author: JOHN E. POWERS, Justice (Retired).

text:
    CENTRAL POWER AND LIGHT COMPANY, Appellant, v. PUBLIC UTILITY COMMISSION OF TEXAS; and Cities of San Juan, Pharr, and San Benito, Appellees.
    No. 03-99-00204-CV.
    Court of Appeals of Texas, Austin.
    May 4, 2000.

      Thomas S. Leatherbury, Michael J. Tomsu, Vinson & Elkins L.L.P., Dallas, for Central Power & Light Co.
    Amanda Atkinson Cagle, Assistant Attorney General, Natural Resources Division, Austin, for PUC of Texas.
    Jim Boyle, Boyle & Bender, Austin, for Cities of San Juan, Phan’ and San Benito.
    Before Chief Justice ABOUSSIE, Justices JONES and POWERS.

       Before John E. Powers, Senior Justice (retired), Third Court of Appeals, sitting by assignment. See Tex. Gov’t Code Ann. § 74.003(b) (West 1998).

   JOHN E. POWERS, Justice (Retired).

Central Power and Light Company (the “Company”), a regulated public utility, appeals from a district-court judgment affirming the final order of the Public Utility Commission (the “Commission”) in a suit brought by the Company for judicial review of that order, as authorized by section 1.301 of the Public Utility Regulatory Act (“PURA”). See Tex. UtiLCode Ann. § 1.301 (West 1998). The municipalities of San Juan, Pharr, and San Benito intervened in the suit in defense of the Commission’s final order and have filed on appeal a joint brief. We will affirm the district-court judgment.

THE CONTROVERSY

The Company furnishes electric power to customers in a number of Texas municipalities and has entered into contracts with numerous home-rule cities. By such contracts, the Company has obtained the use of city streets, alleys, highways, and public grounds for Company facilities. In compensation, the contracts require the Company to pay “franchise fees” to the cities in amounts fixed by the contracts or, by city ordinances.

For a number of years, the Company paid the franchise fees in accordance with the contracts and ordinances. The Company, in turn, recouped the expense indirectly from its customers as one of the “reasonable and necessary operating expenses” that the Company is entitled to recover by and through its electric-service rates fixed' by the Commission. See PURA § 36.057(a) (West 1998); see generally Ron Moss, Ratemaking in the Public Utility Commission of Texas, 44 Baylor L.Rev. 825, 827-43 (1992).

In a 1982 rate case before the Commission, under the agency’s Docket 4400, the Company proposed that it be allowed to recoup its franchise-fee payments directly from its customers on a current basis rather than through rates set from time to time by the Commission. This would be done, according to the Company’s proposal, by adding directly to customer bills a pro-rated part of the applicable franchise-fee payments to a city, adjusted periodically as the Company made such payments. The payments would, of course, be then omitted from the Company’s “reasonable and necessary operating expenses” in any future calculation of rates fixed by the Commission.

In the course of Docket 4400, numerous cities (including San Juan and Pharr, but not San Benito) agreed to the Company’s proposal and entered into a stipulation to the effect indicated. The Commission adopted the stipulation in its final order in Docket 4400, which declared as follows:

Municipal franchise payments shall be recovered by the Gompany on a current basis by means of a factor to be included in each applicable customer rate schedule. The factor for each rate class will be computed from the cost study finally approved in this docket and shall be expressed as a percentage of the customers’ total bill excluding sales tax. The factor will apply to revenues produced by the base rate and fuel charge for each rate class and shall be included within the total dollar amount shown as owing on the customers’ bill.

In mid-1996, some fourteen years after the 1982 final order in Docket 4400, the cities of San Juan and Pharr sued the Company in a district court of Hidalgo County; in December 1996, the city of San Benito sued the Company in a district court of Cameron County. The three cities claimed damages based on the Company’s alleged underpayment of the franchise fees required by their ordinances and contracts with the Company, alleging causes of action for breach of contract, negligent misrepresentation, fraud, declaratory judgment, an accounting, and the imposition of a constructive trust upon funds held by the Company that were lawfully owned by the named cities. San Benito alleged as well the elements of a class action in behalf of other cities similarly situated. No class action determination has been made insofar as we are informed.

In January 1997, the Company filed in the Commission a “petition for declaratory relief.” Therein, the Company alleged the named cities were claiming by their lawsuits additional sums not authorized by the terms of the stipulation in Docket 4400, which the Company alleged was a binding contract and “an essential part of the overall agreement between the parties with regard to franchise fees and, to an even greater degree,” the Company’s rates fixed by the final order in Docket 4400. It appears the named cities were claiming an amount of franchise fees based on a percentage applied to Company revenues that included franchise-tax and sales-tax collections made by the Company; and, the Company alleged in its petition, the parties in Docket 4400 “never contemplated basing municipal franchise payments on these other revenues.”

In its petition to the Commission, the Company requested that the agency issue the following declaratory orders:'

1. “[A] declaration from the Commission that it has primary jurisdiction over [the Company’s] collection and payment of municipal franchise fees, based upon the agreed mechanism established ... in Docket No. 4400”;
2. A declaration that “[a]ny challenge to the procedure established in the Stipulation and Order in Docket 4400 regarding [the Company’s] collection and payment of municipal franchise fees must be made at the Commission”; and
3. A declaration that “[t]he ... cities are estopped from challenging the procedure established in the Stipulation and Order in Docket 4400 regarding [the Company’s] collection and payment of municipal franchise fees in any forum other than the Commission.”

As a legal basis for the requested relief, the Company alleged “that the Commission has continuing jurisdiction over franchise fee issues based on the final Order ... in Docket 4400.”

The Commission found there was no necessity for an evidentiary hearing because the “proceeding involves only a legal interpretation of the Commission’s authority over disputes relating to the collection and payment of franchise fees to municipalities.” In the final order we now review, the Commission denied the Company’s request for a declaratory order “that the Commission ... has primary jurisdiction over the payment of municipal franchise fees” and dismissed the Company’s petition for want of jurisdiction to issue a declaratory order on the terms requested. In support of its decision, the Commission recited in its order the following conclusions of law:

1. the Commission possesses “authority to issue a declaratory order ... in accordance with” section 14.051(5) of the Texas Utilities Code;
2. the Commission possesses authority to determine “the proper allocation and collection of franchise fees in utility rates once a home-rule municipality ... has determined the appropriate franchise fee owed by a utility”; but
3. the Commission “does not have authority to determine or modify the franchise fees” charged by a home-rule city under article 1175 of the Texas Revised Civil Statutes, a statute not committed to the Commission’s administration.

As we understand the Commission’s final order, it affirmed the agency’s general power to issue a declaratory order under section 14 .051(5) of the Texas Utilities Code and the agency’s jurisdiction to determine the proper allocation and method of collecting franchise fees through customer bills; but the Commission denied having authority or jurisdiction to determine or modify the amount of franchise fees fixed by a home-rule city under article 1175 of the Texas Revised Civil Statutes.

The Company sued the Commission in district court for judicial review of the agency’s final order. That court affirmed the order and this appeal ensued. The Company brings the assignments of error implicit in its statement of the issues on appeal, as discussed below.

DISCUSSION AND HOLDINGS

I.

Does PURÁ impose a mandatory duty on the Commission to assume jurisdiction over the Company’s petition for declaratory relief asking the agency to interpret one of its previous rate orders?

We should say initially that the foregoing issue cannot be answered one way or another in the abstract. The answer depends upon the nature of the previous rate order and the particulars of the petition for declaratory relief. We will therefore confine our discussion to the record in the present case.

As used in PURA, the word “rate” includes “any compensation” or “charge ... that is directly or indirectly demanded, observed, charged, or collected by a public utility for a service, product, or commodity” such as electricity. PURA § 11.03(15)(A) (West 1998). Thus, the word “rate” necessarily includes the franchise fees in question here. PURA imposes upon the Commission a duty to “ensure” that the rates charged by electric utilities are “just and reasonable.” PURA § 36.003(a). To accomplish this broad objective, PURA delegates to the agency numerous powers. Among them is a “general power to regulate and supervise the business of’ electric utilities within Commission jurisdiction, and a particular power to establish and regulate rates under a complex statutory scheme. PURA § 14.001; see PURA §§ 36.001-.353. In addition, the Commission is given exclusive jurisdiction over electric-utility rates in areas outside municipalities and areas within municipalities that have surrendered their jurisdiction to the Commission. See PURA § 32.001(a).

Such broadly stated powers cannot, however, be considered in isolation. For example, the “general power to regulate and supervise the business of’ electric utilities, delegated to the Commission in PURA section 14.001, if taken literally, gives the agency power to regulate and supervise every business transaction to which a regulated utility is a party, ranging from such things as the payment of a lineman’s wages to the construction of a power plant and the payments made for fuel purchases. But these broadly stated powers must find their intended meaning in the context of PURA as a whole, including those provisions of PURA containing special provisions dealing with particular matters. And if a conflict appears between a general and a particular provision, effect must be given to both if possible; cases of irreconcilable conflict must be decided in favor of the particular provision absent a manifest legislative intent to the contrary. See Tex. Gov’t Code Ann. § 311.026(a), (b) (West 1998) (Code Construction Act). One such particular provision is found in PURA section 14.008, pertaining to the franchise fees in dispute in the present case.

Concerning the power of home-rule cities to charge franchise fees under article 1175, PURA purports to regulate this sensitive matter by the following provisions:

(a) This title does not restrict the rights and powers of a municipality to grant or refuse a franchise to use the streets and alleys in the municipality or to make a statutory charge for that use.
(b) A franchise agreement may not limit or interfere with a power conferred on the commission by this title.

PURA § 14.008 (emphasis added). Subsection (a) of section 14.008 plainly affirms the broad franchise power possessed by home-rule cities under article 1175, while subsection (b) simultaneously limits that power if it conflicts with statutory powers delegated to the Commission. See Dan Pleitz and Robert Randolph Little, Municipalities and the Public Utility Regulatory Act, 28 Baylor L.Rev. 977, 989-91 (1976).

Upon the foregoing statutory provisions, the Company constructs an argument that the Commission defaulted in a mandatory duty to construe the stipulation in Docket 4400 as not obligating the Company to pay “franchise fees on such items as sales-tax and franchise-tax collections.” The Company reasons as follows: (1) the Commission has exclusive jurisdiction to interpret its order in Docket 4400 and the “special expertise” necessary to do so; (2) the cities’ lawsuits “directly implicate the Docket 4400 order and require an interpretation of that order”; and (3) the Company has not asked the Commission “to set franchise fees or to adjudicate a contract dispute.”

It appears to us that the Commission did consider the stipulation and resulting order in Docket 4400 but rejected (1) the Company’s proffered interpretation of the stipulation, and (2) the Company’s application for the particular declaratory orders described in the Company’s “petition for declaratory relief.” Moreover, we believe the Commission reasonably harmonized, as it was required to do, the PURA sections giving the agency general powers over regulated utilities and the particular provisions of PURA section 14.008 and article 1175 pertaining to franchise fees. See Stanford v. Butler, 142 Tex. 692, 181 S.W.2d 269, 273 (1944).

The Commission’s final order in the present case concludes the Commission lacks statutory authority to fix or alter the franchise fees set by a home-rule city under article 1175 of the Texas Revised Civil Statutes, but affirms the agency’s statutory power to determine the proper allocation and collection of such fees once a home-rule city and a utility have determined what those fees should be. On the face of the Commission’s order, it has simply made the basic and obvious distinction between the regulatory effectiveness of a franchise-fee contract and its effectiveness outside the sphere of Commission regulation: the setting of the amount of such fees is a matter of contract between a city and an electric utility and beyond the Commission’s regulation, while the proper method of allocating and collecting such expenses is a matter within the Commission’s regulatory power under PURA. See Bolton v. Coats, 533 S.W.2d 914, 916 (Tex.1975) (Railroad Commission’s order classifying well as “gas” well for. regulatory purposes no bar to plaintiffs proof that well was in fact an “oil” well for purposes of common-law action for breach of contract).

The Company does not contend that the Commission’s construction of its statutory powers listed above is contrary to the legislature’s intent in light of the statutory language involved and the necessity of giving effect to article 1175 as well as both subsections of PURA section 14.008. See Cameron v. Terrell & Garrett, Inc., 618 5.W.2d 535, 540 (Tex.1981); Citizens Bank v. First State Bank, 580 S.W.2d 344, 348 (Tex.1979); Howell v. Mauzy, 899 S.W.2d 690, 704 (Tex.App. — Austin 1994, writ denied).

Instead, if we understand correctly the Company’s position, it argues that on their face the statutes giving the Commission general powers of regulation required the agency to construe the Docket 4400 stipulation as excluding franchise fees and sales taxes, and perhaps other sums, from the revenues by which the amount of the Company’s franchise-fee obligation is measured, and then to issue corresponding orders binding on the district courts and the cities of San Juan, Pharr, and San Benito as follows: (1) the Commission has “primary jurisdiction over [the Company’s] collection and payment of’ franchise fees; (2) “any challenge to [the Company’s] collection and payment of such fees must be made at the Commission” and not in district court; and (3) the “cities are estopped from challenging” in = district court “the procedures established ■ in the Stipulation and Order in Docket No. 4400 regarding [the Company’s] collection and payment of’ the franchise fees. The Company’s argument fails for two reasons. First, it does not allow for any effect to be given article 1175 and PURA section 14.008. Second, and more basically, we find in PURA nothing that reasonably implies that the Commission has the power to issue declaratory orders on these unusual terms — a power the Commission has, on reasonable grounds, expressly disclaimed by its final order in the present case. And the Company, does not contend that such a power is necessary for the Commission’s exercise of its ratemaking or any other function assigned to the agency in clear and express statutory language. See Sexton v. Mt. Olivet Cemetery Ass’n, 720 S.W.2d 129, 137 (Tex.App. — Austin 1986, writ ref d n.r.e.).

For the reasons given, we overrule the Company’s contention that the Commission defaulted on a mandatory duty to assume jurisdiction and to order the relief requested in the Company’s “petition for declaratory relief.”

II.

• If the Commission did not have a mandatory duty to assume jurisdiction over the Company’s request for declaratory relief, did the Commission abuse its discretion by declining jurisdiction based on an erroneous legal conclusion?

Under this statement of the issue on appeal, the Company argues that the Commission “abused its discretion in declining jurisdiction because it based its decision on an erroneous legal conclusion” that the agency “lacked all jurisdiction.” We disagree.

The Commission’s final order in the present case declares that “this docket is dismissed [because] the Commission lacks jurisdiction over [the Company’s] payment of municipal franchise fees,” citing a Commission rule that includes “lack of jurisdiction” as a basis for dismissing a proceeding without an evidentiary hearing. P.U.C. Proc. Rule § 22.181(a)(1)(A). (Emphasis added).

The Company argues that the Commission has express statutory jurisdiction to interpret its own orders, which is obvious. See Tex. UtiLCode Ann. § 14.051(5) (West 1998). The Commission’s order in its entirety reflects that the Commission affirmed that statutory power or jurisdiction but disclaimed a statutory power to grant the relief requested, which was a modification of the amount of the franchise fees fixed by the parties’ contracts and the issuance of declaratory orders of an equitable nature. Accordingly, we overrule the Company’s contention for the reasons stated in our discussion of the Company’s first issue on appeal.

III.

Did the doctrine of primary jurisdiction require the Commission to assume jurisdiction over the Company’s request for declaratory relief?

The Company misconceives the doctrine of primary jurisdiction in its argument under this statement of the issue on appeal. The doctrine of primary jurisdiction is a judicial doctrine having no application in the present case. The doctrine assumes that a case has first been brought in a court; that the doctrine has been raised as a reason for the court’s not proceeding to judgment; and, where the doctrine requires, the court defers exercising its own jurisdiction until the agency decides some material issue confided to the agency’s jurisdiction by statute. The doctrine thus assures that the agency is not by-passed on a matter or matters within its jurisdiction while the court in which the case is brought initially retains its power to decide ultimately any remaining issues and the decision proper on the whole case. See Amarillo Oil Co. v. Energy-Agri Prods., Inc., 794 S.W.2d 20, 25 (Tex.1990); Texas Liquor Control Bd. v. Canyon Creek Land Corp., 456 S.W.2d 891, 896 (Tex.1970); Gregg v. Delhi-Taylor Oil Corp., 162 Tex. 26, 344 S.W.2d 411, 413-16 (1961); Kavanaugh v. Undenmiters Life Ins. Co., 231 S.W.2d 753, 755-56 (Tex.Civ.App.— Waco 1950, writ ref'd); Bernard Schwartz, Administrative Law § 8.23, 485-86 (2d ed.1984); Morris L. Jaffe, Judicial Control of Administrative Action 121 (1965). The Company’s theory would stand the doctrine on its head.

Here, the Company has filed an original proceeding not in a court but in the Commission, asking the agency itself to declare that it possesses primary jurisdiction to decide without court interference the matters referred to above, and to issue declaratory orders accordingly. The doctrine of primary jurisdiction has no such application. If the Company wishes to interpose the doctrine as a defensive plea in the litigation now pending in the district courts of Hidalgo and Cameron counties, then those courts would have to determine the application of the doctrine in that litigation and defer, if need be, to the Commission’s prior decision on some issue those courts deem material.

We overrule the Company’s contention that the Commission was required by the doctrine of primary jurisdiction to assume jurisdiction over the Company’s request for declaratory relief in the proceeding we now review.

IV.

Is the Commission’s failure to assert jurisdiction inconsistent with its own findings?

The Company argues that the Commission’s conclusion that it had jurisdiction to interpret and enforce its orders is inconsistent with the agency’s dismissing, for want of jurisdiction, the Company’s “petition for declaratory relief’ wherein the Company requested an interpretation of the Commission’s final order in Docket 4400.

We find no merit in the argument. It fails to distinguish between the Commission’s jurisdiction to interpret its order in Docket 4400 and the agency’s want of jurisdiction, under article 1175 and PURA section 14.008, to adopt the particular interpretation for which the Company contends. We hold accordingly.

V.

Did the Commission err because its own general counsel agreed that the Commission should exercise jurisdiction?

The Commission’s general counsel advised the Commission that he believed the agency possessed jurisdiction to adopt the Company’s interpretation of the agency’s order and stipulation in Docket 4400. The Company contends, apparently, that the Commission erred in not following the advice of its general counsel. We reject the argument. We find in the relevant statutes nothing to suggest that the Commission is bound to follow the advice of its general counsel. Rather, the Commission itself “exercises the jurisdiction and powers conferred” upon the agency. Tex. UtiLCode Ann. § 12.001 (West 1998).

For the reasons given, we affirm the district-court judgment.

      . The Public Utility Regulatory Act is codified as Title 2 of the Texas Utilities Code. See Tex. Util.Code Ann. §§ 11.001-63.063 (West 1998 & Supp.2000). For convenience and clarity, we will refer to these sections as "PURA §_” In referring to other sections of the Code, we will cite to "Tex. Util.Code Ann. §_”

      . Among the enumerated powers delegated to home-rule cities are the following:
      A home-rule municipality has the following powers: ... To prohibit the use of any street, alley, highway or grounds of the city by any telegraph, telephone, electric light, ... or any other character of public utility without first obtaining the consent of the governing authorities expressed by ordinance and upon paying such compensation as may be prescribed and upon such condition as may be provided by such ordinance.
      Tex.Rev.Civ. Stat. Ann. art. 1175 (West Supp.2000); see also Tex. Loc. Gov’t Code Ann. § 282.003 (West 1999); see generally Entex v. City of Pearland, 990 S.W.2d 904, 911 (Tex.App. — Houston [14th Dist.] 1999, no pet.); City of Plano v. Public Util. Comm’n, 953 S.W.2d 416, 423 (Tex.App. — Austin 1997, no pet.); Southwestern Pub. Serv. Co. v. Public Util. Comm’n, 578 S.W.2d 507, 512-13 (Tex. Civ.App. — Austin 1979, writ ref’d n.r.e.).

      . See Tex. Util.Code Ann. § 14.051(5) (West 1998).

      . See Tex.Rev.Civ. Stat. Ann. art. 1175, quoted in material part supra, note 2.

      . By its assertion that it has not asked the Commission "to set franchise fees or to adjudicate a contract dispute,” the Company anticipates its later contention that the Commission possessed primary jurisdiction to decide "franchise fee issues.” Specifically, the Company denies here the applicability of the primary-jurisdiction exception for cases where the legislature has not given an administrative body, by a valid statute, the power to decide property or contract rights. See Gregg v. Delhi-Taylor Oil Corp., 162 Tex. 26, 344 S.W.2d 411, 411-16 (1961); Magnolia Petroleum Co. v. Railroad Comm’n, 141 Tex. 96, 170 S.W.2d 189, 190-91 (1943); Biskamp v. General Crude Oil Co., 452 S.W.2d 515, 517 (Tex.Civ.App.—San Antonio 1970, writ ref'd). For reasons discussed later in our opinion, we hold the doctrine of primary jurisdiction is not applicable in the present case. Consequently, we need not consider or discuss the exception mentioned.

      . Were the legislature to delegate such powers to an administrative agency, the delegation would, of course, raise serious separation-of-powers issues because it would purport to authorize an administrative agency's exercise of control over the district courts.


source: Caselaw Access Project

author: J. WOODFIN JONES, Justice.

license: Public Domain

text:
    Bonnie EASTER as next friend of M.D.E., Appellant, v. PROVIDENCE LLOYDS INSURANCE COMPANY, Appellee.
    No. 03-99-00426-CV.
    Court of Appeals of Texas, Austin.
    May 4, 2000.

      Kenneth Casey Goolsby, Bailey & Cooley, L.L.P., Tyler, for appellant.
    Michael Sean Quinn, Sheinfeld, Maley & Kay, P.C., Austin, for appellee.
    Before Justices JONES, KIDD and PATTERSON.
   J. WOODFIN JONES, Justice.

The opinion and judgment issued herein on March 9, 2000 are withdrawn, and the following opinion is substituted in lieu of the earlier one.

Appellant, Bonnie Easter as next friend of M.D.E., sued M.D.E.’s foster parents, Joseph and Grace Bossette, for injuries M.D.E. sustained while in the Bossette home. Easter obtained a default judgment against the Bossettes, then sued ap-pellee, Providence Lloyds Insurance Company, the Bossettes’ homeowners’ insurer. The district court granted Providence Lloyds’ motion for summary judgment. On appeal, Easter contends the trial court erred in granting Providence Lloyds’ motion. Because we conclude that M.D.E. was a “resident” of the Bossette household and therefore an “insured” precluded from recovering under the Bossettes’ homeowners’ policy, we will affirm the district court’s judgment. In addition, we deny Providence Lloyds’ motion for frivolous appeal damages under Texas Rule of Appellate Procedure 45.

FACTUAL AND PROCEDURAL BACKGROUND

Bonnie Easter was having a difficult time dealing with the emotional and behavioral problems her daughter M.D.E. was exhibiting, and in February 1995 she placed M.D.E. in the care of Joseph and Grace Bossette, licensed foster parents. M.D.E. was nine years old at the time. Easter intended the placement to be for no more than six months.

Soon after M.D.E.’s arrival in the Bos-settes’ home, Joseph Bossette began sexually molesting her. After approximately five months, M.D.E. reported the abuse to Child Protective Services. She was removed from the Bossettes’ home and returned to her mother. In February 1996, Easter brought suit on M.D.E.’s behalf against Joseph Bossette for an intentional tort for committing the abuse, and against Grace Bossette for negligence for failing to stop or report the molestation. A default judgment was rendered against the Bos-settes for $300,000. Easter then brought the present action against Providence Lloyds to enforce the judgment against the Bossettes’ homeowners’ insurance carrier.

On appeal, Easter contends the district court erred in granting summary judgment for Providence Lloyds because genuine issues of material fact exist as to: (1) whether foster parenting is a “business pursuit” for purposes of an exclusionary clause in the Bossettes’ homeowners’ policy; (2) whether Grace Bossette’s negligence was an activity “ordinarily incidental to a non-business pursuit” and thus excepted from the exclusion; (3) whether M.D.E. was a “resident” of the Bossette household and therefore an “insured” not eligible for recovery under the policy; and (4) whether Providence Lloyds was prejudiced by the Bossettes’ alleged failure to cooperate in the defense of the underlying lawsuit. Additionally, Easter contends that the district court erred because as a matter of law: (1) the term “resident” in the insurance contract is vague and raises an issue of material fact; and (2) Grace Bossette acted negligently, not intentionally; thus, her acts were not excluded under the policy.

DISCUSSION

In her third issue on appeal, Easter contends that M.D.E. was not a “resident” of the Bossettes’ household. If M.D.E. is deemed a resident, she is an “insured” under the policy; the policy excludes coverage for “bodily injuries sustained by an insured.”

The standard for reviewing a trial court’s grant of a motion for summary judgment is well established: (1) the mov-ant for summary judgment has the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law; (2) in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true; and (3) every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor. See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). The function of summary judgment is not to deprive litigants of the right to trial by jury, but to eliminate patently unmeritorious claims and defenses. See Swilley v. Hughes, 488 S.W.2d 64, 68 (Tex.1972).

Under the Bossettes’ contract for homeowners’ insurance, personal liability coverage does not apply to injuries to “insureds.” “Insureds” are defined as: “you and residents of your household who are: a) your relatives; or b) other persons under the age of 21 and under the care of [Joseph or Grace Bossette].” M.D.E. was undisputedly under 21 and under the care of the Bossettes; therefore, the pivotal question is whether M.D.E. was a “resident” of the Bossette household.

In general, Texas cases determining residency have relied on the child’s relationship to the household, the nature of the child’s stay in the home, and the intent of the parties. In Hartford Casualty Insurance Co. v. Phillips, 575 S.W.2d 62 (Tex.Civ.App. — Texarkana 1978, no writ), a fourteen-year old boy left some clothes at his mother’s home and visited her regularly. Id. at 63. Even though his mother had been awarded legal custody, the boy lived primarily with his father. See id. Nonetheless, he was held to be a resident of. his mother’s home for insurance purposes. See id. In Travelers Indemnity Company v. Mattox, 345 S.W.2d 290 (Tex.Civ.App. — Texarkana 1961, writ refd n.r.e.), the court upheld a jury finding that a minor son living temporarily away from his father was a resident of his father’s home under an auto insurance policy. Id. at 292. Most of the son’s personal belongings were still at his father’s home, and he intended to return there to live. See id. at 291. In each of these cases, the child had a blood relationship with others in the household despite having an insignificant presence in the home. Although the children did not regularly live in the household, attend school from there, or even regularly eat meals there, the combination of their relationship to the household and the intent of the parties to continue that relationship was enough to establish residency.

M.D.E. presents a different scenario. A foster parent/child relationship is not as close or as permanent as a normal par-eni/child relationship; however, M.D.E.’s presence in the Bossettes’ home was much more profound than the presence of the children in either Phillips or Mattox. It is undisputed that, for a period of at least five months, M.D.E. lived in the Bossette home, ate her meals there, and shared a bedroom with other foster children over whom the Bossettes had day-to-day authority and responsibility. Her relationship to the household and the nature of her stay convince us that M.D.E. was a resident of the Bossettes’ home during her five-month stay there.

Easter argues that M.D.E. was still a resident of her mother’s home and therefore could not also be a resident in the Bossettes’ home. She cites several cases that indicate that one can be a member of a household even if temporarily absent, asserting “[t]he real test is whether the absence of the party of interest from the household of the alleged insured is intended to be permanent or only temporary— i.e., whether there is physical absence coupled with an intent not to return.” Southern Farm Bureau Cas. Ins. Co. v. Kimball, 552 S.W.2d 207, 208 (Tex.Civ.App.— Waco 1977, writ ref'd n.r.e.). Although M.D.E. was physically absent from her mother’s home, there is evidence to show that the absence was only temporary and that she would return after her mother “got back on her feet.” Based on these facts, one could conclude that M.D.E. was a resident of her mother’s household even as she was living with the Bossettes. This does not, however, preclude her from being a resident of the Bossette household at the same time. See Hartford, 575 S.W.2d at 63.

The Hartford court stated a person could have more than one residence, especially when that person is a minor. See id. We agree. Therefore, even assuming M.D.E. was still a resident in her mother’s home, this does not foreclose the possibility that she was also a resident of the Bossette household. As stated above, we are satisfied that where, as here, a child lives in a foster family home for a period of five months, the child is, as a matter of law, a resident of that household.

Whether a foster placement establishes residency for insurance purposes is a question of first impression in Texas. Accordingly, Easter urges us to look at how other jurisdictions have resolved the same issue. Easter argues that under the residency test used in several other jurisdictions, M.D.E. would not be considered a resident of the Bossette household for insurance purposes. See Pamperin v. Milwaukee Mut. Ins. Co., 55 Wis.2d 27, 197 N.W.2d 783, 787 (1972). In PampeHn, the Wisconsin Supreme Court held the child is a resident of a home where the parties are (1) living under the same roof; (2) in a close, intimate, and informal relationship; and (3) where the intended duration is likely to be substantial, where it is consistent with the informality of the relationship, and where it is reasonable to conclude that the parties would consider the relationship “in contracting about such matters as insurance or in their conduct in reliance thereon.” Id. at 788-89. These factors are to be considered as a whole, with no one factor predominating. See id. at 789.

We find it unnecessary to adopt Pampe-Hn in the present case but briefly note that close analysis of the PampeHn test and accompanying case law shows that, even under the PampeHn analysis, M.D.E. would be considered a resident of the Bos-sette household.

It is uncontroverted that M.D.E. was living under the same roof as the Bos-settes; thus, only the last two factors— intimacy of the relationship and duration of stay — are disputed. Easter asserts that M.D.E. was not in a “close, intimate and informal relationship” because the Bos-settes abused and threatened her. We disagree. Foster parents by nature stand in an intimate relationship of care and responsibility vis-á-vis foster children, irrespective of the quality of the care actually provided by an individual foster family. Easter’s logic would mean that no child could be a resident of a household where she was abused, clearly an unreasonable result.

Regarding the third factor, the Pampe-rin court noted: “[T]he subjective or declared intent ... while a fact to be considered, is not controlling, but the intended duration oftentimes must be determined only after a thorough examination of all the relevant facts and circumstances surrounding the relationship.” Id. at 788. In other words, merely placing the label “temporary” on a stay that would otherwise be considered substantial does not change the fundamental nature of the relationship. While all foster family relationships are necessarily temporary, some are “temporary” for several years. After five months of living in the Bossette’s home and being treated as a member of the family, we believe that M.D.E. was a resident of the Bossette household.

CONCLUSION

Because M.D.E. lived in the Bossette home in a family-like environment for a period of at least five months, we hold that, as a matter of law, M.D.E. was a resident of the Bossette household. She is therefore an insured under the policy and is precluded from recovering for the injuries she sustained in the Bossettes’ home. Because Providence Lloyds has shown that it is entitled to judgment as a matter of law, we need not address Easter’s other issues on appeal. We affirm the trial court’s grant of summary judgment.

Regarding Providence Lloyd’s motion for frivolous-appeal damages, we conclude that Easter had a reasonable expectation of reversal and there has been no showing that she pursued this appeal in bad faith. See In re Long, 946 S.W.2d 97, 99 (Tex.App. — San Antonio 1997, no writ). Providence Lloyd’s motion for damages under Texas Rule of Appellate Procedure 45 is denied.

      . Providence Lloyds asserts M.D.E. was actually with the Bossettes for a span of seven to eight months. The record is inconclusive on the actual length of M.D.E.’s stay with the Bossettes. Giving the non-movant every positive inference, we defer to Easter’s evidence that M.D.E. stayed in the Bossettes’ home for five months of an intended six-month stay.

      . Other jurisdictions have also adopted Wisconsin’s Pamperin test. See Blanchard v. Peerless Ins. Co., 958 F.2d 483, 489 (1st Cir.1992); Nationwide Mut. Ins. Co. v. Budd-Baldwin, 947 F.2d 1098, 1102 (3d Cir.1991); State Farm Fire & Cas. v. Vaughn, 803 F.Supp. 1446, 1450 (S.D.Ind.1992); Dartez v. Atlas Assur. Co., 721 So.2d 109, 112 (La.Ct.App.1998); Donegal Mut. Ins. Co. v. State Farm Mut. Auto. Ins. Co., 377 Pa.Super. 171, 546 A.2d 1212, 1216 (1988); Allstate Ins. Co. v. Tomaszewski, 180 Mich.App. 616, 447 N.W.2d 849, 851 (1989).

      . Applying the Pamperin factors to a foster child situation very similar to the present case, the Wisconsin Court of Appeals found a child to be a resident of a foster home as a matter of law. See Waite v. Travelers Ins. Co., 112 Wis.2d 18, 331 N.W.2d 643, 645 (1983). The court also held that a foster family is a "close, intimate and informal” relationship by design and thus easily meets the second factor of the Pamperin test.


text:
    Gabriel SANDOVAL, Appellant, v. The STATE of Texas, Appellee.
    No. 03-99-00531-CR.
    Court of Appeals of Texas, Austin.
    May 18, 2000.
    Rehearing Overruled June 15, 2000.

      David K. Sergi, Law Offices of David K. Sergi, San Marcos, for appellant.
    Michael S. Wenk, Dist. Atty., James F. Booher, Asst.' Dist. Atty., San Marcos, for State.
    Before Justices JONES, YEAKEL and PATTERSON.
   J. WOODFIN JONES, Justice.

Appellant Gabriel Sandoval appeals the trial court’s refusal to suppress the results of the breath test he took after he was arrested for driving while intoxicated (DWI). See Tex. Penal Code Ann. § 49.04(a) (West Supp.2000). We will affirm.

On July 26, 1998, Officer Randy Harkey of the Hays County Sheriffs Department was driving north on Interstate 35, checking drivers’ speed with radar. Harkey estimated he was moving at sixty miles per hour, but admitted he may have been driving as slowly as fifty-seven miles per hour in the sixty-five mile per hour speed zone. A car came up behind Harkey’s patrol car very rapidly. When Harkey hit his rear flashers to alert the other driver to his presence, the driver locked his brakes, forcing the front of the car down and squealing the tires. Harkey moved over to let the car pass and then pulled back behind the car and turned on his lights. Without signaling, the driver crossed three lanes of traffic to pull his car over on the shoulder.

Harkey asked the driver, appellant, to step out and walk to the back of the car. Harkey viewed appellant’s driver’s license and asked why appellant had been driving so fast. Appellant said he had not been paying attention. Harkey smelled a strong odor of alcohol as he spoke to appellant and saw an open, half-full beer container in the passenger compartment and three unopened cans of beer in the trunk. Harkey asked if appellant had been drinking, and appellant replied he had had a few beers. Appellant refused to take a field sobriety test, claiming he had a bad hip. Appellant also refused to recite the alphabet. Harkey performed a horizontal gaze nystagmus test, which appellant failed. Appellant’s speech was slurred and his eyes were bloodshot.

Harkey asked appellant if he would take an intoxilyzer test, and appellant asked “what would happen if he passed the test.” Harkey testified that he told appellant that if he failed the test he would be charged with DWI, but if he passed, Harkey would call one of appellant’s family members to pick him up. Appellant then agreed to take the test. He was transported to the Hays County Jail, where he was videotaped being given another opportunity to take field sobriety tests and being read his rights. Appellant indicated he understood his rights and refused to take the field sobriety tests. Appellant was asked twenty-one questions, some of which he answered and some of which he refused to answer. Harkey remembered that appellant refused to say what he had been drinking, except to say “water.” Harkey again asked appellant if he would take an intoxilyzer test, and appellant agreed. Appellant signed the consent form and took and failed the intoxilyzer test. Harkey testified he did not coerce or threaten appellant.

Appellant filed a motion to suppress the intoxilyzer results based on Erdman v. State, 861 S.W.2d 890 (Tex.Crim.App. 1993). Appellant argued that Harkey’s statement that appellant could go home with a family member if he passed the test was a “great, great, great incentive, especially late at night, to coerce somebody into taking [an intoxilyzer] test.” The State responded that Harkey had not coerced appellant into taking the test. The trial court denied appellant’s motion to suppress, and appellant entered a plea of nolo contendere, reserving the right to appeal the denial of his motion to suppress. The trial court sentenced him to sixty days in jail with work release and a $500 fine and stayed the start of his jail time pending this appeal.

In one issue on appeal, appellant argues the trial court erred in refusing to suppress his intoxilyzer results because his consent was coerced by Harkey’s statement that if appellant passed he would be released to the custody of his family. We disagree.

The admission or exclusion of evidence is within the trial court’s discretion. See Jackson v. State, 575 S.W.2d 567, 570 (Tex.Crim.App.1979); Ewerokeh v. State, 835 S.W.2d 796, 798 (Tex.App. — Austin 1992, pet. ref'd). We will not reverse a trial court’s ruling absent a clear showing of an abuse of discretion, defined as a decision “so clearly wrong as to lie outside that zone within which reasonable persons might disagree.” Cantu v. State, 842 S.W.2d 667, 682 (Tex.Crim.App.1992).

The implied consent statute provides that a person arrested for an offense alleged to have arisen out, of acts committed while operating a motor vehicle while intoxicated is deemed to have consented to the taking of samples for a breath or blood test. See Tex. Transp. Code Ann. § 724.011 (West.1999). Before an officer may request a breath specimen from a person arrested for DWI, the officer must inform the person of two consequences of refusing to submit a specimen: (1) the refusal may be admissible in a subsequent prosecution; and (2) the person’s driver’s license will be automatically suspended. See id. § 724.015(1X2) (West 1999). These warnings emphasize the importance of ensuring that the consent is given “freely and with a correct understanding of the actual statutory consequences of refusal.” Erdman, 861 S.W.2d at 893 (discussing former article 6701Z-5, § 2 of Texas Revised Civil Statutes, since repealed and re-codified as § 724.015 of Transportation Code). A person’s consent to a breath test is voluntary only if it is not the result of physical or psychological pressures. See id. If the officer requesting a breath sample misstates the law and includes extra-statutory consequences of a refusal to submit to the breath test, the consent may be considered to have been involuntarily given. See id. at 893-94; Texas Dep’t of Public Safety v. Rolfe, 986 S.W.2d 823, 827 (Tex.App. — Austin 1999, no pet.); State v. Sells, 798 S.W.2d 865, 867 (Tex.App. — Austin 1990, no pet.).

Case law generally focuses only on extra-statutory warnings of consequences of refusing a breath test. See, e.g., Erdman, 861 S.W.2d at 893-94; Rolfe, 986 S.W.2d at 826; see also Ewerokeh, 835 S.W.2d at 796; Sells, 798 S.W.2d at 866 (pre-Erdman cases also considering extra-statutory warnings of refusal to take test). It is true, as appellant states, that Erdman was told of the consequences of passing and failing the intoxilyzer test. See Erdman, 861 S.W.2d at 891. He was also tolds however, of the consequences of refusing the test. See id. The court of criminal appeals focused its analysis exclusively on the extra-statutory warnings concerning the consequences of refusing the test. See id. at 893-94. The court stated:

[A] person [arrested for DWI] must be warned that two specific consequences— only two — will definitely and directly result from a refusal to submit to a breath test.... The Legislature has provided that only these two sanctions will directly result from a refusal to submit to a breath test.... If law enforcement officials were permitted to “warn” D.W.I. suspects — even correctly — that a refusal to submit would result in consequences not contemplated by [the implied consent statute], then suspects could easily be coerced into submission, and the protection afforded by this statutory section would be undermined.

Id. at 893 (emphasis added) (citations omitted).

The court did not hold Erdman’s consent was coerced by the warnings about the consequences of taking and passing or failing the test. The court stated:

[Erdman] consented to the intoxilyzer test only after the trooper gave him warnings, both contemplated and not contemplated by [the implied consent statute], concerning the consequences of refusal. The non-statutory information conveyed to [Erdman] (that he would be jailed and charged with D.W.I.) was of the type that would normally result in considerable psychological pressure upon a D.W.I. suspect to consent to the taking of a breath sample. Given the complete absence of any record evidence showing that this non-statutory information given to [Erdman] had no bearing on his decision to consent, no rational factfinder could conclude that the State carried its burden of showing that [Erd-man’s] consent was voluntary.

Id. at 893-94. The court was careful to say it held “only that law enforcement officials must take care to warn D.W.I. suspects correctly about the actual, direct, statutory consequences of refusal.” Id. at 894.

The Erdman court indicated that the warning of additional, non-statutory consequences of refusal was inherently coercive and would give rise to the inference that the consent was coerced, requiring the State to present evidence that the consent was in fact voluntary. See id. at 894. In other words, because the warnings were conclusively coercive and the State presented no evidence showing the consent was voluntary, whether the defendant was actually coerced was not a fact question at the suppression hearing. See id. (no rational fact finder could conclude consent was voluntary). However, it is not enough simply to show extra-statutory warnings of any kind were given; in the absence of an extra-statutory warning that is inherently and necessarily coercive, the defendant must also show “a causal connection between [the] improper warning and the decision to submit to a breath test.” Rolfe, 986 S.W.2d at 827.

We recognize an argument can be made that appellant may have been influenced to some degree by learning he could go home if he passed the test, but we do not believe those warnings were as coercive as the statements on which Erdman was based. The statements in the present case do not lead to a conclusion of coercion that would require the State to present rebutting evidence. Instead, we believe the burden remained on appellant to show that the extra-statutory warnings actually coerced his consent. See id. (evidence indicated Rolfe consented before receiving alleged improper warnings; she did not testify at suppression hearing or present any other evidence that improper warnings coerced consent).

The only case we have found concerning this very specific issue; — the validity of consent given after hearing consequences of passing and failing a breath test — is State v. Serrano, 894 S.W.2d 74 (Tex.App. — Houston [14th Dist.] 1995, no pet.). Serrano was stopped for erratic driving, arrested for DWI, and asked if he would consent to taking an intoxilyzer test. See Serrano, 894 S.W.2d at 75. He was told “if he passed the test he would be free to go but if he failed the test he [would] be put in jail for D.W.I.,” and thereafter consented to the test. Id. at 75. Serrano argued that his consent was coerced and the trial court granted his motion for new trial. See id. The State appealed, arguing the trial court had abused its discretion in granting the new trial. See ■ id. The appellate court disagreed, holding that the trial court’s decision to grant a new trial “was within the zone within which reasonable persons might disagree.” Id. at 76.

In the present case, we believe the trial court’s decision not to suppress appellant’s test results was likewise within the zone of reasonable disagreement. The statements appellant heard about what would happen if he passed or failed the breath test were not of the same coercive nature as those in Erdman, and appellant did not present additional evidence to show a causal link between those statements and his consent to the test. Accordingly, the trial court did not abuse its discretion in refusing to suppress appellant’s intoxilyzer results.

We affirm the trial court’s judgment.

      . The Serrano court used language from Erd-man but did not appear to consider the difference between telling a suspect the consequences of refusing to take a breath test as distinguished from the consequences of taking and passing or failing a test. See Serrano, 894 S.W.2d at 75. Serrano paraphrases Erdman and states that "[wjarning D.W.I. suspects— even factually correctly — of consequences not contemplated in [the implied consent statute] could easily coerce suspects into submission to take the intoxilyzer test, and the protection afforded by the statute would be undermined.” Id. However, the paraphrased statement in Erdman was directed at the danger of coercion arising out of refusal consequences, not pass/fail consequences. See Erdman, 861 S.W.2d at 893. To the extent Serrano actually stands for the proposition that merely telling a DWI suspect of the consequences of passing or failing a breath test is necessarily coercive, we disagree with that proposition and decline to follow Serrano.


author: MACK KIDD, Justice. J. WOODFIN JONES, Justice,

text:
    UNITED COPPER INDUSTRIES, INC. and Texas Natural Resource Conservation Commission, Appellants, v. Joe GRISSOM, Appellee.
    No. 03-99-00117-CV.
    Court of Appeals of Texas, Austin.
    May 18, 2000.
    Rehearing Overruled June 15, 2000.

      Brian E. Berwick, Cynthia Woelk, Asst. Atty. Gen., Natural Resources Division, Austin, Richard W. Lowerre, Henry, Low-erre, Johnson, Hess & Frederick, Austin, for Appellants.
    Keith A. Courtney, Jenkens & Gilchrist, Austin, for appellee.
    Before Justices JONES, KIDD and PATTERSON.
   ON MOTION FOR REHEARING

MACK KIDD, Justice.

We withdraw our original opinion and judgment issued February 3, 2000, and substitute this one in its place.

This is a suit for judicial review of a Texas Natural Resource Conservation Commission (the “TNRCC” or “Commission”) order granting an air quality permit application submitted by United Copper Industries, Inc. (“United Copper”) and denying Joe Grissom’s request for a preliminary adjudicative hearing on whether Gris-som should be entitled to a contested-case hearing on his challenge to the issuance of the permit in question. Upon judicial review of the decision, the district court reversed the Commission’s order and remanded the cause to the Commission for a preliminary adjudicative hearing to provide Grissom an opportunity to present competent evidence in support of his request. United Copper and the Commission appeal the district court’s judgment, citing three independent grounds for reversal. We will affirm.

BACKGROUND

In 1997, United Copper applied to the Commission for a permit to construct and operate two copper melting furnaces in Denton, Texas. See Tex. Health & Safety Code Ann. § 382.0518 (West Supp.2000). United Copper intended to use these facilities to produce commercial grade copper rod that would be used to manufacture electrical wire and cable. In its applieation, United Copper identified the types of emissions the furnaces would release into the environment — primarily copper and lead particulate matter — and attached the results of an “air dispersion computer model” indicating the maximum ground-level concentrations of the contaminants that it predicted would result from its operations. After considering the application and the attached research data, the TNRCC determined that the proposed facilities would not have any negative impact on the health or property interests of the public in the surrounding area — a finding that is necessary before the TNRCC may issue an air quality permit. See id. § 882.0518(b); 30 Tex. Admin. Code § 116.111(2)(A)(i) (1999). United Copper then alerted the public of its permit application by publishing a notice in a local newspaper and posting signs around the proposed construction site as required by statute. See Tex. Health & Safety Code Ann. § 382.056 (West Supp.2000).

Shortly thereafter, Grissom, who lives within two miles of the proposed facilities, sent a letter to the TNRCC requesting a hearing on United Copper’s permit application. In his written hearing request, Grissom expressed his concern about the negative effects he anticipated the facilities would have on his health and the health of his two sons, all of whom suffer from serious asthmatic conditions. In response to Grissom’s letter, United Copper and the Commission’s executive director filed written replies urging the Commission to deny Grissom’s request for a hearing. See 30 Tex. Admin. Code § 55.26(e) (1999) (permitting TNRCC executive director, Office of Public Interest Council, and permit applicant to submit written responses to hearing requests). In its response, United Copper maintained that Grissom’s request should be denied because: (1) Grissom did not have standing as an “affected person” to request a contested-case hearing, (2) the hearing request was “unreasonable,” and (3) Grissom failed to present any competent evidence in support of his request. The Commission’s executive director, on the other hand, contended in his response that although Grissom was an affected person based on the factors set forth in the agency’s rules, Grissom’s request should nevertheless be denied solely on the ground that it was “unreasonable.” He argued that it was unreasonable because the uncontroverted evidence United Copper submitted with its application established that the emissions would probably not negatively affect Grissom, his family, or any other members of the public. Gris-som did not reply to the responses filed by United Copper and the Commission’s executive director, despite notice from the Commission that he was permitted to do so. Nor did Grissom ever submit any evidence in support of his request.

Apart from the hearing request itself, the only item filed in support of Grissom’s request was a report issued by the Office of Public Interest Council (“OPIC”), a division of the Commission that represents the public’s interest. Citing its concern for procedural fairness, OPIC recommended that the TNRCC grant Grissom’s request. OPIC reasoned that if the Commission refused to grant the request, Grissom would be denied due process because he would be denied an opportunity to prove the merits of his case on the basis of evidence that he had not been given a fair opportunity to present or refute.

The Commission gave Grissom and United Copper one month’s notice of the public meeting scheduled to evaluate and act on Grissom’s hearing request. The notice stated that Grissom was free to attend the meeting and might be called upon to answer any questions the Commission might have; however, the notice provided that this was to be a formal meeting at which no testimony would be taken. At this meeting and after reviewing Grissom’s request and the responses filed by United Copper, OPIC, and the Commission’s executive director, the Commission denied Grissom’s hearing request after concluding that he had not satisfied the requirements set out in the Commission’s rules; it also granted the air quality permit United Copper needed in order to construct and operate its furnaces.

Grissom proceeded to file suit in district court, seeking judicial review of the Commission’s decision. Grissom contended that, at the very least, he was entitled to a preliminary hearing where he would have an opportunity to offer competent evidence in support of his request. The TNRCC responded with a general denial, and United Copper intervened to protect its interest in the permit it had been granted. The district court ultimately agreed with Gris-som and decided that the Commission erred in determining that the hearing request was unreasonable and not supported by competent evidence without first providing Grissom an opportunity to present his evidence at a preliminary adjudicative hearing. In its final judgment, the district court reversed the TNRCC’s order and remanded the cause to the Commission for a preliminary hearing at which Grissom would have the opportunity to present competent evidence in support of his request.

United Copper and the Commission now appeal the district court’s judgment, maintaining that the Commission properly denied the hearing request because: (1) Gris-som did not have standing as an “affected person” to request a contested-case hearing, (2) the hearing request was “unreasonable,” and (3) Grissom failed to present any competent evidence in support of his request.

STANDARD OF REVIEW

Grissom filed his request for a contested-case hearing in accordance with the Texas Clean Air Act. See Tex. Health & Safety Code Ann. §§ 382.001-.143 (West 1992 & Supp.2000). Authority to sue the Commission under the Act is found in section 382.032(a), which provides that “[a] person affected by a ruling, order, decision, or other act of the commission or of the executive director ... may appeal the action by filing a petition in a district court of Travis County.” Tex. Health & Safety Code Ann. § 382.032(a) (West Supp.2000). When judicial review of a decision is sought, the only issue for the court to decide is “whether the [Commission’s] action is invalid, arbitrary, or unreasonable.” Id. § 382.032(e). This Court has applied this unusual standard of review only once before. See Smith v. Houston Chem. Servs., Inc., 872 S.W.2d 252, 257 n. 2 (Tex.App. — Austin 1994, writ denied). In Smith, we indicated that this standard seems to imply the applicability of the scope of review set forth in the Administrative Procedure Act (the “APA”). See id.; Tex. Gov’t Code Ann. § 2001.174 (West 2000). Because the statutory grounds for reversal in the APA are legal questions subject to de novo review by a court of appeals, we will treat as a question of law the issue here of whether the Commission’s order was invalid, arbitrary, or unreasonable. See Texas Dep’t of Public Safety v. Doyle, 987 S.W.2d 897, 899 (Tex.App. — Fort Worth 1998, no pet.); cf In re Humphreys, 880 S.W.2d 402, 404 (Tex.1994).

DISCUSSION

The issue presented in this appeal is quite narrow. Our review is limited to the confínes of the district court’s judgment granting Grissom a preliminary hearing to provide him an opportunity to offer competent evidence in support of his request. Contrary to what appellants suggest, the district court did not grant Gris-som a contested-case hearing on the merits of his case against United Copper’s application; rather, the district court merely ordered the Commission to provide Grissom a preliminary hearing where he would have a meaningful opportunity to offer competent evidence in support of his request. It is this narrow decision that we are called upon to review. We do not comment on the ultimate issue of whether the Commission should grant Grissom’s request for a contested-case hearing on the merits of his case against United Copper’s permit application.

The TNRCC is charged with the duty of administering many of the laws designed to safeguard this state’s environment and conserve its natural resources. This includes the crucial task of overseeing the regulatory protection of the State’s air quality. See Tex. Health & Safety Code Ann. § 382.011 (West Supp.2000). The legislature was undoubtedly mindful of the magnitude of this responsibility when it enacted the Texas Clean Air Act (the “Act”), which begins:

The policy of this state and the purpose of this chapter are to safeguard the state’s air resources from pollution by controlling or abating air pollution and emissions of air contaminants, consistent with the protection of public health, general welfare, and physical property, including the esthetic enjoyment of air resources by the public and the maintenance of adequate visibility.

Id. § 382.002. The legislature mandates that the Act be “vigorously enforced.” Id.

In furtherance of this policy, the Act requires that any person intending to construct, modify, or operate a facility that may emit air contaminants first apply to the TNRCC for an air quality permit which must be granted before that person may construct or operate the facility. See id. §§ 382.051, .0518. Once the application is complete, the applicant must provide the public with notice of its application. See id. § 382.056. This requirement affords individuals who may be affected by the grant or denial of the permit a meaningful opportunity to voice their concerns and participate in the permitting process by requesting a contested-case hearing on the permit application.

Here, United Copper gave the required notice, and Grissom timely responded with a written request for a hearing on the issue of whether the Commission should grant the permit. At the time Grissom submitted his request in 1998, one of the statutes governing the hearing process provided that “the commission or its delegate shall hold a hearing on the permit application or permit renewal application before granting the permit or renewal if a person who may be affected by the emissions' ... requests a hearing within the period set by commission rule.” Act of May 4, 1995, 74th Leg., R.S., ch. 149, § 2, 1995 Tex. Gen. Laws 996, 997 (Tex. Health & Safety Code Ann. § 382.056(d), since amended by Act of May 30, 1999, 76th Leg., R.S., ch. 62, § 11.04(c), ch. 1350, § 5(g), 1999 Tex. Gen. Laws 4570, 4574). Thus, to be entitled to a hearing, the individual requesting it must be “a person who may be affected” by the emissions that would result if the permit were granted.

In its first point of error, United Copper argues that Grissom is not a person who would be affected by the proposed facility. An affected person is “one who has a personal justiciable interest related to a legal right, duty, privilege, power, or economic interest affected by the application.” 30 Tex. Admin. Code § 55.29(a) (1999). An interest that is common to members of the general public does not qualify as a personal justiciable interest.

See id. This standard does not require parties to show that they will ultimately prevail on the merits; it simply requires them to show that they will potentially suffer harm or have a justiciable interest that will be affected. See Heat Energy Advanced Tech., Inc. v. West Dallas Coalition for Envtl. Justice, 962 S.W.2d 288, 289 (Tex.App. — Austin 1998, pet. denied) (analyzing identical standard as articulated in section 5.115(a) of Texas Water Code).

In support of its contention, United Copper specifically cites two of the six factors the TNRCC considers in determining whether an individual is an affected person. See 80 Tex. Admin. Code § 55.29(c)(l)-(6). The first factor demands consideration of “whether a reasonable relationship exists between the interest claimed and the activity regulated.” Id. § 55.29(c)(3). The second requires consideration of the “likely impact of the regulated activity on the health, safety, and use of the property of the person.” Id. § 55.29(c)(4). Although United Copper presumably concedes that the serious health and safety concerns Grissom has raised are reasonably related to the proposed regulated activity, it argues that Grissom is not an affected person because United Copper’s unrefuted evidence conclusively establishes that Grissom’s health, safety, and property will not be affected. We disagree.

Contrary to United Copper’s contention, the modeling data provided to the Commission does not prove that Grissom and his family will not be affected. Rather, the data merely suggests that Grissom may not be affected to a sufficient degree to entitle him to prevail in a contested-case hearing on the merits of his case against United Copper’s application. United Copper confuses the preliminary question of whether an individual has standing as an affected person to request a contested-case hearing with the ultimate question of whether that person will prevail in a contested-case hearing on the merits. In essence, United Copper suggests that Grissom should be required to prove that he will prevail in a contested-case hearing just to show that he has the standing necessary to request such a hearing. We reject this argument here just as we did in Heat Energy. See 962 S.W.2d at 295.

In his hearing request, Grissom raised specific concerns about the possible negative impacts that the copper plant could have on his health and the health of his family. As stated, Grissom lives within two miles down-wind of the proposed facility, and he and his sons suffer from serious asthma. United Copper’s own data indicates that the operations will result in increased levels of lead and copper at the site of Grissom’s home and the elementary school one of his sons attends. Considering Grissom’s unique health concerns and his close proximity to the proposed facility, we conclude that he is more likely than other members of the general public to be adversely affected by the facility. Although the parties dispute the severity of the impact that the emissions will have on Grissom and his family, it is clear that the Grissoms will be affected to some degree. As even the TNRCC’s executive director concluded, Grissom and his family have a personal, justiciable interest affected by United Copper’s application, and this interest is different than that of the general public. Thus, Grissom is a person who may be affected by the permit as contemplated by the statute and the Commission’s rules. We overrule appellants’ first point of error.

Having concluded that Grissom is an affected person, we next turn to the question of whether his request was reasonable and supported by competent evidence. Although affected persons generally are entitled to a hearing upon request, this right is qualified. In certain circumstances, a hearing request shall not be granted, even if submitted by “a person who may be affected”:

The Commission shall not hold a hearing if the basis of a request by a person who may be affected is determined to be unreasonable. Reasons for which a request for a hearing on a permit amendment, modification, or renewal shall be considered to be unreasonable include, but are not limited to, an amendment, modification, or renewal that would not result in an increase in allowable emissions and would not result in the emission of an air contaminant not previously emitted.

Act of May 4, 1995, 74th Leg., R.S., ch. 149, § 2, 1995 Tex. Gen. Laws 996, 997 (Tex. Health & Safety Code Ann. § 382.056(d), since amended) (emphasis added). Prior to its amendment in 1999, section 5.115 of the Texas Water Code went even further in qualifying a request- or’s right to a hearing: “The commission is not required to hold a hearing if the commission determines that the basis of a person’s request for a hearing as an affected person is not reasonable or is not supported by competent evidence.” Act of May 28,1995, 74th Leg., R.S., ch. 882, § 1, 1995 Tex. Gen. Laws 4380, 4381 (Tex. Water Code Ann. § 5.115(a), since amended by Act of May 30,1999, 76th Leg., R.S., ch. 1350, § 1, 1999 Tex. Gen. Laws 4570); see also 30 Tex. Admin. Code § 55.27(b)(2) (1999).

Citing these two statutory provisions, United Copper and the Commission argue in their final two points of error that the Commission’s decision to deny Grissom’s request was proper because the hearing request was both unreasonable and not supported by competent evidence. We disagree. After carefully reviewing the facts, we are persuaded that the Commission’s decision was unreasonable because it denied Grissom a meaningful opportunity to offer evidence in support of his request and a chance to refute the proof offered by United Copper.

■ It is undisputed that when Grissom submitted his request, he did not simultaneously offer any evidence in support of his request. Despite this apparent failure to satisfy the burden of offering competent evidence in support of his request, Grissom nevertheless argued — and the district court agreed — that at the very least the Commission should have granted him a preliminary hearing to provide him an opportunity to offer such evidence. Appellants counter that Grissom had a sufficient opportunity to offer evidence and that he simply failed to take advantage of this opportunity. They maintain that Gris-som’s failure to meet his burden of production resulted from his own mistake and, furthermore, that his request was unreasonable in light of the evidence United Copper introduced suggesting that the emissions would not significantly affect the Grissoms.

Although appellants’ argument appears persuasive on its surface, it ultimately fails because it erroneously presupposes that Grissom had a meaningful opportunity to present the necessary evidence. . Furthermore, it disregards the confusing nature of the Commission’s notices and the language used in the Commission’s own rule governing hearing requests. See 30 Tex. Admin Code § 55.21(c), (d). While we remain mindful of the statutory provision requiring Grissom to submit competent evidence in support of his request, we believe that individuals requesting a hearing should be provided, at the very minimum, a fair and meaningful opportunity to present such evidence. The fundamental ideals of fairness implicit in the rationale behind providing public notices and opportunities for hearings demand this much. Basic due process requires that when a decision maker is called upon to make a decision grounded on evidence, the parties involved should be provided fair notice and a meaningful opportunity to present their evidence. Given the facts of this case, we are convinced that because of the lack of clarity of the Commission’s notices and its rule governing hearing requests, Grissom was not provided a meaningful opportunity to meet his burden of production.

First, we observe that in the public notice United Copper published following the submission of its application, Grissom was told that to request a hearing he must submit the following:

(1) your name (or for a group or association, an official representative), mailing address, daytime phone number, and fax number, if any; (2) the applicant’s name and permit number; (3) the statement “IAve request a public hearing”; (4) a brief, specific statement of how and why emissions from the proposed facility would adversely affect you in any way not common to members of the general public; and (5) the location of your property relative to the proposed facility-

(Emphasis added.) This notice makes no reference to any evidentiary requirement. Likewise, in its written response to Grissom’s request, the Commission never alluded to any need to offer evidence, although it acknowledged receiving the request and explained how it would be reviewed. Next, in a letter sent to Grissom and the other parties interested in United Copper’s permit application, the Commission stated that it would not permit any oral argument or public comment at its formal meeting and indicated that its decision to grant or deny the hearing request would be based on “the hearing request, written responses to the hearing request, any written replies to those responses, and any responses to questions.” Again, the Commission never indicated that its decision might depend upon whether Gris-som submitted evidence in support of his request.

Finally, TNRCC’s own administrative rule governing the submission of hearing requests does not require those requesting hearings to submit evidence with their requests; it merely establishes the deadline by which hearing requests must be received and restates the same requirements set out in the Commission’s public notice, including the need to submit a “brief, but specific, written statement” explaining how the requestor will be affected in a manner not common to members of the general public. See 30 Tex. Admin. Code § 55.21(c), (d). Grissom satisfied these requirements. Therefore, based upon the notices in the record and the administrative rules governing this cause, we hold that the Commission acted unreasonably in not granting Grissom a preliminary hearing affording him a meaningful opportunity to present evidence. We overrule appellants’ final two points of error.

CONCLUSION

The Commission’s decision to deny Grissom’s request without first providing him an opportunity to present evidence in support of his request, as well as a chance to rebut the evidence produced by United Copper, was unreasonable. Our holding, however, is a narrow one and is restricted to the facts of this case. We do not decide the issue of whether the Commission should ultimately grant Grissom a contested-ease hearing on the merits or whether United Copper’s permit application should be granted; those issues can only be decided after Grissom is provided a preliminary hearing where he will have a meaningful opportunity to offer his own evidence in support of his request, as well as the chance to rebut the evidence already submitted by United Copper. Having overruled all of appellants’ points of error, we affirm the district court’s judgment.

J. WOODFIN JONES, Justice,

dissenting.

I respectfully dissent.

In this case, Grissom’s right to a hearing on the permit request is premised on former section 382.056(d) of the Health and Safety Code, which in turn is qualified by the limitations found later in that same section and in former section 5.115(a) of the Water Code. See Act of May 4, 1995, 74th Leg., R.S., ch. 149, § 2, 1995 Tex. Gen. Laws 997 (Tex. Health & Safety Code Ann. § 382.056(d), since amended); Act of May 28, 1995, 74th Leg., R.S., ch. 882, § 1, 1995 Tex. Gen. Laws 4381 (Tex. Water Code Ann. § 5.115(a), since amended). Even assuming that Grissom is “a person who may be affected” by the granting of the permit, I cannot agree that the Commission’s determination that Gris-som’s request was unsupported by competent evidence was invalid, arbitrary, or unreasonable.

In addition to the statutory requirement that a .hearing request be reasonable, the pre-1999 Water Code required that persons requesting a contested-case hearing offer competent evidence in support of the request. See Act of May 28, 1995, 74th Leg., R.S., ch. 882, § 1, 1995 Tex. Gen. Laws 4381 (Tex. Water Code Ann. § 5.115(a), since amended). As both parties acknowledge, Grissom submitted his request without offering any evidence, much less competent evidence, in support of his request. Despite Grissom’s failure to satisfy this statutory requirement, the majority nonetheless concludes that the only way he can .be given a “meaningful opportunity” to offer competent evidence in support of his request is through a separate contested-case hearing, i.e., a contested-case hearing to determine if he is entitled to a contested-case hearing.

In addition to failing to offer any guidance on what constitutes a reasonable hearing request, the statute is silent as to what form of proceeding, if any, is necessary to make the preliminary determination of whether the statutory prerequisites for a hearing request are met. The Commission addressed this uncertainty by promulgating its own rules to apply in these circumstances. See 30 Tex. Admin. Code § 55.27(a) (1999). By its rules, the Commission has provided that to the extent it must decide whether a request for a hearing should be granted, it is not required to hold a contested-case hearing: “The determination of the validity of a hearing request is not, in itself, a contested case subject to the APA.” 30 Tex. Admin. Code § 55.27 (1999). The Commission is only required to evaluate the hearing request at a scheduled public Commission meeting where it may decide to proceed in one of four possible ways. Consequently, the preliminary determination of whether a request is supported by competent evidence may be made without ever conducting an adjudicative hearing. Referring the hearing request to the State Office of Administrative Hearings (“SOAH”) for a preliminary contested-case hearing solely on the issue of whether the request for a hearing should be granted, as the Commission determined was not appropriate here, is only one available option. See id. § 55.27(a)(4). In the event the Commission determines on its own that the hearing request does not meet the statutory requirements, it may deny the request and proceed to act on the application. See id. § 55.27(a)(1).

Although, as the majority points out, the TNRCC failed to indicate in its notice that his request needed to be supported by competent evidence, the Water Code as it read in 1995 plainly required that Grissom offer such evidence. Because all persons are charged with knowledge of the law, Grissom was charged with knowledge of this requirement, even in the absence of the Commission advising him of this. See Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 528, 525 n. 3 (Tex.1990). Furthermore, contrary to his claim, Grissom had sufficient opportunity to offer his own evidence in support of his request, as well as to respond to the challenges United Copper had lodged against his request. See 30 Tex. Admin. Code §§ 55.21, 55.26(f) (1999).

As the person requesting the hearing, Grissom — along with United Copper, OPIC, and the TNRCC director — was free to submit written comments, data, and other information to support his position that the hearing request should be granted. See 30 Tex. Admin. Code § 55.26(f). In a letter sent to Grissom and all the other parties interested in United Copper’s permit application, the Commission stated that, although it would not permit oral argument or public comment at the meeting on the issue of whether the request should be granted, it might wish to use the public meeting as a forum to ask questions of the person requesting the hearing. The letter also stated that the Commission’s decision would be based on “the hearing requests, written responses to the hearing request, any written replies to those responses, and any response to questions.” (Emphasis added.) Thus, Grissom could have offered evidence in support of his request or otherwise challenged United Copper’s objections to his request at any time up to six days before the Commission meeting. See id. Although Grissom’s ignorance of the evidentiary requirement at the time he first submitted his request is quite understandable, his failure to offer competent evidence after receiving United Copper’s written response to his request is not so easily excused. After all, United Copper’s response specifically referred to and discussed at length Grissom’s failure to support his request with competent evidence as required by the Water Code.

Furthermore, Grissom was free to attend the public meetings held for the purpose of receiving public comment on the permit application, as well as the very meeting where the Commission evaluated his request. At the latter meeting, Gris-som could have responded to any questions the Commission might have had concerning his request. Despite these opportunities, Grissom chose not to offer any evidence in support of his request or to otherwise respond to the challenges United Copper had made to his request. For this reason, I disagree that Grissom was deprived of a meaningful opportunity to offer evidence in support of his request.

In light of the clear legislative mandate that those requesting administrative hearings before the TNRCC support their requests with competent evidence, and in the absence of any constitutional, statutory, or regulatory provision requiring the Commission to hold a hearing to make this preliminary determination, I cannot agree that the Commission’s decision to deny Grissom’s request on this basis was invalid, arbitrary, or unreasonable. I would therefore sustain appellant’s second issue, reverse the district court’s judgment, and render judgment affirming the Commission’s order.

of the complaint, and the pleadings are to be liberally construed.

      . Three other concerned residents in the area also filed hearing requests. Although their hearing requests were also denied, these individuals did not seek judicial review of the TNRCC's decision. The issue in this appeal is therefore limited to the denial of Grissom’s request.

      . Initially, Citizens for Healthy Growth (“Citizens”), a local community action group interested in protecting the local environment and aligned with Grissom, was also a party at the district court level. However, the Commission and United Copper filed pleas to the jurisdiction and successfully argued that Citizens lacked standing to bring suit. The district court granted the pleas to the jurisdiction and dismissed Citizens' claims, leaving only Grissom's cause of action. Citizens chose not to challenge the district court's ruling and is not a party to this appeal.

      . Air dispersion computer modeling is a method commonly used by the TNRCC, the United States Environmental Protection Agency, and companies applying for air quality permits to evaluate the possible impacts of emissions on humans and the environment. Air dispersion computer modeling predicts the maximum ground-level concentrations of air contaminants at various off-site locations. as would result from a facility’s operations in the event the requested permit were issued.

      . In his written response to the hearing requests filed by Grissom and three of Gris-som’s neighbors, the Commission’s executive director stated:
      All four of the individuals expressed a personal justiciable interest affected by the application, specifically concerns relating to air pollution and exacerbated respiratory illnesses based upon the individuals’ proximity to the proposed facility. These interests are protected by the Texas Clean Air Act, and are not common to members of the general public, as required by 30 [Tex. Admin. Code] § 55.29(a).... Accordingly, all four individuals requesting a hearing appear to meet the criteria for 'affected person’ under § 55.29(c).

      . When the former Texas Air Control Board and Texas Water Commission were merged and became the Texas Natural Resources Conservation Commission in 1991, the body of .statutory law applicable to the TNRCC remained divided between the Texas Water Code and the Texas Health and Safety Code. Here, all the parties agree that former section 5.115 of the Texas Water Code and former section 382.056(d) of the Texas Health and Safety Code both govern Grissom's hearing request.

      . Although we note that Grissom was pro se at the time he submitted his request, we do not apply a different standard. See Scoville v. Shaffer, 9 S.W.3d 201, 204 (Tex.App. — San Antonio 1999, no pet.); Bailey v. Rogers, 631 S.W.2d 784, 786 (Tex.App. — Austin 1982, no writ) (both holding pro se litigants to same standard as litigants represented by licensed counsel).

      . Section 55.27 provides that upon evaluating the hearing request at the scheduled hearing, the Commission may:
      (1) determine that a hearing request does not meet the requirements of this sub-chapter, and act on the application;
      (2) determine that a hearing request does not meet the requirements of this sub-chapter, and refer the application to a public meeting to develop public comment before acting on the application;
      (3) determine that a hearing request meets the requirements of this subchapter, and direct the chief clerk to refer the application to SOAH [State Office of Administrative Hearings] for a hearing; or
      (4)direct the chief clerk to refer the hearing request to SOAH. The referral may specify that SOAH should prepare a recommendation on the sole question of whether the request meets the requirements of this subchapter.... If the commission refers the hearing request to SOAH it shall be processed as a contested case under the APA.
      30 Tex. Admin. Code § 55.27(a).


author: /s/ Joseph E. Lambert CHIEF JUSTICE

text:
    Benny Lee HODGE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 96-SC-1085-MR.
    Supreme Court of Kentucky.
    Oct. 13, 1999.
   ORDER

Appellant moves this Court to appoint a special justice to hear the direct appeal of his conviction and death sentences in this case. Although Kentucky Utils. Co. v. South East Coal Co., Ky., 836 S.W.2d 407 (1992) upheld the constitutionality of the policy and procedure which authorized the- Chief Justice to appoint a special justice to serve on the Court when one justice is disqualified from participation in the consideration of a case, that opinion does not hold that the Constitution of Kentucky, or any statute or administrative regulation, requires that such appointment be made or that such policy be continued. This Court as presently comprised has previously and unanimously determined that such policy should be discontinued. Therefore, the policy set forth in the Appendix to the opinion in Kentucky Utils. Co. v. South East ■ Coal Co., supra, has been rescinded. Accordingly, Appellant’s motion that this Court appoint a special justice to serve on this case is DENIED.

Appellant moves in the alternative that a reversal be required in this or any capital case in which the votes of the justices sitting on the ease are 3-3. This motion is also DENIED. KRS 21A.060, SCR 1.020.

All concur.

/s/ Joseph E. Lambert

CHIEF JUSTICE