author: JOHN S. ANDERSON, Justice.

text:
    Edward F. GROUP, III, D.C., Appellant v. Mark VICENTO, Appellee.
    No. 14-04-00908-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    May 10, 2005.

      Michele Quattlebaum and Tammy Sa-vidge-Moore, Houston, for appellants.
    R. Gary Stephens and Maggie D. Conner, Houston, for appellees.
    Panel consists of Justices ANDERSON, HUDSON, and FROST.
   OPINION

JOHN S. ANDERSON, Justice.

In this medical malpractice case, appellant appeals the trial court’s denial of his motion to dismiss challenging the sufficiency of the appellee’s expert report. In a single issue, appellant argues the trial court erred in denying his motion to dismiss as a matter of law because the appel-lee’s expert is not qualified to render an opinion regarding the chiropractic standard of care under Chapter 74 of the Texas Civil Practice and Remedies Code. We affirm.

Factual and PROCEDURAL Background Appellee Mark Vicento, a police officer, was injured in an automobile accident in September 2001. Vicento immediately sought treatment for his injuries at a chiropractic clinic. Appellant Edward F. Group, III, D.C., a chiropractor, treated Vicento’s injuries. In November 2001, Group referred Vicento for an MRI (magnetic resonance imaging) of the lumbar spine. Group continued to treat Vicento over the next year. In 2003, Vicento underwent back surgery.

Vicento contends Group should have referred him to an expert spine surgeon for specialized treatment upon reviewing his MRI results in November 2001, and Group’s failure to do so delayed Vicento’s eventual surgery for approximately one year, exacerbating his injuries. Vicento filed this medical malpractice lawsuit against Group in January 2004, alleging claims of medical negligence. Specifically, Vicento claims Group “was negligent in failing to comply with the standard of care by failing to timely and adequately (i) test, (ii) assess, (iii) diagnose, (iv) treat, and (v) refer [Vicento] to a specialist when his condition worsened and deteriorated.” Vi-cento asserts Group should have known his condition was such that he needed a specialist for treatment, and he contends Group’s negligent acts and omissions delayed his spine surgery for a period of approximately two years, thereby aggravating his condition.

Vicento timely filed the expert report of Rezik Saqer, M.D., pursuant to Texas Civil Practice and Remedies Code section 74.351. See Tex. Crv. Prac. & Rem.Code Ann. § 74.351 (Vernon 2005). In response, Group filed a motion to dismiss Vicento’s case on the ground that Dr. Saqer’s expert report did not comply with section 74.351 of the Texas Civil Practice and Remedies Code. Group alleged in his motion to dismiss that Dr. Saqer was not qualified to opine on the chiropractic standard of care and Dr. Saqer’s expert report was inadequate. Group requested the trial court to order Vicento to cure the deficiency within 30 days or dismiss Vicento’s cause of action. The trial court ordered Vicento to file a report complying with the statute within thirty days.

Vicento timely filed an amended expert report by Dr. Saqer. Group responded by filing a motion re-urging his prior motion to dismiss, arguing the amended expert report is deficient because (1) Dr. Saqer is not qualified to render an opinion on the chiropractic standard of care because he does not fit the statutory definition of “practicing health care” and is not qualified “on the basis of training and experience” as these terms are defined by section 74.402 of the Texas Civil Practice and Remedies Code, (2) Dr. Saqer’s report does not state how Group deviated from the chiropractic standard of care, and (3) Dr. Saqer’s report fails to comply with section 74.403 in failing to state how Group’s actions caused any injury to Vi-cento.

The trial court denied Group’s second motion to dismiss. Group filed this interlocutory appeal from the trial court’s order.

Discussion

A. Standard of Review

We review a trial court’s decision on a motion to dismiss a case under Texas Civil Practice and Remedies Code section 74.351 for an abuse of discretion. See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex.2001) (holding trial court’s decision to dismiss a case under former article 4590i, section 13.01(e) (predecessor to Texas Civil Practice and Remedies Code section 74.351) is reviewed for an abuse of discretion).

B. Expert Reports and Texas Civil Practice and Remedies Code Section 74.351

In 2003, the Texas Legislature enacted significant changes in the expert report requirement for medical malpractice cases. See Tex. Civ. Prac. & Rem.Code Ann. §§ 74.001-507 (Vernon 2005) (effective September 1, 2003, formerly article 4590i of the Texas Revised Civil Statutes, the Medical Liability and Insurance Improvement Act). Section 74.351 of the Texas Civil Practice and Remedies Code requires a plaintiff who files a “health care liability claim” to file an expert report within 120 days of filing its claim:

(a) In a health care liability claim, a claimant shall, not later than the 120th day after the date the claim was filed, serve on each party or the party’s attorney one or more expert reports, with a curriculum vitae of each expert listed in the report for each physician or health care provider against whom a liability claim is asserted. The date for serving the report may be extended by written agreement of the affected parties. Each defendant physician or health care provider whose conduct is implicated in a report must file and serve any objection to the sufficiency of the report not later than the 21st day after the date it was served, failing which all objections are waived.

Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a). A “health care liability claim” is defined as “a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care, which proximately results in injury to or death of a claimant, whether the claimant’s claim or cause of action sounds in tort or contract.” Tex. Crv. PRAC. & RemlCode Ann. § 74.001(13) (Vernon 2005) (emphasis added). Chiropractors fall under the definition of a “health care provider.” Tex. Crv. PRAC. & Rem.Code Ann. § 74.001(12)(A)(v).

Under section 74.351(/,), “[a] court shall grant a motion challenging the adequacy of an expert report only it if appears to the court, after hearing, that the report does not represent an objective good faith effort to comply with the definition of an expert report....” Tex. Civ. Prac. & Rem.Code Ann. § 74.351(i)- An “expert report” is defined as:

[A] written report by an expert that provides a fat summary of the expert’s opinions as of the date of the report regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed.

Tex. Civ. PRAC. & Rem.Code Ann. § 74.351(r)(6).

C. Qualifications of an Expert Witness in a Suit Against a Health Care Provider and Texas Civil Practice and Remedies Code Section 74.402

An expert providing opinion testimony about how a “health care provider,” such as chiropractor Group, departed from accepted standards of health care must be qualified to testify under the requirements of section 74.402. See Tex. Civ. PRAC. & Rem.Code Ann. § 74.351(r)(5)(B). Section 74.402(b) lists three specific qualifications an expert witness must possess in order to provide opinion testimony on how a health care provider departed from accepted standards of health care:

(b) In a suit involving a health care liability claim against a health care provider, a person may qualify as an expert witness on the issue of whether the health care provider departed from accepted standards of care only if the person:
(1) is practicing health care in a field of practice that involves the same type of care or treatment as that delivered by the defendant health care provider, if the defendant health care provider is an individual, at the time the testimony is given or was practicing that type of health care at the time the claim arose;
(2) has knowledge of accepted standards of care for health care providers for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim; and
(3)is qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of health care.

Tex. Civ. Piiac. & Rem.Code Ann. § 74.402(b) (Vernon 2005) (emphasis added). The above emphasized terms are specifically defined in subsections (a) and (c) of section 74.402. “Practicing health care” is defined as including:

(1) training health care providers in the same field as the defendant health care provider at an accredited educational institution; or
(2) serving as a consulting health care provider and being licensed, certified, or registered in the same field as the defendant health care provider.

Tex. Crv. Prac. & Rem.Code Ann. § 74.402(a)(1), (2) (emphasis added). To determine whether an expert “is qualified on the basis of training or experience” under subsection (b)(3), a court is to consider whether the expert:

(1) is certified by a licensing agency of one or more states of the United States or a national professional certifying agency, or has other substantial training or experience, in the area of health care relevant to the claim; and
(2) is actively practicing health care in rendering health care services relevant to the claim.

Tex. Civ. Prac, & Rem.Code Ann. § 74.402(c)(1), (2) (emphasis added).

Section 74.402(d) provides a court “shall apply” the criteria specified in section 74.402(a)-(c) in determining whether an expert is qualified to offer expert testimony on the issue of whether a defendant health care provider departed from accepted standards of health care. Tex. Civ. Prac. & Rem.Code Ann. § 74.402(d). A court may depart from the criteria if, under the circumstances, there is good reason to admit the expert’s testimony, but if the court departs from the criteria, the court shall state on the record the reason for admitting the testimony. Id. Here, the trial court’s order denying Group’s motion to dismiss does not state the court departed from section 74.402’s criteria.

In contrast to an expert who provides opinion testimony about how a health care provider departed from accepted standards of health care, an expert who provides opinion testimony about the causal relationship between the injury, harm, or damages claimed and the alleged departure from the applicable standard of care in a health care liability claim must be a physician who is otherwise qualified to render opinions on such a causal relationship under the Texas Rules of Evidence. See Tex. Civ. Peac. & Rem.Code Ann. §§ 74.351(r)(5)(C), 74.403(a) (Vernon 2005).

This is a case of first impression under newly enacted section 74.402.

D. Group’s Motion to Dismiss

Group argues the trial court erred in denying his motion to dismiss because Dr. Saqer is not qualified to render an expert opinion regarding the chiropractic standard of care. Group’s challenges to Dr. Saqer’s qualifications focus on section 74.402, subsections (a), (b)(1), (3) and (c)(2). First, Group asserts Dr. Saqer is not statutorily qualified to render an opinion regarding the chiropractic standard of care or a breach thereof because he is not “practicing health care” as defined by section 74.402(a). Group contends section 74.402(a) requires Dr. Saqer to be (1) practicing health care in a field of practice involving the same type of care or treatment as Group, the field of chiropractic, (2) licensed as a chiropractor, or (3) teaching chiropractic at an accredited chiropractic school. Second, Group argues Dr. Saqer is not qualified “on the basis of training or experience” under section 73.402(b)(3) because he is not a chiropractor and is not actively “practicing health care” in the field of chiropractic.

In response, Vicento asserts the trial court’s denial of Group’s motion to dismiss was proper because Dr. Saqer’s expert report demonstrates he has the requisite knowledge, skill, experience, training, and education regarding the treatment of patients with conditions similar to Vicento’s to qualify him as an expert as to the standard of care and causation in this case. Vicento contends Dr. Saqer’s report establishes he practices health care in a field that involves the same type of care and treatment as that delivered by Group, and he has expertise in the particular areas involved in this case. Vicento further asserts section 74.402 does not require an expert in a suit against a chiropractor to be a chiropractor in order to be qualified to opine on the standard of care.

1. Rules of Statutory Construction

Statutory construction is a question of law, and we review a trial court’s interpretation of a statute under a de novo standard of review. Tex. Dep’t of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex.2002). When interpreting statutes, our primary objective is to ascertain and give effect to legislative intent. Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865 (Tex.1999); see Tex. Gov't Code Ann. § 311.023 (Vernon 2005). We look first to the plain and common meaning of the language of the statute. Fitzgerald, 996 S.W.2d at 865; see Tex. Gov’t Code Ann. § 311.011 (Vernon 2005). We must read the statute as a whole and not just isolated portions. Tex. Dep’t. of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 642 (Tex.2004). If the meaning of the statutory language is unambiguous, we must interpret it according to its terms, giving meaning to the language consistent with other provisions in the statute. Id. We read every word as if it were deliberately chosen and presume that omitted words were excluded purposefully. See Cornyn v. Universe Life Ins. Co., 988 S.W.2d 376, 378-79 (Tex.App.-Austin 1999, pet. denied). We also consider the objective the law seeks to obtain and the consequences of a particular construction. Sunset Valley, 146 S.W.3d at 642.

We apply the above principles in construing section 74.402, and we examine Dr. Saqer’s qualifications in light of section 74.402’s requirements.

2. Section 74.402(a) and (b)(1): “Practicing Health Care”

First, under section 74.402(b)(1), to qualify as an expert witness on the issue of whether Group departed from accepted standards of care, Dr. Saqer must be “practicing health care in a field of practice that involves the same type of care or treatment as that delivered by the defendant health care provider, if the defendant health care provider is an individual, at the time the testimony is given or was practicing that type of health care at the time the claim arose.” Tex. Crv. PRác. & Rem.Code Ann. § 74.402(b)(1).

Group argues the term “practicing health care” as defined by subsection (a) requires a qualified expert in a chiropractic malpractice case to either be a chiropractor, train chiropractors at an accredited educational institution, or serve as a consulting health care provider to chiropractors and be licensed, certified, or registered as a chiropractor. See Tex. Civ. Prac. & Rem.Code Ann. § 74.402(a)(1), (2) (“For purposes of [section 74.402], ‘practicing health care’ includes: (1) training health care providers in the same field as the defendant health care provider at an accredited educational institution; or (2) serving as a consulting health care provider and being licensed, certified, or registered in the same field as the defendant health care provider.”) (emphasis added). Group contends Dr. Saqer does not meet the statutory definition of “practicing health care.” In response, Vicento argues Dr. Saqer’s report demonstrates he has adequate knowledge, skill, experience, training, and education regarding his treatment of patients with conditions similar to Vicento’s to qualify him as an expert under subsection (b)(1).

Group’s asserted construction of section 74.402, subsections (a)(l)-(2) and (b)(1), improperly limits and confines the definition of the term “practicing health care.” Subsection (a) uses the term “includes” in defining “practicing health care.” Although Chapter 74 does not define the term “includes,” the Code Construction Act defines “includes” as a term “of enlargement and not of limitation or exclusive enumeration, and use of [includes] does not create a presumption that components not expressed are excluded.” Tex. Gov’t Code Ann. § 311.005(13) (Vernon 2005); see Jackson Law Office, P.C. v. Chappell, 37 S.W.3d 15, 25-26 (Tex.App.Tyler 2000, pet. denied). Thus, section 74.402(a)’s two definitions of “practicing health care” are not exclusive.

In addition, under the literal language of section 74.402(b)(1), an expert is only required to be “practicing health care in a field, of practice that involves the same type of care or treatment as that delivered by the defendant health care provider.” See Tex. Civ. PRac. & Rem.Code Ann. § 74.402(b)(1) (emphasis added). Subsection (b)(1) does not require an expert to be practicing health care in the same field as the defendant health care provider, here, the field of chiropractic. Instead, under subsection (b)(1), the expert only must practice health care in a field of practice involving the same type of care or treatment,

Reading section 74.402 subsections (a) and (b)(1) together, subsection (a) expands upon the definition of “practicing health care” to include qualified teachers and consulting health care providers who may not otherwise be qualified under subsection (b)(1) because they are not practicing health care and instead teach or consult. Group’s proffered construction of subsection (a) and (b)(1) results in a person being qualified as an expert only if the person trains health care providers in the same field as the defendant health care provider or if the person serves as a consulting health care provider and is licensed, certified, or registered in the same field as the defendant health care provider. According to Group, if a person practices health care in a field of practice that involves the same type of care or treatment as that delivered by the defendant health care provider, but the person is not certified in the same field of practice as the defendant health care provider, is not a teacher, or is not a qualified consultant, the person is unqualified.

Group’s asserted construction of section 74.402(a) is unnecessarily restrictive and is contrary to the plain and common meaning of the language of the statute. Having considered the language of section 74.402 in its entirety, we disagree with Group that the two definitions of “practicing health care” under section 74.402(a) are exclusive.

3. Dr. Saqer’s Qualifications and Section 74.402

a. Section 74.402(b)(1)

We now analyze whether Dr. Saqer satisfies the requirements of section 74.402(b)(1). Dr. Saqer’s expert report and curriculum vitae reveal he is a licensed medical doctor, an anesthesiologist, who specializes in anesthesia and pain management. He has been practicing anesthesia and pain management in the Houston area for the past seven years. Dr. Saqer is the owner and president of Houston Preferred Anesthesia, a group of anesthesiologists that provide anesthesia services to different hospitals and outpatient surgery centers. He is board eligible by the American Board of Anesthesiologists and a Board Diplomat by the American Academy of Pain Management. He also is the founder and manager of Texas Pain Solutions, which provides invasive and non-invasive pain services through different hospitals and multiple clinics in the Houston area.

Although Dr. Saqer does not train chiropractors at an accredited educational institution, does not serve as a consulting health care provider to chiropractors, and is not licensed, certified, or registered as a chiropractor, as discussed above, this is not determinative of Dr. Saqer’s qualifications under subsection (b)(1). Rather, the focus of our inquiry is whether Dr. Saqer practices health care in a field of practice that involves the same type of care or treatment as that delivered by Group. See Tex. Civ. PRac. & Rem.Code Ann. § 74.402(b)(1).

In his report, Dr. Saqer states the following with regard to his qualifications:

As a practicing medical doctor specializing in anesthesia and pain management, I know the accepted standard of care required of chiropractors practicing under the same or similar circumstances as was Chiropractor Edward F. Group during the past seven years. As a pain specialist, I treat patients with all types of pain, including be [sic] related to work, motor vehicle accident, arthritis, cancer pain, or post-surgical pain. I treat on average more than 100 patients every week, and more than 20% of them suffer from conditions similar to Mr. Vicento. I know the accepted standard of care required of chiropractors regarding the type of injury and treatment involved in this case, because my specialty overlaps and intertwines with chiropractic practice. Specifically, I engage in modalities of treatment, which include but are not limited to pain management modalities. These areas include but are not limited to the following:
1. Massage Therapy;
2. Oscillation of pain centers;
3. Relief of complications of muscle spasms;
4. Neurological pain causation;
5. Aceupuncture treatment;
6. Modern methods of physical therapy-
These are the same areas that chiropractors use to manipulate and treat patients. For example, massage therapy includes, but is not limited to: [i] increasing circulation to promote healing, [ii] relieving cramps and muscle spasm, [iii] pain relief of spinal injuries and headaches by decreasing muscle tension, [iv] manipulating limbs and the spine to relieve impingement of nerve roots and other complications from injuries, and [v] manipulation of the body to increase mobility due to the effects of degenerative disc disease and the aging process. These treatments are utilized by chiropractors and pain management physicians alike.
Additionally, chiropractors and pain management physicians use similar methods to evaluate patients and determine whether to refer them to a specialist for surgical consultation. For example, during massage therapy, I often become aware of other additional needs in connection with pain management. Some of the methodology indicates an absence of pain in certain manipulations of the human body which further delineates the nature and extent of the injury. By performing pain management methods, either by way of injection, manipulation, or massage, I am able to further isolate the cause of the injury and then concentrate on alleviation of the pain by non-surgically treating the area of the injury which is causing the pain in the arm and the hand or by referring for surgical intervention, if needed.
A chiropractor, though he cannot do or perform injections, utilizes similar methodology in making determinations as to the cause of pain. It is ... during that determination/diagnostic period that a chiropractor should become aware of the need to send that patient for further and additional medical care and treatment that is more sophisticated than he either legally or ethically can perform.
I am qualified to do and perform many of the same things that chiropractors are competent to do and perform, but my level of expertise, by reason of my training, experience and education, enables me to perform a magnitude of other procedures that chiropractors cannot use. As a pain management physician I work closely together with chiropractors; I have supervised chiropractors, evaluated patients of chiropractors, been assisted by chiropractors and taught chiropractors modern pain relief methodology. It is by reason of this overlapping area between chiropractic measures and pain management areas that I am qualified to testify regarding chiropractic procedures. Specifically, because determining when to refer a patient for neurosurgical consultation is common to both pain management and chiropractic, I am qualified to testify as to the standard of care for referral of a patient to a specialized spine surgeon.

We conclude, based on the foregoing, Dr. Saqer is “practicing health care” in a field of practice that involves the same type of care or treatment as chiropractor Group. Accordingly, Dr. Saqer satisfies section 74.402(b)(l)’s requirements.

b. Section 74.402(b)(2)

Under section 74.402(b)(2), Dr. Saqer must have “knowledge of accepted standards of care for health care providers for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim.” Tex. Civ. PRAC. & Rem.Code Ann. § 74.402(b)(2). On appeal, Group does not specifically argue Dr. Saqer does not satisfy subsection (b)(2). Dr. Saqer explains in his report he has knowledge of the accepted standards of care for chiropractors for the diagnosis, care, and treatment of the type of injury involved in this claim. Thus, Dr. Saqer satisfies section 74.402(b)(2).

c. Section 74.402(b)(3)

Finally, we examine whether Dr. Saqer satisfies the third requirement set forth in section 74.402(b)(3), that he be “qualified on the basis of training or experience to offer an expert opinion regarding ... accepted standards of health care.” See Tex. Civ. Pkac. & Rem.Code Ann. § 74.402(b)(3). To determine whether an expert is qualified “on the basis of training or experience,” subsection (c) of the statute instructs courts to consider whether the expert “(1) is certified by a licensing agency of one or more states of the United States or a national professional certifying agency, or has other substantial training or experience in the area of health care relevant to the claim; and (2) is actively practicing health care in rendering health care services relevant to the claim.” Tex. Civ. Peac. & Rem.Code Ann. § 74.402(c)(1)-(2) (emphasis added).

Dr. Saqer states in his report that he has experience in the area of chiropractic, his “specialty overlaps and intertwines with chiropractic practice,” and 20% of his patients suffer from injuries similar to Mr. Vicento’s. In addition, Dr. Saqer states he is a licensed physician practicing anesthesiology and pain management. Dr. Saqer satisfies subsection (c)(1).

With regard to subsection (c)(2), Group argues Dr. Saqer does not satisfy this subsection because he is not “practicing health care.” See Tex. Civ. PRAC. & Rem. Code Ann. § 74.402(c)(2). Subsection(c)(2) inquires whether the person “is actively practicing health care in rendering health care services relevant to the claim.” Id. As discussed above with regard to subsection (b)(1), Dr. Saqer’s expert report shows he is actively practicing health care services relevant to Vicento’s claim. Thus, he satisfies subsection (c)(2).

Having concluded Dr. Saqer satisfies both prongs of subsection (c), he, therefore, is qualified on the basis of training or experience under subsection (b)(3) to offer an expert opinion regarding accepted chiropractic standards of care.

CONCLUSION

Dr. Saqer satisfies the requirements of section 74.402(b)(l)-(3). Accordingly, we hold the trial court did not abuse its discretion in denying Group’s motion to dismiss Vicento’s expert report and overrule appellant’s sole issue.

We affirm the trial court’s order denying appellant’s motion to dismiss.

      . The MRI report showed herniated lumbar discs with significant spine and foramen sten-osis at four different lumbar spine levels.

      . Texas Civil Practice and Remedies Code section 51.014 permits an interlocutory appeal to be filed from an order of a district court that denies all or part of the relief sought by a motion under section 74.351(b) of the Texas Civil Practice and Remedies Code. Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(9) (Vernon Supp.2005). Group’s motion to dismiss sought relief under section 73.351(b) and alleged Vicento's expert report was deficient. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(b). Section 74.351(b) permits a trial court to award a defendant health care provider reasonable attorney’s fees and costs and to dismiss a plaintiff’s claims if an expert report is not timely served. See id. An expert report “has not been served” for purposes of section 74.351(b) if elements of the report are found deficient. Tex. Civ. Prac. & Rem.Code Ann. § 74.351(c).

      . In his motion to dismiss, Group also complained Dr. Saqer’s report does not state how Group deviated from the chiropractic standard of care, and Group challenged Dr. Saqer’s qualifications to render an expert opinion on causation, under section 74.403, arguing Dr. Saqer’s testimony was not based on a reasonable medical probability. On appeal, Group has abandoned these two grounds for dismissal.

      . In Nicodeme v. Bailey, 243 S.W.2d 397, 399-402 (Tex.Civ.App.-El Paso 1951, writ ref'd n.r.e.), two physicians testified on behalf of a patient in a medical malpractice suit the patient filed against a chiropractor. The court held the patient's evidence failed to establish the chiropractor’s negligence was a proximate cause of the plaintiff's injuries. Nicodeme does not address the specific issue of the doctors’ qualifications to render an opinion against the defendant chiropractor, but the court does acknowledge the chiropractor’s conduct should be judged against the chiropractic system of healing. Nicodeme, 243 S.W.2d at 401 ("The lawful activity of a chiropractor is confined to the treatment of the spine in a certain manner. In substance, the treatment is limited to the adjustment of the joints or vertebrae of the spine.”). Other cases cited by Vicento in his brief involve medical malpractice claims brought against physicians analyzing whether expert physicians who do not specialize in the same area as a defendant physician are qualified to render an expert opinion. See, e.g., Roberts v. Williamson, 111 S.W.3d 113 (Tex.2003); Bro-ders v. Heise, 924 S.W.2d 148 (Tex. 1996); Sil-vas v. Ghiatas, 954 S.W.2d 50 (Tex.App.-San Antonio 1997, pet. denied). These cases do not apply newly enacted section 74.402, but they are nevertheless instructive and provide guidance on the issue presented.

      . A conference committee report on House Bill 4 conducts a side-by-side comparison of the Texas House of Representatives' version of the bill with the Senate's version. Conference Comm. Report, Tex. H.B. 4, 78th Leg., R.S. (2003). The report shows the House’s version of section 74.402(b)(1) stated a person may qualify as an expert under that subsection if the person "(1) is practicing health care in the same field, of practice as the defendant health care provider ...." In contrast, the Senate's version of subsection (b)(1) stated a person may qualify as an expert if the person "(1) is practicing health care in a field of practice that involves the same type of care or treatment as that delivered by the defendant health care provider, if the defendant health care provider is an individual The Conference Committee on House Bill 4 adopted the Senate’s version, which does not require a qualified expert to practice in the same field as the defendant health care provider, and this version was enacted into law. See id. The difference in the wording between the House and Senate versions may be due to concerns expressed by individuals who testified at public hearings conducted by the Senate State Affairs Committee on House Bill 4 regarding potential problems with the "in the same field” language. Hearings on Tex. H.B. 4 Before the Senate State Affairs Committee, 78th Leg., R.S. 17-18 (April 15, 2003) (transcript available from Senate Staff Services Office).

      . Under the Occupations Code, ''[a] person practices chiropractic” ... if the person:
      (1) uses objective or subjective means to analyze, examine, or evaluate the biomechanical condition of the spine and musculoskel-etal system of the human body;
      (2) performs nonsurgical, nonincisive procedures, including adjustment and manipulation, to improve the subluxation complex or the biomechanics of the musculoskeletal system;
      (3) represents to the public that the person is a chiropractor; or
      (4)uses the term "chiropractor,” "chiropractic,” "doctor of chiropractic,” "D.C.,” or any derivative of those terms or initials in connection with the person’s name.
      Tex. Occ.Code Ann. § 201.002(b) (Vernon 2004). The statute further provides the practice of chiropractic does not include incisive or surgical procedures, the prescription of controlled substances, dangerous drugs, or any other drug that requires a prescription, or the use of x-ray therapy or therapy that exposes the body to radioactive materials. Tex. Occ.Code Ann. § 201.002(c).


source: Caselaw Access Project

author: CHARLES W. SEYMORE, Justice. KEM THOMPSON FROST, Justice,

license: Public Domain

text:
    John Brucewayne OVEAL, Appellant v. The STATE of Texas, Appellee.
    No. 14-02-01089-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    May 10, 2005.

      Danny K. Easterling, Houston, for appellants.
    Alan Curry, Houston, for appellees.
    Panel consists of Justices EDELMAN, FROST, and SEYMORE.
   PLURALITY OPINION

CHARLES W. SEYMORE, Justice.

The substitute opinion of March 10, 2005, is withdrawn and the court issues this substitute plurality opinion and concurring opinion.

A jury convicted appellant, John Bruce-wayne Oveal, of burglary of a habitation with intent to commit aggravated assault. In four issues, appellant contends the trial court erred by (1) admitting absent complainant’s “excited utterances” to her aunt and the investigating officer, (2) excluding absent complainant’s handwritten document claiming someone other than appellant assaulted her, and (3) excluding the notes of an assistant district attorney. We affirm.

I. Factual BACKGROUND

Complainant, Tiffany Landers, resides outside of Texas and did not testify at trial. Therefore, the pertinent facts of this case were admitted into evidence through testimony of Landers’s aunt, Theresa Griffin; Landers’s cousin, Anikka Gray; and Houston Police Officer Charles Webb. On the afternoon of May 22, 2002, Landers telephoned Griffin from the apartment where they both lived. During this conversation, Griffin heard loud banging noises, as though someone was beating down a door. She also heard objects being thrown around and appellant’s voice threatening Landers that he would harm her if he ever caught her with someone else.

Griffin’s daughter, Anikka, arrived at the apartment after school. She was unable to enter the apartment with her key because the deadbolt was locked. Anikka saw appellant climbing out of an open bedroom window, and then Landers unlocked the door to let her in. Appellant later returned and demanded that Landers meet him outside. Anikka saw appellant slap Landers’s face. Immediately thereafter, Anikka called Griffin and told her what had happened. Griffin instructed Annika to leave the apartment and go to her aunt’s home. Anikka obliged.

Officer Webb and Griffin both spoke to Landers after the assault. At trial, they recounted Landers’s description of the incident. Appellant entered the apartment through the bedroom window, and Lan-ders ran and hid in a closet. Appellant kicked down a bedroom door, and when he found Landers, he grabbed her by her hair, pulled her out of the closet, and started beating and kicking her. He pulled a mattress on top of her and jumped on it repeatedly. He then pulled her into the bathroom where he beat her, used a pair of scissors to cut her hair out, and threw her into the wall. After dragging her into the living room, he retrieved a knife from the kitchen. He threatened to kill her, and then jammed the knife into the wall. He also pushed the clothes dryer down, threw clothes and a radio onto the floor, and hit her on the head several times with a broom handle. The jury found appellant guilty of burglary of a habitation with intent to commit aggravated assault and sentenced him to twelve years’ confinement.

II. Excited Utterances

In his first and second issues, appellant contends that the trial court erred in allowing Griffin and Officer Webb to testify over his hearsay objections regarding Landers’s statements about the mcident. The trial court admitted the testimony on the ground that Landers’s statements were excited utterances, a hearsay exception. See Tex.R. Evid. 808(2). Whether an out-of-court statement is admissible under an exception to the general hearsay exclusion rule is a matter within the trial court’s discretion. Zulicmi v. State, 97 S.W.3d 589, 595 (Tex.Crim. App.2003). Our role is limited to determining whether the record supports the trial court’s ruling. Coffin v. State, 885 S.W.2d 140, 149 (Tex.Crim.App.1994). Therefore, we must reverse only when “the trial judge’s decision was so clearly wrong as to lie outside that zone within which reasonable persons might disagree.” Zuliani, 97 S.W.3d at 595 (quoting Cantu v. State, 842 S.W.2d 667, 682 (Tex.Crim. App.1992)).

The excited utterance exception to the hearsay rule is founded on the belief that a statement made as a result of a startling event or condition is involuntary and does not allow the declarant an adequate opportunity to fabricate, thereby ensuring the trustworthiness of the statement. Couchman v. State, 3 S.W.3d 155, 159 (Tex.App.-Fort Worth 1999, pet ref'd). In other words, the statement is trustworthy because it represents an event speaking through the person rather than the person speaking about the event. Zuliani, 97 S.W.3d at 595. To determine whether a statement qualifies as an excited utterance, (1) the statement must be the product of a startling occurrence, (2) the de-clarant must have been dominated by the emotion, excitement, fear, or pain of the occurrence, and (3) the statement must be related to the circumstances of the startling occurrence. Sellers v. State, 588 S.W.2d 915, 918 (Tex.Crim.App. [Pan. Op.] 1979). Couchman, 3 S.W.3d at 159. Factors the court may consider to determine whether a statement qualifies as an excited utterance are the lapse of time between the event and declaration, and whether the statement is made in response to a question. Lawton v. State, 913 S.W.2d 542, 553 (Tex.Crim.App.1995). However, these factors are not dispositive. Id. The critical factor is whether the emotions, excitement, fear, or pain of the event still dominated the declarant at the time of the statement. Zuliani, 97 S.W.3d at 596. If the statement is made while the declarant is still in the grip of emotion, excitement, fear, or pain and the statement relates to the exciting event, it is admissible even after an appreciable amount of time has elapsed. Penry v. State, 691 S.W.2d 636, 647 (Tex. Crim.App.1985); Jones v. State, 772 S.W.2d 551, 555 (TexApp.-Dallas 1989, writ ref d).

A. Statements to Officer Webb

Appellant contends that Lan-ders’s statements to Officer Webb were not excited utterances. Officer Webb testified that when he arrived at Landers’s apartment in response to an “assault in progress” call, Landers was alone. Officer Webb testified that Landers told him she had talked to her aunt, but he did not know if Landers had called her after the assault, and he provided no details about the conversation. Additionally, although Officer Webb did not know the exact time of the assault, he believes he arrived shortly (less than two hours) after the occurrence. Appellant claims Landers’s statements to Officer Webb were not excited utterances because Landers had already talked to Griffin and Annika about the incident, and one to three hours had passed since the assault occurred. However, Officer Webb was the first witness to testify at trial. Because the facts appellant claims factor against admissibility were not in evidence at the time Officer Webb testified, we cannot consider them. See Willover v. State, 70 S.W.3d 841, 845 (Tex.Crim.App.2002) (noting that a reviewing court should review a trial court’s ruling on admission of evidence in light of the evidence before the trial court at the time it made its ruling).

Appellant also contends that Landers’s statements to Officer Webb were not excited utterances because (1) Landers’s statements were solely in response to Officer Webb’s questions, and Landers gave a detailed account about the assault, and (2) Officer Webb testified Landers was not excited and only “somewhat” stressed. We recognize that a court should consider whether hearsay statements were made in response to questions when determining whether the statements qualify as excited utterances. See Zuliani, 97 S.W.3d at 595-96. However, this factor is not dis-positive; it is only one factor to be considered. Id. at 596 (holding responses to questions qualified as excited utterances). As previously mentioned, the critical factor is whether the declarant was still dominated by the emotions, excitement, fear, or pain of the event. Zuliani, 97 S.W.3d at 596. In this case, when Officer Webb arrived at Landers’s apartment, he observed that her face was swollen, and she had cuts on her arm, lip, and leg, and blood on her shirt and arm. When Officer Webb spoke with Landers, she was still in her ransacked apartment where she had recently been the victim of a violent assault. Although Officer Webb did state that Landers was not excited and she was “somewhat stressed,” he further stated that Landers was quiet, in a frightened state of mind, upset, and her eyes were watering, and that she made the statements while she was under the stress or excitement caused by the event. Further, Officer Webb had observed Landers’s demeanor in the past, when he had seen Landers in the neighborhood, and could tell that Landers was frightened at the time she spoke with him.

Based on the evidence in the record, the trial court could have reasonably concluded that Landers’s statements to Officer Webb related to a “startling event or condition,” that event being the assault she recently experienced, and that Landers was still under the physical and emotional “stress of the excitement caused by the event or condition” when she made the statements to Officer Webb. The trial court’s decision was within the “zone of reasonable disagreement,” and therefore, we find that the trial court did not abuse its discretion by admitting Officer Webb’s testimony.

B. Statements to Griffin

Appellant contends that Lan-ders’s statements to Griffin were not excited utterances. Appellant claims no evidence was presented that Landers was dominated by the emotions, excitement, fear, or pain of the event when she made the statements to Griffin. Appellant further avers that Landers talked to Annika about the incident before talking to Griffin, one to two hours passed between the assault and the time Landers spoke to her aunt, and Landers did not make any spontaneous statements to Griffin. When Griffin testified, no evidence had been admitted that Landers talked to Annika about the incident before talking to Griffin. Because that evidence was not before the trial court at the time of its ruling, we may not consider it. See Willover v. State, 70 S.W.3d 841, 845 (Tex.Crim.App.2002) (noting that a reviewing court should review a trial court’s ruling on admission of evidence in light of the evidence before the trial court at the time it made its ruling). Additionally, there is no evidence to support appellant’s assertion that Landers did not make spontaneous statements to Griffin. Griffin testified about what Landers told her; she gave no indication Landers was responding to questions.

Although Landers’s statements to Griffin were made one to two hours after Landers had been assaulted, the period of time separating the startling event and the statement is only one factor to consider when determining if a statement was an excited utterance. Zuliani, 97 S.W.3d at 596. Griffin testified that she arrived at the apartment before Officer Webb. Lan-ders was lying on the couch crying, she looked scared, and she “seemed kind of out of it.” Griffin further testified that Lan-ders appeared to be suffering under the stress or excitement caused by the event. Evidence had already been presented through Officer Webb that Landers had visible injuries and the apartment was ransacked. Based on this testimony, we find the trial court did not abuse its discretion in finding Landers’s statements admissible because she was still dominated by the emotions, excitement, fear, or pain of the event. See id.

We overrule appellant’s first and second issue.

III. Exclusion of Handwritten Document

In his third issue, appellant contends the trial court erred in refusing to admit a handwritten document as impeachment evidence. We review a trial court’s ruling on the admissibility of evidence for abuse of discretion. Montgomery v. State, 810 S.W.2d 372, 378-79 (Tex. Crim.App.1990) (op. on reh’g). We must review the trial court’s ruling in light of the arguments, information, and evidence that was before the trial court at the time the ruling was made. Dragoo v. State, 96 S.W.3d 308, 313 (Tex.Crim.App.2003). We must uphold the trial court’s evidentiary ruling if it is reasonably supported by the record and is correct under any theory of law applicable to the case. State v. Ross, 32 S.W.3d 853, 855-56 (Tex.Crim.App.2000).

Appellant offered the following handwritten document as evidence:

My name is Tiffany Michelle Landers and I am 18 yrs old[.] I was born on 1-28-84[.] I would like to tell whoever this may concern what happen on May 22 of 02’[.] Everything that I told the W. Mongemery [sic] police was true except the part about who did it to me[.] James Lawson better known as JR — is the guy who did this to me. He told me if I “Gave them got damn people his name he would hurt me.” And he told me to give John [sic] name “since he the cause of this shit.” Being as scared as I was I did what he told me and Mrs. Thressa [sic] Griffin (my aunt) didn’t like him from the start so of course she would believe me. /s/ Tiffany Landers. Sworn to and subscribed to before me this 23 day of September 2002 /s/ Russell Timmies, Notary Public

When appellant offered the document at trial, the State objected on hearsay grounds, and the trial court sustained the objection. Appellant then informed the trial court that “this is offered as impeachment.” However, the record reflects that appellant failed to cite any specific rule of evidence or argue why the statement constituted impeachment evidence.

The proponent of an out-of-court statement, not the trial court, is required to specify which exception to the hearsay rule he is relying upon or to specify how the evidence is not hearsay. Willover, 70 S.W.3d at 845-46. The proponent “ ‘must at the earliest opportunity, have done everything necessary to bring to the judge’s attention the evidence rule [or statute] in question and its precise and proper application to the evidence in question.’ ” Martinez v. State, 91 S.W.3d 331, 336 (Tex. Crim.App.2002) (quoting 1 Stephen Goode, Et AL, Texas PRACTICE: Guide to the Texas Rules of (2d ed.1993)).

On appeal, appellant presents two arguments for the admissibility of the statement to impeach Landers. He first contends that the entire statement was admissible to impeach Landers as a prior inconsistent statement under Texas Rule of Evidence 613(a). See Tex.R. Evid. 613(a). He also claims the entire statement was admissible to impeach Landers under Texas Rule of Evidence 613(b) because it contains evidence of Landers’s motive, bias and interest for telling Griffin and Webb that appellant committed the offense. See Tex.R. Evid. 613(b).

The trial court reasonably could have determined that appellant was offering the entire statement as a prior inconsistent statement under Rule 613(a). Because only Landers’s prior inconsistent statements can be used to impeach her under Rule 613(a), the trial court reasonably could have concluded that the statements in the document attributed to James Lawson were inadmissible, and thus excluded the entire document. See Willover, 70 S.W.3d at 846-47 (holding that when offered evidence contains admissible and inadmissible portions, the trial court may properly exclude the entire item of evidence).

To the extent the trial court determined that appellant was offering the entire document under Rule 613(b) as evidence of Landers’s bias or motive, several of the statements do not have any tendency to show Landers’s bias or motive. Therefore, the trial court reasonably could have determined that these statements were inadmissible, and thus excluded the entire document. See Willover, 70 S.W.3d at 846-47.

Accordingly, the trial court did not abuse its discretion in excluding this evidence. We overrule appellant’s third issue.

IV. Exclusion of Prosecutor’s Notes

In his fourth issue, appellant claims the trial court erred in excluding a handwritten note allegedly written by Andrea Kolski, an assistant district attorney. According to what is purported to be Kol-ski’s note, included in the State’s case file, Landers told Kolski that appellant was not the person who committed the assault. Appellant claims the note was admissible as impeachment evidence and as a statement against interest. See Tex.R. Evid. 613; Tex.R. Evid. 803(24).

However, appellant did not offer the note as evidence at trial. Instead, he submitted it as an offer of proof to support his claim that he should have been allowed to call the prosecutor as a witness. When making the offer of proof, he submitted the note to show what Kolski would have testified to. Because appellant did not offer the note as evidence at trial, he has failed to preserve this issue for appeal. See Tex.R.App. P. 33.1(a)(1)(A). Accordingly, we overrule appellant’s fourth issue.

Having overruled appellant’s issues, the judgment of the trial court is affirmed.

FROST, J., concurring.

EDELMAN, J., concurs in result only.

KEM THOMPSON FROST, Justice,

concurring.

Today the court tests the limits of the excited-utterance exception to the hearsay rule in deciding whether a “not excited” complainant’s statements, made during a post-assault police interview and after she already had given an account of the same event to another witness, can fairly be characterized as excited utterances within the meaning of Texas Rule of Evidence 803(2). The plurality concludes that the statements in question, admitted through Officer Charles Webb’s testimony, qualify under this hearsay exception. Because the record supports the opposite conclusion, I respectfully decline to join the plurality’s analysis of appellant’s second issue. However, because the trial court’s admission of this hearsay evidence was harmless error, the judgment nonetheless should be affirmed. Therefore, I respectfully concur in the court’s judgment.

An excited utterance is a statement that relates to a startling event or condition and that is made while the declarant is under the stress of excitement caused by the event or condition. Tex.R. Evid. 803(2). The basis for the excited-utterance exception to the hearsay exclusionary rule is “a psychological one, namely, ... that when [one] is in the instant grip of violent emotion, excitement or pain, he ordinarily loses the capacity for reflection necessary to the fabrication of a falsehood and the ‘truth will come out.’ ” Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Crim.App. 2003) (quoting Evans v. State, 480 S.W.2d 387, 389 (Tex.Crim.App.1972)). In the words of the Court of Criminal Appeals, “the statement is trustworthy because it represents an event speaking through the person rather than the person speaking about the event.” Id. The hallmark of an excited utterance is spontaneity, a quality that is produced from a momentary impulse. A spontaneous utterance is one that springs forth naturally, without deliberation. It is the product of reactive rather than reflective thinking. Thus, an important consideration in evaluating testimony under the excited-utterance exception is whether the declarant had the ability to reflect and fabricate. See Drayton v. State, 138 Tex.Crim. 264, 135 S.W.2d 703, 704 (1940) (op. on reh’g); Hughes v. State, 128 S.W.3d 247, 253-54 (TexApp.-Tyler 2003, pet. refd). The underlying rationale for this principle is that a statement made contemporaneously with, or shortly after, a startling event provides a higher degree of reliability. By the same logic, a statement made in response to an inquiry (i.e., one that requires reflection) or a statement made some time after the event (i.e., one made after opportunity for reflection), provides a comparatively lower degree of reliability. The passage of time is highly relevant, but not dispositive, in determining whether a statement falls within the excited-utterance exception.

The Court of Criminal Appeals set the presumed outer boundaries of the excited-utterance exception to the hearsay rule in Zuliani, a case in which it found that a statement made twenty hours after an altercation, in response to a question, and after the declarant appeared to be thinking about her answer, was nonetheless an excited utterance. In its analysis, the Zulia-ni court noted that the declarant was “withdrawn, with her head down ‘like a two-year old,’ scared to death, or ‘real scared,’ and tired.” See Zuliani, 97 S.W.3d at 596. Although the interval between the startling event and the statements was lengthy and some of the declar-ant’s statements were made in response to questions, the Zuliani court found the statements still fell within the excited-utterance exception. See id. at 595-96. In reaching its conclusion, the court noted that the declarant, who was “scared to death,” had not received medical treatment for her injuries (a lacerated scalp that required stitches) and had not been separated from the defendant since the incident occurred. See id. at 596. These factors appear to be central to the court’s holding because they impacted the declar-ant’s ability to reflect and to fashion a response. See id. (quotation omitted). The facts presented by our record are different in significant respects.

When Officer Webb arrived at the apartment, Landers’s attacker already had left the scene; the attacker did not remain with Landers after the incident. Moreover, in the two-to three-hour period between the time the attacker fled and the time the police arrived, Landers talked to her aunt, Theresa Griffin, about the afternoon’s events. By the time Webb arrived, Landers was not excited. She was not crying and did not need to be calmed down. She gave her statements in the context of a police interview, answering questions the officer propounded.

In evaluating whether a statement qualifies as an excited utterance, the critical determination is “whether the declarant was still dominated by the emotions, excitement, fear, or pain of the event or condition at the time of the statement.” Zuliani, 97 S.W.3d at 596. It is not enough to merely experience stress or feel afraid; the declarant’s emotions must be so forceful that they dominate her mind so as to render her incapable of reflective thought. See id. An evidentiary basis exists to support a finding that, at the time Landers answered Webb’s interview questions, Landers was afraid, and perhaps upset. However, the record does not indicate Landers was dominated by those emotions or that she was in “the instant grip of violent emotion, excitement or pain.” See id. at 595. Nor does the record indicate Landers’s statements were made at a time so near the startling event as to preclude any possibility of deliberate design or fabrication in her responses to Webb’s inquiries. Tellingly, Landers’s statements to Webb were not her first account of the startling event. See Dray-ton, 135 S.W.2d at 704; Hughes, 128 S.W.3d at 252-53. Given that she already had recounted the same event to her aunt, Landers’s statements to Webb could hardly be characterized as spontaneous. Likewise, though Landers appeared to be “somewhat” under stress, there is no evidence to suggest she was incapable of reflection or fabrication or that she was speaking without deliberation during the interview. In fact, when she spoke, she was responding to interview questions, not making spontaneous utterances. The questions — not the startling event — triggered her statements. It is not reasonable to conclude that Landers’s statements to Webb, in effect, were “the event speaking through” Landers, and not Landers talking about the event. See Zuliani, 97 S.W.3d at 595.

Landers’s statements in response to Webb’s questions lack the requisite indi-cia of reliability to be admissible under the excited-utterance exception to the hearsay rule. See Hughes, 128 S.W.3d at 252-53. On this record, the trial court erred in determining that the State satisfied its burden of showing that Landers’s statements to Webb were excited utterances. See MaHinez v. State, 993 S.W.2d 751, 758 (Tex.Crim.App.1999) (stating that if State is offering the evidence, then it has the burden of establishing that the proffered hearsay is admissible under an exception to the hearsay rule); Drayton, 135 S.W.2d at 704 (holding that it is error to admit statement as excited utterance when statement lacked requisite degree of spontaneity and when declarant had previously related the events in question to other parties); Hughes, 128 S.W.3d at 252-53 (holding that trial court erred in admitting statements as excited utterances because the statements were narrations in response to police interrogation and it was not possible to conclude that the statements were made without opportunity for reflection or deliberation). Because the statements were not excited utterances, the trial court should have sustained the defense’s hearsay objections.

The improper admission of Webb’s testimony concerning Landers’s statements is governed by the harm analysis applicable to non-constitutional error. See Tex. R.App. P. 44.2(b). Thus, the judgment should be overturned if, after examining the record as a whole, the reviewing court has “grave doubt” that the error did not affect the outcome. Webb v. State, 36 S.W.3d 164, 182 (Tex.App.-Houston [14th Dist.] 2000, pet. refd) (en banc). If the error had no influence or only a slight influence on the verdict, it is harmless. Id. If the reviewing court is unsure whether the error affected the outcome, the court should treat the error as harmful, 1.e., as having a substantial and injurious effect or influence in determining the jury’s verdict. Id.

Although Landers did not testify at trial, two witnesses other than Webb gave admissible testimony impheating appellant in the assault. Landers’s young cousin, An-ikka Gray, testified that upon returning home from school, she saw appellant leave the apartment through an open bedroom window and run down the stairs. According to the youngster’s testimony, before either Griffin or Webb arrived, appellant returned to the scene, and Gray saw him strike Landers. Likewise, Griffin testified that while she was still at work and speaking to Landers on the telephone, she could hear what was happening at the apartment. Griffin, who left her workplace to go to Landers’s aid, also testified as to Landers’s at-the-scene account of what transpired with appellant at the apartment. Because Webb’s testimony was cumulative of Griffin’s testimony, and because there was also eyewitness testimony from Gray that implicated appellant in the assault on Landers, a reasonable evaluation of the record gives fair assurance that the error did not influence the jury’s verdict or had but a slight effect on the outcome. See Liggens v. State, 50 S.W.3d 657, 662 (Tex.App.-Fort Worth 2001, pet. ref'd) (holding that, even if admission of testimony as excited utterance were error, it would not be reversible error because testimony was cumulative of other evidence). Therefore, the erroneous admission of Landers’s hearsay statements through Webb was not harmful. For this reason, this court is correct to overrule appellant’s second issue.

      . Appellant and Landers were in a troubled relationship that ended approximately one week before the burglary.

      . In a post-submission memorandum, appellant also argues that Landers's out-of-court statements to Officer Webb should have been excluded under the Sixth Amendment’s Confrontation Clause. Although appellant failed to raise a trial objection on confrontation grounds, he contends that we should consider the issue in light of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), decided after submission of this case. Crawford held that out-of-court testimonial statements by a witness, who fails to testify at trial, are barred by the Confrontation Clause unless the witness is unavailable to testify and the accused had a prior opportunity to cross-examine the witness, regardless of whether such statements are deemed reliable under the rules of evidence. Id. at 1369-74. Although Crawford clarified the law with respect to the Confrontation Clause and the admissibility of out-of-court "testimonial” statements under the rules of evidence, "the federal constitutional right to confront one’s accuser’s is neither new nor novel.” Bunton v. State, 136 S.W.3d 355, 369 (Tex.App.-Austin 2004, pet filed). Accordingly, by failing to object on Confrontation Clause grounds, appellant failed to preserve this issue for review. See Tex. R.App. P. 33.1(a); Bunton, 136 S.W.3d at 369 (holding appellant waived Confrontation Clause complaint by failing to object at trial and rejecting suggestion that because Crawford established a new constitutional rule, an objection would have been futile); Crawford v. State, 139 S.W.3d 462, 464 (Tex.App.-Dallas 2004, no pet.) (approving of Bunton).

      . Appellant also claims the document was admissible because it contained statements against interest. See Tex.R. Evid. 803(24). However, he did not make this complaint at trial, so we will not consider it on appeal. See Tex.R.App. P. 33.1.

      . Appellant's sister testified that she was familiar with Landers's printing and signature, and she recognized the printing and signature in the document as Landers’s. See Tex.R. Evid. 901(b)(2).

      . After a hearsay statement has been admitted, the declarant's credibility may be attacked and if attacked, may be supported by any evidence which would be admissible for those purposes if declarant had testified as a witness. Tex.R. Evid. 806. Because Landers was the declarant of hearsay statements admitted through Griffin and Officer Webb, appellant was entitled to impeach her credibility as if she had given live testimony. See Bee v. State, 974 S.W.2d 184, 190 (Tex.App.-San Antonio 1998, no pet.); Appling v. State, 904 S.W.2d 912, 916 (Tex.App.-Corpus Christi 1995, pet. ref’d).

      . After the trial court initially sustained appellant's hearsay objection, the prosecutor attempted to lay a better predicate. The trial court later overruled the objection, but then in response to defense counsel’s repeated renewals of the hearsay objection, the trial court allowed defense counsel to take Webb on voir dire. When defense counsel again renewed the hearsay objection, stating that the declarant was not under the stress of the exciting situation at the time the statements were made, the trial court stated:
      Counsel, I’m not sure at what point he’s still talking to her. And if you both want to clarify that, it’s part of the excited utterance. Why don’t you both approach and let me talk to you for just a second.
      After the bench conference, the trial court informed the lawyers that it would permit both of them to conduct further questioning to find out if the testimony fell within the exception. When defense counsel questioned Webb again, Webb admitted that during his investigation, Landers told him that she already had talked to Griffin. The court ultimately overruled the hearsay objection and permitted Webb to testify about what Landers said in the interview.

      . Unlike Webb’s account, Griffin’s statements about what Landers said immediately following the incident were admissible as excited utterances. At the time Landers spoke to Griffin, she was visibly upset and crying. Though an hour had passed, the record shows Landers was still dominated by the excitement, pain, and stress of the assault. Her statements to Griffin were spontaneous, and measured against the applicable factors, qualified as excited utterances under Rule 803(2). See Zuliani, 97 S.W.3d at 595-96.


author: LESLIE BROCK YATES, Justice.

text:
    THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA, Appellant v. HARTFORD UNDERWRITERS INSURANCE COMPANY, Appellee.
    No. 14-03-01023-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    May 10, 2005.
    Christopher M. Losey and Paul Raymond Clevenger, Dallas, for appellants.
    Dean G. Pappas, Mary Markantonis, Houston, and Kevin Heyburn, Austin, for appellees.
    Panel consists of Justices YATES, EDELMAN, and GUZMAN.
   OPINION

LESLIE BROCK YATES, Justice.

This is an appeal from a summary judgment. Appellant The Insurance Company of the State of Pennsylvania (“ICSP”) argues in four issues that the trial court erred in granting summary judgment in favor of appellee Hartford Underwriters Insurance Company (“Hartford”) and in overruling ICSP’s motion for summary judgment. We reverse and render judgment in favor of ICSP.

Factual and Procedural Background

Tomasa Serpas worked for Tandem Staffing (“Tandem”), a temporary staffing agency. Tandem assigned Serpas to work at an Igloo Products Corporation (“Igloo”) facility, where Serpas sustained a serious injury on January 5, 1999. ICSP provides workers’ compensation insurance to Igloo, and Hartford is the workers’ compensation carrier for Tandem. Hartford received notice of Serpas’s injury on the day it occurred and began paying workers’ compensation benefits to Serpas less than a week later. Hartford has continued to pay workers’ compensation benefits to Serpas.

In May of 2000, Serpas sued Igloo, which moved for and was granted summary judgment. Igloo successfully argued that as an employee, Serpas’s exclusive remedy was through the workers’ compensation scheme. Hartford then filed a notice of disputed claim with the Texas Workers’ Compensation Commission for the first time; this occurred more than three years after the injury. Hartford argued there was newly discovered evidence that Igloo was Serpas’s employer under the borrowed servant doctrine.

A contested case hearing was held, and the hearings division of the commission considered (1) whether Tandem or Igloo was Serpas’s employer for workers’ compensation purposes at the time of the injury and (2) whether Hartford waived its right to contest compensability under section 409.021(c) of the Texas Labor Code. See Tex. Lab.Code Ann. § 409.021(c) (Vernon 1996). The hearing officer determined that Tandem and Igloo were co-employers and that Hartford had waived its right to contest compensability by waiting more than sixty days to dispute the claim. See id. Hartford appealed, and an appeals panel for the commission affirmed the hearing officer’s decision and clarified that Hartford was solely responsible for payment of benefits because it had waived its right to contest compensability.

Hartford again appealed, this time at the district court level. Hartford argued only that it had not waived the right to contest compensability; it did not appeal the co-employer finding. Both Hartford and ICSP filed motions for summary judgment. The district court granted Hartford’s motion, impliedly finding that Hartford had not waived its right to contest compensability by ordering Hartford and ICSP to each pay fifty percent of Serpas’s workers’ compensation benefits. ICSP now brings this appeal from the trial court’s grant of summary judgment and asks this court to reverse and render judgment in ICSP’s favor by concluding that Hartford waived its right to contest com-pensability and is therefore solely responsible for the payment of benefits.

Discussion

When both sides move for summary judgment and the trial court grants one motion and denies the other, the reviewing court should review the summary judgment evidence presented by both sides and determine all questions presented. Comm’rs Court v. Agan, 940 S.W.2d 77, 81 (Tex.1997). The reviewing court should then render the judgment the trial court should have rendered. Id.

As stated above, Hartford sought judicial review of the appeals panel decision. Under section 410.302 of the Labor Code, a trial court is limited to reviewing only those issues decided by the appeals panel. Tex. Lab.Code Ann. § 410.802 (Vernon 1996). The appeals panel resolved two issues and made the following conclusions: (1) Tandem and Igloo were co-employers for workers’ compensation purposes and (2) Hartford had waived its right to contest compensability. Hartford stated in its motion for summary judgment that the co-employer finding was not being contested; accordingly, the only contested issue before the trial court was whether Hartford had waived its right to contest compensability. In its order granting Hartford’s motion for summary judgment, the trial court (1) affirmed the uncontested co-employer finding and (2) reversed the finding that Hartford was solely liable for payment of benefits, thus implicitly holding Hartford had not waived its right to contest compensability. The trial court also ordered each party to pay fifty percent of the workers’ compensation benefits. Because the only contested issue is whether Hartford waived its right to contest compensability, that is the sole issue for our review. See id.

Section 409.021(c) of the Labor Code provides that “[i]f an insurance carrier does not contest the compensability of an injury on or before the 60th day after the date on which the insurance earner is notified of the injury, the insurance carrier waives its right to contest compensability.” Tex. Lajb.Code Ann. § 409.021(c). It is undisputed in this case that Hartford began paying benefits within a week of learning of the injury and did not file a standard form Notice of Refusal/Disputed Claim with the Workers’ Compensation Commission for more than three years after the injury. Because Hartford failed to contest compensability within sixty days of notification, we hold that under the plain language of section 409.021(c), Hartford has waived its right to contest compensa-bility.

Hartford argues that section 409.021(c) does not apply to this case because it is a coverage dispute, not a com-pensability dispute. We disagree. Rule 124.3 of the Texas Administrative Code, enacted by the Texas Workers’ Compensation Commission, provides that a carrier must contest compensability within sixty days in both compensability disputes and liability disputes. See 28 Tex. Admin. Code § 124.3 (2004) (Tex. Workers’ Comp. Comm’n, Investigation of an Injury and Notice of Denial/Dispute). Valid rules and regulations promulgated by an administrative agency acting within its statutory authority have the force and effect of legislation. Lewis v. Jacksonville Bldg. & Loan Ass’n, 540 S.W.2d 307, 310 (Tex.1976).

Subsection (a) of rule 124.3 provides in relevant part that “[i]f the carrier believes that it is not liable for the injury or that the injury was not compensable, the carrier shall file the notice of denial of a claim (notice of denial) in the form and manner required by § 124.2 of this title.” 28 Tex. Admin. Code § 124.3(a) (emphasis added). Subsections (b) and (c) address time limits for contesting compensability:

(b) Except as provided by subsection
(c), the carrier waives the right to contest compensability of or liability for the injury, if it does not contest compensa-bility on or before the 60th day after the date on which the insurance carrier receives written notice of the injury.
(c) If the carrier wants to deny com-pensability of or liability for the injury after the 60th day after it received notice of the injury:
(1) the carrier must establish that it is basing its denial on evidence that could not have reasonably been discovered earlier; and
(2) the carrier is liable for and shall pay all benefits that were payable pri- or to and after filing the notice of denial until the Commission has made a finding that the evidence could not have been reasonably discovered earlier.

Id. § 124.3(b)-(c) (emphasis added). Under rule 124.3, a carrier waives its right to contest the compensability of the injury or its liability for the injury if it has not contested compensability within sixty days. Id. Because Hartford did not contest com-pensability within sixty days of receiving notice of the injury, it has waived its right to contest not only the compensability of the injury but its liability for the injury.

There are also two appeals panel decisions, cited in the hearing officer’s decision in this case, that contain similar facts to the instant case, and both decisions expressly apply section 409.021(c). In each case, the appeals panel held that in a co-employer arrangement where each employer has its own insurance carrier, a carrier that begins payments and does not contest compensability within section 409.021(c)’s sixty-day period waives its right to contest compensability. See Tex. Workers’ Comp. Comm’n, Appeal No. 011605, 2001 WL 1344379, at *2 (Aug. 29, 2001); Tex. Workers’ Comp. Comm’n, Appeal No. 970411, 1997 WL 33482402, at *2-4 (1997). Though we are not bound by these decisions, we find them instructive in holding that Hartford has waived its right to contest compensability. See Houston Gen. Ins. Co. v. Ass’n Cas. Ins. Co., 977 S.W.2d 634, 636 (Tex.App.-Tyler 1998, no pet.) (noting that administrative decisions, while not binding, are entitled to substantial weight).

The judgment of the trial court is reversed. We render judgment that Hartford has waived its right to contest compensability and is therefore solely responsible for payment of benefits.

      . Hartford’s sole authority, Houston General Insurance Co. v. Association Casualty Insurance Co., 977 S.W.2d 634 (Tex.App.-Tyler 1998, no pet.), for the proposition that section 409.021(c) does not apply is distinguishable from the instant case. In Houston General, the dispute was which of two carriers provided insurance coverage on the day the injury to the worker occurred. Here, it is undisputed that both ICSP and Hartford provided coverage to their respective insureds on the day of Serpas’s injury; the initial dispute was which of those insureds was the employer, not which carrier provided insurance coverage.

      . Hartford also suggested at oral argument that under its theory that section 409.021(c) does not apply to coverage disputes, there are no time limits restricting a carrier’s ability to contest its liability for an injury. We disagree. By requiring carriers to either initiate benefits or give notice of their refusal within strict deadlines, the legislature “intended to provide employees with a prompt response to their benefit claims and to streamline the process to avoid early attorney involvement." Cont’l Cas. Co. v. Downs, 81 S.W.3d 803, 806 (Tex.2002). Allowing carriers unlimited time to contest liability would contravene this intention.

      . Because we find that Hartford waived its right to contest compensability under section 409.021(c) of the Texas Labor Code, we need not address ICSP’s third and fourth points of error.


author: WANDA McKEE FOWLER, Justice.

text:
    ETHIO EXPRESS SHUTTLE SERVICE, INC. d/b/a Texans Super Shuttle, Appellant, v. CITY OF HOUSTON, Appellee.
    No. 14-04-00937-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    May 12, 2005.
    Rehearing Overruled June 9, 2005.

      Richard N. Countiss, Houston, for appellants.
    Bertrand L. Pourteau, II, Houston, for appellees.
    Panel consists of Chief Justice HEDGES and Justices FOWLER and FROST.
   OPINION

WANDA McKEE FOWLER, Justice.

Appellant, Ethio Express Shuttle Service, Inc., appeals the trial court’s judgment dismissing its case for want of jurisdiction. On appeal, Ethio claims the trial court should not have granted the City’s plea to the jurisdiction, arguing alternatively that either (1) the City was not engaged in a proprietary function and therefore did not enjoy sovereign immunity, or (2) the Texas Tort Claims Act waived immunity. We affirm because the City was engaged in a governmental function when it regulated transportation to and from airports and because the causes of action Ethio alleged do not fall within the Act’s limited waiver of immunity.

Factual and Procedural Background

Ethio is a private bus shuttle service that operates in Houston, Texas. When Ethio initially asked the City for a ground transportation permit to provide shuttle service from two airports the City owned, the City denied the request, stating that its exclusive contract with Yellow Cab prohibited it from allowing Ethio to provide a scheduled shuttle service for airport traffic. As a result, Ethio designed its proposed routes to operate in other areas. Later, however, the City informed Ethio that its Yellow Cab contract was not exclusive and that it should have granted Ethio the permit. By this point, Ethio already had expended a considerable amount of money redesigning its routes based on the City’s earlier representation that Ethio would not be permitted to provide a private shuttle service from either of the City’s airports.

Ethio then filed suit against the City, alleging negligent misrepresentation, fraud, conspiracy to commit fraud, business disparagement and slander, tortious interference with contract, conspiracy to tortiously interfere with contract, and conspiracy to engage in an unlawful restraint of trade. The City specially excepted to Ethio’s failure to plead a valid waiver of sovereign immunity. Ethio responded by filing its First Amended Petition in which it asserted the court had jurisdiction because the City was engaged in a proprietary function and, thus, enjoyed no sovereign immunity. The City then filed a plea to the trial court’s jurisdiction, this time asserting it was not engaged in a proprietary activity and had not waived sovereign immunity. In response, Ethio urged that the trial court had jurisdiction, arguing alternatively that either the City was engaged in a proprietary activity or the Texas Tort Claims Act had waived the City’s sovereign immunity. The trial court granted the City’s plea and dismissed Ethio’s claims against the City for want of jurisdiction.

On appeal, Ethio argues that the City’s regulation of the private shuttle service from its airports is a proprietary activity for which the City does not enjoy governmental immunity. In the alternative, Ethio urges this court to find the City’s immunity has been waived by the Texas Tort Claims Act. We first address Ethio’s claim that the City was engaged in a proprietary activity.

Standard of Review

The City’s plea to the jurisdiction challenged the trial court’s authority to determine the subject matter of Ethio’s suit. See Metropolitan Transit Auth. v. Burks, 79 S.W.Sd 254, 256 (Tex.App.-Houston [14th Dist.] 2002, no pet.) (citing Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000)). Deciding whether the trial court had subject matter jurisdiction is a question of law, reviewed de novo. See id. (citing Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998)). The burden is on Ethio, as the plaintiff in a suit against a sovereign entity, to establish the trial court’s jurisdiction. See Reyes v. City of Houston, 4 S.W.3d 459, 461 (Tex.App.Houston [1st Dist.] 1999, pet. denied). We examine a plaintiffs good faith factual allegations to determine whether the trial court had jurisdiction. See Metropolitan Transit Auth., 79 S.W.3d at 256 (citing Bland, 34 S.W.3d at 554). We must indulge every reasonable inference and resolve any doubts in Ethio’s favor. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex.2004) (citing Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997)).

Analysis

1. The regulation of a private shuttle service from the City’s airports is a governmental function for which the City enjoys sovereign immunity.

The importance of the governmental-proprietary distinction.

Ethio alleges that the City is engaging in a proprietary function when it regulates traffic to its airports and therefore it is not immune from liability. Because the principles underlying Ethio’s claim are true — that a city enjoys no immunity when it engages in a proprietary function — that issue is the first question we must answer. Tex. Crv. Prac. & Rem. Code § 101.0215(b); Gates, 704 S.W.2d at 739; Cranford v. City of Pasadena, 917 S.W.2d 484, 487 (Tex.App.-Houston [14th Dist.] 1996, no writ) (“[I]f the municipality engaged in a proprietary act, a plaintiff could sue under common law as before.”) (citing Purvey v. City of Houston, 602 S.W.2d 517, 519 (Tex.1980)). Only if we decide that the City’s regulation was a governmental function would we decide whether Ethio pleaded a valid waiver of sovereign immunity. City of Houston v. Southwest Concrete Constr., Inc., 835 S.W.2d 728, 730 (Tex.App.-Houston [14th Dist.] 1992, -writ denied) (“In this [governmental functions] capacity, a municipality is afforded the state’s sovereign immunity except to the extent the state has waived its immunity under the Texas Tort Claims Act.”) (citing Tex. Civ. PRAC. & Rem.Code § 101.001 et seg.). For the following reasons, we hold the Texas Tort Claims Act classifies this activity as a governmental function.

Determining if a function is governmental or proprietary.

Before the 1987 amendments to the Texas Tort Claims Act, the Act did not define which activities were proprietary and which were governmental. During this time, Texas courts, guided by the language of the Act, decided whether a particular activity was proprietary or governmental. Southwest Concrete, 835 S.W.2d at 731 n. 2 (“Prior to the 1987 amendments ... [t]he definition of what actions constituted proprietary or governmental functions was left to the judiciary.”). As part of tort reform, however, the Legislature exerted more control over the designation of an activity as proprietary or governmental by amending the Texas Tort Claims Act and adding definitions of governmental and proprietary functions. See id.; Tex. Civ. Psac. & Rem.Code § 101.0215(a), (b). Under these amendments, a governmental function is one that is “enjoined on a municipality by law and given to it by the state as part of the state’s sovereignty, to be exercised by the municipality in the interest of the general public,” id. at § 101.0215(a); a proprietary function is one that “a municipality may, in its discretion, perform in the interest of the inhabitants of the municipality....” Id. at § 101.0215(b).

As part of the amendments, the Legislature, in section 101.0215(a), included a nonexclusive list of activities categorized as governmental functions. Id. at § 101.0215(a)(l)-(36). If a function is in-eluded in this nonexclusive list of governmental functions, it has been deemed governmental in nature by the Legislature and we have no discretion or authority to hold otherwise. See Tex. Civ. PRAC. & Rem. Code § 101.0215(c) (“The proprietary functions of a municipality do not include those governmental activities listed under Subsection (a).”); Texas River Barges v. City of San Antonio, 21 S.W.3d 347, 357 (Tex. App.-San Antonio 2000, pet. denied) (“Because the City’s actions were encompassed within the governmental functions listed in the Act, we have no discretion to declare the actions proprietary ....”) (citing Herschbach v. City of Corpus Christi, 883 S.W.2d 720, 730 (Tex.App.-Corpus Christi 1994, writ denied); Mitchell v. City of Dallas, 855 S.W.2d 741, 744 (Tex.App.Dallas 1993), aff'd, 870 S.W.2d 21 (Tex. 1994)).

The regulation of private shuttle services from the City’s airports.

The list in section 101.0215(a) is rather specific in its description of functions; for example, some of the categories are ‘maintenance of traffic signals, signs and hazards,’ ‘parking facilities,’ and ‘fireworks displays.’ Tex.Civ.PRAC. & Rem.Code § 101.0215(a)(31), (25), (27). Continuing in this vein of specificity, three of the activities included in the list directly relate to the activities involved in this case: airports, regulation of traffic, and transportation systems. Id. at § 101.0215(a)(10), (21), (22). These three categories cover precisely the three aspects of this case because Ethio is a transportation system transporting travelers to the City’s airports and the City regulates its business. We would be remiss to hold that the City’s activities are proprietary in a case in which they are so well aligned with the functions the Legislature has designated as governmental.

Although no case is directly on point, certainly we find much guidance from Texas River Barges, Inc. v. City of San Antonio, 21 S.W.3d at 347. There, the City of San Antonio entered into an exclusive contract with Yanaguana Cruises, Inc. to operate barges on the San Antonio river. Id. at 350. Texas River Barges, another barge-operating company, filed suit against the city when the city removed its barge for operating on the river without the city’s consent. Id. at 351. The San Antonio Court of Appeals held that the regulation of barges on the city’s waterways was a governmental function because, as in this case, it touched on several categories specifically listed in section 101.0215(a), namely, parks, dams, traffic regulation, transportation systems, and recreational facilities. Id. at 356-57 (citing Tex. Civ. Prao. & Rem.Code § 101.0215(a)(13) (parks), (19) (dams), (21) (traffic regulation), (22) (transportation systems), (23) (recreational facilities)). The only true distinction between this case and Texas River Barges is that the City of San Antonio regulated barges on a river, Tex. Civ. Prao. & Rem.Code § 101.0215(a)(19) (dams and reservoirs), rather than shuttle services at airports. Id. at § 101.0215(a)(10) (airports). This is a distinction without a difference and we conclude, as did the San Antonio Court of Appeals, that the City’s regulation is a governmental function listed in section 101.0215(a).

The general requirements of the Texas Tort Claims Act.

Having determined that regulating Ethio’s shuttle service is a governmental function, we must now consider whether Ethio pleaded a valid waiver of the City’s sovereign immunity under the Texas Tort Claims Act because merely engaging in a governmental function does not automatically waive the City’s sovereign immunity. Tex. Civ. Prac. & Rem.Code § 101.0215(a) (providing that a municipality engaged in a governmental function is liable under this chapter); McKinney, 814 S.W.2d at 865 (“Whereas if the action engaged in by a municipality is considered to be a governmental function, the [Texas Tort Claims Act] does apply, and further analysis under the Act is required to determine a municipality’s potential liability.”) (emphasis added). Absent a valid waiver under the Texas Tort Claims Act, the City enjoys sovereign immunity, accord Texas River Barges, 21 S.W.3d at 356, and for the trial court to have jurisdiction over the City, Ethio must have pleaded a valid waiver of sovereign immunity under the Texas Tort Claims Act. Southwest Concrete, 835 S.W.2d at 730 (stating municipalities enjoy sovereign immunity except to the extent the state waived immunity under the Texas Tort Claims Act); see Mogayzel v. Tex. Dep’t of Transp., 66 S.W.3d 459, 463 (Tex. App.-Fort Worth 2001, pet. denied) (stating pleader must allege facts that affirmatively demonstrate the trial court’s jurisdiction to hear the case) (citing Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993)).

2. The City’s immunity is not waived under the Texas Tort Claims Act.

Sovereign immunity is waived under the Texas Tort Claims Act for only two types of claims: (1) those involving property damage, personal injury or death arising from the operation or use of a motor-driven vehicle or motor-driven equipment; and (2) those involving personal injury or death caused by a condition or use of tangible personal property or real property. Tex. Civ. PRAC. & Rem.Code § 101.021(1)(A), (2). Ethio has not alleged personal injury or death, so the second category does not apply. But Ethio argues it has alleged a claim that involves property damage proximately caused by the negligent operation or use of a motor-driven vehicle or motor-driven equipment. Id. at § 101.021(1). As we discuss below, we conclude that this argument is a stretch and we reject it.

Ethio’s negligent misrepresentation and fraud claims.

We first will address Ethio’s negligent misrepresentation and fraud claims. Ethio argues these claims would fall within this category if, for example, the false statements by City employees were made while the employees were in a vehicle. For several reasons, this is a creative, but not valid, argument. First, Ethio’s petition does not allege that the City’s tortious conduct occurred via a speaker using or operating a motor vehicle or motor-driven equipment. See Montes v. City of Houston, 2000 WL 1228618 at *2 (Tex.App.Houston) [14th Dist.] Aug. 31, 2000) (not designated for publication) (stating court must determine trial court’s jurisdiction by looking to allegations in plaintiff’s petition) (citing Liberty Mut. Ins. Co., 874 S.W.2d at 739 (Tex.App.-Austin 1994, writ denied)). Second, even if, as Ethio suggests on appeal, a City employee made misrepresentations or fraudulent statements from a vehicle, the required nexus between the use of the motor vehicle and Ethio’s injury still would be absent. Brown v. Houston Indep. Sch. Dist., 123 S.W.3d 618, 620 (Tex.App.-Houston [14th Dist.] 2003, pet. denied) (“[A] nexus must exist ‘between the operation or use of the motor-driven vehicle or equipment and a plaintiffs injuries.’ ”) (citing Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 543 (Tex. 2003)).

Such a state of the record would prove only that the injury-causing activity took place while a City employee was in a vehicle. Our Texas Supreme Court has made clear that this alone is insufficient to establish a waiver of sovereign immunity. Le-Leaux v. Hamshire-Fannett Indep. Sch. Dist., 835 S.W.2d 49, 52 (Tex.1992) (“When an injury occurs ... and the [vehicle] is only the setting for the injury, immunity for liability is not waived.”). Although a motor vehicle conceivably could have been the setting for the City’s statements, Ethio’s damages still would not have arisen from the vehicle’s operation or use; instead, the damage would have arisen from the statements themselves and from Ethio’s reliance upon them. See Brown, 123 S.W.3d at 620-21 (“This nexus requires more than mere involvement of property.... The [vehicle]’s use must have actually caused the injury.”) (citing Tex. Natural Res. Conservation Comm’n v. White, 46 S.W.3d 864, 869 (Tex.2001)). In short, for its negligent representation and fraud claims, Ethio failed to plead a valid waiver of sovereign immunity under the Texas Tort Claims Act.

Ethio’s intentional tort claims.

The same is true of Ethio’s claims for conspiracy to commit fraud, business disparagement and slander, tortious interference with contract, conspiracy to tor-tiously interfere with contract, and conspiracy to engage in an unlawful restraint of trade. Again, we must determine whether the Legislature waived the City’s sovereign immunity under the Texas Tort Claims Act. See Tex. Civ. Prag. & Rem.Code § 101.0215(a); McKinney, 814 S.W.2d at 865. Like Ethio’s other claims, these claims do not involve the use or operation of a motor-driven vehicle or motor-driven equipment and fail for that reason. See id. at § 101.021(1)(A). In addition, all of these claims are intentional torts. The Texas Tort Claims Act does not waive sovereign immunity for intentional torts. Id. at § 101.057(2) (“This chapter does not apply to a claim ... arising out of assault, battery, false imprisonment, or any other intentional tort ....”) (emphasis added); Texas River Barges, 21 S.W.3d at 356 (“Under the Act, a municipality is immune from liability for intentional torts.”). Consequently, Ethio’s intentional tort claims also fail.

Conclusion

In conclusion, the City’s regulation of private shuttle services from the airports it owns is a governmental function, for which the City enjoys sovereign immunity. In addition, Ethio’s pleadings do not establish the necessary waiver of the City’s sovereign immunity under the Texas Tort Claims Act. As a result, we conclude the trial court correctly granted the City’s plea to the jurisdiction and we affirm.

      . Yellow Cab is the assumed name of the Greater Houston Transportation Company.

      . Ethio filed suit against other defendants as well but they are not parties to this appeal. The trial court granted the City’s motion to sever this portion of Ethio's suit.

      . Section 101.0215(b) of the Texas Tort Claims Act provides that a municipality may be liable for damages that arise from its proprietary, as opposed to governmental, functions. Tex. Civ. Prac. & Rem.Code § 101.0215(b). A City does not enjoy sovereign immunity when it is engaged in a proprietary function. Gates v. City of Dallas, 704 S.W.2d 737, 739 (Tex.1986) (“[Pjroprietary functions have subjected municipal corporations to the same duties and liabilities as those incurred by private persons and corporations.”).

      . Determining a municipality's amenability to suit is a two-step inquiry. First we determine whether the function is governmental or proprietary. Dalon v. City of DeSoto, 852 S.W.2d 530, 536 (Tex.App.-Dallas 1992, writ denied) (citing McKinney v. City of Gainesville, 814 S.W.2d 862, 865 (Tex.App.-Fort Worth 1991, no writ)). If governmental, the second step is to determine whether liability is waived under the Texas Tort Claims Act. See id. (citing Tex. Civ. Prac. & Rem.Code § 101.021; McKinney, 814 S.W.2d at 865).

      . The parties correctly note the lack of case law directly on point.

      . Section 101.0215(a) provides that the following functions are governmental:
      1. police and fire protection and control;
      2. health and sanitation services;
      3. street construction and design;
      4. bridge construction and maintenance and street maintenance;
      5. cemeteries and cemetery care;
      6. garbage and solid waste removal, collection, and disposal;
      7. establishment and maintenance of jails;
      8. hospitals;
      9. sanitary and storm sewers;
      10. airports;
      11. waterworks;
      12. repair garages;
      13. parks and zoos;
      14. museums;
      15. libraries and library maintenance;
      16. civic, convention centers, or coliseums;
      17. community, neighborhood, or senior citizen centers;
      18. operation of emergency ambulance service;
      19. dams and reservoirs;
      20. warning signals;
      21. regulation of traffic;
      22. transportation systems;
      23. recreational facilities, including but not limited to swimming pools, beaches, and marinas;
      24. vehicle and motor driven equipment maintenance;
      25. parking facilities;
      26. tax collection;
      27. fireworks displays;
      28. building codes and inspection;
      29. zoning, planning, and plat approval;
      30. engineering functions;
      31. maintenance of traffic signals, signs, and hazards;
      32. water and sewer service;
      33. animal control;
      34. community development or urban renewal activities ...;

        35. latchkey programs conducted exclusively on a school campus ...;
      36. enforcement of land use restrictions ....
      Tex. Civ. Prac & Rem.Code § 101.0215(a).

      . Both types require an otherwise cognizable claim. Tex Civ. Prac. & Rem.Code § 101.021(1)(B) ("A governmental unit in the state is liable ... if ... the employee would be personally liable to the claimant according to Texas law.”); § 101.021(2) ("A governmental unit in the state is liable ... if ... the governmental unit would, were it a private person, be liable to the claimant according to Texas law.”).

      . See Firestone Steel Prods. Co. v. Barajas, 927 S.W.2d 608, 614 (Tex.1996) (requiring specific intent for conspiracy); Hurlbut v. Gulf Atlantic Life Ins. Co., 749 S.W.2d 762, 766 (Tex.1987) (requiring malice as intent for business disparagement and slander); Holloway v. Skinner, 898 S.W.2d 793, 795 (Tex.1995) (requiring intentional act of interference for tor-tious interference with contract).