(b)(6) motion seeking dismissal for failure to state a cause of action, which is not a viable claim for relief in Texas state courts.

Nevertheless, the Texas Supreme Court stated in Binur v. Jacobo, 135 S.W.3d 646, 651 (Tex.2004), that, although separate arguments and headings in summary judgment motions would be extremely useful to the court and bar, such are not absolutely required by the rule. If a motion clearly sets forth its grounds and otherwise meets Rule 166a’s requirements, it is sufficient. Id. The grounds for the Hospital’s motion could have been more clearly set forth, but we cannot say the motion fails to meet the rule’s requirements. Therefore, based on the Texas Supreme Court’s articulations in Binwr and an indulgent interpretation of the Hospital’s motion, we deem the motion sufficient.

Merits of the Appeal

Roberts contends in a number of different issues that summary judgment was erroneously granted because the Hospital’s summary judgment evidence did not conclusively prove she failed to meet any element of the Whistleblower Act or that limitations had ran.

No Evidence Standards for Review

A no-evidence summary judgment is essentially a pretrial directed verdict. We therefore apply the same legal sufficiency standard in reviewing a no-evidence summary judgment as we apply in reviewing a directed verdict. Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex.2002). We must determine whether the nonmovant produced any evidence of probative force to raise a fact issue on the material questions presented. Id.; Woodruff v. Wright, 51 S.W.3d 727, 734 (Tex.App.-Texarkana 2001, pet. denied). We consider all the evidence in the light most favorable to the party against whom the no-evidence summary judgment was rendered, disregarding all contrary evidence and inferences. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997). A no-evidence summary judgment is improperly granted if the non-movant presents more than a scintilla of probative evidence to raise a genuine issue of material fact. Jackson v. Fiesta Mart, Inc., 979 S.W.2d 68, 70-71 (Tex.App.-Austin 1998, no pet.). More than a scintilla of evidence exists when the evidence “rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.” Havner, 953 S.W.2d at 711.

Standard Summary Judgment Review

When reviewing a summary judgment, we take as true all evidence favorable to the nonmovant and indulge every reasonable inference and resolve any doubts in the nonmovant’s favor. Limestone Prods. Distrib., Inc. v. McNamara, 71 S.W.3d 308, 311 (Tex.2002); Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex.1999). On appeal, the movant must show that there is no material fact issue and that the movant is entitled to judgment as a matter of law. Limestone Prods. Distrib., Inc., 71 S.W.3d at 311; Rhone-Poulenc, Inc., 997 S.W.2d at 223.

General Background

The lawsuit is based on the application of the Whistleblower Act, which is designed to enhance openness in government and compel the government’s compliance with law by protecting those who inform authorities of wrongdoing. Castaneda v. Tex. Dep’t of Agric., 831 S.W.2d 501, 503 (Tex.App.-Corpus Christi 1992, writ denied). The Act evidences two legislative purposes: (1) to protect public employees from retaliation by their employer when, in good faith, employees report a violation of the law, and (2) in consequence, to secure lawful conduct on the part of those who direct and conduct the affairs of public bodies. Travis County v. Colunga, 753 S.W.2d 716, 718-19 (Tex.App.-Austin 1988, writ denied). Because the Act is remedial in nature, it should be liberally construed to effect its purpose. Castaneda, 831 S.W.2d at 503; Davis v. Ector County, 40 F.3d 777, 785 (5th Cir.1994).

Roberts’ Allegations at Trial

In her petition, Roberts alleged that, because she warned her superior and members of the Hospital’s governing board that the planned purchase of a CT scanner was not being made by competitive bid as required by law, her superiors retaliated against her by fading to assign her to a newly created “lead tech” position, and ultimately terminated her employment. She also complains that the actions by the Hospital’s officials were based on their disapproval of her efforts to professionalize her department. She contends this is shown by their written reactions to her efforts, dating back to 1991, to maintain or create a professional, safe, and fairly administered work environment. Analysis

The Hospital does not contest the description of the Hospital as a local governmental entity, and admits Roberts was a public employee. That element of the Whistleblower Act is therefore not an issue. Although the Hospital does contend Roberts’ actions were not taken in good faith, the evidence on that is in dispute; thus, a fact issue would exist. Similarly, although the Hospital argues there was no evidence of an adverse personnel action, the summary judgment proof as described above clearly shows a dispute in the evidence on that matter as well.

The controlling issues raised by the Hospital are that Roberts provided nothing to show that: 1) any specific applicable law was violated — thus no evidence of any illegal conduct, and alternatively, if a law was so violated, 2) Roberts never reported such violation to “appropriate law enforcement authority.” In the absence of either element, a plaintiff suing under the Whis-tleblower Act cannot prevail.

In this case, the dispositive question is whether, assuming a law was violated, Roberts reported that violation to an appropriate law enforcement authority so that the Whistleblower Act protections would apply to her situation. The Whistle-blower Act provides that an appropriate law enforcement authority is a governmental entity authorized to “regulate under or enforce the law alleged to be violated in the report.” Tex. Gov’t Code Ann. § 554.002(b)(1) (Vernon 2004). Aterna-tively, an appropriate law enforcement authority is a governmental entity authorized to “investigate or prosecute a violation of criminal law.” Tex. Gov’t Code Ann. § 554.002(b)(2) (Vernon 2004). The language controlling our review was set out recently.

Under the statutory definition, it is clearly not enough that a government entity has general authority to regulate, enforce, investigate, or prosecute. Rather, to determine if a governmental entity qualifies as an “appropriate law enforcement authority,” we are bound to construe that term as the statute defines it. See Tex. Gov’t Code § 311.011(b); Faircloth, 898 S.W.2d at 274; Tijerina, 846 S.W.2d at 827. And the statute defines that term as a governmental entity authorized to regulate under or enforce “the law alleged to be violated in the report,” or to investigate or prosecute “a violation of criminal law.” See Tex. Gov’t Code § 554.002(b). In other words, the particular law the public employee reported violated is critical to the determination.

Tex. Dep’t of Transp. v. Needham, 82 S.W.3d 314, 319-20 (Tex.2002).

The courts have held that a report is made to an appropriate law enforcement authority if the authority is a part of a state or local governmental entity or of the federal government that the employee in good faith believes is authorized to:

• regulate under or enforce the law alleged to be violated in the report
• investigate or prosecute a violation of criminal law.

Id. at 319; 3 J. Hadley Edgae, Jr. & James B. Sales, Texas Toets and Remedies § 45.06[13](c) (2003).

In this case, taking all allegations in the light most favorable to the nonmovant, Roberts simply did not report the alleged violation to an appropriate law enforcement authority. She reported it to her superior, and ultimately to members of the Hospital board. Athough it is reasonable to conclude that, like all individuals, these hospital officials have a duty to obey the law, as set out in Needham, that is not the same as being a governmental entity authorized to regulate under or enforce “the law alleged to be violated in the report,” or to investigate or prosecute “a violation of criminal law.” See Needham, 82 S.W.3d at 319.

Roberts notes that in her affidavit she states she called the Texas Attorney General’s office, and it informed her that she first needed to go through the grievance process. Roberts failed to adduce summary judgment evidence that this contact with the Attorney General’s office satisfied the underlying requirement that she make a complaint to a law enforcement authority, and as a result of that action alone, the Hospital acted unlawfully by terminating or otherwise affecting her employment. Roberts further failed to provide summary judgment evidence that the Attorney General’s office is authorized to regulate under or enforce “the law alleged to be violated in the report.” Id.

Therefore, under the statute, Roberts has neither pled nor provided summary judgment proof of facts that would support this required element of the action, and a no-evidence summary judgment was properly rendered on this basis.

We affirm the judgment.

      . Tex. Gov’t Code Ann. § 554.001, et seq. (Vernon 2004).

      . See Fed.R.Civ.P. 12(b)(6).

      . The Hospital suggests that, because Roberts could not specify the exact statute that was violated by a failure to obtain competitive bids, she did not act in good faith. There is an alternative argument that, if no law existed to be broken, then good faith is immaterial, and the specific requirements of the Act are not met. There is some dispute as to whether such a law exists in this case. The Hospital has suggested in a post-argument letter brief that, because the Hospital district was created before the codification of the current Health and Safefy Code, and thus created by Legislative act rather than by the strictures of the current Code provisions, the competitive bidding requirements set out in the Code do not apply to this entity. That argument is not entirely persuasive, because the entirety of the former statutes that governed the operation of all hospital districts have been repealed and recodified in the Health and Safety Code. See Tex.Rev.Civ. Stat. Ann. art. 4478, et seq., repealed by Act of May 18, 1989, 71st Leg., R.S., ch. 678, 1989 Tex. Gen. Laws 2230 (effective Sept. 1, 1989) (now recodified as the Texas Health and Safety Code). That matter, however, was not adequately raised or briefed by either party to justify full analysis in this opinion, and because of our disposition of this appeal, we will not conclusively address it here. Given the complexity of the law, and noting the Hospital’s own careful avoidance of stating that “no law was violated,” we will not conclude Roberts was barred from taking the good-faith position that the Hospital was engaged in activities outside the bounds of the law.

      . We also recognize that yet another oddity exists here: the Hospital did not ultimately carry through with its purchase outside the bounds of competitive bidding, but withdrew the purchase order. It appears the Hospital did then submit the purchase to competitive bidding and purchased the scanner recommended by Roberts. One legitimate question is thus whether Roberts actually reported a violation of the law — or whether, by making the report, Roberts saved the Hospital from possible liability by pointing out its impending violation' — but by doing so before the violation occurred, she placed herself outside the protection of the Whistleblower Act.

      . The record indicates Roberts called the Attorney General's office twice. She says she was told in 1991 she would have to lose her job before the Whistleblower Act might apply, and then again at an unspecified date after the purchasing incident when she was told correctly that she had to pursue a grievance process under the Act.


source: Caselaw Access Project

author: Justice CARTER.

license: Public Domain

text:
    The CITY OF JEFFERSON, Texas, Appellant, v. Leronda VALLERY, Appellee.
    No. 06-04-00106-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted March 15, 2005.
    Decided March 16, 2005.

      Gary Shaver, Boon, Shaver, Echols & Coleman, PLLC, Longview, for Appellant.
    Bruce A. Craig, The Carlile Law Firm, LLP, Marshall, for Appellee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Justice CARTER.

We withdraw our opinion of February 11, 2005, and substitute the following in its place. Leronda Vallery fell as she was walking on a small ramp leading into the City of Jefferson’s police department. She had traversed the ramp about once a month for as long as four years when she went to visit her mother, an employee of the police department. Vallery suffered injuries and brought suit against the City. Vallery’s suit was in the nature of a premises liability claim.

The City brought a plea to the trial court’s jurisdiction asserting that, under the rules of governmental immunity, it could not be held liable for Vallery’s injuries. See Tex. Civ. Prac. & Rem.Code Ann. §§ 101.021-.029 (Vernon 1997 & Supp. 2004-2005). In the same motion, the City moved for summary judgment, but subsequently abandoned that motion and asked the trial court to proceed solely on the plea to the jurisdiction. The trial court denied the City’s plea to the jurisdiction. The City now appeals and argues there was no subject-matter jurisdiction.

Vallery’s Claim and the Standard of Review

In reviewing a trial court’s ruling on a plea to the jurisdiction, we construe the pleadings in favor of the nonmovant and look to the nonmovant’s intent. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993). We are not required to look solely to the pleadings when deciding a plea to the jurisdiction; we may consider evidence relevant to jurisdiction when it is necessary to resolve the jurisdictional issue raised. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex.2000). Whether a trial court has subject-matter jurisdiction is a question of law subject to de novo review. Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.2002); Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998). Whether a pleader has alleged facts which affirmatively demonstrate a trial court’s subject-matter jurisdiction is a question of law reviewed de novo. Likewise, whether undisputed evidence of jurisdictional facts establishes a trial court’s jurisdiction is also a question of law. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex.2004). Therefore, we will review the trial court’s order de novo.

In Vallery’s second amended petition, she alleged the City’s immunity was waived and the City was liable under Tex. Civ. PRAC. & Rem.Code Ann. §§ 101.021(2) and 101.0215(a)(3), (16), (25), and (28).

Vallery alleges that her action is brought pursuant to a waiver of governmental immunity. The Texas Civil Practice and Remedies Code provides in pertinent part that a governmental entity is liable for “personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.” Tex. Civ. Prac. & Rem.Code Ann. § 101.021(2). Vallery specifically alleged that

she was injured by a condition of real property which would render a private citizen liable to her for her injuries were they to have occurred on private property, and as a consequence thereof, the City of Jefferson, Texas has waived its sovereign immunity and consented to suit under the Texas Tort Claims Act....

A court deciding a plea to the jurisdiction is not meant to decide the merits of the case in resolving the jurisdictional question, but is required to make inquiry into the substance of the claims presented to determine subject-matter jurisdiction. Blue, 34 S.W.3d at 554-55. Whether a determination of subject-matter jurisdiction can be made at a preliminary hearing or should await a fuller development of the merits of the case is left to the trial court’s discretion. Id. at 554; see also Miranda, 133 S.W.3d at 227 (citing Blue, 34 S.W.3d at 554) (“When the consideration of a trial court’s subject matter jurisdiction requires the examination of evidence, the trial court exercises its discretion in deciding whether the jurisdictional determination should be made at a preliminary hearing or await a fuller development of the case, mindful that this determination must be made as soon as practicable.”).

Analysis

The petition alleges the City owed Vallery “the duty owed to a licensee on private property, which is the duty not to injure the licensee through willful, wanton, or grossly negligent conduct.” The pleadings include allegations that the City designed and constructed a sidewalk handicap access in an unsafe manner by reason of an excessive slope, violating the Americans with Disabilities Act, willfully approved such construction in violation of its own budding code, willfully failed to maintain the ramp by installation of hand rails, hand holds, and edge marking, all of which were known by agents of the City. The City may be held liable only if it has violated a duty owed to a licensee. See Tex. Civ. Prac. & Rem.Code Ann. art. 101.022. The allegations in Vallery’s pleadings assert that the City was grossly negligent. This pleading and proof are based on the general standard involved for a licensee to recover from a licensor. See State v. Tennison, 509 S.W.2d 560 (Tex.1974). If a plaintiff is on the premises merely as a licensee, the only duty the landowner owes is to refrain from injuring him or her willfully, wantonly, or through the use of gross negligence. An exception to the general rule is that, when the li-censor has knowledge of a dangerous condition, and the licensee does not, a duty is owed on the part of the licensor to either warn the licensee or make the condition reasonably safe. Id. at 562. Vallery does not plead or rely on the exception to the general rule to claim the City owes her the duty of ordinary care. Therefore, the duty the City owes to Vallery is the same duty as a landowner owes to a trespasser — not to injure her willfully, wantonly, or through the use of gross negligence.

On original submission, the City argued the trial court had no subject-matter jurisdiction over this claim because Vallery had not pled that a contemporaneous negligent activity caused the injury. We agree that no such activity was pled. On rehearing, the City, for the first time, supports this contention with several courts of appeals’ opinions. See City of Fort Worth v. Crockett, 142 S.W.3d 550 (Tex.App.-Fort Worth 2004, pet. denied); City of Lubbock v. Rule, 68 S.W.3d 853 (Tex.App.-Amarillo 2002, no pet.); Flye v. City of Waco, 50 S.W.3d 645 (Tex.App.Waco 2001, no pet.). The City argues these eases hold that grossly negligent conduct may not be found against a landowner based solely on a premises condition. To prove gross negligence, the trespasser must prove that he or she was injured due to a dangerous activity conducted on the premises by the landowner.

In Flye, a child was hit by a swing at a city park. The allegations were that the swing did not have a protective bumper, the city failed to provide warnings, failed to maintain and repair the equipment, and the city was guilty of negligence and gross negligence. As this was a case involving the recreational use statute, the city only owed the -duty as to a trespasser. The Waco court held that the city owed the child no duty to warn of a dangerous condition or to make the premises safe since it only owed the duty as to a trespasser. Flye, 50 S.W.3d at 650. The court also found that no contemporaneous negligent activity was pled; therefore, summary judgment was proper.

In Rule, a small child suffered burns when she attempted to climb on a slide in a city park. It was alleged that the protective coating on the slide had deteriorated, creating an unreasonably dangerous condition of which the city had actual knowledge. Rule, 68 S.W.3d at 858. Once again, the court found the recreational statute required the city only to refrain from injuring the visitor through willful, wanton, or grossly negligent conduct. Id. at 859 (citing Tex. Utils. Elec. Co. v. Timmons, 947 S.W.2d 191, 193 (Tex.1997)). The Amarillo court attached great significance to the word “conduct” and emphasized that a duty does not encompass injury arising from the condition of realty, but only injury arising from the activity or conduct of the occupier. Id. (citing Flye, 50 S.W.3d at 648). Since the pleadings sought redress for injuries caused by the condition of the slide and not any conduct of a contemporaneous negligent activity, the plaintiff was owed no duty with regard to the condition of the playground.

In Crockett, another recreational use case, the plaintiff was injured on a bicycle path of a city park. The plaintiff alleged he encountered a five-inch ledge under the city’s construction without warnings, barriers, flags, etc. The court found that the city had no duty to warn the plaintiff of a dangerous condition on the premises. Crockett, 142 S.W.3d at 553.

In response, Vallery cites the opinion of the Austin Court of Appeals in State ex rel. Tex. Dep’t of Parks & Wildlife v. Shumake, 131 S.W.3d 66 (Tex.App.-Austin 2003, pet. granted). In Shumake, a child drowned in a manmade culvert while swimming in the Blanco River. The Austin court agreed that the Parks Department only owed the duty owed to a trespasser, but disagreed with the analysis in Rule. The Austin court reviewed the Restatement (Seoond) of ToRts §§ 333, 335, 337 (1965) concerning the duty owed to trespassers and found that the Restatement provisions characterized differently the duties owed when those duties involved “naked trespassers” and “known trespassers.” To the naked trespasser, the landowner, who knows nothing of the trespasser’s entry, owes no duty to keep the premises safe for strangers who come uninvited onto the owner’s property. Shumake, 131 S.W.3d at 77. However, Section 385 of the Second Restatement of Torts recognizes a different standard when the landowner knows of the trespasser’s likely presence. In that event, the landowner is held to a slightly higher standard of care. The court then reviewed the definition of “gross negligence” provided by the Texas Supreme Court and found that the principles underlying the Texas Supreme Court’s definition of gross negligence echo the Restatement’s definition of trespasser duties owed to “known” or “constant” trespassers. Id. at 78. The court disagreed with the Amarillo court’s holding that gross negligence cannot be found due solely to a premises condition and concluded that Rule’s distinction between “conduct” and “condition” was unwarranted. The Austin court concluded that a failure to remove or warn of an artificially created condition of which the landowner is actually aware that is seriously dangerous and located in the vicinity of known trespassers may constitute gross negligence. Id. at 80. On rehearing, the Austin court opined that in Miranda, the Texas Supreme Court had essentially overruled the holding in Rule that gross negligence could only occur by a landowner’s conduct that “contemporaneously” caused the injury. Shumake, 131 S.W.3d at 83 (supplemented op.).

Although we believe the Shumake opinion is persuasive, the application of its reasoning does not benefit Vallery due to a decided difference in the factual allegations and proof.

One key to the Restatement’s imposition of a landowner’s duty to a “known” or “constant” trespasser is that the artificial condition placed on the land “is of such a nature that he has reason to believe that such trespassers will not discover it.” Restatement (Second) of ToRts § 335(a)(iii). In this case, it is admitted and undisputed that Vallery visited her mother, who worked at the City of Jefferson police department building, approximately once a month for four years. She had seen this particular ramp during her visits, and no obstruction impeded her vision of the ramp. She knew there was a “drop-off’ on the side of the ramp and agreed that the condition of the ramp was open and obvious. Even if it could be argued that the City created an artificial condition (ramp) that was likely to lead to serious bodily harm, the undisputed facts in this record demonstrate that the condition of the ramp was not of such a nature that the landowner had reason to believe users would not discover it. Clearly, this is different from the facts in Shumake, where a child who was “tubing” and swimming with her family in a river at a state park was sucked underwater by a powerful undertow and trapped in a manmade culvert that diverted the river water under a road.

Without this element (that the landowner had reason to believe that trespassers would not discover the dangerous artificially created condition), the conduct of the City does not give rise to a duty to Vallery and cannot serve as the gross negligence that she must allege and prove. Unlike the plaintiffs in Shumake, the undisputed facts here negate a finding of gross negligence. The alleged defective condition here is a readily observable ramp used daily by persons entering the City of Jefferson police department building. Val-lery had actual knowledge of the ramp and its condition. Consequently, Vallery has not presented a cause of action based on a condition or use of the premises for which Texas law would hold a private person liable. Therefore, the City has not waived its sovereign immunity claims and the trial court erred by denying the City’s plea to the jurisdiction. The motion for rehearing is granted. We sustain the City’s point, vacate the trial court’s order, and dismiss the case.

      . Texas courts often use the terms "sovereign immunity” and "governmental immunity” interchangeably. As the Texas Supreme Court has noted, "sovereign immunity” refers to the State's immunity from suit and liability, while "governmental immunity” protects political subdivisions of the State, which include counties, cities, and school districts. See Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n. 3 (Tex.2003). Although the City couches its argument in terms of "sovereign immunity,” we will refer to the City’s claimed immunity as governmental.

      . Vallery eventually filed a third amended petition and attached to it a reporter’s record of the hearing held October 25, 2004, in this matter. The City's notice of appeal was filed September 28, 2004, and the trial court’s ruling, from which the City appeals, was entered September 8, 2004. Our review is limited to the appellate record. See Pinnacle Data Servs., Inc. v. Gillen, 104 S.W.3d 188, 193 n. 3 (Tex.App.-Texarkana 2003, no pet.).

      . Texas Civil Practice and Remedies Code Section 101.0215(a)(3), (16),- (25), and (28) holds municipalities liable for damages arising from governmental functions involving street construction and design; civic centers’, convention centers’, or coliseums’ parking facilities; and building codes and inspections, respectively.

      .Section 101.021 reads, in full;
      A governmental unit in the state is liable for:
      (1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:
      (A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and
      (B) the employee would be personally liable to the claimant according to Texas law; and
      (2) personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.

      . See also Friends of Canyon Lake, Inc. v. Guadalupe-Blanco River Auth., 96 S.W.3d 519, 525 (Tex.App.-Austin 2002, pet. denied) (trial court has discretion, at a preliminary hearing at which it considered evidence furnished by parties, to decide that it lacked subject-matter jurisdiction because plaintiff had not exhausted its administrative remedies).

      . The Austin court specifically did not address the other sections of the Restatement dealing with known trespassers because they were not relevant. See Shumake, 131 S.W.3d at 80 n. 8. Presumably one of the "other sections” not addressed in Shumake is that pertaining to the owner's reason to believe that the trespasser would not discover the dangerous artificial condition. See Restatement (Second) of Torts §§ 335(a)(iii), 337(b). That section is highly relevant in this case.


author: PER CURIAM. TOM GRAY, Chief Justice,

text:
    Willis Jackson PERRYMAN, Appellant, v. The STATE of Texas, Appellee.
    No. 10-02-00279-CR.
    Court of Appeals of Texas, Waco.
    March 16, 2005.
    Edward J. Tracy, Newton, for appellant.
    A.W. Davis Jr., Newton County Dist. Atty., Newton, for appellee.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   ABATEMENT ORDER

PER CURIAM.

This is the third time this appeal has been abated. The first abatement was for the appointment of appellate counsel. Counsel was appointed. That counsel filed an Anders brief. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Upon our independent review, we identified an arguable issue regarding the trial court’s failure to appoint trial counsel. We again abated the appeal, in compliance with our precedent, for the appointment of new counsel to brief the issue. See Perryman v. State, No. 10-02-00279-CR (Tex.App.-Waco Aug. 18, 2004, order) (per cu-riam) (not designated for publication). New counsel has now also filed an Anders brief. The new Anders brief fails to address the issue expressly identified in our last abatement order, namely the failure of the trial court to appoint trial counsel. So we are required to, by our precedent, again abate this appeal for the appointment of yet another attorney. Guerrero v. State, 64 S.W.3d 436, 441 (Tex.App.-Waco 2001, order) (per curiam).

Further, counsel has failed to comply with this Court’s procedures regarding Anders appeals. This failure is demonstrated by his motion to withdraw directed to this Court. We have repeatedly held we cannot grant such a motion. See Sowels v. State, 45 S.W.3d 690, 692-94 (Tex.App.-Waco 2001, no pet.) (Waco Court procedures for Anders cases).

As noted in the previous abatement order, we conducted an independent review of the record and determined there is at least one arguable ground for appeal. See Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App.1991). Under the version of Article 64.01 in effect at the time that Appellant filed his motion, “If a convicted person informs the convicting court that the person wishes to submit a motion under this chapter and if the court determines that the person is indigent, the court shall appoint counsel for the person.” Act of Apr. 3, 2001, 77th Leg., R.S., ch. 2, § 2, art. 64.01(c), 2001 Tex. Gen. Laws at 2 (amended 2003). Appellant filed a Motion for Forensic DNA Testing and Appointment of Counsel. The record does not show that the trial court considered whether Appellant is indigent or considered the appointment of counsel at trial. See Gray v. State, 69 S.W.3d 835, 837 (Tex.App.Waco 2002, order) (per curiam). Appellant was arguably entitled to counsel at trial. See id. Appellant’s appeal presents an issue of arguable merit.

Appellant’s new counsel should personally review the record to determine what issues should be raised in this appeal, including whether the issue identified by this Court should be raised, and if not, why the issue identified has no arguable merit. See Guerrero, 64 S.W.3d at 441 n. 5.

We abate the appeal for the appointment of new counsel. See Guerrero, 64 S.W.3d at 441. Assuming that the trial court has not already permitted Appellant’s present appointed appellate counsel to withdraw, counsel must file a motion to withdraw in that court if he desires to withdraw. See Guerrero at 441; Sowels, 45 S.W.3d at 692. The trial court’s order appointing new appellate counsel must be filed with the Clerk of this Court in a supplemental clerk’s record within fifteen (15) days of the date of this Order. Counsel’s brief is due thirty (30) days after appointment.

Chief Justice GRAY concurring.

TOM GRAY, Chief Justice,

concurring with Abatement Order.

The precedent of this Court supports what we do today. But this case demonstrates the need to revisit the procedure we use in Anders cases. I have previously contended, and continue to believe, that in Anders appeals, we unnecessarily impose a heavy financial burden on the county from which the appeal originated. See Martinez v. State, 137 S.W.3d 832, 833-834 (Tex.App.-Waco 2004, order) (Gray, C.J., concurring); Martinez v. State, 135 S.W.3d 233 (Tex.App.-Waco 2004, order) (Gray, C.J., dissenting); Guerrero v. State, 64 S.W.3d 436, 444 (Tex.App.-Waco 2001, order) (Gray, J., dissenting); see also In the Interest of E.L.Y, 69 S.W.3d 838, 843 (Tex.App.-Waco 2002, order) (Gray, J., dissenting).

Because our procedure is so onerous, and because we repeatedly face the same issues, particularly in appeals transferred to us from other jurisdictions where the Anders procedures are not so onerous, I have decided on a rather unorthodox procedure. Instead of detailing our procedures as the court in Eaden v. State did, and which ought to be clear from our opinion in Sowels, I have attached as an appendix to this concurring opinion a redacted brief and other documents related to an Anders brief prepared by an attorney that routinely practices before us, and has filed several Anders briefs that comply with our procedures. Of course, this is only an example, and any Anders brief must be tailored to the facts and circumstances of the individual case. It cannot simply be copied, edited, and filed. But it certainly can provide a rule and guide to the lawyer looking for direction from someone familiar with the procedure in this Court for Anders briefs.

Appendix

TO THE HONORABLE JUDGES OF SAID COURT:

Comes now_, appointed counsel for [Appellant’s name], and notifies this Court that Appellant’s counsel has filed on this date Appellant’s Anders brief.

Respectfully submitted,

[Name of Law Firm (if applicable)]

[Attorney’s Name]

[Attorney Address]

[Firm phone number]

[Firm Facsimile number]

[E-mail:_]

[State Bar No._]

ATTORNEY FOR APPELLANT

CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the above has this day been delivered to the District Attorney’s Office,_, Texas, attorney of record for the State of Texas by first class mail.

Signed [date of brief].

[Attorney’s name]

TABLE OF CONTENTS

Page

... ii NAMES OF ALL PARTIES TO THE FINAL JUDGMENT

INDEX OF AUTHORITIES.

REQUEST FOR ORAL ARGUMENT . 1

STATEMENT OF THE CASE. í

ISSUE PRESENTED. M

STATEMENT OF THE FACTS. W

SUMMARY OF THE ARGUMENTS . M

ISSUE NUMBER ONE RESTATED

The District Court imposed Appellant’s sentence lawfully, and the proceedings show no non-frivolous matters.3

PRAYER FOR RELIEF.7

CERTIFICATE OF SERVICE.8

INDEX OF AUTHORITIES

FEDERAL CASES

Coghlan v. Starkey, 852 F.2d 806 (5th Cir.1988).3

Duncan v. Louisiana, 391 U.S. 145 (1968).6

STATE CASES

Blanco v. State, 771 S.W.2d 598 (Tex.App.-Corpus Christi 1989, no pet.).5

Carroll v. State, 975 S.W.2d 630 (Tex.Crim.App.1998).7

Dinnery v. State, 592 S.W.2d 343 (Tex.Crim.App.1979).7

Hall v. State, 935 S.W.2d 852 (Tex.App.-San Antonio 1996, no pet.) .6

High v. State, 573 S.W.2d 807 (Tex.Crim.App. [Panel Op.] 1978).3

Holland v. State, 761 S.W.2d 307 (Tex.Crim.App.1988), cert. denied, 489 U.S. 1091 (1989).7

Jeffery v. State, 903 S.W.2d 776 (Tex.App.-Dallas 1995, no pet.).3

Johnson v. State, 885 S.W.2d 641 (Tex.App.-Waco 1994, pet. ref'd).3

Liggins v. State, 979 S.W.2d 56 (Tex.App.-Waco 1998, pet. ref d).4

Marquez v. State, 921 S.W.2d 217 (Tex.Crim.App.1996).6

Monreal v. State, 99 S.W.3d 615 (Tex.Crim.App.2003).9

Munoz v. State, 840 S.W.2d 69 (Tex.App.-Corpus Christi 1992, pet. refd).5

Richards v. State, 562 S.W.2d 456 (Tex.Crim.App.1977).4

Rodriguez v. State, 850 S.W.2d 603 (Tex.App.-El Paso 1993, no pet.).5

Samudio v. State, 648 S.W.2d 312 (Tex.Crim.App.),.6 cert. denied, 462 U.S. 1132 (1983)

Ex parte Smith, 678 S.W.2d 78 (Tex.Crim.App.1984).4

Smith v. State, 853 S.W.2d 140 (Tex.App.-Corpus Christi 1993, no pet.).5

Smith v. State, 858 S.W.2d 609 (Tex.App.-Amarillo 1993, pet. ref d).9

Ex parte Tabor, 565 S.W.2d 945 (Tex.Crim.App.1978).8

Wright v. State, 930 S.W.2d 131 (Tex.App.-Dallas 1996, no pet.) .7 FEDERAL STATUTES

U.S. Const, amend. VI.6

STATE STATUTES

Tex. Const, art. 1, § 15.6

Tex.Code Crim. Proc. Ann. art. 1.12 (Vernon 2002) .6

Tex.Code Crim. Proc. art. 1.13 (Vernon 2002).6

Tex.Code Crim. Proc. Ann. art. 1.13(a) (Vernon Supp.2002).6

Tex.Code Crim. Proc. Ann. art. 1.14 (Vernon Supp.2002) .7

Tex.Code Crim. Proc. Ann. art. 1.15 (Vernon Supp.2002) . 6, 7

Tex.Code Crim. Proc. Ann. art. 26.13 (Vernon Supp.1998) .4

Tex.Code Crim. Proc. Ann. art. 26.13(b) (Vernon Supp.2002).7

Tex.Code Crim. Proc. Ann. art. 26.13(d) (Vernon Supp.1998).5

Tex.Code Crim. Proc. Ann. art. 26.13(d) (Vernon Supp.2002).5

Tex.Code Crim. Proc. Ann. art. 27.13 (Vernon 1989) .6

REQUEST FOR ORAL ARGUMENT

TO THE HONORABLE COURT OF APPEALS:

Appellant respectfully requests that this appeal not be presented on oral argument.

STATEMENT OF THE CASE On _ in the __ Judicial District Court of_County, Texas, the Honorable _, presiding, Appellant was found guilty of the offense of Aggravated Robbery, a second degree felony. 1 CR 21. Appellant waived a jury in both phases of the trial. The court assessed the punishment at twenty (20) years in the Texas Department of Criminal Justice, Institutional Division. 1 CR 21. The prosecuting attorney was_County Criminal District Attorney_Appellant’s trial counsel was_

ISSUE PRESENTED

The District Court imposed Appellant’s sentence lawfully, and the proceedings show no non-frivolous matters.

STATEMENT OF THE FACTS

Appellant plead guilty to the offense of Aggravated Robbery on_1 CR 21. On _, Appellant was sentenced to twenty years in the Texas Department of Criminal Justice. 1 CR 21.

SUMMARY OF THE ARGUMENTS

Under Anders, a court-appointed attorney may not raise an issue in an appeal if he makes a conscientious examination of the case and finds the appeal wholly frivolous. Anders v. California, 386 U.S. 738, 744[, 87 S.Ct. 1396, 18 L.Ed.2d 493] (1967). To comply with Anders, counsel must isolate “possibly important issues” and “furnish the court with references to the record and legal authorities to aid it in its appellate function.” United States v. Johnson, 527 F.2d 1328, 1329 (5th Cir.1976). After the appellant is given an opportunity to respond, the court makes a full examination of the record to detect whether the case is frivolous. Anders, 386 U.S. at 744[, 87 S.Ct. 1396], Appellant’s counsel has reviewed the transcript, the sentence received by Appellant, and the factual basis for the sentence. As set forth in the brief, there are no non-frivolous issues.

Issue Number One Restated:

The District Court imposed Appellant’s sentence lawfully, and the proceedings show no non-frivolous matters.

ARGUMENT AND AUTHORITIES UNDER ISSUE NUMBERS ONE

After a detailed search of the record, Appellant’s counsel has been unable to find any non-frivolous error. Pursuant to An-ders, Appellant’s appointed counsel files this brief. Specifically at issue is a purported claim of an involuntary plea and the plea colloquy. No error is evident from this record. Therefore, pursuant to An-ders, Appellant’s appointed counsel files this brief, and moves for withdrawal in the trial court.

A. The Anders brief.

The purpose of an Anders brief is to support counsel’s motion to withdraw by showing that he has performed a conscientious examination of the record and that the appeal is so frivolous that an appellant should be denied his constitutional right to appointed counsel on appeal. Jeffery v. State, 903 S.W.2d 776, 779 (Tex.App.-Dallas 1995, no pet.). The ultimate test of an Anders brief is whether it contains a professional evaluation of the record demonstrating why, in effect, there are no arguable grounds to be advanced. Johnson, 885 S.W.2d at 646.

B. The “arguable issues of law.”

Counsel for Appellant will show that the plea was done according to statutory and case law.

Before accepting a defendant’s guilty plea, a trial court must satisfy itself that the accused understands “the consequences of his plea.” Liggins v. State, 979 S.W.2d 56, 67 (Tex.App.-Waco 1998, pet. ref d); see generally Tex.Code Crim. Proc. Ann. art. 26.13 (Vernon Supp.1998). However, the trial judge need not ask any certain questions nor follow any formula to substantially comply with article 26.13. Richards v. State, 562 S.W.2d 456, 458 (Tex.Crim.App.1977) (opinion on reh’g). The trial court need only substantially comply with the requirements of article 26.13. Ex parte Smith, 678 S.W.2d 78, 79 (Tex.Crim.App.1984).

Thus, the Code of Criminal Procedure mandates that certain “admonishments” must be given to a criminal defendant prior to accepting a plea of guilty or a plea of nolo contendere. See generally Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon Supp.1998). These include:

-» the range of the punishment attached to the offense;
-⅝ the fact that the recommendation of the prosecuting attorney as to punishment is not binding on the court;
-» the fact that if the punishment assessed does not exceed the punishment recommended by the prosecutor and agreed to by the defendant and his attorney, the trial court must give its permission to the defendant before he may prosecute an appeal on any matter in the case except for those matters raised by written motions filed prior to trial; and
-> the fact that if the defendant is not a citizen of the United States of America, a plea of guilty or nolo contendere for the offense charged may result in deportation, the exclusion from admission to this country, or the denial of naturalization under federal law.

The court may make the admonitions required by this article either orally or in writing. Blanco v. State, 771 S.W.2d 598, 599 (Tex.App.-Corpus Christi 1989, no pet.); Tex.Code Crim. Proc. Ann. art. 26.13(d) (Vernon Supp.1998). If the court makes the admonitions in writing, it must receive a statement signed by the defendant and the defendant’s attorney that he understands the admonitions and is aware of the consequences of his plea. Tex.Code Crim. Proc. Ann. art. 26.13(d) (Vernon Supp.2002).

If done in writing, there is no requirement to verbally inquire about the volun-tariness of a plea after a defendant and trial counsel have signed the written waiver and the judge has established that Appellant has read and understood the waivers. Smith v. State, 853 S.W.2d 140, 141 (Tex.App.-Corpus Christi 1993, no pet.); Rodriguez v. State, 850 S.W.2d 603, 607 (Tex.App.-El Paso 1993, no pet.). The trial judge shows compliance with this statute by approving the plea papers containing the written admonishments by signing a statement reciting his satisfaction with the same and ordering the documents to be filed in the papers of the case. Munoz v. State, 840 S.W.2d 69, 72 (Tex.App.-Corpus Christi 1992, pet. ref'd).

There are further statutory requirements that must be complied with on a plea of guilty. The defendant must make a plea of guilty in a felony case in open court in person. Hall v. State, 935 S.W.2d 852, 856 (Tex.App.-San Antonio 1996, no pet.); Tex.Code Crim. Proc. Ann. art. 27.13 (Vernon 1989).

Waiver of a jury trial is another aspect of a guilty plea. The Texas Constitution provides that “[t]he right of trial by jury shall remain inviolate.” Tex. Const, art. 1, § 15; see also Tex.Code Crim. Proc. Ann. art. 1.12 (Vernon 2002). The United States Constitution also protects the right to trial by jury. U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.”). Further, a jury trial is “fundamental to the American scheme of justice ...” Duncan v. Louisiana, 391 U.S. 145, 149[, 88 S.Ct. 1444, 20 L.Ed.2d 491] (1968); accord Samudio v. State, 648 S.W.2d 312 (Tex.Crim.App.), cert. denied, 462 U.S. 1132[, 103 S.Ct. 3113, 77 L.Ed.2d 1368] (1983). Because of the “fundamental” and “inviolate” nature of the right to trial by jury, Texas law requires waiver of jury trial to be made in person in writing in open court. Marquez v. State, 921 S.W.2d 217, 220 (Tex.Crim.App.1996); Tex.Code Crim. Proc. art. 1.13 (Vernon 2002); see also Tex.Code Crim. Proc. Ann. art. 1.15 (Vernon Supp.2002) (requiring a proper waiver to comply with articles 1.13 and 1.14). A proper waiver under article 1.13(a) requires it be made expressly by the accused, in open court, in writing, and with the consent and approval of the court and the attorney representing the State. Tex.Code Crim. Proc. Ann. art. 1.13(a) (Vernon Supp.2002).

The range of punishment. 1 RR 6, 8; 1 CR 25

A stipulation of evidence and judicial confession. 1 RR 17; 1 CR 23-24.

In addition, when a defendant waives his right to a jury and enters a plea of guilty to a felony, the Code of Criminal Procedure requires the State to introduce evidence into the record showing the guilt of the defendant to serve as the basis for the trial court’s judgment. See Wright v. State, 930 S.W.2d 131, 132 (Tex.App.-Dallas 1996, no pet.); see also Tex.Code Crim. Proc. Ann. art. 1.15 (Vernon Supp.2002). A judicial confession, standing alone, provides sufficient evidence to support the trial court’s judgment. See Dinnery v. State, 592 S.W.2d 343, 353 (Tex.Crim.App.1979) (op. on reh’g).

Furthermore, the trial court should not accept a plea of guilty unless it appears that the plea is voluntary. Holland v. State, 761 S.W.2d 307, 320 (Tex.Crim.App.1988), cert. denied, 489 U.S. 1091[, 109 S.Ct. 1560, 103 L.Ed.2d 863] (1989). Thus, the court cannot accept a plea of guilty unless it appears that the defendant is mentally competent and the plea is free and voluntary. Tex.Code Crim. Proc. Ann. art. 26.13(b) (Vernon Supp.2002).

Finally, Texas statutory law provides a “catch-all waiver” of “form, substance or procedure” given by law. Tex.Code Ceim. PROC. Ann. art. 1.14 (Vernon Supp.2002). An indication of a knowing, voluntary and intelligent wavier of this right is all that is necessary to be effective. Carroll v. State, 975 S.W.2d 630, 632 (Tex.Crim.App.1998) (en banc). The trial court complied with each of these requirements:

A signed statement that the plea of guilty was free and voluntary. 1 CR 28.

The fact that the recommendation of the prosecuting attorney as to punishment is not binding on the court. 1 RR 14; 1 CR 25.

The fact that if the punishment assessed does not exceed the punishment recommended by the prosecutor and agreed to by the defendant and his attorney, the trial court must give its permission to the defendant before he may prosecute an appeal on any matter in the case except for those matters raised by written motions filed prior to trial. 1 RR 14, 16-17; 1 CR 25.

A warning that if the defendant is not a citizen of the United States of America, a plea of guilty or nolo contendere for the offense charged may result in deportation, the exclusion from admission to this country, or the denial of naturalization under federal law. 1 CR 27-28.

A properly waived jury trial. 1 RR 13; 1 CR 23.

A finding that the defendant is mentally competent and the plea is free and voluntary. 1 RR 8; 1 CR 28.

A knowing, voluntary and intelligent wavier of “any rights” seemed by law. 1 CR 23.

Since there is no error evident from the record, it appears that the requirements for felony plea admonishments met the requirements of the law.

C. Waiver of Appeal.

A knowing and intelligent waiver of the right to appeal made after sentence is imposed will prevent a defendant from appealing without the consent of the trial court. Ex parte Tabor, 565 S.W.2d 945, 946 (Tex.Crim.App.1978) (op. on reh’g). “No attack on a waiver of the right to appeal will be entertained without factual allegations supporting a claim of coercion or involuntariness.” Smith v. State, 858 S.W.2d 609 (Tex.App.-Amarillo 1993, pet. refd). The plea papers show that “if the punishment assessed does not exceed the punishment recommended by the prosecutor and agreed to by you and your attorney, the court must give its permission to you before you can prosecute an appeal on any matter in the case except for matters raised by written motion and filed and ruled upon prior to trial.” 1 CR 27. Furthermore, the record contains an “Order on Notice of Appeal” showing that “the defendant has not requested permission of the Court to prosecute an appeal; permission to prosecute an appeal has not been granted by the Court, and the Court Orders [sic] and decrees that permission to appeal is denied.” 1 CR 30. Thus, this Court should dismiss this appeal. See generally Monreal v. State, 99 S.W.3d 615 (Tex.Crim.App.2003).

PRAYER FOR RELIEF

For the reasons set forth, Appellant’s counsel urges that this appeal presents no legally non-frivolous questions. Appellant urges the Court for such relief as Appellant may be entitled.

Respectfully submitted,

[Firm name]

[Attorney’s name]

[Firm address]

[Firm phone number]

[Firm fax number]

E-mail: _

State Bar No_

ATTORNEY FOR APPELLANT

CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the above has this day been delivered to the District Attorney’s Office, ___, Texas, attorney of record for the State of Texas by first class mail.

Signed [date of brief].

[Attorney’s name]

[Date of brief]

[Appellant] TCDJ # ***

Re: Cause number 10-_-_-CR; In The Tenth Court of Appeals.

Dear [Appellant]:

I write to inform you that I am filing a Motion to Withdraw as your appointed counsel on appeal. Unfortunately, the law states that I must file this motion if I have reviewed the record and found no meritorious issues. A defendant’s right to assistance of counsel does not include the right to have an attorney urge frivolous or unmeritorious claims. Penson v. Ohio, 488 U. S. 75, 83-84 (1988). If an attorney concludes that an appeal lacks merit, counsel is obligated to inform the client of this conclusion and refuse to prosecute the appeal. McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 437 (1988); Tex. DISCIPLINARY R. PROF. CONDUCT 3.01 (1989), reprinted in Tex. GOV’T code Ann., tit. 2, subtit. G app. (Vernon Supp. 1994) (State Bar Rules art. X, § 9) (emphasis added).

Please find enclosed copies of the following items:

1. Motion to Withdraw as Counsel Pursuant to Anders v. California which is being filed in the District Court; and,

2. Brief pursuant to Anders v. California; and

3. A copy of this letter demonstrating its service to you to the Tenth Court of Appeals;

I have requested to be withdrawn as your appointed counsel in this case. Upon the granting of the Motion to Withdraw, I am discharged from further obligation to you. Johnson v. State, 885 S.W.2d 641, 647 (Tex. App.—Waco 1994, pet. ref d). However, by granting the motion to withdraw, this does not mean you loose your right to an appeal. Johnson, 885 S.W.2d at 647 n.3. However, it does mean that you do not have a right to have an attorney represent you on appeal. Johnson, 885 S.W.2d at 647 n.3.

You have the right to file a brief or other response on your own behalf. McMahon v. State, 529 S.W.2d 771, 772 (Tex. Crim. App. 1975). In addition, you have the right to review the record to find what points to raise in your pro se brief. McMahon, 529 S.W.2d at 772. To aid you in this, I have previously sent you a copy of the record for your use. You must file this brief with the Tenth Court of Appeals in Waco, Texas. That court has previously said that they will allow the defendant thirty (30) days to file a pro se brief, if desired. Sowels v. State, 45 S.W.3d 690, 694 (Tex.App.—Waco 2001, no pet.).

In summary:

• I have provided a copy of the Anders brief to you; and,
• I have concluded as your attorney there are' no issues which might arguably support an appeal and I am communicating this to the appellate court; and,
• I have informed you of your right to review the record, and provided a copy of the same; and,
• 1 have informed you of your right to file a brief or other response.

Furthermore, upon the decision of the Tenth Court of Appeals, you may have a right to file a Petition for Discretionary Review in the Court of Criminal Appeals.

Sincerely,

[Firm name]

[Attorney’s name]

      . Eaden v. State, No. 11-03-00405-CR, 161 S.W.3d 173, 2005 WL 309558 (Tex.App.-East-land Feb. 10, 2005, no pet. h.).

      . A frivolous appeal has been defined as an appeal in which the result is obvious or the arguments of error are wholly without merit. Coghlan v. Starkey, 852 F.2d 806, 811 (5th Cir.1988). This Honorable Court defined a "frivolous appeal” as one where "the only theories that the attorney can discover after this conscientious review of the record and the law are 'arguments that cannot conceivably persuade the court ...’” Johnson, 885 S.W.2d at 645. Any point which is "arguable on [the] merits” is, by definition, not frivolous. Johnson, 885 S.W.2d at 645. Yet another definition is an appeal is “frivolous” when "the trial court’s ruling[s were] correct” or "the appellant was not harmed by the ruling[s].” High v. State, 573 S.W.2d 807, 813 (Tex.Crim.App. [Panel Op.] 1978).

      . Here, the trial court used both written and oral admonishments. The written admonishments demonstrate that the trial court acknowledged that "the defendant has received and understands the admonishments, understands the consequences of his plea, is mentally competent to stand trial, and that the plea is freely and voluntarily given.” 1 RR 49.


author: Justice GARZA.

text:
    TEXAS A & M UNIVERSITY, CORPUS CHRISTI, Appellant, v. Neal VANZANTE, Appellee.
    No. 13-04-252-CV.

      Court of Appeals of Texas, Corpus Christi-Edinburg.
    March 17, 2005.
    Craig H. Russell, Asst. Atty. Gen., Austin, for appellant.
    Christopher E. McJunkin, Corpus Christi, for appellee.
    Before Justices YÁÑEZ, CASTILLO and GARZA.
   OPINION

Opinion by

Justice GARZA.

This is an appeal from the denial of a plea to the jurisdiction. Appellee, Neal Vanzante, sued appellant, Texas A & M University, Corpus Christi, for employment discrimination under the Texas Commission on Human Rights Act (“the Act”). See Tex. Lab.Code Ann. § 21.001, et seq. (Vernon 1996). Appellant subsequently filed a plea to the jurisdiction, arguing that the trial court lacked subject matter jurisdiction because appellee did not file an administrative complaint within one hundred and eighty days of the alleged unlawful employment practice as required by the Act. See Tex. Lab.Code Ann. § 21.202 (Vernon 1996). After reviewing the arguments and evidence presented by both parties, the trial court denied appellant’s plea to the jurisdiction. Appellant now appeals to this Court. We conclude that appellee filed his administrative complaint within the time period required by law and therefore affirm the trial court’s order.

I. Background

The facts relevant to this appeal are largely uncontested. Neal Vanzante is a professor of accounting at Texas A & M University, Kingsville. In December 2000, Vanzante applied for a position at Texas A & M University, Corpus Christi (“the University”) to commence in the fall of 2001. In January 2001, Moustafa Abdelsamad, Dean of the College of Business at the University, instructed Vanzante that communications regarding his application for employment should be directed to Dr. Janet W. Tillinger, chair of the accounting department and chair of the department’s search and selection committee. Sometime in April 2001, Vanzante learned through a third party that the position had been offered to a professor named Timothy McCoy. On April 11, 2001, Vanzante emailed Dean Abdelsamad, complaining that his application had “not received due consideration.” Vanzante complained, “[I]t is difficult to understand how someone with my experience and credentials was not invited for an interview (especially given where I live) when compared to the experience and credentials of those ultimately hired.” On April 16, 2001, Dean Abdelsamad emailed in response, “Thanks for keeping me informed. As you may know, we filled all positions this year. It is [sic] excellent outcome considering the tight market for faculty in business.” In a letter dated June 11, 2001, Dr. Tillinger informed Vanzante that he was not selected for any of the advertised positions and thanked him for applying to the College of Business. Vanzante claims that he received Dr. Tillinger’s letter on June 21, 2001.

On December 7, 2001, Vanzante completed an employment intake questionnaire supplied by the Corpus Christi Human Relations Commission (“the Commission”) in which he complained of employment discrimination by the University. On December 17, 2001, Vanzante filed a verified charge of discrimination with the Commission. In a letter dated October 2, 2002, the Texas Commission on Human Rights informed Vanzante of his right to bring a private civil action in state court against the University. The letter advised Van-zante that any suit must be filed within sixty days of his receipt of the letter. Vanzante subsequently filed suit against the University.

II. Plea to the Jurisdiction

In its sole issue before this Court, the University argues that the trial court erred by denying its plea to the jurisdiction. According to the University, the trial court has no subject matter jurisdiction over the suit because Vanzante failed to file an administrative charge of discrimination within one hundred and eighty days after the alleged unlawful employment practice as required by the Act. See id.

A person claiming to be aggrieved by an unlawful employment practice may file a complaint with the Human Rights Commission. Schroeder v. Texas Iron Works, Inc., 813 S.W.2d 483, 486 (Tex.1991). Such a complaint must be filed within one hundred and eighty days after the date the alleged practice occurred. Id. This time limit has been held to be mandatory and jurisdictional. Id. If the statutory guidelines have not been followed, the suit must be dismissed for lack of jurisdiction. See id. at 488.

A. Standard of Review

Whether a court has subject matter jurisdiction is a legal question subject to de novo review. See Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998). When reviewing a trial court’s order on a plea to the jurisdiction, we construe the pleadings in the plaintiffs favor and look to the pleader’s intent. See County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.2002). We are allowed to consider evidence pertinent to the jurisdictional inquiry. See id.

B. Analysis

As stated by the University, the key issue in this appeal is when the limitations period started to run. The University argues that the limitations period commenced to run no later than April 16, 2001, when Dean Abdelsamad informed Van-zante that all positions at the University had been filled. If the University is correct, the limitations period expired on October 13, 2001 and Vanzante’s administrative complaint was filed untimely. See § 21.202. According to Vanzante, the limitations period did not begin to run until June 21, 2001, when he received Dr. Til-linger’s letter informing him that he was not selected for any of the University’s advertised positions. If Vanzante is correct, the limitations period did not expire until December 18, 2001 and his administrative complaint was timely filed. See id.

The University relies on six cases to support its position. See Del. State Coll. v. Ricks, 449 U.S. 250, 258, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980); Schoonover v. Consol. Freightways Corp. of Del., 49 F.3d 219, 223 (6th Cir.1995, cert. denied); Specialty Retailers v. DeMoranville, 933 S.W.2d 490, 492 (Tex.1996) (per curiam); Cooper-Day v. RME Petroleum Co., 121 S.W.3d 78, 83 (Tex.App.-Fort Worth 2003, no pet.); Czerwinski v. Univ. of Tex. Health Sci. Ctr., 116 S.W.3d 119, 123 (Tex.App.-Houston [14th Dist.] 2002, pet. denied); Byars v. City of Austin, 910 S.W.2d 520, 525 (Tex.App.-Austin 1995, writ denied). None of the cases cited by the University compels this Court to conclude that the limitations period commenced to run on April 16, 2001. To the contrary, the cases cited by the University indicate that the limitations period began to run no earlier than June 21, 2001, when Vanzante received notice from the University’s search and selection committee that his application for employment had been officially denied.

In Ricks, the United States Supreme Court was asked to determine whether a college professor timely complained under the civil rights laws that he had been denied academic tenure because of his national origin. Ricks, 449 U.S. at 252, 101 S.Ct. 498. Title VII, under which Ricks had filed suit, requires aggrieved persons to file a complaint with the Equal Employment Opportunity Commission (“EEOC”) “within one hundred and eighty days after the alleged unlawful employment practice occurred.” See id. at 256, 101 S.Ct. 498 (citing 42 U.S.C. § 2000e-5(e)). To determine the timeliness of Ricks’ EEOC complaint, the Supreme Court had to identify precisely the “unlawful employment practice” of which Ricks complained. See id. at 257, 101 S.Ct. 498. The Supreme Court noted that although Ricks’ complaint only alleged a discriminatory denial of academic tenure, Ricks also complained of wrongful discharge at oral argument. See id. The Supreme Court rejected the 'wrongful-termination claim and held that “the only alleged discrimination occurred — and the filing limitations periods therefore commenced — at the time the tenure decision was made and communicated to Ricks.” Id. at 258, 101 S.Ct. 498. In reaching this holding, the Supreme Court noted that “[t]he application of the general principles discussed herein necessarily must be made on a case-by-case basis.” Id. at 258 n. 9, 101 S.Ct. 498. Ultimately, the Supreme Court did not decide when the unlawful employment practice occurred in Ricks but instead concluded that the district court’s decision was not erroneous because Ricks’ complaint was untimely regardless of which of the disputed dates was correct. See id. at 262, 262 n. 17, 101 S.Ct. 498. The Supreme Court cautioned that “the limitations periods should not commence to run so soon that it becomes difficult for a layman to invoke the protection of the civil rights statutes.” Id. at 262 n. 16, 101 S.Ct. 498. Given this admonishment and the Supreme Court’s emphasis that notice of the employment decision should be predicated on a formal and official decision, we conclude that the Ricks opinion does not favor the University.

The University argues that the limitations period should run from the date of Dean Abdelsamad’s email to Vanzante, but we conclude that the University’s employment decision was communicated to Vanzante by Dr. Tillinger’s letter, not by Dean Abdelsamad’s email. Dean Abdel-samad’s email simply responded to Van-zante’s email, in which Vanzante complained (based on information from an unnamed third party) that his application had not been given “due consideration.” Rather than informing Vanzante that his application had in fact been denied, Dean Abdelsamad simply thanked Vanzante “for keeping ... [him] informed.” Dean Abdelsamad’s email was not unequivocal notice that Vanzante’s application had been rejected, as the University argues, because it said only that all positions had been filled. Moreover, Vanzante had been advised that any communication regarding his application should be directed to the search and selection committee, which suggests that the committee was the official decision-making entity.

In Schoonover, the next case cited by the University, a three-judge panel of the Sixth Circuit was asked to determine when the statute of limitations begins to run for a hybrid § 301/duty of fair representation action in the context of an arbitration proceeding. See Schoonover, 49 F.3d at 221-22 (citing 29 U.S.C. § 160(b)). According to the Sixth Circuit, “The better course is to permit the plaintiff claiming inadequate representation in an arbitration to wait until there has been some adverse outcome in the arbitration before seeking the intervention of a federal court.” Id. As the court explained, “requiring exhaustion of the grievance process is appropriate because the arbitration award may make the employee whole, in spite of even the most egregious union failures.” Id. at 222 (citing Lucas v. Mountain States Tel. & Tel., 909 F.2d 419, 421 (10th Cir.1990) (per cu-riam)). “To require otherwise would undermine the strong national policy favoring nonjudicial resolution of labor disputes by penalizing those who try to resolve then-disputes through the grievance process before filing suit in federal court.” Id. The court held that “while formal notice of a[n arbitration] decision to the grievant is not required, a formal decision of some sort by the [arbitration] panel is required to begin the running of the statute of limitations.” Id. at 223.

The University argues that under Schoonover, “formal notice is not required to start the running of the statute of limitations.” Schoonover involved a decision to terminate employment and a subsequent arbitration proceeding that affirmed the termination. See id. at 221. The Schoonover court was asked to decide when the statute of limitations began to run for a claim of unfair representation against a union in the context of an arbitration proceeding. See id. at 221-28. The court held that “there was no formal arbitration decision until the [arbitration] panel reduced it to writing as required by its rules.” See id. at 223. We do not find Schoonover inconsistent with the conclusion we have reached in this case. We have determined that Dean Abdelsamad’s email did not provide unequivocal notice of the University’s adverse hiring decision. The first unequivocal notice Vanzante received of the University’s decision came from Dr. Tillinger’s letter.

The University also relies on DeMoranville, 933 S.W.2d at 492, arguing that this Court would create a new rule of law and contradict Texas Supreme Court authority if it holds that the limitations period runs from the date a claimant has reason to believe discrimination has occurred. In DeMoranville, the Texas Supreme Court held that the limitations period begins when an employee is informed of the allegedly discriminatory employment decision, not when the decision comes to fruition. Id. at 493. The plaintiff in DeMoranville had been informed before her termination that she would be terminated if she did not return to work within one year of taking medical leave. See id. When the plaintiff did not return to work within one year, she was terminated. See id. The supreme court held that the limitations period began when the employee received notice of the employer’s termination policy as applied to her and not when the employee was actually terminated. See id.

Again, we do not find DeMoranville in conflict with our conclusion in the present case. Our holding is consistent with well-settled precedent of the United States Supreme Court and the Texas Supreme Court holding that the limitations period commences to run when an adverse employment decision is made official and communicated to the aggrieved party. See Ricks, 449 U.S. at 258, 101 S.Ct. 498; DeMoranville, 933 S.W.2d at 493.

In Cooper-Day, the fourth case relied upon by the University, the Fort Worth court was asked to determine whether a plaintiff had timely filed her administrative complaint as mandated by the Act. See Cooper-Day, 121 S.W.3d at 81. The plaintiff asserted gender discrimination claims for constructive discharge and unequal pay. See id. The court held that the plaintiffs administrative complaint was not filed within one hundred and eighty days after the date the alleged unlawful employment practices occurred. See id. In reaching this conclusion, the court also noted that there was no evidence to support the plaintiffs constructive discharge and unequal pay causes of action on a continuing violation theory. See id. at 86-88.

The University argues that under Cooper-Day, the limitations period for an employment discrimination complaint begins when the allegedly discriminatory employment decision has been made and communicated to the plaintiff. We agree and find that our decision in the present case is consistent with the holding in Cooper-Day.

Czerwinski, the fifth case cited by the University, involved the question of whether compliance with the filing provisions of the Act are mandatory and jurisdictional. See Czerwinsky 116 S.W.3d at 123. In Czerwinski, the court was asked to determine the effect of a late administrative filing under the Act. See id. at 120. The court held that a timely filed administrative complaint was necessary to confer subject matter jurisdiction on the trial court. See id. at 122. Czerwinski addressed the effect of noncompliance with the provisions of the Act, see id. at 122, an issue which is well settled and undisputed in this case.

In Byars, the sixth case cited by the University, the Austin court held that under the Act, the limitations period for an administrative complaint commenced to run when an employee was terminated and was not tolled while the employee pursued the employer’s internal grievance process. Byars, 910 S.W.2d at 525. The University argues that under Byars, the limitations period was not tolled on Vanzante’s claim after the University’s decision. For the reasons discussed below, we need not address this contention to decide the merits of this case. We therefore decline to do so. See Tex.R.App. P. 47.1.

We are guided by the precedent of the United States Supreme Court. In Ricks, the Supreme Court explained that the determination of when an alleged unlawful practice occurred “necessarily must be made on a case-by-case basis.” Ricks, 449 U.S. at 258 n. 9, 101 S.Ct. 498. The high Court also warned that “the limitations periods should not commence to run so soon that it becomes difficult for a layman to invoke the protection of the civil rights statutes.” Id. at 262 n. 16, 101 S.Ct. 498. We conclude that the University’s decision was made official and communicated to Vanzante on June 21, 2001, when the University’s search and selection committee informed him that his application for employment had been denied. Accordingly, the limitations period did not commence to run until that date. Because Vanzante’s administrative complaint was timely, we need not discuss whether the limitations period was tolled after June 21, 2001. See Tex.R.App. P. 47.1.

III. Conclusion

The order of the trial court is affirmed.

      . Pursuant to Texas Civil Practice and Remedies Code Section 51.014(a)(8), this Court has jurisdiction over appellant’s interlocutory appeal of the trial court's order denying its plea to the jurisdiction. Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(8) (Vernon Supp.2004-05).


author: BRIAN QUINN, Justice.

text:
    In the Interest of Brittany Nicole SANDERS.
    No. 07-03-0524-CV.
    Court of Appeals of Texas, Amarillo.
    March 21, 2005.
    Rehearing Overruled April 25, 2005.

      Danny Needham, Mullin Hoard <& Brown, L.L.P., Amarillo, for Appellant.
    Phil Jordan, Christopher K. Wrampel-meier, Underwood Wilson Berry Stein & Johnson, P.C., Amarillo, for Appellee.
    Before QUINN, REAVIS, and CAMPBELL, JJ.
   Opinion

BRIAN QUINN, Justice.

Gail Wayne Sanders (Sanders) appeals from an order establishing his parentage as father of Brittany Nicole Sanders and ordering him to pay retroactive child support of $52,400, attorney’s fees, and court costs. Though not contesting paternity, he nonetheless attacks the trial court’s 1) failure to execute findings of fact and conclusions of law supporting its determination, 2) award of $52,400 as retroactive support, and 3) award of $8,000 as attorney’s fees. We affirm the judgment of the trial court.

Background

The dispute before us involves the attempt by Rolisa Carol Utzman to establish that Sanders was the father of her child Brittany and obtain retroactive child support. Brittany was born on November 30, 1984, and Rolisa and Sanders continued to have a relationship through 1991. Throughout this time and continuing through the date of trial, Sanders was married to another person.

After an evidentiary hearing, the trial court found that the amount of net resources available to Sanders beginning January, 1991, and continuing through May of 2003, was in excess of $4,000 per month. It also concluded that Sanders’ retroactive child support was $400 per month for the same period and that he owed Utzman a total of $52,400.

Issue One — Findings of Fact

Sanders’ first issue involves the trial court’s failure to timely execute findings of fact and conclusions of law. The record discloses that he did ask the trial court to execute findings of fact and conclusions of law per Texas Rule of Civil Procedure 296. And, though the trial court did not comply with the request within the time parameters established by the applicable rules of procedure, it nevertheless executed a set on March 22, 2004. Those findings have also been made part of the appellate record. Furthermore, Sanders has not contended that they are deficient; nor has he asked for an opportunity to re-brief the issues in view of the findings and conclusions.

It is clear that we may remedy the trial court’s failure to execute findings and conclusions by abating the appeal, remanding the cause, and directing the trial court to issue same. Lubbock County Cent. Appraisal District v. Contrarez, 102 S.W.3d 424, 426 (Tex.App.-Amarillo 2003, no pet.). Since the trial court effectuated that remedy sua sponte, we cannot but hold that Sanders’ complaint has become moot. Thus, we overrule the first issue.

Issue Two — Retroactive Child Support

Through his second issue, Sanders contends that the trial court abused its discretion in ordering him to pay $52,400 as retroactive support. This is allegedly so because the award lacks evidentiary support and the trial court failed to reduce the sum by the support he had already paid. Moreover, the award supposedly lacks evidentiary support because the evidence fails to illustrate that his net resources exceeded $4000 per month as found by the trial court. We overrule the issue.

We review the decision of the trial court under the standard of abused discretion. See In re Tucker, 96 S.W.3d 662, 668 (Tex.App.-Texarkana 2003, no pet.) (stating that the courts of appeal review an award of retroactive child support for an abuse of discretion); Garza v. Blanton, 55 S.W.3d 708, 710 (Tex.App.Corpus Christi 2001, no pet.) (stating that whether to award retroactive support and the amount awarded lies within the discretion of the trial court). Furthermore, whether it properly exercised its discretion depends upon not only whether it acted with reference to guiding rules and principles, In re Hamer, 906 S.W.2d 263, 265 (Tex.App.-Amarillo 1995, no writ), but also whether the decision enjoys evidentiary support. See id. at 265 n. 1 (holding that while the existence of evidence supporting the trial court’s decision is not an independent ground of attack, it is nonetheless an indicia to consider when determining if the trial court abused its discretion). Moreover, we are obligated to view the evidence in the light most favorable to the trial court’s decision and indulge in every presumption favoring the judgment. In re Tucker, 96 S.W.3d at 664-65.

Next, should the trial court decide to award retroactive support, it is then free to turn to the child support guidelines found in Chapter 154 of the Family Code to help in ascertaining the amount of the award. See Tex. Fam.Code Ann. § 154.131(a) (Vernon 2002) (stating that the “child support guidelines are intended to guide the court in determining the amount of retroactive child support, if any, to be ordered”). And, while compliance with those guidelines is not mandatory, In re Valadez, 980 S.W.2d 910, 913 (Tex.App.-Corpus Christi 1998, pet. denied), it must nonetheless “consider” the “net resources” of the father during the relevant time period and whether 1) the mother of the child had made any previous attempts to notify the father of his paternity, 2) the father had knowledge of his paternity, 3) the order of retroactive child support will impose an undue financial hardship on the father or his family, and 4) the father provided actual support or other necessaries before the filing of the action. Tex. Fam.Code Ann. § 154.131(b) (Vernon 2002). Finally, the term “net resources” means all the income received by the obli-gor, id. § 154.062(b), but not his losses. In re Marriage of Grossnickle, 115 S.W.3d 238, 248 (Tex.App.-Texarkana 2003, no pet.); Fanning v. Fanning, 828 S.W.2d 135, 150 (Tex.App.-Waco 1992), rev’d on other grounds, 847 S.W.2d 225 (Tex.1993) (involving the similarly worded predecessor to § 154.062(b) of the Family Code).

The evidence of record contains both the joint tax returns filed by Sanders and his wife during the years 1991 through 2001 and a summary of those returns. They illustrate that the couple had income totaling $1,261,748 for the ten-year period. Moreover, dividing the sum by ten results in an average annual income approximating $126,175. See Norris v. Norris, 56 S.W.3d 333, 341-42 (Tex.App.-El Paso 2001, no writ) (holding that the trial court did not abuse its discretion in determining monthly resources by averaging the obli-gor’s income over a period of time). And, while Sanders testified that most of the income was earned by his wife or from her separate property, the trial court was free to disbelieve him. So, it could well have decided to attribute the entire amount to him.

Next, given an average annual income of $126,175, and in view of the guidelines appearing in § 154.061 of the Family Code (which guidelines are used in calculating net monthly income), one could reasonably conclude from the record before us (and assuming that the trial court discredited his testimony about who generated the income) that Sanders net monthly income was around $7170 for that ten-year period. Finally, the latter sum does exceed $4000 per month, as found by the trial court. So, we reject Sanders’ argument that there “is insufficient evidence of Appellant’s resources to support the judgment. .. .”

We next address Sander’s attack upon the finding wherein the trial court determined that “the percentage applied to the first $6,000.00 of ... Sanders’ net resources for child support by the actual order rendered is 16 percent.” This argument is premised upon the allegation that the trial court found Sanders’ net resources “to be $4,000.00 not $6,000.00.” However, the pertinent finding actually states that his net resources were “in excess of $4,000.00 per month,” not simply $4000. Furthermore, the calculations made earlier in this opinion could have supported a finding that his income approximated $7000 per month. Additionally, 16 percent of $7000 and $6000 is $1120 or $960, respectively, and both sums are far more than the $400 monthly support obligation that the court applied retroactively. So, in essence, we cannot see how he was or is harmed by the finding, assuming it is inaccurate.

Sanders also posits that the trial court needed to enter findings required by the Family Code. The findings in question involved some explanation justifying the trial court’s decision to simply not set the support obligation at 20 percent of Sanders’ net resources. Yet, this ai’gument is premised upon the acceptance of Sanders’ testimony that his net resources were actually far less than $4000 per month. As stated before, the trial court was entitled to disbelieve him and conclude that his resources were actually greater than that amount.

We next consider the suggestion that the trial court erred in failing to give Sanders credit for the child support he paid between 1991 and 2001. This argument is founded upon that portion of the Family Code requiring the trial court to consider whether the obligor provided actual support or other necessaries to the child before suit was initiated. Tex. Fam. Code Ann. § 154.131(b)(4) (Vernon 2002). And, we reject it for several reasons.

First, § 154.131(b)(4) does not expressly require the trial court to credit an obligor with past support payments. It simply states that the trial court “shall consider” whether the obligor provides support or necessaries in ordering retroactive support. Tex. Fam.Code Ann. § 154.131(b)(4) (Vernon 2002). Moreover, the plain meaning of the word “consider” encompasses the act of thinking about or contemplating something. Merriam-Webster’s Collegiate Dictionary 265-66 (11th ed.2003). And, requiring one to think or contemplate about a particular act is a far cry from ordering that the particular act be done. Furthermore, inherent in the term is the concept of discretion; that is, while the person told to think about doing something may have to think about it, the directive leaves the decision whether to do the thing up to him. And, given this interpretation, we cannot say that the trial court failed to consider Sanders’ prior efforts at support. For instance, the trial court could have considered whether the houses and car given Rolisa by Sanders were actually intended to be child support. In so contemplating the matter, it could have recalled the evidence illustrating that Sanders was living with Rolisa at the time while still married to his wife. And, had it so recalled that evidence, it could have also concluded that maybe the house and car were actually provided to facilitate the extramarital relationship, and not to help out his daughter.

Additionally, our analysis of the record (as discussed above) uncovered evidence that would have supported a finding that Sanders actually had monthly net resources exceeding $6000, not just $4000. And, to the extent that the trial court was authorized to presumptively order an obli-gor to pay 20% of his net resources as child support (as previously argued by Sanders), it could have found Sanders’ retroactive obligation to be $1200 per month, as opposed to simply $400. Indeed, if it only found that Sanders’ resources were $4000 per month, the trial court could have ordered him to pay $800 per month in retroactive support. Yet, it merely ordered him to pay $400. Given this, we cannot say that the trial court failed to “consider” Sanders’ prior attempts at support in determining the amount of retroactive support to award.

Attorney’s Fees

In his next and last issue, Sanders alleges that the trial court erred in awarding counsel for Brittany’s mother attorney’s fees of $8000. This was purportedly error because the recipient of the fees did not segregate the amount incurred in prosecuting the action to establish parentage from that related to obtaining retroactive support. Moreover, such segregation purportedly was required because Sanders admitted to paternity immediately after he was sued. We overrule the issue.

Statute provides for the recovery of attorney’s fees incurred in establishing parentage. Tex. Fam.Code Ann. § 160.636(c) (Vernon 2002). Furthermore, attorney’s fees may be awarded in any suit arising under Title 5 of the Texas Family Code. Tex. Fam.Code Ann. § 106.002(a) (Vernon Supp.2004-05). Proceedings to recover retroactive child support fall under Title 5. See e.g. Tex. Fam.Code Ann. § 154.009(a) (Vernon 2002) (a provision allowing the court to order a parent to pay retroactive child support and falling under chapter 154 of Title 5 of the Family Code). Thus, attorney’s fees may be awarded in a suit to recover retroactive support. So, because fees are recoverable in both a suit to establish parentage and to obtain retroactive fees and those were the two claims Brittany’s mother pursued, neither she nor her attorney were obligated to segregate the fees as alleged by Sanders.

Having overruled all issues, we affirm the judgment of the trial court.

      . Indeed, the trial court expressly questioned the credibility of Sanders' testimony at trial. This may be due to the evidence that even though his estranged wife supposedly owned the assets generating the income he, nonetheless, exercised extensive control over them and had income generated by them sent to his own address.

      . While authority holds that a trial court cannot arbitrarily allot a percentage of community income to one spouse or another, see e.g., Powell v. Swanson, 893 S.W.2d 161, 163-64 (Tex.App.-Houston [1st Dist.] 1995, no writ), we again note that the trial court had before it evidence indicating that Sanders, as opposed to his wife, operated the businesses which generated the income and had much of that income sent to his own mailing address. Furthermore, he had sufficient monies to allegedly buy homes for his child’s mother, renovate those homes, buy $70,000 worth of ostriches, buy and give cars to the mother of his child, and buy a quarter of a million dollars worth of cars while supposedly having little income of his own. This provides some evidence upon which the trial court could have reasonably allotted the income appearing on the tax returns to Sanders.

      .In so holding we again note that business losses (other than those suffered by a self-employed individual) are excluded when determining an obligor’s net resources. In re

        Marriage of Grossnickle, 115 S.W.3d 238, 248 (Tex.App.-Texarkana 2003, no pet.); Fanning v. Fanning, 828 S.W.2d 135, 150 (Tex.App.Waco 1992) rev’d in part on other grounds, 847 S.W.2d 225 (Tex.1993). So, while the tax returns indicated that Sanders had little income for tax purposes due to losses he suffered, that does not mean that he had little income for purposes of determining his child support obligation. See Powell v. Swanson, 893 S.W.2d 161, 163 (Tex.App.-Houston [1st Dist.] 1995, no writ) (noting the difference between calculating resources for income tax purposes and calculating them for purposes of child support). And, to the extent he posits that various of the losses were actually losses experienced while self-employed, the trial court could have rejected the proposition that he was self-employed. Sanders did admit to being the vice-president of Cottonwood Cove Investment Corporation, a corporation through which he conducted many business transactions. Furthermore, while he also suggests that his auto and real estate businesses were his own, he fails to cite us to evidence illustrating that they were sole pro-prietorships as opposed to corporations. And, if they were the latter, then he cannot be considered self-employed when operating them, given the separate identity of a corporate entity.

      . Twenty percent of $6000 is $1200.


author: /s/ Joseph E. Lambert CHIEF JUSTICE

text:
    KENTUCKY BAR ASSOCIATION, Movant, v. Patrick H. NOBLE, Respondent.
    No. 2004-SC-0317-KB.
    Supreme Court of Kentucky.
    June 17, 2004.
    Reconsider Denied Oct. 21, 2004.
    Bruce K. Davis, Executive Director, Kentucky Bar Association, Linda Gosnell, Chief Bar Counsel, Kentucky Bar Association, Frankfort, Counsel for Movant.
    Patrick Herman Noble, Henderson, Counsel for Respondent.
   OPINION AND ORDER

The respondent, Patrick H. Noble, whose bar roster address is 223 First Street, Post Office Box 617, Henderson, Kentucky, 42419, was admitted to the practice of law in this Commonwealth on October 16, 1998. The present action arises from a disciplinary proceeding regarding Noble’s representation of a client in a bankruptcy matter. In October of last year, this Court ordered that Noble be publicly reprimanded for professional misconduct stemming from two separate bar complaints concerning his representation of other clients in similar matters. See Kentucky Bar Ass’n v. Noble, Ky., 118 S.W.3d 586 (2003).

On June 13, 2003, Larry Heltsley retained Noble to file a bankruptcy petition, for which he paid Noble $400.00. Mr. Heltsley contacted Noble on several occasions by both telephone and electronic mail inquiring about the status of his case. Mr. Heltsley further reminded Noble about his case when he saw Noble at the local courthouse. However, Noble never filed a bankruptcy petition on his client’s behalf and otherwise failed to sufficiently communicate with his client. Mr. Heltsley subsequently informed Noble that he no longer desired Noble’s legal representation and requested that Noble return his case file and refund the $400.00 fee. Noble, however, neither returned the file nor refunded the fee.

On September 8, 2003, the Inquiry Commission of the Kentucky Bar Association issued a five-count charge against Noble alleging the following: (1) violation of SCR 3.130-1.3 for failing to diligently proceed with the chent’s bankruptcy matter; (2) violation of SCR 3.130-1.4(a) for failing to adequately communicate with the client; (3) violation of SCR 3.130-1.15(b) for failing to promptly refund the client his fee; (4) violation of SCR 3.130-1.16(d) for failing to advise the client that he would not be proceeding with the representation, for abandoning the client, and for failing to refund the unearned fee; and (5) violation of SCR 3.130 — 8.1(b) for failing to respond to the bar complaint. Because Noble failed to respond to the charge, the matter was submitted to the Board of Governors as a default proceeding.

On April 14, 2004, by a unanimous vote, the Board found Noble guilty of all the counts delineated in the charge issued by the Inquiry Commission. The Board now recommends this Court find likewise and recommends that a 181-day suspension from the practice of law be imposed against Noble. As the respondent has failed to file a notice for review pursuant to SCR 3.370(8), we hereby adopt the Board’s recommendation.

It is therefore ORDERED that:

1. The respondent, Patrick H. Noble, be, and hereby is, suspended from the practice of law in this Commonwealth for a term of 181 days and shall continue thereafter until the respondent is reinstated to the practice of law by order of this Court pursuant to SCR 3.510.

2. Noble shall return his client’s case file and refund the $400.00 fee to his client, Mr. Heltsley.

3. Pursuant to SCR 3.390, Noble shall notify all of his clients and all courts in which he has matters pending of his inability to practice law within ten days from the date of entry of this Opinion and Order, and, furthermore, shall deliver copies of all such letters of notice to the Director of the Kentucky Bar Association. Additionally, Noble shall immediately, to the extent reasonably possible, cancel and cease any advertising activities in which he is engaged.

4.Pursuant to SCR 3.450, Noble is directed to pay all costs associated with this action, said sum being $129.18, for which execution may issue from this Court upon finality of this Opinion and Order.

All concur.

ENTERED: June 17, 2004.

/s/ Joseph E. Lambert CHIEF JUSTICE