author: RICHARD BARAJAS, Chief Justice.

text:
    The COUNTY OF EL PASO, Appellant, v. Jessie DORADO, Individually and as Mother and Next Friend of Brianna Alexis Miranda, a Minor and on Behalf of the Estate of Eduardo Miranda a/k/a Eduardo Miranda Duarte, Deceased, Appellees.
    No. 08-03-00421-CV.
    Court of Appeals of Texas, El Paso.
    Dec. 1, 2005.
    Rehearing Overruled Jan. 11, 2006.
    See also 33 S.W.3d 44.

      Jose R. Rodriguez, County Attorney, El Paso, for appellant.
    Jeffrey S. Alley, Scott, Hulse, Marshall, Feuille, Finger & Thurmond, P.C., El Paso, for appellees.
    Before Panel No. 2 BARAJAS, C.J., McCLURE, and CHEW, JJ.
   OPINION

RICHARD BARAJAS, Chief Justice.

On the Court’s own motion, we withdraw our opinion and judgment dated September 15, 2005 and substitute the following.

This is an appeal from a jury verdict rendering judgment against the County of El Paso under 42 U.S.C. § 1983 arising from the death of Eduardo Miranda while he was incarcerated in the El Paso County jail. Appellant filed a motion for new trial which was overruled by operation of law. For the reasons stated, we reverse the judgment of the trial court and render judgment in favor of Appellant.

I. FACTUAL AND PROCEDURAL BACKGROUND

On July 25, 1997, Jessie Dorado (“Dora-do”), in her individual capacity, as Mother and Next Friend of Brianna Alexis Miranda, and on behalf of the Estate of Eduardo Miranda a/k/a Eduardo Miranda Duarte (“Dr. Miranda”), deceased, sued the County of El Paso (“El Paso County”). Dorado alleged that the decedent died after he was denied access to his seizure medication following his arrest and subsequent detention in the El Paso County Detention Facility. Appellees sued for damages pursuant to the Texas Wrongful Death Act and the Survival Statute and for constitutional deprivations under 42 U.S.C. § 1983. Appellant filed a Plea to the Jurisdiction based upon the lack of applicability of the Wrongful Death Act to Counties. The trial court denied the plea and the County appealed. This Court reversed the judgment of the trial court and rendered judgment in favor of the County regarding the question of applicability of the wrongful death statute to counties.

Subsequently, Appellant filed a motion for summary judgment which was granted in part and denied in part. Appellant filed a second interlocutory appeal raising a question regarding qualified immunity of the nurses, which was denied. In May of 2003, trial was had to a jury on allegations of the violation of the constitutional rights of Eduardo Miranda under 42 U.S.C. § 1983 and the Texas Tort Claims Act. The jury rendered a verdict against Appel-lees under the Texas Tort Claims Act, but in favor of Appellees for violation of Dr. Miranda’s constitutional rights. The trial court entered judgment on June 16, 2003 in the amount of almost $5 million dollars in damages and attorney’s fees. Appellant filed a motion for new trial which was overruled by operation of law. This appeal follows.

Dr. Miranda was arrested for outstanding traffic warrants on the evening of February 27,1997. He was booked into the El Paso County Detention Center in the early hours of February 28, 1997. At the time of his booking, Dr. Miranda informed jail personnel he had a history of convulsions. He did not inform them, however, that he was under medication for the condition. In addition, Dr. Miranda made other false statements to the intake person during the booking process. Dr. Miranda indicated that he was unemployed and provided an incorrect address.

On March 1, 1997, Dr. Miranda told Nurse Juan Carlos Dominguez that he was under physician’s orders to take two milligrams of Ativan each night to control his seizures. This information was also untruthful. Dr. Miranda was actually self prescribing a much higher dose of the medication. Nurse Dominguez in reliance on the information provided by Dr. Miranda, confirmed the prescription and contacted Dr. Harold Block, the jail physician, for further instructions. Dr. Harold Block gave orders to give Dr. Miranda his prescribed medications, which was done. The next night, March 2, 1997, Nurse Raul Tellez was responsible for administering Dr. Miranda’s prescription. Nurse Tellez summoned Dr. Miranda around 8 p.m., but Dr. Miranda did not respond. As a result, he did not receive his prescribed medication. Around 11:30 p.m., Dr. Miranda suffered a seizure and Nurses Junette Davis and Vivian Perez responded to the medical assistance call. Nurse Davis stayed with Dr. Miranda while Nurse Perez returned to the clinic to call Dr. Block for direction. Dr. Block instructed Nurse Perez to administer a four milligram injection of Ativan and a five milligram injection of Haldol. Dr. Miranda was moved from his cell to the jail clinic for treatment. At the clinic, the medical staff realized Dr. Miranda was no longer breathing. He was transported to the hospital by EMS. He died less than an hour after his seizure.

The record contains different accounts of what occurred during the hour prior to Dr. Miranda’s death. The County contends Dr. Miranda suffered a seizure, but had recovered before medical staff arrived to assist him. He then became violent and had to be restrained. He was then carried on a stretcher to the jail clinic, handcuffed and shackled, and given an injection of Ativan. After the injection was given, the staff noticed Dr. Miranda was no longer breathing and had turned blue. The medical staff tried to revive him and called an ambulance. All efforts to resuscitate him were unsuccessful.

The Dorado family contends that Dr. Miranda was experiencing seizures before and during the time he was restrained. Their evidence suggests that he was not violent, but rather convulsing uncontrollably at the time he was forcibly restrained. There is also evidence indicating that the restraints used, the position his body was placed in, and the time delays in treatment could have caused Dr. Miranda to stop breathing.

Dr. Miranda’s widow, Jessie Dorado, brought suit alleging wrongful death under the Texas Tort Claims Act and asserting claims under 42 U.S.C. § 1983. This case was tried to a jury on the 2nd of May, 2003 and a verdict was rendered in favor of the County on the claims filed under the Texas Tort Claims Act but in favor of Dorado under 42 U.S.C. § 1983. The trial court entered a judgment against the County for almost $5 million in damages and attorney’s fees.

II. ISSUES ON APPEAL

Appellant files six issues on appeal. Issues One and Five complain of sufficiency of the evidence regarding the jury’s verdict under 42 U.S.C § 1983 and the court’s findings of facts and conclusions of law regarding the award of attorney’s fees. Issue Two complains of the trial court’s ruling allowing the testimony of Dr. Glenn Johnson, a physician as an expert witness. Issue Three complains of the jury instructions submitted by the court. Issue Four asserts that the trial court committed error by entering a judgment against the County under 42 U.S.C. § 1983 on the grounds that the Appellees are not entitled to recover damages against the County and that the only proper plaintiff is the Estate of Eduardo Miranda. Issue Six is a challenge to the interest rates assessed by the trial court.

III. STANDARD OF REVIEW

In reviewing a “no evidence” challenge, the appellate court considers only the evidence and reasonable inferences therefrom that tend to support the jury findings, disregarding all contrary evidence and inferences. Redman Homes, Inc. v. Ivy, 920 S.W.2d 664, 667 (Tex.1996). If there is any evidence of probative force to support the jury’s findings, however, a motion for j.n.o.v. must be denied. See Navarette v. Temple Indep. Sch. Dist., 706 S.W.2d 308, 309 (Tex.1986).

A “no evidence” or legal insufficiency point is a question of law which challenges the legal sufficiency of the evidence to support a particular fact finding. There are two separate “no evidence” claims. When the party having the burden of proof suffers an unfavorable finding, the point of error challenging the legal sufficiency of the evidence should be that the fact or issue was established as “a matter of law.” When the party without the burden of proof suffers an unfavorable finding, the challenge on appeal is one of “no evidence to support the finding.” In re Estate of Livingston, 999 S.W.2d 874, 879 (Tex.App.-El Paso 1999, no pet.); see Creative Manufacturing, Inc. v. Unik, Inc., 726 S.W.2d 207, 210 (Tex.App.-Fort Worth 1987, writ ref'd n.r.e.).

When attacking the legal sufficiency of the evidence to support an adverse finding on an issue for which he had the burden of proof, i.e., challenging the trial court’s finding as a matter of law, the appellant must demonstrate on appeal that the evidence conclusively established all the vital facts in support of the issue. In re Estate of Livingston, 999 S.W.2d at 879; Sterner v. Marathon Oil Company, 767 S.W.2d 686, 690 (Tex.1989); Kratz v. Exxon Corp., 890 S.W.2d 899, 902 (Tex.App.-El Paso 1994, no writ); Chandler v. Chandler, 842 S.W.2d 829, 832 (Tex.App.-El Paso 1992, writ denied). A party attempting to overcome an adverse fact finding as a matter of law must surmount two hurdles. In re Estate of Livingston, 999 S.W.2d at 879; Sterner, 767 S.W.2d at 690. First, the record must be examined for evidence that supports the finding, while ignoring all evidence to the contrary. In re Estate of Livingston, 999 S.W.2d at 879; Sterner, 767 S.W.2d at 690; Kratz, 890 S.W.2d at 902. Second, if there is no evidence to support the finding, then the entire record must be examined to see if the contrary proposition is established as a matter of law. In re Estate of Livingston, 999 S.W.2d at 879; Sterner, 767 S.W.2d at 690; Kratz, 890 S.W.2d at 902. Only if the contrary position is conclusively established will the point of error be sustained. In re Estate of Livingston, 999 S.W.2d at 879-80; Kratz, 890 S.W.2d at 902; Chandler, 842 S.W.2d at 832. We review Appellant’s issue to resolve the question of liability under 42 U.S.C. § 1983 as a matter of law.

IV. 42 U.S.C § 1983

Deliberate Indifference and Custom, Policy or Practice

Title 42 U.S.C. § 1983 provides in pertinent part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law.

42 U.S.C. § 1983.

A cause of action under this section involves two essential elements: (1) the conduct complained of was committed by a person acting under color of state law, and (2) the conduct deprived a person of rights, privileges, or immunities secured by the Constitution or the laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1913, 68 L.Ed.2d 420 (1981), overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327, 331-32, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). Unlike a claim asserted pursuant to state law, consent to suit is not required. See Gomez v. Housing Authority of the City of El Paso, 148 S.W.Bd 471, 477-78 (Tex.App.-El Paso 2004, pet. denied).

As a pretrial detainee, Dr. Miranda’s constitutional rights flowed from the due process guarantees of the Fourteenth Amendment rather than from the Eighth Amendment’s prohibition against cruel and unusual punishment. See Hare v. City of Corinth, 74 F.3d 633, 639 (5th Cir.1996) (en banc). 42 U.S.C. § 1983 authorizes suits against state and local government officials who violate a person’s constitutional rights. In Estelle v. Gamble, the Supreme Court held that the Eighth Amendment’s proscription of cruel and unusual punishments forbids jail officials to be deliberately indifferent to inmates’ serious medical needs because such indifference is itself cruel and unusual punishment. 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). Pretrial detainees also have a right to be free from jail officials’ deliberate indifference to their serious medical needs. Hare, 74 F.3d at 643. This right springs from both procedural and substantive due process and is at least as great as that mandated by the Eighth Amendment. Id.; see also Bell v. Wolfish, 441 U.S. 520, 535, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). To establish a violation of this right, an inmate must show that he or she was subjected to a substantial risk of serious harm. The inmate must also prove that the jail official was subjectively aware of facts from which an inference could be drawn that a substantial risk of serious harm existed and then actually drew such an inference. Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994); Harris v. Hegmann, 198 F.3d 153, 159 (5th Cir.1999). Finally, the inmate must establish that the jail official’s response to the perceived risk of harm shows that official’s deliberate indifference. Farmer, 511 U.S. at 844-45, 114 S.Ct. 1970. Alejo v. Dallas County, No. Civ.A. 303CV1612N, 2005 WL 701041, at *1 (N.D.Tex. March 24, 2005).

When such a detainee complains of unconstitutional medical treatment, there is no significant legal distinction between pretrial detainees and convicted prisoners. Gibbs v. Grimmette, 254 F.3d 545, 548 (5th Cir.2001). When a pretrial detainee’s claim is based on a jail official’s episodic act or omission, “the proper inquiry is whether the official had a culpable state of mind in acting or failing to act.” Hare, 74 F.3d at 643. To establish liability, a pretrial detainee must “show that a state official acted with deliberate indifference to a substantial risk of serious medical harm and that injuries resulted.” Wagner v. Bay City, Tex., 227 F.3d 316, 324 (5th Cir.2000).

In an episodic-act-or-omission case against a municipality, “an actor is usually interposed between the detainee and the municipality, such that the detainee complains first of a particular act of, or omission by, the actor and then points derivatively to a policy, custom or rule (or lack thereof) of the municipality that permitted or caused the act or omission.” Flores v. County of Hardeman, Texas, 124 F.3d 736, 738 (5th Cir.1997). To succeed in holding a municipality liable under these standards, the plaintiff must establish not only that a municipal employee acted with subjective deliberate indifference but also that the employee’s act resulted from a policy or custom adopted or maintained by the municipality with objective deliberate indifference to the plaintiffs constitutional rights. See Olabisiomotosho v. City of Houston, 185 F.3d 521, 526 (5th Cir.1999).

Municipalities and other local government units are “persons” within the meaning of section 1983 and may be liable for a constitutional tort suffered as the result of an official policy, custom or pattern. See Monell v. Dept. of Social Services of City of New York, 436 U.S. 658, 690-91, 98 S.Ct. 2018, 2035-36, 56 L.Ed.2d 611 (1978). A municipality may be held liable for a single act or decision of a municipal official with final policy-making authority. Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737, 109 S.Ct. 2702, 2724, 105 L.Ed.2d 598 (1989); City of St. Louis v. Praprotnik, 485 U.S. 112, 123, 108 S.Ct. 915, 924, 99 L.Ed.2d 107 (1988) (plurality opinion); Pembaur v. City of Cincinnati, 475 U.S. 469, 480, 106 S.Ct. 1292, 1298, 89 L.Ed.2d 452 (1986). But it cannot be held liable solely because it employs a tortfea-sor — or, in other words, a municipality cannot be held liable under section 1983 on a respondeat superior theory. Monell, 436 U.S. at 691-92, 98 S.Ct. at 2036; Gomez, 148 S.W.3d at 478.

Official Custom, Policy or Practice

When analyzing a section 1983 claim against a municipality or governmental entity, the court must decide if the governmental entity promulgated “an official policy, practice, or custom,” which could subject it to section 1983 liability. Monell, 436 U.S. at 690-94, 98 S.Ct. at 2035-37. The Fifth Circuit has defined an “official policy” for the purposes of section 1983 liability to be either: (1) a policy statement, ordinance, regulation, or decision that is officially adopted and promulgated by the municipality’s law-making officers or by an official to whom the lawmakers have delegated policy-making authority; or (2) a persistent widespread practice of city officials or employees, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents municipal policy. Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir.1984).

The facts of this case do not present an “official policy” under these definitions. There is no constitutional requirement that municipalities provide jailers and law enforcement personnel with sophisticated medical training so that they will detect hidden medical problems. The Fifth Circuit has applied this principle to the detection of suicidal tendencies in pretrial detainees:

It is one thing to require a municipality to train its police officers to recognize and not ignore obvious medical needs of detainees with known, demonstrable and serious mental disorders. It is quite another to require as a constitutional minimum that a municipality train its officers to medically screen each pretrial detainee so that officers will unerringly detect suicidal tendencies. The latter requires the skills of an experienced medical professional with psychiatric training, an ability beyond that required of the average police officer by the due process clause. Burns v. City of Galveston, Texas, 905 F.2d 100, 104 (5th Cir.1990), disagreed with on other grounds, Hare, 74 F.3d at 633.

We believe that the same rationale applies to the pretrial detainee who is not forthcoming about his or her need for, or dependence upon, medication. The individual bears the responsibility for informing the jail personnel about his or her medical condition in a truthful manner. The County of El Paso, therefore, was not required to train its jailers how to recognize the ambiguous signs of drug dependency or drug overdose. While a more extensive medical examination might have revealed Dr. Miranda’s drug dependency, the County and its jailers were not constitutionally required to provide such a high standard of care. Moreover, it cannot be inferred that any additional training of or screening by the jail staff would have prevented Dr. Miranda’s seizure from his self-induced abuse of medication. At the time of his arrest, Dr. Miranda failed to identify the nature of his medical condition in a truthful manner. The jail personnel responded to the information provided to them by Dr. Miranda. It is unreasonable to require that the jail personnel ascertain when an individual does not disclose the extent of his or her drug dependency. The fact that the effects of his dependency did not manifest themselves until several hours after he had been taken into custody does not give rise to an action against the County.

Addressing Appellees’ claims that the EPCDF failed to provide Dr. Miranda proper medical care, the Court finds that as a matter of law the Defendant’s policies neither deprived Dr. Miranda of adequate medical assistance, nor violated the Fourteenth Amendment’s required level of care. Taken in its most favorable light, if all of the facts in Dr. Miranda’s Sixth Amended Original Petition are true, the Appellant did in fact provide Dr. Miranda with prompt medical care when jail personnel were informed of Dr. Miranda’s need for medication. The EPCDF provided Dr. Miranda with the opportunity to receive medical care as needed. When Dr. Miranda suffered his seizure during the late evening of March 2, 1997, the jail nurses responded to the medical emergency and immediately took action by contacting Dr. Block, moving Dr. Miranda to the jail clinic, administering medication as instructed by Dr. Block, and contacting EMS to transport Dr. Miranda to the hospital when the jail personnel determined he was not breathing. Based upon these facts, the Court finds as a matter of law that the Defendant’s policies neither deprived Dr. Miranda of adequate medical assistance, nor violated the Fourteenth Amendment’s required level of care. Any claims pertaining to insufficiency of the medical care provided may only be considered as a potential violation of state tort law or at most, ordinary negligence or medical malpractice. See Morris v. City of Alvin, Tex., 950 F.Supp. 804, 806-07 (S.D.Tex.1997).

We note that courts which have reviewed medical malpractice claims under the Eighth Amendment have recognized that the mere inadvertent failure to provide adequate medical care cannot be said to constitute “an unnecessary and wanton infliction of pain” or to be “repugnant to the conscience of mankind.” Thus, a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner. In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. It is only such indifference that can offend “evolving standards of decency” in violation of the Eighth Amendment. The United States Supreme Court and many of the federal courts of appeals are in agreement with this determination. All agree that mere allegations of malpractice do not state a claim, and while their terminology regarding what is sufficient varies, their results are not inconsistent with the standard of deliberate indifference. Estelle, 429 U.S. at 105-06, 97 S.Ct. at 292. See Page v. Sharpe, 487 F.2d 567, 569 (1st Cir.1973); Williams v. Vincent, 508 F.2d 541, 544 (2d Cir.1974) (uses the phrase “deliberate indifference”); Gittlemacker v. Prasse, 428 F.2d 1, 6 (3rd Cir.1970); Russell v. Sheffer, 528 F.2d 318 (4th Cir.1975); Newman v. Alabama, 503 F.2d 1320, 1330 n. 14 (5th Cir.1974), cert. denied, 421 U.S. 948, 95 S.Ct. 1680, 44 L.Ed.2d 102 (1975) (“callous indifference”); Westlake v. Lucas, 537 F.2d 857, 860 (6th Cir.1976) (“deliberate indifference”); Thomas v. Pate, 493 F.2d 151, 158 (7th Cir.1974); Wilbron v. Hutto, 509 F.2d 621, 622 (8th Cir.1975) (“deliberate indifference”); Tolbert v. Eyman, 434 F.2d 625, 626 (9th Cir.1970); Dewell v. Lawson, 489 F.2d 877, 881-82 (10th Cir.1974).

Appellees argued that the conduct or lack of action of several jail personnel establishes a showing of deliberate indifference to the needs of Dr. Miranda such as to create liability under the Texas Tort Claims Act. Appellees also included a long list of alleged unconstitutional acts ostensibly establishing the unconstitutional “custom, policy and usage” on the part of the County but which are, in substance, related to the medical treatment provided to Dr. Miranda while in the jail.

A plaintiff may establish municipal liability under section 1983 by proving a violation of constitutional rights by an action pursuant to official municipal policy or pursuant to misconduct so pervasive among non-policy-making employees of the municipality as to constitute a custom or usage with the force of law. Mo-nell, 436 U.S. at 691, 98 S.Ct. at 2036. Official policy is (1) a policy statement, ordinance, regulation, or decision that is officially adopted and promulgated by the law-making officers or by an official to whom the lawmakers have delegated policy-making authority; or (2) a persistent, widespread practice of officials or employees, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents municipal policy. Webster, 735 F.2d at 841. Actual or constructive knowledge of such custom must be attributable to the governing body of the municipality or to an official to whom that body had delegated policy-making authority, and actions of officers or employees do not create liability unless they execute official policy. Id. Official policy involves a deliberate choice to follow a course of action made from among various alternatives by an official who is determined by state law to have the final authority to establish governmental policy. Jane Doe A v. Special Sch. Dist. of St. Louis County, 901 F.2d 642, 645 (8th Cir.1990). Alternatively, “custom or usage” is demonstrated by (1) the existence of a continuing, widespread, persistent pattern of unconstitutional misconduct by the governmental entity’s employees; (2) deliberate indifference to or tacit authorization of such conduct by the governmental entity’s policymaking officials after notice to the officials of that misconduct; and (3) the plaintiffs injury by acts pursuant to the governmental entity’s custom. Id. at 646.

Deliberate Indifference

The standard of deliberate indifference is high. Alton v. Texas A & M University, 168 F.3d 196, 201 (5th Cir.1999) (citing Doe v. Dallas Indep. Sch. Dist., 153 F.3d 211, 218 (5th Cir.1998)). Actions and decisions by officials that are merely inept, erroneous, ineffective, or negligent do not amount to deliberate indifference and do not divest officials of qualified immunity. Id. To demonstrate deliberate indifference a plaintiff must show (1) a grave risk of harm, (2) the defendant’s actual or constructive knowledge of that risk, and (3) his or her failure to take easily available measures to address the risk. Camilo-Robles v. Hoyos, 151 F.3d 1, 7 (1st Cir.1998), cert. denied, Hoyos v. Camilo-Robles, 525 U.S. 1105, 119 S.Ct. 872, 142 L.Ed.2d 773 (1999) (citing Manarite v. City of Springfield, 957 F.2d 953, 956 (1st Cir.), cert. denied, 506 U.S. 837, 113 S.Ct. 113, 121 L.Ed.2d 70 (1992)).

EPCDF’s policies provided for numerous opportunities for Dr. Miranda to receive medical care or treatment while an inmate in its facility. During the booking procedure, any inmate that revealed a serious medical condition was to be interviewed by a member of the medical staff. Dr. Miranda, however, did not accurately describe his medical condition nor his need for or dependence upon medication. When a need for medication was brought to the attention of jail personnel, Dr. Miranda was taken to the jail clinic and interviewed. Dr. Miranda, however, presented an inaccurate description of his medical history and previous use of the medication Ativan. Based upon Dr. Miranda’s representations, the nurse on duty contacted Dr. Block who prescribed two milligrams of Ativan. Dr. Miranda received the Ativan on that day.

For some reason not reflected in the record, Dr. Miranda did not respond to the medication call out on Sunday night and did not receive his Ativan. We agree with Appellant that the fact that the nurse on duty called Dr. Miranda’s name twice and, when he did not respond, did not do anythmg further to msure that he received his medication, does not rise to the level of an unconstitutional custom, policy or practice. At most, the failure on the part of the nurse on duty to be more persistent in the pursuit of an inmate to insure that the inmate receives his or her medication is ordinary negligence.

As stated previously, to obtain relief pursuant to 42 U.S.C. § 1983, a plaintiff must prove two elements: (1) a deprivation of a right secured by the Constitution and laws of the United States, and (2) a deprivation of that right by the defendant acting under color of state law. West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988); Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978). A prison official’s deliberate indifference to a prisoner’s serious medical needs violates the Eighth Amendment. Estelle, 429 U.S. at 104, 97 S.Ct. at 291. The appropriate test for deliberate indifference is subjective recklessness, as used in the criminal-law sense. Farmer, 511 U.S. at 838-40, 114 5.Ct. 1970. The legal conclusion of deliberate indifference must rest on facts clearly evincing wanton actions on the part of defendants. Johnson v. Treen, 759 F.2d 1236, 1237 (5th Cir.1985). Evidence of sick call requests, examinations, diagnoses and medications may rebut an inmate’s claim of deliberate indifference. Banuelos v. McFarland, 41 F.3d 232, 235 (5th Cir.1995). See Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir.1991); Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir.1993). An inmate’s disagreement with the kind of medical treatment that he has received is insufficient as a matter of law to state an Eighth Amendment violation. Norton v. Dimazana, 122 F.3d 286, 291 (5th Cir.1997); Young v. Gray, 560 F.2d 201, 201 (5th Cir.1977). Federal courts will not inquire into the adequacy or sufficiency of medical care of state inmates unless prison officials appear to have abused the broad discretion which they possess in this area. Haskew v. Wainwright, 429 F.2d 525, 526 (5th Cir.1970); Parks v. Johnson County, No. 3:01-CV-1120-P, 2001 WL 1143275, at *1 (N.D.Tex. Sept. 18, 2001).

Although Appellees claim that Dr. Miranda needed additional or different treatment, such claims do not give rise to a cause of action under 42 U.S.C. § 1983. See, e.g., Walker v. Butler, 967 F.2d 176, 178 (5th Cir.1992) (holding that a medic’s decision to make an inmate walk to the hospital was not deliberately indifferent even though a later diagnosis revealed a broken ankle). Appellees’ allegations address the nature and timing of the treatment Dr. Miranda received, rather than any failure on the part of the County to provide medical care. According to Appel-lees’ allegations, the medical staff of the EPCDF may have been negligent in their treatment of Dr. Miranda but Appellees fail to state a claim against any person for deliberate indifference to his serious medical needs. See Parks, 2001 WL 1143275, at *2.

We must also consider whether the alleged unconstitutional conduct is directly attributable to El Paso County through official action or imprimatur. In other words, liability arises if a deprivation of constitutional rights was inflicted pursuant to acts which the municipality has officially sanctioned or ordered. Pembaur, 475 U.S. at 480, 106 S.Ct. at 1298. This analysis requires a determination of (1) a policymaker; (2) an official policy; and (3) a violation of constitutional rights whose moving force was the policy or custom. These elements distinguish individual violations by employees from those of the governmental entity. Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir.2001). The line between official policy and independent action of employees is often elusive. McMillian v. Johnson, 88 F.3d 1573, 1577 (11th Cir.1996).

Supervisory officials and governmental entities such as cities and counties cannot be held vicariously liable for their subordinates’ or employees’ actions under section 1983. See Monell, 436 U.S. at 691-95, 98 S.Ct. at 2036-38; Bigford v. Taylor, 834 F.2d 1213, 1220 (5th Cir.), cert. denied, 488 U.S. 851, 109 S.Ct. 135, 102 L.Ed.2d 108 (1988); Thibodeaux v. Arceneaux, 768 F.2d 737, 739 (5th Cir.1985) (per curiam). Supervisory officials may be held liable only if they (1) affirmatively participate in acts that cause constitutional deprivation, or (2) implement unconstitutional policies that causally result in plaintiffs injury. See Thompkins v. Belt, 828 F.2d 298, 303 (5th Cir.1987); see also Grandstaff v. City of Borger, 767 F.2d 161, 169—70 (5th Cir.1985), cert. denied, 480 U.S. 916, 107 S.Ct. 1369, 94 L.Ed.2d 686 (1987). See also Parks, 2001 WL 1143275, at *3.

Policymaker

State law determines whether a particular official has final policy-making authority. Praprotnik, 485 U.S. at 123, 108 S.Ct. at 924. We must look to state and local law, as well as custom and usage having the force of law. Id. at 125 n. 1, 108 S.Ct. at 925 n. 1. Identifying final policymakers may be a difficult task, but state law always should direct us “to some official or body that has the responsibility for making law or setting policy in any given area of a local government’s business.” Id. at 125, 108 S.Ct. at 925. We may not assume that final policy-making authority lies in some entity other than that in which state law places it. Id. at 126, 108 S.Ct. at 925. To the contrary, we must respect state and local allocation of policy-making authority. Id. at 131, 108 S.Ct. at 928.

Two more principles guide our inquiry. First, “the authority to make municipal policy is necessarily the authority to make final policy.” Id. at 127, 108 S.Ct. at 926. Second, the alleged policymaker must have final policy-making authority with respect to the action alleged to have caused the particular constitutional or statutory violation. Id. at 123, 108 S.Ct. at 924; Jett, 491 U.S. at 737, 109 S.Ct. at 2724. An official or entity may be a final policymaker with respect to some actions but not others. See Pembaur, 475 U.S. at 484 n. 12, 106 S.Ct. at 1300 n. 12. With respect to a particular action, more than one official or body may be a final policymaker. In other words, final policy-making authority may be shared. Praprotnik, 485 U.S. at 126, 108 S.Ct. at 925.

Our search for those responsible for setting EPCDF policy leads us to a review of state law. The Texas Local Government Code provides that “[t]he sheriff of each county is the keeper of the county jail. The sheriff shall safely keep all prisoners committed to the jail by a lawful authority, subject to an order of the proper court.” Tex. Log. Gov’t Code Ann. § 351.041(a) (Vernon 1999).

A county cannot be held liable solely because it employs a tortfeasor. See Mo-nell, 436 U.S. at 691, 98 S.Ct. at 2036. Rather, only when the execution of a county’s policies or its customs deprives an individual of constitutional or federal rights, does liability under section 1983 result. See id. at 694, 98 S.Ct. at 2037-38. The sheriff is without question the county’s final policymaker in the area of law enforcement. Thus, a governmental entity like El Paso County can be held accountable for the illegal or unconstitutional actions of the Sheriff of El Paso County. He clearly set the goals for the County and determined how those goals would be achieved. See Colle v. Brazos County, Tex., 981 F.2d 237, 244 (5th Cir.1993).

Plaintiffs’ detailed Sixth Amended Petition identifies a long list of complaints regarding the conduct of EPCDF employees and the medical personnel assigned to the jail. The allegations, taken as a whole however, do not complain of a policy that establishes unconstitutional treatment of the decedent and, at most, amount to a series of specific complaints of negligence. An official policy is “[a] policy statement, ordinance, regulation, or decision that is officially adopted and promulgated by the municipality’s lawmaking officers or by an official to whom the lawmakers have delegated policy-making authority.” Webster, 735 F.2d at 841. A plaintiff may not infer a policy merely because harm resulted from some interaction with a governmental entity. See City of Oklahoma City v. Tuttle, 471 U.S. 808, 820-24, 105 S.Ct. 2427, 2434-37, 85 L.Ed.2d 791 (1985) (holding as improper jury instructions that permitted jurors to infer the existence of improper policies from a single unconstitutional act). For example, even though an arresting police officer uses excessive force, it does not necessarily follow that the city adopted a policy endorsing such acts. Cf. id. Nevertheless, if a policy exists and is violated to cause a constitutional violation, a single application of that policy can result in liability. Id. at 822, 105 S.Ct. at 2435-36.

In this case, we need find no evidence that any of the conduct complained about reflects the deliberately indifferent decision of a policymaker for the County of El Paso which results in an official custom, policy or practice that violates the constitutional rights of the pretrial detainee, like Dr. Miranda, because of that policy.

As held in the case of Rhyne v. Henderson County:

A municipal “policy” must be a deliberate and conscious choice by a municipality’s policy-maker. While the municipal policy-maker’s failure to adopt a precaution can be the basis for § 1983 liability, such omission must amount to an intentional choice, not merely an unintentionally negligent oversight. Rhyne v. Henderson County, 973 F.2d 386, 392 (5th Cir.1992) (citations omitted).

The Supreme Court has held that municipal failure to adopt a policy does not constitute such an intentional choice unless it can be said to have been “deliberately indifferent.” City of Canton Ohio v. Harris, 489 U.S. 378, 390, 109 S.Ct. 1197, 1205, 103 L.Ed.2d 412 (1989). A failure to adopt a policy can be deliberately indifferent when it is obvious that the likely consequences of not adopting a policy will be deprivation of rights. Rhyne, 973 F.2d at 392.

As Rhyne holds, the ultimate jury question in this case is whether El Paso County adopted policies creating an obvious risk that pretrial detainees’ constitutional rights would be violated. The facts pleaded by Appellees do not support an inference that unconstitutional County policies were the “moving force” behind the situation that led to Dr. Miranda’s death, the facts as presently pleaded and proved at trial show only that the possibility of negligence regarding the medical care provided to Dr. Miranda exists. Monell, 436 U.S. at 691, 98 S.Ct. at 2036; Colle v. Brazos County, Tex., 981 F.2d 237, 244-46 (5th Cir.1993).

Though we believe that the conduct of Dr. Harold Block arguably was negligent, it amounts to, at most, medical negligence with regard' to his treatment of Dr. Miranda. Nothing in the record shows his conduct rises to the level of deliberate indifference contemplated by the constitutional limitations under the Fourteenth Amendment. Further, Appellees present little evidence that suggests that Dr. Harold Block was the policymaker for the El Paso County Detention Facility. Appel-lees had the burden of establishing that the policymaker was other than the Sheriff for the County of El Paso and they failed to meet that burden. We agree that Texas state law provides that the Sheriff of each county is the keeper of the county jail and recognize that the Sheriff is the policymaker for the jail.

Appellees cite the contract between the County and Dr. Block as evidence that Dr. Block was the policymaker for the jail with regard to medical treatment provided to inmates. When reviewing the contract, we note that the document includes several paragraphs describing the duties of the Medical Director:

The MEDICAL DIRECTOR agrees to the following:
1.CONDUCT-The MEDICAL DIRECTOR agrees to be bound by the rules applicable to the El Paso County Detention Facility as set out in the Texas Commission on Jail Standards while performing the services for the El Paso County Detention Facility.
THE MEDICAL DIRECTOR AGREES TO:
A. Report to the Sheriff or his designated representative.
B. Assist the FACILITY in meeting its duties to inmates as stated in the Policies and Procedures Manual for the FACILITY. He shall also assist in meeting such duties as may be imposed by Federal and State Laws and Regulations.
C. Assist the FACILITY in developing and implementing policies that will assure high quality medical and nursing care. He shall also provide and set specific protocols, policies and procedures concerning the following:
1. Emergency treatment of inmates;
2. Prescription medicines;
3. Special diets; and
4. Procedure for routine care of inmates.
D. Approve and supervise all medical procedures conducted in the FACILITY including the following;
1. Receiving screening procedures;
3. Referrals of seriously ill inmates;
4. Provision of non-emergency medical services;
5. Obtaining emergency medical and dental services;
11. Detoxification;
13. Policy concerning medication administration;
15. The work of qualified medical personnel;
16. Deciding the emergency nature of illness or injury;
IT IS FURTHER AGREED THAT:
A. No regulation of the FACILITY shall involve the MEDICAL DIRECTOR in any aspect of the correctional or disciplinary procedures which is not related to genuine medical concerns, or which would unduly restrict or compromise the medical judgement of the MEDICAL DIRECTOR.
B. In situations requiring emergency medical care, custody procedures shall yield to the medical needs of the inmates as determined by the MEDICAL DIRECTOR. The process of moving inmates to a facility appropriate to his health needs shall not be unreasonably slowed by the clearance procedures.

We read the contract as establishing that the Medical Director is authorized to provide medical care to the inmates housed in the EPCDF but the Medical Director must ultimately answer to the Sheriff with regard to overall jail policies. Clearly, the Medical Director is expected to assist the Facility in developing and implementing policies that will assure high quality medical and nursing care. The Medical Director must, however, report directly to the Sheriff. Most important, we recognize that under Texas law, only an individual licensed as a physician by the state may practice medicine in the state. In providing for the availability of medical care for Dr. Miranda, the Sheriff established the policy under which Dr. Block was contracted with to practice medicine and provide medical care to the inmates, but ultimately, the Sheriff was the policymaker for the jail. The contract reflects a need for overall control of the jail and establishment of general policies and procedures balanced by the need for medical care of the inmates. Nothing presented by the Appellees suggests that a County policy to deny inmates medication or medical care exists. Further, there is no evidence in the record that suggests that any policy of the County provides that any patient suffering from a seizure disorder is deliberately denied medication and indifferently provided medical care. To the contrary, the evidence submitted establishes that medical care was provided to Dr. Miranda in a timely manner. Any of the arguments presented by Appellees regarding any of the specific actions of negligence related to the treatment provided to Dr. Miranda amount to no more than medical malpractice or ordinary negligence on the part of Dr. Block. Dr. Block’s authority was limited to providing medical care to the inmates.

We also note that the Appellees’ Sixth Amended Petition contains a lengthy list of complaints that meld Appellees’ allegations about the treatment of Dr. Miranda into a series of complaints based on negligence which Appellees contend establishes a custom, policy or practice of constitutional dimension. It is tragic that Dr. Miranda lost his life while incarcerated in the EPCDF but the evidence presented and the pleadings as filed do not establish that the acts of Dr. Block amount to more than medical negligence. As such, they have failed to establish a constitutional violation by an individual acting under color of state law.

Y. FAILURE TO TRAIN

Appellees have also argued that the Defendants were liable for failing to train EPCDF personnel by the County’s “[flailing to train jail personnel and medical personnel how to identify and properly assess and treat seizure patients, especially in light of the voluminous number of seizures in the jail.”

To succeed on a failure-to-train claim, a plaintiff must establish (1) inadequate training procedures, (2) that inadequate training procedures caused the injury, and (3) deliberate indifference of municipal policymakers. Pineda v. City of Houston, 291 F.3d 325, 332 (5th Cir.2002). The evidence submitted by Appel-lees with respect to EPCDF personnel’s responses to the seizure Dr. Miranda suffered while in EPCDF custody did not establish that a lack of training contributed to his injuries. None of the evidence presented reflects a custom, policy or practice of exhibiting deliberate indifference with regard to the response of jail personnel to individuals suffering from seizures. To the contrary, the evidence reflects that Dr. Miranda was promptly attended to upon discovery of his seizure and immediately provided with medical attention. It is a tragedy that he did not survive, but medical treatment was not denied to him. See Garcia v. County of El Paso, 79 Fed.Appx. 667, 669-70 (5th Cir.2003).

For that reason, we sustain Appellant’s Issue One, reverse the judgment of the trial court, and render a take-nothing judgment in favor of Appellant. Because this issue disposes of the case, we do not reach Appellant’s remaining Issues Two through Six.

VI. COSTS

Following the issuance of our original opinion and judgment, which provided only for the recovery of the County’s costs of appeal, the County filed a motion to recover costs in the trial court in the amount of $4,972.63 and it supported that request by attaching several invoices to the motion. The County also seeks recovery of $15,544.39 as the costs on appeal. Appellees object to the motion on several grounds including that the County is not entitled to recover all of the costs identified in the motion and that the amount of the costs on appeal and in the trial court should be tabulated by the clerks of the respective courts.

Costs, within the meaning of Rules 125 through 149 of the Rules of Civil Procedure and Rule 43.4 of the Rules of Appellate Procedure, are those items in the clerk’s bill of costs. Pitts v. Dallas County Bail Bond Board, 23 S.W.3d 407, 417 (Tex.App.-Amarillo 2000, pet. denied). As a general matter, courts dictate which party is entitled to collect costs and the inclusion of specific items taxed as costs is a ministerial duty performed by the clerk. Id. We agree with Appellees that when responding to a request for an award of costs, a court’s role is to determine which party is to bear the costs of court, not to adjudicate the correctness of specific items. See id., citing Operation Rescue-National v. Planned Parenthood of Houston and Southeast Texas, Inc., 937 S.W.2d 60, 87 (Tex.App.-Houston [14th Dist.] 1996), modified in Operation Rescue, 975 S.W.2d 546 (Tex.1998); Reaugh v. McCol-lum Exploration Co., 140 Tex. 322, 167 S.W.2d 727, 728 (1943). Correction of errors in specific items of costs is sought by a motion to re-tax costs. Id.; Reaugh, 167 S.W.2d at 728. Such a motion should be filed in the court where the item of costs accrued. Reaugh, 167 S.W.2d at 728.

Accordingly, we grant the County’s motion to recover costs but only to the extent that we award recovery of both the costs of appeal and in the court below. We deny the portion of the motion which asks for recovery of a specified amount of costs on appeal or in the trial court. When our mandate issues, the costs of appeal will be determined in the usual manner by the clerk of the court and a bill of costs will be attached to the mandate. See Tex.R.App. P. 18.5, 43.4. If a party believes that the bill of costs is erroneous, the Court will entertain a motion to re-tax the appellate costs. Likewise, if a party believes that the clerk of the trial court has not accurately determined the trial court costs pursuant to Texas Rule of Civil Procedure 131, the appropriate remedy is to file a motion in the trial court to re-tax those costs.

      . County of El Paso v. Dorado, 33 S.W.3d 44 (Tex.App.-El Paso 2000, no pet.).

      . County of El Paso v. Dorado, No. 08-01-00182-CV, 2002 WL 1732599, at *1 (Tex.App.-El Paso Jul. 25, 2002, no pet.).

      . This is sometimes referred to as a "failure to find” or a "non-finding.”

      . The Eighth Amendment provides that excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. U.S. Const, amend VIII.

      . Examples of deliberate indifference noted in Estelle include Williams, 508 F.2d at 544 (prison surgeon discarded the severed portion of inmate’s ear in front of him and stitched the stump, explaining to the inmate that he did not need his ear) and Martinez v. Mancusi, 443 F.2d 921 (2d Cir.1970) (prison doctor refused to administer prescribed pain killer and rendered inmate's leg surgery unsuccessful by requiring the inmate to stand in violation of contrary instructions from his surgeon). Estelle, 429 U.S. at 105 n. 10, 97 S.Ct. at 291 n. 10.

      . In Smith v. Wade, 461 U.S. 30, 39 n. 8, 103 S.Ct. 1625, 1632 n. 8, 75 L.Ed.2d 632 (1983), the court approved the following definition of wanton:
      Wanton means reckless-without regard to the rights of others.... Wantonly means causelessly, without restraint, and in reckless disregard of the rights of others. Wantonness is defined as alicentious act of one man towards the person of another, without regard to his rights; it has also been defined as the conscious failure by one charged with a duty to exercise due care and diligence to prevent an injury after the discovery of the peril, or under circumstances where he is charged with a knowledge of such peril, and being conscious of the inevitable or probable results of such failure. 30 American and English Encyclopedia of Law 2-4 (2d ed. 905) (footnotes omitted).

      . "It has long been recognized that, in Texas, the county sheriff is the county's final policy maker in the area of law enforcement” by virtue of the sheriff’s election to office. Turner v. Upton County, 915 F.2d 133, 136 (5th Cir.1990) (citing Familias Unidas v. Briscoe, 619 F.2d 391, 404 (5th Cir.1980)).

      . Tex. Loc. Gov't Code Ann. § 351.041 (Vernon 1999).

      .
      (12) "Physician” means a person licensed to practice medicine in this state.
      (13) "Practicing medicine” means the diagnosis, treatment, or offer to treat a mental or physical disease or disorder or a physical deformity or injury by any system or method, or the attempt to effect cures of those conditions, by a person who:
      (A) publicly professes to be a physician or surgeon; 4)27
      Tex. Occ.Code Ann. § 151.002(a) (Vernon 2004).
      Legislative Finding:
      The legislature finds that:
      (1) the practice of medicine is a privilege and not a natural right of individuals and as a matter of public policy it is necessary to protect the public interest through enactment of this subtitle to regulate the granting of that privilege and its subsequent use and control; and
      (2) the board should remain the primary means of licensing, regulating, and disciplining physicians.
      Tex Occ.Code Ann. § 151.003 (Vernon 2004).
      A person may not practice medicine in this state unless the person holds a license issued under this subtitle.
      Tex. Occ.Code Ann. § 155.001 (Vernon 2004).


source: Caselaw Access Project

author: Justice ROSS.

license: Public Domain

text:
    In the Interest of R.M., A Child.
    No. 06-05-00053-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted Nov. 30, 2005.
    Decided Dec. 6, 2005.

      Ernest Lee McCarty, Paris, pro se.
    Charles W. Butler, Bonham, for appel-lee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Justice ROSS.

Ernest McCarty appeals from the termination of his parental rights to R.M., a child now seven years old. McCarty contends the trial court erred in terminating his parental rights because the evidence was legally insufficient to justify termination and erred in finding that termination was in the best interest of the child. We overrule these contentions and affirm the judgment.

Factual Background

R.M.’s great-aunt and uncle, Donna and Mike Mosley, filed the underlying petition to terminate McCarty’s parental rights and to adopt R.M. R.M. was taken to the Mosleys by a relative when the child was six to eight weeks old. She has lived in their home continuously since that time. They have been the sole providers for her care and daily needs. The Mosleys obtained joint conservatorship of R.M. when she was two years old.

McCarty saw R.M. once or twice a month when she was an infant and has seen her during more than one Christmas holiday season. However, he has seen her only sporadically in the last few years. McCarty never sent any money or other support to the Mosleys, and they did not expect any. However, McCarty testified he has given clothes and gifts to R.M.

Standard of Review

The standard of review in parental rights’ termination proceedings is clear and convincing evidence. Tex. Fam.Code Ann. § 161.001 (Vernon Supp.2005); In re J.F.C., 96 S.W.3d 256, 263 (Tex.2002). The evidence is clear and convincing when the proof is such that it produces in the mind of the trier of fact a firm belief or conviction of the truth of the allegations sought to be established by the state. In re C.H., 89 S.W.3d 17, 25-26 (Tex.2002).

In reviewing the legal sufficiency of the evidence, we view all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true. J.F.C., 96 S.W.3d at 266; C.H., 89 S.W.3d at 25. Looking at the evidence in the light most favorable to the judgment means we must assume the fact-finder resolved disputed facts in favor of its finding if a reasonable fact-finder could do so. A corollary to this requirement is that a court should disregard all evidence that a reasonable fact-finder could have disbelieved or found to have been incredible. J.F.C., 96 S.W.3d at 266.

The fundamental interest in parental rights’ termination cases is to protect the best interest of the child. Tex. Fam.Code Ann. § 153.002 (Vernon 2002); In re B.L.D., 113 S.W.3d 340, 353-54 (Tex.2003). A court may order involuntary termination only if the court finds that: (1) a parent has committed a predicate act or omission harmful to the child, and (2) termination is in the best interest of the child. Tex. Fam.Code Ann. § 161.001; B.L.D., 113 S.W.3d at 353-54. This interest is aligned with another of the child’s interests — an interest in a final decision on termination so that adoption to a stable home or return to the parents is not unduly prolonged. In re M.S., 115 S.W.3d 534, 547-49 (Tex.2003); In re R.I.S., 120 S.W.3d 502, 503 (Tex.App.-Texarkana 2003, no pet.).

The Family Code provides several situations in which parental rights may be involuntarily terminated. See Tex. Fam.Code Ann. § 161.001. Reviewing the trial court’s findings of fact and conclusions of law, it appears the trial court could have ordered termination based on one of four situations.

Section 161.001(1)(A)

This section allows involuntary termination where the parent has voluntarily left the child alone or in the possession of another not the parent and expressed an intent not to return. Tex. Fam.Code Ann. § 161.001(1)(A). The record does not support termination under this provision.

Undisputed evidence was presented at trial McCarty had visited R.M. and had called on at least one occasion to inquire about R.M. Further, no evidence was presented McCarty made an affirmative expression of his intent not to return.

Section 161.001(1)(B) & (C)

Section 161.001(1)(B) allows involuntary termination where the parent has voluntarily left the child alone or in the possession of another not the parent without expressing an intent to return, without providing for the adequate support of the child, and remained away for a period of at least three months. Section 161.001(1)(C) allows involuntary termination where the parent has voluntarily left the child alone or in the possession of another without providing adequate support of the child and remained away for a period of at least six months. A common element in each provision is that the parent must have failed to provide adequate support of the child. We hold that termination cannot be supported under either of these provisions because the evidence is legally insufficient to prove McCarty failed to provide adequate support.

The Texas Supreme Court has held that a parent is only required to make arrangements for adequate support of the child, not personally send support. Holick v. Smith, 685 S.W.2d 18, 21 (Tex.1985). Hoi-ick, unable to properly care for her child, took the child to the Smiths. Over the next six months, she never visited and called only once. She did not send any form of support to the Smiths and was not expected to do so. Id. at 19. The court held that termination was not authorized because Holiek was only required to make arrangements for the support of her child rather than personally support the child.

McCarty did not personally deliver R.M. to the Mosleys. It also appears he did not initiate the arrangement whereby the Mos-leys would care for R.M. However, McCarty has been aware of the arrangement at all times and agreed to the arrangement. He testified he liked the Mos-leys and appreciated what they had done for his child. In 2000, McCarty agreed to allow the Mosleys to become joint managing conservators of R.M.

It should not be significant whether a parent physically delivers their child to someone who will care for the child. Rather, the controlling issue should be whether the parent was aware of, consented to, and participated in the arrangement for the child’s support. At all relevant times, McCarty has consented to the Mos-leys’ care of R.M. By agreeing to the joint conservatorship, he allowed the Mos-leys to better provide for R.M. The evidence is undisputed that the Mosleys have done an excellent job of providing for R.M.

Considering the facts of this case, we hold that the evidence is insufficient to find that McCarty did not arrange for the adequate support of R.M. Applying the holding in Holiek, this means the evidence is necessarily insufficient to find that McCarty had not provided for the adequate support of R.M. Accordingly, termination cannot be supported under either Section 161.001(1)(B) or (C).

Section 161.00H1XF)

Section 161.001(1)(F) allows involuntary termination where the parent has failed to support the child in accordance with the parent’s ability during a period of one year ending within six months of the date of the filing of the petition. Considering only the evidence supporting the finding, there was legally sufficient evidence to support a finding under Section 161.001(1)(F).

That section requires a showing: (1) that McCarty faded to support the child in accordance with his ability and (2) that his failure to support occurred during a period of one year ending within six months of the date of the filing of the petition. Tex. Fam.Code Ann. § 161.001(1)(F). One year means twelve consecutive months, and the ability to pay support must exist each month during the twelve-month period. In re Z.W.C., 856 S.W.2d 281, 283 (Tex.App.-Fort Worth 1993, no writ); Craddock v. Worley, 601 S.W.2d 445, 446 (Tex.Civ.App.-Dallas 1980, no writ); Brokenleg v. Butts, 559 S.W.2d 853, 856 (Tex.Civ.App.-El Paso 1977, writ ref'd n.r.e.). The Mosleys filed their original petition December 6, 2004, so we must consider any consecutive one-year period that would have begun between June 6, 2003 and December 6, 2003.

The record shows that, before November 10, 2004, McCarty worked at Kimberly Clark making $8.00 an hour. McCarty testified he had worked at various other jobs, including work as a truck driver for a concrete company. McCarty also testified that he paid child support for two other children totaling $400.00 per month and that he was current on those payments.

McCarty’s testimony that he had worked in the twelve months before November 10, 2004, and his ability to keep current with his other child support obligations show he had a source of income during the eighteen-month period in question. This evidence, when combined with the fact McCarty never sent any money or other support to the Mosleys, is legally sufficient proof McCarty failed to provide for R.M. according to his ability. Accordingly, we hold termination was proper under Section 161.001(1)(F).

In what amounts to a separate attack on the sufficiency of the evidence, McCarty contends the trial court’s ruling was founded on a racial and cultural bias. There is no evidence in the record to support this contention. As discussed above, legally sufficient evidence exists to support the trial court’s decision. Accordingly, we find this complaint is without merit.

Best Interest of the Child

This portion of our review proceeds from the policy-based presumption that the best interest of a child is usually served by preserving the parent-child relationship. In re G.M., 596 S.W.2d 846, 847 (Tex.1980); see Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex.1976). In determining the child’s best interest, the fact-finder may consider the current and future physical and emotional needs of the child, the current and future physical and emotional danger the child may confront with his or her parent, and the parental abilities of the individual seeking custody. The case of Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex.1976), sets out the following list of nonexclusive factors to consider when determining the best interest of a child: (1) the desires of the child; (2) the emotional and physical needs of the child now and in the future; (3) the emotional and physical danger to the child now and in the future; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist these individuals to promote the best interest of the child; (6) the plans for the child by these individuals or by the agency seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions of the parent that may indicate that the existing parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent.

(1) The desires of the child.

Although R.M. did not testify at trial, the social study report prepared for the trial court states that R.M. wants to be adopted by the Mosleys.

(2) The emotional and physical needs of the child now and in the future.

There is no evidence in the record concerning this factor.

(3) The emotional and physical danger to the child now and in the future.

R.M. has lived with the Mosleys for all but two months of her life. Certainly, an emotional strain would be caused if the managing conservatorship was changed to McCarty and the child was required to leave the home she has known for more than seven years.

(4) The parental abilities of the individuals seeking custody.

There is extensive evidence in the record the Mosleys are good parents. They successfully raised two of their own children, now adults. McCarty agrees the Mosleys have done an excellent job of raising R.M. There is little evidence in the record as to McCarty’s parental abilities. He also has two other children.

(5) The programs available to assist these individuals to promote the best interest of the child.

There is no evidence in the record concerning this factor.

(6) The plans for the child by these individuals or by the agency seeking custody.

The Mosleys testified to their desire and ability to continue raising R.M. as they have done for the past seven years. At trial, McCarty testified he had no dispute with the Mosleys’ continued custody of R.M.

(7) The stability of the home or proposed placement.

R.M. has lived with the Mosleys virtually all of her life. The record shows the Mosleys had their home built to meet their needs while raising R.M. The social study prepared for the trial court found the Mos-leys had created a loving and safe environment for R.M. The record shows that McCarty was incarcerated at the time of trial and has been incarcerated previously. McCarty testified at trial that, when he was released from jail, his girlfriend had a stable home which R.M. could visit.

(8) The acts or omissions of the parent that may indicate that the existing parent-child relationship is not a proper one.

This factor has been fully discussed above, including McCarty’s infrequent visits with R.M. and his failure to support her according to his ability.

(9) Any excuse for the acts or omissions of the parent.

McCarty’s visits with R.M. were always arranged through her mother. Apparently, McCarty had a hard time finding R.M.’s mother as she moved frequently from place to place. This made it difficult for him to visit with R.M. on a regular basis. The only explanation McCarty offers for not sending support to the Mosleys for the care of R.M. is that they never asked him to do so.

Conclusion

It is undisputed McCarty never provided any funds for the support of R.M. It is also undisputed he had some source of income with which to do so. Further, the evidence clearly shows that his failure to provide for R.M. according to his ability occurred over a period of more than a year ending within six months of the date of the filing of the petition.

Under these facts, we determine that there is clear and convincing evidence to support the termination, and we also conclude that termination was in the child’s best interest.

We affirm the judgment.

      . The "in accordance with the parent's ability” language in subsection (F) is not found in subsections (B) or (C), the latter two of which require "providing adequate support.” Therefore, the court's interpretation of subsection (C) in Holick, 685 S.W.2d 18, which held that merely making arrangements for the child’s support is all that is required to meet the "providing adequate support” requirement, is not controlling in a subsection (F) analysis.


author: Justice CARTER.

text:
    Lonnie L. TUCKER and Kerry Hartless, Appellants, v. ALLSTATE TEXAS LLOYDS INSURANCE COMPANY, Appellee.
    No. 06-05-00086-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted Nov. 23, 2005.
    Decided Dec. 6, 2005.

      Jerry D. Conner, Houston, for appellants.
    Roy L. Stacy, Pamela J. Touchstone, Stacy & Conder, LLP, Dallas, for appellee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Justice CARTER.

Lonnie L. Tucker and Kerry Hartless appeal from a summary judgment rendered in favor of Allstate Texas Lloyds Insurance Company, based on Allstate’s position that it had no coverage for an injury to Hartless. In short, the summary judgment evidence shows that the two had moved Tucker’s home-built light plane onto a set of movable scales to weigh it— just out of curiosity — and while finishing lining up one of the main wheels, Tucker tipped the plane onto its nose, pinning Hartless under the propeller. Hartless sought to recover from Tucker; Tucker called on Allstate, who provided his homeowner’s insurance, to defend him. Allstate does not contend that coverage would not exist, but takes the position that an exclusionary clause prevents recovery.

Procedurally, the insurer sought a declaratory judgment specifying its rights and responsibilities under the terms of the policy, arguing that it had no duty to defend or cover the claim.

Allstate filed a motion for summary judgment, which was granted. Tucker’s motion for summary judgment was denied. Tucker and Hartless contend that the court erred by granting summary judgment because Allstate failed to establish as a matter of law that it did not have a duty to defend. We agree.

In its motion for summary judgment, Allstate took the position that the injury was not covered under the “aircraft” exclusion because it “arose out of’ the ownership, loading, maintenance, and/or use of Tucker’s airplane. It asked the trial court to hold that coverage was excluded and that it had no duty to either defend or to indemnify. The trial court granted the motion.

As a general rule, the insurer is obligated to defend if there is, potentially, an action alleged within the policy coverage, even if the allegations do not clearly show there is coverage. Nat’l Union Fire Ins. Co. v. Merchants Fast Motor Lines, Inc., 939 S.W.2d 139, 141 (Tex.1997); Heyden Newport Chem. Corp. v. S. Gen. Ins. Co., 387 S.W.2d 22, 26 (Tex.1965).

Thus, the correctness of the judgment depends on the meaning of the policy exclusion, and its application to the alleged facts that resulted in the accident as shown by the pleadings, and the attached evidence. The exclusion is reproduced in whole.

1. Coverage C (Personal Liability) and Coverage D (Medical Payments to Others) do not apply to:
h. bodily injury or property damaye arising out of the ownership, maintenance, operation, use, loading or unloading of aircraft:
Aircraft means any device used or designed for flight, except model or hobby aircraft not used or designed to carry people or cargo.

The evidence shows that the two friends, who own similar aircraft, were aircraft aficionados, and while they were at the airport where their aircrafts were stored, they began talking about the weight of the planes. Since a set of balance scales was in one of the hangars, they picked the scales up and moved them over to Tucker’s airplane first, and slid one beneath each of the wheels. The scales were under the wheels, but while Tucker was positioning one scale to center it, he pulled on one side and the airplane nosed over on top of them both, pinning Hartless under the propeller.

Duty to Defend

A liability insurer is obligated to defend a suit if the facts alleged in the pleadings would give rise to any claim within the coverage of the policy. Utica Nat'l Ins. Co. v. Am. Indem. Co., 141 S.W.3d 198, 201 (Tex.2004). An insurer’s duty to defend is determined solely by the allegations in the pleadings and the language of the insurance policy. King v. Dallas Fire Ins. Co., 85 S.W.3d 185, 187 (Tex.2002). The insurer bears the burden to show that a policy exclusion applies, and courts adopt the insured’s construction of an exclusion whenever it is reasonable, even where the construction urged by the insurer appears to be more reasonable. Utica Nat’l Ins. Co., 141 S.W.3d at 202; Altivia Corp. v. Greenwich Ins. Co., 161 S.W.3d 52, 54 (Tex.App.-Houston [14th Dist.] 2004, no pet.).

Even though this is a summary judgment, because of the nature of the declaratory relief sought, a different standard of review is involved than in the normal summary judgment appeal. See Utica Lloyd’s of Tex. v. Sitech Eng’g Corp., 38 S.W.3d 260, 263 (Tex.App.-Texarkana 2001, no pet.). Whether an insurer in a liability policy is obligated to defend the insured is a question of law to be decided by the court. State Farm Lloyds v. Kessler, 932 S.W.2d 732, 735 (Tex.App.Fort Worth 1996, writ denied). In determining whether the insurer is obligated to defend the insured, we are to use the eight corners rule. Nat’l Union Fire Ins. Co., 939 S.W.2d at 141. The eight corners rule compares the provisions within the four corners of the policy with the factual allegations contained within the four corners of the plaintiffs pleadings (in the underlying lawsuit) to determine whether any claim alleged in the pleadings is within the coverage of the policy. Id.

In this case, Hartless’s petition is attached as an exhibit to Allstate’s motion for summary judgment. It contains no specifics about the nature of the claimed injury, the location of the injury, the way the injury occurred, or any other matter. The petition alleges Hartless suffered injuries November 23, 2002, as a result of Tucker’s negligence. Allstate acknowledges these allegations trigger the homeowner’s policy and suggests the focus of the case is on the policy exclusions.

We have previously acknowledged that, where the terms of the policy are ambiguous, or where the petition in the underlying suit does not contain factual allegations sufficient to enable the court to determine whether the claims are within the policy coverage, the court may consider extrinsic evidence to assist it in making the determination. Utica Lloyd’s of Tex., 38 S.W.3d at 263; Kessler, 932 S.W.2d at 736; State Farm Fire & Cas. Co. v. Wade, 827 S.W.2d 448, 450 (Tex.App.-Corpus Christi 1992, writ denied). Some courts have recognized that extrinsic evidence is allowed in very limited circumstances, including: (1) whether a person has been excluded from coverage, (2) whether the property in the suit has been excluded from any coverage, and (3) whether the policy exists. See Fielder Road Baptist Church v. Guideone Elite Ins. Co., 139 S.W.3d 384, 388 (Tex.-App.-Fort Worth 2004, pet. granted).

Here, both parties have urged that we consider the evidence presented to the trial court. Thus, in this instance, we will review the evidence that was before the trial court at the time that it made its determination and apply that information to our review of the policy to determine whether the court correctly determined Allstate had no duty to defend.

When interpreting the terms of an insurance contract, we follow the general rules of contract construction. State Farm Life Ins. Co. v. Beaston, 907 S.W.2d 430, 433 (Tex.1995). Our primary concern is to ascertain the true intent of the parties as expressed in the written contract. Nat’l Union Fire Ins. Co. v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex.1995); Vincent v. Bank of Am., N.A., 109 S.W.3d 856, 866 (Tex.App.-Dallas 2003, pet. denied).

Exclusionary clauses acting as limitations on liability are strictly construed against the insurer and in favor of the insured. CBI Indus., Inc., 907 S.W.2d at 520; Vincent, 109 S.W.3d at 866. We are to adopt the construction of an exclusionary clause urged by the insured so long as that construction is not unreasonable, even if the construction urged by the insurer appears to be more reasonable or a more accurate reflection of the parties’ intent. Utica Nat’l Ins. Co., 141 S.W.3d at 202.

Ownership

It is clear from the summary judgment evidence that Tucker owned the aircraft. Allstate has made no argument to suggest how a personal injury could “arise from” his ownership of the aircraft, and we perceive no way in which that concept could be applied here. To suggest that simply because Tucker owned the aircraft, any personal injury in which the aircraft was implicated in any fashion was excluded does violence to the remaining portion of the exelusory clause. The Texas Supreme Court has held on several occasions that “arise out of’ means that there is a causal connection or relation — a “but for” causation — though not necessarily direct or proximate causation. Id. at 203. There is no causal connection between Tucker’s ownership of the airplane and the accident. Tucker could be hable for his negligent acts resulting in an accident which caused injuries to Hartless regardless of whether he owned the airplane. The trial court could not have properly rendered summary judgment on that basis.

Maintenance

Maintenance is one of the more clear-cut concepts involved in this phrase. Maintaining a device suggests that some action is being taken to keep it in operating condition, or to make it operable. In a discussion, the Texas Supreme Court has applied that term as encompassing the broader meaning involving the concept of supporting, sustaining, carrying on, and continuing in its purpose-even to the extent of including refueling a vehicle to keep it operable. State Farm Mut. Auto. Ins. Co. v. Pan Am. Ins. Co., 437 S.W.2d 542, 545 (Tex.1969).

Under any definition, there is no evidence to suggest that Tucker and Hartless were involved in maintaining the vehicle. It was inoperable, and there is nothing to indicate their actions had any purpose toward making it operable, either directly or indirectly — and the evidence shows directly to the contrary. The trial court could not properly render summary judgment on that basis.

Operation

“Operation” of the vehicle refers to doing or performing a practical work. LeLeaux v. Hamshire-Fannett Indep. Sch. Dist., 835 S.W.2d 49, 51 (Tex.1992); Mount Pleasant Indep. Sch. Dist. v. Estate of Lindburg, 766 S.W.2d 208, 211 (Tex.1989). As previously pointed out, the vehicle was not operable. The evidence shows conclusively that it was not doing any work of any sort, and the trial court could not render summary judgment on that basis.

Use

The Texas Supreme Court has recently discussed the term “use” in the context of an automobile insurance policy: “[t]he use required is of the vehicle qua vehicle, rather than simply as an article of property.... [I]f a vehicle is only the locational setting for an injury, the injury does not arise out of any use of the vehicle.” Mid-Century Ins. Co. v. Lindsey, 997 S.W.2d 153, 156 (Tex.1999). Use means “to put ... into action or service; to employ for or apply to a given purpose.” LeLeaux, 835 S.W.2d at 51 (holding that injury did not arise from use of school bus and that bus was a mere situs for the injury); Lyons v. State Farm Lloyds and Nat’l Cas. Co., 41 S.W.3d 201, 205 (Tex.App.-Houston [14th Dist.] 2001, pet. denied).

Thus, the phrase “arising from use” is treated as being a “general catchall ... designed and construed to include all proper uses of the vehicle not falling within other terms of definition such as ownership an [sic] maintenance.” Pan Am. Ins. Co., 437 S.W.2d at 545 (emphasis added) (holding that refueling of truck was maintenance, not use); see State Farm Mut. Auto. Ins. Co. v. Whitehead, 988 S.W.2d 744, 745 (Tex.1999) (where State Farm urged that “use” refers to use of the vehicle as a vehicle); Nationwide Prop. & Cas. Ins. Co. v. McFarland, 887 S.W.2d 487, 493 (Tex.App.-Dallas 1994, writ denied) (discussing definition of “use” as “employment of a vehicle as a means of transportation, or some other purpose incident to transportation”).

The Texas Supreme Court has also attempted on several occasions to provide some guidance in determining when an injury arises out of the use of a vehicle, and has set out (nonexclusive) considerations.

For an injury to fall within the “use” coverage [or exclusion] ... (1) the accident must have arisen out of the inherent nature of the automobile, as such, (2) the accident must have arisen within the natural territorial limits of an automobile, and the actual use must not have terminated, [and] (3) the automobile must not merely contribute to cause the condition which produces the injury, but must itself produce the injury.

Lindsey, 997 S.W.2d at 157 (quoting 8 Couch on InsuRance 3D § 119.37, at 119-56 (1997)). We also recognize that the court did not propose these factors as an absolute test, recognizing that the third factor is especially' troublesome. Additionally, the court added a fourth factor to examine: whether a person is using a vehicle as a vehicle depends not only on his or her conduct, but on his or her intent. Lindsey, 997 S.W.2d at 156; Lyons, 41 S.W.3d at 205.

We will attempt to apply the factors mentioned above to the facts of this case.

(1)Did the accident arise out of the inherent nature of the aircraft, as such? We do not believe that it did. The accident occurred when Tucker tipped the plane and it struck Hartless. The fact the object tipped by Tucker was an aircraft was incidental to the accident. The same type of accident and injury could have been caused if the two Mends had been moving a piece of furniture and one lifted a corner of the furniture so that it tipped over and struck the other. Any number of items of personal property could have been the instrumentality involved. Nothing about the inherent nature of an aircraft caused this accident to occur. “The use required is of the vehicle qua vehicle, rather than simply as an article of property.” Mid-Century Ins. Co., 997 S.W.2d at 156.

(2) Did the accident occur within the natural territorial limits of the aircraft? The accident did occur as the two men were within the natural territorial limits of the aircraft even though neither of them was piloting the plane or attempting to prepare the plane for use as an aircraft.

(3) Did the aircraft merely contribute to the condition which produced the injury or did the aircraft itself produce the injury? The aircraft itself actually struck Hartless and, in that sense, produced the injury. However, as pointed out previously, there is nothing peculiar to an aircraft that caused this injury. This situation is factually similar to the one addressed by the Texas Supreme Court in LeLeaux, 835 S.W.2d at 51. The court applied the same reasoning set out above: that “use” means “to put or bring into action or service; to employ for or apply to a given purpose.” Id. In that case, a student was injured when she struck her head on the door-frame of the bus. The bus was not in operation; it was parked, empty, with the motor off. The driver was not aboard, and there were no students aboard. The bus was not “doing or performing a practical work”; it was not being “put or [brought] into action or service”; it was not being “employ[ed] or applied] to a given purpose.” As described by the court, the bus was nothing more than the place where the student happened to injure herself. Id.

In this case, the aircraft was obviously not being used as an aircraft; not being used as transportation; not being prepared for use; not being prepared for repair; or engaged or employed for its given purpose in any fashion. As in Lind-burg, the device was sitting empty, with the motor off, no one was aboard, and it was nothing more than the place where Hartless was injured, not because of the device’s actions, but because of the men’s actions.

(4) What was the intent of Tucker and Hartless in weighing the aircraft? We recognize that determining the weight of an aircraft is important when deciding the amount of lift needed to safely fly the plane. However, the evidence is that this aircraft could not be flown because the engine block was cracked. Replacing the engine with another Model A engine would make the aircraft authentic, but was not feasible for flight purposes. The evidence was that the only reason to weigh this plane was to satisfy Hartless’s curiosity, not to make a judgment as to the power needed to fly the aircraft.

It is at least equally reasonable to conclude that the “arising from use” exclusion does not exclude coverage where the device is merely present, even if some contact by the device is the cause of the injury — where the device is not being used for its given purpose.

Accordingly, this language of the exclusion does not provide a basis to support rendition of summary judgment.

Loading or Unloading

The phrase “loading or unloading” has been addressed a number of times. It means the transfer of goods to or from a vehicle, as well as the operation of transporting goods between the vehicle and the place from or to which they are being delivered. Liberty Mut. Ins. Co. v. Am. Employers Ins. Co., 556 S.W.2d 242 (Tex.1977). The evidence shows that the air craft was not being loaded or unloaded with people, goods, or any other items at the time of the accident. The term cannot apply to these facts and could not have served as a basis for the summary judgment.

Accordingly, we must conclude that the trial court erred by granting summary judgment holding that the insurer had no duty to defend. Further, the trial court erred by granting summary judgment on the insurer’s duty to indemnify. It is well settled that a trial court is without authority to decide an insurer’s duty to indemnify in the absence of a final judgment in the underlying tort action. See Cent. Sur. & Ins. Corp. v. Anderson, 445 S.W.2d 514, 515 (Tex.1969); Firemen’s Ins. Co. v. Burch, 442 S.W.2d 331, 333-34 (Tex.1968); Gehan Homes, Ltd. v. Employers Mut. Cas. Co., 146 S.W.3d 833, 846 (Tex.App.-Dallas 2004, pet. filed); McFarland, 887 S.W.2d at 491.

Tucker’s Motion for Summary Judgment

Tucker also filed his own motion for summary judgment, which was denied. In general, an order granting a summary judgment may be appealed, but an order denying a summary judgment may not. Novak v. Stevens, 596 S.W.2d 848, 849 (Tex.1980). However, an exception to this rule exists when both parties file motions for summary judgment and the court grants one and overrules the other. Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396, 400 (1958). On appeal, the proper disposition is for the appellate court to render judgment for the party whose motion should have been granted. Members Mut. Ins. Co. v. Hermann Hosp., 664 S.W.2d 325, 328 (Tex.1984); McLemore v. Pac. Sw. Bank, FSB, 872 S.W.2d 286, 289 (Tex.App.-Texarkana 1994, writ dism’d by agr.). Each party must clearly prove its right to judgment as a matter of law, and neither party may prevail simply because the other party failed to make such proof. Bd. of Adjustment of City of Dallas v. Patel, 887 S.W.2d 90 (Tex.App.-Texarkana 1994, writ denied); James v. Hitchcock Indep. Sch. Dist., 742 S.W.2d 701 (Tex.App.-Houston [1st Dist.] 1987, writ denied).

Here, the facts are not in dispute. The sole question is whether the exclusion in the policy contains language which allows Allstate — based on the allegations of those facts — to avoid defending its insured. We have already pointed out that the determination on indemnity is not to be determined until there is a final judgment in the tort action. We have further concluded that the allegations and evidence presented in this case show that the act does not lie within the bounds of the exclusion. In this context, where the policy otherwise would provide coverage, because an exclusion does not apply, the duty to defend is necessarily invoked. Thus, we reverse the trial court’s denial of Tucker’s motion for summary judgment and render judgment that Allstate had a duty to defend under these allegations.

Conclusion

We reverse the summary judgment rendered in favor of Allstate. We reverse, in part, the denial of the summary judgment rendered against Tucker and Hartless, and render judgment that Allstate had a duty to defend its insured. We remand the cause to the trial court for further proceedings consistent with this opinion.

      . The aircraft is a Pietenpol. Its engine was not functional, and it had not been flyable since 1998.

      . Tucker and Hartless were aligned as defendants in this proceeding, but the counter-motion for summary judgment was filed only by Tucker. Tucker and Hartless filed a joint notice of appeal from the judgment in favor of Allstate.

      . The Houston First Court of Appeals has rejected the application of these exceptions. Chapman v. Nat’l Union Fire Ins. Co., 171 S.W.3d 222 (Tex.App.-Houston [1st Dist.] 2005, no pet. h.); Landmark Chevrolet Corp. v. Universal Underwriters Ins. Co., 121 S.W.3d 886, 890 (Tex.App.-Houston [1st Dist.] 2003, no pet.); Tri-Coastal Contractors, Inc. v. Hartford Underwriters Ins. Co., 981 S.W.2d 861, 862-64 (Tex.App.-Houston [1st Dist.] 1998, pet. denied) (noting the limited use of extrinsic evidence).

      . We note that this is in line with the general policy of ensuring that an insured receives what can be reasonably described as the agreed-on coverage. We also recognize that this public policy concept is handled differently for a review of the policy as opposed to exclusions. Language in the policy itself is read broadly, to provide coverage, whereas language in the exclusions is read narrowly— for the same reason. See Ramsay v, Maryland Am. Gen. Ins. Co., 533 S.W.2d 344 349 (Tex.1976) ("It is a settled rule that policies of insurance will be interpreted and construed liberally in favor of the insured and strictly against the insurer, and especially so when dealing with exceptions and words of limitation.”)