author: SAM NUCHIA, Justice.

text:
    Patrick Wayne GREGORY, Appellant, v. The STATE of Texas, Appellee.
    No. 01-03-00192-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Oct. 28, 2004.
    Discretionary Review Refused Nov. 9, 2005.

      Henry L. Burkholder, III, Houston, for Appellant.
    Charles A. Rosenthal, Jr., District Attorney-Harris County, Amanda J. Peters, Asst. District Atty., Houston, for appellee.
    Panel consists of Justices NUCHIA, HANKS, and HIGLEY.
   OPINION

SAM NUCHIA, Justice.

Patrick Wayne Gregory, appellant, was charged by information with unlawful possession of marihuana in a useable quantity under two ounces. The trial court denied appellant’s motion to suppress the marihuana, which was seized during a pat-down search of appellant. The jury found appellant guilty, and the court assessed appellant’s punishment at confinement for 30 days. Appellant appeals the court’s ruling on the motion to suppress. We affirm.

BACKGROUND

Deputy Lee Martin and Deputy Willis, in separate vehicles, were on special assignment to patrol an area that was considered to be a high crime area. At about midnight, Martin noticed appellant, another man, and a woman standing by the rear of an illegally parked vehicle in a cul-de-sac. As Martin pulled up beside thé vehicle, the three people, who were on the opposite side of the car, walked toward the front of the vehicle. Martin, believing that the three people were trying to conceal something, got out of his patrol car and approached the car and the three individuals from the front, while Willis approached from the rear. Martin asked appellant what he was doing and said he was going to pat him down for weapons. When Martin reached the back pocket of appellant’s pants, he felt a plastic bag filled with what he believed to be marihuana. Martin asked appellant what he had in his back pocket and appellant replied that it was marihuana. Martin then asked appellant if he had any more marihuana, and appellant replied that he had some marihuana inside his right sock. Martin arrested appellant for possession of marihuana.

Martin filed a motion to suppress the marihuana. The trial court denied appellant’s motion to suppress and made findings of fact, which included the following:

• The area in which the incident occurred was a high crime area;
• The incident occurred after midnight;
• The three individuals’ actions led the officer to believe they might be concealing something;
• The officer patted down appellant for the officer’s safety;
• The officer, based on his experience as a police officer, formed a reasonable belief that in that area and at that time of night, his safety was paramount.
• Under the totality of the circumstances, the warrantless search was reasonable.

DISCUSSION

In his sole point of error, appellant contends that the trial court erred in ruling that the marihuana found on appellant’s person was admissible because the police officer lacked reasonable, articulable suspicion to believe that appellant was armed and dangerous.

I. Standard of Review

In reviewing the trial court’s ruling on the motion to suppress, we give almost total deference to the trial court’s determination of historical facts, while we conduct a de novo review of the trial court’s application of the law to those facts. Dawson v. State, 106 S.W.3d 388, 391 (Tex.App.-Houston [1st Dist.] 2003, no pet.). Further; upon review of a trial court’s ruling on a motion to suppress, an appellate court does not engage in its own factual review, but determines only whether the record supports the trial court’s fact findings. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990). If the trial court’s fact findings are supported by the record, an appellate court may not disturb the findings unless the trial court abused its discretion. Cantu v. State, 817 S.W.2d 74, 77 (Tex.Crim.App.1991).

II. Validity of the Terry Search

It is well established that “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-defined exceptions....” Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564 (1971). One such well-defined exception is a Terry search. A police officer may conduct a warrantless search if

[he] observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, ... and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety....

Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889 (1968).

“The officer must be able to articulate more than an inchoate and un-particularized suspicion or hunch of criminal activity.” Illinois v. Wardlow, 528 U.S. 119, 123-24, 120 S.Ct. 673, 676, 145 L.Ed.2d 570 (2000) (citation omitted). “An individual’s presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime.” Id. However, police officers are not required to ignore the environment or location in which they patrol to determine whether or not a particular circumstance warrants further investigation. Id. “Thus, the reasonable suspicion determination must be based on commonsense judgments and inferences about human behavior.” Id. 528 U.S. at 119, 120 S.Ct. at 674. We make our determination of the validity of a Terry search by “an objective assessment of the officer’s actions in light of the facts and circumstances confronting him at the time, and not on the officer’s actual state of mind” at the time of the search. Maryland v. Macon, 472 U.S. 463, 470-71, 105 S.Ct. 2778, 2783, 86 L.Ed.2d 370 (1985) (internal citations omitted).

Appellant argues that, although Martin testified that he searched appellant “for my safety,” Martin also testified that he had no reason for believing that appellant was armed or dangerous and that the search was routine. Appellant asks us to look to Martin’s subjective state of mind rather than to make an objective assessment of Martin’s actions in light of the surrounding facts and circumstances.

Martin’s statement that he had no reason for believing that appellant was carrying a weapon is not controlling. See O’Hara v. State, 27 S.W.3d 548, 554 (Tex.Crim.App.2000) (stating that under objective analysis, it did not matter whether officer testified that he was not afraid). We must determine whether the record supports the trial court’s findings of fact and review de novo the trial court’s application of the law to those facts. Dawson, 106 S.W.3d at 391. We look at all the surrounding circumstances in order to make an objective determination of whether a reasonable person in Martin’s position would have been justified in conducting a pat-down search of appellant. O’Hara, 27 S.W.3d at 554.

It is uncontested that Martin encountered appellant and two other individuals in a high crime area after midnight. Martin testified that, when the three moved from the rear to the front of the automobile, he momentarily lost sight of them and thought that they might be hiding something. Martin further testified that he performed the pat-down search for his safety. These facts support the findings of the trial court. We conclude that there were sufficient specific and articulable facts in this case to warrant a person of reasonable caution in Martin’s position to believe that the pat-down search was necessary. Therefore, the trial court did not abuse its discretion in denying appellant’s motion to suppress and in admitting the marihuana into evidence.

We overrule appellant’s sole point of error and affirm the judgment.


source: Caselaw Access Project

author: JANE BLAND, Justice.

license: Public Domain

text:
    METROPOLITAN TRANSIT AUTHORITY, Appellant, v. Efren SALAZAR, Appellee.
    No. 01-04-00016-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Nov. 4, 2004.
    Randy Frazier Jr., Metropolitian Transit Authority, Houston, TX, for Appellant.
    Robert Steven Kwok, Robert Kwok & Associates, Houston, TX, for Appellee.
    Panel consists of Justices TAFT, JENNINGS, and BLAND.
   OPINION

JANE BLAND, Justice.

Appellee Efren Salazar sued Trena Jer-nigan and the Metropolitan Transit Authority (“Metro”), appellant, alleging personal injuries as a result of a motor vehicle collision. Metro filed a plea to the jurisdiction, asserting that Salazar had failed to give Metro the required notice of his claim pursuant to the Texas Tort Claims Act. See Tex. Civ. PRAc. & Rem.Code Ann. § 101.101(a). Metro timely filed a notice of an interlocutory appeal from the trial court’s order denying its jurisdictional plea. See Tex. Civ. Pkac. & Rem.Code Ann. § 51.014(8). In its sole issue, Metro contends that the trial court erred in denying its motion to dismiss based on lack of jurisdiction, because Salazar failed to give Metro proper notice of his claim. We dismiss the appeal for lack of jurisdiction.

The Facts

Salazar filed suit for injuries he alleges he received in a motorcycle accident on the Southwest Freeway high occupancy vehicle (“HOV”) lane in Houston. At the time of the collision, one of the defendants, Tre-na Jernigan, was traveling behind Salazar in the HOV lane. Salazar alleges that a Metro bus merged into the HOV lane in front of a vehicle traveling directly in front of Salazar. Salazar and the vehicle in front of him came to a stop. Jernigan, however, failed to control her vehicle and struck Salazar’s motorcycle from behind. The impact threw Salazar off of his motorcycle and into traffic. After the collision, a Metro police officer investigated the accident and completed an accident report. His report noted: (1) the identity of the parties involved in the collision; (2) that Salazar had been injured in the collision and his property had been damaged; and (3) that the parties involved in the collision faulted the Metro bus as contributing to Salazar’s injuries and property damage. The police officer, however, did not interview the Metro bus operator, cite the bus driver as the cause of the accident, nor did he list the driver as an accident witness.

Discussion

The Texas Supreme Court recently has issued two decisions relevant to Metro’s appeal. First, in University of Texas Southwestern Medical Center at Dallas v. Loutzenhiser, the Texas Supreme Court held that “the failure to give notice of a claim as required by section 101.101 does not deprive a court of subject matter jurisdiction over an action on the claim.” 140 S.W.3d 351, 362 (Tex.2004). Second, in Texas Dep’t of Criminal Justice v. Si-mons, the court held that “actual notice under section 101.101 requires that a governmental unit have knowledge of the information it is entitled to be given under section 101.101(a) and a subjective awareness that its fault produced or contributed to the claimed injury.” 140 S.W.3d 338, 348 (Tex.2004). Relying on its opinion in Loutzenhiser, the Texas Supreme Court held that, because a lack of notice is not jurisdictional, it cannot be made the basis of a plea to the jurisdiction in the trial court. Id. at 348-49. As a result, a court of appeals has no jurisdiction over an interlocutory appeal from a ruling on a plea to the jurisdiction challenging notice under the Texas Tort Claims Act, and should dismiss such an appeal. Id. at 349. We therefore hold that we have no jurisdiction over this appeal.

Conclusion

Lack of proper notice under the Texas Tort Claims Act does not defeat a trial court’s jurisdiction, and thus the trial court properly denied Metro’s motion to dismiss for lack of jurisdiction. Moreover, the denial of a plea to the trial court’s jurisdiction based on lack of proper notice under the Texas Tort Claims Act may not serve as a basis for an interlocutory appeal. We therefore dismiss this appeal for lack of jurisdiction.


author: TIM TAFT, Justice.

text:
    J. Michael EPSTEIN, Individually and as Trustee under the Will of Julius Epstein, Appellant, v. John A. HUTCHISON III, Successor Guardian of the Estate of Alta Esptein, an Incapacitated Person, Appellee.
    No. 01-02-01274-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Nov. 4, 2004.

      David J. Wukoson, Larry D. Knippa, Knippa & Krai, Houston, TX, for Appellant.
    James E. Myers, Kendall M. Gray, Andrews & Kurth, L.L.P, Houston, TX, for Appellee.
    Panel Consists of Justices TAFT, JENNINGS, and BLAND.
   OPINION

TIM TAFT, Justice.

This is the second of several appeals arising from the same underlying litigation. In this appeal, appellant, J. Michael Epstein (“Michael”), appeals from four orders approving attorney’s fees for legal work performed by appellee, John A. Hutchison III, the guardian of the estate of Michael’s incapacitated mother, Alta J. Epstein (“Alta”). We consider whether the trial court erred in approving Hutchi-son’s attorney’s fees for legal work that he did as the attorney for himself in the capacity of Alta’s guardian. We affirm.

Background

Michael sued Alta, alleging that she had committed various wrongful acts as trustee of testamentary trusts established under the will of Julius Epstein, Michael’s father and Alta’s late husband. Alta was later declared incapacitated from Alzheimer’s disease. Michael became the sole trustee of the testamentary trusts. Hutchison eventually became the guardian of Alta’s estate.

From the numerous and lengthy proceedings in the underlying suit, Michael appeals four orders authorizing the payment of attorney’s fees out of Alta’s estate to Hutchison for services that he rendered as the attorney of Alta’s guardian, also himself, for the guardianship estate. The orders authorized payment of attorney’s fees for three periods: $7,795.12 for attorney’s fees accrued from July 1, 2001 to October 8, 2001 (one order); $38,484.26 for attorney’s fees accrued from December 1, 2001 to September 30, 2002 (two orders); and $4,010.00 for attorney’s fees accrued from October 2, 2001 to October 2, 2002 (one order). The order authorizing fees from October 2, 2001 through October 2, 2002 authorized payment of attorney’s fees to Hutchison in lieu of his commission as guardian.

Standard of Review

We generally review the trial court’s approval of attorney’s fees incurred by a guardian for abuse of discretion. See State ex rel. Tex. Dep’t of Mental Health & Mental Retardation v. Ellison, 914 S.W.2d 679, 682-683 (Tex.App.-Austin 1996, no writ) (so holding regarding ruling on application to remove guardian and implying same regarding ruling on application for guardian’s attorney’s fees). A trial court abuses its discretion when its decision is contrary to the law. See Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985). To the extent that the issues involved concern only questions of law, we review the trial court’s decision de novo. See Henderson v. Viesca, 922 S.W.2d 553, 557 (Tex.App.-San Antonio 1996, writ denied) (holding same in reviewing order approving guardian’s attorney’s fees, when parties had stipulated to facts and trial court had considered only legal issue).

Award of Attorney’s Fees

In four issues, Michael challenges the trial court’s four orders approving Hutchison’s attorney’s fees. Although the proceedings below were hotly contested, the few facts pertinent to Michael’s challenges are not in material dispute, and his challenges present legal issues.

In issue four, Michael argues that the trial court abused its discretion in approving Hutchison’s attorney’s fees because the court’s having done so thwarts the Probate Code’s provision concerning compensation of guardians.

Probate Code section 665 provides for the compensation of guardians and temporary guardians:

§ 665. Compensation of Guardians and Temporary Guardians
(a) The court may authorize compensation for a guardian or a temporary guardian serving as a guardian of the person alone from available funds of the ward’s estate or other funds available for that purpose. The court shall set the compensation in an amount not exceeding five percent of the ward’s gross income ....
(b) The guardian or temporary guardian of an estate is entitled to reasonable compensation on application to the court at the time the court approves any annual accounting or final accounting filed by the guardian or temporary guardian under this chapter. A fee of five percent of the gross income of the ward’s estate and five percent of all money paid out of the estate is considered reasonable under this subsection if the court finds that the guardian or temporary guardian has taken care of and managed the estate in compliance with the standards of this chapter.
(c) On application of an interested person or on its own motion, the court may review and modify the amount of compensation authorized under Subsection (b) of this section if the court finds that the amount is unreasonably low when considering the services rendered as guardian or temporary guardian.
(d) A finding of unreasonably low compensation may not be established under Subsection (c) of this section solely because the amount of compensation is less than the usual and customary charges of the person or entity serving as guardian or temporary guardian.

Tex. PRob.Code Ann. § 665(a)-(d) (Vernon 2003) (emphasis added). This section provides for a guardian’s compensation, not his expenses. Reimbursement for a guardian’s expenses is provided for in section 666:

A guardian is entitled to be reimbursed from the guardianship estate for all necessary and reasonable expenses incurred in performing any duty as a guardian, including reimbursement for the payment of reasonable attorney’s fees necessarily incurred by the guardian in connection with the management of the estate or any other guardianship matter.

Id. § 666 (Vernon 2003) (emphasis added). The Code clearly considers attorney’s fees to be a guardian’s expenses, not his compensation. See id. Accordingly, reimbursement for those fees is controlled by section 666, not section 665.

Michael nonetheless argues that the Probate Code does not allow a guardian to be his own attorney for guardianship matters because doing so could allow the guardian to recover higher fees, under section 666, than he would be entitled to recover under the compensation scheme established by section 665. No provision of the Probate Code, however, expressly prohibits an attorney guardian from representing the guardianship estate in its legal matters. Moreover, Michael’s argument has been considered and rejected by another court of appeals. See Henderson, 922 S.W.2d at 558.

In Henderson, the guardian conditioned her appointment on her serving as attorney for the guardianship estate, as well as the ward’s guardián. Id. at 556. No one objected to the arrangement, and the trial court recited in the order of appointment that the guardian could serve in both capacities. Id. The Henderson court held that the guardian could be compensated for fees in her capacity as attorney. Id. at 558. The court reasoned that public policy favored dual compensation because (1) one functioning in both capacities could avoid duplication of work and could thus lower costs; (2) “the probate court is the true protector of the estate’s interests as it conducts the final review of all monies leaving the estate”; (3) “probate courts will more closely scrutinize the applications for attorney’s fees submitted by representatives serving in dual capacities, resulting in even greater protection to the estate”; and (4) the relationship between attorney and client and guardian and ward is based on trust, so that “we should presume that an individual serving in both capacities would perform her duties in a manner that is in the best interest of the estate.” Id. at 558.

Michael attempts to distinguish Henderson on the ground that, in that case, the order appointing the guardian approved the guardian’s dual capacity without objection. See id. at 556. The reasoning underlying Henderson, however, applies regardless of whether the trial court approves or other parties object to the guardian’s dual role. For example, the Henderson court observed that an individual serving both as guardian of the estate and as attorney for the guardianship estate would generally perform in the estate’s best interest in both capacities, given that both an attorney and a guardian have a close fiduciary relationship with their client or ward. See id. at 558; Archer v. Griffith, 390 S.W.2d 735, 739 (Tex.1964) (“The relation between an attorney and his client is highly fiduciary in nature.... ”); Byrd v. Woodruff, 891 S.W.2d 689, 706 (Tex.App.-Dallas 1994, writ dism’d by agr.) (“[T]he law recognizes the fiduciary duty of a guardian of a ward or the personal representative of an estate.”). Moreover, the ultimate safeguard upon which the Henderson court relied — that the trial court would approve only the reasonable and necessary attorney’s fees that the guardian incurred — applies whether the guardian or a different person serves as the attorney for guardianship matters. Accordingly, we hold that the trial court did not abuse its discretion in approving Hutchison’s attorney’s fees for the reason that Hutchison served in the capacity as the attorney for the guardianship estate.

Analogous authority also supports our holding. As the Henderson court recognized, two courts considering cases in which an estate’s executor also functioned as the estate attorney reached a conclusion similar to ours. See Neblett v. Butler, 162 S.W.2d 458, 461-62 (Tex.Civ.App.-Galveston 1942, writ ref'd w.o.m.); Burton v. Bean, 549 S.W.2d 48, 51 (Tex.Civ.App.-El Paso 1977, no writ) (holding that estate administrators could recover reasonable attorney’s fees when the heirs understood at time of appointment that administrators would serve in that dual capacity and appointment order provided that dual appointment was made with heir’s consent). Furthermore, although all heirs knew that the estate administrators in Burton would serve in both capacities, the Burton court supported its holding with the reasoning that the probate court would require satisfactory proof of the fees’ reasonableness. Id. at 51; see also In re Estate of Devitt, 758 S.W.2d 601, 607, 607 n. 7 (Tex.App.Amarillo 1988, writ denied) (op. on reh’g) (indicating that, for estate co-executor .to recover attorney’s fees, Burton and Neb-lett did not require that beneficiary agree in advance to dual role of co-executor).

For these reasons, we reject Michael’s challenge that allowing Hutchison to recover attorney’s fees is inconsistent with section 665 of the Probate Code. We overrule issue four.

Michael’s issues one and two incorrectly presume that Hutchison’s fee request had to comply with the criteria set out in section 665, concerning compensation of guardians. We already have concluded that section 666, not section 665, governs the reimbursement of a guardian’s attorney’s fees. Accordingly, we overrule Michael’s issues one and two.

Finally, in issue three, Michael contends that Hutchison could not recover attorney’s fees without a written appointment as attorney for the guardianship estate. Out of an abundance of caution, Hutchison had the trial court sign an order allowing him to employ himself as attorney for matters concerning the guardianship estate. That order was signed on November 1, 2002, after much of Hutchison’s fees had accrued.

In support of his position, Michael relies on the following order of the Texas Supreme Court, entitled “Amended Order Regarding Mandatory Reports of Judicial Appointments and Fees”:

Section 1. Every appointment made in a ... probate case ... by a regular or assigned judge of any ... statutory probate court ... of a person to a position for which any type of fee may be paid shall be made by written order.
Section 2. Every application or request for the payment of a fee by such an appointee shall be approved by the court of the judge making the appointment. This approval shall be accomplished by a separate written order.

Amended Order Regaeding Mandatory RepoRts of Judicial Appointments & Fees, 890-91 S.W.2d (Texas Cases) XLVII-XLVIII (Sept. 21, 1994) [hereinafter “the Supreme Court Order”].

In this case, section one of the Supreme Court Order requires that Hutchison be appointed as guardian by written order because the Probate Code requires court appointment of a guardian. See Tex. PROB. Code Ann. § 601(11) (Vernon 2003) (“ ‘Guardian’ means a person who is appointed .... ”); id. § 602 (“A court may appoint a guardian .-...”); id. § 693(a) (“[T]he court may appoint a guardian of the individual’s person or estate, or both.”). The Probate Code does not require, however, that the court appoint an attorney to represent the guardian of the estate in connection with the estate’s management or other guardianship matters. Rather, the Probate Code allows the guardian to hire an attorney for those purposes and treats any resulting attorney’s fees as the guardian’s expenses, which are subject to the court’s written approval for reimbursement. See Tex. Prob.Code Ann. § 666; see also the Supreme Court Order, § 2 {“Every application or request for the payment of afee by such an appointee shall be approved by the court of the judge making the appointment ... by a separate written order.”). Moreover, even if section one of the Supreme Court Order required a separate written order appointing Hutchison as the guardianship attorney, any error resulting from the trial court’s delay in executing the written order is harmless because the trial court afforded Michael the opportunity to contest Hutchison’s fees and Michael did, in fact, contest the trial court’s approval of Hutchison’s attorney’s fees. See Tex. R.App. P. 44.1.

We overrule issue three.

Conclusion

We affirm the orders of the trial court.

      . Henderson, 922 S.W.2d at 557-58.

      . Observing:
      [Sjtrictly speaking, a personal representative does not have authority to bind an estate for legal service.... A personal representative owes the duty to preserve the estate, and expenses which he incurs in the performance of such duties he may recover. A prudent executor will only agree to pay an attorney, whom he employs, reasonable attorney’s fees, for if the reasonableness of the fees is contested, the executor can only recover such as are reasonable. Whether an executor, who is a lawyer, performs the services himself, or employs another, the reasonableness of the fees charged must stand the same test. So what difference could it make whether a lawyer-executor employs another lawyer, or performs the services himself? A testator chooses his executor because he thinks him trustworthy, and we think it unlikely the testator would not want the lawyer, to whom he intrusted the management of his estate, to be intrusted with the management of the law business incident thereto. And as already pointed out, he does not have to trust him to fix a fee that is not exorbitant, the law prevents that. We therefore question the soundness of a public policy which would tend to defeat a testator’s desire to have his affairs, legal as well as business, attended to by his executor, by one he has learned to trust.

        Id. at 461-62.


author:
SHERRY RADACK, Chief Justice.
      TERRY JENNINGS, Justice,

text:
    George LEWIS, Appellant, v. UNITED PARCEL SERVICE, INC., Appellee.
    No. 01-02-00829-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Nov. 4, 2004.
    Rehearing Overruled Feb. 23, 2005.

      Alice Oliver-Parrott, Maria Teresa Ar-guindegui, Burrow & Parrott, L.L.P., Houston, TX, for Appellant.
    Kevin D. Jewell, Chamberlain, Hrdlicka, White, Williams & Martin, Reagan W. Simpson, Russell Dane Workman, King & Spalding LLP, Houston, TX, for Appellee.
    Panel consists of Chief Justice RADACK and Justices JENNINGS and HIGLEY.
   OPINION

SHERRY RADACK, Chief Justice.

Appellant, George Lewis (Lewis), challenges a judgment entered on a take-nothing jury verdict in favor of appellee, United Parcel Service, Inc. (UPS), in his suit for negligence. Lewis presents seven issues, contending that the trial court erred in refusing to submit “a jury question regarding UPS’s right of control,” admitting hearsay testimony and denying Lewis the opportunity to von* dire a witness or to make an offer of proof, denying Lewis’s motion for a mistrial, admitting expert opinion testimony that was based on a “false assumption,” and denying his motion for a new trial. Lewis also contends that the jury’s finding that UPS was not negligent was against the great weight and preponderance of the evidence and that the evidence was legally and factually insufficient to support the jury’s finding that he was negligent.

We affirm.

Background

On October 11, 1999, Lewis, a millwright employed by Turbex Inc. (Turbex), arrived at a UPS facility at approximately 6:45 p.m., to repair a conveyer belt, the “Ml-G2.” Before making the repair, Lewis performed a “lockout/tagout” safety procedure on the M1-G2 to prevent it from unexpectedly starting up. Although another adjacent feed belt, the “PF1-1” continued in operation, it stopped after an employee shift change. Around 10:30 p.m., while Lewis stepped onto the PF1-1 to retrieve a tool, he heard a buzzer signaling the start of the conveyor belt. Before he could escape, the conveyor belt injured his right foot.

In its charge to the jury, the trial court included standard definitions, in regard to both individuals and companies, of “negligence” and “ordinary care” and presented the following broad-form negligence question:

Did the negligence, if any, of those named below, proximately cause the injury in question?
Answer ‘YES” or “NO” for each of the following:
a. United Parcel Service, Inc. _
b. George Lewis _

The jury answered “no” as to UPS and “yes” as to Lewis.

Jury Question on UPS’s Right to Control

In issue one, Lewis contends that the trial court erred in failing to submit a right to control question to the jury. In fact, at the charge conference, both parties asked to have a right to control question added to the jury charge. Lewis requested that the following question be submitted: “Did United Parcel Service, Inc. [UPS] have the right to control safety policies and procedures at the Mykawa facility?” The trial court denied Lewis’s request.

Lewis’s petition alleges the negligent acts were that (1) UPS’s employee started the conveyor without any warning and (2) UPS’s buzzer did not work properly. It is uncontested that UPS is the owner of the Mykawa facility where Lewis was injured; UPS contracted with Lewis to repair the conveyor; and a UPS employee started the belt that caused Lewis’s injuries. UPS undoubtedly has the right to control the safety policies and procedures of its own employees at its own facility. See Otis Eng’g Corp. v. Clark, 668 S.W.2d 307, 309 (Tex.1983) (duty based on right to control is implicit in the master-servant relationship). Because these acts are attributable to UPS, not an independent contractor, UPS’s right to control is implicit and, therefore, not an issue in this case. As such, the trial court did not err in refusing to submit the issue of right to control to the jury; rather, it properly submitted the issue of general negligence only. See Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex.1995).

Lewis contends that the UPS employee turned on the conveyor belt, “instantly causing [Lewis’s] right foot to be pulled into the belt drive system.” “There was no time between the time [Lewis] heard the buzzer warning that the belt was going to be turned on and when the belt just took off and caught [Lewis’s] foot.” When an injury arises by or contemporaneously with the activity itself, a negligent activity claim arises. See Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex.1992); Wilson v. Metz, No. 01-00-01193-CV, 2002 WL 501648, at *3 (Tex.App.-Houston [1st Dist.] Apr. 4, 2002) (not designated for publication). The evidence shows that Lewis was injured by or contemporaneously with the negligent activity itself, not by a condition created by the activity. Considering Lewis’s injury to be the result of the negligent activity of UPS itself, the trial court found UPS had a duty as a matter of law. Therefore, UPS’s duty was not a question of fact for the jury to determine under the circumstances of this case.

If negligent activity is raised by the evidence, general negligence instructions are proper. See Keetch, 845 S.W.2d at 264; Ramming, 861 S.W.2d at 464-65. Because this case is a claim for negligent activity, a general negligence charge was proper. See Keetch, 845 S.W.2d at 264; Ramming, 861 S.W.2d at 464-65.

The evidence supported a claim based on negligent activity. Having found duty as a matter of law, the trial court did not err in submitting a general negligence charge.

We overrule issue one.

Denial of Voir Dire Examination and Offer of Proof

In issue two, Lewis contends that the trial court erred in “denying [him] the opportunity to voir dire [Paul Allen, a UPS security representative] or make an offer of proof’ that was “necessary to demonstrate that Allen’s testimony was based purely on hearsay.”

At trial, the following exchange took place:

[UPS]: [UPS] calls Paul Allen.
[Lewis]: At this time [Lewis] moves to voir dire Paul Allen outside of the presence of the jury.
[UPS]: Mr. Allen is a plant engineering supervisor who would have been responsible for—
The Court: Supervisor for who?
[UPS]: UPS.
The Court: Request for voir dire is respectfully overruled.
[Lewis]: Judge, I need to make an offer of proof.
The Court: We can do it later.
[Lewis]: Judge, I wanted to give a narrative. I can’t waive anything, Judge.

Later, during UPS’s direct examination of Allen and after the trial court excused the jury for lunch, the following exchange took place:

The Court: Couple of things we need to cover. Prior to Mr. Allen coming to the bench [Lewis’s] attorney asked if he could take him on voir dire outside the presence of the jury. I know that the reason may be moot now, but I don’t know that for certain. So if there is anything [Lewis’s] attorney wants to make as far as a bill, you can do that now if you like. I ask you to keep it relatively brief if you need to. Anything?
[Lewis]: No. I will just cross him.

Although Lewis asserts that Allen’s testimony was inadmissible because “it was based purely on hearsay” and that he was prevented from showing this fact because the trial court did not allow him to voir dire Allen, Lewis directs us to no portion of Allen’s testimony that he objected to as hearsay. Lewis merely asserts that Allen’s testimony was “inadmissible and its admission probably caused the rendition of an improper judgment.” An error may not be predicated upon a ruling that admits evidence unless a substantial right of a party is affected and a timely objection or motion to strike appears in the record, stating the specific ground for the objection, if the specific ground was not apparent from the context. Tex.R. Evid. 103(a)(1).

In regard to Lewis’s assertion that the trial court denied him the opportunity to voir dire Allen, there is nothing in the record showing what Lewis intended to prove in his voir dire examination of Allen. Moreover, in regard to Lewis’s assertion that the trial court prevented him from making an offer of proof until “it was too late,” Rule of Evidence 103(b) states that “[t]he offering party shall, as soon as practicable, but before the court's charge is read to the jury, be allowed to make, in the absence of the jury, its offer of proof.” Tex.R. Evid. 103(b) (emphasis added). Here, Lewis expressly declined the trial court’s invitation to make an offer of proof during a break in Allen’s testimony and well before the charge was read to the jury. Thus, there is no basis for us to review the trial court’s admission of Allen’s testimony and its denial of Lewis’s request to voir dire Allen. See Tex.R.App. P. 33.1(a). Accordingly, we hold that Lewis has waived any error in regard to issue two.

We overrule issue two.

Testimony Concerning Workers’ Compensation Benefits

In issue three, Lewis argues that the trial court erred in failing to grant “a mistrial or a new trial” because “the jury was prejudiced” by testimony that Lewis received workers’ compensation benefits.

We review a trial court’s denial of a mistrial under an abuse of discretion standard. Till v. Thomas, 10 S.W.3d 730, 734 (Tex.App.-Houston [1st Dist.] 1999, no pet.). A trial court abuses its discretion if it acts without reference to any guiding rules or principles. Downer v. Aquama rine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985).

The injection of the issue of insurance into a trial does not automatically create reversible error. Babcock v. Northwest Mem’l Hosp., 767 S.W.2d 705, 708 (Tex.1989). Rather, a complaining party must establish that the injection of the issue of insurance was prejudicial and actually caused the rendition of an improper judgment. See Beall v. Ditmore, 867 S.W.2d 791, 795 (Tex.App.-El Paso 1993, writ denied). In the absence of a clear showing by the complaining party that any reference to insurance resulted in harm or prejudice, a trial court does not abuse its discretion in refusing to declare a mistrial. Brownsville Pediatric Ass’n v. Reyes, 68 S.W.3d 184, 193 (Tex.App.-Corpus Christi 2002, no pet.).

During UPS’s redirect examination, Larry Alvarez, the owner of Turbex, testified as follows:

[UPS]: Mr. Alvarez, have you had any discussions with Mr. Lewis since the accident about the possibility of him coming back to work?
[Alvarez]: Yes, sir, [I] have.
[UPS]: Where were you when that conversation took place?
[Alvarez]: Well, a couple of times — I can remember one time in particular I was out at a jobsite on my mobile phone. I had just talked to [Lewis’s] brother, who worked for us at the time, and [Lewis] had talked to me a couple of weeks before or sometime before. I think his workman’s comp was fixing to run out and he was worried about his source of money. And you know, trying to help the best way I could, I told him to go file for unemployment. That was money I had paid for on his behalf.

Lewis immediately objected to Alvarez’s testimony because it violated his motion in limine and he requested an instruction to disregard. The trial court then sustained Lewis’s objection, instructed the jury to disregard Alvarez’s answer, and then excused the jury from the courtroom.

At this point, Lewis moved for a mistrial. However, after hearing argument from the parties, the trial court denied Lewis’s motion. The trial court then brought the jury back into the courtroom and gave them the following additional instruction:

[The Court]:....
I need to address one other area with you. And this is what took us so long. We were trying to find the best way to handle this situation. And this is our result. You just heard — and it wasn’t anything intentional on his part. Mr. Alvarez is not an attorney. He is a business owner and that’s why he is here today. He mentioned the issue of worker’s compensation insurance. Best way for us to handle this is just to tell you now that there is what’s called a worker’s compensation lien in this case. Mr. Lewis did receive worker’s compensation benefits. Because there’s a lien, and that’s just like a materialman’s lien or something else, they, worker’s compensation has a stake in this case. And if there is a recovery by [Lewis], part of that recovery will go to the worker’s compensation company to reimburse them for the benefits they paid Mr. Lewis. That’s all we need to say about that here. And let me just leave it at that.

Lewis argues that Alvarez’s testimony “left the impression with the jury that Mr. Lewis was taken care of financially and clearly resulted in the jury’s failure to find any negligence on the part of UPS.” Furthermore, Lewis asserts that, because it was “uncontroverted” that he suffered damages, the jury’s failure to award him damages “clearly demonstrated [that the jury] was not going to follow any of the trial court’s instructions.”

However, in the absence of evidence to the contrary, we must presume that a jury followed a trial court’s instructions. Turner, Collie & Braden, Inc. v. Brookhollow, Inc., 642 S.W.2d 160, 167 (Tex.1982). Here, during deliberations, the jury submitted the following question to the trial court: “[i]f in question one we find that UPS was not negligent, do we answer [the damage question]?” After consulting with the parties, the trial court instructed the jury to “[p]lease follow the instructions as given to you in the charge of the [c]ourt.” Neither party objected to this instruction, and Lewis does not challenge it on appeal. After further deliberations, the jury returned its finding of zero damages. It does not logically follow that, because the jury returned a finding of zero damages, it “was not going to follow any of the trial court’s instructions.”

We conclude that Lewis has not made a clear showing that he was harmed or prejudiced by Alvarez’s testimony that he received worker’s compensation benefits. Accordingly, we hold that the trial court did not abuse its discretion in denying Lewis’s motion for a mistrial.

We overrule issue three.

Sufficiency of the Evidence

In issue five, Lewis argues that the evidence in support of the jury’s finding that UPS was not negligent was factually insufficient. In issue six, Lewis argues that the jury’s finding that he was negligent was not supported by legally and factually sufficient evidence.

In our review of the legal sufficiency of the evidence, we consider all of the evidence in the light most favorable to the party in whose favor the verdict was rendered, and we indulge every reasonable inference from the evidence in that party’s favor. Formosa Plastics v. Presidio Eng’rs, 960 S.W.2d 41, 48 (Tex.1998). Anything more than a scintilla of evidence is legally sufficient to support the finding. Id.

Our review of the factual sufficiency of the evidence that Lewis was negligent requires us to consider, weigh, and examine all of the evidence that supports and contradicts the jury’s determination. Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex.1989). We may set aside the verdict only if the evidence that supports the jury’s finding is so weak as to be clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). In our review of the factual sufficiency of the evidence that UPS was not negligent, we must first examine the record to determine if there is some evidence to support the finding and, if so, then we must determine, in light of the entire record, whether the finding is so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex.2001).

Lewis argues that the jury’s finding that UPS was not negligent was against the great weight and preponderance of the evidence because (1) “[he] had no reason to believe the PF1-1 was still active, because he had watched the last shift leave for the night,” (2) Jerry Carpenter, a UPS supervisor, “could have alerted [him] at 8:00 p.m. that a shift was coming in at 10:00 p.m.,” and (3) Carpenter could have told the employee who started the PF1-1 that Lewis was repairing the M1-G2 conveyor belt “before authorizing her to start the [PF1-1] at 10:00 p.m.” Lewis also contends that this evidence was so strong that it demonstrates that the evidence supporting the jury’s finding that he was negligent was so weak that the finding was clearly wrong and manifestly unjust. Moreover, Lewis asserts the expert witness testimony of Lanny Berke, a mechanical engineering safety consultant, who stated that Lewis was negligent because he was “required” to lockout/tagout the PF1-1 was “no evidence” because a federal regulation, upon which Berke relied on in reaching this conclusion, did not apply to Lewis “between shift changes.”

Regardless of Berke’s testimony that Lewis was negligent, there was ample evidence, under each of the appropriate standards of review, to support the jury’s findings that UPS was not negligent and that Lewis was negligent. Carpenter testified that Lewis was authorized to lockout the PF1-1 if he “needed that belt shut off’ and that, if Lewis had followed the lockout/tag-out safety procedure in regard to the PF1-1, it would not have started. Allen testified that the five-second delay between the warning buzzer and the start of the PF1-1 had worked the day after Lewis was injured, and Alvarez testified that Lewis told him that he had heard the buzzer and that he “just [did not] react to it.” Alvarez also testified that Turbex was responsible for training Lewis in “the safety aspects of his job” and for supervising him while he was at a customer’s facility, and that Lewis should have gotten out of “harm[’s] way very fast” when he heard the buzzer.

Lewis admitted that lockout/tagout was an important safety procedure and that he had been using it “for a very long time.” He also testified that he knew that it was dangerous to step onto a conveyor belt that had not been locked out, and he admitted that nothing had prevented him from locking out the PF1-1. Finally, Berke also testified that he examined the scene of the accident, reviewed the relevant documents, and concluded that, in his opinion, UPS did nothing to cause the accident.

This evidence supports the jury’s finding that Lewis, and Lewis alone, was at fault for his accident. Accordingly, we hold that the evidence was legally sufficient to support the jury’s finding that Lewis was negligent. Moreover, we cannot conclude that the evidence supporting the jury’s finding that Lewis was negligent was so weak, or the evidence against it so strong, that the finding was clearly wrong and manifestly unjust. Neither can we conclude that the jury’s finding that UPS was not negligent was so against the great weight and preponderance of the evidence as to be manifestly unjust. Accordingly, we hold that the evidence was factually sufficient to support the jury’s findings that UPS was not negligent and that Lewis was negligent.

We overrule issues five and six.

Conclusion

Having held that the evidence was factually sufficient to support the jury’s finding that UPS was not negligent and legally and factually sufficient to support the jury’s finding that Lewis was negligent, we need not address issue four (that the trial court erred in admitting expert opinion testimony regarding Lewis’s loss of earning capacity) and issue seven (that the trial court erred in denying Lewis’s motion for a new trial because the jury’s finding of zero damages was contrary to the uncontested evidence and the instructions in the jury charge).

We affirm the judgment of the trial court.

Justice JENNINGS, concurring in the judgment only.

TERRY JENNINGS, Justice,

concurring.

Appellant, George Lewis (Lewis), an independent contractor employee, did not present legally sufficient evidence to establish that appellee, United Parcel Service, Inc. (UPS), a premises owner, had a contractual right of control over his work, retained any control over his work, or did anything to ensure that he safely performed his work. Accordingly, I would hold that the trial court did not err in refusing to submit Lewis’s proposed jury question regarding UPS’s right to control safety procedures at its package-sorting facility. Because the majority opinion errs in concluding that “UPS’s right to control is implicit and ... not an issue in this case” and that the trial court did not err in refusing to submit a control issue to the jury because “it properly submitted the issue of general negligence only,” I concur only in the judgment of this Court.

Background

On October 11, 1999, Jerry Carpenter, a UPS local sort supervisor, contacted Lewis, a millwright employed by Turbex Inc. (Turbex), to repair a conveyer belt located at a UPS package-sorting facility in Houston. At that time, Lewis had over 30 years of experience as a millwright and had worked “almost 20 years, off and on,” for Turbex, an independent contractor hired by UPS to perform conveyor belt repairs.

When Lewis arrived at the UPS facility at approximately 6:45 p.m., Carpenter directed him to the “M1-G2” conveyor belt. Lewis performed a “lockout/tagout” safety procedure, which prevented the M1-G2 from unexpectedly starting up, and he then began his repairs. However, an adjacent primary feed belt, the “PF1-1” continued in operation. As the evening wore on, Lewis noticed a UPS employee shift change, and he saw that the PF1-1 was not in use. At approximately 10:30 p.m., as Lewis was clearing his work area, he stepped onto the PF1-1 to retrieve a tool, and, when he did so, he heard the sound of a buzzer signaling that the conveyor belt was about to start up. When the PF1-1 started up, Lewis’s right foot was severely injured after it was pulled into a gap in the PF1-1.

Lewis subsequently sued UPS for negligence, alleging that UPS was negligent, generally, for certain acts and omissions and that UPS, as a premises owner, failed “to enforce pre-startup and pre-sort policies and procedures.”

At trial, Carpenter testified that, if Lewis had performed the lockout/tagout safety procedure on the PF1-1 before stepping onto it, the belt would not have started up. Carpenter had seen Lewis perform this procedure on previous occasions, and Lewis was authorized to lockout the PF1-1 if he “needed that belt shut off.” Carpenter also explained that, in his opinion, Lewis could have retrieved the tool without stepping onto the PF1-1.

Paul Allen, a UPS security representative, testified that UPS prohibited its employees and independent contractors from standing on the conveyor belts at its facility except for certain “metro gathering belts.” He noted that, although he was not present at the facility on October 11, 1999, there should have been a five-second delay between the warning buzzer and the start up of the PF1-1. Allen explained that, when he tested the system the day after the incident, he observed that five seconds elapsed between the time that the warning buzzer sounded and the start of the PF1-1. Allen also explained that UPS prohibited its employees from altering the duration of the delay.

Larry Alvarez, the owner of Turbex, testified that, after the incident, Lewis admitted that he heard the warning buzzer and “just [did not] react to it.” Alvarez explained that, in his opinion, when Lewis heard the buzzer, he “should have gotten [himself] out of harm[’s] way very fast.”

Lewis testified that he knew that the lockout/tagout safety procedure was important and that he had been using it “for a very long time.” Lewis also admitted that he knew it was dangerous to step onto a conveyor belt that had not been locked out and that nothing had prevented him from locking out the PF1-1. Lewis noted, however, that Carpenter had previously informed him by radio when UPS employees were preparing to start a conveyor belt. Lewis explained that the delay between the sound of the warning buzzer and the start of the PF1-1 was “the quickest delay [he] ever saw,” and that, as a result, he did not have enough time to get off of the PF1-1. Lewis estimated that the delay was only one or two seconds long.

At the charge conference, UPS, citing Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex.1985), objected to the “absence of a control issue incorporated into the case” on the grounds that Lewis had worked for an independent contractor and that “Texas law establishes certain rules that apply to that relationship, one being that there is no obligation to insure that a contractor’s employee perform the work in a safe manner unless there is a right of control.” The trial court, on the record, distinguished Redinger on the basis that the instant case “is not a general contractor case, which Redinger was.” The trial court also noted that Lewis was not “claiming ... UPS should have watched Lewis and should have made sure he did his job in a safe manner.” After UPS cited additional authority, the trial court overruled its objection.

Lewis then tendered the following written question to the trial court and requested that it be submitted to the jury:

Did United Parcel Service, Inc. (Ohio) have the right to control safety policies and procedures at the Mykawa facility?

The trial court denied Lewis’s request and marked the question “refused.”

In its charge to the jury, the trial court included standard definitions, in regard to both individuals and companies, of “negligence” and “ordinary care” and presented the following broad-form negligence question:

Did the negligence, if any, of those named below, proximately cause the injury in question?

Answer “YES” or “NO” for each of the following:

a. United Parcel Service, Inc. _
b. George Lewis ---

The jury answered “no” as to UPS and “yes” as to Lewis.

Jury Question on UPS’s Right of Control

In issue one, Lewis contends that the trial court erred in refusing to submit a jury question regarding UPS’s right to control safety procedures at its package-sorting facility. Referencing two of the numerous theories of liability asserted by Lewis in his amended petition, the majority opinion notes that Lewis alleged that “(1) UPS’s employee started the conveyor without any warning and (2) UPS’s buzzer did not work properly.” The majority opinion reasons that, because these two acts “are attributable to UPS, not an independent contractor, UPS’s right of control is implicit and, therefore, not an issue in this case” and “the trial court did not err in refusing to submit the issue of right to control to the jury; rather, it properly submitted the issue of general negligence only.” The majority opinion further concludes that “a general negligence charge was proper.”

However, neither party actually challenges the trial court’s use of the basic definitions of “negligence” and “ordinary care,” or its submission of a broad-form negligence question. Instead, the issue squarely presented to this Court is whether the trial court erred in refusing to submit to the jury Lewis’s theory of liability based on UPS’s alleged duty, as a premises owner, to ensure that Lewis, an independent contractor employee, safely performed his work — an issue which, as demonstrated by the facts as I have presented them above, was, if not properly pleaded, expressly tried by the consent of both parties. See Tex.R. Civ. P. 67 (“When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.”). Under this theory of liability, the negligent activity in question is that of Lewis himself, i.e., stepping onto the PF1-1 without performing UPS’s lockout/tagout procedure on the PF1-1. The majority opinion’s conclusion that the “trial court did not err in submitting a general negligence charge” ignores the actual issue presented to this Court and answers an issue that neither party has raised.

Like the trial court below, the majority opinion misses Lewis’s point. Lewis’s point, clearly articulated to this Court, is that he “presented more than a scintilla of evidence showing UPS was liable for failing to exercise its control over the safety methods and procedures with reasonable care” because Carpenter “never asked Mr. Lewis to lockout the adjacent conveyor that caused Mr. Lewis’s injuries.” Lewis asserts that the “evidence is uncontrovert-ed that Mr. Lewis was required to follow the ‘UPS lockout procedures,’ and that UPS retained the right of control over compliance with its lockout procedures.” He argues, thus, that his “requested jury question on UPS’s right of control was material, properly worded, and dispositive on the issue of liability.”

Had Lewis presented more than a scintilla of evidence that UPS, as a premises owner, had a contractual right of control over Lewis’ work, retained any control over Lewis’ work, or did anything to ensure that Lewis safely preformed his work, he would have been entitled to a properly phrased issue and instruction on UPS’s “right to control” safety procedures. See Tex.R. Civ. P. 278 (A trial court must submit to a jury “questions, instructions and definitions ... which are raised by the written pleadings and the evidence.”). As explained by the Texas Supreme Court:

Right to control may be shown by explicit contractual assignment or actual exercise of control. Generally, the former is a question of law for the court and the latter a question of fact for the jury.

Shell Oil Co. v. Khan, 138 S.W.3d 288, 292 (Tex.2004) (footnotes omitted).

Moreover, the Supreme Court has emphasized that it is “fundamental to our system of justice that parties have the right to be judged by a jury properly instructed in the law.” Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 388 (Tex.2000). We have been admonished that “when a jury bases a finding of liability on a single broad-form question that commingles invalid theories of liability with valid theories, [an] appellate court is often unable to determine the effect of [such an] error.” Id. A jury must be able to base its verdict on legally valid questions and instructions. Id. Here, a right to control safety issue was critical to Lewis because the jury simply could not have understood, without proper guidance, that UPS, as a premises owner, could have been held liable to Lewis, an independent contractor employee, for Lewis’s own negligent activity. A finding on a right to control issue would have been equally important to UPS had the jury found that its • negligence proximately caused Lewis’s injury because UPS could have, theoretically, been “held liable without a judicial determination that a factfinder actually found that [it] should be held hable on proper, legal grounds.” Id. Accordingly, I disagree with the majority opinion’s characterization of the issue and with its analysis, and I turn to the merits of Lewis’s first issue and his arguments presented.

Lewis asserts that UPS “dictated the safety methods and procedures that [Lewis] was required to follow” and “retained the right of control over compliance with its lockout procedures.” In fact, Carpenter testified that UPS required its independent contractors to be “familiar with the UPS procedure for lockout/tagout” and that “they abide by it.” Lewis, thus, concludes that the trial court erred in denying his proposed question “on UPS’s right of control over the safety and lockout procedures [he] was required to follow on UPS’s premises.” In support of his argument, Lewis relies on Redinger and Dow Chemical Co. v. Bright, 89 S.W.3d 602 (Tex.2002), Lee Lewis Construction, Inc. v. Harrison, 70 S.W.3d 778 (Tex.2001), and Hoechst-Celanese Corporation v. Mendez, 967 S.W.2d 354 (Tex.1998).

As noted by the Texas Supreme Court, a premises owner or occupier generally does not have a duty to ensure that an independent contractor safely performs his work. Redinger, 689 S.W.2d at 418. The Redinger court noted that an owner or occupier of land has a duty to use reasonable care to keep the premises under his control in a safe condition and that a general contractor, who is in control of a premises, is charged with the same duty as an owner or occupier. 689 S.W.2d at 417. The court also noted that:

This duty to keep the premises in a safe condition may subject the general contractor [premises owner] to direct liability in two situations: (1) those arising from a premises defect, (2) those arising from an activity or instrumentality.

Id. The Court concluded that the case before it was “not a premises defect case,” but was instead a case involving “an injury caused by an activity conducted on the premises.” Id. The Court then went on to adopt the rule that

[o]ne who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.

Id. at 418 (quoting Restatement (Second) of ToRts § 414 (1977)).

Accordingly, where a premises owner either contractually retains or actually exercises control over the independent contractor’s work, the premises owner must exercise that control with reasonable care. Koch Ref. Co. v. Chapa, 11 S.W.3d 153, 155 (Tex.1999). For example, “an employer [premises owner] who gives on-site orders or provides detailed instructions on the means or methods to carry out a work order owes the independent contractor employee a duty of reasonable care to protect him from work related hazards.” Mendez, 967 S.W.2d at 357 (citing Redinger, 689 S.W.2d at 418). Safety requirements also “give rise to a narrow duty of care.” Mendez, 967 S.W.2d at 357. This “narrow” duty is “commensurate with the control [the premises owner] retains over the contractor’s work.” Id. However, “merely exercising or retaining a general right to recommend a safe manner for the independent contractor’s employees to perform their work is not enough to subject a premises owner to liability.” Bright, 89 S.W.3d at 607 (quoting Koch, 11 S.W.3d at 155).

In Mendez, the Texas Supreme Court held that a premises owner’s “insistence” that an independent contractor “observe and promote compliance with federal laws, general safety guidelines, and other standard safety precautions did not impose an unqualified duty of care on [the premises owner] to ensure that [the independent contractor’s] employees did nothing unsafe.” Id. at 357-58. Rather, the premises owner owed the independent contractor’s employees “a duty that any safety requirements and procedures it promulgated did not unreasonably increase, rather than decrease, the probability and severity of injury.” Id. at 358.

Here, as noted above, Carpenter testified that UPS required independent contractors to be “familiar with the UPS procedure for lockout/tagout” and that “they abide by it.” However, as noted in Mendez, this evidence does not establish that UPS owed Lewis an unqualified duty of care to ensure that Lewis did nothing unsafe. See id. at 357-58. Lewis, in fact, performed a loekout/tagout safety procedure on the M1-G2 belt that he repaired, and he directs us to no evidence that UPS’s policies and procedures required the lockout/tagout of adjacent conveyor belts not being serviced.

More importantly, there is no evidence in the record that UPS had a contractual right of control over Lewis’s work, retained any control over Lewis’s work, or did anything to ensure that employees of independent contractors actually followed UPS’s lockout/tagout policies and procedures. Although UPS may have insisted that independent contractors “abide by” its lockout/tagout procedures, there is no evidence that UPS monitored employees of independent contractors or in any way inspected their work to ensure that they complied with its procedures. Cf. Harrison, 70 S.W.3d at 784-85 (holding testimony that employee of general contractor had “the responsibility to routinely inspect ... to see to it that the subcontractors and their employees properly utilized fall protection equipment” constituted more than scintilla of evidence that general contractor retained right to control fall protection system on jobsite).

Conclusion

Because there is no evidence in the record that UPS had a contractual right of control over Lewis’s work, retained any control over Lewis’s work, or did anything to ensure that employees of independent contractors actually followed UPS’s lockout/tagout policies and procedures, I would hold that the trial court did not err in refusing to submit Lewis’s proposed jury question regarding UPS’s right to control safety procedures at its package-sorting facility. However, I disagree with the majority opinion’s characterization of the issue presented, its analysis, and its conclusions that “UPS’s right to control is implicit” and that the trial court did not err in refusing to submit a control issue because “it properly submitted the issue of general negligence only.” Accordingly, I concur only in the judgment of this Court.

      . This procedure involves turning a switch and applying a lock to the switch to disconnect a conveyor belt from all energy sources.

      . A millwright performs precision work with rotating equipment, including pumps, compressors, turbines, and conveyor belts.

      . In cases brought against a property owner for the negligent activity of an independent contractor, the Texas Pattern Jury Charges, addressing the fact issue of whether a property owner actually retained a right of control, provide the following predicate to the appropriate liability question: "Did ... [the property owner] have a right to control [the injury-causing activity] ... on the premises?” 2 Comm, on Patern Jury Charges, State Bar of Tex., Texas Pattern Jury Charges PJC 66.3 (2d ed.2002).


author: SHERRY RADACK, Chief Justice.

text:
    In re Carroll G. ROBINSON, Bruce R. Hotze and Jeffrey N. Daily, Relators.
    Nos. 01-04-01276-CV, 01-05-00374-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    April 14, 2005.

      Amanda Eileen Staines Peterson, W. Andy Taylor, Houston, for relators.

      Catherine B. Smith, Randy L. Pourteau II, Senior Asst. City Atty., Patrick W. Mizell, Scott J. Atlas, Arturo G. Michel, City of Houston, City Atty., Patrick Zum-mo, Zummo & Midkiff, L.L.P., Stephen Douglas Pritchett, Houston, for respondents.
    Panel consists of Chief Justice RADACK and Justices NUCHIA and HIGLEY.
   OPINION

SHERRY RADACK, Chief Justice.

In these original proceedings, relators seek writs of mandamus to compel the Mayor and the City Council of Houston, Texas (collectively, “the City”) to (1) enter an order declaring the adoption of three propositions as new amendments to the city charter, and (2) certify these new amendments to the Texas Secretary of State. We grant the requested relief.

BACKGROUND

On November 2, 2004, the registered voters of the city of Houston voted on three propositions to amend the city charter. Proposition One was endorsed by the Mayor and placed limits on annual increases in city property taxes and utility rates without prior voter approval. The ballot language of Proposition 1 provided:

The Charter of the City of Houston shall be amended to require voter approval before property tax revenues may be increased in any future fiscal year above a limit measured by the lesser of 4.5% or the cumulative combined rates of inflation and population growth. Water and sewer rates would not increase more than the cumulative combined rates of inflation and population growth without prior voter approval. The Charter Amendment also requires minimum annual increases of 10% in the senior and disabled homestead property tax exemptions through the 2008 tax year.

Proposition Two was placed on the ballot after relators drafted a referendum petition, organized and underwrote a petition drive, and obtained the necessary signatures to have the petition placed on the ballot. Proposition 2 placed limits on increases in combined city revenues without prior voter approval. The ballot language of Proposition 2 provided:

The City Charter of the City of Houston shall be amended to require voter approval before the City may increase total revenues from all sources by more than the combined rates of inflation and population, without requiring any limit of any specific revenue source, including water and sewer revenues, property taxes, sales taxes, fees paid by utilities and developers, user fees, or any other source of revenue.

Proposition Three provided:

The City Charter of the City of Houston shall be amended to provide for the City Controller to conduct internal audits of City departments, offices, agencies and programs.

In the November 2 election, voters were permitted to vote “FOR” or “AGAINST” each of the three propositions. After the election was completed, the City Counsel canvassed the vote and declared the results of the election as follows:

PROP 1 PROP 2 PROP 3

FOR 280,596 63.95% 242,697 352,063 56.46% 84.7%

AGAINST 158.152 36.05% 187,169 63,596 43.54% 15.3%

As shown above, each proposition passed by greater than 50% of the vote cast on that proposition.

In these original proceedings, relators complain that the Mayor has failed to comply with his ministerial duty under article 9.007 of the Local Government Code to certify to the secretary of state authenticated copies of the amendments showing that they have been approved by the voters of the municipality. The original proceeding in which the Mayor is the respondent has been docketed in the court under cause number 01-04-01276-CV. Relators also contend the City Council has not complied with its ministerial duty under section 9.005(b) of the Local Government Code to enter an order in the records of the city declaring that the amendments were adopted. The original proceeding in which the City Council is the respondent has been docketed in the court under cause number 01-05-00374-CV.

JURISDICTION

Our jurisdiction to consider an election mandamus is found in article 273.061 of the Election Code, which provides:

The supreme court or a court of appeals may issue a writ of mandamus to compel the performance of any duty imposed by law in connection with the holding of an election or a political party convention, regardless of whether the person responsible for performing the duty is a public officer.

Tex. Elec.Code Ann. § 273.061 (Vernon 2003) (emphasis added).

The City contends that the duties of entering an order declaring the amendment adopted and certifying its adoption to the secretary of do not involve duties imposed “in connection with the holding of an election.” We disagree.

The supreme court has stated “that an election in this state is not a single event, but a process, and that the entire process is subject to contest.” Dickson v. Strickland, 114 Tex. 176, 265 S.W. 1012, 1018 (1924). Although this case does not involve an election contest, it does involve the enforcement by mandamus of duties involved with the “holding of an election,” an election being the entire process by which amendments to the municipal code are voted on, enacted, and made effective. See Grant v. Ammerman, 437 S.W.2d 547, 548-49 (Tex.1969) (duty to canvas results of election subject to mandamus because “canvassing of votes is a part of the election procedure and is necessary to the determination of the result.”). Like the duty to canvass votes, which occurs after an election is held, we are of the opinion that the duty to certify and make effective laws that have been validly adopted by the voters is a necessary component of the election process. The “holding of an election” would be a “vain proceeding” if an amendment validly adopted by the voters of the city never becomes law. See City of Dallas v. Dallas Consol. Elec. St. Ry. Co., 105 Tex. 337, 148 S.W. 292, 294 (1912) (“[The canvassing of votes] is an integral part of the election itself, without which the election is a vain proceeding ... ”). As such, we hold that mandamus will he to enforce ministerial duties arising in connection with an election, even though those duties may not arise until after the results of the election have been canvassed.

STANDING

The City also claims that the rela-tors do not have standing to bring these mandamus proceedings. Relying on Brown v. Todd, 53 S.W.3d 297 (Tex.2001), the City argues that the relators, as voters on propositions 1, 2, and 3, do not have standing to bring these proceedings because they have suffered no injury that is distinct from that of any other voter.

In Brown, the plaintiff brought suit against the mayor of the city of Houston, seeking a judgment declaring that an executive order issued by the mayor was invalid because it effectively nullified the result of a previous referendum election. Id. at 299. The plaintiff claimed standing based solely on his status as a voter in the referendum election. Id. at 302 n. 2. In holding that the plaintiff did not have standing, the supreme court stated, “In no way does [plaintiff’s] status as a voter give him an interest sufficiently peculiar to satisfy our standing requirements.” Id. at 302.

In Brown, the court acknowledged that there was a narrow exception to the general rule that voters do not have standing. Id. In Blum v. Lanier, the court held that a voter who signed an initiative petition had standing to challenge the form in which a referendum was put before the public. 997 S.W.2d 259, 262 (Tex.1999). Similarly, in Glass v. Smith, the court recognized petition signers standing to seek a writ of mandamus against municipal authorities to hold a voter-initiated election after the requisite number of signatures had been obtained on the petition. 150 Tex. 632, 244 S.W.2d 645, 648 (1951). As the Brown court recognized, Blum and Glass stand for the proposition that petition signers have standing to challenge the referendum process, although they do not have standing to challenge the results of the election. 53 S.W.3d at 301-01.

These cases are more like Blum and Glass than Brown because the relators are not challenging the results of the election by way of this mandamus. Instead, they are challenging the process of the election, i.e., the City’s refusal to see that the results of the election are certified to the secretary of state and recorded in the City’s records so that they might become effective. Also like Blum and Glass, rela-tors claim that their standing is not based solely on their status as voters. Instead, relators argue that they have a particular interest in the outcome of this case because they organized and financed a petition drive to get Proposition 2 on the ballot, helped draft the wording of the referendum petition, signed the petition, and voted for Proposition 2. We agree that relators have a particular interest in seeking to have a proposition that they “sponsored” enacted as law once it is adopted by the citizens of the city in a referendum election.

MINISTERIAL DUTY

Having decided that we have jurisdiction to consider these mandamus proceedings and that relators have standing to bring them, we turn next to the issue of whether mandamus will lie, i.e., whether respondents have failed to perform ministerial duties for which relators have no adequate remedy at law. We examine the statutory basis of the two duties alleged as the basis of this original proceeding.

Section 9.007 of the Local Government Code

The first statute on which relators rely in seeking mandamus relief is section 9.007 of the Local Government Code, which provides:

(а) As soon as practicable after a municipality adopts a charter or charter amendment, the mayor or chief executive officer of the municipality shall certify to the secretary of state an authenticated copy of the charter or amendment under the municipality’s seal showing the approval by the voters of the municipality.

Tex. Loc. Gov’t Code Ann. § 9.007(a) (Vernon 1999) (emphasis added).

We begin by noting that this section imposes a duty on the Mayor. Therefore, the Mayor, not the City Council, is the proper respondent for a mandamus arising out of this statute.

The City argues that the duty imposed on the Mayor in this section does not arise until after the City Council complies with its duty under section 9.005 to enter an order declaring that the charter amendments are adopted. We disagree.

The language of article 9.007 clearly states that the Mayor’s duty arises “as soon as practicable after a municipality adopts ... a charter amendment.” A charter amendment is “adopted” when it is “approved by a majority of the qualified voters of the municipality who vote at an election.” See Tex. Loc. Gov’t Code Ann. § 9.005(a) (Vernon 1999). Therefore, we conclude that the City of Houston “adopted” the propositions when the voters passed each of the propositions by majority vote on November 2, 2004. The Mayor’s duty under section 9.007 was triggered by the municipality’s vote on November 2, 2004, and not by whether the City Council subsequently acted to make the propositions that were adopted that day effective.

We also note that section 9.007 states that the mayor “shall” certify to the secretary of state a certified copy of the amendment adopted by the voters. In the case of In re Roof, the court considered whether the city and the city secretary had a ministerial duty to submit a proposed charter amendment to the voters. 130 S.W.3d 414 (Tex. App-Houston [14th Dist.] 2004) (orig.proceeding). The relevant statute giving rise to the alleged duty provided that “[t]he governing body shall submit a proposed charter amendment to the voters for their approval at an election if the submission is supported by a petition signed by [the requisite number of voters].” Id. at 416 (emphasis added). Nevertheless, the city secretary refused to submit the proposed charter amendment. Id. at 415. She did not contest the number of qualified signatures on the petition, but argued that she could not certify the petition because, in her estimation, the proposed charter amendment conflicted with the city charter, general state law, and the Texas Constitution. Id. The court of appeals held that it was improper for the city secretary to refuse to certify the petition based on her opinion that the proposed charter amendment conflicted with existing law. Id. at 418. The court further held that the statute did not give the city secretary any discretionary duties. Id. Once the requisite number of petition votes were attained, she had a nondiscre-tionary duty to submit the proposed charter amendment to the city’s governing body. Id.

Like the statute in Roof, article 9.007 uses the mandatory word shall in describing the mayor’s duty to certify the amendment to the secretary of state. The use of the word shall in a statute is generally construed as creating a nondiscretion-ary duty. See Albertson’s, Inc. v. Sinclair, 984 S.W.2d 958, 961 (Tex.1999); Tex. Gov’t Code Ann. § 311.016(a), (b) (Vernon 2005) (providing that the word “may” creates discretionary authority, and the word “shall” imposes a duty).

We are similarly unpersuaded by the City’s argument that because proposition 2 violates the city charter, the Mayor has no duty certify it to the secretary of state. As with the city secretary in Roof, it is improper for the Mayor to refuse to comply with his nondiscretionary duty under section 9.007 simply because he believes that proposition 2, if enacted, would violate the city charter. As stated in Roof, “Such questions concerning the validity of proposed charter amendments are properly litigated later.” 131 S.W.3d at 418. Indeed, as the briefing in this case indicates, relators have also filed an action in the district court seeking a declaration that propositions 1 and 2 are not inconsistent, an issue we need not address in this proceeding.

The City also contends that mandamus will not he against the Mayor because there is no showing that he has refused to act. See Terrazas v. Ramirez, 829 S.W.2d 712, 723 (Tex.1991) (orig.proceeding) (stating that mandamus will generally not lie to compel action that has not first been demanded and refused). However, this position is refuted by the City’s own briefing in which it states, “The Mayor intends to propose an order declaring the adoption of Propositions 1 and 3 sometime before the next fiscal year begins on July 1, 2005. He has no plans to propose such an order for Proposition 2 because he believes that entering such an order and adding to the charter a proposition that cannot be enforced, would be both superfluous and confusing.” It is clear from this statement that the Mayor is refusing to certify proposition 2.

Therefore, we hold that, pursuant to section 9.007, the mayor has a nondiscretion-ary duty to certify all three amendments to the secretary of state, even though he believes that they are inconsistent.

Section 9.005 of the Local Government Code

The second statute on which relators rely in seeking mandamus relief is section 9.005 of the Local Government Code, which provides:

(a) A proposed charter for a municipality or a proposed amendment to a municipality’s charter is adopted if it is approved by a majority of the qualified voters of the municipality who vote at an election held for that purpose.
(b) A charter or an amendment does not take effect until the governing body of the municipality enters an order in the records of the municipality declaring that the charter or amendment is adopted.

Tex. Loc. Gov’t Code Ann. § 9.005(a),(b) (Vernon 1999) (emphasis added).

We begin by noting that this section imposes a duty on the governing body of the municipality. The term governing body, “if used with reference to a municipality, means the legislative body of a city, town, or village, without regard to the name or title given to any particular body.” Tex. Gov’t Code Ann. § 312.011(4) (Vernon 2005). Therefore, the City Council, not the Mayor, is the proper respondent for a mandamus arising out of this statute.

The City argues that section 9.005(b) does not impose a mandatory duty on the City Council to enter an order in the city records declaring that the amendment is adopted. Specifically, the City alleges that “[t]his provision neither mandates that the municipality’s governing body must enter such an order nor prescribes the deadline for entering such an order.” The City further alleges that “section 9.005 gives the governing body the discretion to determine when or if to enter such an order and allows it the discretion to determine whether a proposed amendment violates a city charter, the laws of Texas, or the Texas Constitution.”

It is true that section 9.005(b) does not contain the mandatory word “must.” However, our inquiry does not stop there. We must determine from the language of the statute whether the legislature intended to create a mandatory duty for the City Council to enter an order declaring the amendment adopted.

In determining the legislature’s intent, we first look to the statute’s plain and common meaning and presume that the legislature intended the plain meaning of its words. Tex. Gov’t Code Ann. § 311.011(a) (Vernon 2005) (Words and phrases shall be read in context and construed according to the rules of grammar and common usage.”); Fleming Foods v. Rylander, 6 S.W.3d 278, 282 (Tex.1999). Further, in construing a statute, regardless of whether the statute is ambiguous, we may consider the (1) object sought to be attained; (2) circumstances under which the statute was enacted; (3) legislative history; (4) common law or former statutory provisions, including laws on the same or similar subjects; (5) consequences of a particular construction; (6) administrative construction of the statute; and (7) title (caption), preamble, and emergency provision. Tex. Gov’t Code Ann. § 311.023 (Vernon 2005); see also Brown v. Owens, 674 S.W.2d 748, 750 (Tex.1984) (in determining legislative intent, “we must consider the entire Act, its nature and object, and the consequences which follow from each construction.”).

As respondents point out, section 9.005(b) concerns when an amendment to the city charter becomes effective. A charter amendment “does not take effect until the governing body of the municipality enters an order in the records ...” Tex. Loc. Gov’t Code Ann. § 9.005(b).

If we were to accept the City’s argument that section 9.005(b) does not create a mandatory duty on the part of the City Council, we would be providing a mechanism by which a city council could effectively “veto” a voter-initiated and adopted amendment simply by refusing to enter an order recognizing the amendment’s adoption. This cannot have been the legislature’s intent. We will not interpret section 9.005(b) in such a manner as to give the City Council the choice of deciding when, or indeed if, a charter amendment that has been passed by a majority of the voters becomes effective. The task of determining whether an amendment that has been adopted by majority vote violates the city charter or other existing law belongs, as it must in a three-branch government, to the courts (the judiciary) — not the City Council (the legislative branch) or the Mayor (the executive branch).

As stated in our discussion of the May- or’s duty in section 9.007, the City’s briefing indicates that it does not intend to enter an order declaring that proposition 2 has been adopted by the voters. As such, relators have shown a demand and a refusal to perform.

Accordingly, we conclude that section 9.005(b) imposes a nondiscretionary duty for the City Council to enter an order in the city records declaring that all three propositions passed by the city’s voters at the November 2, 1004 election have been adopted.

CONCLUSION

We hold that section 6.007 of the Local Government Code imposes a nondiscre-tionary duty on the Mayor to certify to the secretary of state an authenticated copy of propositions 1, 2, and 3 under the City of Houston’s seal showing their approval by the voters of the municipality. Accordingly, we grant the requested relief in cause number 01-04-01276-CV. We are confident that the Mayor will perform this duty as required. A writ of mandamus will issue to compel his performance only if he has not complied within 30 days of the date of this opinion.

We likewise hold that section 6.005(b) of the Local Government Code imposes a nondiscretionary duty on the City Council to enter an order in the records of the City of Houston declaring that propositions 1, 2, and 3 have been adopted. Accordingly, we grant the requested relief in cause number 01-05-00374-CV. We are also confident that the City Council will perform this duty as required. A writ of mandamus will issue to compel the City Council’s performance only if it has not complied within 30 days of the date of this opinion.

We express no opinion as to whether propositions 1 and 2 are inconsistent or whether the language of the proposition 1 and the City Charter requires that proposition 2 be declared invalid.

      . We note that whether a charter amendment has been adopted, or passed, is determined from examining the votes cast for or against it, irrespective of the total number of votes that may have been cast in the election. Ladd v. Yett, 273 S.W. 1006, 1011 (Tex.Civ.App.-Austin 1925, writ dism'd w.o.j.).

      . Article 9.007(a) of the Local Government Code provides:
      (a) As soon as practicable after a municipality adopts a charter or charter amendment, the mayor or chief executive officer of the municipality shall certify to the secretary of state an authenticated copy of the charter or amendment under the municipality’s seal showing the approval by the voters of the municipality.
      Tex. Loc. Gov’t Code Ann. § 9.007(a) (Vernon 1999).

      .Article 9.005 of the Local Government Code provides:
      (a) A proposed charter for a municipality or a proposed amendment to a municipality’s charter is adopted if it is approved by a majority of the qualified voters of the municipality who vote at an election held for that purpose.
      (b) A charter or an amendment does not take effect until the governing body of the municipality enters an order in the records of the municipality declaring that the charter or amendment is adopted.
      Tex. Loc. Gov’t Code Ann. § 9.005 (Vernon 1999).

      . The City Charter provides that, "[a]t an election for the adoption of amendments if the provisions of two or more proposed amendments approved at said election are inconsistent the amendment receiving the highest number of votes shall prevail.” Charter of the City of Houston art. IX, § 19.