text:
    In the Interest of J.S., A Child.
    No. 06-05-00045-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted Sept. 30, 2005.
    Decided Oct. 4, 2005.
    Joseph James, Sr., Joseph James, PLLC, Houston, for appellant.
    Taneska Stout, Fortson, GA, pro se.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Justice CARTER.

Joseph James, Jr., filed a petition affecting the parent-child relationship, alleging that he is the father of J.S. and that Taneska Stout is the child’s mother. In his original petition, Joseph alleged Tanes-ka is a nonresident of Texas and could be served with process at Fortson, Georgia. Joseph further alleged J.S. was born December 25, 2003, and resided in Harris County, Georgia. Joseph requested that the court enter an order appointing him and Taneska as joint managing conservators. Taneska filed a response entitled Special Answer and Special Motion to Dismiss, in which she specifically denied that the Jefferson County, Texas, court had jurisdiction. She further alleged that the minor child had resided in the State of Georgia since birth and that Georgia was the home state of the child in accordance with the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The trial court considered the motion for temporary orders February 7, 2005, and determined jurisdiction was not proper in the State of Texas and dismissed the case without prejudice March 7, 2005. Joseph appeals alleging Taneska had sufficient contacts with the State of Texas to allow the district court to exercise jurisdiction.

Joseph argues that Taneska previously attended school in Texas and that the child was conceived in Texas, thereby authorizing Texas courts to exercise jurisdiction. These allegations are relevant as to personal jurisdiction; however, this case is controlled by subject-matter jurisdiction. Subject-matter jurisdiction exists when the nature of the case falls within a general category of cases that the court is empowered, under applicable statutory and constitutional provisions, to adjudicate. In re Barnes, 127 S.W.3d 843, 846 (Tex.App.-San Antonio 2003, no pet.) (citing McGuire v. McGuire, 18 S.W.3d 801, 804 (Tex.App.-El Paso 2000, no pet.)). Subject-matter jurisdiction is essential to the authority of a court to decide a case. Tex. Ass’n of Bus. v. Air Control Bd., 852 S.W.2d 440, 443 (Tex.1993). Subject-matter jurisdiction over custody issues in Texas is governed by the UCCJEA. Tex. Fam.Code Ann. §§ 152.001-.317 (Vernon 2002 & Supp. 2004-2005); Barnes, 127 S.W.3d at 846. That Act provides mandatory jurisdictional rules for an original child custody proceeding. Georgia has also adopted the UC-CJEA. See Ga.Code Ann. § 19-9-61 (2005). A Texas court must have jurisdiction under the UCCJEA to make a child custody determination.

Section 152.201 governs the initial child custody jurisdiction of courts in the State of Texas and allows Texas courts to make an initial child custody determination only if the statutory requirements are fulfilled. We will summarize the four possible bases of jurisdiction in Texas and then examine whether any of the four authorizes a Texas court to conduct this custody determination.

(1)Home State Jurisdiction — A Texas court has jurisdiction if Texas is the state in which a child lived with a parent for at least six consecutive months immediately before the commencement of a child custody proceeding or was the home state of the child within six months before the commencement of the proceeding and the child is absent from the state, but a parent continues to live in Texas. See Tex. Fam. Code Ann. §§ 152.102(7), 152.201(a)(1).

The undisputed facts compel the conclusion that Texas is not the home state of J.S. Joseph acknowledges the child was born in Georgia and has never lived in the State of Texas. The child is almost two years old. Since Georgia is the child’s home, it qualifies to exercise jurisdiction over the custody question.

(2) Significant Contact Jurisdiction — A Texas court may also have jurisdiction if no court from another jurisdiction qualifies as the home state of the child under (1) above or the home state court of the child has declined to exercise jurisdiction on the ground that such court is an inconvenient forum or due to unjustifiable conduct (such as kidnapping) by a person seeking to invoke that court’s jurisdiction and the child and at least one parent have significant contacts with Texas. See Tex. Fam. Code Ann. §§ 152.201(a)(2), 152.207, 152.208.

There is no allegation or evidence that the courts of the State of Georgia have declined to exercise jurisdiction or have determined that Texas is the more appropriate forum. Joseph acknowledges that the child’s mother has filed a suit in Georgia regarding parentage of the child. In her answer and motion to dismiss, Taneska alleges that a Georgia state court has entered an order granting her custody of the child and determining that Georgia is the home state of the child.

(3) More Appropriate Forum Jurisdiction — A Texas court has jurisdiction if all courts having jurisdiction under (1) or (2) above have declined to exercise jurisdiction, finding Texas the more appropriate forum. See Tex. Fam.Code Ann. § 152.201(a)(3).

Texas courts do not acquire jurisdiction under this provision because there is no evidence that all courts having jurisdiction have declined to exercise jurisdiction or found that Texas courts are the more appropriate forum.

(4) Default Jurisdiction — A Texas court has jurisdiction if no court of any other state would have jurisdiction under (1), (2), or (3) above. See Tex. Fam.Code Ann. § 152.201(a)(4).

This provision does not apply because Georgia, as the home state, has jurisdiction under (1) above.

We agree that the district court in Jefferson County, Texas, did not have jurisdiction to make this custody determination. The provisions of the UCCJEA referred to above are the exclusive jurisdictional bases for making a child custody determination by a court in Texas. Tex. Fam.Code Ann. § 152.201(b).

We affirm the judgment of the trial court.


source: Caselaw Access Project

author: Justice ROSS.

license: Public Domain

text:
    Billy ROBINSON, Appellant, v. TEXAS TIMBERJACK, INC., Appellee.
    No. 06-05-00008-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted Sept. 12, 2005.
    Decided Oct. 7, 2005.

      Theodore R. Johns, Jr., Johns & Johns, Beaumont, for appellant.
    Jeffrey P. Bates, Law Office of Jeffrey P. Bates, Lufkin, for appellee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Justice ROSS.

Texas Timberjack, Inc. (Timberjack) sued Billy Robinson for breach of contract. The trial court granted summary judgment in favor of Timberjack. Robinson appeals, contending the trial court erred in granting that judgment. We reverse and remand for further proceedings because we find the evidence supporting the summary judgment is insufficient.

Background

The summary judgment evidence shows that Robinson entered into two separate agreements to purchase logging equipment from Timberjack. Robinson was to pay for the equipment by making weekly payments over a period of time. When Robinson stopped making payments, Timberjack repossessed the equipment and filed suit against Robinson, seeking recovery of the remaining sum owed. Timberjack filed a verified petition to initiate the suit and served requests for admissions on Robinson. Timberjack then moved for summary judgment based in part on two written agreements and an affidavit by Tony Dam-ron, an agent of Timberjack.

Robinson filed a motion to strike Dam-ron’s affidavit, which the trial court denied. The trial court granted Timberjack’s motion for summary judgment, after a hearing. Robinson then filed a motion for new trial, which the trial court denied.

STANDARD OP REVIEW

Because the propriety of a summary judgment is a question of law, we review de novo the trial court’s decision. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex.1994). The standards for review of a traditional summary judgment are well established: (1) the movant must show that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law; (2) in deciding whether there is a disputed material fact issue precluding summary judgment, the court must take evidence favorable to the non-movant as true; and (3) the court must indulge every reasonable inference in favor of the nonmovant and resolve any doubts in the nonmovant’s favor. Tex.R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-19 (Tex.1985).

Suit on Sworn Account

Timberjack asserts that the granting of summary judgment was proper because Robinson failed to deny the allegations in the sworn petition by a proper verified denial as required by Rules 93 and 185 of the Rules of Civil Procedure. See Tex.R. Civ. P. 93, 185. Timberjack is precluded from advancing this argument on appeal because Timberjack failed to timely do so at the trial court level.

Timberjack advanced two theories in support of its motion for summary judgment within the written motion itself. First, that by failing to timely respond to requests for admissions, Robinson had been deemed to admit all the elements of Timberjack’s cause of action. These deemed admissions were struck and not considered by the trial court. Alternatively, Timberjack argued that the written agreements and the affidavit of Tony Dam-ron were sufficient evidence by themselves to warrant the granting of summary judgment.

All theories in support of or in opposition to a motion for summary judgment must be expressly presented in writing to the trial court. Casso v. Brand, 776 S.W.2d 551, 553 (Tex.1989). A motion for summary judgment must stand or fall on these grounds alone. Sci Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 912 (Tex.1997). Timberjack presented two distinct arguments in its motion for summary judgment, neither of which touched on Robinson’s failure to file a verified denial.

Timberjack did, in its response to Robinson’s motion for new trial, address Robinson’s failure to file a verified denial. This is insufficient to preserve this issue for our review. Again, we refer to the well-established rule that all theories in support of a motion for summary judgment must be presented in the written motion itself. Casso, 776 S.W.2d at 553; Golden v. McNeal, 78 S.W.3d 488, 493 (Tex.App.-Houston [14th Dist.] 2002, pet. denied). Summary judgment cannot be affirmed on grounds raised for the first time in a response to a motion for new trial. Because Timberjack failed to timely present this issue to the trial court, it will not be considered here.

Responses to Requests for Admissions

Timberjack seeks, on appeal, to rely on Robinson’s written responses to its requests for admissions. These written responses were not relied on in the written motion for summary judgment. As noted previously, all theories in support of a motion for summary judgment must be presented in writing to the trial court. Casso, 776 S.W.2d at 553. Because these written responses were not relied on in Timberjack’s motion for summary judgment, we will not consider them here.

Remaining SummaRy Judgment Evidence

Damron Affidavit

Robinson contends the Damron affidavit is not competent summary judgment evidence and should not have been considered by the trial court. We agree.

Robinson challenged the admission of the Damron affidavit before the hearing on the motion for summary judgment. The entirety of that affidavit is as follows:

I am over the age of 18 years, of sound mind, and otherwise competent to make this affidavit. I have personal knowledge of the facts contained in the attached Statement of Account, and all matters are true and correct. Based upon that Statement of Account, Billy Ray Robinson is obligated to Texas Tim-berjack, Inc. in the principal amount of $248,970.41, after all lawful offsets, credits, and payments have been applied.
I am the authorized agent for Texas Timberjaek, Inc., a corporation licensed to do business in the State of Texas, with its principal place of business in Angelina County, Texas.

Further, Affiant sayeth not.

The affidavit does not show how Damron acquired his personal knowledge of the facts presented in the affidavit. See Fair Woman, Inc. v. Transland Mgmt. Corp., 766 S.W.2d 323, 323 (Tex.App.-Dallas 1989, no writ). To be sufficient, the affidavit must affirmatively show how the affiant became personally familiar with the facts. Id. Although the affidavit states that Dam-ron is an agent of Timberjaek, it does not state whether he was an agent during the relevant periods or how his status as an agent put him in a position to gain such knowledge. Nor is it readily apparent that Damron’s status as an agent of Tim-berjack would put him in such a position. Further, there is other summary judgment evidence in the form of an affidavit by Robinson which challenges whether Dam-ron was in a position to acquire personal knowledge of the relevant facts. The presence of Robinson’s affidavit in the summary judgment evidence distinguishes this case from Requipco, Inc. v. Am-Tex Tank & Equip., 738 S.W.2d 299, 301 (Tex.App.-Houston [14th Dist.] 1987, writ ref'd n.r.e.), cited by Timberjaek.

Finally, Damron’s affidavit states that the facts laid out in the affidavit are based on an attached statement of account. The affidavit did not have any attachments. Rule 166a(f) of the Rules of Civil Procedure requires copies of all documents referred to in an affidavit to be attached to the affidavit. Tex.R. Civ. P. 166a(f). There is some conflict among the courts about whether the failure to attach referenced documents to an affidavit is a waived defect of form, or a more serious defect of substance. Gorrell v. Tex. Utils. Elec. Co., 954 S.W.2d 767 (Tex.1997); Mathis v. Bocell, 982 S.W.2d 52, 59-60 (Tex.App.-Houston [1st Dist.] 1998, no pet.). We need not decide that issue here, however. We merely note that Timberjack’s failure to attach the documents only serves to exacerbate the previously mentioned defects.

For the foregoing reasons, we find the Damron affidavit is not competent summary judgment evidence and should not have been considered by the trial court.

Written Agreements

The only remaining evidence supporting the summary judgment is the written agreements. In its motion for summary judgment, Timberjaek stated that, in order to prove its cause of action, it had to show (1) execution and delivery of the agreement to pay, (2) a promise to pay according to the terms of the agreement, (3) default by Robinson, (4) a showing of the sum due on the agreement, and (5) Timberjack’s status as holder of the agreement. Robinson disputes that there ever existed a valid agreement between the parties, what type of agreement it may have been, whether he breached that agreement, and what any proper damages would be.

We cannot hold that Timberjack has proven its entire cause of action as a matter of law by looking at the written agreements alone. Specifically, there is no way to determine if Robinson is in default and if so, what sum is due on the agreement. We must resolve any doubts in favor of Robinson. Nixon, 690 S.W.2d at 548-49.

Conclusion

We hold that Timberjack did not timely raise the issue of Robinson’s failure to file a verified denial in the trial court. It cannot raise this issue for the first time on appeal. We also hold that Timberjack failed to include Robinson’s written responses to its requests for admissions as a basis for its written motion for summary judgment. Again, it cannot raise this issue for the first time on appeal. We further hold that the affidavit by Tony Damron is not competent summary judgment evidence and that the remaining evidence is insufficient to support a granting of summary judgment in Timberjack’s favor.

Accordingly, we reverse the summary judgment and remand this cause to the trial court for further proceedings.


author: DIANE DeVASTO, Justice.

text:
    In re STATE of Texas, Relator.
    No. 12-05-00192-CV.
    Court of Appeals of Texas, Tyler.
    Oct. 12, 2005.

      David Glickler, Georgetown, Harry E. White, for relator.
    R. Daryll Bennett, Longview, Kathryn Bennett Moon, for real party in interest.
    Panel consisted of WORTHEN, C.J., GRIFFITH, J„ and DeVASTO, J.
   OPINION

DIANE DeVASTO, Justice.

The State of Texas, as relator, seeks a writ of mandamus directing Respondent, the Honorable Clay Gossett, Judge of the 4th Judicial District, Rusk County, Texas, to (1) vacate his order dated March 8, 2004 granting a petition for bill of review filed by Frank Stewart, the real party in interest, and to (2) reinstate two amended orders of forfeiture dated February 11, 2003 and March 25, 2003, respectively. We conditionally grant the writ.

Background

On May 28, 2002, Kilgore Police Department detectives executed four search warrants authorizing the seizure of “implements, instrumentality’s [sic], proceeds and evidence” tending to connect Frank Stewart and others with the commission of various gambling offenses. Among the items seized was $55,224.38 cash, alleged to be gambling proceeds.

On June 20, 2002, the State filed a forfeiture case against three automobiles seized pursuant to the search warrants (trial court cause number 2002-220). In July 2002, two indictments were filed charging Stewart with engaging in organized criminal activity through the commission of various misdemeanor gambling offenses (trial court cause numbers 2002-120 and 2002-124). On January 22, 2003, Stewart pleaded guilty to two charges of possession of a gambling device and was fined one thousand dollars for each offense (cause numbers 2002-120 and 2002-124). The same day, Respondent signed an agreed judgment of forfeiture in trial court cause number 2002-220, forfeiting one of the vehicles and authorizing return of the other two vehicles to Stewart. The following day, Respondent signed a forfeiture order in cause numbers 2002-120 and 2002-124. The forfeited items included the cash, but the orders incorrectly stated the amounts to be forfeited. By amended orders dated February 11, 2003 and March 25, 2003, respectively (the “amended orders”), the trial court corrected the error.

On September 25, 2003, Stewart filed a petition for bill of review. He alleged that the State did not prove the seized cash was gambling proceeds and that the State took the cash without a hearing or approval of Stewart or his attorney. Stewart requested that the amended orders be reformed and that the forfeited cash be returned to him.

Respondent granted the petition by order dated March 3, 2004. The order required the State to deposit the forfeited cash with the Rusk County District Clerk within ten days of the signing of the order until its ownership could be determined. In its findings of fact and conclusions of law, Respondent found, in pertinent part, that

E. Since no [property other than a 1998 Cadillac] was mentioned to be forfeited [in the agreed judgment of forfeiture], the Court agrees that all other items seized from Frank Stewart were to be returned to Frank Stewart.
F. On January 23, 2003, [t]he State of Texas asked the Court to sign a forfeiture [order] on other items seized[, including the subject cash,] without notice to Frank Stewart nor a hearing in Cause No. CR2002-124.
G. On March 21, 2003, the State of Texas presented a Nunc Pro Tunc Order to the Court for signature in Cause No. C[R]2002-124 without notice to Frank Stewart.
H. On January 23, 2003, the State of Texas presented an Order of Forfeiture for the court to sign in Cause No. CR2002-120 without notice to Frank Stewart.
I. On February 11, 2003[,] the State of Texas presented an Amended Order of Forfeiture in Cause No. CR2002-120 without notice to Frank Stewart.
J. On March 25, 2003[,] the State of Texas presented the Court with State’s Motion for Judgment Nunc Pro Tunc without notice to Frank Stewart.
L. When all parties agreed to a forfeiture of items seized from Frank Stewart on January 22, 2003 and that order agreed to a return to Frank Stewart of all other items, then the State of Texas was required to file for forfeiture, serve Frank Stewart and allow him Due Process of Law before his property could be forfeited.
N. After the Agreed Forfeiture in Cause No.2002-220 and its hand written notes, any further forfeiture of Frank Stewart’s property, [sic] was without Due Process of Law.

The trial court then concluded that “Frank Stewart was denied Due Process of Law. [sic] By the State of Texas when his property was Forfeited after January 22, 2003.”

The State filed a motion for new trial, which was denied on May 25, 2004. The State filed its notice of appeal, but the appeal was dismissed for want of jurisdiction because an appeal from an order granting a bill of review is interlocutory and not appealable. See State v. 1998 Cadillac 4 Door, 2004 WL 2937253, at *2 (Tex.App.-Amarillo Dec.20, 2004, no pet.) This original proceeding followed.

Availability of Mandamus

Mandamus will issue when a trial court commits a clear abuse of discretion for which the relator has no adequate remedy at law. Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992) (orig.proceeding). A trial court clearly abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. Id. Mandamus review of a trial court’s legal conclusions is much less deferential than its review of the trial court’s findings of fact. Id. at 840. A trial court has no discretion in determining what the law is or in its application of the law to the facts. Id. Therefore, a trial court abuses its discretion if it misapplies the law to the facts of the case before it. See id.

Abuse of Discretion

At the outset, Stewart points out that the State waited over sixteen months after Respondent’s adverse ruling and six months after dismissal of its appeal to seek mandamus relief. Stewart further asserts that the State has shown no justification for delay. In substance, Stewart argues that the State’s delay was unreasonable as a matter of law and that, consequently, we should deny the requested relief. We disagree that the State’s delay was unreasonable as a matter of law under the facts before us. Therefore, we will address the merits of the State’s petition.

Article 18.18 of the Texas Code of Criminal Procedure provides two alternative procedures for the disposition of certain gambling-related items. See Tex. Code CRiM. PROC. Ann. art. 18.18 (Vernon 2005). Subsection (a) prescribes the procedure for forfeiture following a conviction for one of the offenses listed in subsection (a). See id. art. 18.18(a). Subsections (b) through (f) prescribe the procedure for forfeitures where there is no prosecution or conviction for the listed offenses. See id. art. 18.18(b)-(f). The procedure for the two types of forfeiture is not the same. Compare id. art. 18.18(a), with id. art. 18.18(b)-(f).

Article 18.18(a) provides that after final conviction of a person for possession of a gambling device or equipment, altered gambling equipment, or gambling paraphernalia, the court entering the judgment of conviction shall order that the gambling device, gambling equipment, or gambling paraphernalia be destroyed or forfeited to the State. Tex.Code Crim. PROc. Ann. art. 18.18(a). Subsection (a) further provides that if gambling proceeds were seized, the court shall order them forfeited to the State and shall transmit them to the grand jury of the county in which they were seized for use in investigating alleged violations of the Penal Code, or to the State, any political subdivision of the State, or to any state institution or agency. Id. No additional pleading, notice to the owner or possessor, or evidentiary hearing is afforded the property’s owner. See id.; Martin v. State, 873 S.W.2d 457, 460 (Tex.App.Waco 1994, no pet.).

Article 18.18(b) through (f) applies where there is no prosecution or conviction following seizure. See Tex.Code Ceim. Peoc. Ann. art. 18.18(b)-(f). In that instance, the property’s owner is entitled to notice, an opportunity to challenge the forfeiture, and an opportunity for an eviden-tiary hearing. See id. art. 18.18(b)-(f); Martin, 873 S.W.2d at 460.

Because Stewart pleaded guilty to two charges of possession of a gambling device, article 18.18(a), and not article 18.18(b) through (f), is applicable. See Tex.Code Ceim. PROC. Ann. art. 18.18(a). Consequently, Stewart was not entitled to notice and hearing before Respondent signed the forfeiture orders or the amended orders. See Martin, 873 S.W.2d at 460. In reaching a contrary conclusion, Respondent misapplied the law to the facts, thereby abusing his discretion.

Adequate Remedy at Law

The State must also show that it has no adequate remedy by appeal. The Texas Supreme Court has recently stated that “[t]he operative word, 'adequate,’ has no comprehensive definition; it is simply a proxy for the careful balance of jurisprudential considerations that determine when appellate courts will use original mandamus proceedings to review the actions of lower courts.” In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex.2004) (orig.proceeding). Consequently, whether an appellate remedy is adequate “depends heavily on the circumstances presented and is better guided by general principles than by simple rules.” Id. at 137. Mandamus review of significant rulings in exceptional cases may be essential to preserve important substantive and procedural rights from impairment or loss. Prudential, 148 S.W.3d at 136. However, an appellate remedy is adequate when the benefits of mandamus review are outweighed by the detriments. Id. at 136.

Here, the subject cash was among the items in the possession of Frank Stewart that were seized pursuant to search warrants executed by Kilgore Police Department detectives. Under article 18.18(a), the State had a right to immediate forfeiture of gambling proceeds, without the necessity of additional proceedings, upon Stewart’s final conviction for possession of a gambling device. Thus, the cash was immediately forfeited to the State. The forfeiture occurred more than a year before Respondent granted the bill of review and more than two years before this original proceeding was filed.

The order granting the bill of review requires the State to deposit the forfeited sum with the Rusk County District Clerk pending the resolution of Stewart’s claims. However, the State informs us that it relied upon the finality of the amended orders and spent the money. Therefore, according to the State, compliance with the deposit requirement of Respondent’s order could result in three law enforcement agencies being forced to disgorge funds to replace the forfeited cash until the matter is finally resolved.

We have concluded that Article 18.18(a) does not impose the due process requirements Stewart contends are prerequisites to the forfeitures in this case. Moreover, despite Respondent’s findings to the contrary, we see nothing in the agreed judgment of forfeiture that imposed any such requirements for subsequent forfeitures of Stewart’s property. Therefore, Respondent was without authority to grant the bill of review.

Compliance with Respondent’s order will require the diversion of state funds for the deposit mandated by Respondent’s order. If the State is required to make the deposit and participate in further trial proceedings, the right to immediate forfeiture of the cash will be lost. Once lost, the right cannot be recovered, even through a successful appeal. The right can be preserved only by mandamus. Accordingly, we conclude that the benefits of mandamus outweigh the detriments, rendering appeal an inadequate remedy for the State.

Conclusion

The order granting Stewart’s bill of review constitutes an abuse of Respondent’s discretion for which the State has no adequate remedy by appeal. Therefore, we conditionally grant the writ of mandamus. We trust, however, that, within 15 days from the date of our opinion and order, Judge Gossett will vacate his order dated March 3, 2004 granting Stewart’s bill of review and reinstate the amended forfeiture orders dated February 11, 2003 and March 25, 2003. The writ will issue only if he fails to do so.

      . Stewart pleaded guilty pursuant to a plea agreement. Although Stewart contends that the State did not prove the cash was gambling proceeds, the following exchange reflects that forfeiture of the cash was a condition of the plea agreement:
      THE COURT: And I’ll ask for the State’s recommendation.
      PROSECUTOR: Your Honor, we recommend that you assess a fine of $1,000 in each count — in each case here and assess Court costs. For the Court's knowledge, there are — there has been seized gambling devices, gambling paraphernalia and gambling proceeds. They will be forfeited by [Stewart] as a result of this plea. We also have some civil forfeitures cases that we've resolved, and I do have six codefendants’ dismissals for the Count.
      THE COURT: All right.
      THE COURT: And I'll ask you, is that the understanding of the plea bargain agreement?
      DEFENSE COUNSEL: That is, Your Honor.

      . Because the State requested, and Respondent filed, findings of fact and conclusions of law, we assume that a hearing preceded the order granting the bill of review. See TexR. Civ. P. 296 (party may request court to state in writing findings of fact and conclusions of law in any nonjury case tried, in the district or county court). The record furnished in this proceeding does not include a reporter’s record of the hearing.

      . The notice of appeal was filed in this court. The appeal was transferred to the Amarillo Court of Appeals by order of the Texas Supreme Court for docket equalization.


author: Chief Justice MORRISS.

text:
    Rebecca STAFFORD, as next friend of Joshua L. Stafford, a Minor, and on behalf of others similarly situated, Appellants, v. ALLSTATE LIFE INSURANCE COMPANY, Allstate Insurance Company, Allstate Indemnity Company, Allstate Property and Casualty Company, Allstate County Mutual Insurance Company, Allstate Lloyds, and Allstate Settlement Corporation, Appellees.
    No. 06-05-00007-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted Sept. 12, 2005.
    Decided Oct. 18, 2005.

      Matthew R. Pearson, Gravely & Pearson, LLP, San Antonio, for appellants.
    D. Allan Jones, Orgain, Bell & Tucker, LLP, Beaumont, for appellees.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Chief Justice MORRISS.

A simple automobile accident has resulted in a class-action lawsuit challenging settlement practices of Allstate Insurance Company and several of its affiliated companies.

In 1997, Melvin Block allegedly caused an automobile accident which injured Joshua Stafford. Stafford, through his mother, Rebecca Stafford sued and then agreed to a settlement with Block and his insurer, Allstate Insurance Company. As part of the settlement, Stafford signed a document releasing Block, Allstate, and Allstate’s “affiliates” from all claims arising out of the accident. Four years after signing the release, Stafford sued Allstate and several of its affiliates as class representative of a purported class of persons who had been involved in structured settlements with one or more of the Allstate entities. The trial court granted summary judgment in favor of Allstate and its affiliates based on the affirmative defense of release.

We affirm the summary judgment favoring appellees Allstate Insurance Company, Allstate Life Insurance Company, and Allstate Settlement Corporation — the “Transaction Defendants” — and reverse the summary judgment as to appellees Allstate Indemnity Company, Allstate Property and Casualty Company, Allstate County Mutual Insurance Company, and Allstate Texas Lloyds — the “Nontransaction Defendants” — because (1) the release covers the settlement-related claims asserted in the present lawsuit, (2) the release releases the Transaction Defendants, and (3) Stafford has alleged sufficient facts to support personal standing as to the Nontran-saction Defendants.

(1) The Release Covers the Settlement-related Claims Asserted in the Present Lawsuit

Summary judgment is properly granted only when the movant establishes that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Tex.R. Crv. P. 166a(e); Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991); Mo. Pac. R.R. v. Lely Dev. Corp., 86 S.W.3d 787, 790 (Tex.App.-Austin 2002, pet. dism’d). Because the propriety of a summary judgment is a question of law, we review the trial court’s decision de novo. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex.1994). The standards for review of a traditional summary judgment are well established: (1) the movant must show that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law; (2) in deciding whether there is a disputed material fact issue precluding summary judgment, the court must take evidence favorable to the nonmovant as true; and (3) the court must indulge every reasonable inference in favor of the nonmovant and resolve any doubts in the nonmovant’s favor. Tex.R. Crv. P. 166a(c); Pustejovsky v. Rapid-Am. Corp., 35 S.W.3d 643, 645-46 (Tex.2000); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985).

A defendant seeking summary judgment must, as a matter of law, negate at least one element of each of the plaintiffs theories of recovery or plead and prove each element of an affirmative defense. Mo. Pac. R.R., 86 S.W.3d at 790. Not until the defendant establishes its right to summary judgment does the plaintiff bear the burden of raising a fact issue. Id. If a trial court’s order granting summary judgment does not specify the basis for the court’s ruling, the summary judgment will be affirmed if any of the theories advanced by the movant are meritorious. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989).

The settlement agreement provided that Stafford would receive a set of structured payments over a number of years. In return, Stafford released Block and Allstate from any future claims. To pay for the settlement, Allstate was given the right to purchase an annuity from its affiliate, Allstate Life Insurance Company.

The crux of the present lawsuit lies on the allegation that Allstate engaged in unlawful behavior by forcing Stafford to accept an annuity from one of Allstate’s affiliates rather than allowing her to choose where to purchase an annuity to fund her settlement payments. Stafford also alleges that Allstate charged undisclosed fees related to the purchasing of the annuity. Stafford’s suit against the Allstate companies alleges violations of the Texas Free Enterprise and Antitrust Act of 1983, the Texas Deceptive Trade Practices Act, and the Texas Insurance Code, as well as conspiracy, unjust enrichment, and conversion. Stafford contends these claims do not fall within the subject matter of the settlement agreement release. We disagree.

A release is an agreement or contract in which one party agrees that a duty or obligation owed by the other party is discharged immediately on the occurrence of a condition. Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 508 (Tex.1993); Williams v. Glash, 789 S.W.2d 261, 264 (Tex.1990); Nat’l Union Fire Ins. Co. v. Ins. Co. of N. Am., 955 S.W.2d 120, 127 (Tex.App.-Houston [14th Dist.] 1997), aff'd, Keck, Mahin & Cate v. Nat’l Union Fire Ins. Co., 20 S.W.3d 692 (Tex.2000). A release extinguishes a claim or cause of action and bars recovery on the released matter. Dresser Indus., 853 S.W.2d at 508.

To release a claim effectively, the releasing instrument must “mention” the claim to be released. Victoria Bank & Trust Co. v. Brady, 811 S.W.2d 931, 938 (Tex.1991). Any claims not “clearly within the subject matter” of the release are not discharged, even if those claims exist when the release is executed. Id. It is not necessary, however, for the parties to anticipate and explicitly identify every potential cause of action relating to the subject matter of the release. Keck, Mahin & Cate, 20 S.W.3d at 698. Although releases generally contemplate claims existing at the time of execution, a valid release may also encompass unknown claims and damages that develop in the future. Id.

Like any other agreement, a release is subject to the rules of construction governing contracts, including the tenet that courts will not rewrite agreements to insert provisions parties could have included or to imply restraints for which they have not bargained. Tenneco, Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 646 (Tex.1996); Williams, 789 S.W.2d at 264. When construing a contract, courts must give effect to the true intentions of the parties as expressed in the written instrument. Lenape Res. Corp. v. Tenn. Gas Pipeline Co., 925 S.W.2d 565, 574 (Tex.1996). The contract must be read as a whole rather than by isolating a certain phrase, sentence, or section of the agreement. State Farm Life Ins. Co. v. Beaston, 907 S.W.2d 430, 433 (Tex.1995). The language in a contract is to be given its plain grammatical meaning unless doing so would defeat the parties’ intent. DeWitt County Elec. Coop., Inc. v. Parks, 1 S.W.3d 96, 101 (Tex.1999).

Stafford argues the release is limited to personal injury claims arising out of the October 16, 1997, automobile accident. In support of this, Stafford points to language in the release that states it is limited to claims which accrue, “on account of, or in any way growing out of, or which are the subject of, the Complaint.”

By its language, the release applies to, “any and all past, present or future claims, ... whether based on a tort, contract or other theory of recovery, ... which may hereafter accrue or otherwise be acquired on account of, or in any way growing out of, or which are the subject of the Complaint.” The release is not limited to particular types of claims that resulted from the accident. Nor is it limited solely to claims that existed at the time the release was executed. The release covers all claims, based on any theory of recovery, accruing at any time in the past or future, that grow out of the accident. The release shows no intent to be limited in the manner which Stafford suggests. Absent any language of limitation, we cannot supply such a narrow interpretation.

The claims in Stafford’s present lawsuit are based on actions taken by Allstate during the settlement negotiations and actions taken as a result of the settlement. The settlement negotiations and the settlement itself were a direct result of the automobile accident, i.e., they would not have occurred but for the accident. Therefore, Stafford’s claims based on the settlement and settlement negotiations grew out of the accident. In fact, Stafford’s own petition states, “Specifically, the claims arise out of the conduct in the underlying lawsuit filed in Jefferson County, Texas.” The release bars any claims that grew out of the accident. Hence, the release contained in the settlement agreement bars Stafford’s claims against all parties that were released.

(2) The Release Covers the Transaction Defendants

Though Stafford contends the release is applicable only to Allstate Insurance Company, we conclude the release is applicable to Allstate Insurance Company, Allstate Settlement Corporation, and Allstate Life Insurance Company — the Transaction Defendants.

A release discharges only those persons or entities that it names or specifically identifies. McMillen v. Klingensmith, 467 S.W.2d 193, 196 (Tex.1971). One can claim the protection of a release only if the release refers to him or her by name or with such descriptive particularity that his or her identity or connection with the event is not in doubt. Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 420 (Tex.1984). “The McMillen requirement of specific identification is not met unless the reference in the release is so particular that a stranger could readily identify the released party.” Id. at 419.

By its own language, the release signed by Stafford applies to any “subsidiaries, affiliates, partners, predecessors and successors in interest and assigns” of Allstate Insurance Company. Elsewhere in the settlement agreement and release, Allstate is given the right to assign its obligation to Allstate Settlement Corporation. Allstate is also given the right to purchase an annuity from Allstate Life Insurance Company.

Given their similar names and their inclusion within the settlement agreement itself, even a stranger to the transaction would have little trouble identifying Allstate Settlement Corporation and Allstate Life Insurance Corporation as affiliates of Allstate Insurance Company. Therefore, the release is applicable to both Allstate Life Insurance Corporation and Allstate Settlement Corporation, as well as Allstate Insurance Company.

(3) Stafford Has Alleged Sufficient Facts to Support Personal Standing as to the Nontransaction Defendants

The parties agree that the release is not applicable to any of the Nontransaction Defendants — Allstate Indemnity Company, Allstate County Mutual Insurance Company, Allstate Texas Lloyds, and Allstate Property and Casualty Company. The only question, then, is whether Stafford has pled sufficient facts to establish standing against those parties. We conclude she has.

Because standing is a component of subject-matter jurisdiction, we consider the plaintiffs’ standing under the same standard by which we review subject-matter jurisdiction generally. That standard requires the pleader to allege facts that affirmatively demonstrate the court’s jurisdiction to hear the case. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993). We construe the pleadings in favor of the plaintiffs and look to the pleaders’ intent. Id. If the plaintiffs lack standing, the trial court has no jurisdiction over the merits of the claim, and the entire cause must be dismissed. Bell v. Moores, 832 S.W.2d 749, 753-54 (Tex.App.-Houston [14th Dist.] 1992, writ denied).

To establish standing, a person must show a personal stake in the controversy. Hunt v. Bass, 664 S.W.2d 323, 324 (Tex.1984). That is, they must allege personal injury fairly traceable to the defendant’s unlawful conduct and likely to be redressed by the requested relief. Brown v. Todd, 53 S.W.3d 297, 305 (Tex.2001), citing Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984).

Stafford alleges that a conspiracy existed among all of the named appellees. Stafford’s third amended petition states,

Each of the Defendants participated in the misconduct complained of herein, as a primary participant, co-conspirator and/or aider-and-abettor. Defendants combined among themselves to accomplish a shared unlawful purpose — to make illegal profits by coercing Plaintiffs into accepting illegal structured settlements funded by annuities from Allstate Life and Allstate Settlement with mutual aid and a tacit understanding in carrying it out, and committed the other acts alleged in this Petition and have damaged Plaintiff and the Class Members. Defendants are each responsible for all wrongdoing done by each and any of the other conspirators in furtherance of the unlawful combination(s).

Stafford further alleges that each appellee harmed Stafford personally by participating in the alleged conspiracy. Specifically, Stafford alleges in her petition,

Each of the Defendants repeatedly and knowingly coerced Plaintiff and the Class into accepting structured settlements funded by annuities at lower than market and competitive rates, charged excessive fees and commissions, funded the annuities at amounts less than agreed to by Plaintiffs, and paid or accepted illegal rebates/kickbacks.

Additionally, the petition alleges,

Defendants’ wrongful plan, scheme and common course of conduct was designed to and did induce Plaintiffs and other members of the Class to enter into structured settlements funded by annuities with Allstate Life under unlawful circumstances, and through fraudulent means, to the detriment of Plaintiff and the Class members.

This language, as well as other language in Plaintiffs Third Amended Petition, is sufficient to allege that all the named appellees caused Stafford harm, not just those covered by the release. Although the remaining appellees are not alleged to have been directly involved in the original settlement agreement and release with Stafford, they are alleged to have harmed Stafford through their participation in a concerted scheme or plan.

Stafford has alleged personal injury directly traceable to the remaining appellees’ conduct. Therefore, she has pled sufficient allegations to support personal standing against the remaining appellees. As noted above, the parties do not claim that Stafford is otherwise barred from bringing suit against the remaining appellees.

Accordingly, we reverse the summary judgment as to Allstate Indemnity Company, Allstate Property and Casualty Company, Allstate County Mutual Insurance Company, and Allstate Texas Lloyds, and remand to the trial court for further proceedings.

Conclusion

Because the release signed March 22, 1999, covers the claims made by Stafford in the present suit and covers Allstate Insurance Company, Allstate Life Insurance Company, and Allstate Settlement Corporation, we affirm the summary judgment in favor of those appellees. But, because Stafford has alleged sufficient facts to establish standing as to Allstate Indemnity Company, Allstate Property and Casualty Company, Allstate County Mutual Insurance Company, and Allstate Texas Lloyds, we reverse the summary judgment in favor of those appellees and remand this case to the trial court for further proceedings consistent with this opinion.

      . Allstate Life Insurance Company, Allstate Indemnity Company, Allstate Property and Casualty Company, Allstate County Mutual Company, Allstate Lloyds, and Allstate Settlement Corporation.

      . See Settlement Agreement and Release, Section 1, Release and Discharge.

      . See Keck, Mahin & Cate, 20 S.W.3d at 698 (holding broad release of claims attributable to professional services extended to malpractice claims even though recitals primarily addressed unpaid fees); Mem’l Med. Ctr. of E. Tex. v. Keszler, 943 S.W.2d 433, 434-35 (Tex.1997) (release, which stated that parties agreed to release all claims related to corrective action by Memorial against Keszler "and any other matter relating to [Keszler's] relationship with [Memorial]” was not limited to claims regarding corrective action, but released all claims relating to Keszler’s relationship with Memorial, including ethylene dioxide exposure claim); Sanders v. Blockbuster, Inc., 127 S.W.3d 382, 385-87 (Tex.App.-Beaumont 2004, pet. denied) (release defining released claims as "any and all claims or causes of action of any nature whatsoever” included all claims by class attacking Blockbuster’s extended viewing fee policies and was not limited to claims arising during specific time period, even though release defined class as those who paid fees between January 1, 1992 and April 1, 2001); Vera v. North Star Dodge Sales, Inc., 989 S.W.2d 13, 18 (Tex.App.-San Antonio 1998, no pet.) (release, which operated to ”release[] North Star Dodge from any and all liability regarding the purchase of a 1993 Mazda,” was not limited to claims concerning purchase of vehicle, but also included unlawful debt collection, conversion, and wrongful repossession claims because terms of purchase were not satisfied); Anheuser-Busch Cos. v. Summit Coffee Co., 858 S.W.2d 928, 932-34 (Tex.App.-Dallas 1993, writ denied), vacated on other grounds, 514 U.S. 1001, 115 S.Ct. 1309, 131 L.Ed.2d 192 (1995)(release, which released "any and all causes of action of any nature whatsoever, at common law, statutory or otherwise,” included fraud and securities law claims because release, by reference to stock purchase agreement, mentioned all claims involving undisclosed liabilities, a specific class of claims that included claims at issue).

      . Appellees maintain that Stafford does not have standing to sue the remaining appellees because they were not involved in the original settlement. In support of this they cite, M.D. Anderson Cancer Ctr. v. Novak, 52 S.W.3d 704 (Tex.2001). This case is distinguishable, however. The decision in M.D. Anderson rested on the court’s finding that the plaintiff had not alleged any actual injury and therefore lacked standing to sue. Stafford, on the other hand, has alleged actual injuries caused as a result of a conspiracy between all of the named defendants. We are not, at this stage, to determine proof of, or ability to prove, the allegations, but only to assess what has been alleged.


author: DAVID GAULTNEY, Justice.

text:
    James VANDEVENDER, Appellant, v. Honorable G. Mitch WOODS, In His Official Capacity as Sheriff of Jefferson County, Texas and Jefferson County, Texas, Appellees.
    No. 09-04-477 CV.
    Court of Appeals of Texas, Beaumont.
    Submitted May 6, 2005.
    Decided Oct. 20, 2005.
    Richard L. Aman, CLEAT Senior Staff Atty., Houston, for appellant.
    Tom Maness, Criminal Dist. Atty., Thomas F. Rugg, First Asst., Civil Division, Beaumont, for appellees.
    Before GAULTNEY, KREGER and HORTON, JJ.
   OPINION

DAVID GAULTNEY, Justice.

Our prior opinion is withdrawn and the following opinion is issued. The motion for rehearing is overruled.

Appellant James VanDevender filed a declaratory judgment action in which he alleged appellees failed to pay his full salary during a second term after he sustained an on-the-job injury in his first term of employment as a deputy sheriff. See Tex. Const, art. Ill, § 52e (Vernon 1997). Van-Devender sought a judgment declaring ap-pellees were to pay his full salary until he returned to work, folly recovered, or through the end of the second term, whichever occurred first. He cited article III, section 52e of the Texas Constitution, which provides as follows:

Each county in the State of Texas is hereby authorized to pay all medical expenses, all doctor bills and all hospital bills for Sheriffs, Deputy Sheriffs, Constables, Deputy Constables and other county and precinct law enforcement officials who are injured in the course of their official duties; providing that while said Sheriff, Deputy Sheriff, Constable, Deputy Constable or other county or precinct law enforcement official is hospitalized or incapacitated that the county shall continue to pay his maximum salary; providing, however, that said payment of salary shall cease on the expiration of the term of office to which such official was elected or appointed. Provided, however, that no provision contained herein shall be construed to amend, modify, repeal or nullify Article 16, Section 31, of the Constitution of the State of Texas.

Id. The parties stipulated VanDevender was acting in the course and scope of his employment when he was injured on April 11, 2000. He returned to work on August 14, 2000. The Sheriffs term ended on December 31, 2000. The Sheriff was elected to another four-year term, which began on January 1, 2001. VanDevender was re-deputized, and he suffered another period of disability beginning March 2, 2001. He testified this second period of disability was caused by the injury of April 11, 2000.

After a bench trial, the trial court entered judgment that VanDevender take nothing. The court found as follows: the evidence neither proved nor disproved VanDevender’s current disability was caused by his on-the-job injury; VanDe-vender was paid the constitutional benefit to which he was entitled; and VanDeven-der’s entitlement to constitutional benefits ended on December 31, 2000, concurrently with the end of the Sheriffs term.

VanDevender argues the trial court misinterpreted article III, section 52e of the Texas Constitution. See Tex. Const. art. III, § 52e (Vernon 1997). VanDeven-der contends the constitutional provision is in essence a workers’ compensation provision and must be liberally construed in favor of the injured worker. He cites The Kroger Co. v. Keng, 23 S.W.3d 347 (Tex.2000), in which the Supreme Court stated, “it would be injudicious to construe the statute [worker’s compensation] in a manner that supplies by implication restrictions on an employee’s rights that are not found in [the section’s] plain language.” Id. at 349. VanDevender contends the constitutional provision should be construed to permit the payment of his full salary during a second term of employment in which the disability continued.

When section. 52e was adopted, county law enforcement officers were not entitled to receive workers’ compensation benefits. Frasier v. Yanes, 9 S.W.3d 422, 424 (Tex.App.-Austin 1999, no pet.). The workers’ compensation statute was amended in 1973 to provide coverage for law enforcement officers. Id. at 425. Appellees argue that construing the constitutional provision as VanDevender asks would ignore the plain language of the provision and would create “a windfall never envisioned or intended by the framers of the amendment at issue.” Appellees assert a sheriff receives a limited budget to staff the office, and the construction VanDevender advocates may encourage a particular sheriff to reappoint or not reappoint a deputy based solely on the possibility of future incapacity. Under VanDevender’s construction, if a deputy continued to be reappointed for each new term, a county would be required to continue full salary payments during incapacity; if a deputy was not reappointed, the continued salary payments would be prohibited. Appellees argue constitutional rights are not normally “bestowed or not bestowed by the whim of an elected official.”

When interpreting the Texas Constitution, courts presume its language was carefully selected and construe its words as they are generally understood. Spradlin v. Jim Walter Homes, Inc., 34 S.W.3d 578, 580 (Tex.2000) (citing City of Beaumont v. Bouillion, 896 S.W.2d 143, 148 (Tex.1995)). Courts “rely heavily on the plain language of the Constitution’s literal text.” Id. (citing Republican Party v. Dietz, 940 S.W.2d 86, 89 (Tex.1997)). Effect is to be given to all phrases of a constitutional provision. See In Interest of McLean, 725 S.W.2d 696, 697-98 (Tex.1987).

Article III, section 52e states the required “maximum salary” payment during the incapacity shall cease on the expiration of the term of office to which the official was elected or appointed. Tex. Const, art. Ill, § 52e (Vernon 1997). A deputy sheriffs term expires when the sheriffs term expires. Samaniego v. Arguelles, 737 S.W.2d 88, 90 (Tex.App.-El Paso 1987, no writ). In Samaniego, the court explained that “[t]he recovery of working capacity or the consequent expiration of the coincident term of the sheriff, whichever comes first, would proscribe the deputy’s claim.” Samaniego, 737 S.W.2d at 90. The Samaniego court held a sheriffs discharge of an at-will deputy in midterm did not affect the deputy’s right to receive his full salary during incapacity until the end of the term. Id. VanDeven-der characterizes Samaniego as a case in which the court “declined the opportunity to interpret the constitutional provision in a manner that would restrict or limit the benefits afforded to injured law enforcement officers.” However, Samaniego does not support the interpretation of Article III, section 52e that VanDevender asks us to adopt. See id. To the contrary, the Samaniego court explained the expiration of the term of office would proscribe the claim if the term expired before the deputy recovered working capacity. Id; see also Tarrant County v. Van Sickle, 98 S.W.3d 358, 364(Tex.App.-Fort Worth 2003, pet. denied).

In Tarrant Co. v. Van Sickle, the court held an injured deputy’s constitutional right to full salary during incapacity ended when the sheriffs term ended. See id. In so holding the court said that “absent a formal rehiring of a deputy at the beginning of the sheriffs next term, the Texas Constitution prohibits a county from paying the deputy hired during the sheriffs previous term once the term expires.” Id. The court held the trial court erred in ordering the county to pay Van Sickle his salary until the effective date of his retirement. The Van Sickle court did not answer the somewhat different question presented here: whether the Texas Constitution requires a county to pay the full salary during incapacity if the deputy is rehired for an additional term or terms.

We conclude that to construe the provision as VanDevender asks would fail to give effect to the plain meaning of the clause requiring the salary payment for an injury cease on the expiration of the term of office to which the official was elected or appointed. Given the requirement in the limiting phrase that the payments “shall cease” on expiration of the term, we cannot construe the provision to give additional length to the “incapacity” phrase. The provision uses the word “term,” not “terms,” to describe the limitation on the required payment. As the court noted in County of El Paso v. Hill, 754 S.W.2d 267, 268 (Tex.App.-El Paso 1988, writ denied), “[t]he time of the injury in relation to the remaining days of the term can produce unequal recovery on the part of different deputy beneficiaries.” Nevertheless, the Hill court held entitlement to salary continuation ceases at the end of the term or the date of recovery, “which ever comes first.” Id. VanDevender states Hill is distinguishable because the injured deputy in Hill was not re-deputized when a newly-elected sheriff took office. See id. at 267. However, nothing in Hill suggests the court would have reached a different result if the deputy had been re-deputized for a second term. Rather, the court held the limitation was tied to the expiration of the term even if the incapacity continued beyond the end of the term. See id.

We conclude the trial court did not err in construing article III, section 52e. See Tex. Const, art. Ill, § 52e (Vernon 1997). VanDevender’s third issue is overruled. Because of this resolution of issue three, we need not address issues one and two. The judgment of the trial court is affirmed.

AFFIRMED.

      . VanDevender denied any other on-the-job injury occurred.

      . VanDevender does not dispute the trial court’s finding of fact that he was paid his constitutional benefits from the date of his injury through December 31, 2000. His entitlement to workers' compensation benefits is not at issue in this case.


author: STEVE McKEITHEN, Chief Justice. DAVID GAULTNEY, Justice,

text:
    CHRISTUS HEALTH SOUTHEAST TEXAS d/b/a Christus St. Mary Hospital, Appellant, v. Daniel Lee GRIFFIN, Individually and as Executor of the Estate of Patricia Ruth Griffin, Deceased, et al., Appellees.
    No. 09-05-103 CV.
    Court of Appeals of Texas, Beaumont.
    Submitted June 23, 2005.
    Decided Oct. 20, 2005.

      On Appeal from the 60th District Court, Jefferson County, Texas, Trial Cause No. B-167,158.

    John B. Wallace, Barker, Lyman, Twining, Weinberg & Ferrell, P.C., Houston, for appellant.
    B. Adam Terrell, Weller, Green, Toups & Terrell, LLP, Beaumont, for appellees.
    Before McKEITHEN, C.J., GAULTNEY and KREGER, JJ.

      . There is some confusion, in the record as to the proper cause number of the February 25, 2005, order being appealed by St. Mary. Regardless of the proper cause number of the February 25, 2005, order, the record is clear that both the underlying health care liability action and the bill of review action are currently pending in the 60th District Court of Jefferson County, Texas. We use "B-167,-158” as the cause number of the February 25, 2005, order because that is what is represented in the consolidation number signed by the presiding judge of the 60th District Court.

   OPINION

STEVE McKEITHEN, Chief Justice.

Christus Health Southeast Texas d/b/a Christus St. Mary Hospital (“St. Mary”) prosecutes this interlocutory appeal based upon the trial court’s denial of a motion to dismiss filed by St. Mary in the course of a bill of review action. Because the law applicable to the record facts and to the procedural circumstances does not allow for St. Mary to proceed with an interlocutory appeal, we dismiss the appeal for lack of appellate jurisdiction and remand the cause to the trial court for further proceedings.

BACKGROUND

On May 6, 2002, plaintiffs, Daniel Lee Griffin, individually, and as executor of the estate of Patricia Ruth Griffin, deceased, et al. (“Griffin”) filed an original petition in the 172nd District Court, Jefferson County, Texas, cause number E-167,158. The original petition raised a number of health care liability claims, as defined in the Medical Liability and Insurance Improvement Act (“MLIIA”), against St. Mary, as well as against two named physicians and Life Share Blood Centers. In support of his claims, Griffin, on October 23, 2002, timely filed an expert report pursuant to section 13.01(d) of the MLIIA. See tex.Rev.Civ. Stat. Ann. art. 4590i, § 13.01(d) (Vernon Supp.2003). Thereafter, on June 9, 2003, St. Mary filed a motion to dismiss based upon section 13.01(e) of article 4590i alleging that Griffin’s expert report wholly failed to qualify as an expert report against St. Mary. Specifically, St. Mary contended that Griffin’s expert report did not satisfy the statutory requirements of section 13.01(r)(6), thereby requiring dismissal of all claims against St. Mary.

Griffin’s June 20, 2003, response to this motion to dismiss contended that his expert’s report met the expert report requirements of article 4590i, and demonstrated health care liability claims against St. Mary. See art. 4590i, § 13.01(r)(5)(6). Additionally, Griffin requested a thirty-day grace period in which to provide an amended expert report should the trial court find the report deficient as to St. Mary. See art. 4590i, § 13.01(g); see generally Walker v. Gutierrez, 111 S.W.3d 56, 60-62 (Tex.2003).

Approximately twelve days later, on July 1, 2003, the trial court granted St. Mary’s motion, and dismissed Griffin’s suit “with prejudice” only as to St. Mary. The rest of the defendants remained in Griffin’s suit. On July 15, 2003, St. Mary filed a motion for severance which was granted by the trial court. The severance order permitted the trial court’s prior order dismissing St. Mary to become final. The severance order was signed by the trial court on August 15, 2003. A motion for new trial filed by Griffin was apparently denied by operation of law. Docket sheet entries indicate that Griffin’s health care liability claims against the remaining defendants apparently were transferred from the 172nd District Court to the 58th District Court of Jefferson County, and finally transferred to the 60th District Court, also in Jefferson County. It appears that the cause is still pending in the 60th District Court under cause number, “B-167,158.”

On June 18, 2004, a little over ten months after the severance order was signed, Griffin filed an original petition for bill of review in the 172nd District Court of Jefferson County, under cause number E-172,759, with St. Mary being the only named defendant. In his bill of review, Griffin alleged he was precluded from filing an adequate expert report as to St. Mary’s medical negligence due to certain “fraudulent and wrongful acts” on the part of St. Mary. Appended to the bill of review were various exhibits ranging from deposition excerpts to discovery responses. On August 25, 2004, St. Mary filed a motion for summary judgment contending that Griffin’s bill of review had no merit because he did not prove what “fraudulent or wrongful act” St. Mary had committed.

On October 22, 2004, Griffin filed his response to St. Mary’s motion for summary judgment. On November 8, 2004, St. Mary filed a first amended answer to Griffin’s bill of review in which St. Mary asserted for the first time the affirmative defense of statute of limitations “as set forth in tex.Rev.Civ. Stat. Ann. art. 4590i, § 10.01 [ (Vernon Supp.2008) ] and pursuant to Texas case law.” On November 16, 2004, Griffin filed a supplemental response to St. Mary’s motion for summary judgment attaching a number of exhibits which appear to have been obtained through the discovery process in the medical malpractice suit (Cause Number B-167,158).

Shortly thereafter, on December 18, 2004, the bill of review action appeared to be placed in an entirely new light by St. Mary upon its filing of an instrument entitled, “Motion To Dismiss For Failure To File An Expert Report Under Section 74.351.” Filed slightly more than one month from the filing of its amended answer, which invoked certain provisions of article 4590i as authority for relief in the bill of review action, St. Mary’s dismissal motion of December 13, 2004, depicted the background and authority for its position in the following manner:

I. Background:
This case is a health care liability suit, filed by Plaintiffs as a bill of review on June 19, 2004. On December 1, 2004, Defendant received a faxed letter dated November 29, 2004, from Plaintiffs’ Counsel serving the expert report of Dr. Robert Rubin on Defendant. Please see Plaintiffs Notice of Filing Expert Report, attached hereto as Exhibit “A”.
II. Plaintiffs have not timely filed their expert report:
A bill of review is an independent cause of action brought by a party to a former action seeking to set aside a judgment, which is no longer appealable or subject to a motion for new trial. McEwen v. Harrison, 162 Tex. 125, 131-32, 345 S.W.2d 706, 709-10 (1961); Baker v. Goldsmith, 582 S.W.2d 404, 406 (Tex.1979). As such, this lawsuit is governed by the Texas Medical Liability Act Chapter 74.
In all health care liability claims, the plaintiff, or his or her attorney shall, not later than the 120th day after the date the claim was filed, serve on each party an expert report with a curriculum vitae of each expert listed in the report. § 74.351(a), Tex. Civ. PRACT. [sic] & Rem. Code. The report must provide a fair summary of the expert’s opinions regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed. § 74.351(r)(6), Tex. Civ. Pract. [sic] & Rem.Code.

In its motion to dismiss and its reply to Griffin’s response, St. Mary took the position that the provisions of tex. Civ. Peac. & Rem.Code Ann. §§ 74.001 — 74.507 (Vernon 2005) (“Chapter 74”) applied to Griffin’s bill of review as it was filed after the provisions of Chapter 74 took effect (September 1, 2003), and, specifically, because a bill of review is “a new and independent lawsuit.” This would require Griffin to comply with the provisions in Chapter 74 by providing St. Mary with an expert report within the mandated 120-day period. St. Mary’s motion to dismiss was denied by the trial court on February 25, 2005.

In its appellate brief, St. Mary engages in statutory construction of Chapter 74 to support its position. Acknowledging the instant case “raises issues not previously addressed in the bill of review context,” St. Mary’s analysis of Chapter 74 leads it to conclude that the legislature intended for the 120-day expert report requirement to apply to bill of review actions because without such a construction, plaintiffs would be encouraged to file bills of review “for a second bite at the expert apple” whenever the original medical malpractice suit has been dismissed for an inadequate pretrial expert report.

It is axiomatic that equity will not suffer a right to exist without a remedy. See generally Chandler v. Welborn, 156 Tex. 312, 294 S.W.2d 801, 807 (1956). “A bill of review is an equitable proceeding designed to prevent manifest injustice.” French v. Brown, 424 S.W.2d 893, 895 (Tex.1967). The basis for Griffin’s bill of review is an attempt to have the July 1, 2003, dismissal “with prejudice” set aside and to have both parties placed back into the original cause, currently pending in the 60th District Court. In an attempt to succeed on his bill of review, Griffin has alleged that “fraudulent and wrongful acts” on the part of St. Mary resulted in the filing of an inadequate expert report which directly led to the July 1, 2003, dismissal. “It is the settled law of this state that a person who has been injured by a judgment may, at a subsequent term of court, institute a suit to set it aside and retry the original case.” Sedgwick v. Kirby Lumber Co., 130 Tex. 163, 107 S.W.2d 358, 359 (1937). We express no opinion on the merits of the bill of review. That determination is for the trial court. For this portion of our discussion, it is immaterial which version of the health care liability law (MLIIA of Chapter 74) applies as the gravamen of the bill of review is that, because of the alleged fraudulent and/or wrongful acts on the part of St. Mary, the expert report, although filed timely under article 4590i, section 13.01(d), was nevertheless deficient through no fault of Griffin. St. Mary admits that it was provided with a new and revised expert report from Dr. Rubin and, undoubtedly, Dr. Rubin’s report will be introduced ■ as evidence by Griffin at the prima facie hearing as relevant to his meritorious defense. See Beck v. Beck, 771 S.W.2d 141 (Tex.1989); Baker v. Goldsmith, 582 S.W.2d 404, 408-09 (Tex.1979).

Because the statutory prerequisites of both article 4590i and Chapter 74 are inapplicable to the bill of review process, we proceed with determining whether our appellate jurisdiction was invoked by St. Mary. As pointed out in footnote one, supra, Griffin’s May 6, 2002, health care liability claim was filed prior to the effective date of any of the provisions of Chapter 74. The additional legislation authorizing interlocutory appeal when a trial court denies a motion to dismiss for failure to file an adequate expert report also applied “only to an action filed on or after the effective date” of September 1, 2003. See Act of June 2, 2003, 78th Leg., R.S., ch. 204, §§ 1.03, 23.02(a), (d), 2003 Tex. Gen. Laws 847, 849, 898-99. Therefore, based upon the statutory provisions, any lawsuit involving health care liability claims filed prior to September 1, 2003, had no provision permitting interlocutory appeal when a trial court denied a motion to dismiss for failure to file an adequate expert report. See also In re Woman’s Hosp. of Texas, Inc., 141 S.W.3d 144, 148 (Tex.2004) (Owen, J., concurring and dissenting) (noting that interlocutory appeal is available only in health care liability cases filed on or after September 1, 2003). In the instant case, a finding favorable to St. Mary’s position would lead to hybrid causes of action being tried in the same suit should Griffin ultimately prevail on his bill of review petition. Griffin’s health care liability claims against the two defendant-physicians and the defendant-blood center would proceed under the provisions contained in article 4590i, while Griffin’s claims against St. Mary would proceed under the provisions of Chapter 74, with all of the claims possibly being adjudicated in one trial. See Goldsmith, 582 S.W.2d at 409.

We find that St. Mary has failed to invoke our appellate jurisdiction as the February 25, 2005, order denying its motion to dismiss is not governed by Chapter 74 or tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(9) (Vernon Supp.2005), and there is no provision under art. 4590i for appeals of interlocutory orders. See Stary v. DeBord, 967 S.W.2d 352, 352-53 (Tex.1998) (appellate courts have jurisdiction to consider immediate appeals of interlocutory orders only if a statute explicitly provides appellate jurisdiction). We further believe that a finding of jurisdiction at this stage would ignore the “separate and wholly independent” nature of a bill of review. The cause is dismissed for lack of jurisdiction and remanded to the trial court.

APPEAL DISMISSED FOR LACK OF JURISDICTION.

DAVID GAULTNEY, Justice,

dissenting.

Because the bill of review proceeding was filed after the effective date of section 74.351(a), the statute applies and requires that an expert report be filed within 120 days of the filing of the health care liability claim. See tex. Civ. Prac. & Rem.Code Ann. § 74.351(a) (Vernon 2005). The trial court below signed an order which denied a motion to dismiss for failure to timely file an expert report under that section. See id. at 74.351(b). The Legislature has authorized an appeal from an interlocutory order that denies a motion to dismiss for failure to timely file an expert report under section 74.351. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(9) (Vernon Supp. 2005). Therefore, we have jurisdiction over the appeal.

The majority rests the jurisdictional holding on the assertion that Griffin’s bill of review is merely an attempt to have the dismissal with prejudice in the original suit set aside and “to have both parties placed back into the original cause, currently pending in the 60th District Court.” Because of the nature of a bill of review proceeding, the majority reasons, no statute requires an expert report and no statute permits an interlocutory appeal of the order denying the motion to dismiss. I believe this is incorrect.

First, a bill of review is not like a motion for new trial or an appeal; it is an independent action, a separate suit from the original cause in which the judgment was signed. See Wembley Inv. Co. v. Herrera, 11 S.W.3d 924, 926-27 (Tex.1999)(“an independent action”); Baker v. Goldsmith, 582 S.W.2d 404, 406 (Tex.1979) (“an independent equitable action”); Lehtonen v. Clarke, 784 S.W.2d 945, 947 n. 1 (Tex.App.Houston [14th Dist.] 1990, writ denied)(“A bill of review is of course a separate and wholly independent lawsuit.”). In fact, an order consolidating a bill of review with an original action would ordinarily be without any effect, because the trial court would no longer have jurisdiction over the original suit. See Stansbury v. Hicks, 396 S.W.2d 526, 527-528(Tex.Civ.App.-Fort Worth 1965, no writ). Here, the trial court in the original suit severed plaintiffs cause of action against the hospital. Plaintiff did not file an appeal from that severed order of dismissal and the order became final. It is too late to “have both parties placed back into the original cause,” as the majority suggests. That may have been achieved through a timely appeal, but it is not the function of a bill of review.

I disagree with the majority for a second reason. This bill of review is a health care liability claim. The trial of the bill of review will result in a judgment disposing of the health care liability dispute between the parties on its merits. See generally Crabtree v. Crabtree, 627 S.W.2d 486, 487 (Tex.App.-Corpus Christi 1981, no writ) (“The final judgment in a bill of review action should either deny any relief to the plaintiff or set aside the former decree in its entirety and substitute therefor a new judgment properly adjudicating the entire controversy.”) (citations omitted)(emphasis in original). Therefore, the bill of review petition must allege a meritorious health care liability claim that would support a judgment on the merits. See generally K.B. Video & Elecs., Inc. v. Naylor, 847 S.W.2d 401, 405 (Tex.App.-Amarillo 1993, writ denied) (Petitioner must show entitlement to judgment on the merits.). In their bill of review petition, plaintiffs recognize this: For example, they state, “In cases of medical negligence involving a hospital, including this one, the hospital’s own account, as contained in its records, is the only documentary evidence of whether or not the hospital is guilty of medical negligence.” Plaintiffs were aware of section 74.351 when they filed their bill of review petition. Their petition states, “It is impossible for a retained expert to write a report compliant with 4590i or CPRC 74.351 if the facts are not reflected in the record or otherwise disclosed.” Whén a claim is governed by a statute, the statutory requirements ordinarily must be satisfied. An expert report should have been filed within 120 days of the filing of this health care liability claim.

The majority notes the effective date of Chapter 74 would place the bill of review defendant in a position different from the parties to the original suit. What first places the bill of review defendant in a different position is the dismissal order with prejudice. More to the point, the effective date of the statute is an issue for the Legislature, and we are not free to create exceptions to the statute. The plaintiff failed to timely file the report in this health care liability claim. The lawsuit should have been dismissed by the trial court.

I believe the report requirement is entirely consistent with the nature of a bill of review proceeding. A bill of review petition must do more than merely allege a cause of action. See K.B. Video, 847 S.W.2d at 405. Rule 329b(f) states, “On expiration of the time within which the trial court has plenary power, a judgment cannot be set aside by the trial court except by bill of review for sufficient cause, filed within the time allowed by law....” The grounds sufficient to set aside a judgment on bill of review “are narrow because the procedure conflicts with the fundamental policy that judgments must become final at some point.” King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.2003) (citations omitted). Generally, the bill of review petitioner must show the following: (1) facts sufficient to'constitute a meritorious claim or defense; (2) the petitioner was prevented, from making the claim or defense by fraud, accident, or wrongful act of his or her opponent; and (3) the petitioner was not negligent. Id. at 752; see also Goldsmith, 582 S.W.2d at 406-07(Peti-tioner must present sworn facts sufficient to constitute meritorious defense or claim.).

The “meritorious claim or defense” element has been described in one law review article as the “loss of a meritorious opportunity to avoid the judgment now complained of[,]” because the element is broad enough to encompass the loss of a meritorious claim, motion for new trial, motion to reinstate, or appeal. See Roger S. Braugh, Jr. & Paul C. Sewell, Equitable Bill of Review: Unraveling the Cause of Action that Confounds Texas Courts, 48 BayloR L.Rev. 628, 630-31 (1996); see Petro-Chem. Transp., Inc. v. Carroll, 514 S.W.2d 240, 245-46 (Tex.1974)(loss of right to file a motion for new trial or appeal). In Petro-Chemical Transport, Inc., for example, the Supreme Court said the trial error involved in the loss of a meritorious ground of appeal must be set out in the bill of review petition with particularity. See id. at 246. Here, the alleged “lost opportunity” relates to the timely filing of an adequate expert report in a health care liability claim. The expert report requirement allows the trial court to determine whether the claim is meritorious. I believe when a bill of review petitioner attacks an order dismissing a claim because of an inadequate expert report, the petitioner should at least include an adequate expert report with the bill of review petition. In my view, anything less would not sufficiently address the “meritorious claim or defense” element of the bill of review in that type of case, and would not state sufficient cause to set aside the prior dismissal order.

Because we have appellate jurisdiction under section 51.014(a)(9) to review the trial court’s order, I respectfully dissent.

      . See Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, sec. 13.01, 1995 Tex. Gen. Laws 985, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.01, § 10.09, 2003 Tex. Gen. Laws 847, 864-82, 884 (current version at Tex. Civ. Prac. & Rem.Code Ann. §§ 74.001 — 74.507 (Vernon 2005)) (formerly found at Tex.Rev.Civ. Stat. Ann. art. 4590i (Vernon Supp.2003)). Griffin filed his suit on a health care liability claim before the 2003 repeal of article 4590Í; therefore, all of Griffin’s health care liability claims are governed by the provisions of article 4590i in effect at that time. See Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 23.02(d), Tex. Gen. Laws 847, 899.

      . St. Mary’s motion for summary judgment against the bill of review was eventually denied without explanation on March 23, 2005.

      . The dissent points out that an expert report is necessary for the trial court’s determination on the merits of the bill of review. We agree with that analysis.

      . Plaintiffs base their "fraud" claim on alleged "inaccurate charting” by the hospital, info'rmation they say they learned after deposing a physician.


author: Justice WRIGHT.

text:
    In the Interest of S.C.L.
    No. 05-04-01527-CV.
    Court of Appeals of Texas, Dallas.
    Oct. 31, 2005.

      Sharon E. Ramage, Frisco, Attorney Ad Litem.
    Douglas T. Floyd, Plano, for Appellant.
    Cynthia Palmer, Collin County District Attorney’s Office, Katharine K. Decker, Assistant District Attorney, McKinney, for Appellee.

      Before Justices MORRIS, WRIGHT, and RICHTER.
   OPINION

Opinion by

Justice WRIGHT.

Mark S. appeals the trial court’s dismissal of his petition to adjudicate the parentage of S.C.L. In a single issue, Mark S. contends the trial court erred by determining his petition to adjudicate parentage was barred by limitations. We overrule Mark S.’s issue and affirm the trial court’s order dismissing his petition to adjudicate parentage.

After the parental rights of S.C.L.’s mother and presumptive father were terminated, Mark S., S.C.L.’s biological father, sought to be adjudicated S.C.L.’s father. As S.C.L.’s “parent,” Mark S. would be entitled to the presumption that he should be appointed as conservator unless it was not in S.C.L.’s best interests to do so. See Tex. Fam.Code Ann. § 153.191 (Vernon 2002). Mark S. and the Texas Department of Family and Protective Services (TDFPS) agreed to submit this case to the trial court on written submissions, including affidavits and business records. After considering the written submissions, the trial court granted TDFPS’s motion to dismiss. Subsequently, the trial court made, among others, the following findings of fact and conclusions of law:

(1) S.C.L.’s mother is Tina L.
(2) Tina L. was married to Ernest L. when S.C.L. was born.
(3) Ernest L. is named as S.C.L.’s father on his birth certificate.
(4) Ernest L. is the presumed father of S.C.L. pursuant to Section 160.204(b) of the Texas Family Code.
(5) Following a trial on the merits, Tina L.’s and Ernest L.’s parental rights to S.C.L. were terminated on September 22, 2003 and TDPRS was appointed permanent managing conservator of S.C.L.
(6) Mark S. has been named the alleged father of S.C.L.
(7) Mark S. was aware of Tina L.’s pregnancy.
(8) Mark S. filed a petition to adjudicate paternity on January 22,2004.
(9) Mark S. filed the petition to adjudicate paternity after the four-year statute of limitations set out in section 160.607 of the Texas Family Code.

In Texas, a child born to a married woman living with her husband is presumed to be a child of the marriage. See Tex. Fam.Code Ann. § 160.204(a)(1) (Vernon Supp.2004-05). A “presumed father” is, by operation of law under section 160.204, “recognized as the father of the child until that status is rebutted or confirmed in a judicial proceeding.” Tex. Fam. Code Ann. § 160.102(13) (Vernon 2002). This presumption may only be rebutted by (1) a proceeding to adjudicate parentage, or (2) the filing of a valid denial of paternity by the presumed father in conjunction with the filing by another person of a valid acknowledgment of paternity. See Tex. Fam.Code Ann. § 160.204(b) (Vernon Supp. 2004-05). When, as here, there is a presumed father, a proceeding to adjudicate parentage must be commenced “not later than the fourth anniversary of the date of the birth of the child.” Tex. Fam.Code Ann. § 160.607(a) (Vernon Supp.2004-05).

Mark S. does not challenge that he filed his petition after S.C.L.’s fourth birthday in contravention of section 160.607. Rather, he argues that “a literal interpretation” of section 160.607 is unconstitutional under both the United States and the Texas Constitutions because he, as the biological father, has a “natural right as to standing to seek conservatorship.” Mark S. also contends that as S.C.L.’s biological father, he should be appointed sole managing conservator of S.C.L. “because there are no natural persons that are a conservator” of S.C.L. We cannot agree.

We begin -with Mark S.’s contention that the statutory bar violates his federal due process rights. In Michael H. v. Gerald D., 491 U.S. 110, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1989), a four-member plurality of the United States Supreme Court determined that Michael H.’s interest in establishing his parentage with his biological daughter was not constitutionally protected. Id. at 129-30, 109 S.Ct. 2333. Michael H. had an affair with Carol D. At the time, Carol D. was married to Gerald D., and she became pregnant with Victoria D. Gerald D. was listed as Victoria D.’s father on Victoria D.’s birth certificate, and Gerald D. held out she was his daughter. Although Carol D. and Gerald D. remained married, several times over the next few years, Carol D. and Victoria D. lived with Michael H. At these times, Michael H. also held Victoria D. out as his daughter. Eventually, Gerald D. and Carol D. reconciled and prevented Michael H. from seeing Victoria D. Michael H. filed suit to establish his paternity and right to visitation. The suit was dismissed pursuant to a California statute limiting rebuttal of the presumption of legitimacy to only the husband or wife. The Supreme Court determined that because relationships such as that between Michael H. and his biological child have not historically been treated as a protected family unit, Michael H.’s interest in establishing his parentage was not constitutionally protected. Id. at 121-31, 109 S.Ct. 2333. Thus, the Court determined that the California statute precluding a biological father’s right to challenge paternity and limiting the presumptive father’s and the mother’s right to challenge paternity to two years from the child’s date of birth, was a matter of legislative policy and not constitutional law. Id. at 129-30, 109 S.Ct. 2333. Because the United States Supreme Court has determined that a biological father’s right to establish parentage is not constitutionally protected and statutes limiting that right are a matter of legislative policy not constitutional law, we cannot conclude Mark S.’s federal due process rights are violated by applying section 160.607(a).

We reach a similar conclusion with respect to Mark S.’s rights under the Texas due course of law guarantee. The Texas Constitution guarantees standing to a biological father who asserts his interest in establishing a relationship with the child near the time of the child’s birth if he (1) acknowledges responsibility for child support or other care and maintenance and (2) makes serious and continuous efforts to establish a relationship with the child. In the Interest of J.W.T., 872 S.W.2d 189, 195 (Tex.1994). The record in this case shows that although he knew of Tina L.’s pregnancy, Mai’k S. did not assert his interest in establishing a relationship with S.C.L. near the time of S.C.L.’s birth, nor did he thereafter make serious and continuous efforts to establish a relationship with S.C.L. Consequently, we cannot conclude applying section 160.607(a) violates his state due course of law guarantee.

To the extent Mark S. argues that section 160.607(a) does not apply to him because Ernest L.’s parental rights to S.C.L. have been terminated, again we disagree. S.C.L. was born during Tina L. and Ernest L.’s marriage. S.C.L. was therefore presumed to be a child of the marriage. See Tex. Fam.Code Ann. § 160.204(a)(1). This presumption may be rebutted only by (1) a proceeding to adjudicate parentage, or (2) the filing of a valid denial of paternity by the presumed father in conjunction with the filing by another person of a valid acknowledgment of paternity. See Tex. Fam.Code Ann. § 160.204(b). The termination of Ernest L.’s parental rights was not effectuated through a proceeding to adjudicate parentage or by the filing of a denial of paternity in conjunction with a valid acknowledgment of paternity. Thus, contrary to Mark S.’s contention, termination of Ernest L.’s parental rights did not somehow rebut or disestablish the presumption of Ernest L.’s parentage. See In the Interest of A.L.J., 929 S.W.2d 467, 473 (Tex.App.Tyler 1996, writ denied). Nothing in Texas law suggests that the termination of a presumed father’s parental rights somehow inures legal benefits to a biological father. Rather, termination of Ernest L.’s parental rights is specific to the parent-child relationship between Ernest L. and S.C.L., and it divested Ernest L. and S.C.L of all legal rights, privileges, duties, and powers normally existing between them, except for S.C.L.’s right to inherit. See Tex. Fam.Code Ann. § 161.206(b) (Vernon 2004-05). That S.C.L. retains his rights of inheritance from Ernest L. supports our determination that although Ernest L.’s parental rights, privileges, duties, and powers have been divested, he nevertheless remains S.C.L.’s presumptive father until that presumption is rebutted by a proceeding to adjudicate parentage or by the filing of a denial of paternity in conjunction with a valid acknowledgment of paternity.

Finally, we cannot conclude Mark S. is entitled to the presumption that as S.C.L.’s parent, he should be appointed as conservator unless it was not in S.C.L.’s best interests to do so. See Tex. Fam.Code Ann. § 153.191 (Vernon 2002). Mark S. has not provided, nor can we find, support for the proposition that an alleged or biological father is entitled to such a presumption. Rather, the presumption applies to “parents.” Mark S. has not been adjudicated as S.C.L.’s parent. In fact, the basis for this appeal is the dismissal of his petition to adjudicate parentage and we have concluded that the trial court did not err in its determination that his petition is barred by limitations. Without an adjudication of parentage, we cannot conclude Mark S. is entitled to the section 153.191 presumption. We overrule Mark S.’s sole issue.

Our disposition of this issue is well-grounded in law, but we note that the purpose of section 160.607(a) is to limit the time in which to establish a parent-child relationship when there is a presumptive father so as to protect the family unit. Here, there was no longer a family unit to protect once the parental rights of Ernest L. and Tina L. were terminated. Had there been no presumptive father, Mark S. would not be precluded from establishing a parent-child relationship with S.C.L. See Tex. Fam.Code Ann. § 160.606 (Vernon 2002) (proceeding to adjudicate the parentage of a child having no presumed, acknowledged, or adjudicated father may be commenced at any time). Nevertheless, because Ernest L. remains S.C.L.’s presumptive father in spite of his parental rights having been terminated, the current law leaves a biological father, such as Mark S., with no greater ability to establish a parent-child relationship or be appointed as conservator than any stranger to the relationship. These facts raise an issue inviting legislative review.

We affirm the trial court’s order dismissing Mark S.’s petition to adjudicate parentage.

      . A proceeding seeking to disprove the father-child relationship between a child and the child’s presumed father may be maintained at any time if the court determines that (1) the presumed father and the mother of the child did not live together or engage in sexual intercourse with each other during the probable time of conception; and (2) the presumed father never represented to others that the child was his own. Tex Fam.Code Ann. § 160.607(b) (Vernon Supp.2004-05). Mark S. did not contend either of these conditions were met in this case.

      . At the time S.C.L. was bom, the predecessor statute limited the time for filing such a petition to two years. See Act of 1993, 73rd Leg., R.S., ch. 730, § 4, 1993 Tex. Gen. Laws 2863, 2864, (repealed 1995) (current version at Tex. Fam.Code Ann. § 160.607 (Vernon Supp.2004 — 05)). Mark S.’s petition is untimely under either version. Therefore, for convenience, we will refer to the current version.

      . We question whether Mark S. adequately briefed his constitutional complaints. With respect to his federal due process rights, Mark S. contends only that the United States Supreme Court’s decision in Michael H. v. Gerald D., 491 U.S. 110, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1989), is not controlling because that case analyzed a California, not a Texas, statute. With respect to his Texas due course of law guarantee, Mark S. does not analyze or cite to a single case, nor does he in any way attempt to explain how his due course of law rights differ from his due process rights. Nevertheless, in the interest of justice, we will address both complaints.