text:
    Dana BERGHOLTZ, Individually and d/b/a Onestop Wireless, Appellant, v. SOUTHWESTERN BELL YELLOW PAGES, INC., Appellee.
    No. 08-08-00275-CV.
    Court of Appeals of Texas, El Paso.
    May 12, 2010.

      Robert A. Skipworth, El Paso, TX, for Appellant.
    Henry J. Paoli, Scott, Hulse, Marshall, Feuille, Finger & Thurmond, P.C., El Paso, TX, for Appellee.
    Before CHEW, C.J., RIVERA, J., and GOMEZ, Judge.
   OPINION

DAVID WELLINGTON CHEW, Chief Justice.

Appellant, Dana Bergholtz, appeals the trial court’s judgment based on its exclusion of testimony by his expert witness and by Appellant himself with respect to lost profits. On appeal, Mr. Bergholtz argues the trial court erred in excluding both testimonies, and that these errors were not harmless. We will affirm.

.Mr. Bergholtz owned and operated a business in El Paso that sold wireless service and accessories beginning in 1997. In 2001, he opened another location in El Paso, which was engaged in the same business. In February 2002, Mr. Bergholtz entered into a contract with Southwestern Bell to advertise in its 2002-2003 Yellow Pages directory. According to him, the advertisement in the 2002-2003 directory contained many mistakes regarding his business, including phone numbers, locations, and service providers. He refused to pay the fee for this particular advertisement. Mr. Bergholtz sold his business in late 2003.

In early 2003, Southwestern Bell brought suit against Mr. Bergholtz based on sworn account, breach of contract, and quantum meruit to collect an unpaid debt related to his advertisement in its 2002-2003 Yellow Pages directory. Mr. Ber-gholtz first filed counterclaims against Southwestern Bell based on breach of contract and negligence. He then filed an amended counterclaim citing claims under the Texas Deceptive Trade Practices Act (“DTPA”). He sought reasonable attorney’s fees, as well as lost profits, which he claimed resulted from the erroneous information in the advertisement.

In February 2008, Southwestern Bell filed a motion for summary judgment arguing: (1) Mr. Bergholtz had no cause of action for breach of contract because the parties’ agreement contemplated the alleged errors in the advertisement, and the limitation of liability clause in the contract limited his damages to the amount paid; (2) Mr. Bergholtz had no cause of action for negligence or for a violation of the DTPA because of the economic loss rule; and (3) the statutes of limitation governing Mr. Bergholtz’s negligence and DTPA claims barred those claims. In his response, Mr. Bergholtz agreed with the company’s motion for partial summary judgment as to the negligence cause of action, but argued the DTPA claim was still viable. He further argued that the limitation of liability clause in the contract for the 2002-2003 Yellow Pages advertisement was unenforceable due to a lack of agreement between the parties and inconspicuous nature of the clause’s terms.

In March 2008, the trial court granted partial summary judgment in favor of Southwestern Bell. The court ordered Mr. Bergholtz to take nothing on his counterclaims of negligence and DTPA violations.

Prior to trial, Southwestern Bell filed a motion to exclude Mr. Dunbar’s expert testimony on the amount of lost profits Mr. Bergholtz suffered as a result of the alleged errors in the 2002-2003 Yellow Pages advertisement. At the conclusion of the hearing on this motion, the court did exclude Mr. Dunbar’s testimony on lost profits because, he found that the testimony had an excessive analytical gap, and both the underlying method and data used were flawed.

At trial, Mr. Bergholtz presented evidence in the form of an offer of proof with respect to his business’s lost profits, which he claimed resulted from the erroneous information in the Yellow Pages advertisement. At the conclusion of this hearing, the court held Mr. Bergholtz lacked competency to testify on lost profits, and it excluded his testimony on that issue.

The court subsequently directed a verdict in favor of Southwestern Bell in connection with Mr. Bergholtz’s breach of contract counterclaim. When the case was submitted to the jury on Southwestern Bell’s breach of contract claim and Mr. Bergholtz’s material breach of contract affirmative defense, the jury returned a verdict and found the company’s material breach of contract excused Mr. Bergholtz’s failure to pay for advertising. As a result, the trial court rendered a take nothing judgment.

In his two issues, Mr. Bergholtz contends the trial court erred in sustaining Southwestern Bell’s motion to exclude the testimony of witnesses, both expert and non-expert.

We review a trial court’s ruling on the admissibility of evidence for an abuse of discretion. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex.1998). The test for abuse of discretion is whether the trial court acted without reference to any guiding rules or principles, or whether the act was arbitrary and unreasonable. E.I. du Pont de Nemours & Co., Inc. v. Robinson, 923 S.W.2d 549, 558 (Tex.1995); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985). We will uphold the court’s ruling if there is any legitimate basis for the ruling. Malone, 972 S.W.2d at 43.

We review a trial court’s exclusion of expert testimony for an abuse of discretion. See Kelly v. State, 824 S.W.2d 568, 574 (Tex.Crim.App.1992). We cannot conclude that a court abused its discretion if, in the same circumstances, it would have ruled differently, or if the court committed a mere error in judgment. See Robinson, 923 S.W.2d at 558.

However, pursuant to Texas Rule of Appellate Procedure 44.1, a trial court’s error of law is reversible only if it caused harm. See Tex.R.App.P. 44.1. We cannot reverse a judgment unless the error probably caused the rendition of an improper judgment or probably prevented the appellant from properly presenting the case on appeal. See Tex.R.App.P. 44.1.

In Issue One, Mr. Bergholtz contends the trial court abused its discretion by excluding the testimony of his expert witness, Mr. John Dunbar, on lost profits. Mr. Bergholtz argues that Mr. Dunbar’s testimony met all the qualifications to constitute reliable testimony. He contends Mr. Dunbar “proved to be reliable because he was reasonably certain regarding his calculation of lost profits and his opinion was predicated upon factual data derived from the previous operation of the business.” Mr. Bergholtz further claims that Mr. Dunbar used net income in his calculation of lost profits, explained his calculation in arriving at a forecast for lost profits, and that Southwestern Bell was unable to establish the unreliability of Mr. Dunbar’s testimony.

In Issue Two, Mr. Bergholtz argues the trial court abused its discretion by excluding his own testimony on lost profits because it determined he was not competent to testify on the issue. He claims the court erred because as the business owner, he was competent to testify on lost profits based on his personal knowledge. He also claims that at trial, he showed his calculations regarding lost profits, established his tracking of business customers, and testified about his business’s ultimate sales price, as well as its value prior to publication of the 2002-2003 Yellow Pages advertisement.

Under Texas Rule of Appellate Procedure 44.1, we cannot reverse the trial court’s judgment even if it made an error of law, unless we determine Mr. Bergholtz suffered harm as a result of the exclusions of Mr. Dunbar’s and Mr. Bergholtz’s testimonies on lost profits. See Tex.R.App.P. 44.1. As such, we will first address whether the court’s decisions to exclude these testimonies caused Mr. Bergholtz harm.

In the “Acknowledgment of Application” for advertising in the 2002-2003 Yellow Pages directory, Mr. Bergholtz signed his name below the statement: “I verify that I have reviewed the Terms and Conditions on the reverse side of this Acknowledgment of Application.” The reverse side of the Acknowledgment of Application is titled “Terms and Conditions,” and contains a clause titled “Limitation of Publisher’s Liability.” This clause states in part: “THE LIABILITY OF THE PUBLISHER IS LIMITED TO AN AMOUNT EQUAL TO THAT ACTUALLY PAID FOR THE ITEMS OF ADVERTISING, OMITTED, OR IN WHICH THE ERROR OCCURS, FOR THE ISSUE LIFE OF THE DIRECTORY.” At his oral deposition, Mr. Bergholtz testified he understood he was entering into a contract with Southwestern Bell when he signed this document, that he voluntarily signed this contract with Southwestern Bell, and that he voluntarily accepted the terms and conditions of the contract.

Mr. Bergholtz testified at trial that he did not pay Southwestern Bell any fees relating to the parties’ contract for the 2002-2008 Yellow Pages advertisement. Thus, if we conclude the contract was enforceable, then Mr. Bergholtz would not be entitled to any lost profits because his recovery under the contract is limited to the amount he actually paid, in accordance with the limitation of liability clause. If we reach such a conclusion, then Mr. Dunbar’s and Mr. Bergholtz’s testimonies on lost profits would be irrelevant, and the trial court’s exclusions of these testimonies would be harmless. See Tex.R.App.P. 44.1.

With respect to the enforceability of the advertising contract, Mr. Bergholtz contends the contract’s limitation of liability clause was unenforceable because he did not agree to it, and the clause was not conspicuous. Mr. Bergholtz cites Dresser Industries v. Page Petroleum in arguing the clause in the instant contract was unenforceable because it was not conspicuous. See Dresser Industries, Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 508 (Tex.1993).

In Dresser, the Texas Supreme Court held a contract provision releasing a party from all liability claims caused by its own future negligence must be conspicuous, as defined under the Uniform Commercial Code, to be enforceable. Id. at 508-11. However, in Green Intern., Inc. v. Solis, the Texas Supreme Court clarified that the holding in Dresser was “explicitly limited to releases and indemnity clauses in which one party exculpates itself from its own future negligence.” Green Intern., Inc. v. Solis, 951 S.W.2d 384, 387 (Tex.1997). The Court explained that DressePs holding did not apply in Green, where the disputed contract provision was a no-damages-for-delay clause that shifted economic damages resulting from a breach of contract. Green Intern., Inc., 951 S.W.2d at 387.

Similar to Green, the limitation of liability clause in this case protects Southwestern Bell from liability if the advertiser fails to pay, and so it merely shifts damages resulting from a breach of contract. See Green Intern., Inc., 951 S.W.2d at 387. This contrasts with the clause in Dresser, which operated to shift risk in an extraordinary way such that it exculpated a party from the consequences of its own future negligence. See Dresser, 853 S.W.2d at 508. The clause in the instant case does not constitute the type of extraordinary risk-shifting found in Dresser. See id. As such, the clause in this case need not meet Dresser’s conspicuous requirement.

Based on our review, Mr. Ber-gholtz signed and agreed that Southwestern Bell’s liability was limited to the amount he actually paid for the advertising in the Yellow Pages directory, and the terms of the limitation of liability clause need not be conspicuous in this instance. See Green Intern. Inc., 951 S.W.2d at 387. As such, Mr. Bergholtz has failed to show that the advertising contract’s limitation of liability clause was unenforceable. Because this clause was enforceable, it precluded any lost profits Mr. Bergholtz claims the erroneous advertisement caused. Therefore, even if we assume the trial court erred in excluding the testimonies on lost profits, its error did not cause the rendition of an improper judgment, or prevent Mr. Bergholtz from properly presenting the case. See Tex.R.App.P. 44.1. In other words, no harm resulted from the court’s exclusions of Mr. Dunbar’s and Mr. Bergholtz’s testimonies on lost profits. See Tex.R.App.P. 44.1. Accordingly, Issues One and Two are overruled.

Having overruled Mr. Bergholtz’s issues presented for review, we affirm the trial court’s judgment.

GOMEZ, Judge (Sitting by Assignment).


source: Caselaw Access Project

author: DAVID WELLINGTON CHEW, Chief Justice.

license: Public Domain

text:
    CITY OF EL PASO, Texas, Appellant, v. Patricia BUSTILLOS and Marcelina Campos, Appellees.
    No. 08-08-00244-CV.
    Court of Appeals of Texas, El Paso.
    May 19, 2010.

      Kenneth A. Krohn, Assistant City Attorney, El Paso, TX for Appellant.
    Carmen Rodriguez, Veronica Carbajal, Texas RioGrande Legal Aid, Inc., Briana Stone, El Paso, TX, for Appellees.
    Before CHEW, C.J., McCLURE, and RIVERA, JJ.
   OPINION

DAVID WELLINGTON CHEW, Chief Justice.

This is an appeal from the denial of a plea to the jurisdiction by the City of El Paso (“the City”) in a suit for declaratory relief, alleging violations of the Plaintiffs’ due process and equal protection rights. On appeal, the City raises one issue arguing the trial court erred in denying the plea to the jurisdiction of Appellees’ declaratory judgment actions since it seeks monetary relief against a governmental entity that has immunity under the Texas Torts Claim Act. We affirm.

Patricia Bustillos and Marcelina Campos were residents of the Mowad subdivision in El Paso, TX. On August 1, 2006, they had to evacuate their residences due to severe flooding. They stayed at the Canu-tillo Elementary School, where temporary living quarters were provided. On September 1, 2006, a notice of temporary non-habitability and a danger sign were placed outside each of the homes in the Mowad subdivision. On September 14, 2006, the City of El Paso held a community meeting at which it announced plans to buyout the neighborhood. As part of the buyout, the City granted relocation assistance to displaced tenants if they were able to prove a tenant/landlord relationship in Mowad and an increase in rent from what they had been paying at Mowad. The relocations assistance was a lump sum payment of $5,250. Bustillos and Campos had oral leases and both had an increase in rent after leaving Mowad. Bustillos and Campos were not aware of their eligibility for relocation assistance until a former neighbor from the Mowad subdivision informed them about it in April of 2007.

On April 24, 2007, Plaintiffs made a request for tenant relocation assistance and submitted supporting documents to the City’s consultant, Jeff Ward, and the realtor assisting the City, Cindy Evans. On May 3, 2007, they were advised that the requests should be made to Larry Nichols, or the City Attorney’s office. On May 8, 2007, Plaintiffs submitted their request to the city attorney’s office through counsel, and on May 15, 2007, counsel was informed that no assistance would be granted due to inadequate proof, the owners of the rental homes had claimed the property as their homestead, and it was too late to make a claim from the flood. Counsel was told that a written decision would be issued, but Plaintiffs allege no such decision was received. Plaintiffs state that numerous attempts to receive a written response from the City or to determine the City’s reason for refusal to resolve the pending applications have been unsuccessful.

Plaintiffs filed suit alleging due process and equal protections violations. In Plaintiffs’ original petition, the following relief was requested:

1. A declaration that the City of El Paso is in violation of Plaintiffs’ rights to due process by failing to comply with its own policies and the Uniform Relocation Assistance Act in administering its tenant relocation assistance.
2. A declaration that the City of El Paso is in violation of Plaintiffs’ rights to equal protection of the law by treating Plaintiffs differently from other Mowad displaced tenants in denying them tenant relocation assistance.
3. A declaration that the City of El Paso should implement procedures in conformity with constitutional due process requirements and to make its tenant relocation assistance program equally accessible to all those displaced by the City’s acquisition actions.
4. Payment to each Plaintiff in the amount of $5,250.00 and for any other expenses resulting from the Defendants’ unlawful conduct.
5. Costs of suit.
6. Reasonable attorneys fees requested only by Plaintiff Marcelina Campos.
7. Pre-judgment and post-judgment interest as provided by law.

The City filed a plea to the jurisdiction and original answer in response. The City argued that there was no subject-matter jurisdiction since Plaintiffs were seeking money damages, and did not have legislative consent to bring suit.

In Plaintiffs’ first amended petition, the following relief was requested:

1.A declaration that the City of El Paso is in violation of Plaintiffs’ right to due process by refusing or delaying Plaintiffs’ application for relocation assistance, thereby failing to comply with its own policies and the Uniform Relocation Assistance Act for the administration of tenant relocation assistance for those displaced by the City’s acquisition actions.
2. A declaration that the City of El Paso should implement procedures in conformity with constitutional due process requirements for all those displaced by the City’s acquisition actions.
3. A declaration that the City of El Paso is in violation of Plaintiffs’ right to equal protection of the law by refusing or delaying Plaintiffs’ application for relocation assistance, thereby treating Plaintiffs differently from other Mowad displace tenants.
4. A declaration that the City of El Paso should make its tenant relocation assistance program’s application process equally accessible to all those displaced by the City’s acquisition actions.
5. A declaration that in order for the City of El Paso to administer relocation assistance funds in a fair, consistent and constitutionally correct manner, the City should adopt and implement the procedures outlined in the federal Uniform Relocation Act (URA), including but not limited to: notice, written application procedures, standards for making determinations, issuing written decisions in an expeditious manner, and procedures for appealing determinations, consistent with the City’s policies.
6. A declaration that in conformity with the City’s policy in administering relocation assistance to other Mowad tenants and with the federal Uniform Relocation Act’s statutory mandate for expeditious review of claims, the City should give Plaintiffs a written decision on their applications and written notice of their rights to appeal, within 7 days from the date of this court’s order.
7. Costs of suit.
8. Reasonable and necessary attorneys fees, requested only by Plaintiff Marcelina Campos
9. Pre-judgment and post-judgment interest as provided by law.
10. Such other relief to which Plaintiffs may be justly and legally entitled, including but not limited to damages within the jurisdictional limits of this court.

The City filed a plea to the jurisdiction and answer in response to the first amended petition. The City argued that the true remedy will seek cash payments to Plaintiffs as tenant relocation assistance in addition to costs of suit, attorney’s fees, and pre-judgment and post-judgment interest. The City alleges the suit for declaratory relief is a “thinly-disguised attempt to conceal the real remedy sought: funds for Plaintiffs’ relocation assistance.” The City also argued that the declaration would be a mere advisory opinion, and the declaratory relief requested would not settle the dispute between the parties.

On June 12, 2008, a hearing was held on the plea to the jurisdiction. After the hearing, Plaintiffs filed their second amended petition. In the second amended petition, Plaintiffs requested the following relief:

1. A declaration that the City of El Paso is in violation of Plaintiffs’ right to due process by refusing or delaying Plaintiffs’ application for relocation assistance, thereby failing to comply with its own policies and the Uniform Relocation Assistance Act for the administration of tenant relocation assistance for those displaced by the City’s acquisition actions.
2. A declaration that the City of El Paso should implement procedures in conformity with constitutional due process requirements for all those displaced by the City’s acquisition actions.
3. A declaration that the City of El Paso is in violation of Plaintiffs’ right to equal protection of the law by refusing or delaying Plaintiffs’ application for relocation assistance, thereby treating Plaintiffs differently from other Mowad displaced tenants.
4. A declaration that the City of El Paso should make its tenant relocation assistance program’s application process equally accessible to all those displaced by the City’s acquisition actions.
5. A declaration that in order for the City of El Paso to administer relocation assistance funds in a fair, consistent and constitutionally correct manner, the City should adopt and implement the procedures outlined in the federal Uniform Relocation Act (URA), including, but not limited to: notice, written application procedures, standards for making determinations, issuing written decisions in an expeditious manner, and procedures for appealing determinations, consistent with the City’s policies.
6. A declaration that in conformity with the City’s policy in administering relocation assistance to other Mowad tenants and with the federal Uniform Relocation Act’s statutory mandate for expeditious review of claims, the City should give Plaintiffs a written decision on their applications and written notice of their rights to appeal, within 7 days from the date of this court’s order.
7. Costs of suit.
8. Reasonable and necessary attorneys fees, requested only by Plaintiff Marcelina Campos.
9. Such other equitable relief to which Plaintiffs may be justly and legally entitled.

The trial court denied the City’s plea to the jurisdiction.

A plea to the jurisdiction contests a trial court’s subject matter jurisdiction. City of El Paso v. Maddox, 276 S.W.3d 66, 70 (Tex.App.-El Paso 2008, pet. denied), citing Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000). Whether a trial court has subject-matter jurisdiction is a question of law that is reviewed de novo. Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004). The plaintiff has the burden to allege facts affirmatively demonstrating that the trial court has subject matter jurisdiction. Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993). We consider the allegations in the petition and accept them as true. City of Saginaw v. Carter, 996 S.W.2d 1, 2-3 (Tex.App.-Fort Worth 1999, pet. dism’d w.o.j.). The plaintiffs jurisdictional pleadings are to be construed liberally in the plaintiffs favor, and we look to the pleader’s intent. See Texas Ass’n of Bus., 852 S.W.2d at 446. If a plaintiff pleads facts that affirmatively demonstrate absence of jurisdiction and the defect is incurable, then the case is properly dismissed. Ackers v. City of Lubbock, 253 S.W.3d 770, 774 (Tex.App.-Amarillo 2007, pet. denied). If the plaintiffs pleadings do not demonstrate the trial court’s jurisdiction, but are not affirmatively incurable, the proper remedy is to allow the plaintiff an opportunity to amend the pleadings before dismissal. County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.2002). A court deciding a plea to the jurisdiction is not required to look solely to the pleadings, but may consider evidence and must do so when necessary to resolve the jurisdictional issues raised. Bland Indep. Sch. Dist., 34 S.W.3d at 555.

Sovereign immunity, encompassing both immunity from suit and immunity from liability, protects the state and its political subdivisions, including cities, from lawsuits for money damages. Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex.2006). Sovereign immunity bars a suit against the state or its political subdivisions unless immunity has been waived or the legislature has expressly consented to the suit, which it may do by statute or resolution. Id. Immunity for political subdivisions of the state is referred to as governmental immunity. See Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n. 3 (Tex.2003).

A party generally can maintain a suit to determine its rights without legislative permission because such suits are not considered “suits against the State” for purposes of sovereign immunity. See Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.2002). However, a suit against a sovereign for monetary damages is not transformed into a viable suit by the request for a declaratory judgment, and if the sole purpose of a declaration concerning contractual or statutory rights is to obtain a money judgment, immunity is not waived. City of Houston v. Williams, 216 S.W.3d 827, 829 (Tex.2007). Sovereign immunity from suit cannot be circumvented by characterizing a suit for money damages as a declaratory judgment claim. Id. A plaintiff whose constitutional rights have been violated may sue the state for equitable relief. City of Beaumont v. Bouillion, 896 S.W.2d 143, 144 & 149 (Tex.1995).

The City argues that Appellees’ pleading for declaratory relief is a disguised attempt to seek monetary damages. Appel-lees argue that the action is to ensure that the City’s relocation benefit program is administered consistent with the constitutional rights of any applicant who applies. We look at the live pleading before the court at the time of the plea to the jurisdiction. See Nueces County v. Ferguson, 97 S.W.3d 205, 219 (Tex.App.-Corpus. Christi 2002, no pet.). In this case, it is Plaintiffs’ Second Amended Petition for Declaratory Relief. While the pleading was filed after the hearing on the plea to the jurisdiction, the order denying the plea states it was denied after a review of Plaintiffs’ and Defendant’s pleadings, documents filed, and all other arguments on the pleadings. The second amended petition was filed six days before the order denying the plea was filed. Once an amended pleading is filed, the previous pleading is no longer part of the proceedings, and as a result, we will look at the second amended petition in our review. Tex.R.Civ.P. 65.

In the petition, Appellees alleged that the City violated their due process and equal protection rights when the City failed to issue a written decision on Plaintiffs’ application for relocation assistance and failed to provide Plaintiffs access to the application process as tenants displaced by a disaster as it provided to other Mowad residents under the Uniform Relocation Assistance Act. The City claimed it provided assistance to displaced tenants if they were able to prove a tenant/landlord relationship in Mowad and an increase in their new rent amounts over what was paid at Mowad. Plaintiffs believe all residents who applied for the assistance received it except for Plaintiffs themselves. Plaintiffs were informed by a city attorney that their applications were denied, and a written decision would be forthcoming. A written decision was never received. The petition states that by denying access to the relocation assistance without due process, the City violated its own policies, the Uniform Relocation Assistance and Real Property Acquisition Policies Act (URA), and constitutional guarantees under the Texas Constitution Article I, § 3 and § 19. The petition states the City used the URA as a guideline for providing assistance. Plaintiffs alleged the City ignored the URA due process requirements by failing to inform them of the relocation payments for which they may be eligible, the criteria for eligibility, and the procedures of obtaining payments in the City’s written notices to the Mowad residents. Plaintiffs also allege that the City’s failure to provide a written decision, a notice of their right to an appeal, and an opportunity to present an appeal amounts to violations of Plaintiffs’ constitutional rights to due process.

Appellees, Plaintiffs below, next allege in their petition that the City violated their rights to equal protection under the law by providing access to the tenant relocation assistance in a discriminatory manner. Plaintiffs allege there is no rational basis for treating them differently from other similarly situated. Appellees allege that they provided ample proof of their eligibility under the program, but had to submit additional proof not required of other residents.

In the petition, Plaintiffs requested the following declarations:

A. The manner in which the City of El Paso administers relocation assistance to applicants is unfair, arbitrary, and inconsistent because it has no written application procedures, no standards for making determinations and no procedures for appealing determinations;
B. The City’s refusal or delay in processing the Plaintiffs’ application for relocation assistance constitutes a violation of Plaintiffs’ rights to due process;
C. The City’s refusal or delay in processing the Plaintiffs’ application for relocation assistance constitutes a violation of Plaintiffs’ right to equal protection; and
D. In order for the City of El Paso to administer relocation funds in a fair, consistent and constitutionally correct manner, the City should adopt and implement the procedures outlined in the federal Uniform Relocation Act (URA), consistent with the City’s policies.

We do not agree with the City’s argument that this suit is a disguised claim for monetary relief. While the original petition and first amended petition may have requested money damages, Plaintiffs’ second amended petition removed the requests for monetary relief. Appellees seek only a declaration that their rights were violated, and an opportunity to have their applications reviewed in the same manner as the others. While review of the application may result in a monetary payment of relocation assistance, suits requiring compliance with statutory or constitutional provisions are not prohibited by immunity even if the compliance involves the payment of money. City of El Paso v. Heinrich, 284 S.W.3d 366, 371 (Tex.2009). Plaintiffs properly pled a violation of their constitutional rights, and as such the suit is not barred by governmental immunity. Steele v. City of Houston, 603 S.W.2d 786, 791 (Tex.1980); City of Beaumont, 896 S.W.2d at 149.

The City also argues that relief is not proper under the Declaratory Judgment Act. The City argues there is no standing because Appellees are not suing to determine their rights under a deed, will, contract, or other writing constituting a contract or suing pursuant to a statute, municipal ordinance, contract, or franchise. However, the Declaratory Judgment Act may be used to clarify constitutional imperatives. Democracy Coalition v. City of Austin, 141 S.W.3d 282, 296 (Tex.App.-Austin 2004, no pet.). A declaratory judgment will declare the rights, duties, or status of the parties only in an otherwise justiciable controversy. Id. at 297. The justiciable controversy presented is whether the City violated Appellees rights under the state constitution. Id. Issue One is overruled.

Having overruled the City’s sole issue, we affirm the order of the trial court.


text:
    In the Matter of F.J.S., a Juvenile.
    No. 08-08-00109-CV.
    Court of Appeals of Texas, El Paso.
    May 26, 2010.

      Matthew DeKoatz, Attorney at Law, El Paso, TX, for Appellant.
    Jo Anne Bernal, County Attorney, El Paso, TX, for Appellee.
    Before CHEW, C.J., McCLURE, and RIVERA, JJ.
   OPINION

DAVID WELLINGTON CHEW, Chief Justice.

F.J.S., a juvenile, appeals from an order adjudicating his delinquent conduct by committing aggravated sexual assault of a child. A jury determined Appellant had engaged in the charged delinquent conduct, and the trial court entered an order of adjudication in accordance with the jury’s finding. Finding the evidence was legally sufficient to support the adjudication order, we affirm.

Appellant and A.G. met when their parents became friends in 2003. A.G. was ten years old, and Appellant was thirteen. A.G. and her siblings were visiting Appellant’s family one afternoon, when Appellant sat down next to A.G. while the rest of the household was having lunch in another room. Appellant fondled her breasts and buttocks, and inserted his fingers into her vagina. A.G. did not report the abuse because Appellant threatened he would hit her, or hurt a member of her family.

A week later, Appellant was visiting A.G.’s family at their apartment. A.G. was watching cartoons in her mother’s bedroom when Appellant came into the room, pushed A.G. up against a wall and inserted his penis in her vagina. The rest of the family was downstairs when the attack occurred. Again, A.G. did not report the attack because Appellant threatened to hit her or hurt a member of her family if she reported the incident. According to A.G., Appellant sexually assaulted her up to twenty times over the course of a year. Sometimes he would force her to have intercourse, sometimes he forced her to perform oral sex on him. He continued to threaten her with violence if she told anyone about the abuse.

A.G. made an outcry in May 2005. A.G. had spent the night at her aunt’s house while her mother and stepfather were attending a party. In the morning, A.G.’s mother called to check on the girl and A.G.’s aunt informed her that A.G. had touched her four-year-old cousin’s vagina while the girls were in the shower together. When A.G.’s mother confronted A.G. about what happened that morning, A.G. was frightened and crying. Eventually A.G. described what Appellant had done to her. A.G.’s mother contacted the police and reported what her daughter told her. After the police interviewed A.G., Appellant was taken into custody and referred to the Juvenile Probation Department.

The State filed the original petition based on delinquent conduct on August 22, 2005. The petition alleged that on or about June 29, 2004, Appellant had engaged in delinquent conduct by committing aggravated sexual assault against a child, A.G. The case was tried to a jury, who determined Appellant had engaged in the alleged delinquent conduct. The trial court entered an order adjudicating Appellant delinquent on January 9, 2008. Appellant was sentenced to probation until his eighteenth birthday, and was ordered to complete the Challenge Boot Camp Program, and participate in any counseling deemed necessary due to his status as a sex offender.

In a single issue, Appellant challenges the legal sufficiency of the evidence supporting the trial court’s determination that he engaged in delinquent conduct by committing aggravated sexual assault of a child. He contends the alleged victim’s credibility was in question given the lack of physical evidence of abuse, and the circumstances of her outcry. In the alternative, Appellant argues the delinquency finding must be reversed because the evidence established an affirmative defense pursuant to Texas Penal Code section 22.011(e)(2)(A); which provides, in part, that it is an affirmative defense to a prosecution for sexual assault if the evidence establishes the actor was not more than three years older than the victim at the time of the offense. See Tex. Pen.Code Ann. § 22.011(e)(2)(A)(Vernon Supp.2009).

Challenges to the legal sufficiency of the evidence supporting the elements of a penal offense which forms the basis of the finding that a juvenile engaged in delinquent conduct, are reviewed under the Jackson v. Virginia, standard. 443 U.S. 807, 320, 99 S.Ct. 2781, 2789-90, 61 L.Ed.2d 560 (1979); In the Matter of A.S., 954 S.W.2d 855, 858 (Tex.App.-El Paso 1997, no pet.). .Under this standard, we review all of the evidence in the light most favorable to the verdict, to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. A.S., 954 S.W.2d at 858.

Appellant was adjudicated delinquent based on the jury’s determination that he committed acts which satisfied the definition of aggravated sexual assault of a child, as defined by Section 22.021(a), of the Texas Penal Code. In general terms, a person commits this offense by intentionally or knowingly causing the penetration of the anus or sexual organ of another individual, who is not the actor’s spouse, by any means, without the individual’s consent, and the actor, and the victim is younger than fourteen. See Tex. Pen.Code Ann. § 22.021(a). The jury in this case determined Appellant engaged in delinquent behavior by engaging in the following acts: (1) by intentionally or knowingly causing the penetration of the victim’s female sexual organ with his finger; (2) by intentionally or knowingly causing the penetration of the victim’s female sexual organ with his sexual organ; and (3) by intentionally or knowingly causing the penetration of the victim’s anus with his sexual organ.

In the first part of Issue One, Appellant calls the alleged victim’s credibility into question based on the lack of witnesses to the alleged abuse, the frequency of the attacks, the lack of physical evidence of abuse, and the circumstances of the victim’s outcry. Appellant does not challenge the admissibility of the testimony, nor does he contend there is a lack of evidence of any one of the essential elements of the charged offense. Appellant simply concludes that the victim’s testimony was insufficient to support the jury’s verdict, and therefore does not support the court’s delinquency finding.

To sustain Appellant’s argument, this Court would be forced to disregard the parameters of the legal sufficiency review. The role of the appellate court in a legal sufficiency review is limited to determining whether the findings, both implicit and explicit, of the trier of fact are rational. See Adelman v. State, 828 S.W.2d 418, 421-22 (Tex.Crim.App.1992). We do so by viewing all the evidence admitted at trial, and by resolving any inconsistencies, in the light most favorable to the verdict. See id. It is for the trier of fact, not the appellate court, to determine witness credibility; and in doing so the fact finder may accept or reject all or any part of any witness’s testimony. Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App.1991).

In short, we cannot simply disregard the victim’s testimony in this case based on Appellant’s conclusion that her testimony was not credible. We are bound by the standard of review which governs the issue Appellant has presented to us, and therefore we must view all the evidence admitted at trial in the light most favorable to the verdict. See A.S., 954 S.W.2d at 858; Tex.R.App.P. 38.1(f), (i). Given the uncontested fact that the victim did testify regarding the alleged abuse in this case, viewing the evidence the light most favorable to the verdict, the evidence was legally sufficient to support the delinquency finding.

In the alternative, Appellant contends the delinquency finding must be reverse because the record supports his affirmative defense; that is, he was not more than three years older than the victim at the time of the alleged abuse. Appellant refers to Texas Penal Code section 22.011(e) in his argument, which states in relevant part that:

(e)it is an affirmative defense to prosecution under Subsection (a)(2):
(2)that:
(A)the actor was not more than three years older than the victim and at the time of the offense:
(i)was not required under Chapter 62, Code of Criminal Procedure, to register for life as a sex offender; or
(ii)was not a person who under Chapter 62, Code of Criminal Procedure, had a reportable conviction or adjudication for an offense under this section; and
(B)the victim:
(i)was a child of 14 years of age or older; and
(ii)was not a person whom the actor was prohibited from marrying or purporting to marry or with whom the action was prohibited from living under the appearance of being married under Section 25.01.

Tex.Pen.Code Ann. § 22.011(e)(Vernon Supp.2009).

In addition to several other requirements not addressed in Appellant’s brief, this affirmative defense specifies that it is applicable to prosecution for a Sexual Assault offense prosecuted under Section 22.011. See id. Appellant was prosecuted for Aggravated Sexual Assault under Section 22.021. Section 22.021 does not include such a defense, nor does it reference the defense provided in Section 22.011. See Tex.Pen.Code Ann. § 22.021. Accordingly, Appellant’s second argument is overruled, and we overrule the entirety of Issue One.

Having overruled Appellant’s sole issue, we affirm the trial court’s order of adjudication.


text:
    In re LUCCHESE BOOT CO. and Jose Angel Velarde.
    No. 08-09-00051-CV.
    Court of Appeals of Texas, El Paso.
    May 26, 2010.
    Steven L. Hughes, Mounce, Green, Myers, Safi, Paxson & Galatzan, El Paso, TX, for Relators.

      William E. Moody, El Paso, TX, for Respondent.
    Joseph Isaac, Scherr & Legate, PLLC, El Paso, TX, for Real Party in Interest.
    Before CHEW, C.J., McCLURE, and RIVERA, JJ.
   OPINION

DAVID WELLINGTON CHEW, Chief Justice.

In this original proceeding, Relators Lucchese Boot Company and Jose Angel Velarde seek a writ of mandamus compelling the Hon. William E. Moody, Judge of the 34th Judicial District Court of El Paso County, to grant Realtors’ motion to compel arbitration.

Real Party in Interest Hector Rodriguez filed the underlying lawsuit in February 2008, alleging he suffered a work-related injury due to the negligence of his employer and immediate supervisor, Relators. Relators filed a motion to compel arbitration based on the employer’s injury benefit plan (the “Arena Brands Texas Injury Benefit Plan”) and the “Receipt, Safety Pledge, and Arbitration Agreement.” Mr. Rodriguez signed the acknowledgment on September 21, 2005. In pertinent part, the document stated:

RECEPTION OF MATERIALS. By my signature below, I acknowledge that I have received and read (or have had an opportunity to read) the Summary Plan Description (the “SPD”) for the Arena Brands Texas Injury Benefit Plan, effective since April 1, 2003.
ARBITRATION. I also acknowledge that this SPD includes a mandatory company policy requiring that certain claims and disputes relating to an on-the-job injury (that cannot otherwise be resolved between the Company and me) must be submitted to an arbitrator, rather than a judge and jury in court. I understand that by receiving this SPD and becoming employed (or continuing my employment) with the Company at any time on or after April 1, 2003, I am accepting and agreeing to comply with these arbitration requirements. All covered claims brought by my spouse, children, beneficiaries, representatives, executors, administrators, guardians, hems or assigns are also subject to the SPD’s arbitration policy, and any decision of an arbitrator will be final and binding for such persons and the Company. [Emphasis in original].

The trial court denied Relators’ motion on December 23, 2008. Relators filed their petition on January 28, 2009, asserting the trial court’s ruling constitutes a clear abuse of discretion, and they are entitled to relief by writ of mandamus.

A writ of mandamus will issue to correct a clear abuse of discretion when there is no adequate remedy by appeal. See In re Prudential Ins. Co. Of America, 148 S.W.3d 124, 135 (Tex.2004) (orig. proceeding). A trial court abuses its discretion when it reaches a decision so arbitrary and unreasonable that it amounts to a clear, prejudicial error of law, or if the decision results from a clear failure to correctly apply the law to the established facts. In re Ford Motor Co., 165 S.W.3d 315, 317 (Tex.2005) (orig. proceeding). It is the relator’s burden to establish a clear abuse of discretion has occurred. Id. The erroneous denial of a motion to compel arbitration pursuant to the Federal Arbitration Act (FAA), is subject to relief by mandamus as the movant has no alternative adequate remedy. In re Nexion Health at Humble, Inc., 173 S.W.3d 67, 69 (Tex.2005) (orig. proceeding).

When reviewing a trial court’s ruling on a motion to compel arbitration, the reviewing court must first determine whether a valid arbitration agreement exists between the parties before determining whether the agreement encompasses the claims raised. In re Bank One, N.A., 216 S.W.3d 825, 826 (Tex.2007) (orig. proceeding). Whether an agreement is valid is generally determined by state-law principles of contract law, and is a legal question subject to de novo review. In re D. Wilson Constr. Co., 196 S.W.3d 774, 781 (Tex.2006) (orig. proceeding). It is the movant’s initial burden to establish the existence of an agreement to arbitrate, and in the face of such an agreement the burden shift’s to the nonmovant to establish a contractual defense. See J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 227 (Tex.2003). There is no dispute as to the existence of an arbitration agreement in this case. We are faced only with Mr. Rodriguez’s arguments against the validity and enforceability of the agreement.

In his response to Relators’ motion to compel, Mr. Rodriguez argued, in part, that the arbitration agreement was unenforceable because it was illusory. An arbitration agreement is valid, and the promise to arbitrate is not illusory if the promise cannot be avoided by amendment or termination. In re Halliburton Co., 80 S.W.3d 566, 569 (Tex.2002) (orig. proceeding). For example, in Halliburton, the Texas Supreme Court determined the arbitration agreement was not illusory because the agreement required the company to give employees ten days’ notice of any changes. In re Halliburton Co., 80 S.W.3d at 570. In other words, if a party retains the unilateral and unrestricted right to terminate an arbitration agreement, the agreement is illusory. In re Datamark, Inc., 296 S.W.3d 614, 617 (Tex.App.-El Paso 2009, orig. proceeding).

In this case, the Arena Brands Texas Injury Benefit Plan included the following Termination and Amendment provision:

The Company shall have the right and power at any time and from time to time to amend this Plan, in whole or in part, on behalf of all Employers, and at any time to terminate this Plan or any Employer’s participation hereunder; provided, however, that no such amendment or termination shall reduce the amount of any benefit then due and payable to or with respect to a Participant under the Plan in connection with an Injury occurring prior to the date of such amendment or termination. Any such amendment or termination shall be pursuant to formal written action of a representative authorized to act on behalf of the Company.

As we explained in our analysis of a similar provision in In re Datamark, Inc., this type of provision, “gives the company unilateral control to modify or revoke the policy.” 296 S.W.3d at 617. Unlike the provision in Halliburton, it does not requires the employees be notified of changes to the plan, and certainly does not give them notice of the employer’s intent to alter the terms of the agreement. See Halliburton, 80 S.W.3d at 569-70.

Relators argue that the agreement is not illusory because the company remains obligated to arbitrate claims related to injuries which occur prior to aberrations made to the plan. Again we turn to our opinion in Datamark for guidance, and must disagree with Relators’ argument. The fact that the plan provides that pre-alteration injuries will remain subject to the pre-alternation version of the plan, the employer retains unilateral control over the agreement and can amend or terminate the plan at any time without giving prior notice to the employees, the promise to arbitrate is illusory. See In re Datamark, Inc., 296 S.W.3d at 618. Because the language permits the employer to unilaterally nullify the arbitration agreement, the employees have received nothing of value for their promises to arbitrate employment related disputes. See J.M. Davidson, Inc., 128 S.W.3d at 230 n. 2. Therefore, we conclude the Termination and Amendment provision of the Arena Brand Texas Injury Benefit Plan renders the arbitration agreement illusory and unenforceable. See In re Datamark, Inc., 296 S.W.3d at 618. Because Mr. Rodriguez raised a valid defense to the enforcement of the agreement, the trial court did not abuse its discretion by denying Rela-tors’ motion to compel, and there is no need to address the parties’ remaining arguments.

Mandamus relief is denied.

      . The record in this case does not include the SPD which was presented to the employees, and referenced in the acknowledgment. For the language included in the SPD, see In re Lucchese, Inc., 324 S.W.3d. 214 (Tex.App.-El Paso 2010, orig. proceeding). As the SPD is not before the Court in this case, we will limit our review to the terms of the Plan included in the record.

      . This is one of two original proceedings in which Lucchese, Inc. challenges the trial court’s denial of its motion to compel arbitration regarding its employee injury benefit plan. See In re Lucchese, Inc., 324 S.W.3d. 214 (Tex.App.-El Paso 2010, orig. proceeding).


text:
    In re: LUCCHESE, INC.
    No. 08-09-00064-CV.
    Court of Appeals of Texas, El Paso.
    May 26, 2010.
    Rehearing Overruled June 30, 2010.

      Employer’s promise to arbitrate was illusory, and arbitration agreement contained in employer’s injury benefit plan was thus unenforceable, where employer retained unilateral control over the agreement and could amend or terminate the plan at any time without giving prior notice to the employees.
    Steven L. Hughes, Mounce, Green, Myers, Safi, Paxson & Galatzan, El Paso, TX, for Relator.
    William E. Moody, El Paso, TX, Respondent.
    Joseph Isaac, Scherr & Legate, PLLC, El Paso, TX, for Real Party in Interest.
    Before CHEW, C.J., McCLURE, and RIVERA, JJ.
   OPINION

DAVID WELLINGTON CHEW, Chief Justice.

In this original proceeding, Relator Luc-chese Inc. seeks a writ of mandamus compelling the Hon. William E. Moody, Judge of the 34th Judicial District Court of El Paso County, to grant Realtor’s motion to compel arbitration.

Real Party in Interest Jose Solano filed the underlying lawsuit in March 2007, alleging he suffered work-related injuries due to the negligence of his employer and immediate supervisor, Relator. Relator filed a motion to compel arbitration based on the employer’s injury benefit plan, (the “Arena Brands Texas Injury Benefit Plan”) and the “Receipt, Safety Pledge, and Arbitration Agreement.” Mr. Solano signed a Spanish language version of the acknowledgment on September 7, 2005. In pertinent part, the document stated:

RECEPTION OF MATERIALS. By my signature below, I acknowledge that I have received and read (or have had an opportunity to read) the Summary Plan Description (the “SPD”) for the Arena Brands Texas Injury Benefit Plan, effective since April 1, 2003.
ARBITRATION. I also acknowledge that this SPD includes a mandatory company policy requiring that certain claims and disputes relating to an on-the-job injury (that cannot otherwise be resolved between the Company and me) must be submitted to an arbitrator, rather than a judge and jury in court. I understand that by receiving this SPD and becoming employed (or continuing my employment) with the Company at any time on or after April 1, 2003, I am accepting and agreeing to comply with these arbitration requirements. All covered claims brought by my spouse, children, beneficiaries, representatives, executors, administrators, guardians, heirs or assigns are also subject to the SPD’s arbitration policy, and any decision of an arbitrator will be final and binding for such persons and the Company. [Emphasis in original].

The trial court denied Relator’s motion on December 28, 2008. Relator filed its petition on February 19, 2009, asserting the trial court’s ruling constitutes a clear abuse of discretion, and it is entitled to relief by writ of mandamus.

A writ of mandamus will issue to correct a clear abuse of discretion when there is no adequate remedy by appeal. See In re Prudential Ins. Co. of America, 148 S.W.3d 124, 135-36 (Tex.2004) (orig. proceeding). A trial court abuses its discretion when it reaches a decision so arbitrary and unreasonable that it amounts to a clear, prejudicial error of law, or if the decision results from a clear failure to correctly apply the law to the established facts. In re Ford Motor Co., 165 S.W.3d 315, 317 (Tex.2005) (orig. proceeding). It is the relator’s burden to establish a clear abuse of discretion has occurred. Id. The erroneous denial of a motion to compel arbitration pursuant to the Federal Arbitration Act (FAA), is subject to relief by mandamus as the movant has no alternative adequate remedy. In re Nexion Health at Humble, Inc., 173 S.W.3d 67, 69 (Tex.2005) (orig. proceeding).

When reviewing a trial court’s ruling on a motion to compel arbitration, the reviewing court must first determine whether a valid arbitration agreement exists between the parties before determining whether the agreement encompasses the claims raised. In re Bank One, N.A., 216 S.W.3d 825, 826 (Tex.2007) (orig. proceeding). Whether an agreement is valid is generally determined by state-law principles of contract law, and is a legal question subject to de novo review. In re D. Wilson Constr. Co., 196 S.W.3d 774, 781 (Tex.2006) (orig. proceeding). It is the movant’s initial burden to establish the existence of an agreement to arbitrate, and in the face of such an agreement the burden shift’s to the nonmovant to establish a contractual defense. See J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 227 (Tex.2003). There is no dispute as to the existence of an arbitration agreement in this case. We are faced only with Mr. Solano’s arguments against the validity and enforceability of the agreement.

In his response to Relator’s motion to compel, Mr. Solano argued, in part, that the arbitration agreement was unenforceable because it was illusory. An arbitration agreement is valid, and the promise to arbitrate is not illusory if the promise cannot be avoided by amendment or termination. In re Halliburton Co., 80 S.W.3d 566, 569 (Tex.2002) (orig. proceeding). For example, in Halliburton, the Texas Supreme Court determined the arbitration agreement was not illusory because the agreement required the company to give employees ten days’ notice of any changes. Id. at 570. In other words, if a party retains the unilateral and unrestricted right to terminate an arbitration agreement, the agreement is illusory. In re Datamark, Inc., 296 S.W.3d 614, 617 (Tex.App.-El Paso 2009, orig. proceeding).

According to the “Amendment or Termination of Plan” section of the Plan Summary Description provided to employees:

The Company presently intends to continue the Plan indefinitely, but the Company reserves the right to amend, modify, or terminate the Plan at any time; provided, however, no amendment or termination of the Plan will reduce the amount of any benefit then due and payable under the Plan to or with respect to you in connection with an injury occurring prior to the date of such amendment or termination. Any such amendment or termination will be adopted pursuant to formal written action of a representative authorized to act on behalf of the Company.

As we explained in our analysis of a similar provision in In re Datamark, Inc., this type of provision, “gives the company unilateral control to modify or revoke the policy.” 296 S.W.3d at 617. Unlike the provision in Halliburton, it does not requires the employees be notified of changes to the plan, and certainly does not give them notice of the employer’s intent to alter the terms of the agreement. See Halliburton, 80 S.W.3d at 569-70.

Relator argues that the agreement is not illusory because the company remains obligated to arbitrate claims related to injuries which occur prior to aberrations made to the plan. Again, we turn to our opinion in Datamark for guidance, and must disagree with Relator’s argument. The fact that the plan provides that pre-alteration injuries will remain subject to the pre-alternation version of the plan, the employer retains unilateral control over the agreement and can amend or terminate the plan at any time without giving prior notice to the employees, the promise to arbitrate is illusory. See In re Datamark, Inc., 296 S.W.3d at 618. Because the language permits the employer to unilaterally nullify the arbitration agreement, the employees have received nothing of value for their promises to arbitrate employment related disputes. See J.M. Davidson, Inc., 128 S.W.3d at 230 n. 2. Therefore, we conclude the Termination and Amendment provision of the Arena Brands Texas Injury Benefit Plan renders the arbitration agreement illusory and unenforceable. See In re Datamark, Inc., 296 S.W.3d at 618. Because Mr. Solano raised a valid defense to the enforcement of the agreement, the trial court did not abuse its discretion by denying Relator’s motion to compel, and there is no need to address Relator’s remaining arguments.

Mandamus relief is denied.

      . This is one of two original proceedings in which Lucchese, Inc. challenges the trial court’s denial of its motion to compel arbitration regarding its employee injury benefit plan. See In re Lucchese, Inc. and Velarde, 324 S.W.3d. 211 (Tex.App.-El Paso 2010, orig. proceeding).

      . The record in this case does not include the actual Plan documents. For the language included in the Plan itself, see In re Lucchese, Inc. and Velarde, 324 S.W.3d. 211 (Tex.App.-El Paso 2010, orig. proceeding). As the Plan itself is not before the Court in this case, we will limit our review to the terms of the SPD.


author: FELIPE REYNA, Justice. Chief Justice GRAY

text:
    Brian LANCASTER, Appellant, v. The STATE of Texas, Appellee.
    Nos. 10-08-00026-CR, 10-08-00058-CR, 10-09-00156-CR.
    Court of Appeals of Texas, Waco.
    May 26, 2010.
    Discretionary Review Refused Oct. 13, 2010.

      Richard E. Wetzel, Austin, for Appellant.
    Bill R. Turner, Brazos County Dist. Atty., Bryan, for Appellee.
    Before Chief Justice GRAY, Justice REYNA, and Justice DAVIS.
   OPINION

FELIPE REYNA, Justice.

Brian Lancaster pleaded guilty in the underlying cases to criminal solicitation of a minor, indecency with a child by exposure, and five counts of indecency with a child by contact. In a separate trial, “not guilty” pleas were entered on Lancaster’s behalf to two counts of promotion of child pornography.

On the charges to which Lancaster pleaded guilty, the jury found him guilty as instructed by the court and assessed his punishment at ten years’ imprisonment on the criminal solicitation and indecency by exposure charges and twenty years’ imprisonment on the indecency by contact charges. In the other trial, the jury convicted Lancaster of both counts of promotion of child pornography and assessed his punishment at twenty years’ imprisonment for each count. The juries in both trials assessed a $10,000 fine for each of the nine convictions.

Lancaster contends in what amounts to seven points that:

(1) his convictions for four of the five indecency by contact charges and for both promotion of child pornography charges violate his double jeopardy rights;
(2) prosecution on these same four indecency by contact charges and for both promotion of child pornography charges was improper because the conduct relied on to prove these charges was subsumed by the conduct relied on to prove the other charge of indecency by contact;
(3) prosecution for criminal solicitation was improper because the conduct relied on to prove this charge was subsumed by the conduct relied on to prove indecency by exposure;
(4) the court abused its discretion by overruling his objection that the prosecutor’s argument during the punishment phase struck at Lancaster over the shoulders of defense counsel;
(5) his right to due process was violated by the court’s entry of judgments nunc pro tunc;
(6) the court erred by altering his sentences after he had commenced serving them; and:
(7) the court abused its discretion by refusing to permit him to ask during voir dire whether the jurors could be fair and impartial in a hypothetical case involving sexual molestation of children.

We will affirm.

Double Jeopardy

Lancaster contends in his first point that his conviction and punishment for all but one count of indecency with a child by contact and his conviction and punishment for both counts of promotion of child pornography violate the prohibition against double jeopardy.

Specifically, he argues that, because of his conviction and punishment for indecency by contact under count 2 of trial court cause no. 07-01489-CRF-272 (appellate cause no. 10-08-00058-CR), his convictions and punishment for the other two counts of indecency by contact in the same case and his convictions and punishment for two counts of indecency by contact in trial court cause no. 07-01490-CRF-272 (appellate cause no. 10-08-00026-CR) and for two counts of promotion of child pornography in the same case are all jeopardy-barred. He avers that this is a multiple-punishments claim.

Before we reach the jeopardy issue however, we note that Lancaster did not raise this objection at trial. Nevertheless, he will be excused from the ordinary rules of procedural default “when the undisputed facts show the double jeopardy violation is clearly apparent on the face of the record and when enforcement of usual rules of procedural default serves no legitimate state interests.” Gonzalez v. State, 8 S.W.3d 640, 643 (Tex.Crim.App.2000); Hanson v. State, 180 S.W.3d 726, 732 (Tex.App.-Waco 2005, no pet.).

Here, because we have a complete record, “it can be determined from undisputed facts clearly apparent on the face of the record” whether there has been a jeopardy violation. Hanson, 180 S.W.3d at 732 (citing Murray v. State, 24 S.W.3d 881, 889 (Tex.App.-Waco 2000, pet. ref'd)).

There are three distinct types of double jeopardy claims: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. A multiple punishments claim can arise in two contexts:
(1) the lesser-included offense context, in which the same conduct is punished twice; once for the basic conduct, and a second time for that same conduct plus more (for example, attempted assault of Y and assault of Y; assault of X and aggravated assault of X); and
(2) punishing the same criminal act twice under two distinct statutes when the legislature intended the conduct to be punished only once (for example, causing a single death by committing both intoxication manslaughter and involuntary manslaughter).

Langs v. State, 183 S.W.3d 680, 685 (Tex.Crim.App.2006) (footnotes omitted).

Lancaster’s multiple punishments claim arises under the second alternative, namely, being punished more than once for the same criminal act when the legislature intended the conduct to be punished only once. If, however, the evidence establishes the commission of “distinct and separate offenses,” then there is no violation of the Double Jeopardy Clause prohibition of multiple punishments. See id. at 688; Martinez v. State, 212 S.W.3d 411, 422 (Tex.App.-Austin 2006, no pet.); Hanson, 180 S.W.3d at 732-33.

Counts 2 and 4 of the indictment in trial court cause no. 07-01489-CRF-272 alleged that Lancaster engaged in sexual contact with K.M. by touching her genitals and breast. Count 3 of this indictment alleges that he engaged in sexual contact with K.M. by touching her breast.

Counts 2 and 3 of the indictment in trial court cause no. 07-01490-CRF-272 alleged that he engaged in sexual contact with K.M. by touching her genitals. Counts 1 and 4 of this indictment allege that he engaged in the promotion of child pornography by manufacturing visual material that visually depicted a child engaging in sexual conduct, “to-wit: actual or simulated lewd exhibition of the genitals.”

State’s Exhibit No. 130 is a DVD which depicts eleven separate instances of sexual contact. Lancaster suggests that, because these instances all occurred during a relatively brief period of time when K.M.’s mother left K.M. and her sister in Lancaster’s care while she went Christmas shopping with Lancaster’s former wife, the conduct depicted should be treated as a single instance of sexual contact. However, a defendant may be prosecuted for each discrete sex crime committed against a child during the same criminal episode “because each act is a separate violation of the child.” Hanson, 180 S.W.3d at 733 (quoting Lopez v. State, 108 S.W.3d 293, 300 n. 28 (Tex.Crim.App.2003)).

The second segment in the DVD depicts Lancaster touching KM.’s genitals and breast while seated in a recliner. The fifth segment depicts him doing the same thing in a bath tub. The fourth segment depicts him sitting in the recliner reaching under her shirt to touch her breast. Thus, these three segments depict separate instances of conduct when Lancaster committed indecency by contact as alleged in the indictment in trial court cause no. 07-01489-CRF-272.

The third and sixth segments of this DVD depict two other instances when Lancaster touched KM.’s genitals. Thus, these segments depict separate instances of conduct when Lancaster committed indecency by contact as alleged in the indictment in trial court cause no. 07-01490-CRF-272.

The seventh and eighth segments of the DVD depict separate instances when Lancaster uncovered KM.’s genitals and made a close-up recording of her genitals. Thus, these segments depict separate instances of conduct when Lancaster committed promotion of child pornography as alleged in the indictment in trial court cause no. 07-01490-CRF-272.

State’s Exhibit No. 130 depicts at least seven separate incidents when Lancaster engaged in the conduct alleged in the indictments. Because the evidence establishes the commission of “distinct and separate offenses,” there is no violation of the Double Jeopardy Clause prohibition of multiple punishments. See Langs, 183 S.W.3d at 688; Martinez, 212 S.W.3d at 422; Hanson, 180 S.W.3d at 732-33; Murray, 24 S.W.3d at 889. Accordingly, we overrule Lancaster’s first point.

Conduct Subsumed

Lancaster contends in his second point that the judgments of conviction for all but one count of indecency with a child by contact and for both counts of promotion of child pornography should be vacated because the conduct relied on to prove the challenged offenses was subsumed by the conduct relied on to prove indecency by contact under count 2 of trial court cause no. 07-01489-CRF-272 (appellate cause no. 10-08-00058-CR). He similarly claims in his third point that the judgment of conviction for criminal solicitation should be vacated because the conduct relied on to prove this offense was subsumed by the conduct relied on to prove indecency by exposure under trial court cause no. 07-01491-CRF-272 (appellate cause no. 10-09-00156-CR).

Lancaster places primary reliance on Patterson v. State, 152 S.W.3d 88 (Tex.Crim.App.2004). There the Court of Criminal Appeals explained that, although the Legislature has authorized multiple punishments for the repeated commission of such crimes against a child during a single criminal episode, “there is nothing in the language [of the pertinent statutes] to suggest that it intended to authorize ‘stop-action’ prosecution.” Id. at 92.

Just as a conviction for a completed offense bars prosecution for an attempt to commit the same offense, a conviction for an offense set out in § 3.03 bars conviction for conduct that, on the facts of the case, is demonstrably part of the commission of the greater offense. For example, indecency by genital exposure of oneself in the course of manual penetration of another are separate offenses, while penile contact with mouth, genitals, or anus in the course of penile penetration will be subsumed.

Id.

As we have explained, however, if the evidence shows the commission of distinct offenses based on different (albeit similar) conduct, then the conduct which serves as the basis for one of the offenses necessarily cannot be subsumed in the conduct which serves as the basis for commission of the other(s). See Hanson, 180 S.W.3d at 732-33.

In addressing Lancaster’s first point, we explained how State’s Exhibit No. 130 depicts the commission of factually distinct offenses which provide a separate eviden-tiary basis for each of the convictions he challenged in his first point and again challenges in his second point. Because this evidence establishes the commission of at least seven “distinct and separate offenses,” his prosecution for the challenged convictions is not barred under the principles enunciated in Patterson. Id. Thus, we overrule Lancaster’s second point.

In his third point, Lancaster similarly contends that the conduct relied on to prove criminal solicitation is barred under Patterson because it is subsumed within the conduct relied on to prove indecency by exposure.

The indictment count for criminal solicitation alleges that Lancaster, with intent that sexual performance by a child be committed, induced K.C. to allow him to photograph her vagina. The indictment for indecency by exposure (the sole count in that case) alleges that he exposed his genitals to K.C. with the requisite intent.

In Patterson, the Court cited as an example of an offense which is not subsumed indecency by genital exposure committed in the course of aggravated sexual assault by manual penetration. See Patterson, 152 S.W.3d at 92. In the same manner, we hold that a person soliciting a child to permit him to photograph her vagina is not subsumed within the act of the person exposing his genitals to the child, even if done at the same time. Id.; Hanson, 180 S.W.3d at 732-33. Thus, we overrule Lancaster’s third point.

Voir Dire

Lancaster contends in his seventh point that the court abused its discretion by refusing to permit him to ask during voir dire whether the jurors could be fair and impartial in a hypothetical case involving sexual molestation of children. We address this issue in the other opinion we have issued today in appellate cause nos. 10-08-00025-CR, 10-08-00027-CR, 10-08-00028-CR, 10-08-00029-CR, and 10-08-00030-CR. We hold that the court abused its discretion by refusing to permit him to ask the question but this error, beyond a reasonable doubt, did not contribute to his conviction. See Lancaster v. State, 319 S.W.3d 168, 170-72 (Tex.App.-Waco 2009, no pet. h.). Thus, we overrule Lancaster’s seventh point.

Improper Argument

Lancaster contends in his fourth point that the court abused its discretion by overruling his objection that the prosecutor’s argument during the punishment phase struck at him over the shoulders of defense counsel.

There are four categories of permissible jury argument: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) an answer to the argument of opposing counsel; or (4) a plea for law enforcement. Gallo v. State, 239 S.W.3d 757, 767 (Tex.Crim.App.2007). The State may not strike at a defendant over the shoulders of defense counsel or accuse counsel of bad faith or insincerity during argument. See id.; Harris v. State, 122 S.W.3d 871, 886 (Tex.App.-Fort Worth 2003, pet. ref'd).

During closing, defense counsel discussed the impact of Lancaster’s convictions on his family, career and personal life. Counsel urged the jury to show mercy in assessing punishment. In rebuttal, the State reminded the jury that Lancaster’s actions had impacted the lives of several children and their families. After addressing this for a few moments, the State talked further about Lancaster.

STATE: Now, I want to talk about the defendant, too; but I also want to make sure we understand the context in which we are talking about the defendant. Mr. Banks said a very important thing. He said, “You know, the first time that I went up to the jail, I expected to meet a pervert, to hate him, to be angry; but when I met him, oh, he was a nice guy, good at his job, salvageable. There’s something good about him.”
You heard from their own witness, Charlie Russ, about the concept of grooming. That is the stock and trade of the child molester, of the pedophile. It is — and listen very carefully, because you are being victimized in exactly the same way — gain your trust and violate it. Gain your trust and then violate it. And that’s what they are trying to do to you. That’s what this defense is about. They are grooming the jury to try and have you think about anything other than the victims in this case—
DEFENSE: Judge, I object. That is striking at the defendant over the remarks of counsel.

The State responded that the argument was invited. The court overruled the objection.

We assume without deciding that the argument was improper. See Mosley v. State, 983 S.W.2d 249, 258 (Tex.Crim.App.1998) (“The comments in the present case are milder, merely indicating that the defense attorneys would attempt to use argument to divert the jury’s attention or obscure the issues.”); Graves v. State, 176 S.W.3d 422, 430 (Tex.App.-Houston [1st Dist.] 2004, no pet.); Brantley v. State, 48 S.W.3d 318, 330 (Tex.App.-Waco 2001, pet. ref'd); but cf. Pope v. State, 161 S.W.3d 114, 126-27 (Tex.App.-Fort Worth 2004) (finding similar remarks “were not suggestive of bad faith or insincerity on the part of opposing counsel, but were responsive to arguments of the defense and therefore not improper”), aff'd, 207 S.W.3d 352 (Tex.Crim.App.2006).

To determine whether this error requires reversal, we consider: (1) the severity of the misconduct; (2) the measures adopted to cure the misconduct; and, (3) the certainty of the punishment assessed absent the misconduct. See Archie v. State, 221 S.W.3d 695, 700 (Tex.Crim.App.2007); Martinez v. State, 17 S.W.3d 677, 692-93 (Tex.Crim.App.2000); Searcy v. State, 231 S.W.3d 539, 548 (Tex.App.-Texarkana 2007, pet. ref'd).

The challenged argument was at worst mildly inappropriate, so the first factor does not weigh heavily in Lancaster’s favor. See Mosley, 983 S.W.2d at 260; Graves, 176 S.W.3d at 430; Brantley, 48 S.W.3d at 331. The second factor does not come into play because the court merely overruled Lancaster’s objection, so this factor weighs in his favor. See Brantley, 48 S.W.3d at 331. Regarding the third factor, the jury assessed the maximum punishment for each count. However, Lancaster pleaded guilty to each count, and the State presented overwhelming evidence of his guilt in addition to extraneous-offense evidence revealing his guilt of numerous similar offenses for which he was not indicted. Thus, the third factor weighs heavily in favor of the State because “it is likely that the same punishment would have been assessed regardless of the improper [argument].” Archie, 221 S.W.3d at 700 (quoting Archie v. State, 181 S.W.3d 428, 432 (Tex.App.-Waco 2005)); see Martinez, 17 S.W.3d at 693; Mosley, 983 S.W.2d at 260; Searcy, 231 S.W.3d at 550.

Given the mildness of the challenged argument and the overwhelming evidence supporting the punishment assessed, we hold that any error was harmless. See Martinez, 17 S.W.3d at 694; Mosley, 983 S.W.2d at 260; Searcy, 231 S.W.3d at 550. Accordingly, we overrule Lancaster’s fourth point.

Judgments Nunc Pro Tunc

Lancaster contends in his fifth point that his right to due process was violated by the court’s entry of judgments nunc pro tunc without notice or an opportunity to be heard. He claims in his sixth point that the court’s entry of the judgments nunc pro tunc constitutes the erroneous alteration of his sentences after he had commenced serving them. We address these in reverse order.

At issue are Lancaster’s sentences for five counts of indecency by contact, a single count of indecency by exposure, and a single count of criminal solicitation. The court ordered that Lancaster’s sentences for indecency by exposure, criminal solicitation, and one count of indecency by contact run concurrently beginning with the date of imposition of sentence, November 19, 2007. The sentences for the other four counts of indecency by contact were to run consecutively thereafter.

The court signed the judgments on November 28. These judgments recited the concurrent and consecutive sentences by specifying the cause numbers and counts which were to run concurrently or consecutively. For example, the judgment in trial court cause no. 07-01491-CRF-272 provided in pertinent part:

The Court ORDERS that the sentence in this conviction shall run concurrently with the following judgments and sentences: Brazos County cause number 07-01489-CRF-272 (Count One), with the date of sentence imposed being November 19, 2007; and Brazos County cause number 07-01489-CRF-272 (Count Two), with the date of sentence imposed being November 19, 2007.

On January 2, 2008, the court signed judgments nunc pro tunc for each count, specifying the offense of conviction for each cause number recited in the concurrent/consecutive sentencing paragraph. For example, the judgment nunc pro tunc in trial court cause no. 07-01491-CRF-272 provided in pertinent part:

The Court ORDERS that the sentence in this conviction shall run concurrently with the following judgments and sentences: Brazos County cause number 07-01489-CRF-272 (Count One), for the offense of Criminal Solicitaion [sic] of a Minor and with the date of sentence imposed being November 19, 2007; and Brazos County cause number 07-01489-CRF-272 (Count Two), for the offense of Indecency with a Child by Sexual Contact and with the date of sentence imposed being November 19, 2007.

Lancaster’s sixth point depends on his underlying contention that the cumulation orders in the original judgments signed in November 2007 were ineffective. As the argument goes, because the cumulation orders were ineffective, his sentences ran concurrently, and the trial court had no authority to correct the ineffective cumulation orders after he began serving his sentences. However, we reject the underlying premise.

The Court of Criminal Appeals has identified five recommended elements for a cumulation order: (1) the cause number of the prior conviction; (2) the name of the trial court where the prior conviction was taken; (3) the date of the prior conviction; (4) the term of years of the prior conviction; and (5) the nature of the prior conviction. Williams v. State, 675 S.W.2d 754, 763-64 (Tex.Crim.App.1984); Strahan v. State, 306 S.W.3d 342, 352 (Tex.App.-Fort Worth 2010, pet. filed). The purpose of these elements is to enable prison authorities to know how long to detain the inmate. Williams, 675 S.W.2d at 764; Strahan, 306 S.W.3d at 351-52.

The elements are not mandatory so long as the judgment is “ ‘substantially and sufficiently specific,’ ... to give notice both to the defendant and to the Department of Corrections exactly which sentences the instant sentence is cumulat-ed with.” Williams, 675 S.W.2d at 764 (quoting Ex parte Lewis, 414 S.W.2d 682, 683 (Tex.Crim.App.1967)); accord Strahan, 306 S.W.3d at 351-52. In fact, “a cumulation order which refers only to a prior cause number is sufficient if the order is entered in the same court as the sentence to which it is made cumulative.” Williams, 675 S.W.2d at 764; see Greer v. State, No. 03-07-00447-CR, 2008 WL 2938795, at *2 (Tex.App.-Austin July 31, 2008, pet. ref'd) (not designated for publication); Holder v. State, No. 11-01-00363-CR, 2002 WL 32344923, at *1 (Tex.App.-Eastland Oct. 10, 2002, no pet.) (per curiam) (not designated for publication).

Here, the cumulation orders in the November 2007 judgments contained essentially two of the five recommended elements: (1) the cause number of the prior conviction; and (2) the date of the prior conviction. Although the cumulation orders do recite the county of the prior conviction, they do not name the particular district court where the prior conviction was obtained. However, because all of Lancaster’s convictions were obtained in the 272nd District Court of Brazos County, the recitation of the cause numbers of the prior convictions is all that was required to make the cumulation orders sufficiently specific. Id. Therefore, because the original cumulation orders were sufficiently specific, the trial court’s decision to add more specificity by judgments nunc pro tunc after Lancaster began serving his sentences did not constitute an alteration of the sentences. Thus, we overrule Lancaster’s sixth point.

Lancaster contends in his fifth point that his right to due process was violated by the court’s entry of the judgments nunc pro tunc without notice or an opportunity to be heard. We addressed a similar contention in Popp v. State, No. 10-03-00263-CR, 2004 WL 2306635 (Tex.App.-Waco Oct. 13, 2004, pet. ref'd) (not designated for publication).

The purpose of a nunc pro tunc order is to have the court records correctly reflect a judgment actually rendered by the trial court. See Jones v. State, 795 S.W.2d 199, 202 (Tex.Crim.App.1990); McGinnis v. State, 664 S.W.2d 769, 770 (Tex.App.-Amarillo 1983, pet. ref'd). The Court of Criminal Appeals has said, that before any unfavorable nunc pro tunc orders are entered, the person convicted should be given an opportunity to be present for the hearing and represented by counsel, in order to accord him due process of law. Shaw v. State, 539 S.W.2d 887, 890 (Tex.Crim.App.1976). But more recently, the Court has said that if the trial court properly changed the order, remanding for a hearing would be a “useless task.” Homan v. Hughes, 708 S.W.2d 449, 454-455 (Tex.Crim.App.1986).

Id., 2004 WL 2306635, at *1.

Sending these appeals back to the trial court for a hearing would be a “useless task.” See Homan, 708 S.W.2d at 454-55; Popp, 2004 WL 2306635, at *2. Thus, we overrule Lancaster’s fifth point.

We affirm the judgments.

Chief Justice GRAY

concurs in the Court’s judgment to the extent it affirms the trial court’s judgment. A separate opinion will not issue.

      . Lancaster pleaded guilty to the following: (1) trial court cause no. 07-01490-CRF-272 (appellate cause no. 10-08-00026-CR) — 2 counts of indecency by contact; (2) trial court cause no. 07-01489-CRF-272 (appellate cause no. 10-08-00058-CR) — 1 count of criminal solicitation and 3 counts of indecency by contact; and (3) trial court cause no. 07-01491-CRF-272 (appellate cause no. 10-09-00156-CR) — 1 count of indecency by exposure.

      . Lancaster was charged in trial court cause no. 07-01490-CRF-272 (counts 1 & 4) (appellate cause no. 10-08-00026-CR) with 2 counts of promotion of child pornography. These charges were severed from the 2 counts of indecency by contact referenced in note 1 and tried together with 100 counts of possession of child pornography which we address in a separate opinion being issued on the same date as this opinion in appellate cause nos. 10-08-00025-CR, 10-08-00027-CR, 10-08-00028-CR, 10-08-00029-CR, and 10-08-00030-CR.

      .Lancaster filed 2 separate briefs in appellate cause no. 10-08-00026-CR. One addresses his convictions under counts 2 and 3 for indecency by contact, to which he pleaded guilty, and the other addresses his convictions under counts 1 and 4 for promotion of child pornography, for which he was separately tried.

      . The seven points we have identified assimilate the points raised in Lancaster’s briefs. We will address the points as we have renumbered them here. As we address each point, we will indicate how Lancaster has numbered the point in his briefs (e.g., point one in cause no. 10-08-0005 8-CR).

      . Lancaster’s first point as renumbered consists of: (1) the first point in his brief in cause no. 10-08-00026-CR challenging the indecency by contact convictions; (2) the second point in his other brief in cause no. 10-08-00026-CR challenging the promotion of child pornography convictions; and (3) the first point in his brief in cause no. 10-08-00058-CR.

      . Both indictments alleged that these offenses were committed "on or about December 31, 2006.” However, the State is not bound by the date alleged in the indictment so long as the evidence establishes that the offense was committed before the presentment of the indictment but within the limitations period. Sledge v. State, 953 S.W.2d 253, 255-56 (Tex.Crim.App.1997); Lane v. State, 174 S.W.3d 376, 386 n. 12 (Tex.App.-Houston [14th Dist.] 2005, pet. ref'd).

      . There is no testimony in the record regarding how long the shopping trip lasted. K.M.'s mother testified that they met Lancaster and the children at a restaurant for dinner that evening.

      . We need not determine whether a defendant may be prosecuted both for indecency by contact and promotion of child pornography for a single video recording depicting the defendant engaging in sexual contact with a child because the record in this case contains video recordings of multiple instances of sexual contact.

      . Lancaster's second point as renumbered consists of: (1) the second point in his brief in cause no. 10-08-00026-CR challenging the indecency by contact convictions; (2) the third point in his other brief in cause no. 10-08-00026-CR challenging the promotion of child pornography convictions; and (3) the second point in his brief in cause no. 10-08-00058-CR.

      . This is the third point in Lancaster’s brief in cause no. 10-08-00058-CR.

      . This is the first point in Lancaster’s brief in cause no. 10-08-00026-CR challenging the promotion of child pornography convictions.

      . Lancaster’s fourth point as renumbered consists of: (1) the third point in his brief in cause no. 10-08-00026-CR challenging the indecency by contact convictions; (2) the fourth point in his brief in cause no. 10-08-0005 8-CR; and (3) the first point in his brief in cause no. 10-09-00156-CR.

      . Lancaster's fifth point as renumbered consists of: (1) the fourth point in his brief in cause no. 10-08-00026-CR challenging the indecency by contact convictions; (2) the fifth point in his brief in cause no. 10-08-00058-CR; and (3) the second point in his brief in cause no. 10-09-00156-CR.

      . Lancaster's sixth point as renumbered consists of: (1) the fifth point in his brief in cause no. 10-08-00026-CR challenging the indecency by contact convictions; and 10-08-00058-CR.

      . Brazos County has three district courts.


author: PER CURIAM.

text:
    Kenneth Glenn WEBB, Appellant, v. The STATE of Texas, Appellee.
    Nos. 07-10-00177-CV, 07-10-00178-CV, 07-10-00179-CV.
    Court of Appeals of Texas, Amarillo, Panel A.
    May 27, 2010.
    Kenneth Glenn Webb, Beeville, TX, pro se.

      James A. Farren, Criminal District Attorney, Canyon, TX, for Appellee.
    Before CAMPBELL and HANCOCK and PIRTLE, JJ.
   OPINION ON ABATEMENT

PER CURIAM.

On February 25, 2010, in each referenced cause, pursuant to section 501.014(e) of the Texas Government Code, the trial court signed and entered an Order to Withdraw Inmate Funds. By the withdrawal notifications entered in each cause, the trial court directed the Texas Department of Criminal Justice, Institutional Division, to withhold from Webb’s inmate trust account the following amounts: (1) $8,071.25 in cause number 11,994-B; (2) $1,101.50 in cause number 18,617-B; and (3) $1,096.50 in cause number 18,618-B. Webb filed pro se notices of appeal on April 26, 2010, challenging the withdrawal notifications. While each withdrawal notification contained the statement that “court costs, fines and fees have been incurred as represented in the certified Bill of Cost/Judgment attached hereto,” none contained an attachment of any kind. Furthermore, while the judgment entered in cause number 11,994-B does include an order that the State recover “all costs,” the judgments in cause numbers 18,617-B and 18,618-B are silent as to the assessment of costs.

In Harrell v. State, 286 S.W.3d 315 (2008), the Texas Supreme Court held that a withdrawal notification directing prison officials to withdraw money from an inmate trust account pursuant to section 501.014(e) is a civil matter akin to a garnishment action or an action to obtain a turnover order. Id. at 317-19; see also Johnson v. Tenth Judicial District Court of Appeals at Waco, 280 S.W.3d 866, 869 (Tex.Crim.App.2008) (holding that orders directing withdrawal of funds from inmate trust accounts are not a criminal matter). In determining whether Harrell was accorded constitutional due process in that proceeding, the Court balanced three factors discussed in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), and noted that Harrell had “already received some measure of due process.” Harrell, 286 S.W.3d at 320.

The three Eldridge factors considered in Harrell are: (1) the private interest affected by the official action, (2) the risk of an erroneous deprivation of such interests through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards, and (3) the government’s interest, including the function involved and the fiscal and administrative burdens that additional or substitute procedural requirements would entail. Id. at 319-20 (citing Mathews, 424 U.S. at 335, 96 S.Ct. 893). The Court found the private interest to be affected to be easily ascertainable by reference to the amount identified in a prior court document, which could be “stated with exactness” as “the costs assessed when the convicting court sentenced him.” Id. at 320. Regarding the risk of erroneous deprivation, the Court identified the risk as modest where withdrawal notifications under the statute are based on an amount identified in a previous court document. See Tex. Gov’t Code Ann. § 501.014(e)(1)-(6) (Vernon Supp.2009). The Court noted that “Harrell was ... notified of the costs assessed when the convicting court sentenced him” and he was free to contest them at the time they were assessed. Harrell, 286 S.W.3d at 320. However, the Court went on to recognize there could be a greater risk of erroneous deprivation in instances in which the amount in the withdrawal notification varied from the amount in the underlying judgment or those instances where there were clerical or other errors. Id. In assessing the final factor, the government’s interest, the Court addressed the fiscal and administrative burdens of added or alternative procedures and concluded that the Texas Department of Criminal Justice would face expending more money than it would collect if it were required to conform to “full-blown” statutory garnishment requirements. Id. In the Court’s opinion, such a drawn-out procedure might subvert the Legislature’s goal of efficient cost-collection. Id.

Harrell had been convicted of drug charges in 1997 and 2003. In 2006, the convicting trial court signed an order authorizing the Texas Department of Criminal Justice, Institutional Division, to withdraw funds from his inmate trust account to pay for court costs and fees for appointed counsel. Harrell was provided with copies of the withdrawal notifications. He then moved to rescind the withdrawal notifications alleging denial of due process. His motion was denied, and his direct appeal to this Court was dismissed for want of jurisdiction on the ground that no statutory mechanism was available for appealing a withdrawal notification. See Harrell v. State, Nos. 07-06-0469-CR, 07-06-0470-CR, 2007 WL 2301350, at *1, 2007 Tex.App. LEXIS 6416, at *3 (Tex.App.Amarillo Aug. 13, 2007), rev’d, 286 S.W.3d 315 (Tex.2009).

In reversing this Court and rendering judgment affirming the trial court’s Order Denying Harrell’s Motion to Rescind, the Supreme Court held that due process entitles an inmate to receive notice and an opportunity to be heard, even though those requirements might be accorded the inmate after funds are withdrawn. Harrell, 286 S.W.3d at 321. It concluded that because Harrell had received notice (a copy of the withdrawal notification) and an opportunity to be heard (the motion to rescind), he had received all that due process required. Id. The Court added, “[t]he Constitution does not require pre-withdrawal notice or a comprehensive civil garnishment proceeding.” Id.

On the limited record before this Court, we are unable to determine if Webb has been given all that due process requires. Specifically, we are unable to determine whether Webb has been (1) provided the necessary underlying documentation, and (2) afforded an adequate opportunity “to compare the amounts assessed by the trial court [in the underlying criminal proceedings] to the amount[s] withdrawn and alert the court of any alleged errors.” See id. In that respect, we note that the “risk of an erroneous deprivation of [Webb’s] interests through the procedures used” in this particular case is apparent on the face of the documents contained in the Clerk’s Record. See id. at 320.

If an appellate court is uncertain about the intent of an order to finally dispose of all claims, it can abate the appeal to permit clarification by the trial court. See Tex. R.App. P. 27.2. Because the trial court has not entered an appealable order either granting or denying a motion to confirm, modify, correct, or rescind the prior withdrawal notification, we find Webb’s notices of appeal to be premature. See Williams v. State, 322 S.W.3d 301, 304 (Tex.App.-Amarillo 2010, no pet. h.).

Accordingly, this Court sua sponte abates this appeal for 180 days from the date of this order to allow Webb time to take such action as is necessary to (1) obtain the necessary documentation of the underlying court order; (2) compare the underlying court order to the withdrawal notification; (3) file an appropriate motion to modify, correct, or rescind the withdrawal notification; (4) present that motion to the trial court; (5) schedule any necessary hearing; and (6) obtain from the trial court a final appealable order addressing that motion. See Tex.R.App. P. 27.2; see also Iacono v. Lyons, 6 S.W.3d 715 (Tex.App.-Houston [1st Dist.] 1999, no pet.) (finding appeal prematurely filed and abating and remanding to permit the jurisdictional defect to be cured). All appellate timetables will begin to run from the date a final, appealable order is signed.

It is so ordered.

      . This document is not an "order” in the traditional sense of a court order, judgment, or decree issued after notice and hearing in either a civil or criminal proceeding. The controlling statute, Tex. Gov’t Code Ann. § 501.014(e) (Vernon Supp.2009), describes the process as a "notification by a court” directing prison officials to withdraw sums from an inmate's trust account, in accordance with a schedule of priorities set by the statute, for the payment of "any amount the inmate is ordered to pay by order of the court.” See id. at § 501.014(e)(1)-(6); see also Harrell v. State, 286 S.W.3d 315, 316, n. 1 (Tex.2009). This document is more akin to a judgment nisi. A judgment nisi, commonly used in bond forfeiture proceedings, is a provisional judgment entered when an accused fails to appear for trial. A judgment nisi triggers the issuance of a capias and it serves as notice of the institution of a bond forfeiture proceeding. It is not final or absolute, but may become final. See Safety Nat’l Cas. Corp. v. State, 273 S.W.3d 157, 163 (Tex.Crim.App.2008). Nisi means "unless,” so a judgment nisi is valid unless a party takes action causing it to be withdrawn. Id. Similarly, a withdrawal notification issued pursuant to section 501.014(e), triggers a trust fund withdrawal, serves as notice of the collection proceeding, and continues to operate unless the inmate takes action causing the notification to be withdrawn. Therefore, rather than refer to that document as an order, we prefer to use the term "withdrawal notification” to avoid confusion with an underlying court order or judgment ordering the payment of a sum falling within at least one of the six priority categories listed in the statute.

      . In assessing the risk of erroneous deprivation of property, the Supreme Court, in Harrell, considered the risk to be "modest” because notice under the statute is "based on an amount identified in a prior court document." Harrell, 286 S.W.3d at 320 (emphasis added). The Court went on to comment that the risk would be minimized if the trial court included a copy of the underlying order or judgment that assessed costs when it issues a withdrawal notification. We wholeheartedly adopt the Supreme Court’s recommendation in this regard.
      We further note that the mere assessment of attorney fees does not make them collectable through this process. Under article 26.05(g) of the Texas Code of Criminal Procedure, the trial court has authority to order reimbursement of appointed attorney fees only if the court makes a fact-specific determination that a defendant has financial resources that enable him to offset, in part or in whole, the costs of the legal services provided. See Tex. Code Crim. Proc. Ann. art. 26.05(g) (Vernon Supp.2009); see also Mayer v. State, 309 S.W.3d 552, 556 (Tex.Crim.App.2010).

      . While the court of appeals’s opinion is silent on whether a hearing was held on Harrell’s motion to rescind, Harrell, 2007 WL 2301350, at *1, 2007 Tex.App. LEXIS 6416, at *3, the trial court did enter a specific order denying his motion to rescind the withdrawal notification. We read the Supreme Court’s opinion as assuming that, by this process, Harrell was given "an opportunity to be heard.” Harrell, 286 S.W.3d at 321.

      . In cause number 11,994-B the withdrawal order commands the Texas Department of Criminal Justice to withdraw $3,071.25, but the Bill of Costs shows the amount due as being $2,908.59. The Bill of Costs also includes $350.00 for attorney’s fees. In cause number 18,617-B the withdrawal order was for the sum of $1,101.50, whereas the Bill of Costs reflected an amount due of $938.84, including $800.00 in attorney’s fees. Finally, in cause number 18,618-B, the withdrawal order was for the sum of $1,096.50, whereas the Bill of Costs reflected an amount due of $1,072.63, including $800.00 in attorney's fees.