author: SHERRY RADACK, Chief Justice.

text:
    HARRIS COUNTY BAIL BOND BOARD, International Fidelity Insurance Company, and Allegheny Casualty Company, Appellants, v. Carl R. PRUETT and National American Insurance Company d/b/a Allied Bonding Company, Appellees.
    No. 01-02-01043-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    March 10, 2005.

      Bruce S. Powers, Assistant County Attorney, David Crump, Houston, Toni Hunter, Douglas M. Becker, Tommy L. Skaggs, Gray & Becker, P.C., Austin, for Appellants.
    David A. Furiow, Thompson & Knight L.L.P, Houston, for Appellees.
    Panel consists of Chief Justice RADACK and Justices ALCALA and BLAND.
   OPINION

SHERRY RADACK, Chief Justice.

On this day, the Court considered the motions for rehearing filed by all parties. We OVERRULE all motions for rehearing. However, we withdraw our opinion and judgment of October 14, 2004, and issue this opinion and judgment in its stead.

In this appeal, we consider the extent of (1) the rule-making authority granted to a local bail bond board and (2) the First Amendment protection afforded commercial speech. The Harris County Bail Bond Board (“the Board”) and two insurance companies that issue bail bonds — International Fidelity Insurance Company and Allegheny Casualty Company — appeal from a summary judgment granted in favor of Carl R. Pruett, a bail bondsman, and National American Insurance Company d/b/a/ Allied Bonding Company, another insurance company that issues bail bonds. We decide whether (1) the Board had the power to pass two rules that attempt to control the solicitation of business by bonding companies and (2) the rules adopted by the Board are an unconstitutional restraint on the bonding companies’ First Amendment rights. We affirm in part and reverse and render in part.

BACKGROUND

A. The Bail Bond Board Perceives a Problem

In the late 1990’s, the Harris County Bail Bond Board began receiving complaints from law enforcement officers, as well as citizens, about bail bond solicitation practices in the county. The Board perceived two specific areas of concern. First, the Board received complaints about bondmen contacting defendants with unex-ecuted warrants and “tipping [the defendants] off’ that they would soon be arrested. These complaints raised concerns about defendants fleeing from arrest, officer safety, and victim safety, particularly in cases involving domestic violence. Second, the Board received complaints about bondmen conducting telephone solicitations during non-business hours. Some examples of these complaints included telephone solicitations made between the hours of midnight and 5 a.m. and repeated telephone calls during the first 24 hours after an arrest.

The Board, in 2000, asked bondsmen to refrain voluntarily from soliciting bond business before an arrest was made and during non-working hours. After attempts at voluntary compliance failed, the Board decided to address the issue by passing rules regarding the solicitation of bail bond business in Harris County.

B. The Board Adopts Rules 24 and 25

On March 5, 2001, the Board enacted Rule 24, which prohibits solicitation of bail bond business from a person with an outstanding arrest warrant, and Rule 25, which places certain time restrictions on the solicitation of bail bond business after an arrest has been made. Rule 24 (the unexecuted-warrant rule) creates an exception for municipal and Justice of the Peace warrants, because those warrants apply to Class C misdemeanors, offenses punishable by fíne only. Rule 25 (the 24-hour rule) prohibits solicitation within the first 24 hours after arrest, and, after that time expires, prohibits unsolicited contact between the hours of 9 p.m. and 9 a.m. Monday through Saturday, and before noon on Sunday. Both Rule 24 and Rule 25 create an exception to the limitations on the solicitation of bail bond business if there is a prior or existing business relationship between the bondsman and the person requiring the bond.

C. The Board Suspends Pruett’s License

In late January 2002, the Board notified Pruett of a hearing on complaints against him for violating Rules 24 and 25. The first complaint alleged that Pruett violated Rule 25 by telephoning the complainant at 6:41 a.m. on the day after an arrest. The second complaint alleged that Pruett violated Rule 24 by calling a defendant with an outstanding arrest warrant, who then fled the area to avoid arrest.

At the Board hearing, Pruett acknowledged that he has violated Rules 24 and 25 and that he had instructed his employees to violate the rules as well. Accordingly, on February 13, 2002, the Board voted to sustain the complaints and suspended Pruett’s bail bond license for 7 days on each complaint.

D. Pruett Seeks and Obtains an Injunction

Pruett and National American Insurance Company d/b/a Allied Bonding Company (collectively, “Pruett”) filed a petition seeking a declaratory judgment, temporary restraining order, and temporary and permanent injunction. International Fidelity Insurance Company and Allegheny Casualty Company (collectively, “International”) intervened in the trial court in support of the local rules and of the Board’s actions against Pruett. In April 2002, the trial court granted a temporary injunction in Pruett’s favor.

The parties filed cross-motions for summary judgment, and, on August 29, 2002, the trial court granted Pruett’s motion and denied the Board and International’s joint motion. The final judgment permanently enjoined the Board from (1) enforcing Rules 24 and 25, and (2) giving any effect to its order suspending Pruett’s bail-bonding license. The judgment also severed the parties’ claims for attorney’s fees, thereby rendering the summary judgment final for purposes of appeal.

PROPRIETY OF SUMMARY JUDGMENT

The Board and International appeal, contending that the trial court erred in granting summary judgment in Pruett’s favor. In several, related points of error, the Board and International contend that (1) the Board possessed the power to issue Rules 24 and 25 and (2) Rules 24 & 25 do not unconstitutionally infringe on Pruett’s free speech rights.

A. Standard of Review

The summary judgment rule provides a method of summarily ending a case that involves only a question of law and no fact issues. Tex.R. Civ. P. 166a(e); Nixon v. Mr. Prop. Mgmt. Co., Inc., 690 S.W.2d 546, 548 (Tex.1985); Robinson v. Budget Rent-A-Car Sys., Inc., 51 S.W.3d 425, 428 (Tex.App.-Houston [1st Dist.] 2001, pet. denied); Cigna Ins. Co. v. Rubalcada, 960 S.W.2d 408, 411 (Tex.App.-Houston [1st Dist.] 1998, no pet.). When, as here, both sides move for summary judgment, and the trial court grants one motion and denies the other, we review the summary judgment evidence presented by both sides and determine all questions presented. Comm’rs Court v. Agan, 940 S.W.2d 77, 81 (Tex.1997); Rubalcada, 960 S.W.2d at 411-12. We render such judgment as the trial court should have rendered. Agan, 940 S.W.2d at 81; Rubalcada, 960 S.W.2d at 411-12. The propriety of summary judgment is a question of law; therefore, we review the trial court’s decision de novo. See Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex.1994). When a trial court’s order granting summary judgment does not specify the grounds relied upon, we will affirm the summary judgment if any of the summary judgment grounds are meritorious. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872-73 (Tex.2000).

Because this appeal requires us to interpret sections of the Occupation Code, we restate the basic principles of statutory construction. Interpreting statutes is a legal matter, subject to de novo review. Bragg v. Edwards Aquifer Auth., 71 S.W.3d 729, 734 (Tex.2002). The overriding goal of statutory interpretation is to determine the legislature’s intent. Cont’l Cas. Co. v. Downs, 81 S.W.3d 803, 805 (Tex.2002). In order to ascertain legislative intent, we first look to the plain and common meaning of the words used by the Legislature. Tex. Gov’t Code Ann. § 311.011 (Vernon 1998 & Supp.2004); Argonaut Ins. Co. v. Baker, 87 S.W.3d 526, 529 (Tex.2002).

B. Did the Board Act Ultra Vires in Adopting Rules 24 and 25?

Pruett argues that the Board did not have the power to adopt Rules 24 and 25, and that, in doing so, it acted ultra vires. Specifically, Pruett argues that (1) the Legislature did not give the Board the authority to regulate the solicitation of bail bonds until June 2001 — six months after Rules 24 and 25 were passed; (2) Rules 24 and 25 were not authorized by law because they impose requirements relating to a bonding license that are different from, or in addition to, those in the Bail Bond Act; (3) the rules do not involve regulating “the execution of a bail bond by a bail bond surety”; and (4) the rules violate the Open Records Act. The Board argues that the trial court erred if it granted summary judgment on any of the above-referenced grounds. We address each issue accordingly.

1. Effect of the 2001 Legislative Amendments

In June 2001, after the Board adopted Rules 24 and 25, the Legislature passed section 1704.101 of the Bail Bond Act, which provides as follows:

(a) a board by rule may regulate solicitations or advertisements by or on behalf of bail bond sureties to protect:
(1) the public from:
(A) harassment;
(B) fraud;
(C) misrepresentation; or
(D) threats to public safety; or
(2) the safety of law enforcement officers.
(b) A bail bond surety, an agent of a corporate surety, or an employee of the surety or agent may not make, cause to be made, or benefit from unsolicited contact:
(1) through any means, including in person, by telephone, by electronic methods, or in writing, to solicit bonding business related to an individual with an outstanding arrest warrant that has not been executed, unless the bail bond surety or agent for a corporate surety has an existing bail bond on the individual; or
(2) in person or by telephone to solicit bonding business:
(A) that occurs between the hours of 9 p.m. and 9 a.m.; or
(B) within 24 hours after:
(i) the execution of an arrest warrant on the individual; or
(Ü) an arrest without a warrant on the individual.
(c)This section does not apply to a solicitation or unsolicited contact related to a Class C misdemeanor.

Tex. Oco.Code Ann. § 1704.109 (Vernon 2004).

Section 1704.109, which basically mirrors Rules 24 and 25, had not been enacted when the Board passed those rules. Pruett argues that the Legislature’s passing section 1704.109 shows that it had not authorized the Board to regulate solicitation before September 1, 2001. Pruett’s motion argues, “There was no reason for the Legislature to engage in the redundant, pointless act of enacting a statute granting boards power they already possessed.”

We find, however, that the Legislature’s subsequent act of providing specific authority to the Board to regulate bond solicitation is of little assistance in determining whether the Board possessed the authority to do so before the Legislature acted. See Ervin v. State, 991 S.W.2d 804, 816 (Tex.Crim.App.1999) (stating that “[although we have held that subsequent enactments by the Legislature may be some evidence of its intent in a prior version of the statute, we nevertheless give little weight to those subsequent enactments in interpreting the prior law.”); Bullock v. ABC Interstate Theatres, Inc., 557 S.W.2d 337, 340 (Tex.Civ.App.-Austin 1977, writ ref'd n.r.e.) (stating that “[(legislative intent in the original enactment of a statute is not drawn from the size of the majority by which a subsequent Legislature amends or repeals the statute. What the Legislature intended originally is to be found in the language of the statute itself.”). Therefore, we conclude that the fact that the Legislature saw fit to enact section 1704.109 to expressly give the Board the authority to regulate the solicitation of bail bonds does not determine whether the Board already possessed the power to do so.

As stated earlier, to ascertain legislative intent, we first look to the plain and common meaning of the words used by the Legislature. Tex. Gov’t Code Ann. § 311.011 (Vernon 1998); Argonaut, 87 S.W.3d at 529. Therefore, to determine whether the Board possessed the power to enact Rules 24 and 25 in March 2001, we look to the statute that grants the Board’s rule-making authority.

The rule-making authority of the Board is derived from section 1704.101 of the Bail Bond Act, which provides in part:

A board shall:
(1) exercise powers incidental or necessary to the administration of this chapter;
(3) supervise and regulate each phase of the bonding business in the county;
(4) adopt and post rules necessary to implement this chapter.

Tex. Occ.Code Ann. § 1704.101(1), (3), (4) (Vernon 2004). Subsection (3) of section 1704.101 specifically states that bail bond boards shall “supervise and regulate each phase of the bonding business,” and subsection (4) provides bail bond boards with the authority to “adopt and post rules” necessary to supervise and regulate the bonding business. Therefore, the Board adopted its rules with statutory authority.

2. Do Rules 24 and 25 Impose Additional License Requirements?

Pruett also argued, in his motion for summary judgment, that Rules 24 and 25 are ultra vires acts by the Board because they add to the license requirements established by the Bail Bond Act. In support, Pruett relies on a line of cases and an Attorney General opinion holding that county bail bond boards lack the authority to impose different or additional requirements for obtaining a bondsman’s license.

In Walstad v. Dallas County Bail Bond Bd., 996 S.W.2d 314, 315 (Tex.App.-Dallas 1999, no pet.), a bail bondsman filed suit, alleging that the bail bond board exceeded its authority by obtaining an independent appraisal of certain property that the bondsman had listed in support of her application to renew her license, even though the bondsman had complied with the Bail Bond Act requirement that she submit statements from taxing authorities that contained appraisals meeting certain standards. Id. at 315-16. The board argued that, because it had the authority to “regulate all phases of the bail bond business,” it could require an independent appraisal. Id. at 316. The court disagreed, holding that “bail bond boards lack the authority to impose different or additional requirements for obtaining a bondsman’s license.” Id. at 317. Because the bondsman had submitted an appraisal that met the requirements listed in the Bail Bond Act, the board could not require that she obtain an independent appraisal. Id.

In ATTORNEY GENERAL OPINION No. JC-0366 (August 12, 2001), the Attorney General was also asked whether a county bail bond board could consider an independent appraisal on property executed in trust from bondsmen for purposes of determining their financial limit for executing bonds. The attorney general opined, “The board may not require the applicant to submit an independent appraisal of his or her real property, because it has no authority to impose requirements in addition to statutory requirements on applicants for licensure as bail bond sureties.” Id.; see also Tex. Fire & Cas. Co. v. Harris County Bail Bond Bd., 684 S.W.2d 177, 178-79 (Tex.App.-Houston [14th Dist.] 1984, writ ref'd n.r.e.) (holding bail bond rule requiring $100,000 security deposit invalid because it imposed addition burdens on bail bond license applicants when statutory deposit required $5,000); Bexar County Bail Bond Bd. v. Deckard, 604 S.W.2d 214, 216-17 (Tex.Civ.App.-San Antonio 1980, no writ) (same).

We find these cases distinguishable. All of the cases cited above involve attempts by the boards to alter the licensing requirements specifically set forth in the Bail Bond Act. Our case, however, does not involve licensing requirements — it involves the Board’s attempts to regulate how already-licensed bondsmen solicit business. As such, the present case is more like Dallas County Bail Bond Bd. v. Stein, 771 S.W.2d 577, 579-80 (Tex.App.-Dallas 1989, writ denied). In Stein, the board passed a rule that prohibited a licensed bondsman from employing an agent who was a convicted felon. Id. at 578-79. Stein, a convicted felon, filed suit to enjoin the board from interfering with his employment for a licensed bondsman by enforcing the rule. Id. at 579. The Stein court distinguished Texas Fire & Casualty and Deckard by stating:

In each of these cases, the county boards had denied applications for licenses on the ground that the applicant failed to comply with certain local rules. Since the Bail Bond Act expressly sets forth the requirements for a license, these courts correctly reasoned that the local boards lacked authority to impose different or additional requirements. As Stein points out, however, the Bail Bond Act does not expressly set forth eligibility requirements for employees of licensees. Thus, such analysis is inapplicable to the present case.

Id. at 580. The Stein court also noted, “Where a statute expressly authorizes an agency to regulate an industry, it impliedly authorizes the agency to promulgate rules and regulations necessary to accomplish such purpose.” Id. The court held that the board’s “broad rule-making power impliedly authorizes the Board to supervise and regulate employees of bondsmen to the extent that such employees perform meaningful duties in the bonding business.” Id. (emphasis added).

In Black v. Dallas County Bail Bond Board, 882 S.W.2d 434, 436 (Tex.App.-Dallas 1994, no writ), the board adopted a rule requiring bondsmen to pay all necessary and reasonable expenses incurred by the Sheriffs Department relating to the rearrest of a defendant whose bond had been forfeited. Black, a bondsman, filed suit, alleging that the board had exceeded its rule-making authority because the Legislature had deleted from the Bail Bond Act a provision that expressly made a bondsman’s failure to pay rearrest costs a grounds for the suspension of his license. Id. at 438. Black argued that the change in the statute preempted the board’s authority to adopt the rearrest rule. Id. The Black court held that “[t]he broad grant of authority to supervise and regulate all phases of the bonding business impliedly authorizes the Board to enact rules on any phase of the business.” Id. at 439.

We agree with the courts in Black and Stein. The Bail Bond Act gives the Board the broad power to “supervise and regulate each phase of the bonding business” and to “adopt and post rules necessary to implement [the Bail Bond Act].” Tex. Occ. Code Ann. § 1704.101(3), (4) (Vernon 2004). Rules 24 and 25 do not add to or alter the licensing provisions of the Bail Bond Act. Therefore, we conclude that the board did not exceed its broad rule-making authority by adopting Rules 24 and 25.

3. Do the Rules 24 and 25 regulate “the execution of a bail bond by a bail bond surety”?

Pruett also alleges that the Board acted ultra vires in passing Rules 24 and 25 because, in 1999, the Legislature altered the definition of a “bonding business,” thereby narrowing the Board’s power to regulate the bonding business. Before 1999, the Bail Bond Act defined “bonding business” as “the occupation in which a bondsman is engaged.” Act of May 26, 1981, 67th Leg., R.S., ch. 812 § 2, 1981 Tex. Gen. Laws 875, 876 (since amended) (current version at Tex. Occ. Code Ann. § 1704.001(4) (Vernon 2004)). When the Occupations Code was codified in 1999, the statute was changed to define a “bonding business” as “the execution of a bail bond by a bail bond surety.” Act of May 10, 1999, 76th Leg., R.S., ch. 388 § 1, 1999 Tex. Gen. Laws 1431, 2279 (since amended) (current version at Tex. Occ. Code Ann. § 1704.001(4) (Vernon 2004)). Therefore, Pruett argues that, when Rules 24 and 25 were passed, the Board had only the power to regulate the actual execution of a bail bond, not the solicitation of a bail bond.

We disagree. The Board was authorized, then and today, to “supervise and regulate each phase of the bonding business in the county.” Tex. Occ.Code Ann. § 1704.101(3) (Vernon 2004) (emphasis added). To paraphrase, using the 1999 definition of “bonding business” — the Board was authorized to supervise and regulate “each phase of the execution of a bail bond by a bail bond surety” in the county. We hold that the power to regulate each phase of the execution of a bail bond includes the power to regulate the solicitation of a bail bond, a necessary first step in the execution of a bail bond.

4. Do the rules violate the Open Records Act?

Finally, Pruett argues that the Board acted ultra vires in passing Rules 24 and 25 because the rules violated the Texas Open Records Act. See Tex. Gov’t Code Ann. § 552.001-552.353 (Vernon 1994 and Supp.2004). Pruett’s motion cites the public policy set forth in section 552.001(a) of the Open Records Act, which provides as follows:

Under the fundamental philosophy of the American constitutional form of representative government that adheres to the principle that government is the servant and not the master of the people, it is the policy of this state that each person is entitled, unless otherwise expressly provided by law, at all times to complete information about the affairs of government and the official acts of public officials and employees. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created. The provisions of this chapter shall be liberally construed to implement this policy.

Tex. Gov’t Code Ann. § 552.001(a) (Vernon 1994 and Supp.2004). In his appellate brief, Pruett argues, “This Board violates this statute by enforcing the rules to keep the public from obtaining access, through bondsmen, to public-record jail-inmate and open-warrants information.” (Emphasis added).

Pruett, however, lacks standing necessary to make such a claim. Rules 24 and 25 do not prohibit Pruett from obtaining access to public information, and Pruett does not contend that he has been denied access to public information. Instead, Pruett contends that the general public has been prevented from receiving information that he wishes to disseminate. Because Pruett has not been denied access to public information, he has no standing to complain that Rules 24 and 25 violate the Open Records Act. See Hunt v. Bass, 664 S.W.2d 323, 324 (Tex.1984) (stating that standing consists of some interest peculiar to person as individual and not as member of general public).

Accordingly, we hold that the Board did not act ultra vires when it enacted Rules 24 and 25.

C. Are Rules 24 and 25 Unconstitutional?

In his motion for summary judgment, Pruett contends that, even if Rules 24 and 25 were not ultra vires acts, they are unconstitutional prior restraints on free speech. In two issues, the Board contends that the trial court erred by concluding that Rules 24 and 25 are uneonsti-tutional prior restraints on free speech. The Board argues that Rules 24 and 25 meet the constitutional requirements for commercial speech, as set forth by the United States Supreme Court in the Central Hudson test. See Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980).

Central Hudson provides a four-part analysis for determining the validity of restrictions on commercial speech: (1) whether the speech is concerning a lawful activity and is not misleading; (2) whether the restriction seeks to implement a substantial governmental interest; (3) whether the restriction directly advances the governmental interest; and (4) whether the restriction reaches no further than necessary to accomplish the objective. See id. at 566, 100 S.Ct. at 2351. Under the Central Hudson test, the Board bears the burden of justifying the challenged restriction as furthering its substantial interest. See Greater New Orleans Broadcasting Ass’n, Inc. v. United States, 527 U.S. 173, 183, 119 S.Ct. 1923, 1930, 144 L.Ed.2d 161 (1999).

1. Rule 24 — The Open Warrants Rule

As noted earlier, the open warrants rule prohibits bondsmen from soliciting bond business from an individual with an outstanding warrant. The rule does not apply to solicitations if there is an “existing business relationship” between the bondsman and the individual requiring the bond. We consider whether this rule is constitutional under the Central Hudson test.

(a) whether the speech is lawful and not misleading

Rule 24 meets the requirement of the first prong of Central Hudson because soliciting bail bond sales from people with outstanding warrants is a lawful activity, and there is no allegation that the information provided by Pruett was misleading.

(b) whether there is a substantial governmental interest

The Board asserts that Rule 24 was designed to ensure the safety of police officers and the public. The Board argues that prohibiting the solicitation of bonds from people with outstanding warrants will prevent bondmen from “tipping off’ defendants that they are soon to be arrested. Such action, the Board argues, will reduce the risk of flight by defendants and will diminish the risk of harm to arresting officers and complainants. Pruett responds that the only interest advanced by the Board is “killing competition” in the bond industry by restricting the speech of bondsmen who solicit business in this manner. While it is true that decreased competition may result from the rules enacted by the Board, such a factor does not automatically negate the substantial interest advanced by the Board. Therefore, we hold that the Board has articulated “substantial government interest” in support of Rule 24, i.e., the safety of arresting officers and complainants in criminal cases. See, e.g., Morales v. Ellen, 840 S.W.2d 519, 525-26 (Tex.App.-El Paso 1992, writ denied) (holding that law enforcement exemption to Open Records Act excludes disclosure of information that, if revealed, “might endanger the life or physical safety of law enforcement personnel, or interfere with law enforcement and crime prevention”).

(c)whether the restriction advances the government interest

Under Central Hudson, the Board has the burden of showing that its regulation directly and materially advances the aforementioned interests. “Mere speculation or conjecture” will not satisfy that burden; “rather, a governmental body seeking to sustain a restriction on commercial speech must demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree.” Edenfield v. Fane, 507 U.S. 761, 770, 113 S.Ct. 1792, 1800, 123 L.Ed.2d 543 (1993). A regulation may not be sustained if it provides only ineffective or remote support for the government’s purpose. Central Hudson, 447 U.S. at 564, 100 S.Ct. at 2350.

Pruett contends that Rule 24 is “too underinclusive and filled with competition-killing exemptions to directly advance the Board’s stated goals.” As to Rule 24, we disagree. The Board presented the testimony of numerous peace officers, all of whom agreed that the element of surprise was important in executing an arrest warrant. Detective B. Harwell testified that he did not want suspects to know that he was coming to execute a warrant because “[o]ur safety is involved when the individual is aware that there is a warrant for their arrest and we are going to come get him.” Harwell also testified that “[ajnytime you contact [a defendant] to notify him that I want to solicit your business as an attorney or as a bondsman, you risk my life.” Sergeant B. Carr testified, “Certainly on [Rule] 24, on the officer safety, having done that for 13 years personally on the street myself, I don’t want anybody to know I am coming. It’s that element of surprise, not only for my safety, but the defendant, as well as anybody that’s around the defendant.” Officer S. Ballard, an officer in the child-abuse unit of the police department, testified that if child-abuse defendants know that an arrest is imminent, it “poses a risk to the child if the child is still in the home with the offender, or if he knows where CPS has placed them, or if the child is with a relative placement, he would also have access to the child.” In sum, all of the peace officers’ testimony presented at the hearing supported the position that Rule 24 was helpful in maintaining the element of surprise when making an arrest on an open warrant and in protecting both the officers and victims against the risk of physical injury by the person subject to arrest.

However, many of the officers testified that Rule 24 did not go far enough, because it exempts from compliance bondsmen having “existing business relationships” with those individuals requiring a bond. Pruett argues that the “existing business relationship” exemption is so broad that, in effect, the exception swallows the rule, thereby providing only ineffective or remote support for the Board’s stated purpose. To properly address this contention we first define “existing business relationship.”

At oral argument, the Board argued that “existing business relationship” means that the bondsman involved has in place an existing, current bond on the person requiring another bond. We agree. The existence of a current relationship based on an existing bond is the reasonable interpretation to be given to the phrase, especially when contrasted with the phase “pri- or or existing business relationship” used in Rule 25. Furthermore, this definition is in accord with the newly-enacted section 1704.109 of the Texas Occupations Code, which allows bondsmen with “an existing bail bond on [an] individual” to solicit bonding business from that individual even though there is an outstanding arrest warrant that has not been executed. See Tex. Occ.Code Ann. § 1704.109 (Vernon 2004).

Having decided that the term “existing business relationship,” as that term is used in Rule 24, refers to the relationship between a bondsman and an individual for whom the bondsman has provided a current, existing bond, we next decide whether the exclusion of such bondsmen from the solicitation prohibition of Rule 24 makes the rule ineffective.

Pruett argues that bondsmen are more likely to have “an existing-business-relationship” with a repeat offender, and that repeat offenders are more likely to endanger law enforcement officers upon learning of a pending warrant than first-time offenders. In other words, Pruett argues that allowing the solicitation of those already out on a bond actually increases the risk of injury to officers.

Although a rule with no exceptions might provide even more safety to police officers, we do not believe that the exception in Rule 24 “swallows the rule.” There are legitimate and valid reasons to exclude bondsmen with existing bonds on defendants from the rule prohibiting the solicitation of bonds from individuals with unexecuted warrants. For example, a bondsman with an existing bond on a defendant would likely have reason to call the defendant upon learning of the existence of an unexecuted warrant, as the commission of a new offense could likely effect the existing bond. It is impractical to allow the bondsman to discuss an existing bond, but to prohibit him from discussing the possibility of acting as a bondsman on the new offense. Furthermore, a bondsman with an existing bond on a defendant has no incentive to call a defendant whom he believed would flee or resist arrest, because such action by the defendant could cause a forfeiture of the original bond.

Therefore, we conclude that Rule 24 directly advances the Board’s interests in preventing defendants from fleeing and in protecting those involved in the arrest process, despite the existence of an exception to the rule for bondsmen with “existing business relationships” with defendants. Accordingly, we conclude that prong three of the Central Hudson test has been met.

(d) whether the restriction reaches no further than necessary

Pruett contends that the Board has not satisfied the fourth element of Central Hudson because, according to Pruett, there are other, less restrictive, means by which the Board could address its concerns about offender flight and officer safety. However, the Board “is not required to employ the least restrictive means conceivable, but must demonstrate narrow tailoring of the challenged regulation to the asserted interest — ‘a fit that is not necessarily perfect, but reasonable.’ ” Greater New Orleans Broadcasting, 527 U.S. at 188, 119 S.Ct. at 1932 (quoting Bd. of Trustees of State Univ. of N. Y. v. Fox, 492 U.S. 469, 480, 109 S.Ct. 3028, 3035, 106 L.Ed.2d 388 (1989)). Under the fourth prong of the Central Hudson test, the Board is required to show that the regulation reaches no further than necessary to accomplish its objective. Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 507, 101 S.Ct. 2882, 2892, 69 L.Ed.2d 800 (1981).

Pruett argues that Rule 24 “is clearly overbroad with respect to Appellees’ calls to the tens of thousands of citizens with open warrants who receive letters from the Sheriff suggesting that they post bond.” Essentially, Pruett is arguing that the Rule 24 does not alleviate the problem of offender flight and officer safety because it regulates only solicitation by bondsmen and does not address other groups of people that might “tip off’ defendants, such as the Sheriffs Department and attorneys.

This Court addressed a similar argument in Eller Media v. City of Houston, 101 S.W.3d 668 (Tex.App.-Houston [1st Dist.] 2003, pet. denied). In Eller Media, a billboard company argued that a Houston city ordinance prohibiting the construction of new, off-premises billboards failed prong four of the Central Hudson test because the removal of off-premises signs would not make a “significant improvement” in the appearance of Houston given that the ordinance did not address the issue of on-premises signs. Id. at 677. This Court noted that the government can make different regulations for off- and on-premises signs because there are different considerations behind their functions. Id. Citing Metromedia v. City of San Diego, we concluded that the City had satisfied the fourth prong of Central Hudson. Id. at 678. In Metromedia, the United States Supreme Court also addressed a billboard ordinance that contained exceptions for some on-site advertising. In holding that the ordinance met the fourth prong of the Central Hudson test, the Court stated:

If the city has a sufficient basis for believing that billboards are traffic hazards and are unattractive, then obviously the most direct and perhaps the only effective approach to solving the problems they create is to prohibit them. The city has gone no further than necessary in seeking to meet its ends. Indeed, it has stopped short of fully accomplishing its ends: It has not prohibited all billboards, but allows on-site advertising and some other specifically exempted signs.

453 U.S. at 508, 101 S.Ct. at 2893.

In this case, the Board has a sufficient basis for believing that bondsmen who solicit business from individuals with unexe-cuted warrants contribute to offender flight and put police officers and victims at risk. Even though Rule 24 may not fully accomplish its goal of preventing offender flight and increasing officer/victim safety in connection with arrests because it regulates only solicitation by bondsmen, we conclude that, like the billboard ordinances in Eller Media and Metromedia, it goes no further than necessary in seeking to accomplish its goal. Rule 24 does not prohibit commercial speech, it merely postpones it until after an arrest warrant has been executed. See Anderson Courier Serv. v. State, 104 S.W.3d 121, 125-26 (Tex.App.-Austin 2003) (holding prohibition on use of accident reports for personal gain failed Central Hudson test because not limited in time).

We conclude that Rule 24 is not an unconstitutional restriction on commercial speech. Accordingly, we sustain the Board’s issue relating to the constitutionality of Rule 24.

2. Rule 25 — The 24-Hour Rule

As noted earlier, the 24-hour rule contains two components. First, the rule prohibits all solicitation within 24 hours after the execution of an arrest warrant. Second, after 24 hours have expired, the rule prohibits all calls made during non-business hours. Both components of Rule 25 contain an exception for bondsmen who have “prior or existing business relationships” with the person requiring a bond.

(a) Solicitation prohibited during non-business hours

Rule 25 provides that, once 24 hours have elapsed from the execution of an arrest warrant, no bondsman may solicit bond business after 9 p.m. or before 9 a.m., Monday through Saturday, or before 12 noon on Sunday. The Board argues that this component of Rule 25 does not attempt to regulate constitutionally protected commercial speech. We agree.

The first prong of Central Hudson requires that the speech at issue concern a “lawful' activity” and not be misleading. 447 U.S. at 566, 100 S.Ct. at 2351. The government may freely regulate commercial speech that concerns unlawful activity or is misleading. Florida Bar v. Went For It, Inc., 515 U.S. 618, 623-34, 115 S.Ct. 2371-2376, 132 L.Ed.2d 541 (1995).

Texas law already prohibits telephonic solicitation before noon or after 9 p.m. on Sunday, and between the hours of 9 p.m. and 9 a.m., Monday through Saturday. See Tex. Bus. & Com.Code Ann. § 37.02(a)(2) (Vernon 2002 and Supp.2004). As such, the Board may “freely regulate” solicitation by bondsmen during these hours.

Accordingly, we sustain the Board’s issue relating to the portion of Rule 25 that prohibits solicitation during non-business hours.

(b) Solicitation prohibited during first 24 hours post-arrest

Rule 25 also provides that bondsmen may not solicit bond sales at any time during the first 24 hours after an arrest. The rule provides an exception for bondmen with “prior or existing business relationships” with the individual requiring a bond. We consider whether this rule is constitutional under the Central Hudson test.

(i) whether the speech is lawful and not misleading

Rule 25 meets the requirement of the first prong of Central Hudson because soliciting bail bond sales from people within 24 hours of their arrest is lawful, and there is no allegation that the information provided by Pruett was misleading.

(ii) whether there is a substantial governmental interest

The Board presented evidence that Rule 25 is designed to prohibit “undue harassment and solicitation of the general citizenry beyond normal business hours that other telephone solicitors could use.” The blanket prohibition during the first 24 hours after arrest is necessary, according to the Board, because “[i]t is during the initial 24 hours after arrest that the greatest solicitation abuse occurs.” The Board presented evidence of citizen complaints about repetitive telephone calls (“20 to 40 calls”) during the first 24 hours after arrest. The Board was also concerned about the “professional image of bondsmen.”

The Supreme Court has held that “[t]he State’s interest in protecting the well-being, tranquility, and privacy of the home is certainly of the highest order in a free and civilized society.” Carey v. Brown, 447 U.S. 455, 471, 100 S.Ct. 2286, 2295-96, 65 L.Ed.2d 263 (1980). Furthermore, “[s]tates have a compelling interest in the practice of professions within their boundaries, and ... as part of their power to protect the public, health, safety, and other valid interests[,] they have broad power to establish standards for licensing practitioners and regulating the practice of professions.” Goldfarb. v. Virginia State Bar, 421 U.S. 773, 792, 95 S.Ct. 2004, 2016, 44 L.Ed.2d 572 (1975).

Thus, we conclude that the Board has shown a substantial government interest in enacting the solicitation ban during the first 24 hours after arrest.

(iii)whether the restriction advances the government interest and reaches no further than necessary

We next consider whether the ban on bond solicitation during the first 24 hours post-arrest meets the third and fourth prongs of the Central Hudson test. The third prong of the Central Hudson tests asks whether the speech restriction directly and materially advances the government interest. Greater New Orleans Broadcasting, 527 U.S. at 188, 119 S.Ct. at 1932. “This burden is not satisfied by mere speculation or conjecture; rather, a governmental body seeking to sustain a restriction on commercial speech must demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree.” Edenfield v. Fane, 507 U.S. at 770-71, 113 S.Ct. at 1800. Consequently, “the regulation may not be sustained if it provides only ineffective or remote support for the government’s purpose.” Central Hudson, 447 U.S. at 564, 100 S.Ct. at 2343. The fourth prong of the Central Hudson test “compliments the direct advancement inquiry of the third, asking whether the speech restriction is not more extensive than necessary to serve the interests that support it.” Greater New Orleans Broadcasting, 527 U.S. at 188, 119 S.Ct. at 1932.

Pruett again argues that Rule 25 fails to meet prongs three and four because its exception “swallows the rule,” thus making it ineffective to support the Board’s purpose. As to this part of Rule 25, we agree. We begin by noting that the exception in Rule 25 is much broader than that in Rule 24. While the exception in Rule 24 applies only to a bondsman with an existing bond on an individual requiring a bond, the exception in Rule 25 applies to a bondsman with a “prior or existing business relationship” with an individual requiring a bond. (Emphasis added). As such, Rule 25, as written, allows a bondsman with a current bond on an individual, or one who has ever had a business relationship with the individual in the past, to contact that person during the initial 24 hours after arrest to solicit new bond business from him. Pruett argues that the Board has shown no valid reason for a rule that squelches competition by prohibiting newcomers to the bail business from competing for that business during the initial 24 hours after arrest.

We agree. In Greater New Orleans Broadcasting, the Supreme Court considered the constitutionality of a statute that allowed Indian-owned casinos to participate in broadcast advertising, but prohibited non-Indian casinos from doing the same. 527 U.S. at 190, 119 S.Ct. at 1933. The Court noted that the purpose the government sought to advance — reducing the societal costs of casino gambling — was not advanced by distinguishing between the types of casino owners who could advertise by broadcast. Id. at 193, 119 S.Ct. at 1935. “[T]he Government presents no convincing reason for pegging its speech ban to the identity of the owners or operators of the advertised casinos.” Id. at 191, 119 S.Ct. at 1934. The Court noted that, while there may be valid reasons for regulating non-Indian businesses differently from tribal businesses, those differences did not “justify abridging non-Indians’ freedom of speech more severely than the freedom of their tribal competitors.” Id. at 193, 119 S.Ct. at 1934. The Court noted that “decisions that select among speakers conveying virtually identical messages are in serious tension with the principles un-dergirding the First Amendment.” Id. at 194, 119 S.Ct. at 1935.

In this case, the Board presented no valid reason to justify a rule that differentiates within the same class of speakers, i.e., bondsmen. The rule, effectively, grants a bondsman with “prior or existing business relationships” an exclusive right to solicit repeat business from its prior customer during the first 24 hours after arrest. The rule also allows a bondsman with prior or existing business relationships with a person requiring a bond an unfettered right to call that person as many times as he wants during the initial 24 hours after arrest, while denying bondsmen without prior or existing business relationships the right to attempt to solicit business at all during the same time period. The exception in Rule 25, as opposed to that in Rule 24, is too broad to sufficiently advance the Board’s stated purpose.

Accordingly, we conclude that the portion of Rule 25 that prohibits bondsmen who have no “prior or existing business relationships” with individuals requiring a bond from soliciting bond sales during the initial 24 hours after arrest is an unconstitutional prior restraint on free speech. As such, we overrule the Board’s issue relating to the 24-hour prohibition on solicitation of bond business after arrest.

CONCLUSION

We affirm the portion of the judgment of the trial court that enjoins the Board from enforcing the prohibition against the solicitation of bail bond business during the initial 24-hour period after arrest, found in Rule 25. We reverse the portion of the judgment of the trial court that enjoins the Board from (1) enforcing Rule 24’s prohibition against the solicitation of bail bond business from those with unexe-cuted warrants, (2) enforcing Rule 25’s prohibition against the solicitation of bail bond business during non-business hours, and (3) giving effect to the order suspending Pruett’s bail bond license. We remand for further proceedings. We express no opinion as to whether Pruett’s license should be suspended after consideration of this opinion.

We overrule all pending motions.

      . Each county with a population of 110,000 or more must create a bail bond board. Tex. Occ.Code Ann. § 1704.051 (Vernon 2004). A county bail bond board is responsible for all aspects of the licensing of bondsmen in that county, including granting, denying, or renewing licenses. Harris County Bail Bond Bd. v. Blackwood, 41 S.W.3d 123, 124 (Tex.2001).

      . Bail Bond Rule 24 provides in pertinent part:
      No bondsman, agent, or employee of a bonding company, may make, cause to be made, or benefit from unsolicited contact, whether by verbal (including both in-person and by telephone), electronic, written or other means, made to solicit any bond business relating to a specific individual with an outstanding warrant that has not been executed. This rules does not apply to the solicitation of bail bond business arising from a warrant issued by a municipality and/or a Justice of the Peace. This rule does not apply to the solicitation of bail bond business if there is an existing business relationship between the bondsman and the individual requiring a bond.

      . Bail Bond Rule 25 provides in pertinent part:
      No bondsman, agent, or employee of a bonding company, may make, cause to be made, or benefit from unsolicited verbal contact, including both in-person and by telephone, to solicit any bond business within 24 hours after the execution of an arrest warrant. Once the 24 hour period has lapsed, no bondman, agent, or employee of a bonding company, may make, cause to be made, or benefit from unsolicited contact, whether by verbal (including both in-person and by telephone), electronic, written or other means, to solicit any bond business that is made after 9:00 p.m. or before 9:00 a.m., Monday through Saturday, and after 9:00 p.m. or before 12:00 noon on Sunday. This rules does not apply to the solicitation of bail bond business if there is a prior or existing business relationship between the bondsman and the individual requiring a bond.

      . The Board and International filed an interlocutory appeal from the temporary injunction, which this Court dismissed as moot after the trial court issued a final judgment. See Int’l Fid. Ins. Co. v. Pruett, No. 01-02-00438-CV, 2002 WL 31839202 (Tex.App.-Houston [1st Dist.] Dec. 19, 2002, no pet.) (not designated for publication).

      . See Tex. Occ.Code Ann. § 1704.001-1704.306 (Vernon 2004).

      . See Tex. Gov't Code Ann. § 552.001-552.353 (Vernon 1994 and Supp.2004).

      . We note that, effective June 20, 2003, the definition of “bonding business” was again changed to mean "the solicitation, negotiation, or execution of a bail bond by a bail bond surety.” Tex. Occ.Code Ann. § 1704.001(4) (Vernon 2004).

      . Pruett also argues that Rules 24 & 25 violate his Eighth and Fourteenth Amendment rights because they are unconstitutionally vague. However, only one full page of his 50 page brief addresses this claim, in which he conclusively states that "[a]ppellees have to guess about the meaning of the words [of the rules] when their clients' freedom and their licenses are at stake.” However, he provides no case law analysis to assist this Court in determining why or how the rules are unconstitutionally vague. Accordingly, we do not address this issue as it is inadequately briefed. See TexR.App. P. 38.1(h).

      . Pruett raises both federal and state free speech claims. We recognize that the supreme court has suggested that the Texas free-speech clause may be "broader” in some respects than its federal counterpart. See Ex parte Tucci, 859 S.W.2d 1, 5 (Tex.1993); Davenport v. Garcia, 834 S.W.2d 4, 10 (Tex.1992). But, the court has also held that unless a party can show through the text, history, and purpose of article I, section 8, that the state constitution affords more protections than the First Amendment in regard to that case, courts should assume that free speech protections are the same under both constitutions. See Texas Dept. of Transp. v. Barber, 111 S.W.3d 86, 106 (Tex.2003). Pruett has not articulated any reason why the Texas free speech clause would be more protective of his rights than the First Amendment. Accordingly, we address Pruett’s free speech claims under the First Amendment body of jurisprudence.

      . Cases involving the construction of statutes are helpful in interpreting the rules at issue in this case. See Chastain v. Koonce, 700 S.W.2d 579, 582 (Tex.1985) (holding that "every word of a statute was used for a purpose and every word in that statute must be given effect if possible”); Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 540 (Tex.1981) (stating that "every word excluded from a statute must also be presumed to have been excluded for a purpose”). Rule 24 excludes bondsmen with "existing business relationships” and Rule 25 excludes bondmen with "prior or existing business relationships." Thus, we conclude that the reasonable explanation for the difference is that "existing business relationship” means the relationship between a bondmen and an individual with a current, existing bond, while "prior business relationship” is broader, and includes the relationship between a bondsman and anyone for whom he has provided a bond in the past.


source: Caselaw Access Project

author: EVELYN V. KEYES, Justice.

license: Public Domain

text:
    Charles W. HALL, Appellant, v. William Francis MIELER, M.D., Appellee.
    No. 01-03-01343-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    March 10, 2005.

      Paul A. Koks, Nielsen, Koks & Kangun, L.L.P., Conroe, for Appellant.
    Marion W. Kruse, Kruse & Luccia, Michael John Longoria, Judith Brown Street, Kruse Law Firm, P.C., Houston, for Ap-pellee.
    Panel consists of Justices TAFT, KEYES, and HANKS.
   OPINION

EVELYN V. KEYES, Justice.

Appellant, Charles W. Hall, appeals an order dismissing his medical malpractice suit against appellee, William Francis Mieler, M.D., under the Medical Liability and Insurance Improvement Act. See Act of April 19, 1977, 65th Leg., R.S., ch. 817, 1977 Tex. Gen. Laws 2039, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847. In one issue, Hall argues that the trial court erred in refusing to grant him additional time to file his expert report. We affirm.

Background

Hall was a patient of Mieler, a retina specialist. Mieler first diagnosed Hall as having a swollen retina. Mieler prescribed eye drops. Following additional testing, Mieler discovered that Hall had a “wrinkle” on the retina of his right eye. Hall alleged in his Original Petition that Mieler told him the wrinkle could be repaired by surgery. Hall consented, and, on May 4, 2001, Mieler performed a pars plana vi-trectomy surgery on Hall’s right eye. Following the surgery, Hall lost sight in his right eye.

On October 29, 2002, Hall sued Mieler for negligence and fraud in connection with the surgery on his eye. On January 11, 2003, the trial court issued a Docket Control Order. The order set October 2, 2003, as the deadline for designating experts. The order was silent regarding expert reports. Pursuant to former article 4590i, section 13.01(d), Hall’s expert report was due to the trial court in mid-April. See Act of May 5,1995, 74th Leg., R.S., ch. 140, § 1, sec. 13.01(d), 1995 Tex. Gen. Laws 985, 986 (repealed 2003) (current version at Tex. Civ. PRAC. & Rem.Code Ann. § 74.351(a) (Vernon Supp.2004-2005)). On June 9, 2003, Mieler filed a Motion to Dismiss Pursuant to Article 4590i. Mieler contended that Hall had failed to file an expert report within the 180-day deadline established by article 4590i, section 13.01(d). See id. Eighteen days later, on June 27, 2003, Hall filed a Response to Defendant’s Motion to Dismiss and a Motion to Extend Time to File Expert Report. At the same time, Hall served Mieler with an expert report and a curriculum vitae for Gregory M. Jack, M.D. On October 7, 2003, the trial court held a hearing and granted Mieler’s motion to dismiss. On November 5, 2003, Hall filed a motion for new trial, which was denied by the trial court on November 18, 2003. This appeal followed.

Discussion

In his sole issue, Hall argues that the trial court abused its discretion by not granting a 30-day grace period to file an expert report pursuant to article 45901, section 13.01(g).

Former Article 4590i, Section 13.01

A plaintiff who files a lawsuit under the Medical Liability and Insurance Improvement Act is charged with knowledge of the statute and its requirements. Walker v. Gutierrez, 111 S.W.3d 56, 64 (Tex.2003). Former article 4590i required the plaintiff to file an expert report within 180 days of filing suit. Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, sec. 13.01(d), 1995 Tex. Gen. Laws 985, 986 (repealed 2003). If the plaintiff failed to file the expert report within 180 days and the defendant filed a motion to dismiss, the trial court was required to hold a hearing and order the suit dismissed with prejudice. Id. at section 13.01(e)(3). However, the statute provided a possible grace period.

Notwithstanding any other provision of this section, if a plaintiff has failed to comply with a deadline established by Subsection (d) of this section and after hearing the court finds that the failure of the plaintiff or the plaintiffs attorney was not intentional or the result of conscious indifference but was the result of an accident or mistake, the court shall grant a grace period of 30 days to permit the plaintiff to comply with that subsection. A motion by a plaintiff for relief under this subsection shall be considered timely if it is filed before any hearing on a motion by a defendant under Subsection (e) of this section.

Id. at section 13.01(g).

The plaintiff bears the burden to show that the excuse of mistake or accident was not intentional or the result of conscious indifference. Powers v. Mem’l Hermann Hosp. Sys., 81 S.W.3d 463, 466 (Tex.App.-Houston [1st Dist.] 2002, pet. denied). Some mistakes of law, but not all, may negate a finding of intentional conduct or conscious indifference. Walker, 111 S.W.3d at 64. In this context, conscious indifference generally means “failing to take some action that would seem indicated to a person of reasonable sensibilities under similar circumstances.” Powers, 81 S.W.3d at 466 (quoting Tesch v. Stroud, 28 S.W.3d 782, 787 (Tex.App.-Corpus Christi 2000, pet. denied)). A mistake or accident is generally characterized by an unexpected happening that precludes compliance or by the plaintiffs inadequate knowledge of the facts. Pfeiffer v. Jacobs, 29 S.W.3d 193, 198 (Tex.App.-Houston [14th Dist.] 2000, pet. denied); Finley v. Steenkamp, 19 S.W.3d 533, 539 (Tex.App.-Fort Worth 2000, no pet.).

Standard of Review

We review a trial court’s section 13.01(g) grace period determination for an abuse of discretion. Walker, 111 S.W.3d at 62. The trial court abuses its discretion if it acts arbitrarily or unreasonably without reference to any guiding rules or principles. Id. (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985)). We will not substitute our judgment for that of the trial court. Id.

In determining whether a failure to comply with former statute 4590i was due to a mistake or an accident, and was not intentional or the result of conscious indifference, we must look to the acts and knowledge of the plaintiff, as shown in the record. Id. at 64. If the record shows that the plaintiffs assertions supporting a mistake of law are not controverted, the plaintiff will satisfy his burden, provided the facts the plaintiff establishes, if true, negate conscious indifference or intentional conduct. Id. Because there are no findings of fact or conclusions of law, we must presume that the trial court found that Hall did not satisfy his burden to show mistake or accident. See Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 806 (Tex.2002).

Analysis

Hall contends his failure to comply with section 13.01(d) was neither intentional nor the result of conscious indifference. Instead, Hall argues that his failure to file an expert report was a mistake or accident because he believed the trial court’s Docket Control Order superseded the Medical Liability and Insurance Improvement Act’s deadlines. The Docket Control Order established discovery limitations and established deadlines for joinder, motions, pleas, and expert witness designations.

In Finley v. Steenkamp, as here,, the plaintiff argued that his failure to comply with the expert report requirement was not due to conscious indifference nor was it intentional. Finley, 19 S.W.3d at 537-38. Finley contended his failure to comply was the result of a mistake or accident because he believed the trial court’s scheduling order set the deadline for designating his experts and for filing his expert report. Id. The trial court dismissed his suit with prejudice. Id. at 537. The Court of Appeals held that the trial court’s scheduling order did not designate a date to provide expert reports, as Finley had argued. Id. at 539. Rather, the order explicitly required Finley to provide the name, address, and topic for each of his expert witnesses. Id. “Nothing in the court’s scheduling order implied that it was altering the date on which the expert report required by article 4590i was due.” Id. at 539-^0. The court found that Finley’s argument lacked merit and affirmed the trial court’s order of dismissal. Id. at 540, 544.

Similar to the order in Finley, the order here does not address expert reports or the deadlines set by article 4590i, section 13.01(d). Hall has not met his burden to establish a mistake or accident.

After applying the standard established by Walker, we hold that the existing record establishes that the trial court did not abuse its discretion in denying Hall’s motion requesting a grace period and dismissing the suit with prejudice. See Walker, 111 S.W.3d at 62.

We overrule appellant’s sole issue.

Conclusion

We affirm the judgment of the trial court.


text:
    Alberto Garduno IBARRA, Appellant, v. The STATE of Texas, Appellee.
    No. 01-04-00008-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    March 10, 2005.

      Alberto Garduño Ibarra, Beaumont, pro se.
    Shawna L. Reagin, Houston, for appellant.
    Charles A. Rosenthal, Jr., Dist. Atty.Harris County, Lori Deangelo Fix, Asst. Dist. Atty., Houston, for appellee.
    Panel consists of Justices TAFT, KEYES, and HANKS.
   OPINION

EVELYN V. KEYES, Justice.

Appellant, Alberto Garduño Ibarra, pleaded guilty, without an agreed punishment recommendation, to aggravated first degree possession with intent to deliver a controlled substance, namely cocaine, weighing over 400 grams in violation of section 481.112(a) of the Health and Safety Code. See Tex. Health & Safety Code Ann. § 481.112(a) (Vernon 2003). Because the amount of cocaine was more than 400 grams, the offense was punishable by confinement for life or 15 to 99 years and a fine not to exceed $250,000. Id. § 481.112(f). The trial court orally pronounced appellant’s punishment at 15 years confinement. The written judgment and sentence reflected the 15 years confinement, but included a $1 fine that was not orally pronounced.

Appellant’s court appointed counsel filed a motion to withdraw as counsel, a hybrid Anders brief, and a brief on the merits in which she concludes that the appeal is wholly frivolous and without merit, with one exception. See Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967). Counsel asserts that the $1 fine contained in the written judgment, but not orally pronounced to appellant, violated Code of Criminal Procedure article 42.03 section 1(a). See Tex.Code CRIM. PROC. Ann. art. 42.03 § 1(a) (Vernon Supp.2004-2005). Appellant’s counsel requests that this Court reform the judgment by deleting the fíne.

The State has filed a brief in which it agrees that the point of error has merit. The State argues that the remedy is not to delete the $1 fine, but for us to remand the case for a new punishment hearing. We agree with the State.

Discussion

A sentence must be orally pronounced in the defendant’s presence. Tex. Code Crim. Proc. Ann. art. 42.03 § 1(a); Taylor v. State, 131 S.W.3d 497, 500 (Tex.Crim.App.2004). The sentence and judgment are just the written declaration and embodiment of the oral pronouncement. Tex.Code Crim. Proc. Ann. art. 42.01 § 1; Taylor, 131 S.W.3d at 500. When the written sentence and judgment conflict with the oral pronouncement, the oral pronouncement controls. Taylor, 131 S.W.3d at 500; Coffey v. State, 979 S.W.2d 326, 328 (Tex.Crim.App.1998). Here, the reporter’s record shows that the trial judge did not orally pronounce a fine in appellant’s presence at the sentencing hearing. Therefore, the judgment incorrectly includes the $1 fíne.

Health and Safety Code section 481.112(f) requires both confinement and a fíne. Tex. Health & Safety Code Ann. § 481.112(f); Reed v. State, 795 S.W.2d 19, 19 (Tex.App.-Houston [1st Dist.] 1990, no pet.); see also Aguirre-Mata v. State, 26 S.W.3d 922, 925 (Tex.App.-Houston [1st Dist.] 2000), aff'd, 125 S.W.3d 473 (Tex.Crim.App.2003). The trial judge erred in not assessing a fíne as required for a conviction under section 481.112(f). See Tex. Health & Safety Code Ann. § 481.112(f); Scott v. State, 988 S.W.2d 947, 948 (Tex.App.-Houston [1st Dist.] 1999, no pet.).

A sentence outside the statutory limits is void. Ex parte Sims, 868 S.W.2d 803, 804 (Tex.Crim.App.1993). A void sentence cannot be waived. Id. We have no authority to reform the sentence by adding a punishment of any amount, even in the interest of judicial economy and fairness or even if the addition is de minimis. Reed, 795 S.W.2d at 19-21; Scott, 988 S.W.2d at 948. The only remedy is a new punishment hearing. See Tex.Code Crim. Prog. Ann. art. 44.29(b) (Vernon Supp.2004-2005); Scott, 988 S.W.2d at 948.

We sustain appellant’s point of error.

Conclusion

We affirm the judgment of the trial court which finds appellant guilty of aggravated first degree possession with intent to deliver a controlled substance. Because we conclude that appellant’s sentence is void, we reverse the judgment of the trial court and remand the case for a new punishment hearing pursuant to article 44.29(b) of the Texas Cod of Criminal Procedure. See TexCode Crim. Proc. Ann. Art. 44.29(b) (Vernon Supp.2004-2005).

We deny counsel’s motion to withdraw.

      . "A person commits an offense if the person knowingly manufactures, delivers, or possesses with intent to deliver a controlled substance,” including cocaine. Tex. Health & Safety Code Ann. § 481.112(a) (Vernon 2003).

      . A typical Anders brief comprises a complete evaluation of the record, addresses all possible grounds for appeal, and presents a professional evaluation of the record showing why, in effect, there are no arguable grounds to advance. See Anders, 386 U.S. at 744, 87 S.Ct. at 1400; High v. State, 573 S.W.2d 807, 811 (Tex.Crim.App.1978); Moore v. State, 845 S.W.2d 352, 353 (Tex.App.-Houston [1st Dist.] 1992, pet. ref’d). Appellant's counsel asserts, however, a point of error that has merit.


author: JANE BLAND, Justice.

text:
    In re Fredda Jo TURNER, Relator.
    No. 01-04-01228-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    March 10, 2005.

      Walter J. Kronzer, III, Houston, TX, for Relator.
    Sherri Ann Evans, Houston, TX, for Respondent.
    Howard H. Singleton, Wharton, TX, Walter P. Mahoney Jr., The Mahoney Law Firm, Pasadena, TX, for Real Party in Interest.
    Panel consists of Chief Justice RADACK and Justices HIGLEY and BLAND.
   OPINION

JANE BLAND, Justice.

Relator, Fredda Jo Turner (Turner), requests habeas corpus relief, asserting in five issues that she is illegally restrained. We deny relief.

Factual Background

In March 2002, the trial court signed an agreed final divorce decree dissolving the marriage of Turner and real party in interest, Robert Dean Abell (Abell). In it, the trial court named Turner as the joint managing conservator with the exclusive right to establish the primary residence of their three children. The trial court appointed Abell as the joint managing conservator without the right to establish primary residence of the children.

In November 2004, Abell filed a second motion for enforcement, asserting that Turner had violated portions of the decree’s possession orders. Abell recited the relevant text of the order as follows:

[0]n March 7, 2002 the Court signed an Order that appears in cause No. 19,753 the minutes of this Court at Volume 1, page 1, and states in relevant part as follows: ...
1. Weekends — On weekends, beginning at the time the child’s school is regularly dismissed, on the first, third, and fifth Friday of each month and ending at the time school resumes on Monday....
3. On Wednesdays of said weeks during the regular school term, beginning at 6:00 p.m. and ending at 8:00 p.m.
4. Extended Summer Possession by Joint Managing Conservator Who Was Not Awarded the Primary Physical Residence of the Children:
With Written Notice by April 1 — If Joint Managing Conservator who was not awarded the primary physical residence of the children gives Joint Managing Conservator who was awarded the primary physical residence of the children written notice by April 1 of a year specifying an extended period or periods of summer possession for that year, Joint Managing Conservator who was not awarded the primary physical residence of the children shall have possession of the child for thirty (30) days beginning no earlier than the day after the child’s school is dismissed for the summer vacation and ending no later than seven days before school resumes at the end of the summer vacation in that year, to be exercised in no more than two separate periods of at least seven consecutive days each, as specified in the written notice. These periods of possession shall begin and end at 6:00 P.M. ...

Abell then alleged numerous violations of the order, including the following:

Violation No. 1 Wednesday February 18, 2004 at 6:00-denied visitation with Alicia ...
Violation No. 19 Saturday May 29, 2004 at 6:00-denied summer visitation with Alicia, Audrey, and Marty....

In December 2004, the trial court heard Abell’s motion for enforcement, found Turner in contempt for the above two violations of the possession order, and assessed Turner 180 days’ confinement for each violation, the two sentences to run concurrently. The following day, the trial court signed an enforcement order. In relevant part, the trial court found:

The Court finds that [Turner] is guilty of two separate violations of the Original Divorce Decree Order signed on December 20, 2001 and that appears in the minutes of this Court.
The Court further finds that Respondent has failed to comply with and has violated the provisions of the Order on two separate occasions as follows:
Violation No. 1 On Wednesday February 18, 2004 [Turner] denied [Abell] his visitation time with Alicia Abell.
Violation No. 2 On Saturday May 29, 2004 [Turner] denied [Abell] his summer visitation for all three (3) kids, Alicia Abell, Audrey Abell and Mary Abell.

Turner commenced her confinement on December 2, 2004. She filed an original petition for writ of habeas corpus, a supplemental petition for writ of habeas corpus, and a second supplemental petition for writ of habeas corpus with our court. We ordered Turner released on bond pending our final determination of her request for habeas corpus relief.

Standard of Review

The purpose of a habeas corpus proceeding is not to determine the ultimate guilt or innocence of the relator, but to ascertain whether the relator has been confined unlawfully. Ex parte Gordon, 584 S.W.2d 686, 688 (Tex.1979). In such a proceeding, the order or judgment challenged is presumed to be valid. Ex parte Occhipenti, 796 S.W.2d 805, 809 (Tex.App.Houston [1st Dist.] 1990, orig. proceeding). We issue a writ of habeas corpus if a trial court’s contempt order is beyond the court’s power or the court did not afford the relator due process of law. In Re Henry, 154 S.W.3d 594, 596 (Tex.2005) (citing Ex parte Barnett, 600 S.W.2d 252, 254 (Tex.1980); Ex parte Swate, 922 S.W.2d 122, 124 (Tex.1996)). Relator bears the burden of showing that she is entitled to relief, including an adequate record to establish the invalidity of the order of contempt. See Tex.R.App. P. 52.7(a); Occhipenti, 796 S.W.2d at 808-09.

Existence of Commitment Order

In issue one, Turner contends that she is being held without a commitment order. In her second supplemental petition for writ of habeas corpus, Turner concedes that after she had filed the original petition for writ of habeas corpus, this court received a copy of the trial court’s order of enforcement and writ of commitment. Thus, we dismiss issue one as moot.

Due Process

Turner contends the trial court denied her due process because the underlying divorce decree is vague and ambiguous as to her obligations regarding summer possession. Specifically, she contends that the order “has two different surrender locations and two different surrender times.” We read this as a complaint about summer visitation (Violation No. 2), because the order with respect to Wednesday night visitation (Violation No. 1) states only one time for surrender, 6 p.m. Moreover, under the general terms and conditions of the decree, surrender for Wednesday night visitation takes place at Turner’s residence. The summer possession provision states, "... Joint Managing Conservator who was not awarded the primary physical residence of the children shall have possession of the child for thirty (30) days beginning no earlier than the day after the child’s school is dismissed for the summer vacation.... These periods of possession shall begin and end at 6:00 P.M.”

Violation No. 1 carries its own 180-day sentence, which Turner has not served. Accordingly, her vagueness complaint as to the summer possession order does not entitle her to habeas relief. See, e.g., In Re Patillo, 32 S.W.3d 907, 909 (Tex.App.-Corpus Christi 2000, orig. proceeding) (when in an enforcement order a trial court finds multiple instances of contempt and separately assesses a separate punishment for each instance, if any sentence is valid, it will be enforced).

Sufficiency of the Evidence

Turner contends the evidence presented does not support the trial court’s finding that she violated Abell’s period of summer possession (Violation No. 2). Turner did not provide a reporter’s record of the motion for enforcement hearing. See Tex.R.App. P. 52.7(a)(2) (relator must file with the petition a properly authenticated transcript of any relevant testimony from any underlying proceeding). Without a record, we cannot determine whether legally insufficient evidence exists to support the trial court’s contempt finding. Turner thus has not earned her burden to establish that no evidence exists to support the enforcement order, rendering it void.

Notice of Violations

Turner contends that Abell’s motion for enforcement is defective in that it does not meet the requirement of Texas Family Code Section 157.002(a)(1) that requires a movant to identify the provision of the order violated and sought to be enforced.

We disagree. In his second motion for enforcement, Abell references the volume and page number in the trial court’s minutes in which the decree sought to be enforced can be found, and repeats within the motion, verbatim, the portions of possession orders Abell alleges Turner violated. In his motion, Abell alleges “Violation No. 1 — Wednesday February 18, 2004 at 6:00-denied visitation,” and “Violation No. 19 — Saturday May 29, 2004 at 6:00-denied summer visitation....” These are the two allegations the trial court found true in its enforcement order. We hold that the motion for enforcement sufficiently notified Turner of the specific provisions of the divorce decree that Abell charged she had violated.

Failure to Specify Violated Provisions of the Prior Order Sought to be Enforced

Turner contends that the trial court’s enforcement order is void because it does not comply with Texas Family Code section 157.166(a)(1), which provides: “(a) an enforcement order must include: (1) in ordinary and concise language the provision of the order for which enforcement was requested.” Tex. Fam.Code Ann. § 157.166(a)(1) (Vernon 2002).

“The purpose of an enforcement order is to notify the contemner of how he has violated the provisions for which enforcement is sought and ... to provide sufficient information for an adequate review.” Ex parte Conoly, 732 S.W.2d 695, 697 (Tex.App.-Dallas 1987, orig. proceeding). A contempt order is insufficient if its interpretation requires inferences or conclusions about which reasonable persons might differ. In re Houston, 92 S.W.3d 870, 877 (Tex.App.-Houston [14th Dist.] 2002, orig. proceeding).

The trial court found:

The Court finds that [Turner] is guilty of two separate violations of the Original Divorce Decree Order signed on December 20, 2001 and that appears in the minutes of this Court.
The Court further finds that Respondent has failed to comply with and has violated the provisions of the Order on two separate occasions as follows:
Violation No. 1 On Wednesday February 18, 2004 [Turner] denied [Abell] his visitation time with Alicia Abell.
Violation No. 2 On Saturday May 29, 2004 [Turner] denied [Abell] his summer visitation for all three (3) kids, Alicia Abell, Audrey Abell and Mary Abeh

Although the trial court generally refers to its December 20, 2001 order, it did not include “the provision of the order for which enforcement was requested.”

The trial court erred in not either including in its enforcement order the specific provisions sought to be enforced, or incorporating those provisions by express reference. Under these facts, however, Turner is not entitled to relief. First, the enforcement order provides Turner sufficient notice of the provisions of the decree that the trial court found Turner had violated. The violations that the trial court found are sufficiently specific to notify Turner that they implicate the decree’s Wednesday night and summer possession provisions because they could not have arisen from other decree provisions, and, in the motion for enforcement, Abell notified Turner of the specific provisions by quoting them, verbatim, from the decree. Interpreting the trial court’s findings thus does not require inferences or conclusions about which reasonable persons might differ. Id. Second, Turner has not alleged any actual difficulty or confusion in understanding which provisions of the decree that the trial court found she had violated. Third, the order provides adequate information for habeas corpus review of Turner’s grounds for relief that the trial court found to be true. See Conoly, 732 S.W.2d at 698.

As the trial court’s order fully apprised Turner of the violations found against her, and those findings related to specific violations alleged in the motion for enforcement, we hold that Turner has not overcome the presumption of the validity of the order so as to render it void. Id. (“The contempt order ‘must contain specific findings so that the contemner will be fully apprised of his alleged act of misconduct so that he may overcome by proof, if any is available, the presumption of validity of the order’ ” (citing Ex parte Hardy, 531 S.W.2d 895, 896 (Tex.Civ.App.-Dallas 1975, orig. proceeding))). See also Ex parte Boyle, 545 S.W.2d 25, 27 (Tex.Civ.App.-Houston [1st Dist.] 1976, orig. proceeding)(holding that each case must be evaluated on its own facts to determine whether trial court violated relator’s due process by its failure to follow former Texas Family Code section 14.09, requiring ten days’ notice to alleged contemner before holding enforcement hearing).

Conclusion

We deny habeas corpus relief and remand Turner to the custody of the Sheriff of Colorado County to serve the remainder of her sentence.

      . The decree states that the divorce was "PRONOUNCED AND RENDERED” December 20, 2001, "but signed on 7 day of March 2002.”

      . Under this provision the surrender time for the summer possession should have been 6:00 P.M. Apparently Turner mistakenly thinks the following provision from the “General Terms and Conditions” provision also applied:
      If a period of possession by Joint Managing Conservator who was not awarded the primary physical residence of the children begins at the time the children’s school is regularly dismissed, Joint Managing Conservator who was awarded the primary physical residence of the children is ORDERED to surrender the children to him at the beginning of each such period of possession at the school in which the children are enrolled. If the children are not in school, Joint Managing Conservator who was not awarded the primary physical residence of the children shall pick up the children at her residence at 4:00....

      . Tex. Fam.Code Ann. § 157.002(a)(1) (Vernon 2002).


text:
    Edward A. and Norma KERR, Pattie Ackermann and Leda Krolczyk, Clifford Ahlhorn, Individually and as Administrator of the Estate of Margrete Ahlhorn, the Estate of Margrete Ahlhorn, Brent Weston and Karen Renee McDowell, David T. Adams, Thomas E. Alvarez, Gary M. and Mary E. Andrews, Paul C. Ardoin, Jr., Frances E. Averett, Robert H. Baird, Ronald L. and Wendy Barr, Donald H. and Cynthia L. Beck, Okie Beck, Douglas J. and Nancy K. Black, Carol Ann Blanton, Leroy and Mary Bollom, Stanley and Cathy Bordovsky, Lori Kraft Borque, Ken and Susan Bowman, Wendell W. and Lynn M. Breazeale, Michael R. and Diana L. Brinkmeyer, James R. and Patricia Brown, Mark A. and Leah Brumlow, Michael and Cynthia Buchanan, James and Terri Buckley, Roman F. and Cynthia A. Vest Bujnoch, David Carnes and Linda Ramsey, William and Shirley Cannavino, Russell D. and Bonnie Lynn Carlson, Sam and Kim Carlton, James J. and Connie J. Cassens, James J. Christy, Carl W. and Susan Clark, Michael and Suzanne Claxton, Melodie Cooper, Gail Cortelyou, Susan D. Covington, Grady and Clois Crawford, Antonio and Nilda Cuellar, William P. and Sue E. Day, Susan Jane Deeslie, Maria T. De La Fuente and Judith A. Wood, Duane E. Degner, Jackie L. and Lillian L. Dillon, Karen Renee Dohman, Kevin and Elizabeth Domain, Cynthia J. Driskill, Marvin J. and Pamela A. Droddy, Keith and Holly Engle, Nickolas and Hughleene S. Erdely, Robert W. and Linda S. Erdman, Jr., Patsy A. Eubanks, Juan and Maria Eufracio, Mike Evans, Fairbanks Animal Clinic, Inc., Richard E. and Kimberly M. Faircloth, Douglas L. and Debra G. Fares, Donna Farrar, Gary and Karen Fleming, Gerardo and Cathy Flores, Brandon Fokken, Marlowe A. and Mary M. Fokken, David M. and Debbie Foyt, Phyllis J. Gamble, Shirley Galik, Armando and Lucia Garcia, Robert D. and Jovita Garcia, Stephen B. and Brenda Garney, Norman K. and Lynda Garrison, Paul D. and Stephanie K. Gerke, Timothy K. and Deborah K. Glavin, Horace Dean and Janice M. Golden, Mark and Jennifer Goodrum, Mike and Brenda Gorski, Roger D. and Deborah Greer, Lulene Gregg, Lance W. Gremillion, Sharon Gremillion, Joe E. Guzman, James L. Hall, Jr., Lynn Hanson, James B. and Laurie Haney, Jr., Michael D. and Kimberly Y. Haney, Terry D. Hargrave, Lonnie and Jo A. Harrison, Janice L. Hays, Richard A. and Betty J. Heathcott, Alice K. Hedstrom, Steven J. and Marie A. Henry, Steve and Darla Henry, Carol Hilmers, Carol Hohle as Administrator of the Estate of Hermine Luecke, the Estate of Hermine Luecke, Lonnie E. and Cheryl A. Hood, Daniel and Alison Horstman, Robert M. Hubbard, George E. and Catherine L. Johnson, Daniel and Pamella Jones, Paul and Deborah Juren, Steve N. and Christy Kalogeras, Glenda Keach, Mickey W. and Virginia Keeling, Eva Kelley, Titus L. and Donna Hoffman Kelley, Charlotte Susan Kerr, Ron and Susan King, David B. and Denise M. Kirby, Ramanath and Jayanthi Kongovi, Corine L. Konvicka, Lillian M. Krolczyk, Paul and Janis Kubeszka, Larry and Terri Kuta, Berthold G. and Michele Lakadosch, Lillian M. and George W. Lang II, Walter D. Latham Individually and as Administrator of the Estate of Linda D. Latham, John S. and Nancy L. Leatherman, Ronald P. and Lisa A. Lewandowski, Joe and Marjorie Lewis, Bartley A. and Karla K. Lewis, Patricia Perkins Lipinsky, Norman J. and Martha A. Locascio, Lowell R. and Judith A. Locke, Wayne D. and Allyson Lynn, Gary and Judith Lyon, Dennis and Deborah Mabe, Elizabeth Malek, Don P. Maniha, Frank J. and Madylene Marino, Barbara J. Matthews, Joe G. McCourt, Thomas F. and Denise C. McNeilly, Antonio and Guadalupe Medrano, Joe and Gloria Mejia, Daniel and Dorraine Meicher, Madeline Merriman, J.T. Mills, Phillip and Carol Mireles, Adolph and Theresa Mock, Damaso C. and Edith Mojica, David A. and Shirley Montgomery, Fermin and Maria Montoya, David N. Moore, Bobby B. and Vivian Morris, Agnes A. Murphree, Tho and Loan Ti Nguyen, Loi Van and Nhan K. Nguyen, Brad P. Nixon, David J. and Donnie B. Noll, David A. and Jennifer Nowak, Kenneth E. and Cecilia O’Bannion, Fred A. and Carolyn M. Gartman O’Bannion, Michael W. and Diane O’Connor, Janice O’Keeffe, Michael L. and Gail L. Oakley, Sr., Louis and Joanna Orlando, Randall J. Parker, Richard and Patricia Parks, Peter B. and Patricia Pedersen, Ralph D. and Patricia A. Perez, Katherine F. Piccolo, Gerard Piccolo, Marshall J. and Mary L. Pientka, Michael and Virginia Ploch, Janet L. Storey for the Estate of Barbara J. Prines, Paul S. Quin, Milagros Ramirez, Barbara J. Ready, Weldon and Norma Reed, Marc S. and Carol Rendall, James Louis Riggins, Bobby and Lisa Riggs, John L. and Gloria A. Riley, Larry and Janie Rockett, Joe E. and Juliet Rodriguez, Mario A. and Consuelo Rodriguez, Richard Rohm, Steve and Irene Jones Ruiz, Stephanie Rush, Glenda Sanchez, Jorge Sanchez, Randy and Cindy M. Sartain, Ralph J. Schad, Chris Schilling, Valerie Schmitt, Paul Schwarsch, James L. and Victoria R. Sherwin, George D. and Catherine A. Shutts, Ernest L. and May L. Simpson, Reginald A. and Debra Smith, Sharyn M. Smith, Shelly D. Smith, Troy and Cheryl Smith, Douglas and Lynn Snider, Danny J. and Charlotte J. Sralla, Dana G. and Margaret A. Strebeck, Kenneth H. and Deborah K. Tate, Wanda Lena’ Temple, Janet Theck, Kathleen Theriault, David M. Thompson, David and Marcia Tijerina, Zachary W. Tolson, Sandra L. Turner, Bobby L. and Janet Underwood, Pamela Ann Van Oster, Galia Vargas, Betty Varner, Charles L. and Janet C. Vavricka, Vicki Vides, Orlando Vides, David and Gwyn Von Heeder, Lydia A. Walden, Bari L. Warnaar, Jerry and Sue Walton, Larry J. and Norma M. Washington, Ralph Weller, Ned B. and Connie Whitton, Geri Laine Tice Williams, Brian and Carolyn L. Williams, Thomas P. and Dorothy W. Williamson, Dane and Linda Wilson, Andrea R. Winter, Lloyd C. and Shelia D. Wood, Michael B. Wright Individually and as Administrator of the Estate of Cheryl Dale Wright, Wendell R. and Sheila Wyborny, Garry L. and Myriam L. Zalesky, Darrell D. and Angela R. Zwink, Appellants, v. HARRIS COUNTY; Harris County Flood Control District; Harris County Municipal Utility District Number 168, Harris County Municipal District Number 170, and Jones & Carter, Inc., Appellees.
    No. 01-02-00158-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    March 10, 2005.

      James B. Blackburn, Richard Roberts Morrison, Blackburn Carter, P.C., Larry J. Doherty, Doherty “Long” Wagner, Houston, TX, Russell H. McMains, Law Offices of Russell H. McMains, Corpus Christi, TX, for Appellants.
    J. Mark Breeding, Andrews & Kurth, Cathy J. Sisk, Harris County Attorneys Office, Houston, TX, for Appellees.
    Panel consists of Justices NUCHIA, HANKS, and BLAND.
   MEMORANDUM OPINION ON REHEARING

JANE BLAND, Justice.

Edward A. and Norma Kerr, together with approximately 360 other plaintiffs (collectively, “the Kerrs”), sued Harris County and the Harris County Flood Control District (collectively, the “Harris County entities”), two municipal utility districts (“the MUDs”), and an engineering firm (“Jones & Carter, Inc.”), alleging that since 1984, their activities within the White Oak Bayou watershed have caused flooding of the watershed, resulting in damage to the plaintiffs’ homes. The Kerrs asserted inverse condemnation and nuisance claims against the Harris County entities and the MUDs, alleging in each claim that they had “taken” their property without adequate compensation. The Kerrs also asserted negligence claims against the engineering firm, Jones & Carter. The trial court granted the defendants’ motions for summary judgment, and the Kerrs appealed.

INVERSE CONDEMNATION AND NUISANCE CLAIMS AGAINST THE GOVERNMENTAL ENTITIES

On August 29, 2003, this Court issued an opinion reversing the trial court’s summary judgment in favor of Harris County and the Harris County Flood Control District on the Kerrs’ inverse condemnation and nuisance claims. In addition, we affirmed the summary judgment in favor of Jones & Carter and the MUDs. We remanded the claims against the Harris County entities to the trial court.

On rehearing, Harris County raised a contest to the trial court’s jurisdiction. In order to examine the jurisdictional issue, we granted the motion for rehearing, withdrew our opinion and judgment of August 29, 2003, and requested additional briefing from the parties.

This Court recently held that exclusive jurisdiction in inverse condemnation claims is vested with the Harris County Civil Courts at Law, pursuant to section 25.1032(c) of the Government Code. See City of Houston v. Boyle, 148 S.W.3d 171, 177-79 (Tex.App.-Houston [1st Dist.] 2004, no pet.) In Boyle, this Court applied section 25.1032(c) to a case involving claims of nuisance and inverse condemnation. Id. at 177-79.

Because [plaintiffs] pleadings seek recovery premised on allegations that the City’s alleged conduct — both nonnegli-gent nuisance and inverse condemnation — resulted in a taking of his property that entitled him to compensation, we conclude that exclusive jurisdiction over [plaintiffs] nonnegligent nuisance claim, as well as his inverse condemnation claim, is in the Harris County Civil Courts at Law pursuant to section 25.1032(c) of the Government Code.

Id. at 179; see also EPGT Tex. Pipeline, L.P. v. Harris County Flood Control Dist., No. 01-02-01056-CV, 176 S.W.3d 330, 341-42, 2004 WL 1794715, at *9 (Tex.App.-Houston [1st Dist.] August 12, 2004, no pet.) (holding that exclusive jurisdiction for inverse condemnation claims lies with Harris County Civil Courts at Law).

Like the plaintiff in Boyle, plaintiffs here seek, by way of their inverse condemnation and nuisance claims, to recover compensation for the “taking” of their property. We therefore hold that the trial court lacked subject-matter jurisdiction over the plaintiffs’ inverse condemnation and nuisance claims against the Harris County entities and the MUDs, because exclusive jurisdiction for those claims is vested in with the Harris County Civil Courts at Law.

Our jurisdiction over “the merits of a case extends no further than that of the court from which the appeal is taken.” Pearson v. State, 159 Tex. 66, 315 S.W.2d 935, 938 (1958); Dallas County Appraisal Dist. v. Funds Recovery, Inc., 887 S.W.2d 465, 468 (Tex.App.-Dallas 1994, writ denied). If the trial court lacks jurisdiction, then the appellate court has jurisdiction only to vacate the judgment of the trial court and dismiss the cause. Fulton v. Finch, 162 Tex. 351, 346 S.W.2d 823, 827 (1961); Ward v. Malone, 115 S.W.3d 267, 269 (Tex.App.-Corpus Christi 2003, pet. denied); Dallas County Appraisal Dist., 887 S.W.2d at 468. We therefore vacate the judgment of the trial court as it relates to the inverse condemnation and nuisance claims against the Harris County entities and the MUDs, and dismiss the appeal of those claims for want of jurisdiction.

NEGLIGENCE CLAIMS AGAINST THE ENGINEERING FIRM

Plaintiffs also sued Jones & Carter, an engineering company involved in the development of Brookhollow subdivision, alleging that Jones & Carter “was negligent in failing to provide for adequate storm water detention/retention facilities or in some other manner [to] adequately mitigate the increased storm water runoff created in conjunction with their developments in the White Oak Bayou watershed upstream of Plaintiffs’ properties.” Jones & Carter moved for summary judgment based upon the statute of repose, which the trial court granted.

The statute of repose applicable to engineers provides as follows:

A person must bring suit for damages for a claim listed in Subsection (b) against a registered or licensed architect, engineer, interior designer, or landscape architect in this state, who designs, plans, or inspects the construction of an improvement to real property or equipment attached to real property, not later than 10 years after the substantial completion of the improvement or the beginning of operation of the equipment in an action arising out of a defective or unsafe condition of the real property, the improvement, or the equipment.

Tex. Civ. PRAC. & Rem.Code Ann. § 16.008(a) (Vernon 2002) (emphasis added). The purpose of the statute of repose is to protect those who design, install, or construct an improvement from facing “never-ending potential-liability based on that work.” Reames v. Hawthorne-Seving, Inc., 949 S.W.2d 758, 761 (Tex.App.-Dallas 1997, pet. denied). The statute of repose differs from traditional statutes of limitations in that the time period begins running when the improvement is substantially completed, rather then when the damage or injury occurs or is discovered. Gordon v. W. Steel Co., 950 S.W.2d 743, 745-46 (Tex.App.-Corpus Christi 1997, pet. denied).

As summary judgment proof, Jones & Carter introduced the affidavit of J.R. Jones, an engineer for Jones & Carter, who testified that Brookhollow Corporation hired Jones & Carter in 1982 to assist in developing section five of a business park. In connection with the job, Jones & Carter prepared engineering drawings that led to the eventual construction of streets, waterlines, utility lines, sanitary sewer lines, drainage, and detention facilities in Brookhollow West, section five. Jones & Carter also designed and constructed a single street in Brookhollow West, section nine. In connection with these projects, Jones & Carter introduced Certificates of Substantial Completion, indicating that Jones & Carter completed the last of the projects on January 10, 1985, well over ten years before the Kerrs filed suit in this case.

Plaintiffs nonetheless contend a fact issue exists as to whether Jones & Carter substantially completed its work. Specifically, plaintiffs introduced evidence that, in 1998, Jones & Carter produced an estimate to Brookhollow Corporation about the cost of proposed improvements to a different section of Brookhollow West. Essentially, plaintiffs argue that as long as sections of Brookhollow West were yet to be developed, Jones & Carter’s work was not substantially complete.

Such evidence is insufficient to raise a fact issue as to the statute of repose. Nothing in the record indicates that Jones & Carter was under a continuing obligation to perform work for Brookhollow Corporation, or that Brookhollow Corporation would choose to use Jones & Carter if it performed further improvements or development. Jones & Carter established that it substantially completed the work in the affected sections of Brookhollow West in 1985, and has not participated in the design or construction of any improvements in the area since that time. Accordingly, the trial court properly rendered summary judgment in favor of Jones & Carter.

CONCLUSION

The trial court did not have jurisdiction to hear the plaintiffs’ inverse condemnation and nuisance claims against the Harris County entities and the MUDs. We therefore vacate the trial court’s summary judgment in favor of those entities and dismiss those claims for lack of jurisdiction. We affirm the summary judgment in favor of Jones & Carter.

      . "A county civil court at law has exclusive jurisdiction in Harris County of eminent domain proceedings, both statutory and inverse, regardless of the amount in controversy.” Tex. Gov’t Code Ann. § 25.1032(c) (Vernon 2004).

      . The plaintiffs’ seventh amended petition alleges "that Defendants, HCFCD, the County, TxDOT, MUD 168, and MUD 170 have, by virtue of the above-described conduct, and in the exercise of their lawful authority, caused a substantial interference with the use, enjoyment and/or occupancy of Plaintiffs’ properties or property interests.” (Emphasis added). As indicated by the italicized language in the quote above, the nuisance claims, like the inverse condemnation claims, are based on the same conduct alleged to constitute an inverse condemnation by the Harris County entities and the MUD's.

      . Plaintiffs’ negligence claims against Jones & Carter are not based on the same conduct giving rise to the inverse condemnation and nuisance claims against the Harris County entities and the MUDs. As such, the trial court had jurisdiction over those claims and we address them on appeal.