text:
    Debbie BYRD, Lois Stafford and Tabitha Stewart v. STATE of Tennessee
    Court of Appeals of Tennessee, Western Section, at Jackson.
    Assigned on Brief July 14, 2003.
    April 19, 2004.

      Larry H. Montgomery, Memphis, Tennessee, and Venita Marie Martin, Memphis, Tennessee, for the appellants Debbie Byrd, Lois Stafford, and Tabitha Stewart.
    Nancy M. Maddox, Memphis, Tennessee, for the appellee State of Tennessee.
   OPINION

HOLLY M. KIRBY, J.,

delivered the opinion of the court,

in which W. FRANK CRAWFORD, P.J., W.S., and ALAN E. HIGHERS, J., joined.

This appeal involves the jurisdiction of the Claims Commission. The complainants were independent contractors hired to clean a medical clinic operated by the University of Tennessee. The complainants alleged that they were subjected to sexual harassment by one of the clinic’s physicians, and that when they complained about the harassment to the clinic’s site director, they were subjected to retaliation and further sexual harassment. The University of Tennessee subsequently terminated the contract. The complainants filed suit in the Claims Commission under numerous legal theories. The University of Tennessee filed a motion to dismiss, arguing lack of subject matter jurisdiction and failure to state a claim. The Claims Commission granted the motion except as to the claim of one of the complainants for breach of contract, and made its order final pursuant to Rule 54.02, Tennessee Rules of Civil Procedure. We reverse in part, finding that the Claims Commission had jurisdiction over the complainants’ claims for malicious harassment under Tenn.Code Ann. § 9-8-307(a)(l)(N), and affirm the remainder of the decision of the Claims Commission.

Byrd Janitorial was a business owned and operated by Complainant/Appellant Debbie Byrd (“Byrd”). Byrd, d/b/a Byrd Janitorial, entered into a four-year contract with Defendant/Appellee University of Tennessee College of Medicine (“University”) to provide cleaning and janitorial services to the Tipton Family Practice Clinic (“Clinic”) in Covington, Tennessee. Complainants/Appellants Lois Stafford (“Stafford”) and Tabitha Stewart (“Stewart”) were employed by Byrd Janitorial and also provided services at the Clinic pursuant to the agreement between Byrd Janitorial and the University. The contract provided that it could be terminated only for cause. At the University’s request, Byrd Janitorial ended its contracts with other clients, so that the Clinic was Byrd Janitorial’s only client.

Byrd, Stafford and Stewart (collectively “Byrd employees”) allege that, during the course of performance of the cleaning contract, Dr. Kenneth Berry (“Berry”), a physician employed by the University to work at the Clinic, sexually harassed and assaulted each of them on numerous occasions. The Byrd employees allege that they reported Berry’s misconduct to several employees of the University who worked at the Clinic, including the Clinic’s site director, Dr. Laura Travernier (“Travernier”). The Byrd employees allege that Travernier also engaged in inappropriate sexual behavior. Finally, the Byrd employees complained about this misconduct to the Chair of the Family Practice Clinics and to a University administrator.

The Byrd employees alleged that their complaints only resulted in acts of retaliation. Stafford was fired, ordered to leave the building, and told that she would be jailed if she returned. Byrd was told she could clean the Clinic after working hours only. Byrd alleged that, on one occasion, she arrived at the Clinic for work and Berry called a security guard and the sheriffs department. On that occasion, Berry told the security guard and the law enforcement officer that Byrd had been fired and that she was now breaking in and vandalizing the Clinic. Based on Berry’s statements, the law enforcement official detained Byrd for questioning and threatened to arrest her. A few days later, Travernier terminated the University’s contract with Byrd Janitorial. Byrd was forced to leave the Clinic immediately and was not permitted to collect Byrd Janitorial’s equipment.

The Byrd employees filed a complaint with the Claims Commission against the University, alleging negligent supervision leading to sexual harassment and battery, negligent failure to supervise Berry regarding the laws against sexual harassment, negligent retention of an employee, negligent creation or maintenance of a dangerous condition, defamation, employment that constitutes a nuisance, negligent failure to prevent sexual assault and battery, negligent failure to maintain a workplace free of inappropriate sexual conduct, negligent deprivation of several statutory rights, outrageous conduct, unconstitutional taking of private property, and breach of contract. The University filed a motion to dismiss under Rule 12.02 of the Tennessee Rules of Civil Procedure, arguing for dismissal of each claim, some for lack of subject matter jurisdiction and others for failure to state a claim. The Claims Commission granted the motion to dismiss as to each allegation except for the breach of contract claim asserted by Debbie Byrd. From that order, the Byrd employees now appeal.

We review a dismissal by the Claims Commission under Rule 12.02 for lack of subject matter jurisdiction and for failure to state a claim de novo with no presumption of correctness. Northland Ins. Co. v. State, 33 S.W.3d 727, 729 (Tenn.2000); Stein v. Davidson Hotel Co., 945 S.W.2d 714, 716 (Tenn.1997). In considering a motion to dismiss for failure to state a claim, the court must view the complaint liberally in favor of the plaintiff, accepting all of the allegations as true, because such a motion tests only the legal sufficiency of the complaint, not the persuasiveness of the plaintiffs proof. Stein, 945 S.W.2d at 716. The plaintiffs complaint should be dismissed only if the plaintiff can prove no set of facts that would entitle the plaintiff to relief.

The Tennessee Constitution permits law suits against the State only “in such manner and in such courts as the Legislature may by law direct.” Tenn. Constitutionality. art. I, § 9; Northland, 33 S.W.3d at 729. Pursuant to this, the Tennessee General Assembly created the Tennessee Claims Commission, which has exclusive jurisdiction to hear “monetary claims against the state based on the acts or omissions of ‘state employees.’ ” Tenn. Code Ann. §§ 9-8-301, 9-8-307(a)(l) (1999 & Supp.2003). However, its jurisdiction is limited to those claims outlined in section 9-8-307(a)(l) of the Tennessee Code Annotated. Stewart v. State, 33 S.W.3d 785, 790 (Tenn.2000). The jurisdictional provisions must be interpreted liberally so as “to implement the remedial purposes of’ the statute. TenmCode Ann. § 9-8-307(a)(3) (1999 & Supp.2003); Stewart, 33 S.W.3d at 791. We will first set out the pertinent provisions of the statute outlining the jurisdiction of the Claims Commission, and then discuss the claims raised in this appeal.

The jurisdiction of the Claims Commission is set forth in Tennessee Code Annotated § 9-8-307. The pertinent provisions of this statute are as follows:

9-8-307. Jurisdiction — Claims— Waiver of actions — Standard for tort liability — Damages—Immunities— Definitions — Transfer of claims.— (a)(1) The commission or each commissioner sitting individually has exclusive jurisdiction to determine all monetary claims against the state based on the acts or omissions of “state employees” ... falling within one (1) or more of the following categories:
(B) Nuisances created or maintained;
(C) Negligently created or maintained dangerous conditions on state controlled real property. The claimant under this subsection must establish the foreseeability of the risks and notice given to the proper state officials at a time sufficiently prior to the injury for the state to have taken appropriate measures;
(E) Negligent care, custody and control of persons;
(N) Negligent deprivation of statutory rights created under Tennessee law, except for actions arising out of claims over which the civil service commission has jurisdiction. The claimant must prove under this subdivision that the general assembly expressly conferred a private right of action in favor of the claimant against the state for the state’s violation of the particular statute’s provisions;
(R) Claims for libel and/or slander where a state employee is determined to be acting within the scope of employment;
(V) Unconstitutional taking of private property, as defined in § 12-1-202, including intentional state governmental action resulting in a taking other than the taking of real property and real property rights for the state’s system of highways or the state’s system of interstate highways ....

TenmCode Ann. § 9-8-307(a)(l)(B), (C), (E), (N), (R) & (V) (1999 & Supp.2003). We will discuss each of the claims that the Byrd employees assert were erroneously dismissed.

The Byrd employees’ complaint alleged that Berry’s “employment constituted a nuisance,” which the University created or maintained. The Byrd employees argue that the Claims Commission has jurisdiction under section 9-8-307(a)(l)(B), which states that the Commission has jurisdiction to determine claims involving “[n]uisances created or maintained.” Tenn.Code Ann. § 9-8-307(a)(l)(B) (1999 <& Supp.2003). The Byrd employees argue that, under this statute, “nuisance” extends beyond the disturbance of a person’s use of property, and that the Claims Commission therefore had jurisdiction to hear the claim because they had alleged Berry’s employment was a nuisance to them. The Byrd employees cite no authority for this assertion. The Claims Commission held that the nuisances referred to in this statute are limited to those “involv[ing] the annoyances or disturbance of one’s free use of property.” We agree. This issue is without merit.

The Byrd employees also alleged in the complaint that the University “negligently created or maintained dangerous conditions at the Clinic.” They assert that the Claims Commission has jurisdiction pursuant to section 9-8-307(a)(l)(C), which grants the Claims Commission jurisdiction to hear claims for injuries resulting from “[njegligently created or maintained dangerous conditions on state controlled real property.” Tenn.Code Ann. § 9-8-307(a)(1)(C) (1999 & Supp.2003). The Byrd employees argue that Berry’s continued employment created a dangerous condition for all women working at the clinic. The Claims Commission held that the facts alleged did not implicate section 9-8-307(a)(1)(C), reasoning that the case law establishes that section as codifying the common law principles of premises liability, that is, the common law obligation of the owner or occupier of land, and found that the facts presented by the Byrd employees were not encompassed by that statutory provision.

To determine whether the Claims Commission has jurisdiction under section 9-8-307(a)(l)(C), the principles of premises liability are employed. See Dobson v. State, 23 S.W.3d 324, 330 (Tenn.Ct.App.1999). Premises liability cases generally consider a dangerous condition to the land to be a physical characteristic of the land that creates a danger to persons on the land who do not own the land. See Eaton v. McLain, 891 S.W.2d 587, 593-4 (Tenn. 1994). The Byrd employees cite no Tennessee authority supporting them assertion that sexual harassment by an employee on state-controlled property can constitute a “dangerous condition” under section 9-8-307(a)(1)(C). We affirm the holding of the Claims Commission on this issue.

In the complaint, the Byrd employees alleged that the University had negligently failed to supervise its employees in such a way as to prevent the alleged sexual harassment and assault, had failed to supervise adequately regarding the laws against sexual harassment, had failed to prevent sexual assault, had failed to maintain a workplace free of inappropriate sexual conduct, and had negligently retained Berry. The Byrd employees argue that the Claims Commission has jurisdiction over their claims of negligent supervision and retention of employees pursuant to section 9-8-307(a)(l)(E), which states that the Claims Commission has jurisdiction over monetary claims against the State due to the “[njegligent care, custody and control of persons.” TenmCode Ann. § 9-8-307(a)(l)(E) (1999 & Supp.2003). The Byrd employees argue that because employers have a duty to control their employees, the Claims Commission had jurisdiction to hear the claim of negligent supervision under Stewart v. State, 33 S.W.3d 785 (Tenn.2000). (Vol. 1 at 43-44). In Stewart, the Tennessee Supreme Court ruled that under section 9-8-307(a)(l)(E), “care, custody, and control” is not limited to persons confined in institutions maintained by the State, but rather may also include a person whom a State official has a legal duty to control, even if the person is not actually within the control of the State official at the time of the incident. See Stewart, 33 S.W.3d at 792. In Steivart a county deputy sheriff filed a claim with the Claims Commission for injuries suffered while aiding a state trooper at the scene of a crime. The claimant county deputy sheriff argued that the state trooper was negligent in his control of the county deputies, including the claimant and the other deputies at the scene. See id. at 789. The county deputies, including the claimant, had moved the vehicle of a person arrested by the state trooper, and the claimant was injured as he started to walk back across the road. Id. at 788. The Tennessee Supreme Court reviewed the existing law, noting two categories of claimants who could recover: “An examination of the cases dealing with this grant of jurisdiction ... makes clear that liability may be imposed for injuries to persons confined in penal institutions, residences, or health facilities maintained by the state- [Liability may [also] be imposed for injuries to third persons caused by those persons .... ” Id. at 792. The court then expanded the scope of the Claims Commission’s jurisdiction under section 9 — 8—307(a)(1)(E): “[I]t is difficult to conceive that the legislature intended to deny jurisdiction in cases where negligent control of a person by a state employee resulted in injury, even though the injured person was not actually within the care or custody of the state employee.” Id. It found, however, that the claimant had not demonstrated that the state trooper had a legal duty to control the county deputies under a statute, under the common law, or by virtue of having assumed such a duty. Id. at 793-94.

All of the cases cited interpreting section 9 — 8—307(a)(1)(E), including Stewart, involve an alleged duty by a state official to exert physical control of a person. In contrast, the Byrd employees allege that the Clinic failed to discipline Berry or terminate his employment, i.e. affect his legal status as an employee rather than physically controlling him. The Byrd employees cite no cases which stretch the language in section 9 — 8—307(a)(1)(B) to include such a situation, and we decline to do so. We affirm the decision of the Claims Commission on its jurisdiction under this section.

In the complaint, the Byrd employees also assert a violation of the prohibition against malicious harassment, pursuant to section 4-21-701 of the Tennessee Code Annotated. The Byrd employees argue that the Claims Commission had jurisdiction over this claim under section 9-8-307(a)(l)(N) of the Tennessee Code Annotated, which states that the Claims Commission has jurisdiction to determine a claim against the State for the negligent deprivation of a statutory right. The section requires that the claimant show that the legislature expressly conferred a private right of action against the State. Tenn.Code Ann. § 9-8-307(a)(l)(N) (1999 & Supp.2003). The Claims Commission found that it lacked jurisdiction over this claim, holding: “There is no express private right of action by an individual against the state conferred by this statute.”

Section 4-21-701 expressly provides for a private right of action, stating:

Creation of civil action — Damages.—(a) There is hereby created a civil cause of action for malicious harassment.
(b) A person may be liable to the victim of malicious harassment for both special and general damages, including, but not limited to, damages for emotional distress, reasonable attorney’s fees and costs, and punitive damages.

Tenn.Code Ann. § 4-21-701 (1998). This section does not state expressly that it includes a claim against the State. Section 4-21-701, however, is a part of the Tennessee Human Rights Act. Section 4-21-102, the definition provision of the Human Rights Act, expressly defines the term “person” as including a government agency. Tenn.Code Ann. § 4-21-102(14) (1998). The term “government agency” has been interpreted to include a State university. Roberson v. Univ. of Tenn., 912 S.W.2d 746, 747-48 (Tenn.Ct.App.1995). Thus, since a State university is considered a “person” under the Human Rights Act, and section 4-21-701 expressly grants a right of action against such a “person” for malicious harassment, we conclude that the Claims Commission has jurisdiction over this claim pursuant to section 9-8-307(a)(l)(N). See Tenn.Code Ann. § 9-8-307(a)(l)(N) (1999 & Supp. 2003); Washington v. Robertson County, 29 S.W.3d 466, 475 (Tenn.2000) (holding governmental entity liable for malicious harassment of its employee under doctrine of respondeat superior). See also Boyd v. Tenn. State Univ., 848 F.Supp. 111, 114 (M.D.Tenn.1994) (interpreting Roberson v. Univ. of Tenn., 1988 WL 74236, at *1 (Tenn.Ct.App. July 19, 1988) as holding that actions against State may be maintained in either Claims Commission or Chancery Court); Roberson v. Univ. of Tenn., 1988 WL 74236, at *1-*3 (Tenn.Ct.App. July 19,1988).

In the complaint, the Byrd employees also assert claims based on the violation of a number of other statutes. The Claims Commission found that none of those statutes expressly conferred a private right of action against the State. The Byrd employees’ brief does not address these findings. The Byrd employees appear to argue that the Claims Commission erred because negligence, harassment, assault, and battery are tort actions created by the State, and because the statute providing for a one-year statute of limitations on actions for libel, personal injury, and false imprisonment purportedly create a private right of action against the state. These arguments are without merit.

The complaint also alleges that Berry’s statements to the security guard and to members of the sheriffs department regarding Debbie Byrd constituted defamation. The Claims Commission has jurisdiction to hear “claims for libel and/or slander where a state employee is determined to be acting within the scope of employment.” Tenn.Code Ann. § 9-8-307(a)(l)(R) (1999 & Supp.2003). The Claims Commission dismissed the claim of defamation because there was no showing of injury to complainants’ reputation and because no communication had been made to anyone other than law enforcement officials.

On appeal, Byrd argues that the Claims Commission applied the wrong standard of review in that she was not required to prove injury to reputation at this stage of the litigation. She argues that, since this appeal involves a Rule 12.02(6) motion to dismiss for failure to state a claim, the Claims Commission was required to accept as true the allegations of the complaint.

Although Byrd correctly notes that she is not required to prove injury to reputation in response to a Rule 12.02(6) motion to dismiss, she is, of course, required to allege injury to reputation in her complaint. Under Memphis Publishing Co. v. Nichols, one must “plead and prove injury from the alleged defamatory words.” Memphis Publ’g Co. v. Nichols, 569 S.W.2d 412, 420 (Tenn.1978); see also Pate v. Service Merchandise Co., 959 S.W.2d 569, 574 (Tenn.Ct.App.1997) (“[D]amages must be shown in all defamation cases.”). Byrd failed to do so. Therefore, we must affirm the decision of the Claims Commission dismissing this claim.

Finally, the Byrd employees allege in the complaint that the University unconstitutionally took private property by terminating the contract with Byrd Janitorial and otherwise interfering with their rights under the contract. Section 9-8-307(a)(l)(V) grants the Claims Commission subject matter jurisdiction over the “Unconstitutional taking of private property, as defined in § 12-1-202.” TenmCode Ann. § 9-8-307(a)(l)(V) (1999 & Supp. 2003). Section 12-1-202 defines private property as “real property, or improvements to real property.” Tenn.Code Ann. § 12-1-202(2) (1999). The Claims Commission held that it had no jurisdiction over this claim, as it did not involve real property. We agree, and affirm the decision of the Claims Commission to dismiss this claim.

In sum, we reverse the holding of the Claims Commission that it lacked jurisdiction under section 9-8-307(a)(l)(N) over the claim of malicious harassment. The decision of the Claims Commission is affirmed in all other respects.

The decision of the Claims Commission is affirmed in part and reversed in part as set forth above. The cause is remanded for further proceedings not inconsistent with this Opinion. Costs are taxed one-half to the appellants, Debbie Byrd, Lois Stafford and Tabitha Stewart, and one-half to appellee, State of Tennessee, for which execution may issue if necessary.

      . The Byrd employees allege Berry made inappropriate comments, such as, but not limited to, “Do fries come with that shake?”, “I’ve got something to plug you with, but it is not a vacuum cleaner,” and asking Stafford if he could give her pap smears. The Byrd employees allege he assaulted them by exposing himself to Stafford, forcing a kiss with his tongue on Stewart, touching all of the complainants on their breasts and buttocks, and touching Stafford on her genitals.

      . No issue on appeal is raised as to the breach of contract claim. Although the Claims Commission did not dismiss the contract claim, it made its order dismissing the other claims final under Rule 54.02 of the Tennessee Rules of Civil Procedure. However, when this appeal first came before us, the Claims Commission had not yet made its order final under Rule 54.02, and we were therefore presented a non-appealable order under Rule 3(a) of the Tennessee Rules of Appellate Procedure. Thus, we entered an order on November 12, 2003 holding the appeal in abeyance for thirty days and remanding the cause to the Claims Commission to determine whether to make its October 10, 2003 order final under Rule 54.02. The Claims Commission failed to respond, and we issued an opinion on December 30, 2003 dismissing this appeal. On February 12, 2004, we granted the appellants' motion to rehear, withdrawing the opinion of December 30, 2003, holding the appeal in abeyance an additional thirty days, and again remanding to the Claims Commission for consideration of whether to make its order final. Subsequently, the Claims Commission entered an order on February 20, 2004 making its October 10 order final under Rule 54.02.

      . The Byrd employees also argued in their response to the motion to dismiss that the allegation of the University’s failure to provide adequate security provided the Claims Commission jurisdiction under section 9-8-307(a)(1)(C). However, the complaint does not include allegations of failure to provide security, and the Claims Commission did not address this. To the extend that the Byrd employees include this as part of the allegation in the complaint that the University maintained dangerous conditions, it is addressed above. However, to the extent that it involves allegations not in the complaint, we will not address it in this appeal, since we are reviewing the order on a motion to dismiss under Rule 12.02, which involves only the allegations in the complaint.


source: Caselaw Access Project

author: Justice HECHT Justice O’NEILL,

license: Public Domain

text:
    REPUBLIC UNDERWRITERS INSURANCE CO., Petitioner, v. MEX-TEX, INC., Respondent.
    No. 03-0662.
    Supreme Court of Texas.
    Nov. 19, 2004.

      Robert F. Scheihing, Adami Goldman & Shuffield, Inc., San Antonio, for Petitioner.
    Robert L. Templeton, Templeton Smi-thee Hayes Heinrich & Russell,' LLP, Amarillo, for Respondent.
    Christopher W. Martin, Levon G. Hov-natanian, Martin Disiere Jefferson & Wisdom, L.L.P., Houston, for Amicus Curiae.
   Justice HECHT

delivered the opinion of the Court,

in which Chief Justice JEFFERSON, Justice OWEN, Justice WAINWRIGHT, and Justice BRISTER joined.

We must decide whether the commercial property insurer in this case breached its policy obligation to replace a damaged roof with one of “like kind and quality”, and if so, whether the insurer’s tender of partial payment of the claim avoided, on that amount, the 18% per annum delay penalty imposed by article 21.55 of the Texas Insurance Code. We reverse the judgment of the court of appeals and remand the case to the trial court for rendition of judgment.

Following a May 25, 1999 hail storm in Amarillo declared by the Texas Department of Insurance to be a weather-related “catastrophe for the purpose of claims processing”, Mex-Tex, Inc. notified its property insurer, Republic Underwriters Insurance Co., of damage to the roof of Signature Mall, a retail shopping center that Mex-Tex owned. Mex-Tex claimed that the roof had been destroyed and should be replaced. Republic immediately investigated the claim but disputed the amount of damage attributable to hail. The roof had leaked for a long time, and months before the storm Mex-Tex had obtained estimates to replace it. While Republic was still investigating the claim, it learned that Mex-Tex had retained a contractor to go ahead, without waiting on Republic, and replace the roof at a cost of $179,000 with one of the same kind, but which would be fixed to the building mechanically rather than by ballast (that is, rocks) as the old roof had been. Republic’s first response was to offer what it believed was the cost to repair the minimal hail damage, $22,000, as what it termed “partial payment” of Mex-Tex’s claim, but when Mex-Tex rejected that offer, Republic sent Mex-Tex a check on August 20, 1999, including $145,460, an amount representing what Republic’s engineer had determined was the cost of replacing the mail’s roof with an identical one, attached by ballast.

Mex-Tex returned the check. Republic re-sent it. Mex-Tex re-returned it. Republic then replied that it would hold the money until Mex-Tex accepted it, which Mex-Tex did on October 12, 2000, as partial payment of its claim. Meanwhile, Mex-Tex had sued Republic for breach of the policy and delay penalties under article 21.55. After trial to the bench, the court found that Republic’s failure to pay Mex-Tex the $179,000 was a breach of Republic’s policy obligation to replace the roof with one of “like kind and quality” — despite the fact that Mex-Tex’s cost exceeded the replacement cost of an identical roof by $33,540 — and awarded Mex-Tex that difference in damages. The court also awarded Mex-Tex, under article 21.55, 18% per annum on $179,000 from November 4, 1999, the date the court determined that Republic should have tendered that amount, which was 75 days after it tendered $145,460, to the date Mex-Tex accepted that partial payment almost a year later, and thereafter on the $33,540 difference until judgment. The court of appeals affirmed.

Republic’s policy provided that in the event of loss, one of its options was to “[rjepair, rebuild or replace the property with other property of like kind and quality”, and that it was required to pay only the cost of replacing damaged property with property “[o]f comparable material and quality”. Republic argues that it could not have breached the policy by offering to replace Mex-Tex’s roof with an identical one and refusing to pay for a more expensive one. But the trial court held that “comparable” does not mean “identical”, and found that the roof Mex-Tex installed was comparable to the one it replaced, differing only in the way it was attached to the building. We agree that the plain language of the policy neither restricted nor required Republic to pay for the cost to replace the roof with an identical one. The policy clearly allows more leeway than that. There was evidence to support the court’s finding that Mex-Tex’s new roof was within that leeway. Mex-Tex’s roofing contractor and its expert at trial both testified that the old and new roofs were comparable. The only evidence to the contrary was the difference in cost. In these circumstances, the trial court could find that Republic breached the policy by refusing to pay the cost of the new roof.

Republic argues that the delay penalty imposed by article 21.55 should have been calculated only on the $33,540 difference between the payment it tendered Mex-Tex and the full amount Mex-Tex claimed, from the date of the tender until Mex-Tex accepted it. Article 21.55, section 3(f) states that “if an insurer delays payment of a claim [longer than the prescribed period, usually 60 days, but in this case 75 days], the insurer shall pay damages and other items as provided for in Section 6 of this article.” Section 6 states:

In all cases where a claim is made pursuant to a policy of insurance and the insurer liable therefor is not in compliance with the requirements of this article, such insurer shall be liable to pay the holder of the policy, or the beneficiary making a claim under the policy, in addition to the amount of the claim, 18 percent per annum of the amount of such claim as damages, together with reasonable attorney fees. If suit is filed, such attorney fees shall be taxed as part of the costs in the case.

Article 21.55, § 1(3) defines “claim” as follows:

“claim” means a first party claim made by an insured or a policyholder under an insurance policy or contract or by a beneficiary named in the policy or contract that must be paid by the insurer directly to the insured or beneficiary.

The emphasized phrase, “that must be paid”, limits “claim” to the amount ultimately determined to be owed, which of course would be net of any partial payments made prior to that determination. This encourages insurers to pay the undisputed portion of a claim early, consistent with the statute’s purpose “to obtain prompt payment of claims made pursuant to policies of insurance.”

Mex-Tex does not disagree with this construction of article 21.55 but argues that the penalty should nevertheless be assessed if an insurer’s tender of partial payment of a claim is not unconditional. We agree. Otherwise, an insurer’s insistence on a release to which it is not ultimately entitled delays payment, again impairing the statute’s purpose. Here, the trial court found that Republic did not tender $145,460 unconditionally but “tried to enforce a full and final release of [the claim] when only a partial payment had been made.” We must, of course, accept this finding if there is any evidence to support it. The record does not reflect any release language on checks tendered by Republic or in accompanying documents. Mex-Tex cites testimony by both its president and its property manager that their “understanding” was that Republic had tendered the amount in final settlement of the claim, not as partial payment. But absent evidence that their understanding was fairly based on something Republic said or did, that understanding says nothing about Republic’s intent. Mex-Tex also cites the following:

• correspondence from Republic referring to its initial $22,000 offer as a “partial payment” and an “initial payment”, phrases Republic did not use in connection with its later tender of $145,460;
• the insurance agent’s file note stating that he had told Mex-Tex’s president immediately before the initial tender of $145,460 that “Republic ready to conclude claim”;
• contemporaneous entries in Republic’s internal loss report that it had granted “approval ... to pay claim” and “authorized [the claims representative] to settle with [Mex Tex]”;
• a letter from Republic accompanying the second tender, stating “we must respectfully deny your proof of loss since the amount is more than we have determined to be the covered loss”; and
• Republic’s letter to Mex-Tex’s attorney acknowledging return of the check, stating that it had been issued “in good faith as payment for your client’s loss”.

But none of this evidence shows any clear intent by Republic to condition its tender on a full release of Mex-Tex’s claim.

Had Mex-Tex accepted the first tender instead of returning it, and had Republic then attempted to argue that the acceptance amounted to an accord and satisfaction, it would have confronted the following rule:

The evidence must establish an assent of the parties to an agreement that the amount paid by the debtor to the creditor was in full satisfaction of the entire claim. The minds must meet and where resting in implication the facts proved must irresistibly point to such conclusion. There must be an unmistakable communication to the creditor that tender of the lesser sum is upon the condition that acceptance will constitute satisfaction of the underlying obligation. It has been said that the conditions must be made plain, definite and certain; that the statement accompanying the tender of a sum less than the contract price must be so clear, full and explicit that it is not susceptible of any other interpretation; that the offer must be accompanied with acts and declarations which the creditor is “bound to understand”.

An insurer cannot tender partial payment of a claim and then, with nothing to satisfy the rule just stated, assert that acceptance was an accord and satisfaction fully releasing the claim. In this case, it was Mex-Tex’s burden to prove its right to the delay penalty under article 21.55, but the same rule applies. The burden on Mex-Tex to prove that Republic’s offer was conditioned on a full release is no less than the burden would be on Republic if it were making that assertion. The evidence Mex-Tex cites falls far short of this standard. Mex-Tex proved only that the penalty should have been awarded on $33,540 from the time that amount should have been paid until judgment.

The court of appeals held that Republic waived its argument regarding article 21.55 because it cited no supporting authority as required by Texas Rule of Appellate Procedure 38.1(h). Rule 38.1(h) requires “appropriate citations to authorities”. Republic cited the statute, and it is not clear what other authority the court of appeals thought was necessary since it, too, relied solely on the statutory language. “[W]e have instructed the courts of appeals to construe the Rules of Appellate Procedure reasonably, yet liberally, so that the right to appeal is not lost by imposing requirements not absolutely necessary to effect the purpose of a rule.” Republic did not waive its argument.

We conclude that from November 4, 1999, 75 days after Republic tendered Mex-Tex partial payment of $145,460, to the date of judgment, Mex-Tex was enti-tied to the statutory penalty only on the $33,540 difference between the tendered payment and the amount of Mex-Tex’s claim, determined by the trial court to be $179,000. Accordingly, we grant Republic’s petition for review and without hearing oral argument, reverse the judgment of the court of appeals and remand the case to the trial court for rendition of judgment consistent with this opinion.

Justice O’NEILL filed a dissenting opinion, in which Justice SMITH joined.

Justice MEDINA did not participate in this decision.

Justice O’NEILL,

joined by Justice SMITH, dissenting.

I agree with the Court that some evidence supports the trial court’s finding that Republic breached the policy by failing to pay the cost of the comparable roof Mex-Tex installed. I also agree with the Court’s definition of a “claim” under Article 21.55 for purposes of assessing penalties, and that the statutory penalty assessed against Republic should be based on the full amount of the claim if its tender of partial payment to Mex-Tex was not unconditional. Here, my agreement ends. I simply cannot conclude, as the Court does, that no evidence supports the trial court’s finding that Republic’s partial payment was not unconditional. Accordingly, I respectfully dissent.

Article 21.55 subjects an insurer that fails to pay a claim within a prescribed period to a statutory penalty. Tex. Ins. Code art. 21.55, §§ 3(f), 6. The Court correctly concludes that the amount of the “claim” on which a penalty is calculated is not the amount that the insured demands, but the amount that the trial court finds the insurer actually owes under the policy. The Court also acknowledges that the statutory penalty may be assessed against Republic on the full amount of the claim if its partial payment to Mex-Tex was not unconditional, but concludes there is no evidence to support the trial court’s finding that Republic “tried to enforce a full and final release of [the claim] when only a partial payment had been made.” I disagree.

There is evidence that it was both Republic’s intent and Mex-Tex’s understanding that the tender of $145,460 within the statutory period was to settle the claim. That might not in itself be enough to establish as a matter of law that the payment was conditional, as there must also be evidence that the tender was “expressed by acts or declarations with sufficient clarity that [Mex-Tex was] bound to know that [its] acceptance of the tendered payment [would] constitute full payment of [its] claim.” H.L. “Brownie” Choate, Inc. v. Southland Drilling Co., 447 S.W.2d 676, 679 (Tex.1969). But here, Republic’s letter accompanying the second tender of the check stated, “we must respectfully deny your proof of loss since the amount is more than we have determined to be the covered loss.” Moreover, Republic’s letter acknowledging return of the check stated the check had been issued “in good faith as payment for your client’s loss.” If the Court declared a bright-line rule that for a tender of payment to be conditional the tenderer must contemporaneously offer a formal release, I might agree with its conclusion. However, the rule the Court recites is not so definitive, requiring merely that the evidence establish a clear “assent of the parties” and that “the minds must meet.” 150 S.W.3d at 427 (citing Jenkins v. Henry C. Beck Co., 449 S.W.2d 454, 455 (Tex.1969)).

In Jenkins, the trial court granted summary judgment in favor of the defendant debtor on its defense of accord and satisfaction. 449 S.W.2d at 455. We reversed, holding that the debtor’s communications to the creditor accompanying the tender did not constitute “unequivocal notice to [the creditor] that the checks were conditionally tendered in full and final satisfaction of [the debtor’s] obligation to him at the time.” Id. Because an accord and satisfaction was not conclusively established, we remanded the case to the trial court for further proceedings. Id. at 456; see also George Linskie Co. v. Miller-Picking Corp., 463 S.W.2d 170, 173 (Tex.1971) (reversing summary judgment on accord and satisfaction and remanding for trial because “defendant did not make known to plaintiff in clear and unmistakable terms that the tender was intended to be made upon the condition that its acceptance would constitute full satisfaction of all pending claims”).

In this case, had Republic moved for summary judgment based upon accord and satisfaction, I agree that it would have been unsuccessful. But that Mex-Tex did not conclusively prove Republic’s offer was conditional does not mean that the converse — the offer was unconditional — was established, as the Court in essence concludes. Rather, a fact issue was raised that the fact-finder resolved after a trial on the merits. Republic’s letters and other evidence regarding the parties’ intent support the trial court’s conclusion that the parties understood Republic’s check was being conditionally offered as full payment of Mex-Tex’s claim. I would defer to the trial court’s finding on this issue. Because I would affirm the court of appeals’ judgment in its entirety, I respectfully dissent.

      . 106 S.W.3d 174 (Tex.App.-Amarillo 2003).

      . See Tex. Ins.Code art. 21.55, § 5(d) ("In the event of a weather-related catastrophe or major natural disaster, as defined by the State Board of Insurance, the claim-handling deadlines imposed under this article are extended for an additional 15 days."); 28 Tex. Admin. Code § 5.9303 (2004) (regulating determinations of catastrophes for purposes of article 21.55, § 5(d)).

      .Texas Department of Insurance Commissioner’s Bulletin No. B-0029-99 (June 4, 1999), available at http://www.tdi.state.tx.us/commish/bulle-tins/b-0029-9.html.

      . 106 S.W.3d 174 (Tex.App.-Amarillo 2003).

      . See note 2 supra.

      .Tex. Ins.Code art. 21.55, § 3(f).

      . Id. § 6.

      . Id. § 1(3) (emphasis added).

      . Cf. Allison v. Fire Ins. Exch., 98 S.W.3d 227, 264 (Tex.App.-Austin 2002, pet. granted, judgm't vacated w.r.m. by agr.) (stating that 18% statutory penalty could not be imposed against insurer for periods of time when delay in payment was caused by the insured).

      . Tex. Ins.Code art. 21.55, § 8.

      . See Bendalin v. Delgado, 406 S.W.2d 897, 899 (Tex. 1966) (" 'It is not enough that the parties think that they have made a contract; they must have expressed their intentions in a manner that is capable of understanding.’ " (quoting 1 Corbin, Contracts § 95 (2nd ed.1963))).

      . Jenkins v. Henry C. Beck Co., 449 S.W.2d 454, 455 (Tex.1969) (citations omitted).

      . 106 S.W.3d at 183.

      . Tex.R.App. P. 38.1(h).

      . Verburgt v. Dorner, 959 S.W.2d 615, 616-617 (Tex.1997).

      . Tex.R.App. P. 59.1. The dissenting Justices agree that this case may be decided without oral argument.


author: MEYERS, J., COCHRAN, J., JOHNSON, J., HOLCOMB, J.,

text:
    Ex parte Jason Scott WALKER, Applicant.
    No. AP-74877.
    Court of Criminal Appeals of Texas, En Banc.
    Dec. 1, 2004.

      Jerald K. Graber, Houston, for Appellant.
    Baldwin, Chin, Asst. DA, Houston, Matthew Paul, State’s Attorney, Austin, for State.
   OPINION

MEYERS, J.,

delivered the opinion of the Court,

in which KELLER, P.J., and WOMACK, KEASLER, HERVEY, COCHRAN, JJ, join.

Applicant was convicted on a plea of guilty for the offense of Aggravated Robbery on April 17, 2000. On June 16, 2000, the court deferred adjudication of guilt and placed Applicant on community supervision for a period of seven years. As a condition of community supervision, Applicant was ordered to participate in a boot camp program, and to remain in the Harris County Jail until space became available in the boot camp program. Applicant waited in the Harris County Jail until he was released to the custody of the boot camp facility on July 11, 2000. On July 26, 2000, Applicant was returned to the Harris County Jail. The record is unclear as to the particular reason for the early return from boot camp, but it appears to be due to the Applicant’s ineligibility to participate for medical reasons because of a suicide attempt. As a result, the conditions of community supervision were amended on July 26, 2000, apparently to substitute the Substance Abuse Felony Punishment Facility (“SAFPF”) for the boot camp program. Applicant remained in the Harris County Jail from July 26, 2000 until November 21, 2000, when space became available and he was released to SAFPF. Applicant was released from SAFPF on August 23, 2001.

On February 12, 2002, Applicant was arrested pursuant to a Motion to Adjudicate Guilt brought by the State for failing to comply with the requirements of his community supervision. The record reflects that Applicant consumed a large amount of a controlled substance, and failed to participate in the Drug or Alcohol Abuse Continuum of Care Treatment Plan as well as the Community Based Program Anger Management Treatment as ordered by the court. On February 15, Applicant was sentenced to five years in TDCJ, with time credit given for two different periods. The first period was from February 12, 2000 to July 11, 2000; the time from which Applicant was arrested until his plea and order deferring adjudication, and the time Applicant spent awaiting a space in the boot camp program. The second period was from February 12, 2002 to March 25, 2002, when Applicant was awaiting a transfer from the Harris County Jail to the Texas Department of Correctional Justice (“TDCJ”). Applicant filed a Time Credit Dispute Resolution Form with the TDCJ on May 6, 2002 concerning the 119-day period from July 26, 2000 to November 21, 2000, for which he was not given time credit. TDCJ responded on August 30, 2002 that there was no error because the district judge had discretion as to the time credit awarded in his case. Applicant subsequently filed this application on May 12, 2003.

The issue to be decided here is whether Applicant is entitled to time credit toward his 5-year term for the 119-day period that he spent waiting in the Harris County Jail for a space in the SAFPF.

Applicant argues that based on the language of Texas Code of Criminal Procedure Art. 42.03 § 2(a), he should have received time credit toward his sentence for the 119 days he spent in Harris County Jail awaiting a space in SAFPF. This section states in part that a judge is required to award a defendant time credit toward his sentence for any time spent in jail from the time of his arrest until his sentencing. It also provides an exception for time served as a condition of community supervision. Tex.Code Crim. PRO. art. 42.03 § 2(a).

In the Applicant’s original conditions of community supervision, the court ordered Applicant to participate in the boot camp program. The court also specifically listed that Applicant was to remain in the Harris County Jail until space was available in boot camp. In the 1st amended conditions of community supervision, the court deleted the requirement for boot camp and substituted the SAFPF as the program in which Applicant was required to participate. However, the court failed to include a specific instruction that Applicant was to remain in the Harris County Jail until a space opened up in the SAFPF. Instead, at the bottom of every page of the 1st amended conditions of community supervision was the order “Release only to SAFPF.” For this reason, Applicant was held in the Harris County Jail until a space was available at SAFPF. Applicant asserts that because the phrase “remain in Harris County Jail until a space opens at SAFPF” was not specifically included, the 119 days are not a condition of community supervision under Texas Code of Criminal Procedure art. 42.03 § 2(a), and the judge was required to grant him time credit for that period.

The State argues that Applicant is not entitled to the 119 days credit because it occurred during the time that he was on community supervision. The State points to the language of Texas Code of Criminal Procedure art. 42.12 § 23(b), which states in relevant part that “no part of the time that the defendant is on community supervision shall be considered as part of the time that he shall be sentenced to serve.” Tex.Code Crim. PRO. art. 42.12 § 23(b). The State argues that the 119-day period was time served while Applicant was on community supervision, was part of the terms of his community supervision, and that Applicant is not entitled to additional time credit.

As Applicant correctly asserts, it is well settled by this Court that defendants are entitled to time credit toward their sentences for time spent in confinement from arrest to sentencing according to Texas Code of Criminal Procedure Article 42.03 § 2(a). Guerra v. State, 518 S.W.2d 815 (Tex.Crim.App.1975); Ex Parte Harrelson, 511 S.W.2d 957 (Tex.Crim.App.1974); Ex Parte Green, 688 S.W.2d 555 (Tex.Crim.App.1985); Ex Parte Quinby, 928 S.W.2d 565 (Tex.Crim.App.1996); Ex Parte Harris, 946 S.W.2d 79 (Tex.Crim.App.1997); Ex Parte Roberts, 987 S.W.2d 575 (Tex.Crim.App.1999). However, in 1993, article 42.03 § 2(a) was amended by the 73rd legislature to provide that the trial judge is not required to give a defendant credit for time spent in confinement as a condition of community supervision. We have interpreted this amendment as granting the trial judge the discretion to decide whether a defendant receives credit for such time. Tex.Code Crim. Pro. art. 42.03 § 2(a); Ex Parte Quinby, 928 S.W.2d 565 (Tex.Crim.App.1996) (holding article 42.03 2(a) “requires a trial court to give credit for jail time that is not a condition of community supervision, but does not itself preclude credit for confinement as a condition of community supervision”).

The issue here is whether the 119 days spent waiting for a space in SAFPF by Applicant was a condition of his community supervision. If they were, the trial judge has discretion as to whether time credit should be granted. If the 119 days were not a condition of Applicant's community supervision, under article 42.03 § 2(a), the trial judge is required to give the Applicant an additional 119 days credit toward his sentence upon revocation. To determine this, we analyze the 1st amended conditions of community supervision and the terms of the original conditions of community supervision.

Applicant contends that because the phrase “remain in the Harris County Jail” was not included in the 1st amended conditions of community supervision, the 119 days waiting for a space in SAFPF cannot be considered a condition of community supervision. We disagree. In looking at the document as a whole, it is important to note that at the bottom of each page is the order “RELEASE ONLY TO SAFPF.” It would be absurd for the trial judge to include this instruction and not intend for the confinement to be a condition of Applicant’s community supervision. The order “RELEASE ONLY TO SAFPF” indicates that it was a condition of his community supervision that he should wait in the Harris County Jail until a space was made available for him at SAFPF.

Also important is the notation at the bottom of the 1st . amended conditions of community supervision. The notation states the following: “AMENDED TO DELETE BOOT CAMP ADDING SAFPF.” These words indicate that the only change between the original conditions and the amended conditions was that boot camp was replaced with SAFPF. The substitution is evidence that the only thing to be changed in the amended conditions was the program Applicant was to complete, since he failed to complete the program first ordered.

The notations and orders in the 1st amended conditions of community supervision, coupled with the surrounding events and circumstances requiring the amended conditions, indicate that the 119 days were served as a term of the community supervision. Accordingly, the trial judge was not required to award Applicant the 119-day time credit and Applicant is not entitled to relief.

COCHRAN, J., filed a concurring opinion.

JOHNSON, J., filed a dissenting opinion.

HOLCOMB, J., filed a dissenting opinion, in which PRICE, J., joined.

COCHRAN, J.,

filed a concurring opinion.

I reluctantly join the majority opinion. The result in this case is not “fair.” But I agree that the trial court had the discretion to make findings that support this Court’s conclusion that applicant is not entitled to credit for the time he spent in jail awaiting transfer to a SAFPF as a condition of his community supervision.

The problem in this case is that the trial court ordered a very appropriate community supervision condition — participation in a secure-facility drug rehabilitation program — but there was no room available in the program at the time the trial court entered his order. The trial court ordered applicant to be transferred to a SAFPF on July 26, 2000. That is the date upon which he wanted applicant to begin his drug rehabilitation program. Nonetheless, the trial judge did not have control over when a space at a SAFPF would become available. Therefore, he had two options: 1) require applicant to stay in custody at the local jail until space was available in a SAFPF; or 2) release him into the community, knowing that such a release-without sufficient supervision or immediate mandatory drug treatment-would significantly diminish the likelihood that applicant could be found or would •willingly appear when SAFPF space did become available. Neither of these options is entirely satisfactory.

As it turned out, applicant had to wait 119 days — almost four full months — in the local jail before a space in a SAFPF was available. This is 119 days for which applicant lost his liberty. This is 119 days for which applicant was not participating in any drug rehabilitation program as a part of his community supervision. This is 119 days of “thumb-twiddling” lost in legal limbo. And it counts for nothing. This is not a “fair” result. But it is countenanced by Texas precedent and statute.

Under article 42.03, § 2(a) of the Code of Criminal Procedure, a trial judge shall give the defendant credit for all the time the defendant has spent in jail, “other than confinement served as a condition of community supervision.” A trial court may order confinement as a condition a community supervision up to, but not exceeding, 180 days. Thus, a trial judge may find that all, some, or none of the time a defendant has spent in jail awaiting transfer to a SAFPF — up to a maximum of 180 days— was served as a condition of community supervision (ie., confinement and treatment in a SAFPF is a condition of community supervision, therefore time spent in confinement awaiting available space in a SAFPF is a condition of community supervision). If the judge finds that this “thumb-twiddling” time was served as a condition of community supervision, he has the authority to either grant or deny the defendant credit for that time when the defendant’s community supervision is revoked and he is sentenced to a term in jail or prison.

In this case, the applicant claims that he is entitled to 119 days credit on his prison sentence because the trial judge did not, at the time he ordered applicant to enter the SAFPF, explicitly state that the jail time awaiting transfer to the SAFPF was a condition of community supervision. Applicant fails to cite any statutory provision or legal precedent that requires the trial judge to make such an explicit finding in his initial SAFPF order. The trial judge did, in his Findings of Fact on the writ application, make an explicit finding that applicant’s jail-time credit had been accurately computed. That explicit finding supports an implicit finding that the trial judge intended that the “thumb-twiddling” time was a condition of community supervision. Therefore, the trial judge had the discretion to deny applicant any jail-time credit for that 119 days of “thumb twiddling.” Of course, the trial judge could certainly have decided otherwise: that the 119 days in the county jail was not, in fact, a condition of community supervision. It was merely “lost in limbo” time that served no legitimate purpose and had no independent rehabilitation value. Because the trial judge could decide this question either way, and his initial written Conditions of Community Supervision would support either conclusion, I cannot say that he abused his discretion in denying applicant jail-time credit.

Therefore, I join the majority.

JOHNSON, J.,

filed a dissenting opinion.

When the trial court first placed applicant on deferred adjudication on June 16, 2000, it ordered him to participate in the boot-camp program and ordered that applicant be kept in custody in the Harris County jail until space was available. The exact words of the order were “remain in the Harris County Jail.” Applicant remained in the jail for 40 days, until he was released to boot camp on July 11, 2000. After the trial court adjudicated applicant, it gave him credit for the time he spent awaiting transfer to boot camp. There seems to be no indication from the trial court nor a complaint from the state that such credit was improperly given because the time spent waiting in the jail was a condition of community supervision.

Applicant was returned to the jail from boot camp on July 26, 2000. On that day, the trial court amended his conditions of community supervision, “apparently to substitute” the Substance Abuse Felony Punishment Facility (SAFPF) for boot camp. The notation on that order was “Release only to SAFPF.” Applicant was held in custody in the jail for 119 days, until November 21, 2000, then released to SAFPF.

In both cases, applicant spent an extended period of time in custody before space became available. He has been given credit for one period of waiting, but not the other. One is found not to be a condition of community supervision, while a similar order that had precisely the same effect is found to be a condition and a reason to deny time credit.

I do not see how “remain in jail” until a rehabilitation program becomes available and “release only to” a rehabilitation program are logically or legally different. In both instances, the trial court ordered that applicant remain in custody until there was space in a specified rehabilitation facility. If the jail is to release an inmate only to a rehabilitation program, the inmate will remain in custody until space is available; if the inmate must remain in custody until space is available in a specified rehabilitation program, the jail will release the inmate only to that rehabilitation program when space becomes available. Merely changing the name of the facility does not transform the time spent waiting into a condition of probation. Nor, without a more specific expression by the trial court of its intent in substituting a rehabilitation program, does the use of different words which produce the same result alter the nature of the result. The time credit should be treated equally; either both are a condition of community supervision or neither is.

It appears that the intent of the trial court here was to get applicant into a drug rehabilitation program and that the trial court felt that the best way to do that was to keep applicant where he could be easily found until such a program became available. The use of different words does not, of itself, imply different intent. To treat the two waiting periods differently is to create magic words that must be recited in order to create a specified result. I respectfully dissent.

HOLCOMB, J.,

filed a dissenting opinion which was joined by PRICE, J.

The question presented in this case is whether applicant, an inmate in state prison, is statutorily entitled to time credit, toward his sentence, for 119 days he spent in the Harris County Jail awaiting a space in a Substance Abuse Felony Punishment Facility (SAFPF). The majority holds that applicant is not statutorily entitled to time credit. I disagree.

The record reflects the following relevant facts: On April 17, 2000, applicant pled guilty in state district court to a charge of aggravated robbery. On June 16, 2000, the trial court heard evidence and found that that evidence substantiated applicant’s guilt. The trial court deferred an actual finding of guilt, however, and placed applicant on community supervision for seven years. The trial court’s written conditions of applicant’s community supervision included one condition, condition number fifteen, that read as follows:

You are committed to the HCCS & CD Boot Camp beginning JUNE 16, 2000 OR WHEN SPACE IS AVAILABLE. Remain in this facility under custodial supervision and comply with all program rules, regulations, contracts and guidelines of the facility until successfully discharged or released by further order of the Court. Remain in the Harris County Jail until space is available in Boot Camp. Report to COURT FOR REVIEW if you are found to be medically or psychologically unfit for participation.

(Ml underlining, bolding, etc., in original.) At the bottom of each page of the written conditions of community supervision was the phrase, “RELEASE ONLY TO BOOT CAMP.”

On July 11, 2000, applicant was released from the Harris County Jail and entered the “boot camp.” On July 25, 2000, the trial court amended its written conditions of applicant’s community supervision, deleted condition number fifteen quoted above, and substituted the following condition therefor:

Participate in the Substance Abuse Felony Punishment Facility (SAFPF) beginning JULY 25, 2000 OR WHEN SPACE IS AVAILABLE. You are to remain in the Substance Abuse and Felony Punishment Facility (SAFPF) established in Section 493.009, Government Code, and operated by the Community Justice Assistance Division of the Texas Department of Criminal Justice for a term of not less than six (6) months or more than one (1) year, beginning JULY 25, 2000 OR WHEN SPACE IS AVAILABLE. The defendant shall comply with all rules, regulations, and treatment programs and upon release, the defendant is required to participate in a drug or alcohol abuse continuum of care treatment plan as developed by the Texas Commission on Mcohol and Drug Abuse (TCADA), abiding by all rules and regulations of said treatment plan until discharged by the Court.

(All underlining, bolding, etc., in original.) Unlike the written condition of community supervision that it replaced, the substituted condition said nothing about applicant remaining in the Harris County Jail until a space opened up in the SAFPF. At the bottom of each page of the amended written conditions of community supervision, though, was the phrase, “RELEASE ONLY TO SAFPF.”

On July 26, 2000, applicant was released from the boot camp and returned to the Harris County Jail. On November 21, 2000, he was released from the Harris County Jail and entered the SAFPF. On August 23, 2001, he was released from the SAFPF. On January 25, 2002, the State filed a motion to revoke applicant’s community supervision and to adjudicate his guilt. On February 15, 2002, the trial court revoked applicant’s community supervision, adjudicated his guilt, and assessed his punishment at imprisonment for five years.

On May 6, 2002, applicant filed a “Time Credit Dispute Resolution Form” with the relevant prison authorities, seeking time credit toward his sentence for the 119 days he had spent in the Harris County Jail awaiting a space in the SAFPF. On August 30, 2002, the prison authorities responded that he was not entitled to time credit for the time period in question. On May 12, 2003, applicant filed an application for habeas corpus relief in the trial court.

Article 42.03, § 2(a), of the Texas Code of Criminal Procedure states:

In all criminal cases the judge of the court in which the defendant was convicted shall give the defendant credit on his sentence for the time that the defendant has spent in jail in said cause, other than confinement served as a condition of community supervision, from the time of his arrest and confinement until his sentence by the trial court.

In my view, the plain language of this statute requires that applicant be given time credit for the 119 days in question, because the actual amended written conditions of his community supervision did not state that he was to remain in the Harris County Jail until a space opened up in the SAFPF. The amended conditions could have so stated, as the original conditions had stated that applicant was to remain in the jail until a space opened up in the boot camp, but they did not. Remaining in the Harris County Jail until a space opened up in the SAFPF was not a stated written condition of applicant’s community supervision.

Because the majority refuses to grant the requested relief, I respectfully dissent.

      . Texas Code of Criminal Procedure Article 42.03 § 2(a) states: “In all criminal cases the judge of the court in which the defendant was convicted shall give the defendant credit on his sentence for the time that defendant has spent in jail in said cause, other than confinement served as a condition of community supervision, from the time of his arrest and confinement until his sentence by the trial court.”

      . Substance Abuse Felony Punishment Facility. See Tex.Code Crim. Proc. art. 42.12, § 14(a). A SAFPF is a type of community corrections facility. Tex. Gov’t Code § 509.001(1)(C). Under Texas statute, a defendant is not entitled to credit on his sentence for time spent in a community corrections facility. Tex.Code Crim. Proc. art. 42.12, § 18(c) (defendant may not "apply time spent in a community corrections facility toward completion of a prison sentence if the community supervision is revoked”). Citing an earlier version of article 42.12, this Court has held that a defendant is not entitled to credit for the time he has been under custodial care in a SAFPF. Ex parte Stover, 946 S.W.2d 343, 345 (Tex.Crim.App.1997).

      . See Ex parte Garduno, 956 S.W.2d 823, 824 (Tex.App.-El Paso, pet. ref'd) (upholding order that defendant remain in county jail for indefinite number of days awaiting transfer to SAFPF).

      . Tex.Code Crim. Proc. art. 42.03, § 2(a).

      . Tex.Code Crim. Proc. art. 42.12, § 12(a).