author: JAMES T. WORTHEN, Chief Justice.

text:
    VAN INDEPENDENT SCHOOL DISTRICT, Appellant, v. Scott A. McCARTY, Appellee.
    No. 12-03-00007-CV.
    Court of Appeals of Texas, Tyler.
    Sept. 24, 2003.
    Rehearing Overruled Oct. 24, 2003.

      Eric W. Schulze, Walsh, Anderson, Brown, Schulze & Aldridge, P.C., Austin, Stephen E. Dubner, Walsh, Anderson, Brown, Schulze <& Aldridge, P.C., Irving, for appellant.

      Bill Rosenstein, Tyler, for appellee.
    Panel consisted of JAMES T. WORTHEN, C.J., GRIFFITH, J., and DeVASTO, J.
   OPINION

JAMES T. WORTHEN, Chief Justice.

Van Independent School District (“VISD”) brings this interlocutory appeal from the trial court’s order denying its plea to the jurisdiction in a suit brought by Scott A. McCarty (“McCarty”) for damages following the termination of his employment. We affirm.

Background

On July 26, 2001, McCarty was injured on his maintenance job at VISD. On August 2, 2001, VISD, through its superintendent, Mark Pool (“Pool”), notified McCarty by letter that his employment with VISD was terminated. In this letter, Pool informed McCarty that if he wished to contest his termination, he could do so by filing a notice with the VISD Board of Trustees (hereinafter “school board”) as outlined in the administrative policies and procedures of VISD. Board policy required that McCarty file a notice of appeal to the board within seven days of his August 2 termination. McCarty did not file an appeal with the school board until August 23, 2001. No action was taken by the school board on the August 23 request.

On November 5, 2001, McCarty filed a written request to appear before the school board to present evidence and testimony regarding the facts of his August 2 termination. One week later, on November 12, the school board formally considered McCarty’s request. The minutes of this meeting reported that, following a closed session that lasted two hours, the school board “denied Scott McCarty’s grievance and upheld the administrative decision on the basis of Mr. McCarty’s untimely request for a hearing and also based upon the evidence presented in the hearing.”

McCarty filed his wrongful termination suit against VISD on July 22, 2002. VISD responded to the suit with a plea to the jurisdiction. VISD asked the court to dismiss McCarty’s suit for lack of jurisdiction because he had not exhausted his administrative remedies before filing suit. McCarty responded to VISD’s plea to the jurisdiction by contending that he was not required to exhaust his administrative remedies prior to bringing suit and alternatively, if he was, he did so by having the school board consider his termination at its November 12, 2001 school board meeting. The trial court entered an order denying VISD’s plea to the jurisdiction. VISD timely filed this interlocutory appeal of the order denying its plea to the jurisdiction. See Tex. Civ. PRac. & Rem.Code Ann. § 51.014(a)(8) (Vernon Supp.2003).

Exhaustion of Administrative Remedies

In its three issues, VISD contends that, by failing to timely file his grievance with the school board and the State Commissioner of Education, McCarty failed to exhaust his administrative remedies prior to filing suit. Further, it argues, because exhaustion of administrative remedies is a jurisdictional prerequisite to seeking judicial review, the trial court erred in denying its plea to the jurisdiction.

Standard of Review

A plea to the jurisdiction is a dilatory plea, the purpose of which is to defeat a cause of action without regard to whether the claims asserted have merit. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000). A plea to the jurisdiction contests the trial court’s authority to determine the subject matter of the cause of action. Comyn v. County of Hill, 10 S.W.3d 424, 427 (Tex.App.-Waco 2000, no pet.). Subject matter jurisdiction is a legal question, and the plea to the jurisdiction is reviewed under a de novo standard of review. Id. Dismissing a cause of action for lack of subject matter jurisdiction is only proper when it is impossible for the plaintiffs petition to confer jurisdiction on the trial court. Harris County v. Cypress Forest Pub. Util. Dist., 50 S.W.3d 551, 553 (Tex.App.-Houston [14th Dist.] 2001, no pet.). For purposes of a plea to the jurisdiction, we take the undisputed factual allegations in the parties’ pleadings to be true. See Alamo Cmty. Coll. Dist. v. Obayashi Corp., 980 S.W.2d 745, 746 (Tex.App.-San Antonio 1998, pet. denied).

Applicable Law

As a general rule, a party to an administrative proceeding is not entitled to judicial review until the party has pursued correction through the prescribed administrative process. Texas Educ. Agency v. Cypress-Fairbanks Indep. Sch. Dist., 830 S.W.2d 88, 90 (Tex.1992). Texas law requires that an aggrieved party must first exhaust all remedies provided under the statutory administrative scheme if the subject matter: (1) concerns the administration of school laws, and (2) involves questions of fact. Jones v. Dallas Indep. Sch. Dist., 872 S.W.2d 294, 296 (Tex.App.-Dallas 1994, writ denied). Exhaustion of administrative remedies is a prerequisite to the trial court’s jurisdiction in a case involving disputed fact issues. Wilmer-Hutchins Indep. Sch. Dist. v. Sullivan, 51 S.W.3d 293, 294 (Tex.2001); see also Hicks v. Lamar Consol. Indep. Sch. Dist., 943 S.W.2d 540, 543 (Tex.App.-Eastland 1997, no writ) (State courts are entitled to require that an employee contesting his discharge exhaust all administrative remedies before the courts will become involved.).

Analysis

VISD insists that this case is identical to and governed by the case of Wilmer-Hutchins Indep. Sch. Dist. v. Sullivan. There, Joyce Sullivan, a custodian for the district, received workers’ compensation benefits for a work-related injury. Ten months later, when released for work, she was told she had been terminated due to budget reasons. Sullivan contacted the district’s attorney who told her she could not help her. The attorney did not inform Sullivan of the district’s grievance procedures. Sullivan then sued the district without pursuing any administrative remedies. There was no question that Sullivan did not exhaust her administrative remedies. Sullivan, 51 S.W.3d at 294. The issue in that case, which the supreme court answered in the negative, was whether the school district should be estopped from asserting a lack of jurisdiction due to its attorney’s conduct. Id. at 294-95.

VISD argues that since Sullivan was held responsible for exhausting administrative remedies even though she had only constructive notice, surely McCarty should be held responsible for exhausting administrative remedies of which he had actual notice. We find Sullivan inapposite. The facts of this case are not the same as the facts in Sullivan. Moreover, as acknowledged by VISD, the issue decided in Sullivan is entirely inapplicable to the case before us. The question of what administrative remedies Sullivan should have completed was not addressed. As we shall explain below, McCarty is being held responsible for exhausting applicable administrative remedies.

Local Administrative Remedies

VISD contends that because McCarty failed to begin the grievance process with the school board within seven days of his termination, he failed to exhaust the local administrative remedies provided for under VISD policy. Therefore, the trial court did not have jurisdiction to consider the merits of his suit. McCarty responds to this argument by stating that the school board waived the seven day timeliness requirement for his grievance request by considering his grievance at its meeting on November 12, 2001.

VISD denies that it waived the time requirements, pointing out that it expressly denied McCarty’s grievance appeal on the basis of his untimely request for a hearing. The district further argues that it “did not waive McCarty’s failure to exhaust his local administrative remedies.” VISD describes McCarty’s argument as an attempt to establish subject matter jurisdiction in the district court by waiver.

Indeed, subject matter jurisdiction is a power that exists by operation of law only and cannot be conferred upon any court by consent or waiver. Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76 (Tex.2000); see also Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 851 (Tex.2000) (Subject matter jurisdiction is essential to the authority of a court to decide a case; it cannot be waived.). For example, neither the parties nor this court could proclaim that the district court has jurisdiction over a wrongful termination case brought by a former school employee if, in spite of the school district’s requirement to do so, the plaintiff had never notified the school board before filing suit. Completion of the administrative hearing process is a prerequisite to the district court’s subject matter jurisdiction. However, as we shall explain, in this instance, the matter waived was not a prerequisite to subject matter jurisdiction.

Waiver is the voluntary and intelligent relinquishment of a known right or intentional conduct inconsistent with the assertion of a known right. Cecil Pond Constr. Co. v. Ed Bell Invs., Inc., 864 S.W.2d 211, 215 (Tex.App.-Tyler 1993, no writ). Under the district’s written policy, the board would have been within its rights to refuse to hear evidence on the merits of McCarty’s grievance because he did not file it with the board in a timely manner. VISD implies that it did just that. VISD asserts that the board “entertained McCarty’s grievance” and considered his testimony regarding his failure to comply with the time requirements of the VISD grievance procedures. It further argues that having an alternative basis for denying the grievance does not constitute a waiver of the board’s ability to deny the grievance based upon McCarty’s failure to timely exhaust local administrative remedies.

The minutes of the. school board’s November 12, 2001 meeting indicate that at 8:38 p.m. it went into closed session to consider a personnel matter. The next entry in the minutes indicates an open session beginning at 10:37 p.m. Under the designation “No. 9293” lies the explanation: “Denied Scott McCarty’s grievance and upheld the administrative decision on the basis of Mr. McCarty’s untimely request for a hearing and also based upon the evidence presented in the hearing.” The wording of this sentence does not lead us to the conclusion that the “evidence presented in the hearing” is a reference to evidence, regarding McCarty’s failure to comply with the time requirements for appealing his grievance. The sentence is not ambiguous. The school board denied the grievance because the appeal was untimely and based on evidence it heard. We con-elude that the board, in a two hour closed session, heard evidence on the merits of McCarty’s grievance.

When the board proceeded to hear evidence on the merits, it waived the requirement that the grievance, to be heard by the board, must have been filed within seven days of McCarty’s termination. Knowing it had a right to deny the appeal based on a procedural rule, the board acted in a manner inconsistent with an intent to claim this procedural right. We hold that the board waived its right to dispose of McCarty’s appeal on procedural grounds after hearing evidence and rendering a decision on the merits. Hernandez v. Meno, 828 S.W.2d 491, 494 (Tex.App.-Austin 1992, writ denied); see also Havner v. Meno, 867 S.W.2d 130, 134 (Tex.App.-Austin 1993, no writ) (School board waived its procedural right to require a healing once it took action.). Thus, a procedural time requirement was waived. No prerequisites to the district court’s subject matter jurisdiction were waived. When the time requirement was waived, and the school board heard the merits of McCarty’s grievance, he satisfied VISD’s local administrative remedies.

State Level Administrative Remedies

Finally, VISD argues that McCarty did not exhaust his state level administrative remedies because he did not appeal to the Commissioner of Education. VISD contends that McCarty’s grievance falls within the parameters of Education Code Section 7.057, authorizing appeals to the commissioner, because he is aggrieved by the school laws of this state. See Tex.Educ.Code Ann. § 7.057(a)(1) (Vernon Supp.2003). Specifically, the district argues, he is aggrieved by Section 11.151(b), which provides the school board the exclusive power and duty to govern and oversee the management of the public schools of the district, and section 11.163, which mandates that the board adopt employment policies for personnel. Tex.Educ.Code Ann. §§ 11.151, 11.163 (Vernon 1996). VISD asserts that McCarty was aggrieved by school laws because, pursuant to those provisions, the board established the local policies governing his termination and had the authority to hear a timely appeal, decide questions of fact, and determine why McCarty was terminated. We disagree.

In his petition, McCarty specified that he is suing the district under Section 451.001 of the Texas Labor Code to correct the district’s allegedly discriminatory employment practices. Section 451.001 prohibits discrimination against an employee in retaliation for filing a workers’ compensation claim. Tex. LaboR Code Ann. § 451.001 (Vernon 1996). McCarty is not complaining about the school board’s power and duty to govern the schools of the district or its adoption of local employment policies.

VISD relies on Daniel v. Dallas Independent School District, 351 S.W.2d 356 (Tex.App.-El Paso 1961, writ ref'd n.r.e.), where an at-will employee exhausted local remedies but filed suit before attempting any state level remedies. The El Paso court agreed with the district court’s determination that the lower court did not have jurisdiction due to Daniel’s failure to exhaust administrative remedies. Daniel, 351 S.W.2d at 359. Citing Daniel, VISD asserts that the important factor is that fact questions remain as to the reason McCarty’s employment was terminated.

It is settled that the district court would have jurisdiction if only questions of law were presented. Jones, 872 S.W.2d at 296. However, we distinguish Daniel in a different manner. At the time Daniel was decided, a predecessor to today’s Section 7.057 was in effect. It read:

Parties having any manner of dispute among them arising under provisions of the school laws of Texas, or any person or parties aggrieved by the actions or decisions of any Board of Trustees or Board of Education, may appeal in writing to the Commissioner of Education.

Act of April 20, 1949, 51st Leg., R.S., ch. 299, 1949 Tex. Gen. Laws 537, 545 (amended 1969, 1984, 1986, 1990, 2001) (current version at Tex. Educ.Code Ann. § 7.057 (Vernon Supp.2003)). The pertinent portion of the current version, as argued by VISD, authorizes appeal to the commissioner by a person who is aggrieved by the school laws of this state. Tex. Educ.Code Ann. § 7.057(a)(1). The present statute is not as broad as that in effect in 1961 which allowed appeals by any person aggrieved by any action or decision of a school board.

Daniel argued that his case should not fall within the parameters of the Education Code because it should be governed by the general laws rather than the school laws. The court dismissed his argument without illumination saying that Article 2780 disposes of the matter. Article 2780, entitled “Power of trustees,” granted trustees the exclusive power to manage and govern public schools. Acts of 1905, 25th Leg., § 168, 1905 Tex. Gen. Laws 263 (amended 1969) (current version at Tex. Educ.Code Ann. §§ 11.051,11.151 (Vernon 1996)). .

“School laws of this state,” as used in Section 7.057(a)(1), means Titles 1 and 2 of the Education Code. Tex. Educ.Code Ann. § 7.057(f)(2) (Vernon Supp.2003). This phrase was first statutorily defined in 1995. See Act of May 27, 1995, 74th Leg., R.S., ch. 260, § 1, 1995 Tex. Gen. Laws 2207, 2215. Nothing in Titles 1. or 2 speaks to retaliatory discharge. The statutory prohibition against retaliatory discharge was first enacted in 1971. See Act of April 20, 1971, 62nd Leg., R.S., ch. 115, 1971 Tex. Gen. Laws 884 (current version at Tex. Laboe Code Ann. § 451.001.). Thus, the pertinent statutory provisions have changed since Daniel was decided. The predecessor to Section 7.057 allowed for appeal to the commissioner by a broader group of plaintiffs. Further, there was no legislative guidance for judicial interpretation of the phrase “school laws of this state” and no legislation addressing a cause of action for retaliatory discharge. The statutory picture before us today leads to a different conclusion from that in the 1961 Daniel case.

Neither do we find any provisions in Titles 1 or 2 addressing grievance procedures available to at-will employees who are aggrieved by the school district’s employment decisions. The legislature has specified that the administrative remedies set out in the Education Code apply to teachers, who are contractual employees. See Tex. Educ.Code Ann. § 21.209 (Vernon 1996) (allowing teachers to appeal to the commissioner complaining of nonrenewal of their contract); Tex. Educ.Code Ann. § 21.301 (Vernon 1996) (allowing appeal to the commissioner after a school board terminates a teacher’s contract following review by a hearing examiner pursuant to Education Code Section 21.251). However, no similar provision applies to at-will employees.

We acknowledge that the applicable statutes reveal a legislative intent to keep school controversies out of the courts as much as possible. Ball v. Kerrville Indep. Sch. Dist., 504 S.W.2d 791, 793 (Tex.App.-San Antonio 1973, writ ref'd n.r.e.). While it may be true, as VISD argues, that the policies adopted by the school district and the actions taken by the VISD school board were all actions undertaken pursuant to the school laws of the state, this is immaterial. We conclude that McCarty’s complaint, while it does involve questions of fact, does not address the “school laws of this state.” Therefore, he was not required to appeal the school board’s decision to the Commissioner of Education. When he appealed the initial decision to the school board, he exhausted his administrative remedies pursuant to VISD’s local grievance procedures. Accordingly, the trial court correctly denied VISD’s plea to the jurisdiction. VISD’s three issues are overruled.

Conclusion

McCarty exhausted required administrative remedies by appealing his discharge to the VISD school board. His case does not involve school laws of this state. Therefore, the Education Code does not apply to require further appeals to the state level. McCarty thereby fulfilled all prerequisites to the trial court’s jurisdiction.

Accordingly, we affirm the order of the trial court.

      . VISD also filed special exceptions and an original answer but those are not germane to this appeal and will not be discussed.


source: Caselaw Access Project

author: DAVID PURYEAR, Justice.

license: Public Domain

text:
    TEXAS MUTUAL INSURANCE COMPANY//Cross-Appellants, Eckerd Corporation; H.E. Butt Grocery Company; Third Party Solutions, Inc.; Wal-Mart Stores, Inc.; Apollo Enterprises, Inc.; and Walgreen Company, Appellant, v. ECKERD CORPORATION; H.E. Butt Grocery Company; Third Party Solutions, Inc.; Wal-Mart Stores, Inc.; Apollo Enterprises, Inc.; and Walgreen Company//Cross-Appellee, Texas Mutual Insurance Company, Appellees.
    No. 03-03-00704-CV.
    Court of Appeals of Texas, Austin.
    Jan. 21, 2005.
    Rehearing Overruled April 14, 2005.

      P.M. Schenkkan, Robin A. Melvin, Richard D. Yeomans, Thomas B. Hudson, Jr., and Eric G. Behrens, Graves, Dougherty, Hearon & Moody, P.C., Mary Barrow Nichols, Gen. Counsel, Texas Mutual Insurance Company, Austin, for Texas Mutual Insurance Company.
    Don Walker, Asst. Atty. Gen., Chief, Administrative Law Division, Austin, for Texas Workers’ Compensation Commission.
    Jo Beth Eubanks, C. David Kinder, and Saul H. Perloff, Akin, Gump, Strauss, Hauer & Feld, L.L.P., San Antonio, for Eckerd Corporation and H.E. Butt Grocery Company.
    Michael D. Napoli, Kirkpatrick & Lock-hart, L.L.P., Dallas, for Third Party Solutions, Inc.
    David R. Overstreet, Raymond P. Pepe and Christopher R. Nestor, Kirkpatrick & Lockhart, L.L.P., Harrisburg, PA, for Third-Party Solutions, Inc.
    Lloyd E. Hoffman and Shane Thompson, Hoffman & Kelley, L.L.P., Dallas, for Wal-Mart Stores, Inc.
    Bob E. Shannon, Kevin M. Sadler, William P. Johnson Scott D. Powers, and Susan Dillon Ayers, Baker & Botts, Austin, for Apollo Enterprises, Inc.
    Toni Hunter and Richard E. Gray, III, Gray & Becker, PC, Austin, for Walgreen Company.
    Before Chief Justice LAW, Justices PATTERSON and PURYEAR.
   OPINION

DAVID PURYEAR, Justice.

This case involves cross appeals by the plaintiffs and defendants below. Both hinge on whether an insurance company, when it alleges that a health care provider has overcharged it for prescription drugs dispensed under the Texas Workers’ Compensation Act (the Act), must first exhaust remedies provided in the Act before bringing suit in court.

Appellant and plaintiff below, Texas Mutual Insurance Company (Texas Mutual), appeals the district court’s grant of partial summary judgment in favor of appellees and defendants below, Eckerd Corp., H.E. Butt Grocery Co., Third Party Solutions, Inc., Wal-Mart Stores, Inc., Apollo Enterprises, Inc., and Walgreen Co. (collectively, Defendants). The partial summary judgment dismissed Texas Mutual’s claims for negligent misrepresentation and for money had and received regarding amounts it alleges Defendants over-billed for prescription drugs dispensed to workers’ compensation claimants. The parties filed a joint motion to dismiss all remaining claims to obtain a final, appealable judgment.

Defendants appeal the district court’s denial of their motion to dismiss Texas Mutual’s claims for lack of subject matter jurisdiction. Defendants argue that the Act grants the Texas Workers’ Compensation Commission (the Commission) exclusive jurisdiction over workers’ compensation medical fee claims. Therefore, Defendants argue, the courts lack jurisdiction over such claims until the aggrieved party exhausts the administrative remedies established by the Commission. For the reasons stated below, we will reverse and render judgment that the trial court lacked jurisdiction. Accordingly, we need not address Texas Mutual’s appeal that its claims should be reinstated.

BACKGROUND

Under the workers’ compensation system, pharmacies fill prescriptions at no charge to the injured worker. 28 Tex. Admin. Code § 134.502(d)(3) (2003). The pharmacies then bill the workers’ compensation insurance carrier, which reimburses the pharmacy according to a Pharmaceutical Fee Guideline promulgated by the Commission.

According to the Pharmaceutical Fee Guideline, the maximum allowable reimbursement is generally the provider’s “usual and customary charge for same or similar service.” The parties dispute the meaning of this standard. Texas Mutual interprets “usual and customary charge for same or similar service” to mean that pharmacies may not charge workers’ compensation insurers more for drugs dispensed to injured workers than the amount charged to customers outside the workers’ compensation system. Texas Mutual alleges that Defendants have routinely submitted bills to Texas Mutual that grossly exceed the prices charged to the pharmacies’ retail customers for the same prescription drugs. On November 1, 2001, Texas Mutual brought suit in district court to recover amounts it allegedly overpaid Defendants, plus interest, attorney’s fees, and other damages and penalties allowed by law. Texas Mutual requested declaratory and injunctive relief and asserted two common-law causes of action: money had and received, and negligent misrepresentation.

Defendants moved to dismiss on grounds that the Commission has exclusive jurisdiction over all medical fee disputes between workers’ compensation insurers and health care providers and that Texas Mutual must exhaust its administrative remedies before bringing suit. Additionally, Defendants moved for partial summary judgment on Texas Mutual’s negligent misrepresentation and money had and received claims. The district court denied the motion to dismiss but granted Defendants’ motion for partial summary judgment without stating the grounds for its ruling. The parties agreed to dismiss their remaining claims to obtain a final judgment for the purposes of appeal.

DISCUSSION

Because subject matter jurisdiction is a threshold issue affecting the power of this court to reach the merits of Texas Mutual’s appeal, we first address Defendants’ plea to the jurisdiction. See Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 443 (Tex.1993) (subject-matter jurisdiction is essential to court’s authority to decide case). We must decide whether the Texas Workers’ Compensation Act vests the Commission with exclusive jurisdiction over payment disputes arising under the Act. If it does, a claimant must first exhaust its administrative remedies before a trial court has subject matter jurisdiction. Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 221 (Tex.2002) (op. on reh’g). Determining whether a statute grants exclusive jurisdiction to an administrative agency requires statutory construction and raises jurisdictional issues. Id. at 222. An administrative agency has exclusive jurisdiction when the legislature gives the agency sole authority to make the initial determination in a dispute. Id. at 221 (citing Cash Am. Int'l, Inc. v. Bennett, 35 S.W.3d 12, 15 (Tex.2000)). The issue of jurisdiction is a question of law that we review de novo. Id. at 222.

Our Court recently held that the Commission has exclusive jurisdiction over medical fee disputes between providers and insurers and that a party to such a dispute must first exhaust its administrative remedies before bringing suit in court. Howell v. Texas Workers’ Comp. Comm’n, 143 S.W.3d 416, 437-38 (Tex.App.-Austin 2004, no pet. h.). In so holding, we relied on the standard established in Subaru: an agency has exclusive jurisdiction “when a pervasive regulatory scheme indicates that the legislature intended for the regulatory process to be the exclusive means of remedying the problem to which the regulation is addressed.” Id. at 435 (quoting Subaru, 84 S.W.3d at 221). The supreme court indicated that this determination depends on statutory interpretation. Subani, 84 S.W.3d at 221. In construing a statute to determine the legislature’s intent, we consider “the language of the statute along with the statute’s history, purposes and the consequences of alternate constructions.” Cash Am. Int’l, 35 S.W.3d at 16.

In Howell, we looked at the history, purpose and statutory language of the Workers’ Compensation Act and held that the Act constitutes a “pervasive regulatory scheme” that demonstrates the legislature’s intent to grant the Commission exclusive jurisdiction over provider fee disputes. Howell, 143 S.W.3d at 437. We noted that the legislature, in enacting the new workers’ compensation system, intended to “strengthen the enforcement and adjudicatory powers of the Commission.” Id. at 436 (quoting Texas Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d 504, 514 (Tex.1995)). We considered the express language of the Act, which established mandatory reimbursement procedures and a system implemented by the Commission to review and resolve medical fee disputes. Id. at 436-37; Tex. Lab.Code Ann. § 413.031(c) (West 1996) (“In resolving disputes over the amount of payment ..., the role of the commission is to adjudicate the payment given the relevant statutory provisions and commission rules.”) (emphasis added). These procedures expressly condition a party’s access to the courts on first exhausting its administrative remedies: “A party who has exhausted the party’s administrative remedies under this subtitle and who is aggrieved by a final decision of the State Office of Administrative Hearings may seek judicial review of the decision.” Tex. Lab.Code Ann. § 413.031(k) (West 1996) (emphasis added). As in Howell, this medical fee dispute falls within the exclusive jurisdiction of the Commission. Because the Act’s pervasive scheme indicates that the legislature intended the Commission to serve as the sole authority to adjudicate disputes arising under the Act, the district court did not have jurisdiction to hear Texas Mutual’s claims until Texas Mutual had exhausted its administrative remedies.

In addition to arguing that the lack of “clear and express” language does not evince legislative intent to vest sole authority in the Commission over medical fee disputes, Texas Mutual, citing Cash America, argues that the legislature did not intend to abrogate its common law claims when it authorized the Commission to develop administrative fee dispute procedures. See Cash America, 35 S.W.3d at 16 (legislature did not intend to abolish claims existing at common law when it created administrative remedy for disputes over pledged property). We first note that Texas Mutual’s position has been foreclosed by our holding in Howell. We further note that Texas Mutual’s reliance on Cash America is misplaced. Unlike the dispute in Cash America, Texas Mutual’s claims are “common law” in name only. Only through creative pleading has Texas Mutual transformed Defendants’ alleged violations of the Workers’ Compensation Act fee provisions into claims sounding in tort and equity. Texas Mutual alleges that Defendants overcharged it and negligently misrepresented to Texas Mutual that they were charging the correct amount. Both of these claims derive from the statutory provision setting the maximum allowable reimbursement for pharmaceuticals. At common law, there is no standard or duty to charge a particular amount for prescription drugs; only the statute provides a standard for determining whether Defendants charged Texas Mutual an excessive amount. Therefore, the supreme court’s concern in Cash America for preserving consumers’ common law claims is inappo-site to the context of this case, where we have two claims that cannot be adjudicated without also adjudicating the proper meaning of the “maximum allowable reimbursement” provided in the Pharmaceutical Pee Guideline.

Because the Commission has exclusive jurisdiction over this statutory provision and the claims that arise from it, Texas Mutual must exhaust its administrative remedies before bringing these claims in court. See Burgess v. Gallery Model Homes, Inc., 101 S.W.3d 550, 558 (Tex.App.-Houston [1st District] 2003, pet. denied) (quoting Mingus v. Wadley, 115 Tex. 551, 285 S.W. 1084, 1087 (Tex.1926)) (“The general rule is that where the cause of action and remedy for its enforcement are derived not from the common law but from the statute, the statutory provisions are mandatory and exclusive, and must be complied with in all respects or the action is not maintainable.”). We sustain the Defendants’ issue on appeal.

CONCLUSION

Because the Texas Workers’ Compensation Act’s pervasive scheme indicates the legislature’s intent to grant the Commission exclusive jurisdiction over medical fee disputes, we reverse the district court’s judgment denying the Defendant’s motion to dismiss and render judgment dismissing Texas Mutual’s claims for lack of jurisdiction. Having held that the trial court lacked jurisdiction, we need not address Texas Mutual’s claims for money had and received and for negligent misrepresentation.

      . Plaintiff is a workers' compensation insurance carrier. Defendants are four retail chain stores that operate pharmacies throughout Texas and two third-party billing companies that processed and submitted bills to Texas Mutual on behalf of some of the defendant pharmacies.

      .In 1989, the Texas legislature enacted a new workers' compensation act, created the Texas Workers’ Compensation Commission and granted it broad powers to implement and enforce the Act. Texas Workers' Comp. Comm’n v. Patient Advocates of Tex., 136 S.W.3d 643, 646-47 (Tex.2004); see Tex.Lab.Code Ann. § 402.061 (West 1996). By legislative mandate, the Commission promulgated the Texas Workers’ Compensation Commission Medical Fee Guideline 1996, which included standards to assess the maximum allowable reimbursement (MAR) for prescription drugs. According to the Pharmaceutical Fee Guideline, the MAR shall be the lesser of:
      (1) the provider’s usual and customary charge for same or similar service; or
      (2) a formula based on the "Average Wholesale Price” for the pharmaceuticals. See 28 Tex. Admin. Code § 134.201 (2003) (adopting the guideline). The Commission has since revised the fee guideline, adding a third factor to the MAR, a "negotiated or contract amount,” that is not at issue here. See id. § 134.503.

      . Defendants argue that the phrase "same or similar service” distinguishes the standard from their "usual and customary charge,” because providing drugs to injured workers and then billing the insurance company involves a different service with higher costs than simply filling prescriptions for retail customers.

      . Texas Mutual alleges that Defendants billed up to four times the amount they charged retail cash customers.

      . Although Texas Mutual claims that it needs discovery to quantify the total overpayments, it believes that the total overpayments exceed $1 million.

      . Texas Mutual requested an injunction to prevent Defendants from submitting claims for reimbursement that exceeded the maximum allowed by the Pharmaceutical Fee Guideline and a declaration that the maximum reimbursement amount was the lesser of a pharmacy's “cash price” that a pharmacy charges customers not covered by workers' compensation insurance or the amount derived from the formula established in the TWCC Medical Fee Guideline (1996).

      .The trial court did not have the benefit of our ruling in Howell when it denied Defendants' motion to dismiss for lack of jurisdiction.

      . Texas Mutual argues that the legislature gave the Commission primary, not exclusive, jurisdiction over provider fee disputes. The judicially created primary jurisdiction doctrine allocates power between courts and agencies when both have authority to make initial determinations in a dispute. Howell v. Texas Workers’ Comp. Comm’n, 143 S.W.3d 416, 435 (Tex.App.-Austin 2004, no pet. h.). Texas Mutual argues that Subaru stands for the proposition that the legislature only confers exclusive jurisdiction on an agency to handle disputes arising under the statute if it evinces this intent through express language. See Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 220 (Tex.2002) (op. on reh’g) (administrative agencies may exercise only those powers conferred upon them by clear trad express statutory language). Because the Act does not use the words "exclusive jurisdiction” in describing the Commission’s adjudicatory power over medical fee disputes, Texas Mutual argues that the legislature did not intend to grant sole authority over such disputes in the Commission. We note, however, that Texas Mutual’s reading of Subaru has been foreclosed by Howell, which determined that legislative intent to vest sole authority in the Commission was clear from the "pervasive scheme” established by the Act.

      . Pharmaceuticals are among the health care services regulated by fee guidelines that calculate payments due health care providers. See Tex. Admin. Code §§ 134.201 (governing medical fee guidelines as applied to pharmaceuticals), 134.500 et seq. (“Guidelines for Medical Services, Charges, and Payments, Subchapter F. Pharmaceutical Benefits”) (2004). The administrative code also repeatedly refers to pharmacists as health care providers and distinguishes them from doctors. See id. §§ 134.501(a) (”[I]f, prior to providing the pharmaceutical services, the health care provider (HCP) obtains ..."), (a)(3) (”[E]ven if the HCP provided pharmaceutical services beyond the first seven days ...,"), (d) ("CTjhe HCP may dispense prescription or nonprescription medications in the amount ordered by the doctor ... ”). A dispute between a health care provider and an insurance carrier regarding proper payment is a medical fee dispute. See id. § 133.307(b) (2004) (Tex. Workers’ Comp. Comm'n, Medical Dispute Resolution of a Medical Fee Dispute).

      . In Cash America, a pledgor sued a pawnshop alleging common law claims for conversion, negligence, and gross negligence after the property she had pledged was stolen. Cash Am. Int’l, Inc. v. Bennett, 35 S.W.3d 12, 14-15 (Tex.2000). The supreme court ruled that the Pawnshop Act did not supplant her common law rights, which existed prior to and independent of the statute. Id. at 16.

      . See Bone v. Utica Nat’l Ins. Co. of Tex., No. 2-02-209-CV, 2003 WL 21810944, *2 (Tex.App.-Fort Worth August 7, 2003, pet. denied) (not designated for publication) (citing American Motorists Ins. Co. v. Fodge, 63 S.W.3d 801, 804 (Tex.2001)) (health care provider could not pursue tort claims against workers’ compensation insurer without exhausting administrative remedies when claims required adjudication of matters solely within Commission’s jurisdiction).

      .Texas Mutual asked the court to award it money and interest from the Defendants and to provide injunctive and declaratory relief. The Act gives the Commission the power to grant these remedies. It can order providers to refund payments that exceed amounts permitted by the Fee Guideline and pay interest on money refunded, and can enforce sanctions on providers who commit administrative violations, including "a reduction or denial of fees” or “restriction, suspension, or revocation of the right to receive reimbursement.” See Tex. Lab.Code Ann. §§ 413.016(a), 413.019, 415.023(b)(1), (4) (West 1996 & Supp.2004). The ability of the Commission to fully compensate an injured party, to sanction parties that violate the Act, and to establish and enforce the Act's provisions further demonstrates the legislature’s intent to grant the Commission exclusive jurisdiction over these claims. C.f. Cash America, 35 S.W.3d at 15 (only administrative remedy available under Pawnshop Act was "like-kind replacement” of lost property).


author: SANDEE BRYAN MARION, Justice.

text:
    The STATE of Texas, Appellant, v. Jose REYES, Appellee.
    No. 04-04-00504-CR.
    Court of Appeals of Texas, San Antonio.
    Feb. 2, 2005.

      Enrico B. Valdez, Asst. Criminal Dist. Atty., San Antonio, for appellant.
    Randall L. Greiner, Law Office, of Randall L. Greiner, San Antonio, for ap-pellee.
    Sitting: ALMAL. LÓPEZ, Chief Justice SANDEE BRYAN MARION, Justice PHYLIS J. SPEEDLIN, Justice.
   OPINION

Opinion by

SANDEE BRYAN MARION, Justice.

The State appeals from the trial court’s dismissal of the information against defendant, Jose Reyes, on the grounds that the State violated defendant’s right to a speedy trial. Because we find that the trial court erred by not conducting a hearing on defendant’s speedy trial motion, we reverse and remand to the trial court.

On August 19, 2002, defendant was charged with the misdemeanor offense of driving while intoxicated. After several re-settings, trial was set for June 29, 2004. On the morning the case was set for trial, defendant filed a motion to dismiss, alleging that his right to a speedy trial had been violated. Apparently, without conducting a hearing, the trial court granted the motion.

DISCUSSION

In its sole issue, the State contends the trial court erred by granting defendant’s motion for speedy trial without conducting a hearing on the issue or otherwise receiving evidence from the parties. We agree.

The right to a speedy trial is guaranteed by the Sixth Amendment, as made applicable to the states by virtue of the Fourteenth Amendment. U.S. Const. amend. VI, XIV; see also Barker v. Wingo, 407 U.S. 514, 515, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Likewise, the Texas Constitution provides all criminal defendants the right to a speedy trial. Tex. Const, art. I, § 10; see also Tex.Code Crim. Proc. Ann. art. 1.05 (Vernon 1977).

In determining whether a defendant’s constitutional right to a speedy trial has been violated, the reviewing court must balance four factors: (1) length of the delay; (2) reasons for the delay; (3) assertion of the right; and (4) prejudice to the defendant resulting from the delay. Barker, 407 U.S. at 530, 92 S.Ct. 2182; State v. Munoz, 991 S.W.2d 818, 821 (Tex.Crim.App.1999). The conduct of both the prosecutor and the defendant must be weighed in balancing the four factors, and no single factor is determinative of a speedy trial violation. Barker, 407 U.S. at 530, 533, 92 S.Ct. 2182; Munoz, 991 S.W.2d at 821.

The nature of the applicable balancing test of the Barker factors requires a full development of the facts. Newcomb v. State, 547 S.W.2d 37, 38 (Tex.Crim.App.1977). In this case, the defendant’s speedy trial motion was filed and ruled on the morning trial was set to commence. The State did not have prior notice that the trial court would consider the motion on that day and no reporter’s record was taken of any arguments heard by the court. Because it appears the trial court failed to conduct a hearing on whether defendant’s right to a speedy trial was violated, we cannot render a considered decision on the issue of whether defendant was denied a speedy trial. Newcomb, 547 S.W.2d at 38. As such, we conclude the trial court erred to the extent it dismissed the case without conducting a meaningful hearing on the issue of whether the State denied defendant his right to a speedy trial. See State v. Salinas, 975 S.W.2d 717, 718 (Tex.App.-Corpus Christi, 1998, no pet.) (citing United States v. Rich, 589 F.2d 1025, 1033-34 (10th Cir.1978)).

Accordingly, we reverse the trial court’s dismissal order and remand this case to the trial court for further proceedings consistent with this opinion.


author: CATHERINE STONE, Justice.

text:
    Dawn Kuretsch STEWART, Appellant, v. The STATE of Texas, Appellee.
    No. 04-02-00314-CR.
    Court of Appeals of Texas, San Antonio.
    Feb. 9, 2005.
    Rehearing Overruled March 8, 2005.

      Stephanie L. Stevens, Placido G. Gomez, Adriaan Jansse, Maria Ross Phelicia Kos-sie, Mark Stevens, San Antonio, for appellant.
    Kevin P. Yeary, Asst. Criminal Dist. Atty„ San Antonio, for appellee.
    Sitting: CATHERINE STONE, Justice, PAUL W. GREEN, Justice, SANDEE BRYAN MARION, Justice.

      . Not participating.

   OPINION

Opinion by

CATHERINE STONE, Justice.

This appeal is on remand from the court of criminal appeals. Dawn Stewart appeals her conviction for driving while intoxicated. We originally reversed the trial court’s judgment, concluding that the results of Stewart’s intoxilyzer breath tests were irrelevant without retrograde extrapolation testimony and constituted no evidence to show Stewart was intoxicated when she drove. Stewart v. State, 103 S.W.3d 483, 486 (Tex.App.-San Antonio 2003), rev’d, 129 S.W.3d 93 (Tex.Crim.App.2004). We further concluded that by admitting the breath test results, the trial court encouraged the jury to conduct its own retrograde extrapolation and to decide the case on facts not in evidence. Id. Lastly, we concluded that the admission of the breath test results without retrograde extrapolation affected Stewart’s substantial rights. Id.

The court of criminal appeals, however, reversed our judgment. Stewart v. State, 129 S.W.3d 93, 98 (Tex.Crim.App.2004). The court of criminal appeals held that breath test evidence may be relevant without retrograde extrapolation evidence. Id. at 96. The court further held that we erred in holding that the breath tests constituted no evidence to show Stewart was intoxicated when she drove. Id. Lastly, the court disagreed with our holding that the admission of the breath test results encouraged the jury to engage in its own crude retrograde extrapolation. Id. at 97. Consequently, the court remanded the cause to this court to address Stewart’s remaining appellate issues: (1) whether the admission of Stewart’s breath test results without retrograde extrapolation testimony violated Texas Rule of Evidence 403; (2) whether the admission of Stewart’s breath test results confused the jury and led it to an erroneous conclusion; (3) whether the trial court erred by denying her request for an instruction on the presumption of innocence; (4) whether the trial court erred by allowing the State to make a misstatement of the law during voir dire; (5) whether the trial court erred by denying her requested instruction on the law of intoxication; and (6) whether the trial court erred by denying her challenge for cause to one of the members of the venire. After considering Stewart’s complaints, we are of the opinion that the judgment of the trial court should be affirmed.

Texas Rule op Evidence 403

In her first issue, Stewart argues that the admission of her breath test results without retrograde extrapolation testimony violates Texas Rule of Evidence 403. When a defendant challenges the admissibility of evidence on Rule 403 grounds during trial, we review the court’s ruling under an abuse of discretion standard. State v. Mechler, 153 S.W.3d 435, 440 (Tex.Crim.App., 2005). A trial court abuses its discretion when it acts arbitrarily or unreasonably. Id. We will not disturb the trial court’s ruling unless the ruling falls outside the zone of reasonable disagreement. Id.

Under Rule 403, all relevant evidence is admissible unless “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.” Tex.R. Evid. 403. Rule 403 carries with it the presumption that relevant evidence will be more probative than prejudicial. Hayes v. State, 85 S.W.3d 809, 815 (Tex.Crim.App.2002). Thus, there must be a “clear disparity between the degree of prejudice of the offered evidence and its probative value” before the Rule 403 balancing test requires exclusion. Mozon v. State, 991 S.W.2d 841, 847 (Tex.Crim.App.1999).

We assess four nonexclusive factors when determining whether the probative value of evidence is substantially outweighed by the danger of unfair prejudice. Mechler, at 440; Manning v. State, 114 S.W.3d 922, 926 (Tex.Crim.App.2003). These factors include: (1) “how compellingly the evidence serves to make a fact of consequence more or less probable”; (2) the potential the evidence has to impress the jury in some irrational but nevertheless indelible way; (3) “the time the proponent will need to develop the evidence, during which the jury will be distracted from consideration of the indicted offense”; and (4) “the force of the proponent’s need for this evidence to prove a fact of consequence, ie., does the proponent have other probative evidence available to him to help establish this fact, and is this fact related to an issue in dispute.” Mechler, at 440-441; Manning, 114 S.W.3d at 926.

Probative Value

“The first factor looks to the evidence’s probativeness or how compelling the evidence serves to make a fact of consequence more or less probable.” Mechler, at 440. In this case, Stewart submitted two breath test samples approximately eighty minutes after she stopped driving. Those samples showed a BAC level of 0.160 and 0.154. Stewart’s breath test results indicate that Stewart had consumed alcohol. “As a result, they tend to make it more probable that [s]he was intoxicated at the time of driving under both the per se and impairment definitions of intoxication.” Id. In fact, because both of Stewart’s samples were significantly above the legal blood-alcohol limit of 0.10 less than an hour and a half after she stopped driving, we believe there is a relatively strong inference that she had a BAC level at or above 0.10 at the time of driving.

Irrational Impression

“The second factor asks whether the evidence has a potential to impress the jury in some irrational but indelible way.” Id. at 441. Rule 403 does not exclude all prejudicial evidence; rather, it focuses only on the danger of “unfair” prejudice. Id. “Unfair, prejudice” pertains “only to relevant evidence’s tendency to tempt the jury into finding guilt on grounds apart from proof of the offense charged.” Id.

Here, the breath test results are undeniably prejudicial to Stewart; however, they are not unfairly prejudicial because such evidence relates directly to the charged offense. See id. Thus, Stewart’s breath test results could not have impressed the jury in an irrational way. See id.

Time to Develop

The third factor concerns “the time the proponent will need to develop the evidence, during which the jury will be distracted from consideration of the indicted offense.” Id. As previously discussed, breath test results relate directly to the offense of driving while intoxicated. Because the breath test evidence relates directly to the charged offense, the jury could not have been distracted away from the charged offense regardless of the time the State devoted to presenting the evidence. See id.

Need for the Evidence

The fourth factor asks how much the proponent “needs” the evidence to prove a fact of consequence. Id. at 441. This last factor encompasses the issue of whether the proponent has other evidence establishing the fact of consequence. Id. It also encompasses the issue of whether this fact is related to a disputed issue. Id.

At trial, Stewart’s arresting officer, J. Rodriguez, testified he observed Stewart weaving in her lane on the night in question. When she was stopped, Stewart had red, glassy eyes and had alcohol on her breath. The record also indicates that Stewart admitted to having drunk a couple of beers and stated during the perform-anee of her field sobriety tests that she “couldn’t do [the field sobriety tests] sober.” Officer Rodriguez stated that Stewart failed three field sobriety tests.

The jury, however, also heard that Stewart passed four other field sobriety tests. In addition, the jury heard that Stewart performed her field sobriety tests under relatively poor conditions; the night was windy and large trucks were driving past Stewart on the roadway. The jury further heard Stewart’s arresting officer had no opinion one way or the other regarding whether Stewart had the normal use of her mental faculties. Under the circumstances, we believe the State had a need for Stewart’s breath test results to prove Stewart’s intoxication. See Montgomery v. State, 810 S.W.2d 372, 390 (Tex.Crim.App.1990).

Application

After evaluating all of the relevant factors, we believe the sum of the factors weigh in favor of admissibility. Thus, we hold the trial court did not err by admitting the breath test evidence in this instance. Stewart’s first issue is overruled.

Confusion & ERroneous Deductions

In her second issue, Stewart contends the admission of her breath test results “did not assist the jury to understand the evidence or determine a fact in issue” and “led only to confusion and erroneous deductions.” As discussed above, Stewart’s breath test results relate directly to the charged offense. Therefore, in the absence of evidence indicating juiy confusion, we cannot conclude that the challenged evidence could have confused the jury or led the jury to an erroneous deduction. Stewart’s second issue is overruled.

Instruction on the Presumption of Innocence

In her third issue, Stewart argues the trial court erred by denying her request for an instruction on the presumption of innocence. When reviewing charge errors, an appellate court must undertake a two-step review: first, the court must determine whether error actually exists in the charge; second, if the court finds error, it must determine whether sufficient harm resulted from the error to require reversal. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984). The standard to determine whether sufficient harm resulted from the charging error to require reversal depends upon whether the appellant objected at trial. Id. When there has been a timely objection made at trial, an appellate court will reverse only if “the error is not harmless.” Id.

There is no constitutional requirement that an instruction on the presumption of innocence be given in every criminal trial. Kentucky v. Whorton, 441 U.S. 786, 789, 99 S.Ct. 2088, 60 L.Ed.2d 640 (1979). Therefore, a trial court’s failure to give an instruction on the presumption of innocence “must be evaluated in light of the totality of the circumstances— including all the instructions to the jury, the arguments of counsel, whether the weight of the evidence was overwhelming, and other relevant factors — to determine whether the defendant received a constitutionally fair trial.” Id.; see also Hernandez v. State, 107 S.W.3d 41, 45 (Tex.App.San Antonio 2003, pet. ref'd).

In this case, the totality of the circumstances indicate that the trial court did not err by denying Stewart’s requested instruction on the presumption of innocence. Although the jury charge did not include a specific instruction on the presumption of innocence, it did include an instruction that the jury could find Stewart guilty only if they believed the evidence beyond a reasonable doubt. The jury charge also contained language that the jury could not consider Stewart’s choice to not testify or consider any evidence not introduced at trial. Lastly, the charge instructed the jury that because the jurors are not witnesses, they should not relate to other jurors their own experience or knowledge.

During closing arguments, the State told the jury that it had the burden of proving the elements of the offense beyond a reasonable doubt. Defense counsel also told the jury that the burden of proof rested with the State and that the State had to prove the alleged offense beyond a reasonable doubt. Defense Counsel further reminded the jury “that the purpose of presuming somebody innocent and requiring the State to prove [the offense] beyond a reasonable doubt is to make sure that we don’t convict an innocent person.”

The weight of the evidence at trial was such that the jury could have found Stewart guilty of driving while intoxicated. During trial, the jury heard that Stewart was weaving in her lane as she drove down the roadway. When she was stopped, Stewart had red, glassy eyes and smelled of alcohol. According to the arresting officer, Stewart failed several field sobriety tests. Moreover, Stewart admitted to having drunk a couple of beers and stated she “couldn’t do [the field sobriety tests] sober.” Lastly, the jury heard that Stewart submitted two breath test samples approximately eighty minutes after she stopped driving. Those samples showed Stewart had a BAC level of 0.160 and 0.154, well above the legal blood-alcohol limit of 0.10.

During voir dire, the trial court explained to the jury that Stewart was presumed innocent until each and every element of the offense charged is proven beyond a reasonable doubt. The court told the jury, “[a]nd so right now even though that you know there is someone in the courtroom who has been charged with a criminal offense, if I ask every one of you to raise your hands and vote guilty or not guilty, at this point you would have to all raise your hand and vote not guilty because at this point the law presumes the person innocent.” The State subsequently emphasized to the jury panel that it had the burden of proof and that it needed to prove all of its allegations beyond a reasonable doubt. Defense counsel further told the venire panel that Stewart was innocent until proven guilty. Defense counsel also informed the venire that the burden of proof was on the State.

Looking at the totality of the circumstances, we hold the trial court did not err in refusing Stewart’s requested instruction on the presumption of innocence. Stewart’s third issue is overruled.

Misstatements of the Law During Voir Dire

In her fourth issue, Stewart contends the trial court erred by allowing the State to mislead the venire concerning the definition of intoxication during jury selection. Specifically, Stewart argues that the State erroneously informed the jury that “the law allow[s] a finding of guilt if the jury f[inds] that at the time of testing, [Stewart] received a breath test score over .10.” A trial court has wide discretion to control voir dire. Allridge v. State, 762 S.W.2d 146, 163 (Tex.Crim.App.1988). The trial court’s discretion is not limitless, however, and is renewable for an abuse of discretion. Id. Stewart’s complaint concerns the following excerpt from voir dire:

Prosecutor: The standard is a .10 for 1999. That is the first portion of the definition. The State has to prove the defendant had an alcohol concentration of .10 or more in her body. Another way that you can prove up intoxication is to prove that the defendant did not have the normal use of her mental faculties by reason of introduction of alcohol into her body. Or another way is that the defendant did not have the normal use of her physical faculties by reason of the introduction of alcohol into her body. So three different ways to prove intoxication. There are three different definitions. The State is required to prove this; however, the State is not required to prove all three of these, just one of them. Now, you can disagree. For example, if Yanity—
Prospective Juror No. 1: Yanity.
Prosecutor: I am so sorry. If you are one of the jurors who got picked on the panel, and you decided, Okay, she blew above .10. I think she’s intoxicated.
Defense Counsel: Judge I’m going to object to that. I am going to object to that as a misstatement of the law. It is not whether they blew over. It’s what their content was at the time they were driving.
The Court: Be overruled.
Prosecutor: So if the State proved all these elements beyond a reasonable doubt and proved they were intoxicated, and you believed that she blew above .10—
Defense Counsel: Again, Judge, that is a misstatement of the law, ... if she blew above .10.
The Court: Be overruled.
Prosecutor: And you decided, Okay, I don’t think she blew above .10, but I thought she had los[t] her mental faculties, and then the rest of the four said, you know, I believe she blew above .10. It’s okay if you disagree on the definition of intoxication, but if you all agree she is intoxicated, that is fine. Does that make sense? Is there anyone here who would require the State to prove all three definitions? Yes, ma’am. Tomlinson.
Prospective Juror No. 19: Yes, ma’am.
Prosecutor: Would you require the State to prove all three of these?
Prospective Juror No. 19: Yes, ma’am, before I could make a decision. I would want to make sure that it could be proved.
Prosecutor: So even if the State proved all these elements and just proved the first one, that the alcohol level was above .10—
Defense Counsel: Again, Judge, every time she says that, I am going to object because it’s not the alcohol level was above .10. It was above .10 at the time she was driving.
The Court: Be overruled. Ladies and gentlemen, just, to make sure you don’t get confused, I am going to give you the law that you need to apply to the facts of the case at that time.

In light of the nature of the State’s argument, we are of the opinion that such argument would naturally be understood by the jury as a comment that the State need only prove that Stewart had a BAC greater than 0.10 at the time of testing to find her guilty of driving while intoxicated. We believe the State’s argument constitutes a misstatement of the law because a person commits the offense of driving while intoxicated if the person had a BAC greater than 0.10 at the time of driving. Spe Tex. Penal Code Ann. § 49.04(a) (Vernon 2003) (stating a person commits the offense of driving while intoxicated if the person is intoxicated while operating a motor vehicle in a public place). Because we believe the State’s argument constitutes a misstatement of law, we hold the trial court erred by overruling Stewart’s objection to the State’s argument. We must now determine whether Stewart was harmed by this error.

A misstatement of law during voir dire requires reversal only if appellant was harmed by the misstatement. Thompson v. State, 95 S.W.3d 537, 542 (Tex.App.-Houston [1st Dist.] 2002, no pet.). We analyze any harm arising from the prosecutor’s voir dire statements under Texas Rule of Appellate Procedure 44.2(b). Id. We will disregard the error unless Stewart’s substantial rights were affected, which occurs when the error had a “substantial and injurious effect or influence in determining the jury’s verdict.” Tex.R.App. P. 44.2(b); Thompson, 95 S.W.3d at 543.

Here, we have a fair assurance that the error did not influence the jury. The record reveals that immediately after the State made the misstatements, the trial court instructed the jury that any law discussed during voir dire would be provided in the jury charge at the end of trial. When the State made its closing argument at the end of Stewart’s trial, the trial court reminded the jury “the law is at the time of driving. Intoxication by one of three ways at the time of driving. That is the law.” Lastly, the court’s charge contained a correct statement of the relevant law. The court’s charge instructed the jury that it could find Stewart guilty only if it found she “was intoxicated, and while so intoxicated, did drive or operate a motor vehicle in a public place.” Thus, we do not believe the State’s misstatement during voir dire contributed to Stewart’s conviction. Stewart’s fourth issue is overruled.

INSTRUCTION ON THE LAW OF INTOXICATION

In her fifth issue, Stewart contends the trial court erred by refusing to instruct the jury that before it was proper to rely on results from the breath tests, the jury must believe beyond a reasonable doubt that the test results were rehable. We disagree.

At trial, Stewart’s counsel asked for “Defendant’s Special Requested Jury Instruction Number One”:

Under our laws, a person is intoxicated if the state proves beyond a reasonable doubt that he has an alcohol concentration of .10 or more. If the state relies upon the .10 definition of intoxication, then proof thereof may be in the form of a chemical test showing the alcohol concentration in a defendant’s body near the time of the offense if any was committed. However, conviction does not necessarily follow from the admission of chemical test results showing an alcohol concentration of .10 or more. First, the jury must be convinced beyond a reasonable doubt that the intoxilyzer machine is reliable and that the operator was qualified, that is, that the chemical test provides trustworthy evidence of alcohol concentration in a defendant’s breath. Second, the jury must be convinced beyond a reasonable doubt that an inference can be made from the results of the chemical test that the defendant had a .10 alcohol concentration in his body at the time he was driving and operating a motor vehicle in a public place.
Therefore, if you find beyond a reasonable doubt that the chemical breath test results admitted into evidence in this case showed that Defendant, DAWN STEWART, had an alcohol concentration of .10 or more, you will wholly disregard such results unless you further find beyond a reasonable doubt that:
1) The intoxilyzer machine is reliable and the operator was qualified, that is, that the chemical test provides trustworthy evidence of alcohol concentration in a Defendant’s breath; and,
2) An inference can be made from the results of the chemical test that the defendant had an alcohol concentration of .10 or more at the time he was driving and operating a motor vehicle in a public place.

Stewart cites Forte v. State, 707 S.W.2d 89 (Tex.Crim.App.1986), for the proposition that because the trial court failed to include the requested instruction, the charge of the court did not properly state the law. This court, however, has previously rejected this argument. See Fernandez v. State, 915 S.W.2d 572, 575-576 (Tex.App.-San Antonio 1996, no writ). Thus, we cannot say the trial court erred by refusing Stewart’s special requested instruction. See id. Stewart’s fifth issue is overruled.

Challenge FoR Cause

In her sixth issue, Stewart complains about the trial court’s failure to grant her challenge for cause to venire-member Renteria. A defendant may challenge any prospective juror who has a bias or prejudice against some phase of the law upon which she is entitled to rely. Tex.Code Crim. Proc. Ann. art. 35.16(c)(2) (Vernon Supp.2004-2005). To preserve error on denied challenges for cause, the appellant must demonstrate on the record that: (1) she asserted a clear and specific challenge for cause; (2) she used a peremptory challenge on the complained of venire member; (3) all of her peremptory challenges were exhausted; (4) her request for additional strikes was denied; and (5) an objectionable juror sat on the jury. Feldman v. State, 71 S.W.3d 738, 744 (Tex.Crim.App.2002). The record in this case reflects that Stewart exhausted all of her peremptory challenges, and then requested, but was denied, further challenges. After Stewart’s request for an additional peremptory strike was denied, Stewart had to accept an objectionable juror, thereby preserving any error for review on appeal. See id.

The denial of a challenge for cause is within the discretion of the trial court and will not be overturned absent an abuse of that discretion. Mooney v. State, 817 S.W.2d 693, 701 (Tex.Crim.App.1991). An appellate court gives great deference to the trial court’s decision because the trial court is able to consider important factors such as demeanor and tone of voice that do not come through when reviewing a cold record. Feldman, 71 S.W.3d at 744. “Particular deference is given when the potential juror’s answers are vacillating, unclear, or contradictory.” Id. We look at the entire record to determine if there is sufficient evidence to support the trial court’s ruling when reviewing a trial court’s decision to deny a challenge for cause. Id.

To determine if a prospective juror should be excused for cause due to a bias or prejudice against a phase of the law upon which the defendant is entitled to rely, “[t]he test is whether the bias or prejudice would substantially impair the prospective juror’s ability to carry out his oath and instructions in accordance with the law.” Id. The law must be explained to the prospective juror and the juror must be asked whether he can follow that law regardless of his personal views before the juror can be excused for cause on this basis. Id. The burden is on the proponent of a challenge for cause to establish her challenge is proper. Id. at 747.

During the voir dire examination of veniremember Renteria, the following exchange occurred between defense counsel and Renteria:

Q: My question, Mr. Renteria, would be — I don’t know if I asked you this way or not. If there was evidence of a video, would that be something that ■ you could consider or would you just go based on the test results?
A: If the test results were reliable then I would go with the test.
Q: Without considering any other evidence?
A: I would look at it. I would look at the video. But just like if the test results were not reliable and the video showed the person lost their ability to physically or mentally, I would go with the video then. So it’s more or less the reliability.
Q: Okay. But, basically, if you believed the video — if you believed the results were rehable, are you going to ignore the rest of the evidence in the case?
A: If I believe test results are reliable?
Q: Yes.
A: I would. I would look at that first section of the law since only one of those has to be proven.
Q: You wouldn’t care about evidence as to any other — the other two?
A: Because to me the State would have proven their case.
Q: Okay. Okay. That is all the questions I have.

Stewart complains that the trial court should have granted her challenge for cause because Renteria “would not consider other evidence in the case beyond a breath test.” Looking at the entirety of the voir dire, we cannot say the trial court abused its discretion by denying Stewart’s challenge for cause. From Renteria’s voir dire responses, it is evident that Renteria was not biased against non-breath test evidence. Rather, the record suggests that Renteria merely intended to exercise his discretion in weighing the different types of evidence presented. The record reveals that Renteria was open to considering evidence he believed to be reliable, whether the evidence was the results of a breathalyzer test or a video showing Stewart’s intoxication level. At no point during voir (fire did Renteria unequivocally state that he would consider only breath test evidence. Because the record does not indicate that Renteria exhibited a bias against the law, Stewart’s sixth issue is overruled.

Conclusion

Having overruled all of Stewart’s appellate issues, the judgment of the trial court is affirmed.

      . See id. at 449 (Cochran, J., concurring with four judges joining). It is undisputed that Stewart’s offense was committed before the Penal Code was amended to lower the legal blood-alcohol limit from 0.10 to 0.08.

      . At trial, Stewart’s counsel asked for "Defendant's Special Requested Jury Instruction Number Three”:
      All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt. The fact that a person has been arrested, confined, or otherwise indicted for, or otherwise charged with the offense gives rise to no inference of guilt at his trial. The law does not require a defendant to prove his innocence or produce any evidence at all. The presumption of innocence alone is sufficient to acquit the defendant, unless the jurors are satisfied beyond a reasonable doubt of the defendant’s guilt after careful and impartial consideration of all the evidence.

      . Stewart complains that the State made statements during voir dire that invited the jury to consider Stewart’s status as a defendant as evidence tending to prove her guilt, which she claims is impermissible under Taylor v. Kentucky, 436 U.S. 478, 98 S.Ct. 1930, 56 L.Ed.2d 468 (1978). In Taylor, the prosecutor’s closing argument described the beyond a reasonable doubt standard "by declaring that petitioner, like every other defendant who’s ever been tried who’s in the penitentiary or in the reformatory today, has this presumption of innocence until proved guilty beyond a reasonable doubt.' " 436 U.S. at 486, 98 S.Ct. 1930. The court condemned the prosecution's argument because it linked the defendant to every defendant who turned out to be guilty and was sentenced to imprisonment. Id. at 486-87, 98 S.Ct. 1930. The court further stated that the prosecutor’s statement could be viewed as an invitation to the jury to consider defendant’s status as a defendant as evidence tending to prove his guilt. Id. at 487, 98 S.Ct. 1930.
      Here, Stewart's complaint centers on the following remarks by the State:
      With regard to the burden of proof, the State does have to prove each of these elements beyond a reasonable doubt ... Beyond a reasonable doubt does not mean beyond a shadow of a doubt. There is no definition in the law. Use your common sense. It is a high burden. That is fine. That is the same burden used for traffic tickets all the way up to murders. And the jails are full. There are a lot of people on probation. Okay, (emphasis added).
      Stewart contends the State’s remarks in this case are similar to those of the prosecutor in Taylor. We are unpersuaded by Stewart’s argument. Unlike Taylor, the State’s remarks do not liken Stewart to "every other” previously convicted defendant; rather, they merely explain to the jury that the beyond the reasonable doubt standard is not an impossible burden to meet.

      . The trial court denied Stewart’s requested instruction over her objection and charged the jury essentially verbatim from the statute. The charge of the court stated:
      "Intoxicated,” means not having the normal use of mental or physical faculties by reason of the introduction of alcohol into the body or having an alcohol concentration of .10 or more ... Now, if you find from the evidence beyond a reasonable doubt that on or about the 4th day of April, 1999, in Bexar County, Texas, the defendant, DAWN STEWART, was intoxicated, and while so intoxicated, did drive or operate a motor vehicle in a public place, then you will find the defendant guilty as charged.
      Unless you so find from the evidence beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will find the defendant not guilty.


author: BRIAN QUINN, Justice. PER CURIAM.

text:
    Mabel Walter ROGERS, Larry Frank Walter, co-trustee, Robert Wayne Veigel, co-trustee, Dorothy Ann Veigel Oswald and Jo Ann Veigel Eudy, Appellants, v. In re ARDELLA VEIGEL INTER VIVOS TRUST NO. 2, Amarillo National Bank, Amarillo, Texas, co-trustee, Appellees.
    No. 07-03-0307-CV.
    Court of Appeals of Texas, Amarillo.
    Feb. 14, 2005.
    Opinion Denying Rehearing May 2, 2005.
    Rehearing Overruled June 3, 2005.

      Charles M. Jefferson, Law Office of Charles M. Jefferson, San Antonio, for Appellant.
    David L. Lebas, Gwinn & Roby, Amarillo, for Appellee.
    Before JOHNSON, C.J., and QUINN and REAVIS, JJ.
   Opinion

BRIAN QUINN, Justice.

Robert Wayne Veigel (R.W.) appeals from a summary judgment in favor of Amarillo National Bank (ANB). Via four issues, he contends that the trial court erred in granting summary judgment based on the statute of limitations which prevented him from 1) pursuing his counterclaims and 2) requesting an accounting. We affirm.

Background

The dispute before us concerns various estates, trusts, and management agreements. Charles R. Veigel died (in 1967) leaving a wife (Ardella), two children (Robert and Mabel) and a will. R.W. is the grandchild of Charles.

Through his will, Charles “devise[d] and bequeath[ed]” to Robert “for and during his lifetime” various specific “lands and premises ... for and during his life only, ... to have the right of possession, use and occupancy of said lands and the proceeds from the rents and revenues thereof ... during his lifetime.” A like bequest in other specific land was given to Mabel “for and during her lifetime” as well. Next, Charles named his grandchildren and great-children as remaindermen. Yet, to the extent that a remainderman was under the age of 25 when his or her respective interest accrued, he also directed that it be held in trust until the beneficiary became 25, and designated ANB the trustee of the trust until that time.

Again, Charles died in 1967 and was survived by his wife Ardella, Robert, Mabel, and various grand and great-grandchildren, including R.W. Thereafter, in 1968, Ardella created two inter vivos trusts, naming ANB and Robert as trustees. Through the instrument forming trust No. 1, she designated Robert as beneficiary, while Mabel was designated beneficiary of trust No. 2. Furthermore, each beneficiary was vested with the right to the net income, during their “lifetime,” of various properties forming the corpus of their respective trust. Ardella’s grand and great-grandchildren were designated the remaindermen.

In 1968, Ardella executed one other agreement pertinent to this appeal. The parties to it were Ardella as well as Mabel, Robert, the Ardella trusts Nos. 1 and 2, and ANB. Through it, ANB and Robert obtained the authority to manage the interests of the named parties in the realty bequeathed by Charles to Robert and Mabel as well as that held in Ardella’s two inter vivos trusts. The agreement was to remain binding through the end of the existing crop year “or the death of the earlier to die of Robert ... and Mabel.... ” Moreover, upon the death of both or either Robert or Mabel, their respective remaindermen were given the option to “continue this arrangement for a specified period.”

The parties operated under the foregoing management agreement for some time. Eventually, however, and after the death of Ardella in 1974 and Robert in 1998, discord began to develop between R.W. and ANB. The discord was made manifest in 1994 when R.W. raised questions regarding whether ANB received trustee fees to which it was unentitled; R.W. queried whether ANB was not entitled to the fees because Charles actually granted Robert and Mabel a life estate in the realty mentioned in his will as opposed to a life interest in a trust. According to R.W., ANB had received and held the realty as if it was the corpus of a trust which it had no right to do under Charles’ will.

Several years later, that is, in 1998, ANB sued to be removed as trustee of the Ardella trust No. 2 and of the trust purportedly created under Charles’ will and of which Robert and Mabel were beneficiaries. R.W. answered with a motion to transfer venue, a general denial, and a specific denial wherein he alleged that he “denies that [ANB] should be removed as Trustee at this time, in that there is a question as to acts of the Trustee under Ardella[’s] ... Intervivos Trust No. 2” and “under the estate of Charles.... ”

In July of 1999, R.W. later amended his answers to include a counterclaim seeking damages and an accounting from ANB. Thereafter, ANB moved for summary judgment (which motion was supplemented several times) contending that limitations had expired upon those claims founded upon breached fiduciary duty and that no evidence existed supporting the allegation of mismanagement. So too did R.W. seek summary judgment. Through his motion, he asked for judgment declaring that the interests bequeathed to Mabel and Robert via Charles’ will were actually life estates, as opposed to a life interest in a trust. The trial court granted ANB’s “First Summary Judgment Motion, as amended and supplemented,” and denied that of R.W. After his motion for new trial was overruled by operation of law, R.W. appealed.

Issue Three-Life Estate or Trust Interest

Issue three affects our resolution of other issues raised by R.W. So, we address it first. Furthermore, under it, R.W. contends that the interests bequeathed by Charles to Robert and Mabel were not interests in a trust for the life of those two individuals. That is, according to R.W., the provision did not create a trust but instead granted the interests free of any trust. We sustain the point.

It is settled that in construing a will, the court must focus on the testator’s intent. San Antonio Area Foundation v. Lang, 35 S.W.3d 636, 639 (Tex.2000); In re Dillard, 98 S.W.3d 386, 391-92 (Tex.App.-Amarillo 2003, pet. denied). Furthermore, that intent is drawn from the will, not the will from the intent. San Antonio Area Foundation v. Lang, 35 S.W.3d at 640; In re Dillard, 98 S.W.3d at 391-92. In other words, the testator’s intent must be discovered from the language found within the four corners of the will and, the focus lies not upon what the testator intended to write, but rather the meaning of the words actually written. San Antonio Area Foundation v. Lang, 35 S.W.3d at 639; In re Dillard, 98 S.W.3d at 391-92. Nevertheless, where words are open to more than one construction, evidence of the testator’s situation, the surrounding circumstances, and like indicia which enable the court to place itself in his shoes at the time the document was executed may be admissible. San Antonio Area Foundation v. Lang, 35 S.W.3d at 639. This is so because they may facilitate the determination of intent at that time. But, again, this exception applies only when words are susceptible to more than one construction. San Antonio Area Foundation v. Lang, 35 S.W.3d at 641; In re Dillard, 98 S.W.3d at 391-92. If they are not, then the court can look to nothing other than the face of the instrument. In re Dillard, 98 S.W.3d at 391-92.

As previously mentioned, Charles devised to Robert and Mabel “for and during [their] lifetime” various “lands and premises ... for and during [their] life only ... to have the right of possession, use and occupancy of said lands and the proceeds from the rents and revenues thereof ... during [their] lifetime.” Nothing was said in this passage about a trustee gaining the rights to possess, use and occupy the property on behalf of them and during their life. Rather, Charles expressly gave those rights to Robert and Mabel. Moreover, like words were used elsewhere in the will. For instance, in disposing of the remainder interest, Charles alluded to 1) the “real property described in the . preceding sections FIFTH and SIXTH in which my son or daughter ... held a life estate,” 2) “all of the property above described in which my son, Robert ..., is granted a life estate,” and 3) “all of the property above described in which my daughter, Mabel ..., is granted a life estate.” (Emphasis added).

Next, that Charles knew how to create a trust when he so desired is obvious from other provisions of the will. For instance, not only did he expressly create a charitable trust but also trusts to hold the interests remaining after the termination of the life estates granted Robert and Mabel. That is, he directed that the remainder interests in those properties were to go to various grand and great-grandchildren of Charles. However, if any of those grand or great-grandchildren were “less than twenty-five ... years of age,” then the respective interest would “pass to and vest in AMARILLO NATIONAL BANK, as Trustee, to be held and used for the benefit of such remainderman ... until such beneficiary reaches the age of twenty-five....”

Thus, from the face of the will itself we see various key indicia. First, in making the bequests to Robert and Mabel, Charles said nothing about placing the life interests in trust for their benefit. Instead, his words were quite clear and unambiguous. They specified that Robert and Mabel were being “granted a life estate.” Second, when he desired to place an interest in trust, he did just that in a clear and unambiguous way. So, in view of the language appearing in his will and the plain, ordinary meaning we assign to it, Steger v. Muenster Drilling Co., Inc., 134 S.W.3d 359, 372 (Tex.App.-Fort Worth 2003, pet. denied) (stating that the words of a will must be given their plain meaning), we cannot but hold that Charles intended that the property interests he gave to Robert and Mabel were to be held free of any trust.

And, our conclusion is not affected by that language in paragraphs five and six of the will wherein Charles discussed who was to have the right to execute mineral leases. Through it, he explained that neither Robert nor Mabel were to have that right. Instead, his remaindermen were to enjoy it, as evinced by his statement that “[d]uring the life of Robert ... [and Mabel] ... the then living adult remainder-men ... together with AMARILLO NATIONAL BANK, Trustee, but without the joinder of Robert [or Mabel] ... shall have the exclusive right to execute and deliver oil, gas or mineral leases,.... ” These words say nothing more than the remain-dermen have the sole right to sever the minerals from the surface. And, to the extent that an adult remainderman may nonetheless be under 25 years old, ANB, as trustee, shall also have the right to do so on their behalf. There is no ambiguity. Nor does the passage create ambiguity elsewhere in the will.

Given our construction of the will, we conclude, as a matter of law, that R.W. was entitled to a summary judgment declaring that Charles granted the life estates to Robert and Mabel free of trust. And, our judgment will so reflect.

Issues One, Two, and Four-Statute of Limitations

In his first and second issues, R.W. claims the trial court erred in granting summary judgment because his claim to recover administrative fees paid to ANB with respect to the life estates and to obtain an accounting were not barred by limitations. In his fourth issue, he asserts that his claim for damages also remained viable. We overrule the issues.

Through his live pleading, R.W. contended that ANB breached various fiduciary duties related to its post as trustee under Charles’ will, as trustee of Ardella’s inter vivos and testamentary trusts, as executor of the estates of Charles and Ardella, and as operator under the management agreement. Due to these purported breaches of trust, R.W. believed himself entitled to damages, the return of fees paid to ANB, and an accounting of all income and expenditures made by ANB while acting in a fiduciary capacity.

Disgorgement of Fees

According to R.W., the trial court erred in concluding that limitations barred his claim to recover the fees paid to ANB for acting as trastee over the life estates granted Robert and Mabel under Charles’ will. This was allegedly so because § 114.061(b) of the Texas Property Code permitted such a recovery. The issue, however, is moot.

As illustrated by the wording of § 114.061(b), the statute concerns fees paid a trustee. Moreover, not only is the provision found in that section of the Property Code concerning trusts, but also its application is limited only to express trusts. See Tex. PROp.Code Ann. § 111.006 (Vernon 1995) (describing the “trusts” to which the subtitle, wherein § 114.061 is found, applies); Id. § 111.003 (defining the word “trust,” for purposes of the subtitle, as an “express trust only”). So, in view of our previous holding that the grant by Charles to Robert and Mabel did not create a trust, we must conclude that R.W. cannot invoke § 114.061(b) to recoup administrative fees allegedly paid ANB.

Accounting

Next, the trial court purportedly erred in holding that limitations barred his action for accounting given the wording of § 113.151(a) of the Property Code. The latter obligates, under certain circumstances, a trustee to account for all transactions “since the last accounting or since the creation of the trust....” Tex. PROP. Code Ann. § 113.151(a) (Vernon Supp. 2004-05). And, since no accounting allegedly had been provided by ANB since the inception of any trust, limitations did not free the bank from accounting for all transactions since the trusts were created. Yet, the record illustrates that in attempting to avoid summary judgment below, R.W. simply contended that because the estates of Charles and Ardella had yet to be closed, limitations had not begun to run. Nothing was said about § 113.151(a) of the Property Code or its effect, if any, on the trusts at bar or ANB’s entitlement to summary judgment.

Our Supreme Court has declared, via Texas Rule of Civil Procedure 166a(c), that “ [Tissues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal.” Tex.R. Civ. P. 166a(c); accord Burnam v. Patterson, 119 S.W.3d 12, 15 (Tex.App.-Amarillo 2003, pet. denied) (so .holding). Since R.W. failed to expressly urge, before the trial court, § 113.151(a) as a ground for defeating summary judgment, that ground cannot serve as a basis to secure reversal on appeal. In short, the contention was waived. Dubose v. Worker’s Medical, P.A., 117 S.W.3d 916, 920 (Tex.App.-Houston [14th Dist.] 2003, no pet.).

Damages

Next, R.W. proffers two reasons purportedly illustrating why the trial court erred in holding that limitations barred his claim for damages. They involve § 16.069 of the Texas Civil Practice and Remedies Code and the theory of continuing tort. We initially address the former.

§ 16.069

Per § 16.069, one may assert as a counterclaim a cause of action that previously fell victim to limitations. To do so, however, the counterclaim must 1) arise from the same transaction or occurrence underlying the original claim, Tex. Civ. PRAC. & Rem.Code Ann. § 16.069(a) (Vernon 1997), and 2) be filed no later than 30 days after the date on which the party’s answer is required. Id. § 16.069(b). All agree that the first document entitled “counterclaim” and submitted by R.W. was filed long after the expiration of the time period described in § 16.069(b). Yet, this does not matter, according to R.W., for he filed other pleadings within the applicable window which purportedly included a counterclaim. The pleadings in question were his answers to ANB’s original petitions, and the allegation supposedly satisfying the prerequisites of a counterclaim consisted of the averments wherein he “denie[d] that Plaintiff should be removed as Trustee at this time, in that there is a question as to acts of the Trustee under the estate of Charles R. Veigel” and the “Ardella Veigel Inter Vivos [sic] Trust No. 2.”

Rule 47 of the Texas Rules of Civil Procedure describes the components of a counterclaim as 1) a short statement of the cause of action sufficient to give fair notice of the claim involved, 2) in all claims for unliquidated damages, only the statement that the damages sought are within the jurisdictional limits of the court, and 3) a demand for judgment for all the other relief to which the party deems himself entitled. Comparison of R.W.’s averments to the standard set by Rule 47 immediately reveals that none of the elements of Rule 47 were met. There is no general prayer for relief, no allegation that the damages were within the trial court’s jurisdictional limits, and no description of any particular cause of action. All R.W. did was deny ANB’s allegation that it should be allowed to resign as trustee. And, he based that denial upon the mere suggestion that there were “questions” about ANB’s “acts.” What the “questions” or “acts” were, what rights or interests of R.W., if any, were involved, or the injury, if any, supposedly suffered by R.W. due to the unspecified acts went unmentioned.

While Texas follows the theory of “notice pleadings,” Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 896 (Tex.2000), the concept still requires the litigant to provide fair notice of the claims involved to the accused. Tex.R. Civ. P. 47(a); In re Marriage of Richards, 991 S.W.2d 32, 35 (Tex.App.-Amarillo 1999, pet. dism’d). And, to be fair, the allegations must be sufficient to inform a reasonably competent attorney of the nature and basic issues of the controversy and of the potentially relevant evidence. In re Marriage of Richards, 991 S.W.2d at 35. Merely stating that ANB should not be allowed to resign because of unspecified “questions” created by unspecified “acts” hardly falls within that ambit.

More importantly, the record discloses that a discovery dispute arose after R.W. filed the answer containing the language that he now characterizes as a counterclaim. It involved ANB’s desire to conduct discovery upon the allegation and determine the nature of the “questions” alluded to by R.W. The trial court subsequently convened a hearing to resolve the matter. During same, and in attempt to bolster his effort to resist the discovery, R.W. represented to the trial court, through his counsel of record, that he “... filed nothing seeking affirmative relief from the Bank nor has any respondent ... to my knowledge,” and “... there is no affirmative relief sought from the Bank.” So too did he inform the trial court (again through his attorney) that he was quite willing to execute a judgment permitting ANB to resign.

Given the oblique nature of the allegations relied upon by R.W., their failure to satisfy the requirements of Rule 47, and R.W.’s own representation to the trial court made in effort to defeat discovery, we are unable to say that the original answers of R.W. included counterclaims. As recognized in Eikon King St. Manager, L.L.C. v. LSF King St. Manager, L.L.C., 109 S.W.3d 762 (Tex.App.-Dallas 2003, pet. denied), simply alleging in one sentence that a litigant’s conduct violated the covenant of good faith and fair dealing did not give fair notice sufficient to comply with Rule 47. Id. at 771. The same is no less true here. Stating that “questions” exist regarding “acts” of a party would not afford a reasonable attorney fair notice of the claims involved or potentially relevant evidence necessary to defend against them. Thus, and as a matter of law, the trial court did not err in rejecting R.W.’s contention that application of § 16.069(b) of the Civil Practice and Remedies Code barred entry of summary judgment.

Continuing Tort

Generally, a cause of action accrues when a wrongful act causes injury. Murray v. San Jacinto Agency, Inc. 800 S.W.2d 826, 828 (Tex.1990); Horseshoe Bay Resort Sales Co. v. Lake Lyndon B. Johnson Improvement Corp., 53 S.W.3d 799, 812 (Tex.App.Austin, pet.denied). Furthermore, limitations begin to run when the cause of action accrues. Horseshoe Bay Resort Sales Co. v. Lake Lyndon B. Johnson Improvement Corp., 53 S.W.3d at 812. Yet, this is not true if the act involves a continuing tort. Id. The latter arises when the wrongful conduct is repeated over a period of time. Id. In such a situation, each act creates a separate cause of action, and the cause does not accrue, for purposes of limitations, until the misconduct ends. Dickson Constr., Inc. v. Fidelity & Deposit Co., 960 S.W.2d 845, 851 (Tex.App.-Texarkana 1997, no pet.). Nonetheless, care must be taken to distinguish between 1) repeated injury proximately caused by repetitive wrongful or tortuous acts and 2) continuing injury arising from one wrongful act. While the former evinces a continuing tort, the latter does not. Id. (stating that for a continuing tort to arise there must be both continuing misconduct and additional injury). For instance, a continuing tort does not arise from one’s copyrighting a song that another wrote and then repeatedly selling the song and reaping profit from each sale. Daboub v. Gibbons, 42 F.3d 285, 290-91 (5th Cir.1995). While it may be said that the injury continues with each sale and receipt of a royalty, the act that caused the continuing injury was the one act of copyrighting the song. Id.

Here, it is alleged that the collection of fees by ANB as the purported trustee of a non-existent trust evinced a continuing tort. While the receipt of those fees, and their concomitant reduction in funds payable to Robert and Mabel, may evince a continuing injury, that injury arose from one act, that act being ANB’s assumption of control as trustee over the property granted Robert and Mabel for their life. And, more importantly, that act occurred in 1968 when ANB began exercising that control. In other words, while one may contend that the injury was continuing, it arose from a single act of usurpation. In that light, the circumstances before us liken to those in Daboub. The individuals truly entitled to the royalties may have suffered a continuing injury each time the royalties were paid to another, but that injury arose because of one act, i.e. someone else copyrighting the song. Similarly, while Robert and Mabel may have been entitled to the monies which ANB purportedly received as its trustee fees, the injury arose from ANB’s initial assumption of control over their property in 1968. Consequently, we do not have a continuing tort before us, and the trial court did not err in rejecting the argument below.

Finally, R.W. suggests, in the alternative, that even if the continuing tort theory did not apply, he was entitled to collect damages for the four years preceding the date he filed his actual counterclaim in 1999. Aside from the fact that the argument is both conclusory and bereft of citation to legal authority, it is incorrect. Again, the act giving rise to the injury occurred in 1968. Furthermore, the record illustrates that R.W. obtained knowledge of the supposed impropriety of ANB’s conduct by March of 1994. Assuming arguendo that the limitations period was four years (as R.W. suggests), then he was obligated to sue ANB within four years of March 1994. Yet, his counterclaim was not filed until 1999. Thus, it was time-barred.

We modify the summary judgment to declare that the will of Charles Veigel granted Robert Veigel and Mabel Walter Rogers a life estate, free of trust, in the properties bequeathed to them. In all other respects, the summary judgment is affirmed.

On Motion for Rehearing

PER CURIAM.

Pending before us is the motion for rehearing of Mabel Walter Rogers, Larry Frank Walter, co-trustee, Robert Wayne Veigel, co-trustee, Dorothy Ann Veigel Oswald, and Jo Ann Veigel Eudy (collectively referred to as the Veigels). Though the Veigels asserted several grounds in their motion, we address only one. It concerns our holding that consideration of § 114.061(b) of the Texas Property Code was moot. We so held because the provision encompassed trusts, not life estates, and the wills in question created life estates. Yet, on rehearing, the Veigels contend that they were also attempting to recoup trustee’s fees received by the bank from various inter vivos trusts. While this may have been true when the parties were in the trial court, it is not true at bar. Their first issue discussed § 114.061(b) in relation to the testamentary trust supposedly created by Charles Veigel. Nothing was said about the inter vivos trusts. Having omitted that argument from their appellants’ brief, they cannot now raise it on rehearing. Story Services, Inc. v. Ramirez, 863 S.W.2d 491, 505-06 (Tex.App.-El Paso 1993, writ denied) (holding that new issues or points of error cannot be raised on a motion for rehearing).

Accordingly, the motion for rehearing is denied.

      . According to an "Order on Status of Case” rendered by the trial court on April 14, 2003, all other Respondents/Appellants filed non-suits in the above-referenced matter. Therefore, their claims against ANB had "been dropped from this cause.”

      . The charitable trust is irrelevant to the issues before us. So, we will not address it.

      . The language of which we speak, according to ANB, created a fact question as to Charles’ intent regarding the placement of the life estates in trust.

      . Section 114.061(b) provides that "[i]f the trustee commits a breach of trust, the court may ... deny him all or part of his compensation.” Tex Prop.Code Ann. § 114.061(b) (Vernon 1995).

      . R.W. suggests that because ANB sought discovery to uncover the particular "questions” and "acts,” it was afforded sufficient notice. We disagree. There is a difference between a pleading that gives an opponent notice of the cause of action and a cautious attorney seeking to conduct discovery because of vague, nondescript allegations. The focus lies on the provision of notice to an opponent, not on motivating an opponent to act. Moreover, the applicable standard involves what a "reasonable,” as opposed to a particular, attorney would have gained from the words of the pleading. A reasonable attorney would have garnered little to no information about the nature of R.W.'s supposed claims and injury from the allegations R.W. uttered in his original answers.

      . Chief Justice Johnson did not participate in this opinion.