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    Carol Keeton STRAYHORN, Comptroller of Public Accounts of the State of Texas and Greg Abbott, Attorney General of the State of Texas, Appellants v. WILLOW CREEK RESOURCES, INC., Appellee.
    No. 03-04-00629-CV.
    Court of Appeals of Texas, Austin.
    March 24, 2005.

      Blake A. Hawthorne, Asst. Atty. Gen., Austin, for Appellants.
    Mark W. Eidman, Ray Langenberg, Scott, Douglass & McConnico, LLP, Austin, for Appellee.
    Before Chief Justice LAW, Justices B.A. SMITH and PEMBERTON.
   OPINION

BEA ANN SMITH, Justice.

In this case, we determine whether the informal review of a tax-refund claim provided by tax code section 111.1042 tolls the statute of limitations for filing that claim. See Tex. Tax Code Ann. § 111.1042 (West Supp.2004-05). To do this, we must construe the term “administrative proceeding,” as it was used in tax code section 111.207(d), to ascertain whether the legislature intended to include the informal review of a tax-refund claim. Appellant, the Comptroller, contends that the legislature intended the term “administrative proceeding” in former section 111.207(d) to refer to agency adjudications involving either a contested case or a hearing. Appel-lee Willow Creek argues that the term is used to describe the process by which an agency adjudicates disputes, regardless of whether a hearing is held. The district court granted Willow Creek’s motion for summary judgment, holding that a review held pursuant to section 111.1042 constitutes an administrative proceeding for the purposes of tolling the statute of limitations for filing a refund claim. Because we hold that the term “administrative proceeding,” as used in this statute of limitations, references all agency adjudications, we affirm.

Background

Willow Creek is an oil and gas exploration and production company. On April 17, 2000, Willow Creek requested a tax refund of $464,507.62 for marketing cost credits for the period of January 1997 to December 1999. Willow Creek’s claim was reviewed and processed by the Comptroller. The Comptroller approved the claim in part and issued a refund for $362,818.46 on February 3, 2001. Willow Creek did not contest the reduction or request a full refund hearing.

On December 6, 2001, Willow Creek filed a second tax-refund claim in the amount of $3,770.93 for marketing cost credits for the period of October 1997 to December 1999. While the Comptroller was reviewing the claim, Willow Creek was informed that the five wells that form the basis of this suit were certified by the Railroad Commission as producers of “high-cost gas.” See Tex. Tax Code Ann. § 201.057(a)(2)(A) (West Supp.2004-05). As a result of the certification, the Comptroller approved Willow Creek’s request for a high-cost gas exemption at a reduced tax rate. On July 1, 2002, Willow Creek filed a third tax-refund claim seeking credit for the high-cost gas exemptions. The third claim sought $1,924,987.77 and covered the period from January 1997 to December 1999.

The Comptroller reviewed the third claim and determined that the portion stemming from January 1997 to April 1998 was barred because the request was filed after the four-year statute of limitations had ran. The Comptroller approved the remainder of the third claim and issued a refund to Willow Creek in the amount of $764,304.94. Willow Creek then requested a full refund hearing in order to contest the Comptroller’s decision to deny part of its third refund claim. After the hearing, the Comptroller adopted the administrative law judge’s conclusion that the disallowed portion of Willow Creek’s third claim was not filed within the four-year statute of limitations period for claiming a tax refund. Willow Creek’s motion for rehearing was denied by the Comptroller.

Willow Creek then filed a lawsuit in district court contending that the Comptroller erred by partially denying its third claim because the statute of limitations was tolled by the first and second claims. Willow Creek and the Comptroller filed motions for summary judgment. After a hearing on the motions, the district court held that the statute of limitations was tolled and ordered the Comptroller to issue an additional tax refund to Willow Creek in the amount of $748,858.25 plus interest for the credits incurred between July 1997 and April 1998. This appeal followed.

STANDARD OF REVIEW

Summary Judgment

When both sides move for summary judgment and the trial court grants one motion and denies the other, the reviewing court should review both sides’ summary-judgment evidence and determine all questions presented. See FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex.2000); Commissioners Court v. Agan, 940 S.W.2d 77, 81 (Tex.1997); Jones v. Strauss, 745 S.W.2d 898, 900 (Tex.1988). The reviewing court should render the judgment that the trial court should have rendered. See FM Props., 22 S.W.3d at 872; Agan, 940 S.W.2d at 81; Members Mut. Ins. Co. v. Hermann Hosp., 664 S.W.2d 325, 328 (Tex.1984). When a trial court’s order granting summary judgment does not specify the grounds relied upon, the reviewing court must affirm summary judgment if any of the summary judgment grounds are meritorious. See FM Props., 22 S.W.3d at 872-73; Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex.1995).

A party moving for summary judgment on the basis of limitations must conclusively establish the bar of limitations. Jennings v. Burgess, 917 S.W.2d 790, 793 (Tex.1996); Delgado v. Bums, 656 S.W.2d 428, 429 (Tex.1983); Zale Corp. v. Rosen-baum, 520 S.W.2d 889, 891 (Tex.1975). If the nonmovant asserts that a tolling provision applies, the movant must conclusively negate the tolling provision’s application to show its entitlement to summary judgment. Jennings, 917 S.W.2d at 793; Zale, 520 S.W.2d at 891; Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 518 (Tex. 1989).

Statutory Construction

In this case, we must construe the term “administrative proceeding,” as it was used in former section 111.207(d), to determine whether it included the informal review of a tax refund request. Statutory construction is a question of law that we review de novo. Texas Dep’t of Transp. v. Need-ham, 82 S.W.3d 314, 318 (Tex.2002). Our primary goal is to ascertain and effectuate the legislature’s intent from the plain meaning of the actual language used. Lenz v. Lenz, 79 S.W.3d 10, 19 (Tex.2002); Albertson’s, Inc. v. Sinclair, 984 S.W.2d 958, 960 (Tex.1999). Additionally, the primary rale in statutory interpretation is that a court must give effect to the legislative intent, considering the language of the statute, its legislative history, the objective sought, and the consequences that would flow from alternative constructions. Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 383 (Tex.2000) (op. on reh’g).

An administrative agency’s construction or interpretation of a statute, which the agency is charged with enforcing, is entitled to serious consideration by reviewing courts, so long as that construction is reasonable and does not contradict the plain language of the statute. Employees Ret. Sys. v. Jones, 58 S.W.3d 148, 151 (Tex.App.-Austin 2001, no pet.) (citing Steering Comms. for the Cities Served by TXU Elec. & Cent. Power & Light Co. v. Public Util. Comm’n, 42 S.W.3d 296, 300 (Tex.App.-Austin 2001, no pet.)). Nevertheless, we are not bound by an agency’s interpretation of a statute that it administers or enforces. See Rylander v. Fisher Controls Int’l, Inc., 45 S.W.3d 291, 299 (Tex.App.-Austin 2001, no pet.). When the interpretation does not involve technical or regulatory matters within the agency’s expertise but requires the discernment of legislative intent, we give much less deference to the agency’s reading of a statute. See Flores v. Employees Ret. Sys. of Tex., 74 S.W.3d 532, 545-46 (TexApp.-Austin 2002, pet. denied).

DISCUSSION

A tax-refund claim must be filed before the expiration of the applicable limitation period. Tex. Tax Code Ann. § 111.104(c)(3) (West Supp.2004-05). The statute of limitations for tax refunds is four years from the date the tax becomes due and payable. Id. §§ 111.107, .201 (West 2001). The due date for monthly gas-production tax payments is the twentieth day of the second month following production. Id. § 201.201 (West 2002). Thus, on July 1, 2002, when Willow Creek filed its third claim, any refund of taxes paid prior to May 1998 was barred by the statute of limitations unless Willow Creek’s filing deadline had been tolled.

Willow Creek claims that the Comptroller’s informal review of its first claim constituted an administrative proceeding that tolled the statute of limitations. The tolling provision in effect at the time stated, “In determining the expiration date for filing a refund claim for a tax imposed by this title, the period during which an administrative proceeding is pending before the comptroller for the same period and type of tax is not considered.” See supra note 1 (emphasis added). Willow Creek and the Comptroller agree that if the statute of limitations was not tolled then a portion of Willow Creek’s third claim is barred. Therefore, our decision in this case turns on whether the informal review of a tax-refund claim by the Comptroller constituted an administrative proceeding under the tolling provision.

The Comptroller argues that the informal review of a tax-refund request does not constitute an administrative proceeding. Therefore, the Comptroller contends that the informal disposition of Willow Creek’s first claim did not toll the statute of limitations and that its denial of a portion of the third claim was proper. The Comptroller had the burden of conclusively negating the tolling provision provided by former section 111.207(d) in order to prevail on its cross-motion for summary judgment. See Jennings, 917 S.W.2d at 793; Zale, 520 S.W.2d at 891; Woods, 769 S.W.2d at 518.

Tax Code Section 111.1042

The Comptroller contends that tax code section 111.1042 was added by the legislature in 1993 to clarify that the informal review of a tax-refund claim is not an administrative proceeding. See Tex. Tax Code Ann. § 111.1042. The Comptroller asserts that section 111.1042(b) was a legislative response to our holding in Sharp v. AMSCO Steel Co., 893 S.W.2d 742 (Tex. App.-Austin 1995, writ denied), in which we held that the Comptroller’s issuance of a refund check constituted a final decision in a contested case. In AMSCO Steel, we did not address whether the informal review of a tax-refund claim is an administrative proceeding that tolled the statute of limitations. Rather, we assumed that the informal review of the refund claim was a contested case because the Comptroller had traditionally treated informal reviews as contested cases. The Comptroller now contends that because we assumed in AM-SCO Steel that the informal review of a tax refund was a contested case that tolled the statute of limitations under former section 111.207(d), we implicitly held that an administrative proceeding was synonymous with a contested case or hearing. Thus, when the legislature explicitly stated in section 111.1042(b) that the informal review of a tax-refund claim is not a “hearing or contested case,” its purpose was to clarify that an informal review was not an administrative proceeding for the purposes of tolling the statute of limitations. See Tex. Tax Code Ann. § 111.1042(b).

The informal review and disposition of tax-refund claims developed in the wake of this Court’s Sage Energy decision. Overhead Door Corp. v. Sharp, 970 S.W.2d 74, 75 (TexApp.-Austin 1998, no pet.) (discussing Bullock v. Sage Energy Co., 728 S.W.2d 465 (TexApp.-Austin 1987, writ ref d n.r.e.)). The dispute in Sage Energy arose because the Comptroller had assessed different amounts of franchise tax against similarly situated corporations solely because those corporations used different accounting methods. Id. We determined that the Comptroller’s different treatment of similarly situated corporations violated the equal-and-uniform-taxation provision of the Texas Constitution. Id. “After the Sage {Energy ] decision, the Comptroller, faced with thousands of additional refund claims, instituted an abbreviated refund procedure by which refund checks were simply issued for claims that were undisputed and verified as to amount, while disputed claims were handled through the normal administrative process.” AMSCO Steel, 893 S.W.2d at 743.

It is clear that tax code section 111.1042 served the purpose of statutorily authorizing the informal review and disposition procedures instituted by the Comptroller after Sage Energy. There is no indication in the legislative history that would lead us to conclude that the purpose of enacting this section was to limit the scope of former section 111.207(d)’s tolling provision to contested cases or hearings. Indeed, it is plausible that the purpose of the section was simply to distinguish the informal review of a tax-refund claim from the formal hearing provided by tax code section 111.105. Compare Tex. Tax Code Ann. § 111.1042 with § 111.105 (West Supp. 2004-05).

Furthermore, if the legislature intended section 111.1042(b) to limit the application of the tolling provision to the formal review of tax-refund claims, it could have easily said that the informal review of a tax-refund claim is not an administrative proceeding. See City Public Se'n'v. Bd. of San Antonio v. Public Util. Comm’n, 96 S.W.3d 355, 359 (TexApp.-Austin 2002, no pet.) (citing State v. Mauritz-Wells Co., 141 Tex. 634, 175 S.W.2d 238, 241 (1943)) (“the express mention or enumeration of one person, thing, consequence, or class is equivalent to an express exclusion of all others”). Instead, the legislature used the specific terms “hearing” and “contested case” in section 111.1042(b). This fact underscores Willow Creek’s contention that 111.1042(b) was added to distinguish the informal review of refund. claims from those disposed of through formal hearings.

More importantly, had the legislature intended that an informal review of a refund claim not toll the statute of limitations, it could have expressly said so. In the same Act, the legislature amended tax code section 111.108, authorizing the Comptroller to recover erroneously paid refunds, by adding subsection (b) that specifically states, “This section does not extend or toll a period of limitations under this title for filing a timely claim for refund.” See Act of May 28th, 1993, 73d Leg., R.S., ch. 587, § 9, 1993 Tex. Gen. Laws 2223, 2224 (current version at Tex. Tax Code Ann. § 111.108(b) (West 2001)). This demonstrates that the legislature was aware of and considered the effect its actions would have on the statute of limitations for filing refund claims. Thé fact that the legislature did not include similar language in section 111.1042 is indirect evidence that the legislature intended the informal review of tax-refund claims to be considered an administrative proceeding that tolled the statute of limitations for filing a refund claim.

The Comptroller insists that an informal review is not an administrative proceeding, relying on the 2003 amendment which clarified that only a redetermination or refund hearing serves to toll the statute of limitations for claiming a tax refund. We decline to rely on the 2003 amendment for two reasons. First, the amending act stated, “The changes in law made by this Act to Chapter 111, Tax Code, apply only to a claim for a refund made on or after the effective date of this Act, without regard to whether the taxes that are the subject of the claim were due before, on, or after that date.” Tex. Tax Code Ann. § 111.207 historical note (West Supp.2004-05) [Act of June 2, 2003, 78th Leg., R.S., ch. 1310, § 122(1), 2003 Tex. Gen. Laws 4748, 4795]. Willow Creek’s third claim was made prior to the 2003 amendment. Second, the intent or understanding of the 78th Legislature offers no insight into the intent of previous legislatures. See Adams v. Baxter Healthcare Corp., 998 S.W.2d 349, 355 (TexApp.-Austin 1999, no pet.) (citing Rowan Oil Co. v. Texas Employment Comm’n, 152 Tex. 607, 263 S.W.2d 140,144 (1953) (“One session of the legislature does not have the power to declare the intent of a past session.”)).

We conclude that the Comptroller has not established that the legislative purpose for enacting section 111.1042 was to limit the scope of the term “administrative proceeding,” thereby excluding the application of former section 111.207(d)’s tolling provision to the informal review of tax-refund claims.

Administrative Proceedings

Next, we must determine whether the informal review of a tax refund claim constitutes an administrative proceeding for the purposes of tolling the filing deadline for a tax-refund claim. The Comptroller contends that (1) an administrative proceeding is synonymous with an evidentiary or adjudicatory hearing before an agency, (2) construing the term “administrative proceeding” to include the informal review of tax refund claims creates conflict with other statutes, and (3) we should adopt the Comptroller’s construction that an informal review of a tax-refund claim is not an administrative proceeding.

Scope of Administrative Proceedings

The supreme court has described other informal proceedings similar to those at issue here as administrative proceedings. In Texas Department of Transportation v. Jones Brothers Dirt & Paving Contractors, Inc., 92 S.W.3d 477 (Tex.2002), the supreme court analyzed transportation code section 201.112. See Tex. Transp. Code Ann. § 201.112 (West Supp.2004-05) (outlining procedure for resolution of contract claims by Transportation Commission). Under that section, the Transportation Commission is authorized to develop informal procedures for the resolution of contract claims. Id. § 201.112(a). If a person is dissatisfied with the informal resolution of the claim, the person may request a formal administrative hearing to resolve the claim. Id. § 201.112(b). The supreme court characterized the informal review and denial of Jones’s contract claims as an administrative proceeding. Jones, 92 S.W.3d at 479-80. We find the informal and formal dispute resolution procedures provided by transportation code section 201.112 to be parallel to the informal disposition of tax-refund claims.

The Comptroller does not dispute that a contested-case hearing is an administrative proceeding. A contested case is a proceeding in which the legal rights, duties, or privileges of a party are to be determined by a state agency after an opportunity for adjudicative hearing. Tex. Gov’t Code Ann. § 2001.003(1) (West 2000). As we discussed earlier, the informal review process for tax-refund claims was designed in part to quickly dispose of the requesting party’s legal right to a refund. See AMSCO Steel, 893 S.W.2d at 743. Accordingly, by informally reviewing and disposing of a refund claim, the Comptroller adjudicates the requesting party’s dispute. The only difference between the informal disposition process and a contested case is that a contested case generally involves a hearing. However, a contested case may also be disposed of without a hearing. Tex. Gov’t Code Ann. § 2001.056 (West 2000) (providing that contested cases may be informally disposed by stipulation, agreed settlement, consent orders, or default). Thus, we hold that there is no significant difference between a refund claim that is informally disposed of under section 111.1042 and the informal disposition of a formal refund request that was initially treated as a contested case.

At oral argument and in her brief the Comptroller argued that by analyzing the definition of the term “administrative proceeding” in conjunction with an Alaska Supreme Court decision, in which that court outlined the three essential attributes of an administrative proceeding, it would become clear that the type of informal review involved in this case is not an administrative proceeding. See Hickel v. Halford, 872 P.2d 171, 178 (Alaska 1994). Black’s Law Dictionary defines “administrative proceeding” as “[a] hearing, inquiry, investigation, or trial before an administrative agency, usually adjudicatory in nature but sometimes quasi-legislative.” Black’s Law Dictionary 46 (7th ed.1999). In Hickel, the Alaska Supreme Court asserted that the three essential attributes of an administrative proceeding are that:

1) A dispute must exist;
2) a document reflecting the fact of the dispute which serves a function similar to that of a complaint in a civil action, or an accusation or statement of issues must be served by one party on the other party; and
3) the document must set in motion mechanisms prescribed by statute or regulation under which the dispute will ultimately be resolved.

Id. at 176. Although the Hickel court’s analysis of what constitutes an administrative proceeding is not binding on Texas courts, we conclude that the informal review of Willow Creek’s first tax-refund claim possessed all three essential attributes. Thus, the test presented by the Comptroller only serves to provide additional evidence that the informal review of a tax-refund claim is an administrative proceeding. To illustrate this point we will now apply Hickel to the facts of this case.

We first consider whether a dispute existed at the time Willow Creek filed its first claim. Dispute is defined as a “conflict or controversy.” Black’s Law Dictionary 485. The Comptroller suggests that there was no dispute because it ultimately agreed that Willow Creek was entitled to a partial refund. The Hickel court explained otherwise:

A dispute may exist for our purposes even where the non-initiating party immediately agrees with initiating party’s assertions and where the non-initiating party would have been disposed to agree prior to initiation of the proceeding. It is the placing of an issue in controversy, under circumstances that require a response and eventual resolution of the issue, and not the exact means by which a resolution is reached, that indicates the presence of a dispute.

Hickel, 872 P.2d at 179 n. 15. Here, Willow Creek requested an informal review of its tax refund claim. The Comptroller was free to “grant or deny it, in whole or in part.” Tex. Tax Code Ann. § 111.1042(a). Willow Creek placed in controversy the issue of whether it had a legal right to a refund. Thus, the first attribute of an administrative proceeding was present when Willow Creek filed its first claim.

We next determine whether the letter in which Willow Creek claimed its first tax refund served as a. document reflecting the facts of the dispute, similar to the function of a complaint in a civil action. See Hickel, 872 P.2d at 176. The Hickel court required such a document if an administrative proceeding is to be accorded finality consistent with the requirements of due process. Id. at 180. The court held that the initiating document must begin an adjudication in which the non-initiating party has a legal duty to respond. Id. at 181.

Tax code section 111.104 states that a refund request must be written, state the ground on which the claim is founded, and be filed before the expiration of the applicable limitations period. Tex. Tax Code Ann. § 111.104(e)(l)-(3). Additionally, the Comptroller must, within one year of receiving a complete detailed report upon which she may issue a credit or refund, issue or deny the refund claim. 34 Tex. Admin. Code § 3.19(d). There is no dispute that Willow Creek’s letter met the statutory requirements for a refund claim and that the Comptroller possessed all of the necessary documentation to verify the claim. Therefore, Willow Creek’s letter was a document served on the Comptroller that (1) set forth the facts of the dispute, much like a civil complaint; and (2) initiated an adjudication in which the Comptroller had a legal duty to respond. The second Hickel attribute is present in this case.

The final attribute of an administrative proceeding under the Hickel test is whether the document served on the Comptroller set in motion mechanisms under which the dispute would ultimately be resolved. Hickel, 872 P.2d at 176. When the Comptroller is served with a document in which a tax refund is claimed in such a manner as to require the Comptroller to respond by either issuing or denying the claim, then the document initiates the proceedings through which the dispute will finally be resolved. It is irrelevant whether the ultimate resolution is the product of informal or formal procedures. Hickel only requires that the document initiate a process through which the dispute will be resolved. Therefore, as long as a refund claim meets the requirements of tax code section 111.104(c)(l)-(3) and provides the Comptroller with the documentation necessary to verify the claim, then it has set in motion the mechanisms for resolving the dispute. Because there is no dispute that Willow Creek’s letter met these conditions, Hickel’s final attribute is present.

Therefore, the analytical framework suggested by the Comptroller further demonstrates that the informal review of Willow Creek’s first refund claim constituted an administrative proceeding.

We hold that because the informal disposition of a tax-refund claim under section 111.1042 adjudicates the requesting party’s legal rights and satisfies each prong of the Hickel test, it is an administrative proceeding.

Conflicting statutory constructions

The Comptroller avers that construing the term “administrative proceeding” to include the informal review and disposition of refund claims creates a conflict with other statutes. In support of this argument, the Comptroller cites a number of statutes in which the term “administrative proceeding” is used in reference to an adjudicatory hearing. Even if these statutes exclusively reference adjudicatory hearings, they do not prove that an administrative proceeding must include an adjudicatory hearing. The most likely form of an administrative proceeding is an adjudicatory hearing, but that is not the exclusive definition of an administrative proceeding.

The Comptroller claims that a broad construction of the term “administrative proceeding” renders tax code section 111.203 and former section 111.207(a)(3) meaningless. Tax code section 111.203 concerns agreements between the Comptroller and a taxpayer to extend the limitations period for assessments and refund claims. Specifically, section 111.203(d)(2) states that the limitation period may be extended if the taxpayer or Comptroller requires more time to complete an audit. The Comptroller argues that if any investigation of a taxpayer’s records is an administrative proceeding that tolls the statute of limitations, then there is no need to enter into an agreement extending the limitations period. By holding that the informal review of a refund claim under section 111.1042 is an administrative proceeding, we are not saying that every investigation or audit of a taxpayer’s records is also an administrative proceeding. We are only saying that a refund claim that meets the statutory requirements laid out in section 111.104(c) and is adjudicated pursuant to section 111.1042 constitutes an administrative proceeding for the purpose of tolling the statute of limitations under former section 111.207(d). Therefore, construing the term “administrative proceeding” to include the informal review of a refund claim does not render section 111.203 meaningless because such a construction is limited to a proceeding initiated by filing a refund claim in accord with tax code section 111.104(c).

Former section 111.207(a)(3) stated that the period during which an administrative proceeding is pending before the Comptroller for a redetermination of the tax liability is not considered when determining the expiration date for the period during which a tax may be collected or assessed. See supra note 5. The Comptroller asserts that the legislature’s purpose for enacting this provision was to toll the statute of limitations pending the outcome of a redetermination hearing performed pursuant to tax code section 111.009. See Tex. Tax Code Ann. § 111.009. The Comptroller posits that if the term “administrative proceeding” is not limited to hearings then former tax code sections 111.207(a)(3) and 111.207(d) are redunclant. We disagree.

Initially, we note that the two former statutes address two distinct situations during which the statute of limitations would be tolled. Former section 111.207(a)(3) addressed situations during which the statute of limitations for assessing or collecting a tax would be tolled, see supra note 5, whereas, former section 111.207(d) described situations during which the statute of limitations for filing a refund claim would be tolled.

Furthermore, we cannot conclude that the use of the term “administrative proceeding” in the former section 111.207(d) is an exclusive reference to an administrative hearing. Tax code section 111.009(c) states, “If the petition [for redetermination] requests a hearing on the redetermi-nation, the person filing the petition is entitled to a hearing.” This section suggests that a hearing will be held only if the petitioning party requests one. The fact that a redetermination can be decided without a hearing is evidence that while a hearing may be a component of an administrative proceeding, it is not always necessary. Therefore, we cannot conclude that construing the term “administrative proceeding” to include the informal review of tax refund claims renders former sections 111.207(a)(3) and 111.207(d) redundant. In fact, both sections appear to complement each other’s use of the term “administrative proceeding” because they each employ the term to refer to the Comptroller’s adjudication of a taxpayer’s legal rights or duties whether or not a hearing is held.

Contrary to the Comptroller’s position, construing the term “administrative proceeding” to preclude the informal review of a tax-refund claim would potentially render section 111.1042 meaningless by undermining its efficacy as a taxpayer remedy. Because the possibility exists that the Comptroller may deny a refund claim after an informal review, it makes little sense to risk that possibility if the limitations period for filing a refund claim is continuing to run. In this case, the Comptroller took approximately nine months to review and partially grant Willow Creek’s first claim. Had the Comptroller denied Willow Creek’s claim, Willow Creek could then have requested a formal hearing. However, this option may not have been available if the statute of limitations was running while the Comptroller was reviewing the claim. No person would ever choose to take the risk that the statute of limitations would run while their refund claim was being informally reviewed by the Comptroller. Therefore, section 111.1042 is meaningless unless the term “administrative proceeding” is construed to include this type of informal review and disposition. See Southwestern Life Ins. Co. v. Montemayor, 24 S.W.3d 581, 584-85 (Tex. App.-Austin 2000, pet. denied) (asserting that courts should avoid statutory interpretations that render legislature’s words meaningless).

The Comptroller further contends that unless we accept her definition of the term “administrative proceeding,” any construction that includes an informal review only serves to invite further litigation to determine the line between agency actions that toll the statute of limitations and those that do not. However, the type of litigation predicted by the Comptroller is unlikely to occur. First, a construction of the term “administrative proceeding” that includes the informal review of tax-refund claims under section 111.1042 is actually quite narrow. It only includes a refund claim that meets the statutory prerequisites set forth in tax code section 111.104 that is either informally reviewed and disposed of or disposed of through the formal hearing procedures outlined in tax code section 111.105. No other agency actions would constitute an administrative proceeding under former section 111.207(d). Second, because the legislature repealed former section 111.207(d) and amended former section 111.207(a) to include the phrase “administrative redetermination or refund hearing” in place of administrative proceeding, it is unlikely that there will be future litigation concerning the scope of the term administrative proceeding in this context.

Comptroller’s construction

When the legislature passed section 111.1042(b) stating that the informal review of a tax-refund claim is neither a contested case nor a hearing, the Comptroller interpreted this to mean that an informal review was also not an administrative proceeding. The Comptroller contends that we should defer to its construction limiting the scope of the term “administrative proceeding,” as it was used in former section 111.207(d), to contested cases and hearings. The Comptroller posits that section 111.1042 was enacted to limit the scope of former section 111.207(d)’s tolling provision to contested cases and hearings. Prior to the enactment of section 111.1042 the Comptroller treated all tax refund claims as contested cases. Thus, because the Comptroller considered a contested case to be an administrative proceeding for the purpose of tolling the statute of limitations under former section 111.207(d), it concluded that any review of a tax-refund claim constituted an administrative proceeding.

Ascertaining and discerning the legislature’s intent in enacting section 111.1042 is not a task within the Comptroller’s administrative expertise. See Flores, 74 S.W.3d at 546. Therefore, the level of deference we owe to the Comptroller’s interpretation is lessened. Id.; see also Rylander, 45 S.W.3d at 299. As we discussed previously, the Comptroller has not provided us with evidence establishing that the legislative purpose for enacting section 111.1042 was to limit the application of former section 111.207(d)’s tolling provision to contested cases or hearings. ■ Therefore, we decline to adopt the Comptroller’s construction.

We conclude that the term “administrative proceeding” can be used to describe the informal adjudication of a tax-refund dispute, whether or not a hearing is held. We hold that the informal review established by section 111.1042 is an administrative proceeding for the purposes of tolling the statute of limitations under former section 111.207(d). Construing the term “administrative proceeding” to include such informal review of a tax-refund claim does not create conflicts with other statutes. We overrule the Comptroller’s second issue.

Conclusion

The Comptroller’s arguments do not conclusively negate the application of former section 111.207(d)’s tolling provision to Willow Creek’s third claim. We hold that the legislature did not intend for section 111.1042 to statutorily limit the scope of the term “administrative proceeding,” as it is used in former section 111.207(d), to contested cases and hearings. Because the informal review and disposition of a tax-refund claim is an administrative proceeding that adjudicates a dispute with finality, we affirm the district court’s summary judgment.

      .At the time relevant to this opinion, tax code section 111.207(d) stated, "In'determining the expiration date for filing a refund claim for a tax imposed by this title, the period during which an administrative proceeding is pending before the comptroller for the same period and type of tax is not considered; however, this provision does not authorize the filing of a refund claim for the same transaction or item, for the same type of tax, and for the same time period as a refund claim previously filed and granted or denied in whole or in part by the comptroller.” See Act of April 29, 1983, 68th Leg., R.S., ch. 94, § 3, 1983 Tex. Gen. Laws 458, 459, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 1310, § 121(24), 2003 Tex. Gen. Laws 4748, 4794 (we will refer to this-tax code section as former section 111.207(d)).

      . On July 12,- 2000, Willow Creek transferred power of attorney to Trinity Petroleum Consultants, Ltd. (Trinity) and appointed Trinity as its attorney-in-fact. Trinity was authorized to seek a refund of gas production taxes paid by Willow Creek between January 1997 and March 2000. For the sake of clarity, we will refer to all refund claims as if they were made by Willow Creek. Additionally, we will refer to each claim according to the order in which they were filed.

      . Shortly after submitting its third claim, Willow Creek asked the Comptroller to disregard the second claim as the third claim included all monies sought by the second claim.

      . The Comptroller's informal review of the first claim lasted approximately nine months. It is undisputed that if the statute of limitations was tolled during this time, Willow Creek was entitled to all refund credits asserted in its third claim.

      . Before amendment, tax code section 111.207(a) read:
      In determining the expiration date for a period when a tax imposed by this title may be assessed or collected, the following periods are not considered:
      (1) the period following the date of a tax payment made under protest;
      (2) the period during which a judicial proceeding is pending in a court of competent jurisdiction to determine the amount of the tax due; and
      (3) the period during which an administrative proceeding is pending before the comptroller for a redetermination of the tax liability.
      Act of May 29, 1981, 67th Leg., R.S., ch. 389, § 111.207, 1981 Tex. Gen. Laws 1490, 1510, amended by Act of June 2, 2003, 78th Leg., R.S., ch. 1310, § 91, 2003 Tex. Gen. Laws 4748, 4784 (emphasis added) (current version at Tex. Tax Code Ann. § 111.207(a) (West Supp.2004-05)) (we will refer to the section before amendment as "former section 111.207(a)(3)”). The amendment substituted "redetermination or refund hearing” for "administrative proceeding” in section 111.207(a)(3).

      . Texas courts have similarly held that administrative proceedings must meet minimum due process requirements. See City of Corpus Christi v. Public Util. Comm’n, 51 S.W.3d 231, 262 (Tex.2001). Because there is no dispute as to whether the informal review of any of Willow Creek’s requests for refunds met minimum due process requirements, we will assume that they did.

      . Earlier, we discussed how it was plausible that the purpose of section 111.1042(b)'s statement that the informal review of a tax-refund claim was-neither a contested case nor a hearing was to distinguish section 111.1042's informal disposition procedures from tax code section 111.105’s formal disposition procedures.

      . The Comptroller argues in the alternative that if the administrative proceeding is held to include the informal review of tax refund claims, then former tax code section 111.207(b) limits Willow Creek’s refund request to the amount of taxes in issue in its prior refund requests. Act of May 29, 1981, 67th Leg., R.S., ch. 389, § 111.207, 1981 Tex. Gen. Laws 1490, 1510, amended by Act of June 2, 2003, 78th Leg., R.S., ch. 1310, § 91, 2003 Tex. Gen. Laws 4748, 4784. Former tax code section 111.207(b) stated that, "The suspension of a period of limitation under Subsection (a) of this section applies only to the amount of taxes in issue under Subdivision (1),- (2), or (3) of that subsection.” Id. We disagree with the Comptroller's contention because former tax code section 111.207(b) is limited by its terms to the tolling provisions set forth in former section 111.207(a). Willow Creek's refund claim is based on our interpretation of former section 111.207(d). We therefore overrule the Comptroller’s alternative argument.


source: Caselaw Access Project

author: HOLLIS HORTON, Justice.

license: Public Domain

text:
    In the Interest of L.D.T., C.R.E.T., and W.G.T.
    No. 09-04-016 CV.
    Court of Appeals of Texas, Beaumont.
    Submitted March 1, 2005.
    Decided March 24, 2005.

      Michael D. Papania, Law Office of Michael D. Papania, Nederland, for appellant.
    Rebecca Green, Dickenson, pro se.
    Tom Maness, Dist. Atty., Randi A. King, Asst. Dist. Atty., Beaumont, appellees.
    Before McKEITHEN, C.J., GAULTNEY and HORTON, JJ.
   OPINION

HOLLIS HORTON, Justice.

This case presents an issue of first impression for this Court. We must determine whether appointed counsel may file an Anders brief in a parental-rights termination appeal.

In Anders v. California, 386 U.S. 738, 741-44, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), the United States Supreme Court held that a court-appointed defense attorney in a criminal case who determines, after fully examining the record, that an appeal is frivolous must so advise the appellate court and then set forth any potential points of error and applicable law that might arguably support the appellant’s position. Upon receiving a “frivolous appeal” brief, appellate courts must conduct “a full examination” of the record and determine independently whether the case is “wholly frivolous.” Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988).

Rebecca Green appeals the trial court’s judgment terminating her parent-child relationship with her three children, L.D.T., C.R.E.T., and W.G.T. The judgment also terminated the parent-child relationship between the children and their father, who does not appeal. Pursuant to Family Code section 161.001, the trial court found, by clear and convincing evidence, that statutory grounds existed for the termination and that termination of the parent-child relationship between Green and her children was in the children’s best interests. See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003); Tex. Fam.Code Ann. § 161.001 (Vernon 2002).

On appeal, Green’s appointed counsel filed an Anders brief stating that, after a thorough review of the record, he determined this appeal is frivolous. The brief presents an adequate evaluation of the record to demonstrate why there are no arguable grounds for reversal. Green’s attorney has certified that a copy of the brief has been provided to Green and that counsel has provided Green with access to the appellate record. On December 16, 2004, Green was given an extension of time to file a brief. The extension expired on January 25, 2005, and as of the date of this opinion, Green has not filed a brief.

Several of our sister courts of appeals previously have determined that Anders procedures are appropriate in parental-rights termination cases. See In re D.E.S., 135 S.W.3d 326, 329 (Tex.App.Houston [14th Dist.] 2004, no pet.); In re K.D., 127 S.W.3d 66, 67 (Tex.App.-Houston [1st Dist.] 2003, no pet.); Porter v. Texas Dep’t of Protective & Regulatory Servs., 105 S.W.3d 52, 56 (Tex.App.-Corpus Christi 2003, no pet.); In re KM., 98 S.W.3d 774, 777 (Tex.App.-Fort Worth 2003, no pet.); In re E.L.Y., 69 S.W.3d 838, 841 (Tex.App.-Waco 2002, no pet.); In re KS.M., 61 S.W.3d 632, 634 (Tex.App.-Tyler 2001, no pet.). However, there is a distinction in these holdings. Several courts — Houston First, Houston Fourteenth, Fort Worth, and Waco — all specifically find that Anders procedures apply and, thus, make them mandatory. See In re D.E.S., 135 S.W.3d at 329; In re K.D., 127 S.W.3d at 67; In re KM., 98 S.W.3d at 777; In re E.L.Y., 69 S.W.3d at 841. Other courts — Corpus Christi and Tyler — hold that appointed counsel may file an Anders brief, and thereby apparently allow counsel to choose whether or not to follow the Anders procedures. See Porter, 105 S.W.3d at 56; In re KS.M., 61 S.W.3d at 634.

The Texas Supreme Court has not addressed the applicability of Anders procedures in parental-rights termination cases. Some of its recent decisions, however, suggest that Anders briefs may be appropriate in such appeals. In In re M.S., the Texas Supreme Court held that the statutory right to counsel provided for parental-rights termination cases under Texas Family Code section 107.013(a)(1) necessarily includes the right to effective counsel. In re M.S., 115 S.W.3d 534, 544 (Tex.2003). And in doing so, the Court extended the Strickland test used in the criminal context to civil parental-rights termination proceedings. Id. at 545. In In re D.A.S., the Court extended Anders to juvenile delinquency proceedings on the basis that their quasi-criminal nature implicated the Sixth Amendment right" to counsel. In re D.A.S., 973 S.W.2d 296, 298-299 (Tex.1998). The rationale of D.A.S. — that Anders applied to appointed counsel in non-criminal contexts where the Sixth Amendment is implicated — seemingly would extend to termination cases, as M.S. held that the right to effective counsel applies in those proceedings.

However, neither the Texas Supreme Court nor the United States Supreme Court has held that counsel is required to file an Anders brief in a parental-rights termination case upon finding that no arguable error exists or that the appellate courts are obliged to review the record for arguable error. Conversely, we are not prohibited from conducting our own review of the record for arguable error in a parental-rights termination ease where counsel files an Anders brief. Accordingly, we hold that when appointed counsel represents an indigent client in a parental termination appeal and concludes that there are no non-frivolous issues for appeal, counsel may file an Anders brief.

Although we may or may not be required to do so, in this case we have reviewed the clerk’s record and the reporter’s record, and we find no arguable error requiring us to order appointment of new counsel to re-brief this appeal. Compare Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App.1991). We affirm the trial court’s judgment.

AFFIRMED.

      . The father signed an affidavit voluntarily relinquishing his parental rights. See Tex. Fam.Code Ann. § 161.103 (Vernon Supp.2005). At the Fourteen Day hearing on July 23, 2002, the father stated that he presently was incarcerated and was unable to care for the children.

        . Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (setting forth the two-pronged test for ineffective assistance of counsel claims in criminal proceedings: (1) trial counsel's representation fell below an objective standard of reasonableness, based on prevailing professional norms; and (2) there is a reasonable probability that the result of the proceeding would have been different but for trial counsel’s deficient performance).

      . We note that this case does not involve any issues under section 263.405, and thus need not determine whether our decision would be the same if such issues were present. See Tex. Fam.Code Ann. § 263.405 (Vernon 2002) (requiring, for example, in subpart (d) that the trial court, on appeal of a final order, conduct a hearing to determine whether a new trial should be granted, whether appellant’s claim of indigence should be sustained, and whether the appeal is frivolous). As the Fort Worth Court explains, the Legislature’s apparent intent in enacting Section 263.405 "was to provide a mechanism to reduce frivolous parental-termination appeals and to reduce post-judgment appellate delays in parental-termination appeals.” In re S.J.G., 124 S.W.3d 237, 242 (Tex.App.-Fort Worth 2003, pet. denied).


author: STEVE McKEITHEN, Chief Justice.

text:
    THUNDERBIRD SUPPLY CO., INC., Appellant, v. Leslie B. WILLIAMS, Appellee.
    No. 09-04-279 CV.
    Court of Appeals of Texas, Beaumont.
    Submitted Feb. 10, 2005.
    Decided March 24, 2005.

      Gary L. Ingram, Daniel R. McCabe, Jackson Walker LLP, Fort Worth, for appellant.

      Tom N. Kiehnhoff, Reaud, Morgan & Quinn, LLP, Beaumont, for appellee.
    Before McKEITHEN, C.J., KREGER and HORTON, JJ.
   OPINION

STEVE McKEITHEN, Chief Justice.

This is an interlocutory appeal from the denial of a special appearance. See Tex. Civ. PRAC. & Rem.Code Ann. § 51.014(a)(7) (Vernon Supp.2005); Tex.R. Crv. P. 120a. Alleging thirteen corporations “designed, manufactured and marketed” toxic products placed into the stream of commerce, Leslie B. Williams, a jeweler suffering from scleroderma, sued Thunderbird Supply Co., Inc. (“Thunderbird”), among others, on theories of strict product liability, defective marketing, negligence, and breach of warranty. In its order denying the special appearance, the trial court found that Thunderbird placed a silica-containing product into the stream of commerce with the reasonable expectation it would enter Texas. The seven issues raised in this appeal challenge the trial court’s exercise of personal jurisdiction over the appellant, a New Mexico corporation. For the following reasons, we reverse the trial court’s order and render judgment dismissing Williams’s claims against Thunderbird for lack of jurisdiction.

A Texas court may exercise personal jurisdiction over a nonresident defendant to the extent authorized by due process standards and the long-arm statute. Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 226 (Tex. 1991). As the plaintiff, Williams bears the initial burden of pleading allegations sufficient to bring the nonresident defendant within the provisions of the long-arm statute. See BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 793 (Tex.2002). In its first issue, Thunderbird argues that Williams’s allegations do not satisfy this initial burden.

Our long-arm statute allows Texas courts to exercise jurisdiction over foreign defendants who are “doing business” within the state. See Tex. Civ. Prac. & Rem.Code Ann. § 17.042 (Vernon 1997). Williams alleges that he is “a resident-citizen of Jefferson County, Texas” and Thunderbird “is a foreign corporation doing business in Texas” that “does not maintain a regular place of business in Texas and has not designated or maintained an agent for service of process in this State.” Williams also alleges that he was exposed to “various toxic products designed, manufactured and marketed” by the thirteen so-called “Jewelry Defendants,” but he does not allege that exposure occurred in Texas. Nonetheless, Williams’s venue allegation states, “Venue in Jefferson County is proper in that all or a substantial part of the events or omissions giving rise to the claims occurred in this county.” Commission of a tort within the state is one means by which a nonresident may be deemed to be doing business in the state. Tex. Civ. PRác. & Rem.Code Ann. § 17.042(2) (Vernon 1997). Upon filing its special appearance, Thunderbird assumed the burden to negate all bases of personal jurisdiction alleged by the plaintiff. American Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 807 (Tex. 2002); Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 203 (Tex.1985). Thus, Williams met his initial burden of pleading allegations sufficient to bring Thunderbird within the long-arm statute, and Thunderbird assumed the burden to negate the basis of personal jurisdiction alleged by Williams. Issue one is overruled.

Next, Thunderbird contends its independent contacts with Texas do not support the exercise of jurisdiction. Due process requires that the nonresident defendant must have purposefully established minimum contacts with Texas and that the exercise of personal jurisdiction over the nonresident defendant must not violate traditional notions of fair play and substantial justice. Guardian Royal, 815 S.W.2d at 230-31. Purposely established minimum contacts may support the exercise of specific jurisdiction, where the defendant’s liability arises from an activity conducted in the forum state, or general jurisdiction, where the nonresident maintains continuous and systematic contacts with the forum state. BMC Software, 83 S.W.3d at 795-97. An analysis of specific jurisdiction focuses on the relationship between the defendant, the forum, and the litigation, and requires a substantial connection between the plaintiffs cause of action and the activities the defendant purposefully directed to the forum. Guardian Royal, 815 S.W.2d at 228, 230. An analysis of general jurisdiction is more demanding, and “requires a showing of substantial activities in the forum state.” Id. at 228.

In American Type Culture Collection, 83 S.W.3d at 806, the Supreme Court explained that our review must focus upon the defendant’s actions and expectations, as follows:

The minimum-contacts analysis requires that a defendant “purposefully avail” itself of the privilege of conducting activities within Texas, thus invoking the benefits and protections of our laws. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475,105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). The defendant’s activities, whether they consist of direct acts within Texas or conduct outside Texas, must justify a conclusion that the defendant could reasonably anticipate being called into a Texas court. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 ' S.Ct. 559, 62 L.Ed.2d 490 (1980). A defendant is not subject to jurisdiction here if its Texas contacts are random, fortuitous, or attenuated. See Guardian, 815 S.W.2d at 226. Nor can a defendant be haled into a Texas court for the unilateral acts of a third party. Id. It is the quality and nature of the defendant’s contacts, rather than their number, that is important to the minimum-contacts analysis. Id. at 230 n. 11.

Thunderbird contends the evidence does not support the exercise of specific jurisdiction. An affidavit from Thunderbird officer Claudia Klesert describes Thunderbird’s contacts with Texas, as follows: (1) half of Thunderbird’s sales consist of “supplies, tools, findings, and stones”; (2) although most of its over-the-counter sales are to craftsmen from New Mexico and Arizona, Thunderbird operates two mail order sales units; (3) one mail order sales unit services small volume retail sales to small volume customers such as hobbyists, while the other supplies larger volume sales to wholesale accounts such as bead shops; (4) in the previous five years, Thunderbird had not sold any products to Williams or to his employers; Thunderbird did not begin selling any metal polishing compounds formerly manufactured or sold by Maspeth Polishing Material Co., Inc. until February 2002; (5) based on Kle-sert’s knowledge, the only sales by Thunderbird of polishing compounds to Texas residents prior to February 2002 were through mail order sales; (6) less than 2% of Thunderbird’s sales were in Texas.

Williams contends he traced a silica-containing polishing compound of the brand name Tripoli from Williams to his 1977-78 employer Ardans, to New York retailer, Paul H. Gesswein & Co., Inc., to Thunderbird. To prove he was injured in the forum state by the appellant’s silica-containing product, Williams relies upon discovery produced by co-defendant Paul H. Gesswein & Co., Inc. (“Gesswein”), and excerpts from Williams’s deposition. Williams’s evidence consists of the following: (1) Gesswein’s production of a Material Safety Data Sheet dated May 28, 2002, that identifies “A-Tripoli” as a Thunderbird product containing 70-80% silica; (2) Williams’s deposition testimony that he “used rouge or Tripoli that was purchased from Gesswein” when he worked at “a place called Ardan’s” in 1977 and 1978. Thus, Williams argues, he satisfies the “stream of commerce” test in World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297-98, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980).

Both at trial and on appeal, Thunderbird raises authentication and hearsay objections to Gesswein’s responses to discovery conducted before Williams added Thunderbird to his suit. We need not decide whether the trial court erred in considering this evidence because the evidence in the appellate record does not establish purposeful acts directed toward the forum state. At most, the evidence establishes that a silica-containing product introduced into the stream of commerce by Thunderbird eventually found its way to a Texas resident allegedly injured by silica exposure. There is no evidence to support the trial court’s finding that Thunderbird had a reasonable expectation that the product would enter Texas. In WorldWide Volkswagen, the United States Supreme Court noted it was foreseeable that automobiles sold by the foreign corporation might travel to the forum state, but that the “financial benefits accruing to the defendant from a collateral relation to the forum State will not support jurisdiction if they do not stem from a constitutionally cognizable contact with that State.” Id. at 299, 100 S.Ct. 559. Likewise, in CMMC v. Salinas, 929 S.W.2d 435, 436-40 (Tex. 1996), the Texas Supreme Court held the absence of evidence that the foreign corporation purposefully availed itself of the Texas market precluded the exercise of personal jurisdiction over the maker of a winepress manufactured in Europe, sold to a New York distributor who advertised in national publications, and shipped from the manufacturer to the consumer FOB Houston. There is no evidence of Thunderbird’s efforts to market its product in Texas, or that it made any effort to serve a market for its product in the forum state, or was even aware that a third party marketed Thunderbird’s products in Texas. We hold that the evidence does not support the exercise of specific jurisdiction.

On appeal, Williams argues the evidence of Thunderbird’s mail order sales in Texas satisfies the “continuous and systematic” prong of the test for general jurisdiction, and that the trial court’s order is sustainable on that basis. Thunderbird contends Williams failed to allege a basis for general jurisdiction. Although Williams alleges Thunderbird is “doing business” in Texas, his petition does not allege that Thunderbird maintains continuous and systematic contacts with the forum state. Williams’s response to the special appearance argues there is sufficient evidence “Thunderbird placed the products at issue in this case into the stream of commerce with the reasonable expectation that they would enter Texas,” but, as in his petition, Williams does not contend that Thunderbird maintains continuous and systematic contacts with this state and does not directly address the issue of general jurisdiction.

The trial court incorporated its factual findings into its order, and its expressly stated basis for exercising jurisdiction was that “Thunderbird placed the products at issue in this case into the stream of commerce with the reasonable expectation that they would enter Texas.” (emphasis added) The trial court did not find that Thunderbird conducts substantial activities in Texas, limited its findings to Thunderbird’s activities in this case, and made no factual findings relating to Thunderbird’s activities unrelated to this case. There are no factual findings germane to general jurisdiction as opposed to specific jurisdiction. Assuming the issue of general jurisdiction was before the trial court for its consideration, the grounds expressly stated in the order denying the special appearance relate to specific jurisdiction. Therefore, only specific jurisdiction is at issue in this appeal.

Williams also suggests he “should have an opportunity to conduct discovery into the supply houses that purchased polishing compounds from Thunderbird.” Unlike the plaintiff in BMC Software, 83 S.W.3d at 800, Williams did not request a continuance of the special appearance hearing so he could conduct further discovery. Therefore, we decline to remand the case to the trial court for further discovery.

We conclude that Thunderbird did not purposefully establish sufficient minimum contacts with Texas to support exercising jurisdiction over it. Therefore, the trial court erred in denying the special appearance. Issue two is sustained. (2) We reverse the trial court’s order and render judgment dismissing the claims of Leslie B. Williams against Thunderbird Supply Co., Inc.

REVERSED AND RENDERED.

      . The appellant’s brief combines its issues in a single argument. The issues are: (1) the absence of specific jurisdictional allegations required the Special Appearance to be granted upon Thunderbird Supply Co. Inc.’s proof of non-residency; (2) Thunderbird Supply Co. Inc.’s independent contacts with Texas do not support the exercise of jurisdiction; (3) Leslie B. Williams produced no evidence that would support personal jurisdiction in Texas over Thunderbird Supply Co. Inc.; (4) the exercise of personal jurisdiction over Thunderbird Supply Co. Inc. is not consistent with traditional notions of fair play and substantial justice; (5) the trial court should have excluded from evidence certain discovery responses of a defendant not a party to the Special Appearance; (6) the trial court’s findings of fact are not supported by the evidence; and (7) the trial court’s conclusions of law are incorrect and should be reversed.

      . Because we reverse the trial court's order denying the special appearance, we do not reach the appellant’s remaining issues.


text:
    Leo Joseph HAMEL, Appellant, v. Barbara HAMEL, Appellee.
    No. 09-04-162 CV.
    Court of Appeals of Texas, Beaumont.
    Submitted Feb. 10, 2005.
    Decided March 24, 2005.

      James D. Jones, Conroe, for appellant.
    Barbara Hamel, Houston, pro se.
    Before McKEITHEN, C.J., GAULTNEY and HORTON, JJ.
   OPINION

STEVE McKEITHEN, Chief Justice.

Appellant Leo Joseph Hamel (Leo) appeals the issuance of a family violence protective order by the trial court pursuant to Tex. Fam.Code Ann. §§ 85.001, 85.021, & 85.022 (Vernon 2002). We have no appellate brief from appellee Barbara Hamel (Barbara). Leo raises seven appellate issues for our consideration.

The record indicates that Leo and Barbara are husband and wife and that in September of 2003, a divorce petition was filed in County Court at Law No. 2, Montgomery County, Texas. Thereafter, on January 30, 2004, Barbara filed an application for protective order alleging family violence by Leo. An evidentiary hearing was concluded on February 19, 2004, on Barbara’s application and the trial court issued the protective order on February 26, 2004. At some point in time between the issuance of the protective order on February 26, 2004, and Leo’s Motion For New Trial, filed on March 23, 2004, the trial court, without explanation, transferred the pending divorce proceeding between Leo and Barbara to County Court at Law No. 4, Montgomery County, Texas. Leo also filed his notice of appeal on March 23, 2004. On June 24, 2004, we notified Leo of our concern that we may lack jurisdiction over this appeal because of the pending divorce proceedings. We asked for a written response to our jurisdictional inquiry and Leo replied citing a number of cases. In a well written and persuasive brief, Leo urges this Court to exercise jurisdiction and issue an opinion ruling on the merits of his appellate issues. However, because we lack jurisdiction, we must dismiss his appeal.

Generally, appellate jurisdiction exists only in cases in which a final judgment has been rendered that disposes of all issues and parties in the case. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex.2001); Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 272 (Tex.1992) (orig. proceeding). The Texas Legislature has, however, authorized appeal of several types of interlocutory orders, none of which are at issue here. See, e.g., Tex. Civ. Prac. & Rem.Code Ann. §§ 15.003, 51.014, 171.098 (Vernon Supp.2005); Tex. Gov’t Code Ann. § 1205.068 (Vernon 2000). It is fundamental error for an appellate court to assume jurisdiction over an interlocutory appeal that is not expressly authorized by statute. See N.Y. Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 679 (Tex.1990).

A family violence protective order may be rendered by the divorce court as part of “temporary orders” issued during the normal course of divorce proceedings. See Tex. Fam.Code Ann. § 6.504 (Vernon 1998). However, because Chapter 6 of the Family Code classifies such an order as “temporary,” interlocutory appeal is not permitted. See Tex. Fam.Code Ann. § 6.507 (Vernon 1998). A family violence protective order rendered by a court not having jurisdiction over a pending suit for dissolution of marriage may be transferred by the court that rendered the protective order either “in the interest of justice,” or “for the safety or convenience of a party or a witness,” to the court having jurisdiction of the pending divorce proceeding. See Tex. Fam.Code Ann. § 85.064(a), (c) (Vernon 2002).

In the instant case, the protective order at issue was rendered by the trial court in which the divorce proceeding was pending, although filed and rendered under a separate cause number from that of the divorce proceeding. The protective order at issue was limited in time, and expressly provided that “[t]he terms of this Protective Order should not supercede the terms set forth in the Temporary Orders” in the divorce proceeding. Given this apparent incorporation by reference of the terms of the temporary orders from the divorce proceeding, even though the divorce and protective order proceedings remain separate, we conclude under these facts and circumstances this Court is without jurisdiction to review the protective order because of its distinct lack of finality as to the parties and issues. See, e.g., In re K.S.L.-C., 109 S.W.3d 577, 579-80 (Tex. App.-Tyler 2003, no pet.) (Protective order rendered during the pendency of a divorce held not final judgment for purposes of appeal). Therefore, this appeal is dismissed for lack of jurisdiction.

APPEAL DISMISSED.

      . The record reflects that the divorce was filed in County Court at Law No. 2 under cause number "NO. 03-09-06660-CV.” Barbara's application for protective order was also filed and rendered in County Court at Law No. 2, but filed under cause number "NO. 04-01-00724-CV.’’


author: JOHN CAYCE, Chief Justice.

text:
    LYNN SMITH CHEVROLET-GEO, INC., Appellant and Appellee, v. Jason E. TIDWELL and Lorene Butler, Appellees and Appellants.
    No. 2-03-378-CV.
    Court of Appeals of Texas, Fort Worth.
    March 24, 2005.

      Bourland, Kirkman, Seidler, Jay & Michel, L.L.P.,. Thomas M. Michel, Fort Worth, for Appellant and Appellee.
    The Law Office of Jerry J. Jarzombek, PLLC, Jerry Jarzombek, Fort Worth, for Appellees and Appellants.
    Panel A: CAYCE, C.J.; HOLMAN and WALKER, JJ.
   OPINION

JOHN CAYCE, Chief Justice.

Lynn Smith Chevrolet-Geo, Inc. appeals from an adverse judgment for Jason E. Tidwell and Lorene Butler rendered under the Equal Credit Opportunity Act (the ECOA). In two issues, Lynn Smith argues that the trial court improperly awarded Tidwell and Butler attorney’s fees under the ECOA because Tidwell and Butler did not obtain any relief entitling them to attorney’s fees or, alternatively, that the trial court erred by failing to render judgment in accordance with the parties’ settlement agreement.

In a cross-appeal, Tidwell and Butler contend that the attorney’s fee award is much lower than the evidence warrants. Tidwell and Butler also raise a conditional challenge to the trial court’s transfer of venue of the case from Johnson County to Tarrant County. We will reverse and remand.

In June 2000, Tidwell and Butler purchased a car from Lynn Smith. Tidwell and Butler claim that Lynn Smith unlawfully repossessed the car in August 2000. They sued Lynn Smith for wrongful repossession and conversion, theft, fraud, breach of contract, and violations of the Certificate of Title Act, Federal Odometer Act, Truth in Lending Act, Equal Credit Opportunity Act, and Deceptive Trade Practices Act, and they sought exemplary damages and attorney’s fees.

Tidwell and Butler originally filed their suit in Johnson County. Lynn Smith contended that venue was improper in Johnson County and moved to transfer venue of the case to Tarrant County. The Johnson County trial court granted the motion and transferred the case to Tarrant County. Thereafter, the Tarrant County trial court granted Tidwell and Butler a partial summary judgment on their ECOA claims and awarded them attorney’s fees. Tidwell and Butler then nonsuited their remaining claims against Lynn Smith. This appeal followed.

In their second issue on cross-appeal, Tidwell and Butler challenge the trial court’s venue, asserting that the Johnson County trial court improperly transferred the underlying case from Johnson County to Tarrant County. We will address this issue first because it is dispositive of the appeal.

Tidwell and Butler ask us not to address proper venue unless we reverse the judgment rendered in their favor in Tarrant County. An erroneous venue determination cannot be harmless, however, but “shall be reversible error.” Tex. Civ. PRAC. & Rem.Code Ann. § 15.064(b) (Vernon 2002); see also Ruiz v. Conoco, Inc., 868 S.W.2d 752, 758 (1993) (op. on reh’g). Therefore, if venue was not proper in Tarrant County, the trial court’s judgment must be reversed.

Lynn Smith contends that Tidwell and Butler have waived their venue challenge on appeal by asking us to address proper venue only if we reverse the Tar-rant County trial court’s judgment. Lynn Smith concedes, however, that it cannot find any authority to support its position, and we decline to adopt it here. Because Tidwell and Butler challenged the trial court’s venue ruling in their opening appellant’s brief, we will consider their complaint. See, e.g., Coastal Liquids Transp., L.P. v. Hams County Appraisal Dist., 46 S.W.3d 880, 885 (Tex.2001) (holding that appellate issue not raised until motion for rehearing was waived); Romero v. State, 927 S.W.2d 682, 634 n. 2 (Tex.1996) (refusing to consider as unpreserved issue that was raised for first time in post-submission briefing).

Venue selection presupposes that the parties to the lawsuit have choices and preferences about where their case will be tried. Wilson v. Tex. Parks and Wildlife Dep’t, 886 S.W.2d 259, 260 (Tex.1994). Because venue may be proper in numerous counties, the plaintiff is given the first choice to fix venue in a proper county and does so by filing suit in the county of her choosing. Id.; Eddins v. Parker, 63 S.W.3d 15, 18 (Tex.App.-El Paso 2001, pet. denied). If a plaintiff files suit in an improper county, she waives her first choice of venue and the defendant may have the suit transferred to another county, as long as venue is proper in that county. Wilson, 886 S.W.2d at 260; WTFO, Inc. v. Braith-waite, 899 S.W.2d 709, 716 (Tex.App.-Dallas 1995, no writ); see also Tex. Civ. PRAC. & Rem.Code Ann. § 15.063(1) (Vernon 2002) (providing that trial court shall transfer action to another county of proper venue if county in which action is pending is not a proper county).

All venue facts, when properly pleaded, shall be taken as true unless specifically denied by the adverse party. Tex.R. Civ. P. 87(3)(a). If a defendant objects to the plaintiffs venue choice and properly challenges that choice through a motion to transfer venue, the question of proper venue is raised. Wichita County v. Hart, 917 S.W.2d 779, 781 (Tex.1996); Wilson, 886 S.W.2d at 260-61; Tex.R. Civ. P. 86(3), 87(2)(b). Once the defendant specifically denies the pleaded venue facts, the burden is on the plaintiff to prove that venue is maintainable in the county of suit. Wilson, 886 S.W.2d at 261; Tex.R. Civ. P. 87(2)(a)-(b).

To meet this burden, the plaintiff must make prima facie proof of the pleaded venue facts that the defendant has denied. Tex.R. Civ. P. 87(3)(a). Prima facie proof is made when the venue facts are properly pleaded and an affidavit and any duly proved attachments to the affidavit fully and specifically setting forth the facts supporting such pleading are filed. Id.; WTFO, 899 S.W.2d at 715; see also Rodriguez v. Printone Color Corp., 982 S.W.2d 69, 72 (Tex.App.-Houston [1st Dist.] 1998, no pet.) (“A prima facie case represents the minimum quantity of evidence necessary to support a rational inference that the allegation of fact is true.”). The affidavit must be made on personal knowledge, set forth specific facts as would be admissible in evidence, and must show affirmatively that the affiant is competent to testify. Tex.R. Civ. P. 87(3)(a); WTFO, 899 S.W.2d at 715.

The trial court shall determine the motion on the basis of the pleadings, the parties’ stipulations, and the affidavits and any proper attachments thereto. Tex.R. Civ. P. 87(2)(b), 88; Tex. Crv. PRac. & Rem.Code Ann. § 15.064(a) (Vernon 2002); Eddins, 63 S.W.3d at 18. If the plaintiff adequately pleads and makes prima facie proof that venue is proper in the county of suit, then the trial court must not transfer the case. Tex.R. Civ. P. 87(3)(c); see also Wilson, 886 S.W.2d at 261 (“Together, Rule 87(3)(c) and section 15.063(1) require that a lawsuit pleaded and proved to be filed in a county of proper venue may not be transferred.”). In that situation, no other county can be a proper county of venue, even if the county of transfer also would have been proper if originally chosen by the plaintiff. Wilson, 886 S.W.2d at 261; Jaska v. Tex. Dep’t of Protective & Regulatory Sens., 106 S.W.3d 907, 909-10 (Tex.App.-Dallas 2003, no pet.). This rule gives effect to the plaintiffs right to select a proper venue. Wilson, 886 S.W.2d at 261.

Our review of the trial court’s venue ruling is governed by statute. Tex. Civ. PRAC. & Rem.Code Ann. § 15.064(b); Wilson, 886 S.W.2d at 261; Ruiz, 868 S.W.2d at 757. In determining whether venue was proper, we must conduct an independent review of the entire record. Tex. Civ. PRAC. & Rem.Code Ann. § 15.064(b); Wilson, 886 S.W.2d at 261-62. This review strikes a balance between the competing interests of the plaintiff and the defendant. It preserves the plaintiffs right to select and maintain suit in a county of proper venue, and it protects the defendant from fraud or inaccuracy at the pleading stage. Wilson, 886 S.W.2d at 262.

In this case, the record shows that Tidwell and Butler properly pleaded and put on prima facie proof that venue was proper in Johnson County. In their original petition, Tidwell and Butler pleaded that venue was proper in Johnson County pursuant to section 15.002 of the civil practice and remedies code because “some or all of the acts forming the basis of [their] complaint occurred in Johnson County.....” Tidwell and Butler further alleged that they resided in Johnson County, Lynn Smith did business as an automobile dealer in Johnson County, and Tidwell and Butler purchased a car from Lynn Smith that Lynn Smith later repossessed, even though Tidwell and Butler were current in their car payments.

In response, Lynn Smith specifically denied the following venue facts:

•that, at the time Tidwell and Butler’s claims accrued (from June 2000 to present), Lynn Smith’s principal place of business was in Johnson County;
•that all or a substantial part of the events or omissions giving rise to Tid-well and Butler’s claims occurred in Johnson County.

Tidwell and Butler then amended their pleadings to allege the following additional facts, which they supported by Lorene Butler’s affidavit: The vehicle Tidwell and Butler had purchased from Lynn Smith was repossessed at Tidwell and Butler’s residence in Johnson County, Texas on or about August 14, 2000 by an individual who represented himself to be an employee or other representative of Lynn Smith. It was the second time someone from Lynn Smith had come to Tidwell and Butler’s home to attempt to regain possession of the car. Butler let Lynn Smith have the car only because the dealership threatened to continue to follow her until they regained possession of the vehicle.

In an attempt to controvert Tidwell and Butler’s pleadings and evidence, Lynn Smith tendered the affidavit of Robert Gault, which stated in its entirety:

My name is Robert Gault. I am capable of making this affidavit. The facts stated in the affidavit are within my personal knowledge and are true and correct. On September 14, 2000, Jason Tidwell and Lorene Butler, voluntarily returned a 1997 Chrysler Sebring to Lynn Smith Chevrolet.

Lynn Smith asserts that Tidwell and Butler have not properly pleaded or proved any venue facts showing that all or a substantial part of the events or omissions giving rise to their claims occurred in Johnson County. Lynn Smith contends that most of Tidwell and Butler’s claims are based on the retail installment contract between the parties, which was entered at Lynn Smith’s place of business in Tarrant County.

The gist of Tidwell and Butler’s suit, however, is that Lynn Smith wrongfully repossessed their car in Johnson County even though they were current in their car payments. Further, one of the bases on which they sought summary judgment under the ECOA was that Lynn Smith had taken “adverse action” by repossessing their vehicle without giving them written notification of the reasons therefor. Because the alleged wrongful repossession of Tidwell and Butler’s car in Johnson County is an indispensable component of their claims against Lynn Smith, they have properly pleaded and put on prima facie proof that a substantial part of the events giving rise to their suit occurred in Johnson County. See Old Am. County Fire Ins. Co. v. Renfrow, 90 S.W.3d 810, 819-20 (Tex.App.-Fort Worth 2002, no pet.) (holding, in declaratory judgment suit seeking determination of insurance coverage, that substantial events giving rise to suit occurred in county where permission to drive truck and accident occurred, rather than in county where insurance contract was entered, because suit involved contract construction in light of discrete events surrounding accident), rev’d on other grounds, 130 S.W.3d 70 (Tex.2004); see also Frost Nat’l Bank v. L & F Distribs., Ltd., 122 5.W.3d 922, 927-28 (Tex.App.-Corpus Christi 2003, pet. filed); Southern County Mut. Ins. Co. v. Ochoa, 19 S.W.3d 452, 460-61 (Tex.App.-Corpus Christi 2000, no pet.) (both holding that substantial part of events or omissions giving rise to claim may occur in more than one county).

Moreover, assuming, for argument’s sake, that Gault’s affidavit is competent evidence, it does not establish that the repossession took place outside of Johnson County. The affidavit does not state where the alleged “voluntary return” of the car took place, whether at Tidwell and Butler’s residence or at Lynn Smith’s dealership, nor does it state what county the dealership was located in. Gault’s deposition testimony, which is also in the record, shows that Gault testified, “I believe someone went and got [the car],” and there is other evidence in the record that John Woollis, Lynn Smith’s general sales manager, sent someone to retrieve the car.

Further, there is no evidence that venue was proper in Tarrant County. Although Lynn Smith asserted in its motion to transfer that venue was proper in Tar-rant, rather than Johnson, County, Lynn Smith did not put on any evidence whatsoever that Tarrant County was a proper county of venue. Lynn Smith alleged that its principal place of business was in Tar-rant County but did not put on any prima facie proof to support this pleading. See Tex.R. Civ. P. 87(2)(a)-(b), (3)(a); Wilson, 886 S.W.2d at 260 n. 1. In addition, Lynn Smith does not direct us to any other evidence, and our independent review of the record has revealed none, that venue was proper in Tarrant County. The record shows that Lynn Smith’s dealership was located at “925 N. Burleson Blvd., Burleson, Texas 76028,” but there is no evidence what county this address is in.

Having reviewed the entire record, we conclude that it contains some probative evidence that a substantial part of the events or omissions giving rise to Tidwell and Butler’s claims occurred in Johnson County and no probative evidence that anything occurred in Tarrant County. In this situation, no county but Johnson County can be a proper county of venue. Wilson, 886 S.W.2d at 261. Accordingly, we hold that the Johnson County trial court erred by granting Lynn Smith’s motion and transferring the case to Tarrant County. See Jaska, 106 S.W.3d at 910. We sustain Tidwell and Butler’s second issue.

We reverse the Tarrant County trial court’s judgment and the Johnson County trial court’s order transferring the case to Tarrant County and remand the cause to the Tarrant County court with instructions to transfer the case back to Johnson County.

      . See 15 U.S.C.A. §§ 1691-1691f (West 1998).

      . In such a case, the defendant also must make prima facie proof that venue is maintainable in the county to which transfer is sought. Tex.R. Civ. P. 87(2)(a)-(b), (3)(a); Wilson, 886 S.W.2d at 260 n. 1.

      . Rule 87(2)(a) refers to section 15.001 as the "General Rule” regarding venue; however, that section was renumbered as section 15.002 in 1995. Tex. Civ. Prac. & Rem.Code Ann. § 15.001 historical note (Vernon 2002) [Act of May 8, 1995, 74th Leg., R.S., ch. 138, § 1, 1995 Tex. Gen. Laws 978, 979],

      . Section 15.002, the general venue statute, provides that all lawsuits shall be brought:
      (1) in the county in which all or a substantial part of the events or omissions giving rise to the claim occurred;

        (2) in the county of the defendant’s residence at the time the cause of action accrued if the defendant is a natural person;
      (3) in the county of the defendant’s principal office in Texas, if the defendant is not a natural person; or
      (4) if (1), (2), and (3) do not apply, in the county in which the plaintiff resided at the time of the accrual of the cause of action.
      Tex. Civ. Prac. & Rem.Code Ann. § 15.002(a) (Vernon 2002) (emphasis supplied).

      . Tidwell and Butler did not put on any proof that Lynn Smith’s principal place of business was in Johnson County.

      . Tidwell and Butler objected to the affidavit as being untimely and also complained that it did not state that Gault was over age eighteen, did not show that Gault was a Lynn Smith employee, and did not state how Gault had personal knowledge of the facts averred therein or how he was capable of making the affidavit. See Tex.R. Civ. P. 87(3)(a). The trial court overruled these objections.

      . At the hearing on the motion to transfer venue, Lynn Smith’s counsel asked the trial court to take judicial notice that Lynn Smith was “headquartered in Tarrant County.” Lynn Smith makes no such request on appeal and has not supplied the information necessary to support such a request. See Tex.R. Evid. 201(d).

      . In light of our disposition of the venue issue, we need not consider the parties’ remaining issues. See Tex.R.App. P. 47.1 (providing that appellate court need only address issues necessary to final disposition of appeal).


author: TERRIE LIVINGSTON, Justice.

text:
    Jimmy Lee TYLER, Appellant, v. The STATE of Texas, State.
    No. 2-03-294-CR.
    Court of Appeals of Texas, Fort Worth.
    March 24, 2005.

      Corwin & Corwin, L.L.P. and Timothy S. Corwin, Waco, for Appellant.
    R. Kelton Conner, County Attorney, Chad Owen Bull, Asst. County Attorney, Granbury, for State.
    Panel B: LIVINGSTON, DAUPHINOT, and McCOY, JJ.
   OPINION

TERRIE LIVINGSTON, Justice.

I. INTRODUCTION

Appellant Jimmy Lee Tyler pled no contest to the offense of driving while intoxicated. The trial court found appellant guilty and sentenced him to six months’ confinement and a fine of $750, but then suspended the sentence and placed appellant on community supervision for twelve months. In a single point, appellant complains that the trial court erred when it denied his pretrial motion to suppress all evidence obtained pursuant to the traffic stop. We affirm.

II. Factual Background

The only evidence presented during appellant’s suppression hearing was the testimony of Officer Robert Young, a deputy sheriff with the Hood County Sheriffs office. Officer Young testified that he received a radio broadcast from Hood County Communications on November 28, 2002 that an unidentified citizen had called to report a beige Chevrolet truck being driven in a reckless manner on U.S. Highway 377. Officer Young responded and ultimately located what he believed to be the truck described in the broadcast traveling eastbound on Highway 377.

While behind the truck, which was being driven by appellant, Officer Young saw the passenger side wheels cross over the solid white line separating the traveling lane from the shoulder of the highway, or emergency lane. As Officer Young recalled, appellant’s truck “straddled” the solid white line “for a few moments” before it returned “erratically,” or “as if to turn at an angle,” to the traveling lane. Appellant’s truck never crossed into oncoming traffic, however, because of a median that separates the eastbound lanes of the highway from the westbound lanes. Officer Young ultimately pulled appellant over.

Appellant pulled into the parking lot of a liquor store, and Officer Young approached him. When appellant got out of his truck, Officer Young detected the smell of alcohol on appellant’s breath. Officer Young asked appellant if he had had anything to drink; appellant stated that he had consumed “five or six” beers. Appellant further told Officer Young that he had alcoholic beverages in his truck and proceeded to show him where they were located (behind the driver’s seat in a cooler).

Officer Young then had appellant perform three field sobriety tests: the horizontal gaze nystagmus test, the one-leg stand test, and the nine-step walk-and-turn test. Officer Young testified that appellant’s “eyes exhibited the lack of smooth pursuit; they didn’t track smoothly” when performing the horizontal gaze nystagmus test. He further observed “the onset of nystagmus prior to 45 degrees in each [sic] the right and left eye, and distinct nystag-mus at maximum deviation in both the right and left eye.” With regard to the one-leg stand test, appellant set his foot down on the number five count on the first try and the number seven count on the second try. Officer Young stopped the tests when appellant “almost fell over.” Appellant also failed to sufficiently complete the nine-step walk-and-turn test.

After attempting to complete the three field sobriety tests, appellant told Officer Young that he had consumed only four beers instead of five or six. Officer Young concluded that appellant was under the influence of alcohol and subsequently arrested him.

III. Motion to SuppRess

In his sole point, appellant argues that the trial court erred when it denied his motion to suppress because he did not commit the offense of failing to maintain a single lane of traffic or driving on the shoulder in violation of the Texas Transportation Code. Thus, appellant contends that because his actions “do not rise to the level of an offense,” Officer Young lacked reasonable suspicion to detain him. Appellant further argues that the “anonymous tip” provided by the individual who notified police of his “reckless” driving “was not sufficiently reliable as to allow the officer to be certain that he was stopping the proper vehicle”; therefore, the tip did not in and of itself provide reasonable suspicion to detain appellant. The State maintains that reasonable suspicion existed to detain appellant because he did in fact commit the offenses of failing to maintain a single lane of traffic and driving on the shoulder. Moreover, the State contends that the tip from the concerned citizen provided reasonable suspicion justifying appellant’s detention.

A. Standard of Review

. We review a trial court’s ruling on a motion to suppress evidence under a bifurcated standard of review. Car-mouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App.2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997); State v. Ballman, 157 S.W.3d 65, 69 (Tex.App.-Fort Worth, 2004, pet. filed). In reviewing the trial court’s decision, we do not engage in our own factual review. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990); Best v. State, 118 S.W.3d 857, 861 (Tex.App.-Fort Worth 2003, no pet.). The trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim.App.2000); State v. Ballard, 987 S.W.2d 889, 891 (Tex.Crim.App.1999). Therefore, we give almost total deference to the trial court’s rulings on (1) questions of historical fact and (2) applieation-of-law-to-fact questions that turn on an evaluation of credibility and demeanor. Johnson v. State, 68 S.W.3d 644, 652-53 (Tex.Crim. App.2002); Best, 118 S.W.3d at 861-62. However, when the trial court’s rulings do not turn on the credibility and demeanor of the witnesses, we review de novo a trial court’s rulings on mixed questions of law and fact. Johnson, 68 S.W.3d at 652-53. When the trial court does not make explicit findings of historical facts, as in the instant case, we review the evidence in the light most favorable to the trial court’s ruling and assume the trial court made implicit findings of fact supporting its ruling, so long as those findings are supported by the record. Carmouche, 10 S.W.3d at 327-28.

B. Probable Cause to Stop Appellant for Traffic Violation

When a traffic violation is committed in an officer’s presence, the officer has probable cause to lawfully stop and arrest or detain the violator. Tex.Code Crim. Proc. Ann. art. 14.01(b) (Vernon 1977); Tex. Transp. Code Ann. § 543.001 (Vernon 1999); Williams v. State, 726 S.W.2d 99, 101 (Tex.Crim.App.1986); Rubeck v. State, 61 S.W.3d 741, 745 (Tex.App.-Fort Worth 2001, no pet.) (op. on reh’g). Thus, we will first examine whether Officer Young observed appellant commit a traffic violation.

1. Failure to Maintain Single Lane of Traffic

The Texas Transportation Code describes the offense of failure to maintain a single lane of traffic as follows: “An operator on a roadway divided into two or more clearly marked lanes for traffic: (1) shall drive as nearly as practical entirely within a single lane; and (2) may not move from the lane unless that movement can be made safely.” Tex. Transp. Code Ann. § 545.060(a) (Vernon 1999).

Appellant argues that he did not commit the offense of failing to maintain a single lane of traffic because there was no evidence that his driving was unsafe. In Martinez v. State, 29 S.W.3d 609 (Tex. App.-Houston [1st Dist.] 2000, pet. refd), a state trooper observed Martinez “drift partially onto the shoulder of the freeway with his right tires for one or two seconds and then pull back into his lane of traffic.” Id. at 610. The state trooper pulled Martinez over and subsequently found drugs hidden in the gas tank of the vehicle. Id. at 611. The First Court of Appeals determined that by swerving onto the shoulder, Martinez failed to maintain a single lane of traffic, thus giving the state trooper the authority to stop and detain him for that traffic violation. Id. at 611-12. Martinez argued that “he did not violate section 545.060 because there was no evidence that thé swerve onto the shoulder was unsafe.” Id. The court, however, reasoned that Martinez’s driving was unsafe because the traffic on the highway that particular night was “moderate to heavy.” Id. at 612.

The instant case is like Martinez. Here, Officer Young testified that he observed appellant’s truck partially cross over the solid white line separating the traveling lane from the shoulder and “straddle” it “for a few moments.” The truck then returned “erratically” to the traveling lane. The offense occurred on November 23, 2002, which was Thanksgiving weekend. Officer Young testified that “[tjhere was a lot of traffic out and there were a lot of people behind me.”

Appellant cites State v. Cemy, State v. Arriaga, Hernandez v. State, , and State v. Tarvin as support for his argument that he did not commit the offense of failing to maintain a single lane. These cases, however, are all distinguishable. In Cemy, the vehicle weaved within its lane and touched the shoulder line. 28 S.W.Sd at 798-99. There was no other testimony giving further justification for the stop. Id. at 799 (“Terronez did not stop appellee for any other reason than failure to maintain a single lane”). In Amaga, the officer observed the driver drifting within, but not crossing over, a lane, and the officer could not testify with any certainty as to how many times the drifting occurred. 5 S.W.3d at 805. In addition, the State in that case did not offer any facts characterizing Arriaga’s driving as “erratic, unsafe, or indicative of intoxication.” Id. at 807. Hernandez involved a slight drift into another lane that was not shown to be unsafe or dangerous. 988 S.W.2d at 870-72. In Tarvin, the driver weaved within his lane, and the arresting officer “never testified that he was conducting an investigatory stop, nor did he testify to suspecting any criminal activity other than weaving out of the lane.” 972 S.W.2d at 912.

Here, as discussed above, appellant “straddled” the white lane separating his traveling lane from the shoulder before returning “erratically” to the traveling lane “as if to turn at an angle”; he did not merely weave or drift within his own lane. Considering the amount of traffic at the time and the likelihood of other motorists entering and exiting the highway because of the proximity of the liquor store and a nearby gas station, we hold that the evidence supports the trial court’s implicit finding that appellant’s act of moving out of his lane of traffic, “straddling” the white line separating the traveling lane from the shoulder, and “erratically” re-entering his lane of traffic at an angle was unsafe and therefore a violation of section 545.060(a). Thus, Officer Young could have stopped appellant because he saw him fail to maintain a single lane of traffic. See Martinez, 29 S.W.Bd at 612; see also Tex. Dep’t of Pub. Safety v. Nordin, 971 S.W.2d 90, 94 (Tex.App.-Houston [14th Dist.] 1998, no pet.) (holding reasonable suspicion existed to stop vehicle after vehicle crossed over white line onto shoulder).

2. Driving on the Shoulder

As part of his failure to maintain a single lane of traffic, appellant drove on the shoulder of the highway. Section 545.058(a) of the Texas Transportation Code provides that

[а]n operator may drive on an improved shoulder to the right of the main traveled portion of a roadway if that operation is necessary and may be done safely, but only:
(1) to stop, stand, or park;
(2) to accelerate before entering the main traveled lane of traffic;
(3) to decelerate before making a right turn;
(4) to pass another vehicle that is slowing or stopped on the main traveled portion of the highway, disabled, or preparing to make a left turn;
(5) to allow another vehicle traveling faster to pass;
(б) as permitted or required by an official traffic-control device; or
(7)to avoid a collision.

Tex. Transp. Code Ann. § 545.058(a) (emphasis added).

Appellant argues that he did not violate section 545.058(a) by driving on the shoulder because there was no evidence that his driving was unsafe; thus, Officer Young did not have reasonable suspicion or probable cause to detain him for this alleged violation. As the State points out, however, driving on the shoulder is permitted if it is done safely and it “is necessary.” See id. Officer Young testified that he observed appellant’s vehicle cross over the solid white line separating the traveling lane from the shoulder and “straddle” it “for a few moments.” Officer Young further testified as follows:

[Appellant’s attorney]: Okay. Would it be fair to say that when you observed the traffic violation that was what you believed to be the reasonable suspicion of probable cause to make the stop? [Officer Young]: Absolutely.

There is no evidence in the record indicating that it was “necessary” for appellant to drive on the shoulder under any one of the exceptions listed in section 545.058(a). Id. Moreover, the trial court stated the following when it denied appellant’s motion to suppress:

And while I can understand your argument, and I’ll certainly read Tarvin [sic], this was not — the driving of the Defendant was not merely a touching of the white line, it was — the testimony is that he actually traveled in the shoulder, which is a violation of the Texas Transportation Code, unless there are certain exceptions to that which the officer identified the exceptions when it is lawful to travel in the shoulder. So I find, based on a preponderance of the evidence ... that there was probable cause to make the stop, and therefore, there was probable cause to continue in the field sobriety tests.

Giving deference to the trial court’s findings, we conclude that the act of appellant’s vehicle’s traveling on the shoulder was also independently sufficient to provide probable cause to stop appellant. See Garcia, 43 S.W.3d at 530; see also Martinez, 29 S.W.3d at 612 (“Although the trial court did not specifically address driving on the shoulder, the trial court could have found a violation of this statute to be a proper basis for the stop.”). Accordingly, appellant’s act of moving out of his lane of traffic onto the shoulder and “erratically” re-entering his lane of traffic at an angle constituted two separate traffic violations for which Officer Young had probable cause to pull him over.

We overrule appellant’s sole point.

IV. Conclusion

Having overruled appellant’s sole point, we affirm the trial court’s judgment.

      . At the conclusion of appellant’s motion to suppress hearing, as the trial court denied the motion, it did provide several informal "findings” in support of its decision. However, appellant did not request formal findings of fact and conclusions of law, and there are none in the record.

      . 28 S.W.3d 796 (Tex.App.-Corpus Christi 2000, no pet.).

      . 5 S.W.3d 804 (Tex.App.-San Antonio 1999, pet. refd).

      . 983 S.W.2d 867 (Tex.App.-Austin 1998, pet. refd).

      . 972 S.W.2d 910 (Tex.App.-Waco 1998, pet. refd).

      . Because we have determined that Officer Young had probable cause to stop appellant based on his observance of two traffic violations, we need not address appellant’s contention that the anonymous tip did not provide Officer Young with reasonable suspicion or probable cause to stop appellant. See Tex. R.App. P. 47.1.