author: JAN P. PATTERSON, Justice.

text:
    TEXAS DEPARTMENT OF ASSISTIVE AND REHABILITATIVE SERVICES, successor in interest to the former Texas Rehabilitation Commission, Appellant v. Richard HOWARD, Appellee.
    No. 03-05-00031-CV.
    Court of Appeals of Texas, Austin.
    Dec. 8, 2005.

      Robert F. Johnson III, Asst. Atty. Gen., Austin, for appellant.
    Walter L. Taylor, Law Offices of Walter L. Taylor, Austin, for appellee.
    Before Justices B.A. SMITH, PATTERSON and WALDROP.
   OPINION

JAN P. PATTERSON, Justice.

The State of Texas elevates public employees who report legal wrongdoing to a protected status as a matter of fundamental policy. The State views whistleblowing by a public employee as a courageous act of loyalty to a larger community, and we allow whistleblowing public employees to be made whole through lawsuits against the State. See Tex. Gov’t Code Ann. §§ 554.002-.003 (West 2004). Richard Howard, a unit manager with 24 years of service at the Texas Department of Assis-tive and Rehabilitative Services, reported several of his employer’s practices that he believed violated the law to the State Auditor’s Office (“SAO”). Howard alleges in his petition that when he requested clarification of Department practices from his own human resources director, as per the instructions of the SAO representative, his superiors learned of his report to the SAO and retaliated. Howard was counseled and rated below standard on his yearly performance appraisal, effectively denying him promotions and merit pay increases. Howard sued the department under the Whistleblower Act, and a jury awarded him damages, costs and attorney’s fees. In six issues, the Department challenges whether the evidence is legally and factually sufficient to sustain the jury’s verdict. Because we find that the evidence is legally and factually sufficient, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Howard, who possesses a Ph.D. in anthropology from the University of Texas, is a unit manager in the disability determination services division of the Department. From the time Howard was employed by the predecessor of the Department in 1977 to the time of this dispute in 2001, he had established an exemplary work record, rising to his current position from the position of entry-level disability examiner. The testimony at trial indicates that, despite supervising a changing staff of 16 disability examiners, his unit consistently ranked among the Department’s best in annual performance appraisals.

The record contains the caseload performance statistics that were used by the Department to evaluate individual units for cost-effectiveness and the timely processing of cases for the years 1997 to 2001. Based on the Department’s performance standards, the rankings of Howard’s unit were strong. Howard’s unit ranked second, first, first, first and first, respectively, among the five units in his directorate, and sixth, second, third, fourth and third, respectively, among the 25 units in his division. Howard’s unit performed capably despite accepting “underperforming” examiners from other units, which he then retrained and developed into better performing employees. During fiscal year 1999, Director Connie Miller, Howard’s supervisor, assigned Howard an examiner that had not met all of his job standards for the previous ten years. On Howard’s performance appraisal dated September 1999, Miller noted, “[this disability examiner] meets or exceeds all of his job performance standards for FY-99. The above exemplifies Mr. Howard’s ability to manage people.”

He received similar accolades from his subordinates. He was nominated by unit employees for employee of the year for a sixth time in 1997. The record also includes a letter from three examiners in his unit, sent to Miller, which praised Howard for being “supportive” and an “exemplary supervisor.” It stated, “[Howard’s] skills as a mentor and problem solver continue to inspire us to try and excel above and beyond the general expectations of the agency.” An associate commissioner who received a copy of the letter wrote to Howard, “[n]otes such as these ... are elusive these days. I value what you did to earn this support and respect.” Howard testified that in his 24 years at the Department, including 11 as a unit manager, he had never been rated below standard on any performance evaluation. Until 2001.

In late 2000, Howard became concerned with what he considered to be the arbitrary actions and policy decisions by upper management that he believed were hurting worker morale. When two of his subordinates were refused promotions based on unwritten career ladder requirements, he considered it “the straw that broke the camel’s back.” Howard compiled a list of the practices that concerned him, placing each into one of two different categories of infractions: he called the first the nonuniform application of policy and the second the falsification of state documents. In November or December 2000, he called the SAO and reported the practices.

The SAO representative did not take immediate action on the call. Instead, he referred Howard to the Department’s human resources director for a written clarification of Department policy. Howard then requested the information from the director of human resources, Josephine Sanchez, as per the instructions of the SAO representative. In the organizational structure of the Department, however, Sanchez reported directly to Deputy Commissioner David Ward. Sanchez testified that even though Ward had hired her to specifically address the Department’s problems with inconsistent practice and policy, Ward was irate when she told him of Howard’s report on approximately January 3, 2001. Ward, according to Sanchez, called Howard a “loose cannon,” and a “whistleblower,” and “stated that Richard was not going to be promotable.” According to Sanchez, Ward demanded that she not give any more information to Howard, including the policy interpretations requested by the SAO, and that if she did, Ward would view it as a personal attack on him by Sanchez.

On January 3, 2001, Ward’s direct subordinate, Associate Commissioner Kay Chee, instructed Howard’s supervisor, Miller, to discipline Howard for transferring reconsideration files between disability examiners. Miller, who testified that Howard was “one of my best supervisors,” hesitated. According to Miller, there was no written policy that prohibited Howard’s actions, this type of transfer was routine in the Department, and Howard was the only manager that he was instructed to discipline.

Despite disciplining Howard in January, Miller recommended Howard for a merit increase on May 29, writing, “Howard has met and/or exceeded performance standards of all essential marginal job functions of his functional job description over the last twelve months.” On October 12, Howard’s merit increase was denied by Commissioner Chee, who instead directed Miller to discipline Howard again, this time because one of Howard’s disability examiners misplaced a file, which delayed its processing for a substantial period of time. Miller disagreed with this order, too, as unreasonable and unfair. Miller testified that if it had been left to his discretion, as it usually was, he would not have rated Howard “below standard” because Howard lacked actual control over the individual files.

Soon thereafter, Miller was instructed by Chee to rank Howard “below standard” on the areas of his 2001 performance appraisal plan that corresponded to the issues for which he had been disciplined. Miller testified that even one below-standard ranking on a performance appraisal could “destroy a person’s career,” and that he was upset “because he knew what it was going to do to an excellent employee.” As Chee’s requests to Miller to discipline Howard became more frequent, Miller asked Chee, “Well, what do y’all have against Richard?” Miller testified that Chee responded, ‘Well, just do your job.” Howard’s “below standard” rating on his December 3, 2001, performance appraisal made him ineligible for a merit increase for the next 12 months.

In early 2002, three of the five program operations director positions, the position immediately above Howard’s, became vacant. Despite this unprecedented opportunity for promotion, Howard was not chosen for any of the positions. As Commissioner Ward testified, Howard’s negative performance appraisal made it impossible for him to be among the leading candidates for the jobs. At the time, Commissioner Chee selected all directors of program operations, and Commissioner Ward reviewed all the selections.

Howard filed suit against the Department in January 2002. On July 31, 2002, both David Ward and Kay Chee retired after 28 and 29 years of service to the Department, respectively.

At the conclusion of the trial, the jury answered all the questions in the court’s charge in favor of Howard. The jury found that Howard made a good faith report to the SAO concerning the Department and that he had a good faith belief that the SAO was an appropriate law enforcement authority. The jury further found that the report was the cause of Howard’s adverse performance appraisal and the denial of his 2001 merit increase and that if Howard had not made the report, neither of these actions would have occurred. The jury also found that the Department would not have written his adverse performance appraisal or denied Howard’s merit increase based solely on information or observations not related to his report to the SAO.

The jury awarded Howard $259,799.31 in damages for the loss of one promotion and two merit pay increases, their effects on his retirement annuity and social security benefits through his life expectancy, and reasonable attorney’s fees. This appeal ensued.

ANALYSIS

The Controversy

In its first, second, and third issues, the Department contends that the evidence is legally and factually insufficient to establish that Howard made a good faith report of a violation of law to an appropriate law enforcement authority. The Department further contends that the evidence is legally and factually insufficient to establish a causal link between Howard’s report and his termination. The Department also asserts that the evidence shows that the same employment actions would have been taken even if Howard had not made a protected report. Finally, the Department argues that the evidence is legally and factually insufficient to support the jury’s award of damages.

Howard responds that he presented legally and factually sufficient evidence to prove the contested elements of his whis-tleblower claim and to support his damage award. Howard further responds that the jury’s rejection of the Department’s affirmative defense was not against the great weight of the evidence.

Standard of Review

We are asked to determine whether Howard presented legally or factually sufficient evidence to prove the contested elements of his whistleblower claim and to support his damage award. Evidence presented at trial is legally sufficient if it enables reasonable and fair-minded people to reach' the verdict under review. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005). Legal-sufficiency review must credit favorable evidence if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not. Id. A reviewing court cannot substitute its judgment for that of the fact finder, so long as the evidence falls within the zone of reasonable disagreement. Id. at 822. When conducting a factual sufficiency review, we examine the entire record and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986).

Under either standard, jurors are the sole judges of credibility of the witnesses and the weight to give their testimony. See City of Keller, 168 S.W.3d at 819. Likewise, it is the province of the jury to resolve conflicts in the evidence. Id. at 820. Reviewing courts cannot impose their own opinions to the contrary. Id. at 819.

Report of a Violation of Law

The Whistleblower Act prohibits a state or local government entity from taking adverse personnel action against a public employee who in good faith reports a violation of law by the employing governmental entity to an appropriate law enforcement authority. Tex. Gov’t Code Ann. § 554.002. The Act is designed to enhance openness in government and compel the State’s compliance with law by protecting those who inform authorities of wrongdoing. City of New Braunfels v. Allen, 132 S.W.3d 157, 161 (Tex.App.-Austin 2004, no pet.). The Act evidences two legislative purposes: (1) to protect public employees from retaliation by their employer when, in good faith, employees report a violation of the law, and (2) to secure lawful conduct on the part of those who direct and conduct the affairs of public bodies. Id. Because the Act is remedial in nature, it should be liberally construed to effect its purpose. Id. (citing Hill v. Burnet County Sheriff's Dep’t, 96 S.W.3d 436, 440 (Tex.App.-Austin 2002, pet. denied)).

Both parties agree that a “report,” for the purposes of the Act, includes “any disclosure of information regarding a public servant’s employer tending to directly or circumstantially prove the substances of a violation of criminal or civil law, ... statutes, administrative rules or regulations.” Davis v. Ector County, 40 F.3d 777, 785 (5th Cir.1994) (citing Castaneda v. Department of Agric., 831 S.W.2d 501, 503-04 (Tex.App.-Corpus Christi 1992, writ denied)). In the instant case, a reasonable jury could have found that Howard made a report to the SAO.

Howard testified that in late November or December 2000 he had a 45-minute telephone conversation with a representative of the SAO, who referred Howard to the Department’s human resources director for a written clarification of Department policy. Howard testified that he then requested the information from the director of human resources, Josephine Sanchez, testimony that Sanchez confirmed in her deposition presented at trial. An organizational tree depicting the structure of the Department and showing that Director Sanchez reported directly to Commissioner David Ward was admitted into evidence, as was an e-mail dated January 4, 2001, from Director Sanchez to Commissioner Ward, outlining “Richard’s allegations.” In the e-mail, Director Sanchez wrote, “Mr. Ward, I asked Richard if he had called the Texas Audit Committee as he’d indicated on our recent telephone conversation. He said that he did....”

Howard testified at length about the contents of this telephone conversation. He recalled that he identified himself by name and as a manager at the Department and communicated to the SAO representative his “concerns about the illegality of these various what I thought were violations. And basically I was calling to inquire — to confirm actually whether what I thought were illegal acts were in fact illegal acts and thinking that would be the appropriate agency to whom I should report these violations.” According to Howard, the SAO representative “listened to all — everything I had to say, the identification of all the infractions that I identified.”

Howard testified that he discussed with the SAO representative every Department practice that he later included in a letter to the attorney general. The letter contained six complaints: (1) internal leave policies “do not conform to state employment law”; (2) the deputy commissioner selectively promoted individuals without posting the job positions and subjecting the applicants to competitive interviews; (3) Howard was directed to amend two final selection documents after they had been reviewed and approved by the director of human resources and legal services, so that the final documents that were made available to the public were not the same as the approved copies; (4) management selectively allowed employees to retire and then be rehired; (5) employees were refused promotions based on unwritten career ladder requirements; and (6) unwritten requirements led employees to falsify their overtime reports.

Quoting Howard, the Department maintains that the call was merely an “inquiry” and that, because Howard was only seeking “opinions” regarding the “legality/validity” of the Department’s practices, the call does not qualify as a report for the purposes of the Act. Howard had also used those words of circumspection in the letter listing his complaints and in an internal grievance that he subsequently filed with the Department. Howard, however, explained at trial that although he “thought [the practices] were illegal,” he used those words because he was “not a lawyer and I certainly can’t quote the statute definition of the illegal practices.”

Neither the Act itself nor the definition of “report” provided in Castaneda, however, require the use of specific phrasing in a whistleblower report, nor do they require that a whistleblowing employee state his complaint in the affirmative, as opposed to reporting the matters in the form of a query. See Castaneda, 831 S.W.2d at 503-04. Rather, the Act only requires a disclosure of information by a public employee tending to directly or circumstantially show a violation by a public employer. See id. Based on the proof at trial, a reasonable jury could have found that Howard met that burden. Thus, Howard’s report of the Department’s alleged violations of law to the SAO was sufficient to establish this element of his whistleblower claim. See Tex. Gov.Code Ann. § 554.002(a).

We overrule the Department’s first issue.

Good Faith Violation of Law

The supreme court has defined good faith in the whistleblower context to mean that (1) the employee believed that the conduct reported was a violation of law and (2) the employee’s belief was reasonable in light of the employee’s training and experience. Wichita County v. Hart, 917 S.W.2d 779, 784 (Tex.1996). The first prong of this test considers the employee’s subjective belief: whether the employee honestly believed the conduct reported was a violation of law. Id. at 784-85. The second prong is objective because it measures the employee’s belief against that of a reasonably prudent employee in similar circumstances. Id. at 785. A report of an alleged violation of law may be in good faith even though incorrect, however, as long as a reasonable person with the employee’s same level of training and experience would also have believed that a violation had occurred. Id. at 785-86.

Howard testified repeatedly that, at the time he called the SAO, he believed that certain policies and practices at the Department violated the law. In addition to the more general testimony described in the previous section, Howard also provided the representative of the SAO with specific names of laws that he believed were violated by the Department. Our sister court in San Antonio has found this persuasive, if not necessary, stating, “[t]he fact that [the whistleblower] has pointed out an actual law that he believes [his co-worker] violated is relevant to our inquiry here.” Bexar County v. Lopez, 94 S.W.3d 711, 713 (Tex.App.-San Antonio 2002, no pet.). Howard testified that he believed that the policy incentivizing employees to falsify their overtime reports and the Department to keep a “double ledger system” for recording employee overtime violated the Fair Labor Standards Act. See Fair Labor Standards Act of 1938, 29 U.S.C. §§ 201-19 (1998). He also testified that he believed that his modification of a final selection document before it was made available to the public was a violation of the Open Records Act because it gave non-selected applicants a false understanding of their placement on the selection matrix. See Tex. Gov’t Code Ann. §§ 552.021-.022 (West 2004).

Additionally, Howard testified that he discussed the Department’s leave policy with the SAO representative and the specific laws and constitutional provisions that he believed it violated. The record shows that Howard understood this policy because it was the focus of complaints to him by one of his disability examiners, Janet Shannon, who had previously worked at the SAO. On October 27, 2000, shortly before he called the SAO, Howard forwarded to Miller an interoffice memorandum written to him by Shannon that expressed her concerns about the Department’s leave policy. Howard included a short preface to the memorandum, in which he wrote, “Ms. Shannon points out that [Department] policy involving the ’40 hour minimum leave balance’ is in effect incompatible with the legal opinions, referenced by the Office of the State Auditor.” Shannon’s memorandum cited provisions in the Department’s leave policy that appeared to violate “Article V, Section 8(c) of the General Appropriations Act-Texas Senate Bill 222[,] Texas Constitution, Article 1, Section 16[and] the 14th Amendment of the Constitution of the United States.” On appeal, the Department conceded that Howard reported a good faith violation of law with regard to agency leave policy.

Furthermore, a reasonable jury could also have found that Howard’s beliefs and expectations were commensurate with his training and experience. Howard’s testimony shows an understanding of the Department’s written requirements and the specific instances where the Department improperly and unfairly implemented its own policies. A jury could have concluded that a reasonably prudent manager with Howard’s training and experience would have come to a similar conclusion. Thus, Howard’s good faith report of the alleged violations of law by the Department was sufficient to establish the good faith element of his whistleblower claim. See id. § 554.002(a). The jury could reasonably have concluded that Howard, in good faith, reported a violation of law by the Department.

We overrule the Department’s second issue.

Appropriate Law Enforcement Authority

The Department also contends that the evidence is factually and legally insufficient to support a finding that Howard made his report to an “appropriate law enforcement authority.” “Appropriate law enforcement authority” is defined in the Act as an authority that is a part of a state or local governmental entity or of the federal government that the employee in good faith believes is authorized to: (1) regulate under or enforce the law alleged in the report to have been violated; or (2) investigate or prosecute a violation of criminal law. Id. § 554.002(b). The determination of whether an entity is an appropriate law enforcement authority is a question of law. Texas Dep’t of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex.2002).

Generally under Needham, we would first determine whether the SAO has been given the authority to either “regulate under or enforce the law” alleged in the report to have been violated, or “investigate or prosecute a violation of criminal law.” Id. at 320. If the answer to any of these questions is yes, then the SAO is an appropriate law enforcement authority as a matter of law. Because neither party briefed the question of whether the SAO is an appropriate law enforcement authority as a matter of law, we decline to address this question. Instead, we turn to an alternative formulation also addressed in Needham.

In light of subsection (b) of the statute, which was added in its entirety by the legislature in 1995, the Needham court determined that, even if an entity was not an appropriate law enforcement authority as a matter of law, a plaintiff: could still prevail if he could demonstrate that he had a good faith belief that his report was made to an appropriate law enforcement authority. Id. The Needham court then applied the same test of good faith to section 554.002(b) that it utilized in determining whether a good faith violation of law had been reported under section 554.002(a). Id. at 320-21. The test for good faith belief regarding an appropriate law enforcement authority consists of a subjective and objective prong, both of which must be satisfied in order to satisfy the good faith standard. Id. at 321. The subjective prong requires that the employee believe that the governmental entity was either authorized to “regulate under or enforce the law alleged to be violated in the report” or that it was authorized to “investigate or prosecute a violation of the criminal law.” Id. The objective prong requires that the employee’s belief that the report was made to an appropriate law enforcement authority be reasonable in light of his training and experience. Id.

There is ample evidence that Howard subjectively believed that the SAO was the appropriate law enforcement authority to which he should report his complaints. As discussed earlier, Howard testified that the issue of the disparate treatment of employees with low annual and sick leave balances was originally brought to his attention by one of his subordinates, Janet Shannon, who had previously worked at the SAO. Howard forwarded to Miller the memorandum he received from Shannon, including the three separate “SAO Leave Interpretation Letters” that were attached to it. Shannon’s memorandum stated, “As we are all aware: The State Auditor is directed to provide uniform interpretation of the sub-chapters of the Texas Government Code relating to leave provisions and shall report to the governor and the legislature any state agency that practices exceptions to those laws.” Howard testified that he was impressed with Shannon’s memorandum and familiar with her credentials, having reviewed her file when she was transferred to his unit. In his testimony, Howard recalled that Shannon was “part of a task force with the Texas State Auditor’s Office for a year and half performing investigations.” As the Department conceded, “the only facts in the record that could arguably support a belief that the State Auditor’s Office had regulatory or enforcement authority related to one of [Howard’s] concerns is limited to the topic of the [the Department’s] leave policy.”

When Howard’s subordinates were refused promotions based on unwritten career ladder requirements, he considered it, “the straw that broke the camel’s back.” Howard compiled a list of the practices that concerned him, placing each into one of two different categories of infractions: he called the first the non-uniform application of policy and the second the falsification of state documents. Howard did not know where to report the infractions, so he asked Janet Shannon for advice. Howard testified,

I knew that she had been a Texas state auditor. I knew that she had been somehow responsible or involved in investigating these kinds of issues, so I went to her for some direction and said, Where do you think I should go, where should I take this?_ She recommended that I make my report to the Texas state auditor_I’m vaguely remembering that she advised me that they were ... involved with the regulation of — the application of policies and mismanagement among various state agencies in Texas.

From his conversations with Shannon, Howard derived his understanding of the powers of the SAO. He testified:

[Shannon] explained to me that the Texas state auditor had subpoenaed her. I didn’t realize until yesterday that they don’t actually issue the subpoena but they request the subpoena. She talked about joint investigative committees involving the Department of Public Safety. She talked about the fact that based on the findings, entire boards had been removed, management audits had resulted in changing policies. So it seemed to me that was the place to go with my concerns.

Howard was asked, “At the time you made the phone call, what did you believe that the Auditor’s Office had the power to do as a result of these?” Howard responded, “Bottom line, fix it.”

Both parties adduced proof as to whether Howard’s belief was reasonable in light of his training and experience. Susan Riley, a 27-year veteran of the SAO and an audit manager, testified that she was unaware of any studies or surveys conducted to determine what state employees know about the SAO. She believed that none had ever been conducted. Anthony Garrant, the acting state classification officer, was asked more directly if it would be unreasonable for a state employee to think that the SAO had regulatory authority, and he responded, “the word ‘unreasonable’ is a pretty strong word.” Garrant continued, “people interpret things differently,” according to their own training and experience. Commissioner Chee, a 28-year veteran of the Department at the time this dispute arose, was asked about the SAO at trial. Chee recalled that at her deposition she testified that the SAO may have been responsible for the oversight of departmental management audits. She also testified at her deposition that she believed the SAO was responsible for the “Sunset” audit and that if the agency failed that audit the SAO could shut down the Department.

But neither party addressed the statutory role of the SAO. Section 554.010, entitled “Audit of State Government Entity After Suit,” states that, at the conclusion of a successful whistleblower lawsuit against a state governmental entity for a sum greater than or equal to $10,000, the attorney general shall provide to the SAO a brief memorandum describing the facts and disposition of the suit. Tex. Gov’t Code Ann. § 554.010(a) (West 2004). Section 554.010(b) states:

Not later than the 90th day after the date on which the state auditor’s office receives the memorandum required by Subsection (a), the auditor may audit or investigate the state governmental entity to determine any changes necessary to correct the problems that gave rise to the whistleblower suit and shall recommend such changes to the Legislative Audit Committee, the Legislative Budget Board, and the governing board or chief executive officer of the entity involved. In conducting the audit or investigation, the auditor shall have access to all records pertaining to the suit.

Id. § 554.010(b).

The legislature itself has turned to the SAO to “audit or investigate” the state governmental entity that has been successfully sued, and its mandate acts as further evidence of the reasonableness of Howard’s decision. Id. The jury could reasonably have concluded that Howard’s report of the Department’s alleged violations of law to the SAO was sufficient to establish this element of his whistleblower claim. See id. § 554.002(a).

We overrule the Department’s third issue.

Causation

The Department asserts that the evidence is legally and factually insufficient to establish that Howard’s damages were caused by his good faith report to the SAO. Specifically, the Department contends that it took action against Howard because he improperly authorized a transfer of reconsideration files to low-level disability examiners and because he was responsible for a misplaced file in his unit.

To prove causation in a whistle-blower case, an employee need not prove that his reporting of the illegal conduct was the sole reason for the employer’s adverse action. Texas Dep’t of Human Servs. v. Hinds, 904 S.W.2d 629, 634 (Tex.1995). Rather, a public employee must demonstrate that, after he reported a violation of law in good faith to an appropriate law enforcement authority, the employee suffered discriminatory conduct by his employer that would not have occurred had the report not been made. City of Fort Worth v. Zimlich, 29 S.W.3d 62, 67 (Tex.2000).

Circumstantial evidence may be used to establish a causal link between an employee’s legally protected activity and an employer’s retaliation. See Continental Coffee Prods. v. Cazarez, 937 S.W.2d 444, 451 (Tex.1996). Known as the Cazarez factors, such circumstantial evidence includes: (1) knowledge of the protected activity by the decision-maker, (2) expression of a negative attitude toward the plaintiffs protected activity, (3) failure to adhere to agency policy, (4) discriminatory treatment of plaintiff compared to similarly-situated employees, and (5) evidence that the stated reasons for the adverse action was false. Id. But evidence that an adverse employment action was preceded by a superior’s negative attitude towards an employee’s report of illegal conduct is not enough, standing alone, to show a causal connection between the two events. Zimlich, 29 S.W.3d at 69.

There is ample evidence in the record that the two people directly involved in the decisions to take adverse employment actions against Howard— Commissioners Chee and Ward — knew of Howard’s report to the SAO. The director of human resources, Josephine Sanchez, testified that Howard talked to her about his SAO report in December 2000. Sanchez testified that even before she had the opportunity to inform Ward, Ward already knew that she had spoken with Howard. Sanchez testified that Ward called Howard a “whistleblower” and a “loose cannon,” described Howard as “not promotable,” and threatened to “fix him.” Because Ward instructed Sanchez to ask Howard if he actually called the SAO, she wrote Ward an e-mail in January 2001 stating, “Mr. Ward, I asked Richard if he had called the Texas Audit Committee as he’d indicated on our recent telephone conversation. He said that he did.... ” Ward denied Sanchez’s statements, and testified that Sanchez had never told him that Howard had called the SAO.

Sanchez also testified that she spoke with Chee about Ward’s threats directed towards Sanchez, and that she informed Chee about the ongoing dialogue she was having with Howard. Sanchez testified that she and Chee “had extensive telephone conversations where she told me about David Ward,” and that Chee advised Sanchez to “be very careful” because Ward “was definitely after” her. Sanchez was then asked, “[d]id [Chee] tell you why Ward was after you?” to which Sanchez responded, “Yes. Because [Chee] said that [Ward] viewed me as being a whistleblower and that I was assisting Richard.”

Howard introduced evidence showing that the Department counseled and disciplined him in a manner that deviated from its standard practices and the way it treated other similarly-situated employees. Miller testified that Chee instructed him to subject Howard to disciplinary counseling for his transferring of reconsideration files to disability examiners even though the practice was routine in the agency. Miller testified that Howard was the only unit manager ever disciplined for this practice. There was also evidence that Chee and Ward had tolerated much more serious file transfer abuses. For example, Miller testified that, in the recent past, when the Social Security Administration had put a hold on continuing disability review cases, one director and one unit manager ignored the directive and transferred their “hold” files back to Social Security, thus shortening their unit’s processing time and artificially inflating its productivity numbers. Miller testified that it was common knowledge in the Department that these two employees had violated policy, and it was openly discussed at a meeting over which Chee presided and Miller attended. Miller testified that Chee expressed no negative opinion about the transfers at the meeting and that both employees were promoted shortly thereafter. In Miller’s opinion, these file transfers were far more serious than Howard’s transfer of reconsideration files.

Howard also adduced evidence that his being disciplined for the lost file was a pretext for the department’s adverse employment action. Miller testified that when evaluating unit managers, he generally had discretion to simply not rate an item on a quarterly performance review, instead of rating the item “below standard.” Miller testified that he had exercised that discretion on reviews for other unit managers and that if Howard’s review had been left to his discretion, he would have chosen not to rate Howard on the standard corresponding to the lost file. Miller testified that Howard was an excellent supervisor and that he objected to the rating because Howard was “going to be rated below standard on a new standard which I thought was unreasonable to be in his job description anyway because I didn’t think that — I thought the standard was unreasonable for supervisors.” When Miller was asked, “who is the person that directed you specifically to include in this quarterly counseling that Mr. Howard was going to be rated below standard on his [performance appraisal plan]?” he identified his supervisor, Kay Chee. Miller thought the action so inappropriate that he wrote in the subjective comments section of the quarterly counseling, “I find this very ironic as his unit was never above two percent in aged cases. . Every [disability examiner] in the unit exceeded the 120 aged case standard.”

When Miller and Chee discussed Howard’s yearly performance appraisal plan in the fall of 2001, Miller again voiced his concerns about rating Howard “below standard” on the items corresponding to his transfer of cases and the lost file. Miller again expressed his preference to not rate the two standards because he knew that even a single “below standard” rating could “destroy a person’s career to some degree in the agency, especially if you’re a supervisor.” Miller added, “in this case, with his past job performance, I had problems with that because I knew what it was going to do to an excellent employee.” According to Miller, Chee again asserted an unusual amount of interest in controlling Howard’s evaluation. Miller recalled that a similarly-situated unit manager who was rated “below standard” on one of the same items as Howard was later allowed by Chee to change the rating to “not rated.” In sum, Miller testified that Chee’s treatment of Howard was both unfair and disparate.

Howard also presented evidence that Chee and the Department overreacted to the lost file and seized it as an opportunity to reprimand Howard. The discovery of the file in Howard’s unit was triggered in part by a letter from a federal disability program administrator to Commissioner Ward inquiring about the status of certain files that had been active for more than a year. However, the letter did not criticize the Department’s performance. Instead, it said, “the list is remarkably short considering the size of your pending workload.” Additionally, as mentioned above, Miller testified that it is unfair to discipline unit managers for lost files because disability examiners are primarily responsible for individual files.

We hold that the evidence is legally and factually sufficient to establish that the Department would not have taken negative action against Howard when it did if Howard had not reported Department practices to the SAO. Although there is conflicting evidence as to why Howard was disciplined, the jury was free to believe some witnesses, disbelieve others, and resolve any inconsistencies in their testimony. See City of Keller, 168 S.W.3d at 822. The jury’s finding on causation is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. See Cain, 709 S.W.2d at 176.

We overrule the Department’s fourth issue.

Affirmative Defense

In its fifth issue, the Department complains that the jury rejected, against the great weight of the evidence, the affirmative defense submitted in questions one and two. It is an affirmative defense to a whistleblower action that the Department would have taken the negative personnel actions against Howard based solely on information that is not related to the fact that he made his protected report to the SAO. See Tex. Gov’t Code Ann. § 554.004(b) (West 2004).

Here, the Department has the burden of proof on its affirmative defense. When a party attacks the factual sufficiency of an adverse finding on an issue on which it has the burden of proof, it must demonstrate on appeal that the adverse finding is against the great weight and preponderance of the evidence. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex.2001) (citing Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex.1983)). Whether the great weight challenge is to a finding or a nonfinding, a court of appeals may reverse and remand a case for a new trial only when it concludes that the finding or nonfinding is against the great weight and preponderance of the evidence. Ames v. Ames, 776 S.W.2d 154, 158-59 (Tex.1989); Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646, 651 (Tex.1988).

In reviewing this issue, we are reminded of the supreme court’s admonition that we may not reverse simply because we conclude that “the evidence preponderates toward an affirmative answer.” Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex.1988). We may only reverse where “the great weight of [the] evidence supports an affirmative answer.” Id.

After a lengthy charge conference that produced an agreed jury charge, the Department now complains that the jury was distracted by confusing charge questions. This appears to be an attempt by the Department to argue charge error without asserting it as an issue on appeal, because the Department failed to preserve this error at the trial court. We have already discussed the evidence that supports the jury’s rejection of the Department’s affirmative defense. Based on the evidence, the jury could reasonably have rejected the Department’s affirmative defense submitted in questions one and two.

We overrule the Department’s fifth issue.

Damages

In its sixth issue, the Department asserts that the evidence is legally and factually insufficient to support the jury’s award of damages. We have previously refused to uphold an award of damages for a discretionary bonus in a whistleblower case, and the Department contends that we should reverse the award of damages here because there is no evidence other than speculation showing that Howard suffered any economic harm from the negative performance evaluation. See Housing Auth. of Crystal City v. Lopez, 955 S.W.2d 152, 156 (Tex.App.-Austin 1997, no pet.). The Department also contends that Howard’s report could not have been the reason his merit increases were denied because the sole decision maker, Commissioner Chee, was unaware of the report at the time she denied the raise — a contention we have already rejected.

Harvey Corn, C.P.A., testified as an expert on Howard’s economic harm. Although Corn was timely designated and his report timely produced, the Department never took his deposition, never sought additional information about his expert opinions, never designated its own economic damages expert, and never filed a Daubert/Robinson challenge to Corn’s testimony. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex.1995). The Department also did not object to any part of Corn’s report. Nor did the Department object to any of Corn’s testimony until after his report had already been admitted into evidence in its entirety.

Corn testified that “the mathematics, the source data, the information that supports work life expectancy and life expectancy, the automated calculators provided by the State of Texas and the Social Security Administration are all I think as good as you can get.” He testified that his report and testimony were based on reasonable accounting probability. In his report and in his testimony at trial, Corn detañed the process he followed to determine Howard’s economic damages.

Corn began his report with Howard’s claims that: (1) he was wrongly denied two merit pay increases of four percent base pay that should have commenced on September 1, 2001, and September 1, 2002; (2) alternatively, he was wrongly denied a promotion on February 1, 2002, from his current pay grade of B-12 to pay grade B-13, and, in accordance with Departmental practice, an increase to pay grade B-14 one year later, on February 1, 2003; and (3) he may have been denied the benefits of both the promotions described above and of the effect of the five percent merit pay increase he received on March 1, 2004, when applied to the higher salary level of grade B-14. Corn then calculated a dollar figure for each of these alternative damage scenarios. Corn’s damage calculations consisted of the following: (1) the difference between Howard’s actual wages and his expected wages through the expected date of trial; (2) the difference between Howard’s actual wages and his expected wages through the completion of his work expectancy; (3) the difference in Howard’s retirement annuity based on his current compensation and his expected compensation through his life expectancy; and (4) the difference in Howard’s social security benefits through his life expectancy. His report concluded with the calculation of exact dollar figures for each of the three alternative damage scenarios:

it is my opinion that Richard Howard was damaged by the [Department’s] failure to grant merit pay increases on September 1, 2001, and September 1, 2002, in the amount of $129,673 and in the alternative Mr. Howard was damaged as a result of the [Department’s] failure to grant him promotion on February 1, 2002, in the amount of $119,774. Additionally, Mr. Howard may have been damaged in amount of $180,691 as a result of both the fañure to grant promotion and the fañure to apply his March 1, 2004, merit pay increase to the appropriate wage rate.

The jury, however, was not limited to these three choices. At trial, Corn testified that he constructed his report so that his figures could be adjusted by the jury if they disagreed with the size of the merit pay increases used in his calculations, or if they believed that the merit pay increases or promotions would have occurred on dates not contemplated by the report. This flexibility proved unnecessary, however, as the jury awarded $180,691 to Howard, the exact dollar amount that Corn specified in his report and testimony corresponding to the third damage scenario.

The jury weighed the conflicting evidence, decided the facts, and calculated a damage award that exactly matched Corn’s damage calculations. But Corn’s report was not the only evidence on Howard’s damages. Howard supported Corn’s report by producing evidence, discussed in greater detail above, to show that Howard was denied merit increases and promotions because of his call to the SAO. In summary, Miller testified that he recommended Howard for the May 2001 merit increase and that Chee denied it, and both Miller and Howard testified that the negative 2001 performance appraisal made Howard automatically ineligible for a merit increase in May of 2002. Regarding Howard’s loss of promotions, Miller testified that the “below standard” rating that Howard received on his 2001 performance appraisal could “destroy a person’s career.” Howard then testified that three of the five director of program operations positions, the position directly above his, became vacant simultaneously only two months after he had received the negative marks on his performance appraisal. He testified that he applied, interviewed, and was subsequently denied for all three director positions and that Commissioners Chee and Ward were responsible for choosing the new directors.

For the above reasons, the jury’s award of damages for Howard’s lost promotions and merit pay increases in the instant case is distinguishable from the “annual salary adjustment” that we declined to uphold in Crystal City. See Crystal City, 955 S.W.2d at 156. In Crystal City, the “annual salary adjustment” was an annual bonus given at the discretion of the agency. Id. In the instant case, Howard’s damages reflect salary increases and promotions based solely on merit. Thus, we hold that the evidence is legally and factually sufficient to support the jury’s award of damages.

We overrule the Department’s sixth issue.

Conclusion

Having overruled the Department’s issues, we hold that the evidence was legally and factually sufficient to support the jury’s verdict. We affirm the trial court’s judgment.


source: Caselaw Access Project

author: Opinion by Chief Justice MORRISS.

license: Public Domain

text:
    Joe Gail DUNCAN, Appellant, v. The STATE of Texas, Appellee.
    No. 06-05-00147-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted Nov. 29, 2005.
    Decided Dec. 9, 2005.

      Kathryn B. Moon, R. Daryll Bennett, Bennett Law Office, Longview, for appellant.
    Michael E. Jimerson, Dist. Atty., Henderson, for appellee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by Chief Justice MORRISS.

Daphne Folmer, Joe Gail Duncan’s girlfriend, was in jail. While there, Folmer told authorities that Duncan kept in his pickup truck pornographic photographs of her minor daughter, that Folmer had sold these photographs to Duncan, and that he also kept in the truck similar photographs of other minor females. On the basis of Folmer’s report, officers sought and were issued a warrant to search Duncan’s truck. That search turned up child pornography, which was ultimately used as evidence in Duncan’s trial for sexual performance by a child. Duncan gave a statement to officers, which was also used as evidence at trial. Duncan pled guilty, and the jury assessed his punishment at fifteen years’ imprisonment. On appeal, Duncan challenges the admissibility of his statement and of the evidence found in his truck. We affirm the judgment of the trial court because we hold the trial court was within its discretion in (1) denying the motion to suppress the evidence recovered from Duncan’s truck and (2) admitting Duncan’s statement.

(1) The Trial Court Was Within Its Discretion in Denying the Motion To Suppress the Evidence Recovered from Duncan’s Truck

Duncan challenges the search warrant with a three-pronged attack, asserting that the affidavit used to obtain the warrant did not describe the location of the vehicle to be searched, did not recite when Folmer sold the pictures to Duncan, and did not indicate when Folmer last saw the pictures in Duncan’s truck. We hold the warrant was properly issued because the warrant affidavit sufficiently (a) described Duncan’s truck and (b) stated facts providing probable cause to believe contraband was in the truck.

In determining whether an affidavit provides probable cause for issuance of a search warrant, we are limited to the four corners of the affidavit; but “we do not place blinders on the process whereby a neutral and detached magistrate must decide whether there are sufficient facts stated to validate the issuance of a proper warrant.” Gibbs v. State, 819 S.W.2d 821, 830 (Tex.Crim.App.1991), The affidavit itself should be interpreted in a commonsense and realistic manner, and the reviewing magistrate may draw reasonable inferences from the statements made in the affidavit. Id. We should pay great deference to a magistrate’s determination of probable cause and should not invalidate warrants through hypertechnical interpretation of the supporting affidavits. Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (citing Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965)).

In Gates, the United States Supreme Court reaffirmed the traditional standard for reviewing an issuing magistrate’s probable cause determination. The Court indicated that a warrant would be valid so long as the magistrate had a substantial basis for issuing the warrant, concluding that, under the totality of the circumstances, a search would uncover evidence of wrongdoing. Gates, 462 U.S. at 236-38, 103 S.Ct. 2317 (citing Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 4 L.Edüd 697 (I960)). The totality of the circumstances includes the credibility and reliability of the informant and the informant’s information, as well as the basis for the informant’s knowledge. See Gates, 462 U.S. at 230-31, 103 S.Ct. 2317; Osban v. State, 726 S.W.2d 107 (Tex.Crim. App.1986), overruled on other grounds, Heitman v. State, 815 S.W.2d 681, 690 (Tex.Crim.App.1991). We affirm the trial court’s ruling if the ruling is reasonably supported by the record and is correct on any theory of law applicable to the case. Roberts v. State, 963 S.W.2d 894, 903 (Tex.App.-Texarkana 1998, no pet.).

(а) The Affidavit Sufficiently Described Duncan’s Truck

Duncan claims the affidavit inadequately describes the place to be searched because it does not indicate where Duncan’s truck was to be found. We disagree and find the truck adequately described.

The affidavit describes the truck in this way:

1. There is in Rusk, [sic] County, Texas, a suspected place and premises described and located as follows[:]
A 1999 blue GMC pickup truck bearing Texas license plates 3FSW21, registered to Joe Gail Duncan, white/male, 4508 CR 407 S., Henderson. Said 1999 pickup truck contains at least one briefcase and Walmart shopping bag.
[Named informant,] Daphne Folmer described Joe Gail Duncan’s pickup as a blue GMC. Affiant is further aware that officers were able to locate the blue GMC pickup truck and confirm the above listed registration and that it is registered to the said Joe Gail Duncan.

The reason a warrant must “particularly describe the place to be searched” is to avoid general warrants. Long v. State, 132 S.W.3d 443, 447 n. 12 (Tex.Crim.App. 2004); Rodgers v. State, 162 S.W.3d 698, 709 (TexApp.-Texarkana 2005, pet. granted).

Of course, “[a] search made under authority of a search warrant may extend to the entire area covered by the warrant’s description.” And, when courts examine the description of the place to be searched to determine the warrant’s scope, they follow a common sense and practical approach, not a “Procrustean” or overly technical one.

Long, 132 S.W.3d at 448 (citations omitted); Rodgers, 162 S.W.3d at 709. The description in the warrant or attached affidavit must be detailed enough so the executing officer can locate the place to be searched and distinguish it from other property, so property of innocent third parties will not be searched. Bridges v. State, 574 S.W.2d 560, 562 (Tex.Crim.App. [Panel Op.] 1978); Etchieson v. State, 574 S.W.2d 753, 759 (Tex.Crim.App.1978); State v. Manry, 56 S.W.3d 806, 809 (Tex. App.-Texarkana 2001, no pet.).

The truck itself is well described- — even down to the license plate number — so, under the facts of this case, there was no need for the truck’s location to be set out specifically in the warrant or affidavit. Such an added requirement would serve no purpose, and the inherent mobility of a vehicle would make satisfying such a requirement quite difficult. Even so, we note that the affidavit in this case does provide considerable information about the truck’s location: that the truck was in Rusk County; that the truck’s owner, Duncan, resided at a specified Henderson, Texas, address; and that officers actually located the truck and verified Duncan as the registered owner of it. The affidavit sufficiently describes the pickup truck to be searched.

(b) The Affidavit Sufficiently Stated Facts Providing Probable Cause To Believe Contraband Was in the Truck

Duncan contends the affidavit provides no substantial basis on which the issuing magistrate could have determined probable cause because it fails to state when Folmer sold the photographs to Duncan and when she last saw the photographs in Duncan’s truck. We disagree, since those omissions do not undermine probable cause in this case.

In this regard, the affidavit states, [Duncan], on or about the 2nd day of July, 2003, in Rusk County, Texas did then and there intentionally and knowingly possesses [sic] and conceal [child pornography].
Affiant has probable cause for said belief by reason of the following faets[:] Affiant is an investigator for the Rusk County Sheriffs Department, Henderson, Texas. Affiant is a certified peace officer under the laws of the State of Texas and has been a certified peace officer for the past 3 years.
Affiant has received information within the past 24 hours from Daphne Folmer, white/female, that the said Daphne Fol-mer had sold Joe Gail Duncan nude photographs for [sic] her 13 year old daughter, [F.S.] and that Joe Gail Duncan keeps the photographs in a briefcase and Wal-Mart bag inside his pickup truck which is described above.
Affiant believes Daphne Folmer to be a truthful person because Affiant has interviewed Daphne Folmer concerning a pending criminal case and she has not only admitted her involvement to Affi-ant, she personally showed Affiant and other officers the location of similar photographs in her house. Daphne Folmer told Affiant that she and the said Joe Gail Duncan had a sexual relationship and she sold him the pictures of her daughter to supplement her drug habit.

“The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit, ... there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Gates, 462 U.S. at 238, 103 S.Ct. 2317. Duncan claims the affidavit’s silence, as to when the informant sold the photographs to Duncan or when she last saw them in his truck, denies the affidavit the necessary facts to establish probable cause. We conclude, however, that the finding of probable cause is supported by the statements in the affidavit that Folmer sold the items to Duncan and that Duncan’s practice is to keep them in his truck as stated, given the recitation of contextual facts indicating that the information is rehable.

Where facts and circumstances within the knowledge of a police officer, arising from a reasonably trustworthy source, would warrant a man of reasonable caution in the belief that items of contraband or evidence of a crime may presently be found in a specified place, there is probable cause to issue a warrant to search that place.

Cassias v. State, 719 S.W.2d 585, 587 (Tex. Crim.App.1986).

Magistrates, in determining whether an affidavit supports a finding of probable cause, may make reasonable inferences from the statements made in the affidavit, and warrants should not thereafter be invalidated through an appellate court’s hypertechnical analysis. Gates, 462 U.S. at 236, 103 S.Ct. 2317; Gibbs, 819 S.W.2d at 830.

In this case, Folmer personally sold the photographs to Duncan and observed his practice of keeping them in his truck. Affording great deference to the issuing magistrate’s determination, we hold the affidavit was sufficient to establish probable cause. We conclude the information contained within the four corners of the affidavit, under the totality of the circumstances, provides a substantial basis on which the issuing magistrate could have found probable cause.

The trial court was thus within its discretion in overruling Duncan’s motion to suppress the evidence found in his truck.

(2) The Trial Court Was Within Its Discretion in Admitting Duncan’s Statement

Duncan asserts his statement was involuntarily made because he was intoxicated at the time. Though, at the pretrial hearing on his motion to suppress the statement, Duncan testified he had consumed many beers in the hours leading up to his statement, and thus does not remember significant portions of the statement process, officers testified Duncan did not appear to be intoxicated at the time. We defer to findings of fact made by the trial court when there is conflicting evidence.

An appellate court reviews a trial court’s ruling on a motion to suppress for abuse of discretion. Oles v. State, 993 S.W.2d 103, 106 (Tex.Crim.App.1999); Maysonet v. State, 91 S.W.3d 365, 369 (Tex.App.-Texarkana 2002, pet. refd). A trial court abuses its discretion when it acts unreasonably or arbitrarily, if it acts outside the zone of reasonable disagreement, or if its decision is made without reference to guiding rules and principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex.Crim.App.1990). As the finder of historical fact, the trial court is free to believe or disbelieve the testimony or evidence from any witness, even if that witness’ testimony or a piece of evidence is otherwise not controverted by the opposing side. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App.2000). As the evidence conflicted on whether Duncan was intoxicated when he gave his statement, the trial court was within its discretion in admitting the statement.

We affirm the judgment of the trial court.

      . The State seeks to support the search on the basis of the automobile exception to the prohibition of a warrantless search. The "automobile exception” authorizes an officer to conduct a warrantless search of an automobile as long as the officer reasonably believes (1) there is probable cause to believe that a crime has been committed, (2) there is contraband located in the vehicle, and (3) “it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.” Chambers v. Maroney, 399 U.S. 42, 48-49, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Amos v. State, 819 S.W.2d 156, 160-61 (Tex.Crim.App.1991). Here, a warrant was obtained, so the third requirement is not met.


author: ANNE GARDNER, Justice.

text:
    WICHITA COUNTY and Wichita County Commissioners Court, Appellants, v. Daryl Lee BONNIN, Appellee.
    No. 2-05-199-CV.
    Court of Appeals of Texas, Fort Worth.
    Dec. 15, 2005.

      Allison, Bass & Associates, LLP, Robert T. Bass, Austin, for Appellants.
    Banner, Briley & White, LLP, R. Harold White, Jr., Wichita Falls, for Appel-lee.
    PANEL B: LIVINGSTON, GARDNER, and WALKER, JJ.
   OPINION

ANNE GARDNER, Justice.

I. Introduction

This is an interlocutory appeal from the trial court’s denial of a plea to the jurisdiction. The question before us is whether the district court has jurisdiction over a declaratory judgment action brought by a deputy sheriff against the Wichita County Commissioners Court. The declaratory judgment action concerns the effect of a minimum salary proposal approved by the voters of Wichita County. We affirm the trial court’s denial of the Commissioners Court’s plea to the jurisdiction.

II. Local Government Code § 152.072

Before we turn to the allegations and procedural history of this case, we will review the provisions of the statute under which it arises. So doing will put the facts of the case into relevant context.

Section 152.072(a) of the local government code authorizes the voters of a county to petition the commissioners of their county court to increase the minimum salary of each member of the sheriff’s department. Tex. Loc. Gov’t Code Ann. § 152.072 (Vernon Supp.2005). Subsection (b) sets forth the required content of the petition. It must, among other things, state the amount of the proposed minimum salary for each rank, pay grade, or classification and be signed by a number of qualified voters equal to at least twenty-five percent of the number of voters who voted in the most recent countywide election for county officers. Id. Subsection (c) sets forth the responsibilities of the commissioners court once a petition has been filed:

(c) When a petition is filed under this section, the commissioners court shall:
(1) adopt the proposed minimum salary stated in the petition;
(2) offer an alternative minimum salary proposal under Subsection (g); or
(3) call an election on the proposed minimum salary as provided by this section.

Id. If the commissioners court opts to hold an election, it “shall be held on the first authorized uniform election date under Chapter 41, Election Code: (1) that occurs after the 65th day after the date the petition was filed; and (2) on which an election is scheduled to be held throughout the county for other purposes.” Id. § (d). Subsection (e) sets out the form of the ballot for the election:

“Adoption of the proposed minimum salaries of _ for members of the Sheriffs Department at an annual cost of _, which may or may not cause an increase in the county ad valo-rem property tax.” The proposed salary for each rank, pay grade, or classification as stated in the petition and the total annual cost of the increases must be inserted in the blank spaces.

Id. Subsection (f) provides that “[i]f a majority of the votes cast at the election favor the adoption of the proposed minimum salary, the minimum salary shall take effect on or before the date specified in the petition as the effective date.” Id. (emphasis added).

III. Factual and Procedural Background

In 2004, the Wichita County Sheriffs Department Employees Association (“the Association”) circulated a petition to increase the minimum salary of each sheriffs department employee under section 152.072. In addition to setting out the proposed minimum salary for each rank and classification to become effective December 1, 2004, the petition listed proposed salary step increases for each rank extending six years into the future. The Association needed 6,657 signatures for the petition; they obtained 7,018. The Association presented the petition to the county Commissioners Court on August 31, 2004.

The commissioners opted to call an election on the proposed minimum salary under section 152.072(c)(3). The county judge and the county clerk decided that the entire petition — minimum salaries and step increases — -should be listed on the ballot, but the ballot printer could not make it fit. Eventually, the commissioners decided to submit the following language on the ballot:

Proposition: Adoption of the Proposed [sic] minimum salaries for the Wichita County Sheriffs Department, as follows: Chief Deputy, $40,320; Captain, $36,000; Lieutenant, $33,408; Patrol Sergeant, $30,792; Patrol Corporal, $28,500; Deputy, $26,700; Jail Sergeant, $29,233.16; Administrative Assistant, $26,500; Records Supervisor, $26,500; Head Nurse, $30,000; Nurse, $26,500; Finance Clerk, $26,500; Records Clerk, $21,500; for members of the Sheriffs Department at an annual cost of $4,975,495.57, which may or may not cause an increase in the ad valorem property tax.

The ballot tracked the language of section 152.072(e) and omitted any reference to the six-year salary step increases.

The election was held on November 2, 2004. Nearly sixty-eight percent of the electorate voted in favor of the proposal.

Almost as soon as the last ballot was counted, the effect of the election was the subject of heated debate among the Commissioners Court, the district attorney, the Association, and even the commissioners themselves. The Association, the district attorney, and the county judge maintained that the Commissioners Court was bound to implement the entire petition, including the six-year salary step increases. Others — notably the county judge’s administrative assistant — argued that the Commissioners Court must implement only the minimum salaries actually listed on the ballot.

On November 15, 2004, the commissioners adopted what they called a “hybrid plan” that set the salary for Sheriffs Department employees at either the minimum salary specified on the ballot or the salary already established by Commissioners Court’s 2004-05 budget, whichever was greater. Finally, on January 31, 2005, the commissioners rejected by a three-to-two vote a motion that called for the Commissioners Court to adopt all of the provisions of the petition, including the six-year salary step increases.

Appellee Daryl Lee Bonnin, a jailer with the Sheriffs Department, sued the Commissioners Court in a Wichita County district court, seeking a declaratory judgment that the Commissioners Court had a legal duty to implement the entire petition under section 152.072. The Commissioners Court filed a plea to the jurisdiction, arguing that the district court had no jurisdiction over Bonnin’s suit because the Commissioners Court had not abused its discretion by refusing to implement anything beyond the language included on the ballot. After a hearing, the district court denied the plea to the jurisdiction.

IV. Standard of Review

A plea to the jurisdiction challenges the trial court’s authority to determine the subject matter of the action. Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex.1999); Archibeque v. N. Tex. State Hosp.—Wichita Falls, 115 S.W.3d 154, 157 (Tex.App.-Fort Worth 2003, no pet.). Whether the trial court had subject matter jurisdiction is a question of law that we review de novo. Univ. of N. Tex. v. Harvey, 124 S.W.3d 216, 220 (Tex.App.-Fort Worth 2003, no pet.). The plaintiff has the burden to plead facts that affirmatively establish the trial court’s subject matter jurisdiction. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993). Although the claims may form the context in which a plea to the jurisdiction is raised, the plea should be decided without delving into the merits of the ease. Bland ISD v. Blue, 34 S.W.3d 547, 554 (Tex.2000).

When a plea to the jurisdiction challenges the pleadings, we determine if the pleader has alleged facts that affirmatively demonstrate the court’s jurisdiction to hear the case. Tex. Dep’t of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 226-27 (Tex.2004); Tex. Ass’n of Bus., 852 S.W.2d at 446. An appellate court must take the allegations of the plaintiffs petition as true and construe them liberally in the pleader’s favor, looking to the pleader’s intent. Miranda, 133 S.W.3d at 226. If the evidence creates a fact question regarding the jurisdictional issue, the trial court cannot grant the plea to the jurisdiction, and the fact issue will be resolved by the fact finder. Id. at 228. However, if the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of law. Id.

V. Discussion

In its first issue, the Commissioners Court argues that the district court lacks jurisdiction over the underlying declaratory judgment action because, says the Commissioners Court, it has fulfilled its statutory duty by adopting the minimum salaries submitted to the electorate on the ballot.

A. Authority of the Commissioners Court

The Texas Constitution provides that the commissioners court “shall exercise such powers and jurisdiction over all county business, as is conferred by this Constitution and the laws of the State, or as may be hereafter prescribed.” Tex. Const, art. V, § 18. Thus, the Texas Constitution establishes the commissioners court as the county’s principal governing body. Comm’rs Court of Titus County v. Agan, 940 S.W.2d 77, 79 (Tex.1997). The powers and duties of the commissioners courts include aspects of legislative, executive, administrative, and judicial functions. Id. In the exercise of its powers and jurisdiction over county business, the commissioners court has implied authority to exercise broad discretion to accomplish the purposes intended. Canales v. Laughlin, 147 Tex. 169, 214 S.W.2d 451, 453 (1948); Cosby v. County Comm’rs of Randall County, 712 S.W.2d 246, 248 (Tex.App.-Amarillo 1986, writ ref'd n.r.e.).

B. The District Court’s Appellate and Supervisory Jurisdiction

Article 5, section 8 of the Texas Constitution gives district courts appellate jurisdiction and supervisory control over county commissioners courts: “The District Court shall have appellate jurisdiction and general supervisory control over the County Commissioners Court, with such exceptions and under such regulations as may be prescribed by law.” Tex. Const, art. V, § 8. The legislation enabling the district court repeats the words of article 5, section 8. Tex. Gov’t Code Ann. § 24.020 (Vernon 2004).

Case law defines the scope of the district court’s jurisdiction. Agan, 940 S.W.2d at 80. A party can invoke the district court’s constitutional supervisory control over a commissioners court judgment only when the commissioners court acts beyond its jurisdiction or clearly abuses the discretion conferred upon the commissioners court by law. Id. If the commissioners court acts illegally, unreasonably, or arbitrarily, a district court may so adjudge. Id. But in reviewing a commissioners court judgment for abuse of discretion, the district court has no right to substitute its judgment and discretion for that of the commissioners court. Id. The district court may order the commissioners court to exercise its discretion, but it cannot tell the commissioners what decision to make. Id. Once the commissioners court exercises its discretion, the district court may review the order for abuse of discretion. Id.

C. Analysis

We reiterate at the outset of our analysis that the issue before us is the jurisdiction of the district court, not the merits of the underlying claim. See Jones, 8 S.W.3d at 638. The briefs of the parties conflate the issues of jurisdiction and the merits of Bonnin’s suit. The question is not whether the Commissioners Court has a duty to implement all provisions of the petition, but whether the district court has the jurisdiction to answer that question. Accordingly, we will focus on the issue of jurisdiction.

The gist of the Commissioners Court’s plea to the jurisdiction is that the district court has no jurisdiction over Bon-nin’s declaratory judgment claim because the Commissioners Court has complied with the letter of section 152.072. It argues that unless Bonnin pleads a prima facie abuse of discretion or illegal act on the part of the Commissioners Court, the district court has no jurisdiction over his claim. While we agree with this latter premise regarding the pleading required to invoke the district court’s supervisory jurisdiction, we disagree with the Commissioners Court’s conclusion.

We look to Bonnin’s petition to determine whether he alleged facts that affirmatively demonstrate the district court’s jurisdiction to hear his cause. See Miranda, 133 S.W.3d at 226. Bonnin pleaded the facts set forth above, namely, that the Association obtained the requisite number of signatures on its section 152.072 petition, that the Commissioners Court submitted the minimum salary proposal to the voters on a ballot that set out some but not all of the provisions of the petition, that the voters approved the proposal, and that the Commissioners Court refused to implement those provisions of the petition that were not included on the ballot. Bonnin seeks a declaration as to whether the Commissioners Court has a mandatory legal duty to implement the proposal as set forth in the petition. Connecting the dots between the facts alleged by Bonnin and the declaration he seeks, the crux of Bon-nin’s complaint is that the Commissioners Court failed to comply with a mandatory duty imposed by law; in other words, that the Commissioners Court committed an illegal act by refusing to implement the entire petition. Therefore, Bonnin has alleged an illegal act by the Commissioners Court, an allegation over which the district court has jurisdiction. See Agan, 940 S.W.2d at 80.

The Commissioners Court argues that, as a matter of law, it has no duty to implement any part of the petition beyond the minimum salaries set forth on the ballot and, therefore, that its refusal to implement anything beyond those minimum salaries is not an “illegal act.” In support of this argument, the Commissioners Court cites In re Bailey, 975 S.W.2d 430 (Tex.App.-Waco 1998, orig. proceeding) and In re Link, 45 S.W.3d 149 (Tex.App.-Tyler 2000, orig. proceeding) — the only two reported cases dealing with section 152.072. In Bailey, members of the Navarro County sheriffs department circulated a section 152.072 petition that set minimum salaries and provided for seniority pay and a salary step plan. Bailey, 975 S.W.2d at 431. The commissioners court set for election only that part of the petition that concerned minimum salaries. Id. A deputy sheriff sought a writ of mandamus from the court of appeals compelling the commissioners court to set the entire petition for election. Id. The Waco court of appeals held that the commissioners court did not have a “clear duty” to include the petition’s seniority and salary-step provisions on the ballot because those provisions “arguably exceeded the limits of section 152.072.” Id. at 432. A similar question arose in Link. There, members of the Anderson County Sheriffs Department circulated a section 152.072 petition and obtained the required number of signatures. Link, 45 S.W.3d at 151. The Anderson County commissioners court declared that the petition was “legally insufficient” and refused to set it for election. Id. A member of the sheriffs department sought a writ of mandamus from the court of appeals to compel the commissioners court to set the proposal for election. Id. The court of appeals held that the commissioners court had a legal duty to submit the petition to the voters. Id. at 156. Notably, the court also observed in dicta that the appropriate method to resolve a dispute about the interpretation of a section 152.072 petition was a declaratory judgment action after the election. Id.

We reject the Commissioners Court’s argument and find its reliance in Bailey and Link misplaced. First, we note again that the Commissioners Court conflates the issue of jurisdiction with the merits of Bonnin’s claim. Second, the issue in Bailey and Link was the commissioners court’s duty to set a section 152.072 petition for election, but the issue in Bonnin’s claim is the commissioners court’s duty after the election is held. Third, neither Bailey nor Link address the narrow issue before us, the jurisdiction of the district court. While Bailey and Link may be relevant to the merits of Bonnin’s suit, they are irrelevant on the issue of jurisdiction.

We hold that Bonnin pleaded facts and a cause of action within the district court’s jurisdiction. We overrule the Commissioners Court’s first issue.

D. The Commissioners Court’s Second and Third Issues

In its second issue, the Commissioners Court argues that section 152.072 does not authorize an election on anything other than a minimum salary increase. In its third issue, it argues that a petition that exceeds the scope of section 152.072 imposes no duty on the Commissioners Court. Both of these issues go to the merits of Bonnin’s suit, not the question of jurisdiction. Bonnin argues that issues two and three are not properly before this court. We agree. Because this appeal involves only the issue of jurisdiction, we overrule the Commissioners Court’s second and third issues.

VI. Conclusion

Having overruled all three of the Commissioners Court’s issues, we affirm the trial court’s order denying the Commissioners Court’s plea to the jurisdiction.

      . Appellee sued both Wichita County and the Wichita County Commissioners Court, and both appeal from the trial court's order. For simplicity, we will refer to both Appellants as "the Commissioners Court” in this appeal.

      . The Link opinion is unclear as to why the commissioners court thought the petition was insufficient, but apparently it included measures beyond minimum salaries. See id. at 152.


author: PER CURIAM.

text:
    Wesley Jaycee BOREN, Appellant, v. The STATE of Texas, State.
    No. 2-04-398-CR.
    Court of Appeals of Texas, Fort Worth.
    Dec. 15, 2005.
    Thomas L. Allensworth, Wichita Falls, for Appellant.

      Barry L. Macha, Criminal Dist. Atty., John W. Brasher and Mark H. Barber, Asst. Criminal Dist. Attys., Wichita Falls, for Appellee.
    Panel F: CAYCE, C.J.; DAUPHINOT and HOLMAN, JJ.
   MEMORANDUM OPINION

PER CURIAM.

Wesley Jaycee Boren appeals his sentence for the offense of felon in possession of a firearm, as enhanced by two prior felony convictions. In a single issue, appellant asserts that the trial court erred by imposing a twenty-five year sentence because the sentence, as enhanced, is contrary to legislative intent. We affirm.

The felon in possession offense of which appellant was convicted is a third-degree felony. If a person convicted of a felony offense other than a state jail felony has previously been finally convicted of two prior felony offenses, the minimum punishment the person can receive is twenty-five years. State jail felonies cannot, however, be used to enhance non-state jail felonies.

In this case, the enhancement paragraphs of the indictment alleged that appellant had been finally convicted of two prior felony offenses, credit card abuse in 1993 and forgery in 1992. Appellant pleaded true to these enhancement allegations, and he concedes that these offenses were both punishable as third-degree felonies at the time of the prior convictions.

In 1993, the legislature reclassified these offenses as state jail felonies, effective September 1, 1994. Appellant claims that, in light of the reclassifications, the legislature could not have intended the prior convictions to be used in 2003 to enhance the punishment range for the felon in possession offense to a twenty-five year minimum. We disagree.

A savings provision accompanied the 1993 amendments and states as follows:

(a) The change in law made by this article applies only to an offense committed on or after the effective date of this article. For purposes of this section, an offense is committed before the effective date of this article if any element of the offense occurs before the effective date.
(b) An offense committed before the effective date of this article is covered by the law in effect when the offense was committed, and the former law is continued in effect for that purpose.

This savings provision clearly evidences legislative intent that the 1993 amendments apply only to offenses committed on or after the effective date of the 1993 legislation, which was September 1, 1994. Further, a prior felony conviction may be used to enhance punishment for a separate offense, even if the offense that led to the prior conviction has been subsequently reclassified as a lesser category of offense. “[T]he crucial factor in determining what may be used for enhancement is the fact that there has been a final felony conviction.”

Because appellant was finally convicted of two prior third-degree felony offenses before he was convicted of the felon in possession offense, the trial court did not eiT by assessing his punishment at twenty-five years. We overrule appellant’s issue and affirm the trial court’s judgment.

      . See tex. R. App. P. 47.4.

      . tex. Penal Code Ann. § 46.04(a), (e) (Vernon Supp.2005).

      . Id. § 12.42(d).

      . Id. § 12.42(e).

      . See Act of May 23, 1973, 63rd Leg., R.S., ch. 399, §§ 32.21(d), 32.31(d), 1973 Tex. Gen. Laws 883, 935-36 (amended 1991, 1993, 1997, 2003, 2005) (current version at tex. Penal Code Ann. §§ 32.21(d), 32.31(d) (Vernon Supp.2005)).

      . See Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 1.01, secs. 32.21(d), 32.31(d), 1993 Tex. Gen. Laws 3586, 3643-44, 3766.

      . Id. § 1.18, 1993 Tex. Gen. Laws at 3705.

      . See Kutzner v. State, 75 S.W.3d 427, 433 (Tex.Crim.App.2002) (stating that we are to construe statute according to its plain textual meaning unless statute is ambiguous or construction would lead to absurd result that legislature could not possibly have intended).

      . See Alvarado v. State, 596 S.W.2d 904, 906 (Tex.Crim.App. [Panel Op.] 1980); Elkins v. State, No. 2-04-00243-CR, 2005 WL 3082226, at *3 (Tex.App.—Fort Worth Nov. 17, 2005, no pet. h.) (mem.op.) (not designated for publication) (both holding enhancement proper when prior felonies had been reclassified as misdemeanors).

      . Ex parte Rice, 629 S.W.2d 56, 58-59 (Tex.Crim.App.1982).


author: RICK STRANGE, Justice.

text:
    In re Aaron Douglas ROWE.
    No. 11-05-00386-CV.
    Court of Appeals of Texas, Eastland.
    Dec. 21, 2005.

      A. Michelle May, The May Firm, Dallas, for relator.
    Rodion Cantacuzene, Cook & Cantacuz-ene, P.C., Midland, for real party in interest.
    Panel consists of WRIGHT, C.J., and McCALL, J., and STRANGE, J.
   OPINION

RICK STRANGE, Justice.

Relator Aaron Douglas Rowe has filed a petition for writ of mandamus asking this court to issue a writ of mandamus ordering the trial court to set aside its temporary orders and abate divorce proceedings initiated by his wife. We find relator has not demonstrated a lack of an adequate remedy at law and deny the writ.

Background Facts

Respondent Hollie Wynette Rowe filed for divorce in Midland County on October 19, 2005. Relator filed for divorce in Collin County two days later on October 21. Relator was timely served, and he filed a Motion to Dismiss for Lack of Jurisdiction and Plea in Abatement, contending that respondent had not been a resident of Midland County for 90 days prior to filing suit. The trial court held an evidentiary hearing and denied relator’s motion.

Is Mandamus Available For a Venue Ruling In a Divorce Action?

The threshold issue in any mandamus action is whether mandamus is an appropriate remedy. The Texas Supreme Court has held that mandamus will not issue unless (1) the trial court has committed a clear abuse of discretion (2) for which appeal is not an adequate remedy. Walker v. Packer, 827 S.W.2d 883, 839-40 (Tex.1992).

Relator contends that the evidence conclusively established that respondent was not a resident of Midland County for at least 90 days before filing her divorce action as is required by Tex. Fam.Code Ann. § 6.301 (Vernon 1998) and that the trial court abused its discretion by finding otherwise. Relator contends that he has no adequate remedy at law because as time passes his wife will be able to satisfy the statute’s residency requirement and make his appeal moot.

Relator relies upon Cook v. Mayfield, 886 S.W.2d 840, 841 (Tex.App.-Waco 1994, orig. proceeding), for his argument that the passage of time will defeat his venue argument and make any appeal moot. We respectfully decline to follow Cook because we believe that the court incorrectly interpreted Section 6.301. This statute provides:

A suit for divorce may not be maintained in this state unless at the time the suit is filed, either the petitioner or the respondent has been:
(1) a domiciliary of this state for the preceding six-month period; and
(2) a resident of the county in which the suit is filed for the preceding 90-day period. (Emphasis added)

Because Section 6.301 requires a petitioner to establish residency before filing suit, as opposed to before receiving a divorce, the mere fact that time will pass during the pendency of this proceeding does not deprive relator of the opportunity to appeal the trial court’s decision to deny his plea in abatement. Per the plain language of the statute, residency must be established as of the date the suit is filed. Relator can effectively raise this issue on appeal. Therefore, the application of Section 6.301 alone does not deprive him of an adequate remedy at law.

We next consider whether, as a general proposition, the appeal of a venue ruling provides relator with an adequate remedy at law. The Texas Supreme Court has held that, in this context, the word “adequate” has no comprehensive definition but is “simply a proxy for the careful balance of jurisprudential considerations that determine when appellate courts will use original mandamus proceedings to review the actions of lower courts.” In re Prudential Ins. Co. of America, 148 S.W.3d 124, 136 (Tex.2004): On the one hand, mandamus review of incidental, interlocutory rulings interferes with trial court proceedings, forces appellate courts to spend valuable time with issues that may ultimately be unimportant to the disposition of the case, and adds to the expense and delay of the litigation for the parties. Id. On the other, mandamus review of significant rulings in exceptional cases may preserve important substantive and procedural rights, allow appellate courts to give needed and helpful direction, and spare the parties of the expense of re-litigating improperly conducted proceedings. Id. Ultimately, an appellate remedy is adequate when any benefits of mandamus review are outweighed by its detriments. Id.

A wrongful venue determination is not subject to harmless error analysis and by statute is reversible error. Tex. Civ. PRAC. & Rem.Code Ann. § 15.064(b) (Vernon 2002). We are mindful that allowing a trial to go forward, even though potentially reversible error has been committed, puts at risk the resources of the parties and the trial court. Nonetheless, the Texas Supreme Court has consistently held that reversible error alone is insufficient to warrant mandamus relief, Canadian Helicopters Ltd. v. Wittig, 876 S.W.2d 304, 308 n. 11 (Tex.1994); and that venue decisions in two-party suits, except for suits affecting the parent child relationship, are incidental trial rulings correctable by appeal. See In re Missouri Pac. R.R. Co., 998 S.W.2d 212, 215 (Tex.1999).

The Texas Legislature responded to the supreme court’s refusal to review venue decisions by mandamus with Tex. Civ. Prac. & Rem.Code Ann. § 15.0642 (Vernon 2002). This statute authorizes parties to seek mandamus to enforce the mandatory venue provisions of Chapter 15. The legislature’s response was a limited one. Only mandatory venue provisions created by Chapter 15 were afforded mandamus review. We must presume, therefore, that the legislature otherwise agreed with the supreme court that mandamus was inappropriate for venue rulings.

Conclusion

Texas Supreme Court precedent, and the Texas Legislature’s measured response, compel a finding that an appeal of a venue ruling provides relator with an adequate remedy at law. We conclude, therefore, that mandamus is not available to review the trial court’s venue determination; we express no opinion on the merits of that ruling. The petition for writ of mandamus is denied.

      . The Texas Supreme Court justified the exception for suits affecting the parent child relationship because of the need to expeditiously resolve custody and support issues. Proffer v. Yates, 734 S.W.2d 671, 673 (Tex.1987). Neither party has characterized this as a suit affecting the parent child relationship. We note, however, that the parties have a newborn infant. Tex. Fam.Code Ann. § 103.001 (Vernon 2002) is the venue statute for an original SAPCR. As a general rule, venue is in the county where the child resides, but an exception exists when venue is fixed in a suit for dissolution of marriage. Id.


text:
    Billie Renee BROWN, Appellant, v. The STATE of Texas, Appellee.
    No. 06-05-00075-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted Dec. 12, 2005.
    Decided Dec. 22, 2005.

      Hugh O’Fiel, Beaumont, for appellant.
    Wayln G. Thompson, Asst. Crim. Dist. Atty., Beaumont, for appellee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by Chief Justice MORRISS.

Billie Renee Brown pled guilty, without a plea agreement, to felony theft and to unauthorized use of a motor vehicle. Brown’s court-appointed attorney was unavailable at the time of her sentencing hearing; so, over Brown’s objection, the trial court appointed a substitute attorney to represent her at that hearing. The trial court assessed punishment in each case at two years’ confinement in a state jail facility, with the two sentences to be served concurrently. The cases have been appealed separately and briefed separately. This case concerns Brown’s theft conviction.

Brown’s first appellate attorney filed a brief in which he concluded, from his review of the record and the related law, the appeal was frivolous and without merit. While that brief did not present any arguable points of error, it professionally evaluated the record and concluded there were no errors that would arguably support an appeal. The brief thus met the requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Stafford v. State, 813 S.W.2d 503, 509 (Tex.Crim.App.1991).

As required by the Texas Court of Criminal Appeals in Stafford, 813 S.W.2d at 511, we conducted our own investigation of the record to discover if there are arguable grounds for Brown’s appeal. During our review, we discovered the trial court’s sua sponte appointment of substitute counsel for the sentencing hearing. At that time, the trial court overruled Brown’s objection to the sentencing proceeding without the presence of her previous court-appointed attorney. The trial court stated to Brown, “Just so you’ll understand, these three lawyers represent every defendant that comes through this court. Okay? So Mr. Jones is as much your lawyer as Mr. Cooper is; and I won’t do anything different.”

We concluded that the trial court’s sua sponte appointment raised the issue of whether the lower court reversibly erred by appointing new counsel over Brown’s objection, and without first finding Brown’s original counsel had a conflict of interest or was no longer competent to represent Brown. Accordingly, we abated the appeal to the trial court to appoint new appellate counsel to address this and any other grounds that might support Brown’s appeal. The trial court complied with our order of abatement, and both new counsel and the State filed briefs addressing the issue we raised.

After reviewing the briefs and the applicable law, we now conclude the trial court reversibly erred by appointing new counsel over Brown’s objection without first finding a conflict had arisen between Brown and her attorney of record.

A criminal defendant’s right to counsel is guaranteed by both the federal and state constitutions. U.S. Const. amend. VI; Tex. Const, art. I, § 10. “Furthermore, it is well-established that when counsel appears on behalf of a criminal defendant as attorney of record, that lawyer, whether appointed or retained, is obligated to represent the client until the trial court actually grants a motion to withdraw or a motion to substitute counsel.” Bryant v. State, 75 S.W.3d 628, 631 (Tex.App.-Fort Worth 2002, pet. ref'd). A trial court may not unilaterally remove a defendant’s attorney without “extraordinarily good cause.” Ex parte McFarland, 163 S.W.3d 743, 759 (Tex.Crim.App.2005). This is because the trial court’s power to appoint counsel to represent an indigent defendant does not include the concurrent power to remove counsel at the trial court’s “discretionary whim.” Stearnes v. Clinton, 780 S.W.2d 216, 222-25 (Tex.Crim.App.1989).

In this case, the record lacks any showing of “extraordinarily good cause” for the substitution of Brown’s attorney of record over Brown’s objection. As such, the trial court constitutionally erred in denying Brown her previously appointed attorney. When we find error, we are to perform a harm analysis, unless the error was what has been called “structural.”

A “structural” error ... is a “defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself,” [Arizona v. Fulminante,] 499 U.S. [279,] 310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). We have found structural errors only in a very limited class of cases: a total deprivation of the right to counsel, lack of an impartial trial judge, unlawful exclusion of grand jurors of defendant’s race, the right to self-representation at trial, the right to a public trial, [and an] erroneous reasonable-doubt instruction to the jury. Most constitutional errors are not “structural”; that is, they can be harmless.

Mendez v. State, 138 S.W.3d 334, 340 (Tex.Crim.App.2004) (footnotes omitted) (emphasis added).

In the case now before this Court, the trial court sua sponte replaced Brown’s counsel over Brown’s objection. But Brown was not without an attorney to represent her. Because there was not “total deprivation of the right to counsel,” see id., the error was not structural. Thus, we must assess whether the error harmed Brown. Our analysis leads us to conclude the trial court reversibly erred.

When a constitutional error has occurred and is subject to harm analysis, the Texas Rules of Appellate Procedure require us to reverse the trial court’s judgment “unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment.” Tex.R.App. P. 44.2(a). In this case, Brown’s substituted trial counsel informed the trial court that Brown had been working with her attorney of record in securing additional recommendation letters from out of state. The record demonstrates that these additional letters were unavailable, and we cannot fairly speculate what persuasive effect those letters might have had to lessen Brown’s ultimate punishment. We therefore cannot say, beyond a reasonable doubt, that the trial court’s error did not contribute to Brown’s receipt of the maximum punishment of two years in this case. As such, we must reverse the trial court’s judgment as to punishment.

We reverse the trial court’s judgment as to punishment and remand the cause to the trial court for further proceedings consistent with the opinion of this Court.

      . Theft of a value less than $1,500.00, enhanced with two or more prior theft convictions of any grade, as was charged in this case, is a state jail felony. Tex. Pen.Code Ann. § 31.03(e)(3), (4)(D) (Vernon Supp.2005).

      . Unauthorized use of a motor vehicle, as was charged in the companion case, is a state jail felony. Tex. Pen.Code Ann. § 31.07 (Vernon Supp.2005).

      . A state jail felony supports a sentence ranging from 180 days to two years. Tex Pen. Code Ann. § 12.35(a) (Vernon 2003).

      . Brown's other appeal, styled Brawn v. State, cause number 06-05-00076-CR, 2005 WL 3487835 (Tex.App.-Texarkana 2005), has been decided by way of a separate opinion, also issued this day.

      . We note that the trial court did order the sentence in this case and the one in the companion case, both two years, to run concurrently. They could have been ordered to run consecutively.