author: PHIL JOHNSON, Chief Justice. DON H. REAVIS, Justice,

text:
    In the Matter of the MARRIAGE OF Lisa Ann RUNBERG and Doak Tim Runberg and in the Interest of S.F.R., M.D.R., J.L.R., J.G.R. and Z.G.R., Children.
    No. 07-03-0382-CV.
    Court of Appeals of Texas, Amarillo.
    Jan. 12, 2005.

      David E. Moody, Lubbock, for Appellant.
    Douglas R. Woodburn, Woodburn, Watkins & Jackson, L.L.P., Amarillo, for Ap-pellee.
    Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.
   OPINION

PHIL JOHNSON, Chief Justice.

Doak Tim Runberg challenges a default judgment of divorce. He contends that the trial court abused its discretion in overruling his motion for new trial because he had appeared in the case, but was given no notice of the setting for final hearing. We reverse and remand.

BACKGROUND

On March 20, 2003, Lisa Ann Runberg filed suit in the 47th District Court of Randall County for divorce from appellant Doak Tim Runberg. On March 22nd, Doak was served with citation and with a temporary restraining order which had been granted by a visiting judge. The restraining order, among other matters, commanded Doak to appear before Judge James W. Anderson on March 26th, to show cause why temporary relief should not be granted. Judge Anderson was sitting for the regular judge of the 47th District Court.

Lisa, her attorney, and Doak, acting pro se, were in court before Judge Anderson on March 26th. The temporary orders signed by Judge Anderson following the hearing recited that (1) Doak appeared in person and announced ready, (2) “[t]he parties have agreed to the terms of this order,” and (3) the Court examined the record, the agreement of the parties and heard evidence. The thirty-page written order delineated (1) rights and duties of Lisa and Doak as conservators of the children of the marriage; (2) provisions for visitation with their children; (3) Doak’s obligations to pay child support of $2,500 per month, provide insurance and health care for the children, pay spousal support of $500 per month, prepare and file income tax returns, timely pay specified debts; and (4) the date by which Doak had to move out of the home of the parties. The orders contained three and one-half pages of detailed injunctive provisions directed to Doak and a statement that Lisa and Doak waived issuance and service of the writ of injunction by stipulation.

As of May 22, 2008, the clerk’s record reflected no further proceedings in the suit. Doak’s appearance day had passed and he had not filed an answer. See Tex.R. Civ. P. 237. Without notice to Doak, a final hearing on Lisa’s petition for divorce was held on May 22nd and a default decree of divorce was signed that day. See TRCP 239.

Doak filed a written answer on June 6th. On June 20th, he filed a pleading entitled Respondent’s Motion for New Trial and Motion to Vacate All Court Judgments and Orders From and After May 22, 2003. Several documents were attached to the pleading, including an affidavit by Doak in which he denied any prior notice of the final hearing. The affidavit did not (1) offer a reason for Doak’s failure to file an answer to the suit before the default judgment was granted, (2) urge any manner of defense to the suit, or (3) offer any method of preventing harm to Lisa if a new trial were to be granted. Also attached to Doak’s pleading were a copy of a letter dated May 13, 2003 from Doak’s attorney to Lisa’s attorney indicating that Doak had retained counsel, and a statement of facts from the final hearing. The statement of facts from the May 22nd final hearing contained testimony by Lisa in which she asked the judge to set child support at $2,500 per month, which was the same amount of support set to be paid as temporary child support “... after a hearing in which Mr. Runberg appeared.” Lisa did not file a response to Doak’s pleading.

By order dated June 26, 2003, the regular judge of the 47th District Court denied Doak’s motion for new trial without a hearing. A hearing on Doak’s Motion to Vacate the Court’s Judgments and Orders after May 22, 2003, was held on July 16th. That motion was denied, but Doak makes no complaint about the ruling, and we will not address that ruling.

By one issue, Doak asserts that the trial court abused its discretion in failing to grant his motion for a new trial. Citing LBL Oil Co. v. International Power Servs., Inc., 777 S.W.2d 390 (Tex.1989), Doak maintains that, because he had “appeared” in the case, his due process rights under the Fourteenth Amendment to the United States Constitution were violated when the default judgment hearing was held without notice to him and he was entitled to have the default decree set aside. He references Bryant v. Gamblin, 829 S.W.2d 228 (Tex.App.-Eastland 1991, writ denied) as authority for the position that, under the circumstances, his motion for new trial did not need to comply with the mandates of Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124 (1939). In the alternative, he asserts that if Craddock applies, he was required to show only that his failure to appear at the final hearing was not intentional or the result of conscious indifference. He cites Lopez v. Lopez, 757 S.W.2d 721 (Tex.1988) and In re Marriage of Parker, 20 S.W.3d 812 (Tex.App.-Texarkana 2000, no pet.) as support for his alternative position.

Lisa disagrees, presenting three arguments. First, she references Brown v. Brown, 521 S.W.2d 730 (Tex.App.-Houston [14th Dist.] 1975, no writ), as support for the trial court’s granting of judgment and denial of new trial. Next, she argues that Doak had not “appeared” in the suit and his due process rights under the Fourteenth Amendment were not violated. Finally, she maintains that the trial court did not err in denying a new trial because Doak failed to support his motion for new trial with evidence fulfilling requirements set out by Craddock.

STANDARD OF REVIEW

The trial court’s denial of a motion for new trial is reviewed for abuse of discretion. Strackbein v. Prewitt, 671 S.W.2d 37, 38 (Tex.1984). A trial court abuses its discretion if its decision is arbitrary, unreasonable, and without reference to guiding rules and principles. See Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex.1997). Likewise, a trial court abuses its discretion if it declines to exercise a power of discretion vested in it by law when the circumstances require that the power be exercised; or if it arrives at its choice in violation of an applicable legal rule, principle, or criterion. See Koch v. Koch, 27 S.W.3d 93, 95 (Tex.App.-San Antonio 2000, no pet.); Landon v. Jean-Paul Budinger, Inc., 724 S.W.2d 931, 939-40 (Tex.App.-Austin 1987, no writ).

A trial court does not abuse its discretion in denying a motion for new trial when the granting of a new trial is dependent on questions of fact to be decided by the trial court, unless the evidence presented conclusively establishes factual bases mandating the granting of a new trial. See Golden Eagle Archery, Inc. v. Jackson, 24 S.W.3d 362, 372 (Tex.2000).

ANALYSIS

In LBL Oil Co., 777 S.W.2d 390, the defendant filed a written motion to dismiss for lack of personal jurisdiction. The motion to dismiss was denied. A written answer was not filed and default judgment was taken without notice to the defendant. The defendant appealed by writ of error. In reversing the default judgment, the Texas Supreme Court said simply that once a defendant has made an appearance in a cause, the defendant is entitled to notice of a trial setting as a matter of due process under the Fourteenth Amendment. Id. at 390-91. The Supreme Court did not consider the defendant’s written challenge to the trial court’s jurisdiction to be a written answer within the contemplation of the rules of civil procedure, see TRCP 46 (every petition and answer shall be contained in one instrument of writing) and TRCP 85 (original answer may consist of pleas to the jurisdiction or other dilatory pleas), because the Court specifically referred to the appeal as involving “a post-appearance default judgment case,” as opposed to a post-answer default judgment case. See LBL Oil Co., 777 S.W.2d at 390.

Lisa contends that we should not follow LBL Oil Co., but, rather, follow Brown, 521 S.W.2d 730. In Brown, the respondent husband was served with citation and appeared with counsel at a show-cause hearing, although he did not file any written document which could be considered as a pleading. Judgment of divorce was subsequently entered without notice to the husband, and husband appealed. The court of appeals held that even though the husband appeared in the suit, absent a written pleading, the case was uncontested and advance notice of the final hearing was not required by the rules of civil procedure or the local trial court rules. Id. at 732. The appellant in Brown, however, did not contend that his due process rights were violated, as Doak contends in the matter before us. Brown is inapposite.

Next, we consider whether Doak made an “appearance” in the divorce suit when he attended the hearing before Judge Anderson on March 26, 2003. In doing so, we note that if no written answer has been filed in the lawsuit, whether a party has “appeared” depends on the nature and quality of the party’s activities in the case. See Bradford v. Bradford, 971 S.W.2d 595, 597 (Tex.App.-Dallas 1998, no pet.). The nature and quality of activities to be considered encompass the filing of written documents, see LBL Oil Co., 777 S.W.2d at 390, and personal activity. See Bradford, 971 S.W.2d at 598; Smith v. Amarillo Hosp. Dist., 672 S.W.2d 615, 617 (Tex.App.-Amarillo 1984, no writ).

Doak’s affidavit, which was attached to his motion for new trial, did not address his appearance at or the degree of his participation in the March 26th hearing on temporary orders. However, the temporary orders and Lisa’s testimony at the default hearing, which were before the trial court at the time Doak’s uncontested motion for new trial was denied, showed that Doak attended court, announced “ready” at the March 26th hearing, and entered into an extensive agreement as to temporary orders governing conservator-ship of children of the marriage, property of the marriage, child and spousal support he would pay, and allocation of responsibility for debts. He waived, by stipulation, service of the agreed-upon temporary injunction which limited certain of his activities, including his ability to deal with property, money, financial matters and credit cards, until entry of the final decree of divorce or further orders of the court. The docket sheet notation indicated that agreed temporary orders were announced and acknowledged by the parties and were adopted by the Court as temporary orders.

Doak’s actions during his attendance at the March 26th hearing were of a different nature and quality than those actions which we held did not comprise an appearance by the appellant in Smith. See Smith, 672 S.W.2d 615. In Smith, the appellant had not been served with the live pleading on which the trial was being held nor did the appellant announce “ready.” Further, the appellant in Smith did not enter into an extensive agreement concerning the subject matter of the suit, which agreement was then incorporated into a court order.

Doak’s participation was more of the nature and quality of participation by the appellant in Bradford, 971 S.W.2d 595. In Bradford, the appellant appeared at two hearings, announced “ready,” and testified at one of the hearings. The appellant’s actions in Bradford were determined to have been an appearance such that the trial court’s failure to set aside the default judgment taken without notice was an abuse of discretion. Id. at 598.

At the time the trial court denied Doak’s motion for new trial, the evidence before the court showed that Doak did not simply attend court before Judge Anderson, as he was directed to do by the show-cause order, then merely observe the proceedings. See Smith, 672 S.W.2d at 617. The evidence reflected that Doak announced that he was ready for the hearing and participated in the proceeding by cooperating in submitting an agreement to the court which governed the rights and obligations of the parties, their children and their property, subject to further orders of the court. He agreed to subject himself to a detailed court order — the injunction— which restricted his personal freedom and ability to deal with his property and finances. On the other hand, there was no evidence before the trial court at the time the motion for new trial was denied which would have supported a finding that Doak was only a passive observer of the proceedings. Doak’s actions at the March 26, 2003 hearing were of such nature and quality as to comprise an appearance in the suit as a matter of law, see Golden Eagle Archery, Inc., 24 S.W.3d at 372, and his due process right to notice of the final hearing attached. See LBL Oil Co., 777 S.W.2d at 390-91.

Finally, we address whether Doak was required to fulfill the mandates of Craddock in order to have the default judgment set aside. Craddock sets out the rule applicable to motions for new trial seeking to set aside default judgments entered for failure to file an answer as well as for post-answer defaults. See Ivy v. Cairell, 407 S.W.2d 212, 213 (Tex.1966); Craddock, 133 S.W.2d at 126. Craddock revised the guiding rule or principle for trial courts to follow in exercising equitable discretion to grant or deny new trials following entry of default judgments:

Some lack of uniformity [in trial court rulings granting or denying new trials] still exists. This is probably due, in part at least, to the fact that the question is controlled by principles of equity. ... While trial courts have some measure of discretion in the matter, as, in truth, they have in all cases governed by equitable principles, it is not an unbridled discretion to decide cases as they might deem proper, without reference to any guiding rule or principle. Trial judges desire and are entitled to have a principle or rule to guide them, and we, therefore, reannounce, in slightly changed language the rule established by the above authorities, as follows: A default judgment should be set aside and a new trial ordered in any case in which the failure of the defendant to answer before judgment was not intentional, or the result of conscious indifference on his part, but was due to a mistake or an accident; provided the motion for a new trial sets up a meritorious defense and is filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff. This is a just rule. It prevents an injustice to the defendant without working an injustice on the plaintiff. Such a rule has the sanction of equity.

Craddock, 133 S.W.2d at 126 (emphasis added).

The Texas Supreme Court has maintained that the law in regard to granting new trials after default judgment is set out in Craddock. See Strackbein, 671 S.W.2d at 39. But, the Supreme Court has also held that all three prongs of Craddock are not always applicable. In Lopez, the Supreme Court held that if a defendant did not receive actual or constructive notice of trial, due process prevented application of the second prong of the Craddock test. See Lopez, 757 S.W.2d at 723 (citing Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 108 S.Ct. 896, 99 L.Ed.2d 75 (1988)). Appellate courts have dealt with Craddock’s applicability in different ways when notice was at issue. See In re Marriage of Parker, 20 S.W.3d at 817; Bryant, 829 S.W.2d 228.

As noted above, all three Craddock elements are based in equity. The purpose of the third element of Craddock is to prevent injustice by protecting a party who takes a default judgment from undue delay or other detriment, such as a loss of witnesses or other valuable evidence, that would disadvantage the judgment-holder in presenting the merits of the case at a new trial. See Director, State Employees Workers’ Comp. Div. v. Evans, 889 S.W.2d 266, 270 (Tex.1994).

If the second prong of Craddock’s equitable rule yields to Constitutional due process rights of the party who suffered a no-notice judgment, which it does, see Lopez, 757 S.W.2d at 723, we fail to see why Craddock’s third prong should not also yield. We conclude that it should, and that equitable protection of the judgment-holding party, which is the subject of Craddock’s third prong, does not override the due process right of a defendant to proper notice of the dispositive final divorce hearing. See Peralta, 485 U.S. at 86-7, 108 S.Ct. 896; Lopez, 757 S.W.2d at 723; In re Marriage of Parker, 20 S.W.3d at 817-18. It follows that insofar as Doak is concerned, the holding of Lopez applies to both the second and third prongs of Craddock. That is, the violation of Doak’s due process right to actual or constructive notice of the final hearing means that Doak’s motion for new trial and attached affidavits need not have either set up a meritorious defense or addressed the avoidance of injury or delay to Lisa by the granting of a new trial.

Given the record before us, we need not decide whether Lopez also extends to the first prong of Craddock. If Peralta and Lopez apply to vitiate the first Craddock prong under this record, then the trial court abused its discretion in failing to grant a new trial because the final decree was entered in violation of Doak’s due process rights. See Goode, 943 S.W.2d at 446; Koch, 27 S.W.3d at 95. If Peralta and Lopez do not apply to vitiate the first Craddock prong, then the trial court abused its discretion in failing to grant a new trial because Doak’s failure to attend the final hearing could not have been intentional or the result of conscious indifference when, according to his uncontested affidavit, he did not have notice. See In re Marriage of Parker, 20 S.W.3d at 817. Accordingly, the result is the same regardless of whether the first prong of Craddock is abrogated by Peralta and Lopez: the trial court abused its discretion in failing to set the default judgment aside and grant a new trial. See Peralta, 485 U.S. at 86-7, 108 S.Ct. 896.

Doak’s issue is sustained.

The judgment of divorce is reversed and the cause is remanded for a new trial.

REAVIS, J., dissenting.

DON H. REAVIS, Justice,

dissenting.

I respectfully dissent from the majority that a reversal of the judgment is required by the decision in LBL Oil Company v. International Power Services, 777 S.W.2d 390 (Tex.1989).

The decision in LBL cannot be disassociated from or taken out of context of its facts. See W.D. Haden Co. v. Dodgen, 158 Tex. 74, 308 S.W.2d 838, 840 (1958). In Lester v. First American Bank, 866 S.W.2d 361, 363 (Tex.App.-Waco 1993, writ denied), noting that the decision in a prior case only applies if the facts of the prior case are substantially the same as those under review, the court concluded that the binding effect of a prior decision cannot be determined without reference to its important facts. Stare decisis applies when the facts of a prior case are substantially the same as the case under consideration. See Edwards v. Kaye, 9 S.W.3d 310, 313 (Tex.App.-Houston [14th Dist.] 1999, pet. denied).

Moreover, “due process of law” is not a technical concept having a fixed content unrelated to time, place, and circumstances; rather, the term implies fundamental fairness in the context of the particular case. See Southwest Prof. Indem. v. Texas Dept. of Ins., 914 S.W.2d 256, 267 (Tex.App.-Austin 1996, writ denied). Further, due process does not guarantee Doak any particular form of state procedure and is satisfied if he had notice of the suit and a reasonable opportunity to be heard. Dohany v. Rogers, 281 U.S. 362, 50 S.Ct. 299, 74 L.Ed. 904 (1930). Because the question of due process is fact intensive, we need to compare the facts in LBL with the facts presented here to also determine whether Doak was not given a reasonable opportunity to be heard on the merits of his case. See Cunningham v. Parkdale Bank, 660 S.W.2d 810, 813 (Tex.1983).

Our review of the facts is limited to such history as is reflected by the opinion of the Texas Supreme Court. In LBL, a Texas plaintiff sued a Texas corporation allegedly doing business as LBL Gas Systems on a sworn account and obtained service on the registered agent. 770 S.W.2d at 390. Although he was never served with citation, R.H. Lindley, a citizen of Oklahoma, filed a pro se motion to dismiss the suit alleging he was the sole owner of the unincorporated business LBL Oil Company, it was an “Oklahoma ‘dba,’ ” and there was no jurisdiction over him because there had been no service. Id. After the trial court overruled Lindley’s motion upon notice to him, without any amendment of plaintiffs pleadings or further notice, the trial court rendered a default judgment. Id. Upon consideration of Lindley’s writ of error, the Court held that because the record established Lindley had no actual or constructive notice of the default hearing, he had been denied due process of law. Id. at 391.

Unlike Lindley, Doak, a Texas resident, was personally served which expressly gave him notice that if he did not file a written answer with the clerk on the Monday next following the expiration of twenty days after service of citation, a “default judgment may be taken against [him].” In addition to the requirements of Rule 99, the citation further notified Doak:

The Court has authority in this suit to enter any judgment or decree dissolving the marriage and providing for the division of property which will be binding on you.
The Court has authority in this suit to enter any judgment or decree in the child/children’s interest which will be binding upon you, including the termination of the parent-child relationship, the determination of paternity, and the appointment of a conservator with authority to consent to the child/children’s adoption.

Neither Doak nor his retained attorney filed a written answer or any other pleading, and such failure to answer constituted an admission of the allegations in Lisa’s petition. Stoner v. Thompson, 578 S.W.2d 679, 682 (Tex.1979); see also Harmon v. Harmon, 879 S.W.2d 213, 217 (Tex.App.Houston [14th Dist.] 1994, writ denied). Had Doak or his attorney filed an answer, per Rule 245, he would have been given “reasonable notice” of the trial setting, not less than 45 days.

Doak does not contend that the applicable Texas Rules of Civil Procedure are unconstitutional or deficient or that his failure to file an answer was not the result of an absence of diligence on his part. Unlike Lindley, who was never notified of the consequences of not filing a written answer, Doak’s lack of notice of the default hearing was the product of his or his counsel’s failure to timely file an answer, and his counsel’s failure to timely file an answer is imputed to Doak. See Dow Chemical Co. v. Benton, 163 Tex. 477, 357 S.W.2d 565, 567 (Tex.1962); Texas Employers Insurance Ass’n v. Wermske, 162 Tex. 540, 349 S.W.2d 90, 94 (1961). Accordingly, I would hold that LBL is not controlling and that Doak was given a reasonable opportunity to be heard on the merits of his case.

No Reversible Error

Moreover, before we may reverse a judgment and order a new trial we must find that the error complained of amounted to such a denial of Doak’s rights as was reasonably calculated to cause and probably did cause the rendition of an improper judgment or prevented Doak from presenting the case on appeal. Tex.R.App. P. 44.1. Further, if the error affects only part, but not all of the case, a judgment may be reversed only as to the part affected by the error. See Tex.R.App. P. 44.1(b); see also Tex.R.App. P. 61.

The harmless error doctrine is well established in Texas. In Walker v. Texas Employers’ Insurance Association, 155 Tex. 617, 291 S.W.2d 298, 301 (1956), the Court held that the rule of presumed prejudice no longer applies in Texas. After that decision, in Dennis v. Hulse, 362 S.W.2d 308, 309 (Tex.1962), the Court held that an appellant must also show the error probably did cause the rendition of an improper judgment. Later, in Lorusso v. Members Mut. Ins. Co., 603 S.W.2d 818, 820 (Tex.1980), the Court held that the harmless error rule “applies to all errors in that it draws no distinction as to the type of errors involved in its requirement for reversal.” Also, we recently held that demonstrating harm is “of import since the burden lay on [appellant] to establish on appeal that the purported error caused the rendition of an improper judgment.” In re Marriage of Scott, 117 S.W.3d 580, 584 (Tex.App.-Amarillo 2003, no pet.).

Doak contends that because he made an appearance in the case, he was entitled to notice of the trial setting and the trial court failed to comply with the rules of notice. Although he had the burden to demonstrate the alleged error probably caused the rendition of an improper judgment or prevented him from presenting his case here, Doak does not address Rule 44.1 nor present a contention, argument, or analysis demonstrating that the error was reversible. Considering that Doak’s failure to file an answer constituted his admission of the allegations in Lisa’s petition and because Doak did not carry his burden to demonstrate that the alleged error probably resulted in an improper judgment, we may not reverse the judgment because the error is not reversible per Rule 44.

For the reasons stated herein, I would affirm the judgment of the trial court.

      . Further reference to a rule of civil procedure will be by reference to "TRCP — .”

      . See Platt v. Platt, 991 S.W.2d 481, 483-84 (Tex.App.-Tyler 1999, no pet.), for discussion of a similar procedural situation.

      . Doak's issue contains a statement to the effect that because he did not receive notice of the default judgment hearing, the trial court did not have jurisdiction over him. He cites no authority for the statement, makes no explanation for the failure to cite authority, and does not provide substantive analysis of the jurisdiction statement in his argument. We deem any assertion that a lack of notice denied the trial court jurisdiction as waived. See Moser v. Davis, 79 S.W.3d 162, 169 (Tex. App.-Amarillo 2002, no pet.).

      . A copy of the reporter’s record of the March 26th hearing held by Judge Anderson was not attached to Doak’s motion for new trial and was not otherwise before the court when Doak’s motion for new trial was denied.

      . In LBL Oil Co., the Supreme Court did not address whether the appellant met the Crad-dock requirements. However, LBL Oil Co. did not involve a motion for new trial. It involved direct appeal by writ of error. Appeal by writ of error constituted a direct attack on the default judgment. See McKanna v. Edgar, 388 S.W.2d 927, 928 (Tex.1965). The question in such an appeal was whether error which would vitiate the trial court's judgment was apparent on the face of the record. Id.

      . We are unable to determine if judgment was rendered against Lindley, individually, or against the corporation, or both.

      . The rules of procedure apply to pro se parties as well as attorneys. Mansfield State Bank v. Cohn, 573 S.W.2d 181, 185 (Tex.1978).

      . See generally Rolon v. Rolon, 907 S.W.2d 670, 671 (Tex.App.-Beaumont 1995, no writ) (holding the trial court erred in allowing the trial to proceed when counsel had not been given notice as required by Rule 245).

      . See also Knight v. Hicks, 505 S.W.2d 638, 644 (Tex.Civ.App.-Amarillo 1974, writ ref'd n.r.e.); Whitfield v. Shames, 484 S.W.2d 615, 616 (Tex.Civ.App.-Amarillo 1972, writ ref'd n.r.e.); Traders & General Ins. Co. v. Randolph, 467 S.W.2d 689, 690 (Tex.Civ.App.-Amarillo 1971 writ dismissed); Gulf Ins. Co. v. Ball, 324 S.W.2d 605, 609 (Tex.Civ.App.-Amarillo 1959 writ ref'd n.r.e.); Ratliff v. Clift, 312 S.W.2d 315, 320 (Tex.Civ.App.-Amarillo 1958 writ ref’d n.r.e.); see also In re B.S.W., 87 S.W.3d 766, 768 (Tex.App.-Texarkana 2002, pet. denied); Hooper v. Sanford, 968 S.W.2d 392, 394 (Tex.App.-Tyler 1997, no pet.); Owens-Corning Fiberglas Corp. v. Malone, 916 S.W.2d 551, 570 (Tex.App.-Houston [1st Dist.] 1996), aff'd, 972 S.W.2d 35 (Tex.1998); Sullivan v. Bickel & Brewer, 943 S.W.2d 477, 484 (Tex.App.-Dallas 1995, writ denied); Cain v. Cain, 870 S.W.2d 676, 681 (Tex.App.-Houston [1st Dist.] 1994, writ denied).

      . Doak's notice of appeal was directed to the judgment taken on May 22, 2003, and not the denial of his motion for new trial.


source: Caselaw Access Project

author: BEA ANN SMITH, Justice. DAVID PURYEAR, Justice,

license: Public Domain

text:
    In re STATE of Texas.
    No. 03-04-00684-CV.
    Court of Appeals of Texas, Austin.
    Feb. 14, 2005.

      Don Cruse, Asst. Solicitor Gen., Austin, for Relator.
    Javier P. Guajardo, Jr., Guajardo & Guajardo, PLLC, Austin, Jose Garza, San Antonio, Daniel R. Torrez, Dallas, for Real Parties in Interest.
    Before Chief Justice LAW, Justices B.A. SMITH and PURYEAR.
   OPINION

BEA ANN SMITH, Justice.

The State of Texas filed a petition for a writ of mandamus with this Court contending that the district court issued a void order assessing attorneys’ fees in a case after this Court’s mandate had issued. Because we hold that the trial court had jurisdiction over the parties and the subject matter at issue, we deny the petition.

BACKGROUND

The State’s petition arises out of proceedings in the district court following the issuance of our mandate in Anderson Courier Service v. State of Texas, 104 S.W.3d 121 (Tex.App.-Austin, March 6, 2003). In Anderson, we considered the constitutionality of a statute prohibiting the use of accident reports generated by the Texas Department of Public Safety or other governmental agencies for pecuniary gain. Id. at 123. Businesses that were engaged in collecting and selling accident reports, reviewing accident reports, or using those reports for solicitation purposes (whom we will collectively refer to as “Anderson Courier”) brought suit under the declaratory judgment act seeking a declaration that the statute is unconstitutional, an injunction restraining enforcement of the statute, and attorneys’ fees. Id. at 122-23. The district court found in favor of the State, upheld the constitutionality of the statute, and denied Anderson Courier’s request for attorneys’ fees. Id. at 123. Anderson Courier appealed to this Court contending that the district court erred by upholding the statute and by denying the requested temporary injunction; they sought a remand to the district court for further proceedings. Anderson Courier did not raise the denial of their request for attorneys’ fees as an issue on appeal. This Court agreed with Anderson Courier that the statute unconstitutionally regulated commercial speech; we reversed the district court’s judgment and rendered judgment. Id. at 126. Our mandate specifically reversed and rendered judgment and further ordered that “appellees pay all costs relating to this appeal, both in this Court and the court below.” An attached bill of costs itemized the fees paid to the clerk’s office and the cost of the reporter’s and clerk’s records.

After the State’s petition for review was denied by the supreme court, Anderson Courier filed a motion in the district court seeking attorneys’ fees. This motion was later incorporated into a motion for supplemental relief pursuant to section 37.011 of the declaratory judgment act which also sought a permanent injunction against the enforcement of the statute. The State filed a plea to the jurisdiction contending that the district court lacked jurisdiction to enter an award of attorneys’ fees. The district court denied the plea to the jurisdiction holding that Anderson Courier was

not prohibited by the Mandate issued in this cause from seeking supplemental relief as authorized by Section 37.011 of the Texas Declaratory Judgment Act; provided, however, that the Court reserves ruling on whether such supplemental relief can or should include an award of attorneys’ fees.

While litigation over the issue of attorneys’ fees continued, Anderson Courier reached an agreement in which the Travis County Attorney agreed to permanently refrain from enforcing the statute and Anderson Courier agreed not to seek attorneys’ fees from Travis County or the Travis County Attorney. The suit against the State remained, and the district court ultimately held that attorneys’ fees were appropriate and awarded $368,857 in attorneys’ fees at the trial level, plus interest, to Anderson Courier pursuant to sections 37.009 and 37.011 of the declaratory judgment act. The State filed both a notice of appeal from the district court’s judgment and this petition for a writ of mandamus.

DISCUSSION

The issue raised in this petition is limited to the question of the district court’s jurisdiction to consider Anderson Courier’s request for attorneys’ fees after this Court had rendered judgment and issued its mandate. So long as the district court had jurisdiction, the district court’s order is not void, the question of attorneys’ fees is appropriately heard on appeal, and the petition should be denied.

Mandamus is proper if a trial court issues an order beyond its jurisdiction. In re Southwestern Bell Tel. Co., 35 S.W.3d 602, 605 (Tex.2000). We recently explained that “when a trial court exceeds its jurisdiction in issuing an order, the order is void, the relator need not show that he had no adequate remedy by appeal, and mandamus relief is appropriate.” In re Velte, 140 S.W.3d 709, 712 (Tex.App.-Austin 2004, orig. proceeding).

“Jurisdiction refers to a court’s authority to adjudicate a case.” Reiss v. Reiss, 118 S.W.3d 439, 443 (Tex.2003); Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 75 (Tex.2000). So long as the court entering a judgment has jurisdiction of the parties and the subject matter and does not act outside its capacity as a court, the judgment is not void. Reiss, 118 S.W.3d at 443; Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex.1990). “A court’s action contrary to a statute or statutory equivalent” that does not involve jurisdiction merely renders the judgment voidable so that it may be “corrected through the ordinary appellate process or other proper proceedings.” Reiss, 118 S.W.3d at 443.

The State contends that, after this Court rendered judgment in the appeal, the district court only had jurisdiction to enforce the appellate mandate. See Dallas County v. Sweitzer, 971 S.W.2d 629, 630 (Tex.App.Dallas 1998, no pet.) (district court has no jurisdiction to review or interpret appellate judgment). Our mandate only ordered the State to pay “costs” relating to the appeal, and thus, the state argues that the award of attorneys’ fees was beyond the scope of the mandate and outside of the district court’s jurisdiction.

There is a legitimate question as to whether a trial court’s order that is outside of the scope of an appellate mandate is void or merely voidable. The Houston Court of Appeals, Fourteenth District, thoroughly discussed the issue in Madeksho v. Abraham, Watkins, Nichols, & Friend, 112 S.W.3d 679, 685 (Tex.App.-Houston [14th Dist.] 2003, pet. denied) (en banc), and concluded that a trial court may abuse its discretion by issuing an order beyond the scope of an appellate mandate, but that subject-matter jurisdiction is not raised. The Dallas Court of Appeals has expressed the opposite position. See Dallas County v. Sweitzer, 971 S.W.2d 629, 630 (Tex.App.-Dallas 1998, no pet.); but see Kenseth v. Dallas County, 126 S.W.3d 584, 599 (Tex.App.-Dallas 2004, pet. denied) (order not void where trial court misinterpreted mandate). However, we need not resolve this question in this case because we find that the trial court had jurisdiction under section 37.011 of the declaratory judgment act.

Our review of the record indicates that the district court awarded attorneys’ fees as supplemental relief pursuant to section 37.011 of the declaratory judgment act. The issue was clearly framed as such in the district court’s order denying the State’s plea to the jurisdiction and the final judgment awarding attorneys’ fees cited sections 37.009 and 37.011 of the declaratory judgment act, not the appellate mandate.

Section 37.011 allows for further relief based on a declaratory judgment upon a showing that the relief is “necessary and proper.” Tex. Civ. Prac. & Rem. Code Ann. § 37.011 (West 1997); Texas Dep’t of Pub. Safety v. Moore, 985 S.W.2d 149, 156 (Tex.App.-Austin 1998, no pet.). Although we agree with the State that the declaratory judgment act does not independently create jurisdiction or substantive rights, see Continental Cas. Co. v. Rivera, 124 S.W.3d 705, 712-13 (Tex.App.-Austin 2003, pet. denied), section 37.011 of the act allows for the district court to grant relief ancillary to a prior declaratory judgment. See Genecov Group Inc. v. Roosth Prod. Co., 144 S.W.3d 546, 553 (Tex.App.-Tyler 2003, pet. denied); Moore, 985 S.W.2d at 157.

Courts have granted supplemental relief under the declaratory judgment act after an appeal and may award relief not requested on appeal. In Valley Oil Co. v. City of Garland, 499 S.W.2d 333, 335 (Tex.App.-Dallas 1973, no writ), Valley Oil successfully challenged, in the trial court, a city ordinance that would have forced it to close a gas station. The city appealed the issue of whether the ordinance was valid but did not raise the trial court’s denial of an injunction restraining Valley Oil from operating the gas station. The court of appeals reversed and rendered judgment that the ordinance was valid. Id. After the mandate from the court of appeals issued, the city again sought an injunction against Valley Oil based on the ordinance. Id. The trial court granted the injunction, and Valley Oil appealed contending that the City did not raise the issue of the injunction on appeal and was, therefore, precluded from further litigation on the matter. Id. The court of appeals affirmed the trial court’s order granting the injunction. Id. at 336. Despite the fact that the issue was not raised on appeal, the court explained that the city was entitled to further relief under the declaratory judgment act:

The rationale for this apparent departure from the usual rule of res judicata is that the losing party in a declaratory judgment act can normally be expected to recognize the rights declared by the judgment and act accordingly, but that if he fails to do so, the court should have ample power to enforce the judgment by subsequent coercive orders, whether or not such relief was sought in the original action.

Id. at 336. The court of appeals specifically addressed the issue of jurisdiction, holding that the supplemental relief provision of the declaratory judgment act established jurisdiction, and that a request for relief may properly be brought in the same suit in which the original declaratory relief was granted. Id.

The dissent cites Howell v. Texas Workers’ Compensation Commission and Valley Oil for the proposition that the court’s power to grant ancillary relief under section 37.011 requires a showing that a party will not comply with the underlying declaratory judgment. See Howell, 143 S.W.3d 416, 433 (Tex.App.-Austin, no pet. h.); Valley Oil, 499 S.W.2d at 335-36. These cases confirm that the party seeking supplemental relief must make a showing that the requested relief is necessary and proper to enforce the declaratory judgment. See Howell, 143 S.W.3d at 433; Valley Oil, 499 S.W.2d at 335-36. They do not hold that a trial court lacks subject matter jurisdiction absent such a showing. A trial court’s jurisdiction to act does not simply dissolve if an appellate court later disagrees with that court’s determination that the relief was necessary and proper.

We also look to federal case law because section 37.002(c) of the declaratory judgment act compels us to construe the statute in harmony with federal law concerning declaratory judgments. See Tex. Civ. Prac. & Rem.Code Ann. § 37.002(c) (West 1997). The federal declaratory judgment act contains a “further relief’ provision similar to our statute. See 28 U.S.C. § 2202. Section 2202 authorizes the federal courts to grant “further necessary or proper relief based on a declaratory judgment or decree.” Id. A number of federal court decisions have made it clear that a trial court has jurisdiction to consider a request for “further relief’ under the federal declaratory judgment act at any time, even after a completed appeal. See Insurance Sevs., of Beaufort, Inc. v. Aetna Cas. & Sur. Co., 966 F.2d 847, 851-52 (4th Cir.1992) (court retains jurisdiction to grant further relief to give effect to a declaratory judgment); Horn & Hardart Co. v. National Rail Passenger Corp., 843 F.2d 546, 548 (D.C.Cir.1988) (neither completed appeal nor lengthy period of delay deprives trial court of jurisdiction under 28 U.S.C. 2202); McNally v. American States Ins. Co., 339 F.2d 186, 187 (6th Cir.1964); In re Bicoastal Corp., 156 B.R. 327, 331 (Bankr.M.D.Fla.1993).

We hold that the district court had jurisdiction to consider the request pursuant to section 37.011 of the declaratory judgment act. See Valley Oil, 499 S.W.2d at 336; see also Insurance Servs., of Beaufort, 966 F.2d at 851-52; Horn & Hardart, 843 F.2d at 548. Whether the district court’s award of attorneys’ fees was “necessary or proper” will be addressed in the appeal pending before this Court. See Reiss, 118 S.W.3d at 443 (errors other than jurisdiction to be corrected through ordinary appellate-process). The district court’s order awarding attorneys’ fees was not void and the State’s petition for a writ of mandamus is denied.

DAVID PURYEAR, Justice,

dissenting.

Mandamus is an appropriate means of compelling compliance with an appellate mandate. Saudi v. Brieven, No. 01-03-00865-CV, 2004 WL 2415659, at *5, 2004 Tex.App. LEXIS 9595, at *17 (Houston [1st Dist.] 2004, pet. filed) (quoting Schliemann v. Garcia, 685 S.W.2d 690, 692 (Tex.App.-San Antonio 1984, no writ)). The majority observes that mandamus is also proper when a trial court acts without jurisdiction and issues a void order. In re Southwestern Bell Tel. Co., 35 S.W.3d 602, 605 (Tex.2000); In re Velte, 140 S.W.3d 709, 712 (Tex.App.-Austin 2004, orig. proceeding). A judgment is void if the court lacked jurisdiction over the parties or subject matter, had no jurisdiction to enter the judgment, or had no capacity to act as a court. Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex.1990). Because I disagree with the majority’s conclusion that the trial court had jurisdiction over the issue, I dissent from the decision to deny the petition for writ of mandamus.

Factual Background

As noted by the majority, the real parties in interest (collectively, “Anderson Courier”) raised only one issue on appeal — whether the statute was constitutional. Anderson Courier did not raise the issue of whether it could recover attorney’s fees incurred in prosecuting the underlying declaratory judgment action. We determined the only issue presented, holding the statute to be unconstitutional, and rendered judgment; we ordered the State to pay all costs but did not remand any part of the proceeding to the trial court for further determination or interpretation. Our judgment stated that the trial court’s judgment was reversed, that judgment was rendered that the statute was unconstitutional, and that the State was to “pay all costs relating to this appeal, both in this Court and the court below.” The mandate commanded the trial court “to observe the order of [the] Court of Appeals ... and in all things have the order duly recognized, obeyed, and executed.” The bill of costs referenced by the majority itemized fees and costs incurred in the appeal.

After our mandate issued, Anderson Courier filed in the trial court a “Motion for Attorneys’ Fees and Costs,” requesting attorney’s fees incurred in the underlying declaratory action as prevailing parties under the UDJA. See Tex.Code Civ. Prac. & Rem.Code Ann. § 37.009 (West 1997). When the State objected, Anderson Courier filed a “Motion for Supplemental Relief,” seeking attorney’s fees as “supplemental relief pursuant to Section 37.011” of the UDJA. Anderson Courier argued that our mandate “reinvested]” the trial court with “jurisdiction and authority to grant supplemental relief that is necessary and proper.” Anderson Courier concluded its motion for supplemental relief with a prayer that the trial court grant “necessary and proper supplemental relief including the issuance of a permanent injunction against the enforcement of’ the unconstitutional statute as well as attorney’s fees and costs.

Waiver

First, I would note that by its failure to request this Court to consider whether it was entitled to attorney’s fees as part of the original appeal, Anderson Courier waived the issue. See Tex.R.App. P. 38.1 (appellant must present issues presented for appellate review); Lairsen v. Slutzky, 80 S.W.3d 121, 130 (Tex.App.-Austin 2002, pet. denied) (party waives issue by its failure to present argument or cite authority). Anderson Courier’s motions filed after our mandate issued are nothing more than untimely attempts to resurrect an issue that it failed to raise in its original appeal. This is exactly the kind of piecemeal litigation disfavored in Texas. See Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 30 n. 29 (Tex.1994); Bard v. Charles R. Myers Ins. Agency, Inc., 839 S.W.2d 791, 796 (Tex.1992); State v. Ruiz Wholesale Co., 901 S.W.2d 772, 776 (Tex.App.-Austin 1995, no writ).

Anderson Courier’s Request for “Supplemental Relief’

No Grounds Alleged for Supplemental Relief

In the prayer for relief in its second motion, the motion for “supplemental relief,” Anderson Courier made a cursory request for an injunction against enforcement of the unconstitutional statute. However, there was no such request made in the body of the motion. Nor did Anderson Courier even allege the possibility that the State might attempt to enforce the statute in spite of our opinion, much less argue that injunctive relief was necessary or proper.

Without evidence to the contrary, we presume that a defendant will obey and abide by a declaratory judgment. Howell v. Texas Workers’ Compensation Comm’n, 143 S.W.3d 416, 433 (Tex.App.-Austin 2004, no pet. h.); In re City of Dallas, 977 S.W.2d 798, 804 (Tex.App.-Fort Worth 1998, orig. proceeding); Valley Oil Co. v. City of Garland, 499 S.W.2d 333, 336 (Tex.Civ.App.-Dallas 1973, no writ). Although a declaratory judgment does not bar a later request and proceeding for injunctive relief based on the earlier judgment, such ancillary injunctive relief should issue only upon a showing that such relief is necessary and proper: “The UDJA allows for injunctive relief ancillary to a declaration of rights in some situations.... This power to grant relief is conditioned on such relief being necessary and proper.” Hays County v. Hays County Water Planning P’ship, 106 S.W.3d 349, 362 (Tex.App.-Austin 2003, no pet.). Supplemental relief that may be sought and granted under section 37.011 is relief necessary to “enforce a declaratory judgment.” Howell, 143 S.W.3d at 433. Attorney’s fees play no role in the enforcement of a judgment and, thus, are not the proper subject of such a request.

In this situation, the exercise of the court’s power to grant ancillary relief requires some showing that the State will not comply with the judgment. Id.; Valley Oil, 499 S.W.2d at 335-36; see Camarena v. Texas Employment Comm’n, 754 S.W.2d 149, 151 (Tex.1988) (injunctive relief only proper when there is live controversy; trial court may not grant injunction based on hypothetical situation which might arise); Priest v. Texas Animal Health Comm’n, 780 S.W.2d 874, 875 (Tex.App.-Dallas 1989, no writ) (to obtain in-junctive relief, applicant must show wrongful act, imminent harm, irreparable injury, and no adequate remedy at law). However, Anderson Courier did not allege that the State would not abide by our declaratory judgment, much less present evidence of any lack of compliance, and in fact, as discussed below, obtained a stipulation that the county attorney would not attempt to enforce the statute. A review of Anderson Courier’s motions shows that the relief requested was not ancillary injunc-tive relief as could be ordered following a proper showing under section 37.011, but was for attorney’s fees alone. Anderson Courier did not plead for and could not have been granted any supplemental relief under section 37.011.

Not a Proper Motion

In addition to its failure to show a need for ancillary relief, Anderson Courier filed a motion, not a petition for supplemental relief. Section 37.011 of the UDJA allows a trial court to grant further relief if necessary or proper, but such application must be made by petition. Tex. Civ. Prac. & Rem.Code Ann. § 37.011 (West 1997). Anderson Courier’s motions, initially seeking only attorney’s fees and then seeking “supplemental relief’ in a blatant effort to establish jurisdiction under section 37.011, do not comply with that section, and I would find the motions insufficient to establish jurisdiction under section 37.011.

Anderson Courier Mooted Its Own Issue

Finally, I note that Anderson Courier brought forth an agreed order between the county attorney and Anderson Courier. In the order, the county attorney agreed that Anderson Courier had incurred considerable attorney’s fees and agreed not to contest Anderson Courier’s attempts to obtain an award of attorney’s fees. The county attorney also agreed to “permanently refrain” from enforcing the statute, reserving the right to enforce the statute if it were declared constitutional by a higher court. This order shows that the only agency with the legal authority to enforce the statute in violation of our judgment had no such intentions and therefore that there was no possible controversy requiring ancillary relief. The agreed order essentially moots Anderson Courier’s request for ancillary or supplemental injunc-tive relief. Without a showing of any ripe controversy, “a threshold issue that implicates subject matter jurisdiction” and “emphasizes the need for a concrete injury for a justiciable claim to be presented,” the trial court lacked jurisdiction. Patterson v. Planned Parenthood of Houston & SE Tex., Inc., 971 S.W.2d 439, 442 (Tex.1998).

Did Our Mandate “Reinvest” the Trial Court with Jurisdiction?

An appellate mandate is “ £a command of the court, which the court is authorized to give and which must be obeyed.’ ” Saudi, 2004 WL 2415659, at *5, 2004 Tex.App. LEXIS 9595, at *17 (quoting Williams v. State, 899 S.W.2d 13, 15 (Tex.App.-San Antonio 1995, no pet.)). A trial court has no jurisdiction to interpret or review a judgment by the court of appeals, and its only authority is to carry out the appellate mandate. Dallas County v. Sweitzer, 971 S.W.2d 629, 630 (Tex.App.-Dallas 1998, no writ); see also Teston v. Brannin, 261 S.W. 788, 789 (Tex.Civ.App.-El Paso 1924, no writ) (once supreme court rendered judgment, “the case was finally disposed of and upon the fihng of the mandate ... nothing further remained for the [trial] court to do except issue the necessary process to execute the judgment ... rendered”).

When an appellate judgment does not remand any part of a cause for further proceedings and does not authorize an award of damages or reconsideration of any issue, a trial court lacks jurisdiction to award additional relief or damages. Sweitzer, 971 S.W.2d at 631 (trial court’s judgment was void because trial court lacked jurisdiction to consider appellees’ motion “absent remand from this Court”); Harris County Children’s Protective Servs. v. Olvera, 971 S.W.2d 172, 177 (Tex. App.-Houston [14th Dist.] 1998, pet. denied) (although mandate ordered appellant to pay all costs, “mandate did not confer any jurisdiction on the trial court to act in the case,” and court abused its discretion in awarding appellate attorney’s fees as costs); Martin v. Credit Protection Ass’n, Inc., 824 S.W.2d 254, 255-57 (Tex.App.Dallas 1992, writ dism’d w.o.j.) (court held that trial court lacked jurisdiction to award attorney’s fees after reverse-and-render order awarding “costs”; “[e]ven if we allowed a trial court discretion in its ministerial duty of carrying out the terms of a mandate in a cause that was reversed and rendered, the terms of the mandate here are plainly stated” and “[gjranting additional relief would thus interfere with the mandate”); see Kenseth v. Dallas County, 126 S.W.3d 584, 599 (Tex.App.-Dallas 2004, pet. denied) (distinguishing Sweitzer, where “the only judgment upheld ... was for injunctive relief; no monetary award of any sort had been approved, and yet the trial court made such an award,” from cause at hand, where appellate mandate required disbursement of funds held in trial court’s registry; trial court “must have had jurisdiction to make disbursement orders” and thus had jurisdiction over parties and “subject matter at issue (here, the funds in its registry)”); see also Madeksho v. Abraham, Watkins, Nichols & Friend, 112 S.W.3d 679, 696-97 (Tex.App.-Houston [14th Dist.] 2003, pet. denied) (Hudson, J., dissenting) (“When an appellate court affirms the judgment of the trial court or renders a judgment the trial court should have rendered, that judgment becomes the judgment of both courts.... In other words, the judgment of the trial court stands in the same manner as if there had been no appeal.”). But see Ma-deksho, 112 S.W.3d at 683-84 (plurality op.) (Olvera was “somewhat ambiguous” on whether trial court’s award of attorney’s fees as costs “was a question of jurisdiction or a question of simple error. Although we stated the trial court had ‘no jurisdiction’ to do anything beyond the appellate mandate, we also found the trial court ‘abused its discretion’ in entering the new awards.”).

In this case, we rendered judgment and ordered the State to pay all costs. There was no money or other subject matter held in a registry that had to be disbursed. Our judgment and mandate did not reinvest the trial court with any jurisdiction to “interpret” our orders, and the bill of costs itemized the fees and costs incurred in the appeal, thus obviating any need for the trial court to make determinations as to costs.

Conclusion

Anderson Courier waived any claim for attorney’s fees incurred in the original appeal and did not show its entitlement to attorney’s fees in the enforcement of our judgment. The majority seems to hold that the trial court’s mere reference to section 37.011 served to establish jurisdiction over this matter without regard to whether the requirements of section 37.011 were met. Anderson Courier’s motion, even if we were to consider it a proper “petition” under section 37.011, did not seek the kind of relief allowable under the statute and did not allege any necessity for such relief. We should not view such a defective motion as bestowing or “reinvesting” the trial court with jurisdiction under section 37.011.

The trial court’s plenary powers were long expired, Tex.R. Civ. P. 329b, and lacking a remand order or a proper petition seeking necessary supplemental relief, the trial court was without jurisdiction to hold further proceedings in this cause. Clearly, it was error for the trial court to have awarded attorney’s fees as “costs.” More than that, however, the trial court’s award was void for lack of jurisdiction. Relief by way of mandamus is therefore a proper remedy. In re Southwestern Bell Tel. Co., 35 S.W.3d at 605. I would grant mandamus relief and I respectfully dissent from the majority’s decision to deny such relief.

      . By contrast, the dissent discusses issues of waiver and the merits of whether Anderson Courier's request for attorneys’ fees constitutes necessary and proper supplemental relief under section 37.011 of the declaratory judgment act. This is presumably because the dissent believes that the issue of jurisdiction is interrelated with the merits of Anderson Courier’s claim. Because we do not find that subject matter jurisdiction is implicated, we will refrain from addressing the dissent's arguments on the merits so as to avoid prejudging the State's appeal pending before us.

      . The language of the declaratory judgment act’s supplemental relief provision cited in Valley Oil, is, in relevant part, identical to the current statute. Compare Tex. Civ. Prac. & Rem.Code Ann. § 37.011 (West 1997) with Tex.Rev.Civ. Stat. Ann. art. 2524-1 (Vernon 1965).

      . I note that the trial court’s order stated that the attorney’s fees were “reasonable and necessary.” This tracks language used in section 37.009 of the UDJA, see Tex. Civ. Prac. & Rem.Code Ann. § 37.009 (West 1997), not section 37.011, which requires that supplemental relief be "necessary or proper.” Id. § 37.011 (West 1997). This is further indication that the trial court did not properly consider section 37.011 and its limited grant of power to give supplemental relief.


author: BEA ANN SMITH, Justice.

text:
    HARTFORD CASUALTY INSURANCE COMPANY, Appellant, v. The STATE of Texas, Appellee.
    No. 03-04-00072-CV.
    Court of Appeals of Texas, Austin.
    Feb. 17, 2005.

      David W. Holman, Byron C. Keeling, Diana M. Sangalli, Holman & Keeling, James D. Cupples, Bridget Chapman, Williams, Cupples & Chapman, LLP, Houston, for appellant.
    Jim Hill, David Randell, Asst. Atty’s, Gen., Bankruptcy, Collections Division, Austin, for appellee.
    Before Chief Justice LAW, Justices B.A. SMITH and PEMBERTON.
   OPINION

BEA ANN SMITH, Justice.

In this case, we construe finance code section 153.402(c) to determine whether the phrase “may collect from the proceeds of a bond” allows the State to collect from a surety an administrative penalty assessed against the surety’s principal without first providing the surety with notice and opportunity for a hearing. Appellant, Hartford Casualty Insurance Company (Hartford), contends that since the statutory grant of authority regarding administrative penalties found in finance code section 153.402(c) is discretionary, its constitutional right to procedural due process entitles it as a surety to notice and opportunity for a hearing before it can be held liable for an administrative penalty assessed against its principal. The State argues that it would have been useless to provide Hartford with notice and a hearing because Hartford was not a target of the administrative penalty. The district court held that the penalty may be collected from Hartford.

In three issues on appeal, Hartford contends that (1) construing finance code section 153.402(c) to allow the State to collect from a surety, without notice or opportunity for a hearing, the administrative penalty assessed against its principal violates the due process clauses of both the United States and Texas Constitutions; (2) the trial court’s order violates the Texas Administrative Procedure Act (the APA), Administrative Code, and Finance Code; and that (3) the trial court erred by awarding attorney’s fees to the State. Because when possible we interpret a statute in a manner that renders it constitutional, we hold that notice and opportunity for a hearing are implied into finance code section 153.402(c). FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 873 (Tex.2000). Thus, Hartford was denied its right to procedural due process. We reverse and render judgment that the State cannot collect the administrative penalty from Hartford.

Background

In 1997, Ernesto and Aida Bolmey requested and obtained a license authorizing their company, Airport Exchange, to operate four currency exchange shops at various locations in Texas. To satisfy the licensing requirements, Airport Exchange had to post a $300,000 bond with the Commissioner. Hartford agreed to furnish the bond and act as surety for Airport Exchange. The surety contract stated that the bond was “for the use and benefit of the Department and of any creditor of the applicant [Airport Exchange] for any liability incurred on any currency exchange or transmission conducted by the applicant as licensee.”

In December 2001, Airport Exchange’s counsel informed the Department that Airport Exchange had ceased doing business as a currency exchange company. He also admitted that Airport Exchange had failed to transmit funds that it had received from customers. He informed the Commissioner that Hartford, as surety, would have to fulfill the unmet obligations of his client. The day after receiving this information, the Commissioner, claiming a threat of immediate and irreparable harm, issued a cease and desist order against Airport Exchange and the Bolmeys. The Commissioner further ordered the Department to immediately seize all funds held in Airport Exchange’s bank accounts. The Department determined that in 186 separate transactions Airport Exchange had accepted $88,438.52 from customers, which it failed to transmit. Ernesto Bolmey admitted that he instructed his business manager to stop transmitting the funds “so that they could use the money to help finance their business operations.”

Airport Exchange appealed the Commissioner’s cease and desist order to the Texas Finance Commission. The Commissioner filed a separate action with the Finance Commission seeking an administrative penalty against Airport Exchange and the Bolmeys. The Finance Commission referred both matters to an administrative law judge (the ALJ) who consolidated the two matters and scheduled a hearing. Hartford was not notified of the hearing.

The hearing was held on May 23, 2002. No representative of Airport Exchange or the Bolmeys appeared; likewise, Hartford sent no representatives since it did not know about the hearing. The only parties who appeared were the Department and the Commissioner. In his proposal for decision, the ALJ noted that Airport Exchange’s failure to appear at the hearing was “some evidence supporting an adverse inference” against it. The ALJ found that Airport Exchange had violated multiple sections of the finance code and recommended that the appeal be denied. He also determined that the Commissioner had “the discretion to impose the requested penalty in the amount of $37,200.” There was no finding that Hartford, as surety, had violated any section of the finance code. Indeed, the ALJ noted that Hartford had assisted the Department in reimbursing all of the identified aggrieved parties. Other than that acknowledgment, Hartford is not mentioned in either the proposal for decision or the Commission’s final order.

On January 27, 2003, the State sent a demand letter asking Hartford to pay the $37,200 administrative penalty that had been imposed against Airport Exchange. This letter was the first notice that Hartford had received regarding the administrative penalty. Hartford declined to pay the penalty. In May 2003, the State commenced the present action against Airport Exchange, its owners — Ernesto & Aida Bolmey — and Hartford, seeking payment of the penalty. The State argued to the trial court that finance code section 153.402(c) allows it to collect the penalty from the proceeds of the bond. Because neither Airport Exchange nor its owners responded to the State’s petition, the trial court entered a default judgment against Airport Exchange and the Bolmeys. At the conclusion of the bench trial, the trial court ruled that the State could collect the penalty from Hartford and further ordered Hartford to pay the State’s attorney’s fees. This appeal followed.

Standard of Review

In this case, we are asked to construe finance code section 153.402(c) to determine whether it allows the State to collect from a surety an administrative penalty assessed against the surety’s principal without first providing the surety with notice and opportunity for a hearing. Statutory construction is a matter of law, which we review de novo. Johnson v. City of Fort Worth, 774 S.W.2d 653, 656 (Tex.1989). When interpreting a statute, our primary task is to ascertain and effectuate the intent of the legislature. Fleming Foods of Tex. v. Rylander, 6 S.W.3d 278, 284 (Tex.1999); Union Bankers Ins. Co. v. Shelton, 889 S.W.2d 278, 280 (Tex.1994); Sharp v. Clearview Cable TV, Inc., 960 S.W.2d 424, 426 (Tex.App.-Austin 1998, pet. denied). Disputed provisions are to be considered in context, not in isolation. Texas Workers’ Comp. Comm’n v. Continental Cas. Co., 83 S.W.3d 901, 905 (Tex.App.-Austin 2002, no pet.); see also Fitzgerald v. Advanced Spine Fixation Sys., 996 S.W.2d 864, 866 (Tex.1999). Texas courts are to consider, among other factors, the language of the statute, legislative history, the nature and object to be obtained, and the consequences that would follow from alternative constructions, even when a statute is not ambiguous on its face. Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex.2001); Union Bankers Ins. Co., 889 S.W.2d at 280. We further presume that in enacting a statute the legislature intended to comply with the federal and state constitutions. Tex. Gov’t Code Ann. § 311.021 (West 1998).

Discussion

Due Process

In its first issue, Hartford contends that assessing an administrative penalty against a surety without affording it notice and an opportunity for a hearing deprives it of a property right without the constitutionally guaranteed due process of law. Texas Workers’ Comp. Comm’n v. Patient Advocates, 136 S.W.3d 643, 658 (Tex.2004). Individuals must be afforded both substantive and procedural due process. Id. Substantive due process protects against the arbitrary and oppressive exercise of government power, regardless of the fairness of the procedures. Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). The procedural due process guarantee protects against arbitrary takings. County of Sacramento v. Lewis, 523 U.S. 833, 846, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998).

The due process clause in the state constitution requires the same level of due process as the federal constitution. University of Tex. Med. Sch. at Houston v. Than, 901 S.W.2d 926, 929 (Tex.1995); see also Bell v. Texas Workers Comp. Comm’n, 102 S.W.3d 299, 304 (Tex.App.-Austin 2003, no pet.) (stating that in matters of procedural due process, Texas courts traditionally follow federal due process interpretations and consider federal decisions on these matters persuasive authority). Questions of procedural due process require an analysis of (1) whether the plaintiff has a constitutionally protected property or liberty interest at stake, and (2) if so, what process is due to sufficiently protect that interest. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 569-70, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). At a minimum, due process requires notice and an opportunity to be heard at a meaningful time and in a meaningful manner. Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976); Perry v. Del Rio, 67 S.W.3d 85, 92 (Tex.2001); University of Tex. Med. Sch. at Houston, 901 S.W.2d at 930.

Finance code section 153.402(c) is silent regarding the procedural due process rights of a surety. However, if possible, we construe a statute in a manner that renders it constitutional. FM Props. Operating Co., 22 S.W.3d at 873. Additionally, as we will discuss, Hartford was entitled to party status under the APA. Thus, we hold that the due process guarantees of notice and opportunity for a hearing are implied into finance code section 153.402(c).

Therefore, because there is no dispute that Hartford has a property interest in the $37,200 penalty assessed, we need only decide whether, under these circumstances, that interest was sufficiently protected. The State argues that Hartford received all of the due process to which it was entitled under Texas law. The State argues that (1) its interpretation of finance code section 153.402 does not violate Hartford’s due process rights; (2) Hartford’s presence at the administrative hearing would have been meaningless; (3) when a surety agrees to be hable for a particular judgment, notice is not necessary; and (4) Hartford’s substantive due process rights were satisfied.

Finance Code Section 153.402

The liability of a surety is determined by the language of the bond. Geters v. Eagle Ins. Co., 834 S.W.2d 49, 50 (Tex.1992); Howze v. Surety Corp. of Am., 584 S.W.2d 263, 266 (Tex.1979). Additionally, a statute mandating the bond is made part of the bond contract, and is controlling. Geters, 834 S.W.2d at 50. Therefore, the State contends that the language of the bond, read in conjunction with finance code sections 153.109 and 153.402, provided Hartford with adequate notice that it was within the Commissioner’s authority to collect the administrative penalty assessed against Airport Exchange from the bond proceeds.

Finance code section 153.109 requires a license holder to post a bond or irrevocable letter of credit in favor of the Department. Tex. Fin.Code Ann. § 153.109 (West Supp. 2004-05). Finance code section 153.402(a) grants the Commissioner authority to order a license holder to pay an administrative penalty if it is found that the licensee violated finance code chapter 153 or any rule or order made pursuant to chapter 153. Tex. FimCode Ann. § 153.402(a)(l-3) (West 1998). Finance code section 153.402(c) states that “the penalty may be paid and collected from the proceeds of a bond, letter of credit, or deposit required under section 153.109.” Tex. FimCode Ann. § 153.402(c) (West 1998).

Hartford agrees that the language of sections 153.402(a) and (c) is implied into its bond with Airport Exchange. However, Hartford argues that the language in section 153.402(c) “may be paid and collected from the proceeds of the bond” grants a discretionary right to collect an administrative penalty from a bond, not a statutory mandate to do so. Hartford claims that the mere possibility that the Commissioner may seek to collect the penalty from the bond proceeds is insufficient to adequately notify a surety that the Commissioner would do so in a particular case.

The word “may” creates a discretionary authority or grants permission or a power. Tex. Gov’t Code Ann. § 311.016(1) (West 1998). Here, Hartford was on notice that the Commissioner could collect the penalty from the bond, but it had no knowledge that the Commissioner would attempt to do so in this case. It was known by all parties that Hartford was the surety for Airport Exchange, yet no one notified Hartford of the administrative hearing. This lack of notice deprived Hartford of the opportunity to address the amount of the bond and to argue that, based on the facts of this case, the penalty should not be collected from Hartford. Therefore, we conclude that section 153.402(c) does not by itself or in conjunction with the bond agreement provide Hartford with adequate notice to protect its interest in the $37,200 sought by the State.

Administrative Hearing

The State contends that Hartford’s presence at the administrative hearing would have been meaningless because the hearing concerned Airport Exchange’s appeal of the cease and desist order, as well as the Commissioner’s imposition of an administrative penalty. Therefore, the State suggests that Hartford’s presence at the hearing was useless because the statute imposed the administrative penalty without regard to the surety’s wrongdoing. See Bell, 102 S.W.3d at 305 (due process does not require a useless hearing when there are no factual issues to dispute).

The State’s argument fails to address the discretion afforded to the Commissioner by the statute: Should an administrative penalty be assessed when it is clear that only the surety, not the wrongdoer, will have to pay, and if so, in what amount? Hartford contends that because the Commissioner had the discretion not to collect the penalty from the bond, Hartford was entitled to notice and an opportunity to advocate that position. We agree that the lack of notice deprived Hartford of an opportunity to protect its interest in the $37,200 sought by the State.

We are not swayed by the State’s contention that the APA does not require notice in this case. Essentially, the State avers that if a person is not named as a party they cannot ever gain party status. The Finance Commission’s rules of procedure for contested case hearings and appeals state, “[P]arty status is limited to persons or entities with a legal right, duty, privilege, power, or economic interest that may be directly affected by the outcome of the proceeding or who are entitled to be parties pursuant to a statute or regulation governing the particular proceeding.” 7 Tex. Admin. Code § 9.15(b) (West 2004). The rules further state, “[P]arty status will not be conferred on persons or entities that seek to litigate issues that are not by statute or regulation made part of the administrative proceeding in which party status is sought.” Id. § 9.15(c)(2). The State insists that the Commissioner’s decision to collect the penalty from the bond was not an issue at the hearing. However, because the statutory right to collect from the proceeds of the bond was discretionary, the Commissioner’s decision to do so or not was at issue. Thus, Hartford had an economic right that was directly affected by the outcome of the hearing, and the issue it was seeking to litigate was made part of the hearing by statute. Therefore, party status could have been properly conferred on Hartford.

Particular Judgment Bonds

The State relies on Howze v. Surety Corp. of America, 584 S.W.2d at 265 to contend that Hartford was not entitled to notice of suits involving Airport Exchange. In Howze, the supreme court discussed the general rule in Texas that when a surety agrees to be liable for a particular judgment, then no notice need be given. Id. “However, when a surety contracts to be generally liable for all the undertakings of the principal, the surety must be given notice and an opportunity to defend the case before it is bound by the judgment.” Id. The State claims that the bond in this case is a particular judgment bond and consequently, Hartford was not entitled to notice. We are not persuaded that Howze controls this dispute.

Applying Howze to this case undermines the purpose of the general rule distinguishing particular judgment bonds from general undertaking bonds. The idea that it is unnecessary to provide notice to a surety who furnished a particular judgment bond is based on the notion that any notice would be redundant because the surety agreed to be hable for specifically enumerated acts of the principal. A surety who furnishes this type of bond can and should adjust the premiums based on the principal’s potential liability for those specific acts. Here, neither the bond nor the relevant statute imposes liability for all administrative penalties. Section 153.402(c) only states that the administrative penalty may be collected from the bond. As we discussed earlier, the Commissioner’s right to collect from the bond proceeds is discretionary. As a result, Hartford did not have knowledge at the time it agreed to furnish Airport Exchange’s bond that it would automatically be held liable for administrative penalties assessed against Airport Exchange. Therefore, we conclude that Howze does not control this case.

We conclude that notice and an opportunity to be heard were required before the Commissioner could collect the administrative penalty from Hartford. Failing that, Hartford’s right to procedural due process was violated. See Perry, 67 S.W.3d at 92. We reverse the judgment of the trial court.

Attorney’s Fees

The State sought and received attorney’s fees pursuant to government code section 2107.006. Tex. Gov’t Code Ann. § 2107.006 (West 2000) (stating that attorney general may recover reasonable attorney’s fees on behalf of state in any proceeding in which the state seeks to collect or recover a delinquent obligation or damages). Having reversed the trial court’s judgment, we also reverse its award of attorney’s fees.

Conclusion

Because we hold that Hartford’s right to procedural due process was violated, we reverse the judgment of the trial court and render judgment that the State cannot collect the administrative penalty from Hartford.

      . Section 153.402(c) states that "the penalty may be paid and collected from the proceeds of a bond, letter of credit, or deposit required under section 153.109 or 153.110.” Tex. Fin. Code Ann. § 153.402(c) (West 1998).

      . Here, the Attorney General represents the Finance Commission (the Finance Commission), the Department of Banking (the Department), and the Banking Commissioner (the Commissioner). The Department operates under the purview of the Finance Commission. Tex. Fin.Code Ann. § 11.301 (West 1998). Likewise, the Commissioner serves at the will of the Finance Commission. Tex. Fin.Code Ann. § 12.101(a) (West Supp.2004— 05). For ease of reference, we will refer to these parties collectively as the State.

      .Finance code section 153.109 provides that a license holder shall post a bond with a qualified surety company or an irrevocable letter of credit issued by a qualified financial institution. Tex. Fin.Code Ann. § 153.109(a) (West Supp.2004-05). The amount of the bond or letter of credit are to be determined by the Commissioner. Id. § 153.109(b) (West Supp.2004-05).

      . Under the APA a "party” is "a person or state agency named or admitted as a party.” Tex. Gov’t Code Ann. § 2001.003(4) (West 2000).

      . Because we hold that Hartford’s right to procedural due process was violated, we do not address Hartford’s arguments regarding substantive due process and whether the trial court’s order violated the Texas APA, Administrative Code, and Finance Code.


author: JOHN CAYCE, Chief Justice.

text:
    PAVECON, INC., Appellant, v. R-COM, INC. and International Fidelity Insurance Company, Appellees.
    No. 2-04-114-CV.
    Court of Appeals of Texas, Fort Worth.
    Feb. 17, 2005.

      Jones & Cannon, P.C., Bryan Cannon, Michael Hassett, Arlington, for Appellant.
    Winstead, Seacrest & Minick, P.C., Dale E. Butler, Dallas, for Appellee.
    Panel A: CAYCE, C.J.; LIVINGSTON and McCOY, JJ.
   OPINION

JOHN CAYCE, Chief Justice.

In this construction bond case, Pavecon, Inc. appeals from a take-nothing judgment for International Fidelity Insurance Company (IFIC), the surety on the bond. In three issues, Pavecon complains that the trial court improperly granted IFIC judgment on Pavecon’s claims and denied Pavecon’s motion for new trial because the law, stipulated facts, and other evidence show that Pavecon is entitled to recover from IFIC on the bond. We will affirm.

The facts of this case are largely undisputed. At trial, the parties stipulated to the following facts:

During May through December 2001, Pavecon, pursuant to a contract with R-Com, furnished concrete services and materials to R-Com worth in excess of $200,000. R-Com paid for some of these services and materials, so that Pavecon’s records reflected an outstanding principal balance of $97,960.26.

Meanwhile, on or about July 12, 2001, IFIC issued a payment bond with R-Com as principal and ASCI Network Technologies as obligee. The penal sum of the bond was $1,772,800.

Between August 15 and December 17, 2001, Pavecon properly performed work requested for and authorized by R-Com referenced in eleven different invoices totaling $85,183.26. Pavecon contends that all of the August through December 2001 invoices represent work covered by the IFIC bond; IFIC agrees that eight of the invoices, totaling $66,272.12, reflect work on R-Com jobs covered by the IFIC bond. On April 17, 2002, Pavecon first notified IFIC that Pavecon was owed for work covered by the IFIC bond. Pavecon made a claim for $85,183.26 on the IFIC bond, which IFIC has not paid.

In addition to the stipulated facts, the record also shows the following: Pavecon repeatedly asked R-Com for a copy of the bond or for information about the bond and the jobs it covered, but R-Com did not provide any information until January 23, 2002 — three months before Pavecon first provided IFIC notice of R-Com’s nonpayment. When IFIC refused to pay Pave-con’s claims against the bond, Pavecon sued to collect them. IFIC asserted as an affirmative defense to Pavecon’s claims Pavecon’s alleged failure to comply with the bond terms and the notice provisions of chapter 53 of the property code. After a bench trial, the trial court rendered a take-nothing judgment for IFIC. Pavecon also filed a motion for new trial, which the trial court denied. This appeal followed.

In three issues, Pavecon complains that the judgment for IFIC is against the great weight and preponderance of the evidence and is contrary to law.

No findings of fact or conclusions of law were filed in this case; therefore, the trial court’s judgment implies all findings of fact necessary to support it. Pharo v. Chambers County, 922 S.W.2d 945, 948 (Tex.1996). But where, as here, a reporter’s record is filed, these implied findings are not conclusive, and Pavecon may challenge them by raising both legal and factual sufficiency of the evidence issues. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex.2002). In reviewing an issue asserting that a finding is against the great weight and preponderance of the evidence, we must consider and weigh all of the evidence and set aside the finding only if the evidence is so weak or the finding is so contrary to the great weight and preponderance of the evidence as to be clearly wrong and unjust. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex.2001); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951). If our review of the record shows that the implied fact findings are supported by the evidence, it is our duty to uphold the trial court’s judgment on any theory of law applicable to the case. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990); Point Lookout W., Inc. v. Whorton, 742 S.W.2d 277, 278 (Tex.1987).

IFIC’s bond provides that, because ASCI, the property owner, required R-Com to furnish the bond

in order to comply with sections 53.201 et seq. of the Texas Property Code, all rights and remedies under this bond shall inure solely to [claimants for labor, subcontracts, and materials] and shall be determined in accordance with the provisions, conditions and limitations of said Property Code to the same extent as if they were copied at length herein. [Emphasis supplied.]

The parties’ dispute centers around their interpretation of the language italicized above and chapter 53 of the property code.

Common law contract principles apply to surety bonds and questions relating to a surety’s liability. Great Am. Ins. Co., 908 S.W.2d at 420, 427. Therefore, the intent of the parties to a surety bond, as well as the liability of the surety, are normally determined by the language of the bond. Geters v. Eagle Ins. Co., 834 S.W.2d 49, 50 (Tex.1992); Howze v. Stir. Corp. of Am., 584 S.W.2d 263, 266 (Tex.1979); Beard Family P’ship v. Commercial Indem. Ins. Co., 116 S.W.3d 839, 846 (Tex.App.-Austin 2003, no pet.). We are to interpret a contract in such a manner that none of its provisions will be rendered meaningless. MCI Telecomms. Corp. v. Tex. Utils. Elec. Co., 995 S.W.2d 647, 652 (Tex.1999). When possible, we will avoid a construction that is unreasonable, inequitable, or oppressive, or would lead to an absurd result. Reilly v. Rangers Mgmt., Inc., 727 S.W.2d 527, 530 (Tex.1987); Lane v. Travelers Indem. Co., 391 S.W.2d 399, 402 (Tex.1965).

Property code section 58.205, which is incorporated by reference into IFIC’s bond, provides that the bond protects only those persons whose claims are (1) perfected in the manner prescribed for fixing a hen under subchapters C and K of the property code or (2) perfected in the manner prescribed by section 58.206. Tex. PROP.Code Ann. § 53.205(a) (Vernon Supp. 2004-05). It is undisputed that Pavecon did not perfect its claim in the manner prescribed for fixing a lien under subchap-ter C and that subchapter K has no application to this case. Therefore, we turn our attention to the alternative manner for perfecting a claim prescribed by section 53.206.

Section 53.206 provides:

(a) To perfect a claim against a bond in a manner other than that prescribed by Subchapter C or K for fixing a lien, a person must:
(2) give to the surety on the bond, instead of the owner, all notices under the appropriate subchapter required to be given to the owner.

Id. § 53.206(a).

The parties agree that IFIC’s bond is not a statutory bond covered by the property code. Pavecon asserts that, because IFIC’s bond is not a statutory bond, there is no “appropriate subchapter” of the property code covering the bond and that the express terms of the bond therefore required no notice from Pavecon to IFIC in order for Pavecon to perfect its claims against the bond. Pavecon also argues that the bond only incorporates the provisions of property code “sections 53.201 et seq.” and thus did not require Pavecon to comply with any notice provisions in earlier-numbered sections of the property code. Finally, Pavecon contends that, if it is subject to the property code’s notice requirements, IFIC is estopped from asserting Pavecon’s failure to comply with those requirements as a defense to payment due to IFIC’s own failure to comply with other property code provisions. We will address these arguments in turn.

Regarding Pavecon’s first argument, its interpretation of “the appropriate sub-chapter” in section 53.206 would render meaningless the bond’s provision that a claimant’s rights and remedies “shall be determined in accordance with the provisions, conditions!,] and limitations of said Property Code.” See MCI Telecomms. Corp., 995 S.W.2d at 652 (disfavoring meaningless contract interpretation). IFIC, on the other hand, asserts that the “appropriate subchapter” in section 53.206 refers to subehapter C or K, and in this case, subchapter C. We agree.

IFIC further contends that section 53.206(a) applies subchapter C’s notice provision, which is found in section 53.056(b), to a subcontractor’s claims against a surety bond. Section 53.056(b) requires a subcontractor to give the owner written notice of the unpaid balance of a claim by the 15th day of the third month after the month in which the materials or services were provided. Section 53.206(a)(2) requires the subcontractor desiring to perfect a claim against a surety bond to give this notice to the surety instead of the owner. Id. § 53.206(a)(2). IFIC asserts that the bond, which incorporates these statutory provisions, required Pavecon to give this notice to IFIC and that, because Pavecon failed to do so, Pavecon cannot recover on its claims against IFIC’s bond. This construction gives effect to the bond provision and is also in accordance with the plain meaning of sections 53.206(a) and 53.056(b). See State ex rel. State Dep’t of Highways & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex.2002) (stating that statute should be construed as a whole according to plain and common meaning of words used).

The language of former section 53.206(a) is also consistent with IFIC’s construction of “the appropriate subchap-ter.” Former section 53.206(a) provided: “To perfect a claim against a bond in a manner other than that prescribed by Sub-chapter C ... a person must ... give to the surety on the bond, instead of the owner, all notices under that subchapter required to be given to the owner.” The legislature merely substituted “the appropriate subchapter” for “that subchapter” when it added subchapter K to chapter 53 and referenced both it and subchapter C in current section 53.206(a). See Argonaut Ins. Co. v. Baker, 87 S.W.3d 526, 530-31 (Tex.2002) (“A statute is presumed to have been enacted by the legislature with complete knowledge of the existing law and with reference to it.”). While lien statutes in Texas are to be liberally construed to protect laborers and materialmen, “we cannot be blind to the plain language” of a statute. RepublicBank Dallas, N.A. v. Interkal, Inc., 691 S.W.2d 605, 607 (Tex.1985). Accordingly, we conclude that IFIC’s construction of “the appropriate subchapter” is correct.

Next, Pavecon argues that “said Property Code” in the bond provision refers only to “sections 53.201 et seq.” and therefore prevents reference to any earlier-numbered sections of the property code in determining whether Pavecon satisfied the bond’s notice requirements. Such an interpretation would also render the bond provision meaningless and would lead to an absurd result. See Reilly, 727 S.W.2d at 530; Lane, 391 S.W.2d at 402 (both disfavoring unreasonable and absurd results). When read in conjunction with section 53.206, Pavecon’s position would require some type of notice to perfect a claim against the bond — notice under “the appropriate subchapter.” But Pavecon’s interpretation would preclude reference to subchapter C, one of the two appropriate subchapters listed in section 53.206, to determine what notice is required because subchapter C precedes section 53.201 numerically in the property code. Such an interpretation would harm claimants as well as sureties by preventing claimants from proving that they had given proper notice under “section 53.201 et seq.” and under section 53.206 in particular.

For the foregoing reasons, we hold that the phrase “said Property Code” in the bond does not preclude reference to sub-chapter C in determining whether Pavecon satisfied the bond’s notice requirements. Thus, in order to recover on its claims against the bond, Pavecon was required to give IFIC written notice of R-Com’s unpaid balances by the 15th day of the third month following the respective months in which Pavecon had provided the services and materials. Tex. PROp.Code Ann. §§ 53.056(b), .206(a). The parties stipulated that the latest date on which Pavecon provided services and materials for R-Com was December 17, 2001 and that Pavecon did not provide IFIC any notice of R-Com’s unpaid balances until April 17, 2002. April 17 was the 17th day of the fourth month following December 2001; therefore, the record supports the trial court’s implied finding that Pavecon’s notice to IFIC was untimely and did not perfect its claims against the bond. See Dow Chem. Co., 46 S.W.3d at 242.

We turn now to Pavecon’s estoppel argument. Pavecon asserts that, if it is bound by section 53.056’s notice requirement, then IFIC should be bound by section 53.203(a)’s filing requirement. Section 53.203(a) provides: “The bond and the contract between the original contractor and the owner shall be filed with the county clerk of the county in which is located all or part of the owner’s property on which the construction or repair is being performed or is to be performed.” Id. § 53.203(a) (Vernon 1995). Pavecon asserts that, because IFIC did not file its bond with the Tarrant County Clerk, where the work was to be performed, Pavecon did not receive adequate notice of the bond provisions, and IFIC is estopped from asserting Pavecon’s lack of timely notice to IFIC as a defense to payment of Pavecon’s claims.

We are unpersuaded by this argument. First, although a statutory surety bond benefits claimants, the statute expressly provides that the purpose of the filing requirement is to protect the property owner. See id. § 53.201(b) (Vernon Supp. 2004-05) (“If a valid bond is filed, a claimant may not file suit against the owner or the owner’s property and the owner is relieved of obligations [related to the withholding of retainage and other funds for the benefit of claimants].”); see also id. §§ 53.81, .101 (Vernon 1995). Thus the adverse consequence contemplated by the statute for failure to file the bond is that the property owner — not the surety — is unprotected from a suit by the unpaid claimant. In this case, Pavecon did not sue ASCI, the property owner.

Second, nothing in section 53.203(a) mentions the surety or requires the surety to file the bond with the county clerk. Instead, the statute merely provides that the bond “shall be filed.” Id. § 53.203(a). Because the plain language of section 53.203(a) does not put the onus of filing the bond on the surety, IFIC’s bond, which incorporates section 53.203(a) by reference, likewise did not require IFIC to file the bond. See Nat'l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex.2000) (stating that legislature’s statutory intent should be determined from plain and common meaning of words used).

Moreover, because the property owner is the only party who derives a statutory benefit from the filing of the bond, or stands to lose a statutory benefit from its nonfiling, we decline to construe the statute as making the surety responsible for filing the bond. If the legislature had desired to place the filing requirement on the surety, it easily could have done so. See RepublicBank Dallas, 691 S.W.2d at 607; Simmons v. Arnim, 110 Tex. 309, 220 S.W. 66, 70 (1920) (both holding that courts must take statutes as they find them and are not responsible for omissions in legislation).

Because section 53.203(a)’s filing requirement, which is incorporated into the bond by reference, did not require IFIC to file the bond, the record supports the trial court’s implied finding that IFIC is not estopped from asserting Pavecon’s lack of timely notice of R-Com’s nonpayment as a defense to IFIC’s payment of Pavecon’s claims. See Dow Chem. Co., 46 S.W.3d at 242. Accordingly, we hold that the trial court’s judgment for IFIC is proper. We overrule Pavecon’s issues and affirm the trial court’s judgment.

      . R-Com, Inc., another of the defendants below, is also listed on the notice of appeal, but Pavecon does not raise any appellate complaints concerning R-Com.

      . The record shows that these services and materials were for the installation of manholes.

      .The penal sum, which is the face amount of the bond, is the maximum amount the surety can be required to pay in the event of a default by the principal. Great Am. Ins. Co. v. N. Austin Mun. Util. Dist. No. 1, 908 S.W.2d 415, 426-27 (Tex.1995); Laughlin Envtl., Inc. v. Premier Towers, L.P., 126 S.W.3d 668, 676 (Tex.App.-Houston [14th Dist.] 2004, no pet.).

      . We are unpersuaded by Pavecon's argument that contract principles should not apply to nonstatutory bonds because the purpose of such bonds is to protect unpaid claimants.

      .Subchapter C contains the requirements for perfecting a lien for materials and services by affidavit. Id. § 53.051 (Vernon 1995), §§ 53.052-058 (Vernon Supp.2004-05). Subchapter K contains additional requirements for perfecting a lien on a residential construction project. Id. §§ 53.251-.260.

      . See id. §§ 53.201-202 (allowing original contractor to furnish owner a statutory bond for the benefit of claimants and setting out the requirements therefor).

      . Section 53.056(b) provides, in pertinent part: "The claimant must give [written notice of the unpaid balance] to the owner or reputed owner ... not later than the 15 th day of the third month in which all or part of the claimant’s labor was performed or material ... was delivered.” Id. § 53.056(b).

        .See Act of May 26, 1983, 68th Leg., R.S., ch. 576, § 53.206, 1983 Tex. Gen. Laws 3475, 3552 (emphasis supplied).

      . See Act of May 21, 1999, 76th Leg., R.S., ch. 889, § 6, 1999 Tex. Gen. Laws 3586, 3587; see also Tex. Prop.Code Ann. § 53.206 historical note (Vernon Supp.2004-05).

      . Subchapter C consists of sections 53.052-.058; subchapter K, which consists of sections 53.251-.260, does not precede section 53.201 numerically.

      . See id. § 53.201(a). As we have discussed, claimants are protected only if they comply with sections 53.205-206, which Pavecon did not.