text:
    CITY OF WACO, Appellant, v. Robert LOPEZ, Appellee.
    No. 10-04-00085-CV.
    Court of Appeals of Texas, Waco.
    Dec. 14, 2005.

      Enid A. Wade, Ñaman, Howell, Smith & Lee, Waco, for appellant.
    R. John Cullar, Mills <& Cullar, Waco, for appellee.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION

FELIPE REYNA, Justice.

Robert Lopez filed a whistleblower suit against the City of Waco alleging that the City terminated his employment because he reported a violation by his supervisor of the City’s Equal Employment Opportunity (“EEO”) Policy. The City brings this interlocutory appeal from an order denying its plea to the jurisdiction. The City contends in four issues that: (1) the Commission on Human Rights Act (“CHRA”) provides the exclusive remedy for Lopez’s claims; (2) the City’s EEO Policy is not a “law” within the meaning of the Whistle-blower Act; (3) Lopez did not report a violation of law in good faith; and (4) Lopez did not report the alleged violation of law to an appropriate law enforcement authority. We will affirm.

Background

Lopez alleges in his petition that his employment with the City was improperly terminated because he filed an administrative complaint with the City’s EEO Officer alleging that his supervisor had discriminated against him on the basis of race and age in violation of the City’s EEO Policy. The City disputes this allegation and contends that Lopez’s employment was terminated instead because he drove a city vehicle to an out-of-town meeting without advance authorization in violation of city policy.

The City filed a plea to the jurisdiction contending that Lopez had failed to allege a claim for which the City’s governmental immunity has been waived because: (1) the CHRA provides the exclusive remedy for the allegations of Lopez’s petition; (2) Lopez’s report of a violation of the City’s EEO Policy does not constitute a good faith report of a violation of a law under the Whistleblower Act; and (3) Lopez did not report this alleged violation in good faith to an appropriate law enforcement authority.

Standard of Review

A plea to the jurisdiction often focuses on only the allegations of the plaintiffs petition. “However, if a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised, as the trial court is required to do.” Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex.2004).

When we consider evidence in this context, “we take as true all evidence favorable to the nonmovant [ie., the plaintiff]. We indulge every reasonable inference and resolve any doubts in the nonmovant’s favor.” Id. at 228 (citation omitted).

Exclusive Remedy

The City contends in its first issue that the CHRA provides the exclusive remedy for Lopez’s claims. The City places primary reliance on the Austin Court’s decision in Stinnett v. Williamson County Sheriff's Department to support this contention. 858 S.W.2d 573 (Tex.App.-Austin 1993, writ denied). Lopez responds that Stinnett is distinguishable because he does not allege that the City committed a violation of the CHRA or retaliated against him for reporting a violation of the CHRA.

In Stinnett, a deputy filed a complaint with the Texas Commission on Human Rights (the “Commission”) alleging that the sheriffs department had discriminated against him on the basis of age. The department terminated Stinnett’s employment after he filed this complaint. Stin-nett filed a whistleblower suit alleging that his employment was terminated because he reported a violation of the CHRA. See id. at 574-75.

The department argued that Stinnett’s exclusive remedy was under the CHRA and that his suit should be dismissed because he had not exhausted his administrative remedies with the Commission. The Austin Court agreed, citing several bases for its decision. Id. at 576-77.

First, the court noted the accepted rule of statutory construction that “a specific statute will control over a statute of more general application.” Id. at 576; see also Tex. Gov’t Code Ann. § 311.026(b) (Vernon 2005). The court observed that both the CHRA and the Whistleblower Act provide remedies for the retaliatory firing of employees. See Stinnett, 858 S.W.2d at 576; see also Tex. Gov’t Code Ann. § 554.002(a) (Vernon 2004); Tex. Lab.Code Ann. § 21.055 (Vernon 1996). Section 21.055 of the CHRA prohibits an employer from retaliating against an employee who files a complaint “under this chapter.” Tex. Lab. Code Ann. § 21.055. Conversely, section 554.002(a) of the Whistleblower Act prohibits a government entity from retaliating against a public employee who reports a violation of any “law,” as that term is defined by the Whistleblower Act. See Tex. Gov’t Code Ann. § 554.002(a).

As the parties argued in Stinnett, the CHRA is specifically limited to cases in which discrimination under the CHRA is alleged while the Whistleblower Act is specifically limited to retaliation against public employees. See Stinnett, 858 S.W.2d at 576. The Court held that, because Stin-nett alleged that he had been retaliated against only for reporting a violation of the CHRA, the anti-retaliation statute in the CHRA was the more specific statute and controlled over the more general Whistle-blower Act. Id. (“We conclude that on the immediate facts, the Human Rights Act is the more specific statute and that its terms should control.”) (emphasis added).

Here, Lopez has not alleged a violation of or filed a complaint under the CHRA. Thus, it appears that his case is distinguishable from Stinnett. See Jones v. City of Stephenville, 896 S.W.2d 574, 576 (Tex.App.-Eastland 1995, no pet.).

The City also correctly observes that a majority of this Court has cited Stinnett and decisions relying on Stinnett for the proposition that “the legislature intended for the CHRA to be the exclusive forum for the resolution of an employee’s discrimination claim.” Vela v. Waco Indep. Sch. Dist., 69 S.W.3d 695, 700 (Tex.App.-Waco 2002, pet. withdrawn). However, Vela (like Stinnett) is distinguishable from Lopez’s case because the plaintiff in Vela was actively pursuing a claim under the CHRA. See id. at 697.

The court in Stinnett also observed that its holding was consistent with: (1) federal anti-discrimination law because the Age Discrimination in Employment Act (“ADEA”) has been found to be the exclusive remedy for age discrimination in federal court; see Stinnett, 858 S.W.2d at 576 (citing Paterson v. Weinberger, 644 F.2d 521, 524-25 (5th Cir.1981)); and (2) the “underlying policy of Title VII [of the Civil Rights Act of 1964] to use administrative procedures to promote conciliation and persuasion rather than litigation.” Id. at 577 (citing Schroeder v. Tex. Iron Works, Inc., 813 S.W.2d 483, 487 (Tex.1991)).

Unlike the ADEA however, the CHRA has an election of remedies provision which expressly recognizes that the facts which support a claim under ■ the CHRA may also support a claim under some “other law or an order or ordinance of a political subdivision.” See Tex. Lab.Code Ann. § 21.211 (Vernon 1996). Section 21.211 prohibits a claimant who has a pending suit or administrative proceeding under another law, order, or ordinance from pursuing a claim under the CHRA for the same complaint. Id. Thus, it has been recognized that there may be a set of facts for which claims may be asserted under both the CHRA and the Whistle-blower Act. See Perez v. Living Centers-Devcon, Inc., 963 S.W.2d 870, 874-75 (Tex.App.-San Antonio 1998, pet. denied); Turner v. Richardson Indep. Sch. Dist., 885 S.W.2d 553, 562 (Tex.App.-Dallas 1994, writ denied); see also Vela, 69 S.W.3d at 704 (Gray, J., dissenting); cf. Hoffmann-La Roche, Inc. v. Zeltwanger, 144 S.W.3d 438, 445-50 (Tex.2004) (plaintiff cannot pursue claim for intentional infliction of emotional distress where the CHRA provides a remedy for the same facts which serve as the basis for the intentional-infliction claim).

Applying Stinnett to the facts of Lopez’s case would render section 21.211 meaningless. We are not to construe statutes in this manner. See Spradlin v. Jim Walter Homes, Inc., 34 S.W.3d 578, 580 (Tex.2000); City of Houston v. Todd, 41 S.W.3d 289, 298 (Tex.App.-Houston [1st Dist.] 2001, pet. denied); see also Tex. Gov’t Code Ann. § 311.021(2) (Vernon 2005) (under the Code Construction Act, “it is presumed that ... the entire statute is intended to be effective”).

Allowing Lopez to continue with his suit under the Whistleblower Act will not serve the “underlying policy of Title VII to use administrative procedures to promote conciliation and persuasion rather than litigation.” See Stinnett, 858 S.W.2d at 577. However, because Lopez is not pursuing a claim under the CHRA, this is not a consideration.

Therefore, because Lopez does not allege that the City committed a violation of the CHRA or retaliated against him for reporting a violation of the CHRA, we hold that the CHRA does not provide the exclusive remedy for his claim. See Lee v. Palo Pinto County, 966 S.W.2d 83, 86-87 (Tex.App.-Eastland), pet. denied per curiam, 988 S.W.2d 739 (Tex.1998); Jones, 896 S.W.2d at 576-77; see also Turner, 885 S.W.2d at 561-62. Accordingly, we overrule the City’s first issue.

The City’s EEO Policy

The City contends in its second issue that the City’s EEO Policy is not a “law” within the meaning of the Whistle-blower Act but rather an internal policy or, at most, a law which was not enacted for the public good or society in general. Lopez responds that the City’s EEO Policy is a rule adopted under a statute, which satisfies the requirements of the Whistleblower Act.

The Whistleblower Act is remedial in nature. See Roberts v. Titus County Mem’ l Hosp., 159 S.W.3d 764, 769 (Tex.App.-Texarkana 2005, pet. denied); Llanes v. Corpus Christi Indep. Sch. Dist., 64 S.W.3d 638, 641 (Tex.App.-Corpus Christi 2001, pet. denied). Therefore, we must interpret its provisions liberally to effectuate its remedial purposes. See R.R. Street & Co. v. Pilgrim Enters., Inc., 166 S.W.3d 232, 238 (Tex.2005); Roberts, 159 S.W.3d at 769; Llanes, 64 S.W.3d at 641.

The Whistleblower Act defines a “law” as: “(A) a state or federal statute; (B) an ordinance of a local governmental entity; or (C) a rule adopted under a statute or ordinance.” Tex. Gov’t Code Ann. § 554.001(1) (Vernon 2004).

Some courts have concluded that the type of “law” contemplated by the Whistle-blower Act is one which relates to “the public good or society in general.” See Hill v. Burnet County Sheriff's Dep’t, 96 S.W.3d 436, 440 (Tex.App.-Austin 2002, pet. denied); City of Cockrell Hill v. Johnson, 48 S.W.3d 887, 896 (Tex.App.-Fort Worth 2001, pet. denied); Tex. Dep’t of Criminal Justice v. Terrell, 925 S.W.2d 44, 60 (Tex.App.-Tyler 1995, no writ); Stinnett, 858 S.W.2d at 575.

However, this Court has rejected this interpretation because it is not consistent with the plain language of the definition provided in the Whistleblower Act. See City of Fort Worth v. Johnson, 105 S.W.3d 154, 160-61 (Tex.App.-Waco 2003, no pet.); accord Scott v. Godwin, 147 S.W.3d 609, 622 (Tex.App.-Corpus Christi 2004, no pet.); see also Jones, 896 S.W.2d at 575-76 (city employees alleged unlawful retaliation under Whistleblower Act because they reported violation of city harassment policy).

The City cites three decisions in support of its contention that the City’s EEO Policy is an “internal policy” which is not a “law” under the Whistleblower Act’s definition. Harris County Precinct Four Constable Dep’t v. Grabowski, 922 S.W.2d 954 (Tex.1996) (per curiam); City of Houston v. Kallina, 97 S.W.3d 170 (Tex.App.-Houston [14th Dist.] 2002, pet. denied); Ruiz v. City of San Antonio, 966 S.W.2d 128 (Tex.App.-Austin 1998, no pet.).

We agree with the City that each of these cases stands for the proposition that an internal department policy is not a “law” under the Whistleblower Act. See Grabowski 922 S.W.2d at 956; Kallina, 97 S.W.3d at 175; Ruiz, 966 S.W.2d at 130. As the courts in Kallina and Ruiz observed however, there was nothing in the records of those cases to indicate that the policies under consideration had been adopted under a statute or ordinance. See Kallina, 97 S.W.3d at 175 (“Neither was adopted by the Houston City Council. It is quite clear that these manuals (and the hundreds of pages they contain) reflect internal policies rather than rules promulgated pursuant to an ordinance.”); Ruiz, 966 S.W.2d at 130 n. 5 (“Nothing in the record indicates the Department promulgated its internal policies pursuant to statute or ordinance.”).

Here, Lopez presented evidence that the EEO Policy was formally adopted by the Waco City Council in a resolution. Lopez observes that the City is authorized by section 51.001 of the Local Government Code to adopt a rule which “is for the good government, peace, or order of the municipality.” Tex. Loc. Gov’t Code Ann. § 51.001(1) (Vernon 1999). Liberally construing the definition of a “law” provided by the Whistleblower Act to effectuate the remedial purposes of the Act, we hold that the City’s EEO Policy is a “law” for purposes of the Act because it- is “a rule adopted under a statute or ordinance.” See Tex. Gov’t Code Ann. § 554.001(1); Scott, 147 S.W.3d at 622.

Accordingly, we overrule the City’s second issue.

Good Faith Report

The City contends in its third issue that Lopez did not report a violation of the law in good faith because he “did not believe that the conduct he was reporting violated a law. Rather, his report and belief was that a city employee had violated an internal City of Waco EEO Policy.”

The City’s third issue depends on a favorable finding on its assertion that the City’s EEO Policy is not a “law” under the Whistleblower Act. We rejected this assertion in ruling on the City’s second issue. Thus, we overrule the City’s third issue.

Appropriate Law Enforcement Authority

The City contends that Lopez did not report the EEO Policy violation to an appropriate law enforcement authority under the Whistleblower Act because the City’s EEO Officer has no authority to regulate under or enforce “the applicable discrimination laws.” Rather, the City contends that such authority remains with the Commission.

The Whistleblower Act prohibits retaliation against “a public employee who in good faith reports a violation of law by the employing governmental entity or another public employee to an appropriate law enforcement authority.” Tex. Gov’ t Code Ann. § 554.002(a) (Vernon 2004). “[A] report is made to an appropriate law enforcement authority if the authority is a part of a state or local governmental entity or of the federal government that the employee in good faith believes is authorized to:

(1) regulate under or enforce the law alleged to be violated in the report; or
(2) investigate or prosecute a violation of criminal law.”

Id. § 554.002(b) (Vernon 2004).

Under section 554.002, an employee must have a good faith belief that a law has been violated and must have “in good faith believed the governmental entity to which he reported a violation of law was an appropriate law enforcement authority.” See Tex. Dep’t of Transp. v. Needham, 82 S.W.3d 314, 320-21 (Tex.2002). An employee believed in good faith that he had reported a violation to an appropriate law enforcement authority if:

(1) the employee believed the governmental entity was authorized to (a) regulate under or enforce the law alleged to be violated in the report, or (b) investigate or prosecute a violation of criminal law; and
(2) the employee’s belief was reasonable in light of the employee’s training and experience.

Id. at 321.

“[T]he particular law the public employee reported violated is critical to the determination” of which governmental entity is the “appropriate law enforcement authority.” Id. at 320.

Here, the “law” in question is the City’s EEO Policy. That policy requires a city employee to first present an informal, oral complaint to his immediate supervisor. If satisfactory results are not obtained, the employee should then “file a formal written complaint” alleging a violation of the policy which must be “addressed to the EEO Officer.”

Under the EEO Policy, “[t]he EEO Officer has the responsibility to monitor, report, and recommend procedures to insure EEO compliance with federal, state, and local laws, rules and regulations.” Thus, the EEO Officer appears authorized to “regulate under” the EEO Policy. See Tex. Gov’t Code Ann. § 554.002(b)(1).

There is nothing in the record to indicate that Lopez made an informal, oral complaint with his immediate supervisor (who appears to be the person against whom Lopez made the EEO complaint). However, Lopez provided evidence that members of his particular city department were advised by his supervisor that discrimination complaints under the City’s EEO Policy “could be filed with the City’s EEO Officer.” Lopez also provided evidence that he had attended a mandatory meeting for all city employees regarding the EEO Policy at which employees were advised that violations of the EEO Policy “should be put in a complaint form and filed with the EEO Officer.”

Indulging all reasonable inferences in Lopez’s favor, we conclude that he presented some evidence that he in good faith believed that the EEO Officer was an appropriate law enforcement authority. See Rogers v. City of Fort Worth, 89 S.W.3d 265, 284-85 (Tex.App.-Fort Worth 2002, no pet.) (city marshal appropriate law enforcement authority); Robertson County v. Wymola, 17 S.W.3d 334, 341 & n. 10 (Tex.App.-Austin 2000, pet. denied) (administrator in sheriffs department appropriate law enforcement authority); cf. Needham, 82 S.W.3d at 321 (“we hold that there is no evidence to support a finding that Need-ham had a good faith belief that TxDOT was an appropriate law enforcement authority”) (emphasis added). Accordingly, we overrule the City’s fourth issue.

We affirm the judgment.

Chief Justice GRAY dissenting.

TOM GRAY, Chief Justice,

dissenting.

Lopez sued the City of Waco alleging a violation of the Texas Whistleblower Act. See Tex. Gov’t Code Ann. §§ 554.001-554.010 (Vernon 2004). The trial court denied the City’s plea to the jurisdiction. The City appeals. We should reverse. Because the majority does not do so, I dissent.

The Whistleblower Act provides, “A state or local governmental entity may not suspend or terminate the employment of, or take other adverse personnel action against, a public employee who in good faith reports a violation of law by the employing governmental entity or another public employee to an appropriate law enforcement authority.” Tex. Gov’t Code Ann. § 554.002(a). In the City’s fourth issue, it contends that Lopez’s report of a violation of the City’s Equal Employment Opportunity (“EEO”) policy to the City’s EEO officer did not constitute a report to an appropriate law enforcement authority within the terms of the Act. Lopez argues that the EEO officer was the appropriate law enforcement authority, and if that was not so, that Lopez reasonably believed that it was so. We should sustain the City’s fourth issue.

The Whistleblower Act defines “appropriate law enforcement authority” as:

part of a state or local governmental entity or of the federal government that the employee in good faith believes is authorized to:
(1) regulate under or enforce the law alleged to be violated in the report; or
(2) investigate or prosecute a violation of criminal law.

Tex. Gov’t Code Ann. § 554.002(b). The Texas Supreme Court has held:

[I]n the context of section 554.002(b), “good faith” means:

(1) the employee believed the governmental entity was authorized to (a) regulate under or enforce the law alleged to be violated in the report, or (b) investigate or prosecute a violation of criminal law; and
(2) the employee’s belief was reasonable in light of the employee’s training and experience.

Tex. Dep’t of Transp. v. Needham, 82 S.W.3d 314, 320 (Tex.2002). “The test’s second element ensures that, even if the reporting employee honestly believed that the reported act was a violation of law, the reporting employee only receives Whistle-blower Act protection if a reasonably prudent employee in similar circumstances would have believed that the facts as reported were a violation of law.” Id. The court applied this same test to the analysis of whether the report was made to an appropriate law enforcement authority. Id. As a matter of law, however, “the statutory definition’s limiting language— regulate under, enforce, investigate, and prosecute — does not include an employer’s power to internally discipline its own employees for an alleged violation.” Id. at 321; accord Clark v. Tex. Home Health, Inc., 971 S.W.2d 435, 438 (Tex.1998); see City of Beaumont v. Bouillion, 896 S.W.2d 143, 144-46 (Tex.1995). In Needham, the Supreme Court held that there was no evidence that would support an objective belief that a report for internal discipline by the employer would support a determination that the employee in good faith believed that the employer was an appropriate law enforcement authority. Needham at 320-21. Accordingly, an employee’s belief in his or her employer’s power to discipline employees does not render the employer an “appropriate law enforcement authority.” Id.

Lopez points to evidence that he believed that another City employee had violated the EEO policy, that Lopez had received training from the City on filing complaints of such violations with the EEO officer, and that Lopez had filed such a complaint with that officer. Under Needham, Lopez’s complaint does not constitute a report to a person or entity that Lopez could in good faith believe to be an appropriate law enforcement authority. Needham, 82 S.W.3d at 320-21. Accordingly, we should sustain the City’s fourth issue.

We should, having sustained the City’s fourth issue, reverse the trial court’s order denying the City’s plea to the jurisdiction, and render judgment for the City. See Tex. Dep’t of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 648 (Tex.2004).

      . In Purdin v. Copperas Cove Economic Development Corp., it was stated that this Court’s opinion in Vela "has been withdrawn.” 143 S.W.3d 290, 295 n. 4 (Tex.App.-Waco 2004, pet. dism'd). However, only the appellee's petition for review was withdrawn in Vela. This Court expressly denied the parties’ joint motion to withdraw the opinion.

      . Section 21.211 provides:
      A person who has initiated an action in a court of competent jurisdiction or who has an action pending before an administrative agency under other law or an order or ordinance of a political subdivision of this state based on an act that would be an unlawful employment practice under this chapter may not file a complaint under this subchapter for the same grievance.
      Tex. Lab.Code Ann. § 21.211 (Vernon 1996).

      . The Austin Court considered Stinnett’s contention that this provision excused him from exhausting his administrative remedies under the CHRA by filing suit under the Whistle-blower Act. See Stinnett v. Williamson County Sheriff’s Dep’t, 858 S.W.2d 573, 576 (Tex.App.-Austin 1993, writ denied). The court rejected this contention because the exhaustion of remedies is a jurisdictional prerequisite to a suit alleging a violation of the CHRA. Id. We note again, however, that Lopez’s suit does not allege a violation of the CHRA.

      . I note that Lopez plainly had an opportunity to pursue the claimed EEO violation directly, but chose instead to wait and pursue a claim for retaliation. But we need not decide the City's first issue, whether bringing his claim as a retaliation claim rather than a claim under the Texas Commission on Human Rights Act is proper. See Tex Lab.Code Ann. §§ 21.001-21.556 (Vernon 1996 & Supp. 2005). The majority opinion notes the conflict among the courts of appeals on this issue. Thus it appears to be an issue ripe for resolution of the conflict by the Texas Supreme Court. See Tex Gov’t Code Ann. § 22.001(a)(2) (Vernon 2004).


source: Caselaw Access Project

author: FELIPE REYNA, Justice. TOM GRAY, Chief Justice,

license: Public Domain

text:
    Mohamad ELCHEHIMI, Individually and as Parent and Next Friend of K.E. and L.E., Minor Children, Appellant, v. NATIONWIDE INSURANCE COMPANY, Appellee.
    No. 10-04-00298-CV.
    Court of Appeals of Texas, Waco.
    Dec. 28, 2005.

      Garry Philip Cantrell, Cantrell Law Firm, Carrollton, for appellant.
    Mark E. Macias, San Antonio, for appel-lee.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION

FELIPE REYNA, Justice.

Mohamad Elchehimi filed suit to recover under the uninsured motorist provisions of his automobile insurance policy for injuries his children and he suffered after his car was struck by an axle and attached wheels which broke away from a truck tractor driving in the opposite direction on a divided highway. The trial court granted Nationwide Insurance Company’s summary judgment motion. Elchehimi contends in his sole issue that a genuine issue of material fact remains on the question of whether the collision is sufficient to constitute “actual physical contact” with the semi as required for uninsured motorist coverage under article 5.06-l(2)(d) of the Insurance Code. We will reverse and remand.

Texas Law

Article 5.06—1(2)(d) provides in pertinent part:

in order for the insured to recover under the uninsured motorist coverages where the owner or operator of any motor vehicle which causes bodily injury or property damage to the insured is unknown, actual physical contact must have occurred between the motor vehicle owned or operated by such unknown person and the person or property of the insured.

Tex. Ins.Code Ann. art. 5.06-1 (2)(d) (Vernon Supp.2005).

Texas courts have uniformly concluded that this statute excludes from coverage a collision with cargo which has fallen from a vehicle the owner of which is unknown. E.g. Tex. Farmers Ins. Co. v. Deville, 988 S.W.2d 331, 332-34 (Tex.App.-Houston [1st Dist.] 1999, no pet.); Republic Ins. Co. v. Stoker, 867 S.W.2d 74, 77-78 (Tex.App.-El Paso 1993), rev’d on other grounds, 903 S.W.2d 338 (Tex.1995); Williams v. Allstate Ins. Co., 849 S.W.2d 859, 859-61 (Tex.App.-Beaumont 1993, no writ).

The San Antonio Court has concluded that the requisite contact did not occur in a case involving a collision between an insured’s vehicle and a component of a semitrailer which had detached from the trailer immediately before colliding with the insured’s vehicle. See Smith v. Nationwide Mut. Ins. Co., 2003 WL 21391534 at **2-3 (Tex.App.-San Antonio June 18, 2003, pet. denied) (mem.op.). This is the only Texas decision our research has disclosed on the issue of whether uninsured motorist coverage should be provided when an integral part of an unidentified vehicle collides with an insured’s vehicle. In our view however, the San Antonio Court did not give adequate weight to the distinction between cargo which has fallen from an unidentified vehicle and an integral part of an unidentified vehicle which strikes an insured’s vehicle in an unbroken chain of events.

A review of decisions from other states which require “physical contact” as a prerequisite to uninsured motorist coverage reveals that a majority of these states which have addressed this issue have concluded that the requisite contact is established when an integral part of an unidentified vehicle collides with an insured’s vehicle in an unbroken chain of events. See Tex. Farm Bureau Mut. Ins. Co. v. Sturrock, 146 S.W.3d 123, 131-32 & nn. 10-12 (Tex.2004) (reviewing decisions of other states to resolve novel coverage issue).

States With Statutes Requiring Physical Contact

According to our research, twenty-three states besides Texas have statutes which require “physical contact.” Of these, nine have expressly held that the requisite contact occurs when an “integral part” of an unidentified vehicle, cargo dropped from an unidentified vehicle, or an object propelled by the tire of an unidentified vehicle collides with the insured vehicle. See Thi Pham v. Allstate Ins. Co., 206 Cal.App.3d 1193, 1198, 254 Cal.Rptr. 152 (2d Dist.1988); State Farm Fire & Cas. Co. v. Guest, 203 Ga.App. 711, 417 S.E.2d 419, 422 (1992); Ill. Natl. Ins. Co. v. Palmer, 116 Ill.App.3d 1067, 72 Ill.Dec. 454, 452 N.E.2d 707, 708-09 (1st Dist.1983); Brooks v. State Farm Mut. Automobile Ins. Co., 855 So.2d 419, 423-25 (La.App. 4th Cir.2003); Adams v. Zajac, 110 Mich.App. 522, 313 N.W.2d 347, 349 (1981); S. Farm Bureau Cas. Ins. Co. v. Brewer, 507 So.2d 369, 370-72 (Miss.1987); Allstate Ins. Co. v. Killakey, 78 N.Y.2d 325, 574 N.Y.S.2d 927, 580 N.E.2d 399, 401 (1991); Barfield v. Ins. Co. of N. Am., 59 Tenn.App. 631, 443 S.W.2d 482, 486 (1968); Thais v. Midwest Sec. Ins. Co., 232 Wis.2d 749, 606 N.W.2d 162, 167-68 (2000).

Of these nine states, six have expressly referenced a requirement of temporal proximity for coverage. See Thi Pham, 206 Cal.App.3d at 1196-97, 254 Cal.Rptr. 152 (“uninterrupted chain” with “no intervening force to break the chain of causation”); Palmer, 72 Ill.Dec. 454, 452 N.E.2d at 708 (“continuous and contemporaneously transmitted force”); Brooks, 855 So.2d at 423-24 (“unbroken chain of events”); Brewer, 507 So.2d at 372 (“unbroken chain of events”); Adams, 313 N.W.2d at 349 (“continuous and contemporaneously transmitted force”); Killakey, 580 N.E.2d at 401 (“unbroken chain of events”). Two others involved scenarios in which temporal proximity was present. See Barfield, 443 S.W.2d at 486 (requiring coverage “when a wheel of one vehicle hurls an object, such as a stone, into and against another vehicle”); Theis, 606 N.W.2d at 164, 167-68 (requiring coverage when leaf spring “was propelled into the plaintiffs vehicle by the passing semi-tractor”). In only one of the nine was there no reference to temporal proximity. See Guest, 417 S.E.2d at 422 (requiring coverage when insured vehicle struck tire assembly which “was negligently attached to an unknown vehicle from which it fell and left in the roadway”).

West Virginia has not addressed whether contact by an “integral part” of an unidentified vehicle would suffice, but the West Virginia Supreme Court has held that actual contact is not required if the insured shows “a close and substantial physical nexus between an unidentified hit- and-run vehicle and the insured vehicle.” Dunn v. Doe, 206 W.Va. 684, 527 S.E.2d 795, 800 (1999).

North Carolina and Washington have required coverage in cases involving “indirect contact,” in which the unidentified vehicle collided with a vehicle which in turn collided with the insured’s vehicle. See McNeil v. Hartford Accident & Indemn. Co., 84 N.C.App. 438, 352 S.E.2d 915, 917 (1987); Johnson v. State Farm Mut. Automobile Ins. Co., 70 Wash.2d 587, 424 P.2d 648, 649-50 (1967); accord Latham v. Mountain States Mut. Cas. Co., 482 S.W.2d 655, 657 (Tex.Civ.App.-Houston [1st Dist.] 1972, writ ref'd n.r.e.).

Nine states have not addressed this particular issue, although the Nevada Supreme Court has concluded that an accident caused by oil purportedly spilled on the highway by an unknown vehicle is not covered. See Kern v. Nev. Ins. Guar. Assn., 109 Nev. 752, 856 P.2d 1390, 1394 (1993). However, that court did suggest that coverage may be required for a “collision between an uninsured/hit-and-run driver or automobile (or an integral part of the automobile)” and an insured’s vehicle. Id.

Finally, only South Carolina has expressly rejected coverage when “an integral part” of an unidentified vehicle (a wheel bearing) struck the insured vehicle. See Davis v. Doe, 285 S.C. 538, 331 S.E.2d 352, 353-54 (1985).

Thus, nine of the thirteen states which have statutes requiring physical contact and which have addressed coverage under a scenario similar to the facts of this case would require coverage under the facts before us. Three others likely would. Only one has expressly rejected coverage under this scenario.

States With Statutes Requiring “Actual” Physical Contact

Justice Cohen authored a concurring opinion in Deville in which he reviewed decisions from other states requiring coverage when a part of an unidentified vehicle strikes the insured’s vehicle. 988 5.W.2d at 385-86 (Cohen, J., concurring). Although Justice Cohen characterized these decisions as “highly persuasive” and representative of “the great weight of authority,” he declined to follow them because they did not involve statutes requiring “actual” physical contact. Id. at 336. Here, we part ways with Justice Cohen.

According to our research, seven other states have statutes requiring “actual” physical contact. See Ga.Code Ann. § 33-7-11(b)(2); 215 Ill. Comp. Stat. 5/143a(2)(i); La.Rev.Stat. Ann. § 22:680(1)(d)(i); Miss.Code Ann. § 83-11-103(c)(v); Neb.Rev.Stat. § 44-6405(3); N.D. Cent.Code § 26.1-40-15.1; Tenn.Code Ann. § 56-7-1201(e)(1)(A). Five of these states would require coverage under the facts before us. See Guest, 417 S.E.2d at 422; Palmer, 72 Ill.Dec. 454, 452 N.E.2d at 708-09; Brooks, 855 So.2d at 423-25; Brewer, 507 So.2d at 371-72; Barfield, 443 S.W.2d at 486. The others, Nebraska and North Dakota, have not addressed this particular issue.

Thus, a clear majority of states with statutes requiring “actual” physical contact would require coverage under the facts before us.

States With Statutes Not Requiring Physical Contact

Twenty-six states have statutory schemes for uninsured motorist coverage which do not expressly require “physical contact” as a prerequisite for coverage for a collision involving an unidentified vehicle. Four of these states have approved policy language requiring contact as a prerequisite for coverage. See State Farm Mut. Automobile Ins. Co. v. Henderson, 356 Ark. 335, 150 S.W.3d 276, 279-80 (2004); Hammon v. Farmers Ins. Co. of Idaho, 109 Idaho 286, 707 P.2d 397, 399-400 (1985); Allied Fid. Ins. Co. v. Lamb, 361 N.E.2d 174, 177 n. 1 (Ind.App.1977); Shelter Mut. Ins. Co. v. Arnold, 169 S.W.3d 855, 856 (Ky.2005).

Of these four states, Indiana, has held that sufficient contact is established when an insured’s vehicle collides with a load of debris which has fallen from an unidentified vehicle if the collision occurred as part of “a continuous sequence of events that clearly began with a load of debris falling from an unidentified vehicle and ended in [the insured’s] contact with the pile of debris.” Will v. Meridian Ins. Group, Inc., 776 N.E.2d 1233, 1237 (Ind.App.2002).

Kentucky has required coverage in cases involving “indirect contact,” in which the unidentified vehicle collided with a vehicle which in turn collided with the insured’s vehicle. See Arnold, 169 S.W.3d at 857. The court observed that this scenario:

is conceptually the same as if the hit- and-run motorist had first struck a stationary object, such as a road sign, driving the sign forward into Arnold’s vehicle, and causing the sign to interpose itself between her vehicle and that of the tortfeasor, preventing the sort of intimate and literal “physical contact” urged by Shelter.

Id. The court held that coverage would be required under either scenario. Id. In view of the Kentucky court’s rationale, it appears likely that the Kentucky court would require coverage under the facts before us.

Thus, it appears that two of the four states which allow a physical contact requirement in an insurance policy even though not required by statute would require coverage under the facts before us. The other two have not addressed this particular issue.

Summary

A clear majority of those states which have statutes requiring physical contact and which have addressed coverage under a scenario similar to the facts of this case would require coverage under the facts before us. Three others likely would. Half of those states which allow a physical contact requirement in an insurance policy even though not required by statute would likewise require coverage. We find this majority position highly persuasive and will apply it to the facts of this case.

Therefore, we hold that when an integral part of an unidentified vehicle collides with an insured’s vehicle as a “result of an unbroken chain of events with a clearly definable beginning and ending, occurring in a continuous sequence,” then the requisite “actual physical contact” has occurred and coverage is required.

Application

Elchehimi stated in his summary judgment affidavit:

We were traveling southbound in the 1800 block of U.S. Highway 287 bypass. An unidentified tractor trailer traveling northbound in the same block broke apart. A set of wheels with an attached axle traveled through the median and into oncoming southbound traffic and struck our vehicle causing me to lose control. The unidentified truck driver did not stop.

Viewed in the light most favorable to Elchehimi the non-movant, a genuine issue of material fact remains on the question of whether an integral part of an unidentified vehicle collided with his car as a “result of an unbroken chain of events with a clearly definable beginning and ending, occurring in a continuous sequence.”

Accordingly, we sustain Elchehimi’s sole issue.

We reverse the judgment and remand this cause to the trial court for further proceedings consistent with this opinion.

Chief Justice GRAY dissenting.

TOM GRAY, Chief Justice,

dissenting.

Is an “alligator” a vehicle? Until today, no. But no longer am I confident of that answer. There was no question that the tread of a truck tire which has separated from the tire casing, commonly referred to as an “alligator,” when appearing on our nation’s highways by the thousands, was not a “vehicle” as defined for uninsured motorist coverage. There is no question that the tread on a tire is an important component part of the vehicle. So over the next 20 years we will be litigating the issue of what is a large enough component part or an important enough component part of a vehicle to be a “vehicle” within the definition for uninsured motorist coverage.

Host of Questions

Is a metal leaf spring that has broken and fallen out on the highway a component part? It is not the whole spring, or even a whole leaf from a spring, it is just the nasty part that is about 18 inches long with a 90° bend and a lip of about an inch at the end which gives it just enough of a curl that when run over by the vehicle that lost it, or another vehicle, can become airborne and lethal. Is a muffler a vehicle? Is a single tire a vehicle? Is a single bolt or screw a vehicle when it “collides” with the tire of another vehicle causing a blowout and rollover? The fact patterns of what can be attached as a component to a vehicle that may become separated and collide with another vehicle causing damage are endless. I recently saw a photograph of a car with a regular 110 volt home-type window unit air conditioner installed in the right rear window. No, it did not need a long extension cord. It was plugged into the portable generator that had been mounted on the top of the trunk lid. When these items become detached, are they a vehicle for purposes of uninsured motorist coverage?

Law versus Result

So what we do here today, in the majority opinion, is decide whether the law’s consistent application, harsh though it may seem, is going to yield to a warm, comfortable result. I choose to follow the consistent application of the law and would follow the San Antonio Court when they held that a loading ramp that came loose from a trailer was not a “vehicle” for purposes of uninsured motorist coverage. And it is not because it was part of the trailer because under the definition, the term “vehicle” includes a trailer. The reason the San Antonio Court held it did not meet the definition of “vehicle” was very simple and logical.

This case is unlike other reported cases because the summary judgment record shows the ramp was not cargo; rather, it was a component of the trailer that detached from the trailer immediately before colliding with Smith’s vehicle. Smith contends, essentially, that the ramp was not on the road long enough to become debris; or at the very least, a fact question exists about whether the ramp was debris. We need not determine whether the ramp was debris— whatever it was, it was not a trailer or a motor vehicle, and Smith’s policy provides UM coverage only if a “land motor vehicle or trader” is involved, (footnotes omitted)

Smith v. Nationwide Mut. Ins. Co., No. 04-02-00646-CV, 2003 WL 21391534, *3, 2003 Tex.App. LEXIS 5056, *6-7 (Tex.App.-San Antonio June 18, 2003, pet. denied).

We should dispose of this case with the same simplicity and logic. By the very argument that the wheels and axle were an integral, component part of a vehicle, the conclusion that it is not a vehicle should be obvious.

Problems in the Majority’s Analysis

For the majority’s theory to work, they know they must connect it in time, thus they add a requirement that the actual physical contact must occur in an unbroken chain of events. This may limit some “alligators” from wandering into the courtroom. But when a truck loses a tire tread — a cap — , how can you distinguish the movement from the initial vehicle from one that ran over it and hurled it into the path of a motorist? Or if you are in the area of Lipsitz’s recycling facility, how can you know the wheel assembly came from the running gear of an operating truck, rather than from the load of scrap metal the truck is hauling?

Another problem for the majority’s theory is that they have determined it must be an “integral” component part. Defining “integral” component parts is also going to be a rich source of litigation over the next 20 years. I would have thought integral meant something like it was defined in the dictionary — “Essential or necessary for completeness.” The American Heritage College Dictionary, 706 (3rd Edition, Houghton Mifflin Company 1997). I cannot determine if “integral” will be a limitation on what constitutes a component part or may be an expansion of the scope of component parts leading to liability. If the part is so essential that it is necessary for the operation of the vehicle, then the vehicle would stop and the uninsured motorist could then be identified. But in this instance, the part which separated though large and seemingly important — a drive axel and tandem wheels and tires — did not render the vehicle from whence it came inoperable. Of course, I am assuming it did not come from a load of scrap metal.

Finally, contrary to the extensive discussion of “contact” in the majority opinion, in which a highly suspect survey of state law is conducted, the issue is not limited to contact or actual contact; it is about the definition of vehicle. That is what the San Antonio Court focused upon and that is the issue we should focus upon. There is no question the wheel assembly made physical contact with the insured’s vehicle. The real question is, does the wheel assembly come within the definition of vehicle.

Conclusion

I would rewrite neither the insurance contract nor the insurance code. The axel and tandem wheel set are not a vehicle. I would affirm the trial court’s judgment. Because the majority does not, I dissent.

      . Alaska Stat. § 28.20.445(f); Ariz.Rev.Stat. § 20-259.01(M); Cal. Ins.Code § 11580.2(b)(1); Ga.Code Ann. § 33-7-11(b)(2); 215 Ill. Comp. Stat. 5/143a(2)(i); Iowa Code § 516A.1; Kan. Stat. Ann. § 40-284(e)(3); La.Rev.Stat. Ann. § 22:680(1)(d)(i); Mich. Comp. Laws § 257.1112; Miss.Code Ann. § 83-11-103(c)(v); Neb.Rev.Stat. § 44-6405(3); Nev.Rev.Stat. 690B.020(3)(f)(1); N.Y. Ins. Law § 5217; N.C. Gen.Stat. § 20-279.21(b)(3)(b); N.D. Cent.Code § 26.1-40-15.1; Or.Rev.Stat. § 742.504(2)(f); S.C.Code Ann. § 38-77-170(2); Tenn.Code Ann. § 56-7-1201(e)(1)(A); Utah Code Ann. § 31A-22-305(5); Va.Code Ann. § 38.2-2206(D); Wash. Rev.Code § 48.22.030(8); W. Va.Code § 33-6-31(e)(iii); Wis. Stat. § 632.32(4)(a)(2)(b). Some of these states allow coverage without physical contact if there is independent corroboration of the cause of the insured’s accident.

      . As stated, Texas courts of appeals have denied coverage for collisions with cargo dropped from an unidentified vehicle. E.g. Tex. Farmers Ins. Co. v. Deville, 988 S.W.2d 331, 332-34 (Tex.App.-Houston [1st Dist.] 1999, no pet.).

      . This test arguably includes an element of temporal proximity.

      . Cases involving "indirect contact” via an intermediary vehicle necessarily include an element of temporal proximity.

      .Alaska, Arizona, Iowa, Kansas, Nebraska, Nevada, Oregon, Utah, and Virginia.

      . We do not include Nevada among these, but the language in Kern suggests that Nevada may require coverage under similar circumstances.

      . Ala.Code § 32-7-23; Ark.Code Ann. § 23-89-403; Col.Rev.Stat. § 10-4-609; Conn. Gen. Stat. § 38a-336; Del.Code Ann. tit. 18, § 3902(a)(3); Fla. Stat. § 627.727; Haw.Rev. Stat. § 431:100-301; Idaho Code Ann. § 41-2502; Ind.Code § 27-7-5-2; Ky.Rev.Stat. Ann. § 304.20-020; 24-A Me.Rev.Stat. Ann. § 2902; Md. Ins.Code Ann. § 19-509; Mass. Gen. Laws ch. 175, § 113L; Minn.Stat. § 65B.49; Mo. Rev.Stat. § 379.203; Mont.Code Ann. § 33-23-201; N.H.Rev.Stat. Ann. § 264:15; N.J. Stat. Ann. § 17:28-1.1; N.M. Stat. § 66-5-301; Ohio Rev.Code Ann. § 3937.18; Okla. Stat. tit. 36, § 3636; 75 Pa. Consol. Stat. § 1702; R.I. Gen. Laws § 27-7-2.1; S.D. Codified Laws § 58-11-9; Vt. Stat. Ann. tit. 23 § 941; Wyo. Stat. Ann. § 31-10-101.

      . Conversely, 18 states have found such policy language to be invalid because their statutory schemes did not require contact. See State Farm Fire & Cas. Co. v. Lambert, 291 Ala. 645, 285 So.2d 917, 920 (1973); Farmers Ins. Exch. v. McDermott, 34 Colo.App. 305, 527 P.2d 918, 919-20 (1974); Streitweiser v. Middlesex Mut. Assurance Co., 219 Conn. 371, 593 A.2d 498, 502-03 (1991); State Farm Mut. Automobile Ins. Co. v. Abramowicz, 386 A.2d 670, 674 (Del.1978); Brown v. Progressive Mut. Ins. Co., 249 So.2d 429, 430 (Fla.1971); DeMello v. First Ins. Co. of Haw., Ltd., 55 Haw. 519, 523 P.2d 304, 310 (1974); Lanzo v. State Farm Mut. Automobile Ins. Co., 524 A.2d 47, 50 (Me.1987); Surrey v. Lumbermens Mut. Cos. Co., 384 Mass. 171, 424 N.E.2d 234, 238-39 (1981); Halseth v. State Farm Mut. Automobile Ins. Co., 268 N.W.2d 730, 733 (Minn.1978); Dawson v. Denney-Parker, 967 S.W.2d 90, 93 (Mo.App.1998); McGlynn v. Safeco Ins. Cos. of Am., 216 Mont. 379, 701 P.2d 735, 739—40 (1985); Soule v. Stuyvesant Ins. Co., 116 N.H. 595, 364 A.2d 883, 884-85 (1976); Montoya v. Dairyland Ins. Co., 394 F.Supp. 1337, 1342 (D.N.M.1975); Girgis v. State Farm Mut. Automobile Ins. Co., 75 Ohio St.3d 302, 662 N.E.2d 280, 283 (1996); Biggs v. State Farm Mut. Automobile Ins. Co., 569 P.2d 430, 433-34 (Okla.1977); Webb v. United Servs. Automobile Assn., 227 Pa.Super. 508, 323 A.2d 737, 744 (1974); Pin Pin v. Kemper Ins. Cos., 431 A.2d 416, 418-19 (R.I.1981); Clark v. Regent Ins. Co., 270 N.W.2d 26, 30-31 (S.D.1978).

      . Like Michigan, Indiana considers temporal proximity "a significant but not dispositive factor.” Will v. Meridian Ins. Group, Inc., 776 N.E.2d 1233, 1237 (Ind.App.2002) (quoting Berry v. State Farm Mut. Automobile Ins. Co., 219 Mich.App. 340, 556 N.W.2d 207, 212 (1996)).

      . Like the “indirect contact” cases we discussed hereinabove involving intermediary vehicles, the facts in Arnold necessarily include an element of temporal proximity. See note 4, supra.


author: ELSA ALCALA, Judge.

text:
    The STATE of Texas, Appellant, v. C.J.F., Appellee.
    No. 01-04-00257-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Dec. 29, 2005.

      Alan Curry, Assistant District Attorney, Charles A. Rosenthal, Jr., District Attorney-Harris County, Houston, for appellant.
    Scot R. Courtney, Scardino & Courtney, Houston, for appellee.
    Panel consists of Justices TAFT, ALCALA, and HIGLEY.
   OPINION ON REHEARING

ELSA ALCALA, Judge.

The State of Texas has filed a motion for rehearing of our opinion issued on August 25, 2005. After due consideration, we deny the State’s motion for rehearing, but withdraw our opinion and judgment of August 25, 2005, and issue the following opinion and judgment in their stead.

The State of Texas appeals from dismissal of charges filed against appellee, a juvenile, for engaging in delinquent conduct by committing the felony offense of manslaughter. The trial court dismissed appellee’s charges with prejudice on the grounds that the State’s petition violated appellee’s rights against double jeopardy. The State contends that the trial court’s dismissal was erroneous for four reasons.

First, the State asserts that appellee failed her burden to produce evidence that the facts of the offense were barred by double jeopardy. Second, the State asserts that its nonsuits of the third and fourth amended petitions in cause number 2002-07732J, the pleadings that preceded this cause, did not constitute a dismissal of the prosecution for purposes of appellee’s right against double jeopardy because the nonsuits were timely taken before any evidence was heard in the case. Third, the State asserts that jeopardy could not have attached from the third and fourth amended petitions in cause number 2002-07732J because the third amended petition was superseded by the fourth amended petition and was therefore no longer a live pleading, and because the trial court had no jurisdiction over the fourth amended pleading due to lack of service of that petition on appellee. Fourth, as a matter of first impression in Texas, the State contends that, unlike other criminal proceedings, in which jeopardy attaches when the jury is sworn, jeopardy does not attach in a juvenile proceeding until the trier of fact begins to hear evidence or when the first witness is sworn. We affirm the trial court’s dismissal.

Background and Procedural History

On April 18, 2002, appellee, a 15-year-old juvenile, was involved in an automobile collision that resulted in the death of Kathryn Sanchez. On September 20, 2002, the State filed its original petition in cause number 2002-07732J, which asserted that appellee intentionally, knowingly, and recklessly caused Sanchez’s death. The State filed its first amended petition on October 9, 2002, and filed a second amended petition on January 31, 2003.

On May 1, 2003, the grand jury retened the State’s third amended petition, which, like the original petition, alleged that ap-pellee intentionally, knowingly, and recklessly caused Sanchez’s death, but, in addition, authorized a determinate sentence. In response to the State’s motion to abandon the words “intentionally” and “knowingly” from the third amended petition, the trial court struck those words from that petition. Believing that the grand jury might have authorized a determinate sentence based on the higher culpable mental states for conduct that was “intentionally” and “knowingly” performed, as compared to “recklessly” performed, the trial court quashed the determinate sentence portion of the petition. After the trial court deleted the higher culpable mental states and quashed the authorization for determinate sentencing, the third amended petition charged only reckless manslaughter against a juvenile, with no authorization for a determinate sentence. On October 16, 2003, the grand jury returned the State’s fourth amended petition, which was identical to the third amended petition’s remaining charge of reckless manslaughter, but, in addition, authorized a determinate sentence.

On January 5, 2004, appellee was admonished concerning the range of punishment for the reckless manslaughter charge in the fourth amended petition, which included authorization for a determinate sentence. During the trial court’s voir dire of the jury, which followed, the trial court informed the jurors that appellee was charged with reckless manslaughter and that the punishment range included the possibility of 20 years in prison as a determinate sentence if appellee were transferred to adult prison when she turned 21 years of age. A jury was then empaneled and sworn. Immediately after the jury was released for the day, appellee’s attorney informed the trial court, for the first time, that appellee had not been properly served with the fourth amended petition and that the trial court therefore lacked jurisdiction to rule on the allegations in the State’s fourth amended petition, for which the jury had already been empaneled. Appellee’s attorney also stated that, although the trial court lacked jurisdiction over appellee’s fourth amended petition, appellee was ready to proceed on the allegations in the third amended petition, which authorized appellee to be sentenced as a juvenile for reckless manslaughter, but did not authorize determinate sentenc-mg. After the State’s attorney requested a hearing to determine whether appellee had been properly served, the trial court conducted an evidentiary hearing on the issue.

Following the hearing and after the trial court questioned whether appellee had been served with the fourth amended petition, appellee and the State’s attorney each represented to the trial court that the trial court lacked jurisdiction over the fourth amended petition because it had not been served on appellee. Appellee and the State’s attorney disputed, however, whether the third amended petition remained a live pleading in the trial court.

The State argued that the third amended petition had been superseded by the fourth amended petition and that it was therefore no longer a live pleading. Ap-pellee’s attorney restated his readiness to proceed on the third amended petition, which did not include the possibility of a determinate sentence, argued that jeopardy had attached on the third amended petition because a jury had been selected and sworn, and objected to dismissal of the jury or declaration of a mistrial.

In the State’s arguments to the trial court concerning its impending ruling on whether to dismiss the empaneled jury, the prosecutor criticized appellee’s decision to wait to object about the lack of service until after the jury was empaneled and sworn and argued that appellee’s “sandbag” technique was unfair. The prosecutor refused to proceed to trial before the jury that had been empaneled on the grounds that the trial court had no jurisdiction to proceed with the fourth amended petition due to the lack of service of that petition on appellee. The State further contended that the jury had never been empaneled to decide the third amended petition because that petition was no longer a live pleading due to the existence of the fourth amended petition. The State requested a nonsuit of both the third and fourth amended petitions, which the trial court granted, and the empaneled jury was dismissed over appellee’s objection.

On January 13, 2004, the State filed its original petition in new cause number 2004-00332J. Like the fourth amended petition, the new original petition charged appellee with reckless manslaughter and included authorization for a determinate sentence. Appellee filed a motion to dismiss the cause based on double-jeopardy violations, along with a supporting brief. The State responded in writing to the motion to dismiss by asserting (1) that the trial court had no jurisdiction to entertain the fourth amended petition due to lack of service of that petition and therefore jeopardy could not attach on a matter that the trial court had no jurisdiction to hear, and (2) that a dismissal of a petition does not constitute an adjudication of the merits of the dismissed action because the dismissal merely places the parties in the same positions they held before the court’s jurisdiction was invoked. The trial court dismissed the cause with prejudice, holding that double jeopardy barred any future prosecutions arising out of the same transaction.

Standard of Review

When “the trial judge is not in an appreciably better position than the reviewing court” to rule on a matter, we review the trial-court rulings. Ex parte Peralta, 87 S.W.3d 642, 645 (Tex.App.-San Antonio 2002, no pet.). Because the facts before us are undisputed and the trial court’s ruling did not turn on the credibility or demeanor of the witnesses, we review the trial court’s double-jeopardy ruling de novo. See id

Double Jeopardy

The State’s second and fourth arguments assert that charging appellee is not barred by double jeopardy because the State’s nonsuits were timely as a matter of civil law, having been taken before any evidence was heard in the case. The State also asserts that, unlike other criminal proceedings, in which jeopardy attaches when the jury is sworn, jeopardy does not attach in juvenile proceedings until the trier of fact begins to hear evidence or when the first witness is sworn. We address these contentions together.

Juvenile proceedings and appeals from those proceedings are governed by an unlikely and sometimes perplexing hybrid of civil and criminal law. In re R.S.C., 940 S.W.2d 750, 751-52 (Tex.App.-El Paso 1997, no writ). An appeal from an order of a juvenile court is governed by the requirements pertaining to civil cases generally. Tex. Fam.Code Ann. § 56.01 (a)(b) (Vernon 2002). A juvenile-delinquency proceeding is considered a civil proceeding, but is quasi-criminal in nature. In re J.R., 907 S.W.2d 107, 109 (Tex.App.-Austin 1995, no writ); C.E.J. v. State, 788 S.W.2d 849, 852 (Tex.App.-Dallas 1990, writ denied); Smith v. Rankin, 661 S.W.2d 152, 153 (Tex.App.-Houston [1st Dist.] 1983, orig. proceeding). The juvenile is guaranteed the same constitutional rights as an adult in a criminal proceeding because a juvenile-delinquency proceeding seeks to deprive the juvenile of his liberty. In re Winship, 397 U.S. 358, 359, 90 S.Ct. 1068, 1070, 25 L.Ed.2d 368 (1970) (“[T]he Due Process Clause does require application during the adjudicatory hearing of ‘the essentials of due process and fair treatment.’ ”); J.R., 907 S.W.2d at 109; C.E.J., 788 S.W.2d at 852; Smith, 661 S.W.2d at 153 (citing In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967)). Neither the Fourteenth Amendment nor the Bill of Rights is for adults alone. In re Gault, 387 U.S. at 13, 87 S.Ct. at 1436.

The doctrine of double jeopardy, which is derived from the Fifth Amendment to the Constitution of the United States and applied to the states through the Fourteenth Amendment, prohibits a state from placing a defendant in jeopardy twice for the same offense. See generally Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978); Breed v. Jones, 421 U.S. 519, 541, 95 S.Ct. 1779, 1791, 44 L.Ed.2d 346 (1975) (applying due process right against double jeopardy to juveniles); Downum v. United States, 372 U.S. 734, 737-38, 83 S.Ct. 1033, 1035-36, 10 L.Ed.2d 100 (1963); Ex parte Little, 887 S.W.2d 62, 64 (Tex.Crim.App.1994) (citing Arizona v. Washington, 434 U.S. 497, 503, 98 S.Ct. 824, 829, 54 L.Ed.2d 717 (1978)). In a jury trial of an adult charged with a crime, jeopardy attaches when the jury is empaneled and sworn. Crist, 437 U.S. at 38, 98 S.Ct. at 2162. The rule that jeopardy attaches when the jury is empaneled and sworn is an integral part of the constitutional guarantee against double jeopardy. Id. A defendant’s “valued right to have his trial completed by a particular tribunal” is now within the protection of the constitutional guarantee against double jeopardy, because that right lies at the foundation of the federal rule that jeopardy attaches when the jury is empaneled and sworn. See Crist, 437 U.S. at 36, 98 S.Ct. at 2161. The time when jeopardy attaches in a jury trial “serves as the lynchpin for all double-jeopardy jurisprudence.” Crist, 437 U.S. at 38, 98 S.Ct. at 2162. After jeopardy attaches, any charge that is dismissed, waived, abandoned or on which the jury returns an acquittal, may not be retried. Ex parte Scelles, 511 S.W.2d 300, 301 (Tex.Crim.App.1974).

Double-jeopardy constitutional protections that adults accused of crimes enjoy apply also to juveniles. Schall v. Martin, 467 U.S. 253, 263, 104 S.Ct. 2403, 2409, 81 L.Ed.2d 207 (1984) (citing Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975)); In re J.R.R., 696 S.W.2d 382, 384 (Tex.1985). The proceeding puts the juvenile in jeopardy when it seeks to determine whether a juvenile has committed acts that violate a criminal law and the potential consequences of the proceeding include both the stigma inherent in such a determination and the deprivation of liberty for many years. Breed, 421 U.S. at 529, 95 S.Ct. at 1785. We are not aware that any court has held that jeopardy attaches in a juvenile case at the same time as in an adult criminal proceeding, ie., when the jury is sworn. Yet, the constitutional protections afforded to adult criminal defendants must also be afforded to juvenile defendants whose liberty is at stake. See id. Court’s must “eschew ‘the “civil” label-of-eonvenience which has been attached to juvenile proceedings’ ” when a constitutional right is at stake. Id. (citing In re Gault, 387 U.S. at 50, 87 S.Ct. at 1455).

We hold that the constitutional guarantee that jeopardy attaches when the jury is empaneled and sworn, as recognized by Crist concerning adult criminal defendants, applies equally to a juvenile proceeding whose object is to determine whether the juvenile has committed acts that violate a criminal law and whose potential consequences include the deprivation of liberty for many years. More simply stated, jeopardy attaches in a juvenile proceeding, as in an adult criminal proceeding, when the jury has been empaneled and sworn. See Schall, 467 U.S. at 263, 104 S.Ct. at 2409; Breed, 421 U.S. at 529, 95 S.Ct. at 1785; Crist, 437 U.S. at 38, 98 S.Ct. at 2162. Accordingly, jeopardy attached to appellee’s juvenile proceedings here when the jury was empaneled and sworn.

The State insists, however, that the Rules of Civil Procedure control here — not the criminal law principles of double jeopardy — and that its nonsuits were timely filed in accordance with the civil rules. Although the State relies on In re S.B.C. as demonstrating that the civil rules control over jeopardy principles in a juvenile proceeding, that case did not address the effect of a dismissal after the jury had been sworn, as here, and is distinguishable from the case before us for that reason. See In re S.B.C., 805 S.W.2d 1, 9 (Tex.App.-Tyler 1991, writ denied) Cholding that double jeopardy did not bar refiling of original cause dismissed after detention hearing under circumstances demonstrating no adjudication of merits of original cause). We therefore conclude that, even if the State filed its nonsuits timely according to the Rules of Civil Procedure, jeopardy attached to appellee’s juvenile proceedings when the jury was empaneled, and we thus hold that the Rules of Civil Procedure must yield to the constitutional protections against double jeopardy. See Schall, 467 U.S. at 263, 104 S.Ct. at 2409; Breed, 421 U.S. at 531, 95 S.Ct. at 1787; Crist, 437 U.S. at 38, 98 S.Ct. at 2162.

We are not persuaded by the State’s second and fourth contentions regarding the trial court’s ruling, and overrule those contentions.

Appellee’s Burden to Present the Trial Court with a Sufficient Record

In its first challenge to the trial court’s ruling, the State contends that ap-pellee failed her burden to present the trial court with a sufficient record to prove that the prosecution of cause number 2004-00332J would violate her double-jeopardy rights. The State further contends that appellee did not satisfy her burden to prove a double-jeopardy violation because the parties litigated appellee’s double-jeopardy claim by written motions alone.

The Court of Criminal Appeals addressed these issues recently in Hill v. State, in which the defendant filed a motion contending that his trial was barred by double jeopardy. 90 S.W.3d 308, 311, 313 (Tex.Crim.App.2002) (analyzing State v. Torres, 805 S.W.2d 418, 421 (Tex.Crim.App.1991), and stating that the “initial burden of proving the double jeopardy is on the defendant.”). In Hill, the trial court ruled on the motion after discussing the events of the previous trial with the prosecutor and defense counsel. Id. at 311-12. On appeal, the State argued that the defendant’s double-jeopardy claim failed because the defendant did not introduce any supporting evidence. Id. at 312. The Court of Criminal Appeals disagreed and held that, although the defendant did not introduce evidence on the motion, “the State did not object to the format of the hearing or the manner in which the Court made its findings. In fact, the State readily participated in the proceedings.” Id. Moreover, the court concluded that when “a plea of jeopardy is before the same court and judge,” the “requirements concerning the plea are relaxed.” Id.

The court reiterated the rationale supporting this conclusion, first explained in Shaffer v. State, by stating, “[t]he requirement that the defendant present evidence in support of his allegation of former jeopardy serves a legitimate state interest” because “[t]he trial court has no way of knowing that the allegations in the plea are true.” Hill, 90 S.W.3d at 312 (quoting Shaffer v. State, 477 S.W.2d 873, 875 (Tex.Crim.App.1971)). But, “the procedural requirements which must be followed are not arid rituals of meaningless form.” Id. Instead, “former jeopardy need not be specially pled in those instances where the trial court either knows or should know of the former proceeding, such as in those cases where the former jeopardy arose in the same case.” Id. The rule does not apply, therefore, when it is unnecessary or would serve no purpose. Id. (citing Shaffer, 477 S.W.2d at 875-76).

Here, as in Hill and Toms, requiring a defendant to present evidence in support of his double-jeopardy claim would exalt form over substance. See id.; Torres, 805 S.W.2d at 422. The motion to dismiss based on double jeopardy was before the same trial court and judge and was made shortly after the State filed the new original petition in cause No. 2004-00332J. Requiring appellee to present evidence to the trial court in this instance would “serve no purpose” because the trial court knew of the former proceeding, and, moreover, the trial court, as well as both parties, had discussed double jeopardy when the State nonsuited the third and fourth amended petitions. See Hill, 90 S.W.3d at 312. We note further that, as in Hill and Torres, the State neither objected to the format of the hearing nor requested a hearing on the motion to dismiss. See Hill, 90 S.W.3d at 312; Torres, 805 S.W.2d at 421. Instead, the State readily participated in the proceedings by filing a written response to appellee’s motion to dismiss.

Having neither objected to the format of the hearing nor the manner in which the trial court made its findings, and having actually participated in those former proceedings before the same trial-court judge, who was well aware of the underlying pertinent facts, the State may not claim now that appellee did not meet her burden of producing sufficient evidence. See Torres, 805 S.W.2d at 421. Likewise, the State may not object now to the nature of the proceedings. See id. at 421-22.

We are not persuaded by the State’s first contention that the trial court erred and therefore overrule that contention.

Jurisdiction and Lack of Service for the Fourth Amended Petition

In its third challenge to the trial court’s ruling, the State contends that jeopardy could not have attached because the trial court lacked jurisdiction over the, fourth amended petition due to lack of service.

The record shows that the trial court concluded that appellee might not have been served with the fourth amended petition, which was identical to the third amended petition that had been served on appellant, except that the fourth amended petition allowed for the possibility of a determinate sentence, which the third amended petition did not.

The State contends that, regardless of whether a juvenile has been properly served with the original petition, we should hold that service of a later amended petition is. required for the trial court to have jurisdiction over a juvenile. The State contends that the Rules of Civil Procedure require service on a defendant when subsequent pleadings would impose a more onerous judgment on the defendant. Because the fourth amended petition imposed a more onerous judgment on appellee than the third amended petition, which did not include the possibility of a determinate sentence, the State contends that service of the fourth amended petition on appellee was required for the trial court to have jurisdiction to adjudicate the allegations in that petition. The State explains that the trial court’s voir dire and jury selection concerned the fourth amended petition only and contends that the trial court had no jurisdiction over that petition due to lack of service. The State further asserts that the third amended petition was no longer a live pleading because it had been superseded by the fourth amended petition. The State thus contends that no jeopardy attached in this case.

We agree with the State that jeopardy cannot attach on a matter that the trial court had no jurisdiction to hear. See Hoang v. State, 872 S.W.2d 694, 699 (Tex.Crim.App.1993) (holding that jeopardy does not attach when court lacks jurisdiction over matter); In re D.M., 611 S.W.2d 880, 883-84 (Tex.Civ.App.-Amarillo 1980, no writ) (same); Allen v. State, 657 S.W.2d 815, 816-17 (Tex.App.-Houston [1st Dist.] 1982, writ dism’d) (holding that lack of service of petition resulted in lack of jurisdiction in trial court and thus no jeopardy attached). We also agree with the State that dismissal of a petition before a jury is sworn does not constitute an adjudication of the merits of the dismissed action because the dismissal merely places the parties where they were before the court’s jurisdiction was invoked. See In re S.B.C., 805 S.W.2d 1, 9 (Tex.App.-Tyler 1991, writ denied) (holding that dismissal of cause that occurred after preliminary hearings concerning whether to place defendant in home arrest or detention pending trial placed parties in position they were in before court’s jurisdiction was invoked; nothing in opinion suggests that dismissal occurred after jury was empaneled and sworn).

We further agree with the State that a trial court lacks jurisdiction over a juvenile when the record lacks an affirmative showing that a petition was served. See In re M.D.R., 113 S.W.3d 552, 553 (Tex.App.-Texarkana 2003, no pet.) (citing In re D.W.M., 562 S.W.2d 851, 852-53 (Tex.1978)); In reAB., 938 S.W.2d 537, 538-39 (Tex.App.-Texarkana 1997, writ denied); Tex. Fam.Code Ann. §§ 53.04, 53.06, 53.07 (Vernon 2002). Stated conversely, the trial court’s jurisdiction over a juvenile vests when the juvenile is served with the summons and the original petition, which provides notice to the juvenile of the State’s charges. Tex. Fam.Code Ann. §§ 53.04, 53.06, 53.07; Johnson v. State, 551 S.W.2d 379, 382 (Tex.Crim.App.1977).

We cannot agree, however, with the State’s contention that service of all subsequent petitions on a juvenile is required for the court to retain jurisdiction when the State restates the same charges against the juvenile in an amended petition, albeit with different punishment ranges. We have already determined that, when a juvenile has been served with the original petition, the trial court does not lose jurisdiction for lack of service if the charges are refiled in a later amended petition. See In re S.D.W., 811 S.W.2d 739, 746 (Tex.App.-Houston [1st Dist.] 1991, no writ) (citing McBride v. State, 655 S.W.2d 280, 283 (Tex.App.-Houston [14th Dist.] 1983, no writ)) (“[W]hen jurisdiction attached [by virtue of a properly served citation in the original petition], the court did not lose jurisdiction because the State may have failed to follow the statutory guidelines in serving appellant with an amended petition.”); In re G.A.T., 16 S.W.3d 818, 823 (Tex.App.-Houston [14th Dist.] 2000, pet. denied) (holding that juvenile court acquires jurisdiction over respondent when served with original petition and that court does not lose jurisdiction for lack of service of amended petition).

Despite controlling precedent on this issue, the State contends that we should revisit these holdings because they conflict with the provisions of the Rules of Civil Procedure that require service on the defendant when subsequent pleadings impose a more onerous judgment. The State relies on the following authority: Atwood v. B & R Supply & Equip. Co., 52 S.W.3d 265, 267-68 (Tex.App.-Corpus Christi 2001, no pet.) {reversing default judgment because second petition alleging suit on sworn account imposed more onerous judgment than original petition for “simple suit alleging breach of contract”; explaining that pleadings in suit on sworn account are taken as prima facie evidence of claim, including unliquidated damages, but in breach of contract, unliquidated contract damages cannot be assessed without evi-dentiary hearing); Caprock Const. Co. v. Guaranteed Floorcovering, Inc., 950 S.W.2d 203, 204-05 (Tex.App.-Dallas 1997, no writ) (reversing default judgment because addition of new plaintiff in later petition exposed defendant to additional liability); Onwukwe v. Ike, 137 S.W.3d 159, 165-66 (Tex.App.-Houston [1st Dist.] 2004, no pet.) (affirming default judgment, but acknowledging that subsequent pleadings imposing more onerous judgment on defendant must be served on defendant) (citing Rose v. Rose, 117 S.W.3d 84, 91 (Tex.App.-Waco 2003, no pet) (stating, “A plaintiff must serve a non-answering defendant with amended pleadings only when the amended pleading sets up a new cause of action or seeks a more onerous judgment against the defendant.”)).

All of these cases, however, assess pleadings from which default judgments were entered when the defendant did not appear in court to answer the lawsuit. These cases do not stand for the proposition that a trial court’s jurisdiction over a lawsuit terminates because the subsequent pleadings imposed a more onerous judgment on the defendant. Instead, the dis-positive issue in these cases is lack of proper notice of the pleadings against the defendant, which precluded any admission of liability due to lack of an answer.

This is not a default-judgment case. Appellee was properly served with the charge of -reckless manslaughter and appeared in court to answer the reckless manslaughter charge. Although the determinate sentence authorization by the grand jury changed the punishment range for the offense, the reckless manslaughter charge was asserted in each of the petitions filed against appellee. We cannot conclude, therefore, that when an amended petition charges the same crime against the defendant for which the-defendant has been served, the Rules of Civil Procedure require service of a petition that adds only authorization by the grand jury to seek a determinate sentence. See In re S.D.W., 811 S.W.2d at 746. For the same reasons, we cannot conclude that the trial court lost jurisdiction over appellee merely because she was not served with the later petition.

We conclude that the trial court acquired jurisdiction over appellee, who was properly served with the original petition, regardless of whether appellee was served with the subsequent amended petition. See id.

For the first time on appeal, the State further contends both that juvenile defendants should be served in the same manner as adult defendants, who must receive service of subsequent indictments, and that the trial court, State’s attorney, and appellee’s attorney were all “of the opinion” that the trial court lost jurisdiction over appellee’s fourth amended petition due to lack of service. Although subject matter jurisdiction may be raised for the first time on appeal, whether the trial court had personal jurisdiction may not. See Univ. of Tex. S.W. Med. Ctr. v. Loutzenhiser, 140 S.W.3d 351, 353 (Tex.2004) (citing Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445-46 (Tex.1993)); see also In re A.D.D., 974 S.W.2d 299, 303 (Tex.App.-San Antonio 1998, no pet.) (citing Fed. Underwriters Exch. v. Pugh, 141 Tex. 539, 541, 174 S.W.2d 598, 600 (1948)) (stating that personal jurisdiction “concerns the court’s power to bind a particular person or party” and “can be conferred by consent or waiver.”). Whether the trial court had jurisdiction over a juvenile due to improper service is a question of personal jurisdiction, which, accordingly, can be waived. See In re M.D.R., 113 S.W.3d 552, 553 (Tex.App.-Texarkana 2003, no pet.) (citing D.W.M., 562 S.W.2d at 852-53); see also Tex. Fam.Code Ann. §§ 53.06(e), 53.07.

Although not usually in the position of appellant, the State must follow the Rules of Appellate Procedure when acting as appellant. State v. Mercado, 972 S.W.2d 75, 78 (Tex.Crim.App.1998). Accordingly, arguments that the State wishes to assert on appeal must have first been made at trial to avoid waiver. Id.; see Tex.R.App. P. 33.1. As the Court of Criminal Appeals recently reaffirmed, rule 33.1’s “raise it or waive it” forfeiture rule applies equally to the State and the defendant. Martinez v. State, 91 S.W.3d 331, 336 (Tex.Crim.App.2002). Because the State did not raise these issues in the trial court, the State has not preserved them for our review and has waived any error. See Tex. R.App. P. 3B.1; Martinez, 91 S.W.3d at 336-37.

The State further contends that appellee’s rights to due process required that she be served with the fourth amended petition because it alleged the possibility of a determinate sentence not included in the third amended petition. Furthermore, and in the alternative, the State contends that even if the trial court had jurisdiction to proceed on the fourth amended petition, there was a “manifest necessity” for the trial court to grant the dismissal. These two arguments do not pertain to the trial court’s subject-matter jurisdiction over appellant’s case, which could be raised for the first time on appeal, but rather concern violation of appellee’s due process rights due to lack of service of the indictment and whether there was a “manifest necessity” for the trial court to dismiss the case. Again, because the State did not raise these issues in the trial court, the State has not preserved them for our review and has waived any error. See Tex.R.App. P. 33.1; Martinez, 91 S.W.3d at 336-37.

We therefore reject the State’s third assertion of trial-court error.

Conclusion

The trial court properly dismissed cause No. 2004-00332J. We affirm the judgment of the trial court.

      . A determinate sentence permits the court to commit the juvenile to the Youth Commission, followed by a possible transfer to the Department of Criminal Justice. Tex. Fam.Code Ann. § 54.04(d)(3) (Vernon Supp.2005). For a juvenile to be subject to a determinate sentence the following three requirements must be met: (1) the grand jury must have approved the petition under Section 53.045, (2) the court must have found that the child is in need of rehabilitation or that the public is in need of protection, and (3) the child must have engaged in delinquent conduct that consisted of a violation of a penal law listed in Section 53.045(a), which includes manslaughter. Tex Fam.Code Ann. § 53.045 (Vernon 2002); Tex Fam.Code Ann. § 54.04(c), (d)(3).