author: DIANE M. HENSON, Justice.

text:
    The CITIES OF ALLEN, Argyle, Arlington, Bedford, Brownwood, Burkburnett, Burleson, Caddo Mills, Canyon, Carrollton, Cedar Hill, Clyde, College Station, Corral City, Crandall, Dimmitt, Eastland, Everman, Farmers Branch, Fate, Friona, Frisco, Grapevine, Haltom City, Harker Heights, Hereford, Highland Park, Honey Grove, Hurst, Irving, Kaufman, Keene, Keller, Killeen, Lake Worth, Lancaster, Lewisville, Mansfield, Midlothian, Parker, Ponder, Red Oak, Snyder, Stamford, Sulphur Springs, The Colony, Tyler, Wellman, Westlake and Wylie, Texas; and the City of Longview, Appellants, v. RAILROAD COMMISSION OF TEXAS; CenterPoint Energy Resources Corporation; Atmos Energy Corporation; and Texas Gas Services Company, a Division of Oneok, Inc., Appellees.
    No. 03-06-00691-CV.
    Court of Appeals of Texas, Austin.
    Feb. 5, 2010.
    Rehearing Overruled April 13, 2010.

      Daniel J. Lawton, Lawton Law Firm, PC, Jim G. Boyle, Herrera & Boyle, PLLC, Geoffrey M. Gay, Lloyd, Gosselink, Blevins, Rochelle, & Townsend, P.C., Austin, for appellant.
    Liz Bills, Assistant Attorney General, Natural Resources Division, James W. Checkley, Jr., Locke, Liddell & Sapp, LLC, David C. Duggins, Clark, Thomas & Winters, PC, Austin, for appellee.
    Before Chief Justice LAW, Justices PURYEAR and HENSON.
   OPINION

DIANE M. HENSON, Justice.

Fifty-one Texas cities (collectively, “the Cities”) brought a declaratory-judgment action against the Railroad Commission (“the Commission”), challenging the validity of Commission Rule 7.7101. See 16 Tex. Admin. Code § 7.7101 (2009) (Tex. R.R. Comm’n, Interim Rate Adjustments); see also Tex. Gov’t Code Ann. § 2001.038 (West 2008) (allowing parties to challenge validity of agency rule by declaratory-judgment action). CenterPoint Energy Resources Corporation (“CenterPoint”), Atmos Energy Corporation (“Atmos”), and Texas Gas Services Company (“Texas Gas”) intervened in support of the validity of the Commission’s rule. The trial court issued a final judgment denying the Cities’ request for declaratory relief, but issued findings of fact and conclusions of law stating that certain subsections of the Commission’s rule were void. We affirm the judgment of the trial court.

BACKGROUND

In 2008, the Texas Legislature amended the Gas Utility Regulatory Act, Tex. Util. Code Ann. §§ 101.001-105.051 (West 2007 & Supp.2009), to allow gas utilities an opportunity to recover a return on capital expenditures made during the interim period between rate cases filed pursuant to subchapter C of chapter 104 of the utilities code. See Act of May 16, 2003, 78th Leg., R.S., ch. 938, § 1, 2003 Tex. Gen. Laws 2801 (codified at Tex. Util.Code Ann. § 104.301); see also Tex. Util.Code Ann. §§ 104.101-.112 (West 2007) (setting forth procedures allowing regulated utilities to seek approval to change rates, referred to by parties as subchapter C rate cases). Under section 104.301, a gas utility may file a tariff or rate schedule providing for an interim rate adjustment with the applicable regulatory authority within two years of the utility’s last subchapter C rate case. See Tex. Util.Code Ann. § 104.301(a) (West 2007). The parties refer to section 104.301 as the “GRIP statute,” with GRIP being an acronym for “Gas Reliability Infrastructure Program.”

The GRIP statute provides, in relevant part:

A gas utility that has filed a rate case under Subchapter C within the preceding two years may file with the regulatory authority a tariff or rate schedule that provides for an interim adjustment in the utility’s monthly customer charge or initial block rate to recover the cost of changes in the investment in service for gas utility services.

Id. This tariff or rate schedule must be filed at least 60 days before the proposed implementation date of the new rates. Id. During this 60-day period, the municipality may suspend implementation of the new rates for up to 45 days. Id. The amount of the interim rate adjustment allowed under the GRIP statute is based on values associated with the utility’s return on investment, depreciation expenses, ad valorem taxes, revenue-related taxes, and incremental federal income taxes. Id. § 104.301(d).

The GRIP statute indicates that the reasonableness and prudence of the investments in service recovered by an interim rate adjustment will be subject to review in the utility’s next subchapter C rate ease. See id. § 104.301(a). Specifically, the statute provides that once a final order has been issued in a subchapter C rate case filed after the implementation of an interim rate adjustment, any change in investment that was included in the interim adjustment is “no longer subject to subsequent review for reasonableness or prudence.” Id. Importantly, the statute also provides that until the issuance of a final order in the utility’s next rate case, “all amounts collected under the tariff or rate schedule before the filing of the rate case are subject to refund.” Id. Any utility that implements an interim rate adjustment is required to file a subchapter C rate case no later than 180 days after the fifth anniversary of the date its interim rate became effective. Id. § 104.301(h). Alternatively, the regulatory authority itself may instigate a rate case at any time to review the reasonableness of the utility’s rates. Id. § 104.301(i); see also id. § 104.151 (West 2007).

In response to the GRIP statute, the Commission adopted Rule 7.7101, referred to by the parties as the “GRIP rule.” See 16 Tex. Admin. Code § 7.7101. The GRIP rule, which sets forth the substantive and procedural requirements for obtaining an interim rate adjustment, provides that the director of the Commission may reject any GRIP application that “does not substantially comply with the requirements of this section.” See id. § 7.7101(a). The rule goes on to describe the required contents of a GRIP application, including an annual project report and an annual earnings monitoring report, and provides the methodology to be used in calculating the interim rate adjustment. Id. § 7.7101(c), (f). Consistent with the GRIP statute, the rule provides that during the utility’s next rate case, the factors used to calculate the interim rate adjustment “shall be fully subject to review for reasonableness and prudence,” id. § 7.7101(j), and until the rate case has been concluded, all amounts collected under the adjusted rate schedule are subject to refund. Id. § 7.7101(f).

The GRIP rule also describes the procedure for reviewing a utility’s GRIP filing, stating that the director of the Commission is required to ensure that such filings are reviewed for compliance with the GRIP statute and rule. Id. § 7.7101(g). Upon completion of the review, the director’s recommendation regarding approval or rejection of the filing is submitted to the Commission for decision. Id. The GRIP rule does not provide for an adjudicatory hearing before the Commission on contested matters related to the GRIP filing, nor does it specifically provide for any involvement from the municipality having jurisdiction over the utility’s rates.

After the GRIP statute and rule were adopted, certain utilities filed applications for interim rate adjustments with the Cities. The Cities denied the applications, and the utilities appealed to the Commission. The Cities then requested adjudicative hearings at the Commission on issues related to the applications, but the Commission refused, taking the position that the GRIP statute and rule did not provide for any such hearing. The Commission ultimately granted the utilities’ applications for interim rate adjustments.

The Cities filed a declaratory-judgment action, seeking a declaration that the GRIP rule is void to the extent it prohibits them from intervening and obtaining an evidentiary hearing on appeals to the Commission from denials of GRIP filings. CenterPoint, Atmos, and Texas Gas intervened in support of the GRIP rule. The trial court concluded that the Cities were not entitled to the declaratory relief sought, and issued a take-nothing judgment. The trial court also issued findings of fact and conclusions of law, stating that the Cities have no authority to deny a utility’s GRIP application unless it fails to comply with the statute and that utilities have no right to appeal a City’s improper denial of a GRIP application to the Commission. In other words, the trial court’s conclusions of law suggest that the Cities are limited to conducting a ministerial review of GRIP applications, but in the event that the Cities do deny an application for failure to comply with the statute, no appeal may be taken to the Commission. Needless to say, if no appeal to the Commission is available, then the Cities have no right to intervene and participate in an adjudicative hearing at the Commission.

On appeal, the Cities argue that the trial court erred in denying its requested declaratory relief because the Commission exceeded its authority in adopting the GRIP rule and denying municipalities the opportunity for an adjudicatory hearing on contested matters related to GRIP applications. The Cities take the position that the Commission may conduct an appellate review of municipal denials of GRIP applications, but that the Commission must also allow the affected municipality to intervene and obtain an evidentia-ry hearing on contested issues relating to the application.

CenterPoint, Atmos, and Texas Gas argue that the trial court was correct in determining that the Cities are not entitled to an adjudicatory hearing in appeals to the Commission from denials of GRIP applications. They contend, however, that the Commission does have appellate authority over a municipality’s denial of a GRIP application, that the portions of the GRIP rule allowing the director to recommend denial or partial denial of an application are valid, and that the GRIP rule is applicable even when the regulatory authority is a municipality.

Finally, the Commission takes the position that the trial court was correct in concluding that appellate review — and by extension, an adjudicative hearing — is not available in connection with a municipality’s denial of a GRIP application, and that the GRIP rule does not apply when the applicable regulatory authority is a municipality. The Commission argues, however, that the trial court erred in finding subsections g(2)(B) and g(2)(C) of the GRIP rule, allowing the director to recommend denial or partial denial of a GRIP application, to be void. The Commission asserts that if it has the authority to review a GRIP application for compliance with the statute, it must also have the authority to deny the application for failure to comply.

STANDARD OF REVIEW

This appeal turns solely on issues of statutory construction. Statutory construction is a matter of law, subject to de novo review. City of Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex.2008). “Construction of a statute by the administrative agency charged with its enforcement is entitled to serious consideration, so long as the construction is reasonable and does not contradict the plain language of the statute.” Tarrant Appraisal Dist. v. Moore, 845 S.W.2d 820, 823 (Tex.1993). We also give great weight to the agency’s interpretation of its own rules and regulations, limiting our consideration to whether the interpretation is plainly erroneous or inconsistent with the plain language of the rule. Public Util. Comm’n v. Gulf States Utils. Co., 809 S.W.2d 201, 207 (Tex.1991).

DISCUSSION

The primary question before us on appeal is whether the trial court erred in denying the Cities’ request for a declaration that the Commission exceeded its authority in enacting a rule that precludes the Cities from intervening and obtaining an adjudicative hearing on appeals to the Commission from municipal denials of GRIP filings.

Although administrative rules are presumed valid, they may be found void if adopted without statutory authority. Texas Dep’t of Human Servs. v. Christian Care Ctrs., Inc., 826 S.W.2d 715, 720 (Tex.App.-Austin 1992, writ denied); see also Brown v. Humble Oil & Ref. Co., 126 Tex. 296, 87 S.W.2d 1069, 1070 (1935). “The determining factor in this and other decisions of our courts dealing with the question of whether or not a particular administrative agency has exceeded its rule-making powers is that the rule’s provisions must be in harmony with the general objectives of the Act involved.” Gerst v. Oak Cliff Sav. & Loan Ass’n, 432 S.W.2d 702, 706 (Tex.1968). A rule may not impose additional burdens, conditions, or restrictions that are inconsistent with the statutory provisions. Hollywood Calling v. Public Util. Comm’n, 805 S.W.2d 618, 620 (Tex.App.-Austin 1991, no writ).

Here, the Cities argue that the Commission exceeded its statutory authority in adopting the GRIP rule because it is contrary to provisions of the Gas Utility Regulatory Act allowing for hearings in contested case proceedings. See Tex. Util. Code Ann. § 102.006(a) (“The [Commission] by rule shall provide for administrative hearings in contested cases to be conducted .... ”). The Commission counters that the review of a GRIP filing is simply a ministerial review for compliance with the statute, that this review does not represent a contested case proceeding, and that because the GRIP statute does not provide for an adjudicative hearing, no such hearing is available.

In interpreting the GRIP statute, the trial court issued the following findings of fact:

1. The Texas Legislature did not intend to provide for a substantive review of the interim adjustment tariffs and rate schedules filed by utilities pursuant to Section 104.301 of the Texas Utilities Code [the GRIP statute], except for a ministerial review of the compliance with basic requirements set forth in that section.
2. The intent of the Texas Legislature was that regulatory authorities, either cities or the Railroad Commission of Texas, could contest such utility findings in a rate case filed under Subchapter C of the Texas Utilities Code following the filing of an adjusted tariff and/or following the annual recalculation of the adjusted tariff required by Section 104.301.

We begin by noting that the trial court’s findings of fact are better characterized as conclusions of law. A trial court’s designation of items as findings of fact is not controlling on appeal. See Ray v. Farmers’ State Bank, 576 S.W.2d 607, 608 n. 1 (Tex.1979); Jensen v. Covington, 234 S.W.3d 198, 205 (Tex.App.-Waco 2007, pet. denied). Because the task of ascertaining and giving effect to the legislature’s intent is a component of statutory construction, a matter of law subject to de novo review, we will treat the findings quoted above as conclusions of law, and review them as such. See, e.g., Dallas County Cmty. College Dist. v. Bolton, 185 S.W.3d 868, 872 (Tex.2005) (“Statutory construction is a matter of law, which we review de novo. Our primary objective when construing a statute is to ascertain and give effect to the Legislature’s intent.”) (citation omitted); see also BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex.2002) (“Appellate courts review a trial court’s conclusions of law as a legal question.”).

We note also that if “the reviewing court determines a conclusion of law is erroneous, but the trial court rendered the proper judgment, the erroneous conclusion of law does not require reversal.” BMC Software, 83 S.W.3d at 794; see also In re J.J.L.-P., 256 S.W.3d 363, 376 (Tex.App.-San Antonio 2008, no pet.) (observing that erroneous conclusions of law need not prompt reversal if judgment can be sustained on any legal theory supported by evidence). Therefore, if we determine that the trial court did not err in denying the Cities’ request for declaratory relief, we will affirm the judgment, even if we conclude that one or more of the trial court’s conclusions of law are erroneous.

Legislative Intent in Enacting the GRIP Statute

In finding that the Cities were not entitled to adjudicatory hearings at the Commission in connection with GRIP filings, the trial court concluded that the legislature intended to provide only a ministerial review of the filings until the utility’s next rate case, at which time a thorough review for reasonableness and prudence would be performed.

To discern legislative intent, we look first to the statute’s plain language. Phillips v. Bramlett, 288 S.W.3d 876, 880 (Tex.2009). Under the plain language of the GRIP statute, a utility that has filed a rate case within the preceding two years “may file with the regulatory authority a tariff or rate schedule that provides for an interim adjustment in the utility’s monthly customer charge or initial block rate to recover the cost of changes in the investment in service for gas utility services.” Tex. UtiLCode Ann. § 104.301(a). The statute further provides that in the 60 days before the adjusted rate goes into effect, the regulatory authority may suspend the implementation of the adjusted rate for a period of up to 45 days. Id. The statute does not, however, provide that the regulatory authority may deny the utility’s application for an interim rate adjustment. As previously discussed, the statute also provides that the components of the interim rate calculation are subject to a reasonableness review during the utility’s next rate case and that all amounts collected are subject to refund until the conclusion of the rate case, which must be filed no later than the 180th day after the fifth anniversary of the date on which the interim rates take effect. Id. § 104.301(a), (h).

Notably, the GRIP statute does not provide a mechanism for substantive review by the applicable regulatory authority at the time of the GRIP filing, nor does it provide for appellate review by the Commission. The Cities, however, urge that other provisions of the Gas Utility Regulatory Act, particularly the provision providing for administrative hearings in contested cases, should be read to apply to the GRIP statute as well. See Tex. Util. Code Ann. § 102.006(a). As the Cities accurately point out, legislative intent should be determined from the entire act, rather than from isolated portions. See Jones v. Fowler, 969 S.W.2d 429, 432 (Tex.1998). However, while it is true that section 102.006 provides for hearings in contested cases at the Commission, there is no indication that the legislature intended a utility’s GRIP filing to constitute a contested case. In fact, the language in the GRIP statute providing for a reasonableness review and refund, if necessary, as part of the utility’s next rate case indicates that the legislature intended to defer all substantive review of a utility’s GRIP filing, including the resolution of contested issues, until the next rate case. See Tex. Util.Code Ann. § 104.301(a). Therefore, we do not find the existence of section 102.006 to be particularly persuasive in the present case.

When the plain language of a statute does not clearly convey the legislature’s intent, we may rely on additional construction aids, such as the objective of the law, the legislative history, the consequences of a particular construction, the administrative construction of the statute, and its caption or preamble. See Tex. Gov’t Code Ann. § 311.023 (West 2005); Galbraith Eng’g Consultants, Inc. v. Pochucha, 290 S.W.3d 863, 867-68 (Tex.2009).

Senate Bill 1271, the bill that enacted the GRIP statute, bears the caption, “An act relating to incentives to encourage gas utilities to invest in new infrastructure.” Act of May 16, 2003, 78th Leg., R.S., ch. 938, § 1, 2003 Tex. Gen. Laws 2801 (codified at Tex. Util.Code Ann. § 104.301). The House Bill Analysis states:

Under their original jurisdiction, municipalities and the Railroad Commission regulate the rates of local distribution companies and pipelines, respectively. In setting rates, these regulators base those rates on the operating expenses of the utilities and a reasonable return on their investment in facilities. Rate [c]ases can cost $2-4 million to prosecute. If a utility makes an investment after it has prepared a rate case, it must wait until the next case to begin recovering on that investment. With continuing growth in Texas and recent emphasis on replacing facilities to enhance safety, utilities face significant challenges in obtaining the capital necessary for these new investments. Under present law, this can only occur through a full rate case. This bill would permit the utility to begin recovery on new investments in the year following completion of construction. The bill provides monitoring mechanisms that would prevent utilities from earning more than allowed and would provide for periodic rate reviews.

House Comm, on Regulated Indus., Bill Analysis, Tex. S.B. 1271, 78th Leg., R.S. (2003).

Similarly, the Senate Bill Analysis reads:

Currently, if a utility makes an investment after it has prepared a rate case, it must wait until the next case to begin recovering on that investment. However, utilities are facing some challenges in obtaining the necessary capital for new investments to meet the continuing growth in Texas and to replace facilities to enhance safety. S.B. 1271 permits utility companies to begin recovery on new investments in the year following completion of construction.

Senate Comm, on Natural Res., Bill Analysis, Tex. S.B. 1271, 78th Leg., R.S. (2003).

According to the House Research Organization, supporters of the bill asserted that “[t]his bill would streamline the regulatory process, allowing utilities to begin recovering their investments without lengthy and expensive rate cases.... By allowing a utility to begin recovering its investment immediately, the bill would create an incentive for investment in the state’s gas pipeline infrastructure.” House Research Organization, Bill Analysis, Tex. S.B. 1271, 78th Leg., R.S., 3-4 (May 16, 2003). Opponents of the bill, on the other hand, stated, “Rate regulation is based on a regulatory body’s comprehensively reviewing a utility’s costs and allowing the utility to earn a fair rate of return on its reasonable and necessary expenses. This bill would circumvent this process by allowing a utility to begin recovering for one rate component without full review of the utility’s costs.” Id. at 5. Both the statements of the bill’s supporters and the complaints of the bill’s opponents seem to acknowledge that the GRIP statute does not allow for a full, substantive review of the interim rate adjustments until the utility’s next rate case.

Finally, the transcript of the hearing before the House Committee on Regulated Industries indicates that when the bill was initially introduced, there was some concern regarding the ability of the Cities to question the reasonableness of the interim rate adjustments under the GRIP statute. At one point during the hearing, the committee chairman asked whether “there is some review by the city, for example, that can challenge whether or not that was reasonable or necessary or whatever the general words are that we use to look at the rate of return investments and things like that.” Hearings on Tex. H.B. 1942 Before the House Comm, on Regulated Indus., 78th Leg., R.S. 14 (March 25, 2003). In response, Geoffrey Gay, representing a number of affected municipalities, testified, “My understanding ... is that there is no prior approval in this bill that is a prospective type review from the Earnings Monitoring Reporting process. So my understanding would be a company comes in and files a tariff with a regulatory authority whether it be a city or the Railroad Commission. The tariff is automatically implemented a year later....” Id. at 15. When asked how a utility’s interim rate could be challenged, a representative from TXU responded that a “team of lawyers can come in and ask for a rate proceeding just like we do now” and the “interim rates would go into place subject to refund.” Id. at 50. While the public hearing on House Bill 1942 suggests some legislative concern regarding the municipalities’ participation in the GRIP process, the fact that the legislature passed the bill in the face of testimony regarding the lack of substantive review until the utility’s next rate case suggests that these concerns were assuaged, possibly by the number of ratepayer protections included in the bill.

The aforementioned ratepayer protections further support the conclusion that the GRIP statute provides only for a ministerial review, with substantive issues to be deferred until the utility’s next rate case. As previously discussed, all amounts collected under the interim rate adjustments are subject to refund until the con-elusion of the utility’s next rate case, which must be filed no later than the 180th day after the fifth anniversary of the effective date of the interim rates, and during which the interim rate calculations are subject to review for reasonableness and prudence. See Tex. UtiLCode Ann. § 104.301(a). Furthermore, the amount of the adjustment “shall be recalculated on an annual basis in accordance with the [calculation methodology] requirements of Subsection (b)” of the statute. Id. § 104.301(c); see also id. § 104.301(b). Utilities seeking GRIP adjustments must file an annual report describing their investment projects completed and placed in service or retired or abandoned during the preceding calendar year, as well as an annual earnings monitoring report demonstrating their earnings during the preceding calendar year. Id. § 104.301(e), (f).

Another ratepayer protection built into the GRIP process is the fact that a City is entitled to instigate the filing of a rate case at any time. See id. § 104.301(i) (“This section does not limit the power of a regulatory authority under Section 104.151.”); see also id. § 104.151 (allowing regulatory authority to instigate rate case upon finding that utility’s existing rates “are unreasonable or in violation of law”). Therefore, if the City determines that a utility’s GRIP filings necessitate a review for reasonableness and prudence, the City is free to file a rate case, perform a thorough, substantive review of the components of the utility’s GRIP filing-, and if necessary, order a refund of amounts collected under the interim rate. See id. §§ 104.151, .301. Allowing a municipality to bring a substantive challenge to a utility’s GRIP filing first in an appeal to the Commission and then a second time during the utility’s next rate case is inconsistent with the legislature’s intent to streamline the interim rate adjustment process in order to encourage gas utility infrastructure investment.

Finally, an agency’s interpretation of a statute it is charged with enforcing is entitled to deference so long as the agency’s interpretation is consistent with the language and purpose of the statute. See TXU Elec. Co. v. Public Util. Comm’n, 51 S.W.3d 275, 286 (Tex.2001); Tarrant Appraisal Dist., 845 S.W.2d at 823. Here, the Commission, the agency charged with enforcing the Gas Utility Regulatory Act, interprets the statute to provide a streamlined process for utilities to qualify for interim rate adjustments, allowing for only a ministerial review of GRIP filings and precluding an adjudicative hearing at the Commission. In adopting the GRIP rule, the Commission stated:

While it is clear that there will not be the kind of review of the reasonableness or prudence of an investment that is typically done in a full rate case, the statute does not clearly spell out the type of review that the Commission must conduct for investment that is the subject of a proposed interim rate adjustment. ... The Commission finds that [] implementing a process for reviewing interim rate adjustment applications without a hearing is in harmony with other aspects of Texas Utilities Code, 104.301. The statute provides for no evidentiary proceedings, nor does it appear to contemplate that the regulatory authority should do more than review the utility’s method of calculating the interim rate adjustment. The absence of due process requirements in [the GRIP statute] essentially means that all due process protections are deferred until the next full rate case, which must be filed no later than the fifth year.

29 Tex. Reg. 11951 (2004). Because this interpretation is not inconsistent with the language and purpose of the statute, it is entitled to deference. See TXU Elec. Co., 51 S.W.3d at 286; Tarrant Appraisal Dist., 845 S.W.2d at 823.

In light of the GRIP statute’s legislative history, administrative construction, inherent ratepayer protections, and lack of express language providing for adjudicative hearings at the Commission, we conclude that the statute does not contemplate either adjudicative hearings or a substantive review at the time of the GRIP filing. Rather, the legislature intended to encourage investment in new infrastructure by creating a streamlined method of allowing utilities to immediately begin recovering on new investments without having to wait for the completion of a costly and time-consuming rate case. A ministerial review for compliance with the statute is all that is required, as the Cities are entitled to a substantive review of the utility’s GRIP filing during the utility’s next rate case. On that basis, we hold that the trial court did not err in denying the Cities’ request for declaratory relief.

The Commission’s Appellate Authority

The Cities also contend that the trial court erred in issuing conclusion of law number four, which states, “A utility does not have the authority to appeal an improper- denial of a filing by a City to the Railroad Commission under Section 104.301 of the Texas Utilities Code because the Legislature did not provide an appellate mechanism in that section.” We note that the trial court also concluded— and we agree — that a municipality is not entitled to deny a utility’s GRIP filing except for failure to comply with the GRIP statute. It would appear, then, that the only circumstance under which the Commission could even attempt to exercise appellate authority over a denial of a GRIP filing would be if a municipality concludes that a GRIP filing failed to comply with the statutory requirements. The result, if allowed, would essentially be a ministerial review of a ministerial review.

Significantly, despite having initially exercised appellate jurisdiction over municipal denials of GRIP filings, the Commission’s position on appeal is that the trial court was correct in concluding that the Commission does not have appellate jurisdiction over a municipality’s denial of a GRIP filing. As previously stated, an agency’s interpretation of a statute it is charged with enforcing is entitled to deference so long as the agency’s interpretation is consistent with the language and purpose of the statute. See TXU Elec. Co., 51 S.W.3d at 286. Because the statute does not expressly provide for appellate authority by the Commission over a municipality’s denial of a GRIP filing, and because we have already determined that the legislature’s intent in passing the GRIP statute was to provide a streamlined and efficient process for allowing interim rate adjustments, we conclude that the Commission’s interpretation is consistent with the language and purpose of the statute. While the Commission generally exercises exclusive appellate jurisdiction to review orders of a municipality in the context of gas utility regulation, see Tex. UtiLCode Ann. § 102.001(b) (West 2007), there is no indication that a municipality’s denial of a GRIP filing for failure to comply with the statutory requirements is considered “an order or ordinance of a municipality” as contemplated by section 102.001. On that basis, we hold that appellate review by the Commission is not available when a municipality denies a GRIP filing after conducting a ministerial review for compliance with the statute.

Subsections 7.7101(g)(2)(B) and (g)(2)(C) of the GRIP Rule

Finally, the City of Longview argues that conclusion of law number one, which provides, “The Railroad Commission exceeded its statutory authority by enacting-subsections 7.7101(g)(2)( [B]) and (g)(2)( [C]) of its Rule 7.7101 and those provisions are therefore void,” is inconsistent with the trial court’s judgment denying declaratory relief. Subsections 7.7101(g)(2)(B) and (g)(2)(C) allow the Commission to reject a GRIP filing in whole or in part. 16 Tex. Admin. Code § 7.7101(g)(2)(B), (g)(2)(C). While an erroneous conclusion of law need not mandate reversal if the trial court’s judgment is otherwise correct, see BMC Software, 83 S.W.3d at 794, we note that in order to read the trial court’s conclusions of law in a consistent manner, it is necessary to assume that in some cases, the Commission may reject a GRIP filing in whole or in part if it fails a “ministerial review of the compliance with basic requirements set forth in” the GRIP statute, as described in finding of fact number one. In certain areas, it is the Commission, rather than any municipality, that exercises regulatory authority over gas utility rates. See Tex. Util.Code Ann. § 102.001(a) (Commission has exclusive jurisdiction over rates and services of utilities distributing gas either outside boundaries of municipality or inside municipality that surrenders jurisdiction to Commission). In that context, the Commission would have the same authority to review GRIP filings for compliance with the statute that the municipalities have for rates within their jurisdiction. It logically follows that subsections 7.7101(g)(2)(B) and (g)(2)(C) would only be void to the extent the Commission attempted to reject a GRIP filing over which it holds regulatory authority for any reason other than failure to comply with the statutory requirements.

Cross-Points of Error

CenterPoint and Texas Gas raise a cross-point that the trial court erred in issuing conclusion of law number five, which states, “The Railroad Commission does not have the authority to apply its Rule 7.7101 to the action of a city.” This point of error was raised only by appellees, none of whom filed a notice of appeal in this case. See Tex.R.App. P. 25.1(c) (“The appellate court may not grant a party who does not file a notice of appeal more favorable relief than did the trial court except for just cause.”); see also Helton v. Railroad Comm’n of Tex., 126 S.W.3d 111, 119-120 (Tex.App.-Houston [1st Dist.] 2008, pet. denied) (observing that cross points seeking more relief than was granted in judgment require separate notice of appeal while cross points that merely present an alternative basis for affirming judgment do not). Because this cross-point does not merely present an alternative basis for affirming the judgment, but seeks a holding that the trial court erred in issuing one of its conclusions of law, we conclude that the cross-point is not properly before us in this appeal.

CONCLUSION

We affirm the trial court’s order denying the Cities’ request for declaratory relief.

Chief Justice LAW not participating.

      . The cities of Allen, Argyle, Arlington, Bed-ford, Brownwood, Burkburnett, Burleson, Caddo Mills, Canyon, Carrollton, Cedar Hill, Clyde, College Station, Corral City, Crandall, Dimmitt, Eastland, Everman, Farmers Branch, Fate, Friona, Frisco, Grapevine, Hal-tom City, Harker Heights, Hereford, Highland Park, Honey Grove, Hurst, Irving, Kaufman, Keene, Keller, Killeen, Lake Worth, Lancaster, Lewisville, Mansfield, Midlothian, Parker, Ponder, Red Oak, Snyder, Stamford, Sulphur Springs, The Colony, Tyler, Wellman, West-lake and Wylie, Texas, and the City of Long-view. The municipal plaintiffs, other than the City of Longview, participated in the underlying litigation as a coalition of cities, referring to themselves as "the Cities of Allen, et al.” The City of Longview acted as a separate party and filed a separate notice of appeal.

      . Under the Gas Utility Regulatory Act, Texas municipalities share responsibility for regulating the State's gas utility rates with the Commission. See Tex. Util.Code Ann. §§ 102.001, 103.001 (West 2007). While municipalities may elect to delegate their regulatory responsibilities to the Commission, see id. § 103.003 (West 2007), the Cities have not done so, and remain responsible for regulating utility rates within their boundaries.

      . While the phrase "Gas Reliability Infrastructure Program" and the acronym “GRIP" do not appear in the applicable statutes or administrative rules, for purposes of this opinion we will adopt the terminology used by the parties and refer to section 104.301(a) as the "GRIP statute.”

      . The word "application” does not actually appear in the GRIP statute, but appears only in the GRIP rule and in some of the parties' briefs to describe the filing of an interim tariff or rate schedule. Our use of the word "application” in this context should not be construed to imply that a substantive review of a utility's GRIP filing is required.

      . The trial court also concluded that the Commission exceeded its authority by enacting subsections (g)(2)(B) and (g)(2)(C) of the GRIP rule, which allow the director to recommend denial or partial denial of a utility's GRIP application, and that those provisions are therefore void. See 16 Tex. Admin. Code § 7.7101(g)(2)(B), (C) (2009) (Tex.R.R. Comm’n, Interim Rate Adjustments). The trial court further concluded that the Commission "does not have the authority to apply its Rule 7.7101 to the action of a city.” Presumably, this means that when a municipality is the appropriate regulatory authority with which to file a GRIP tariff or rate schedule, Rule 7.7101 does not apply and no additional action by the Commission is contemplated or authorized.

      . We reject the contention, raised by Center-Point and Texas Gas, that the City of Long-view is precluded from challenging the trial court's judgment under the “invited error” doctrine. While the City of Longview requested in the trial court that the validity of the GRIP rule be resolved in the separate suits for judicial review of the Commission's final orders on the individual GRIP applications, this request does not rise to the level of invited error. See In re Department of Family & Protective Servs., 273 S.W.3d 637, 646 (Tex.2009) (stating that invited error doctrine applies to situations where parly requests court to make specific ruling, then complains of that ruling on appeal). The City of Longview did not request the ruling that it now complains of on appeal — that the Cities are not entitled to an adjudicative hearing at the Commission on contested issues related to GRIP filings. We do, however, decline to reach the City of Longview's appellate arguments to the extent they relate specifically to the GRIP filing of Atmos, as those complaints are not properly before us in a rule challenge under government code section 2001.038. See Tex. Gov.Code Ann. § 2001.038 (West 2008).

      . Based on our determination that the trial court's findings of fact are actually conclusions of law, we need not address the argument raised by the Commission, CenterPoint, and Texas Gas that because the Cities did not specifically challenge the sufficiency of the evidence to support the findings, they are binding for purposes of this appeal.

      . Presumably, the "monitoring mechanisms" and "periodic rate reviews” referenced in the bill analysis refer to ratepayer protections such as the annual recalculation of the interim rate adjustment, the reasonableness review and refund potential awaiting the utility in its next rate case, and the annual reports and earnings monitoring reports that the utility is required to file. See Tex. Util.Code Ann. § 104.301(a) (West 2007).

      . The trial court admitted the transcript of this hearing into evidence. The hearing pertains to House Bill 1942, the companion bill to Senate Bill 1271.

      . We note that Gay indicated on the record that he had not seen a copy of the committee substitute version of the bill until the day of the hearing, and when asked whether a rate adjustment would immediately go into effect at the time of filing, he stated, “It did under the original bill. I'll try to conclude whether the substitute does that.” Our quotation of Gay's testimony is not meant to imply that he conceded anything with respect to the implications of the GRIP statute, but merely to point out the legislature's awareness of the pertinent issues at the time it enacted the statute.

      . In addition, if the utility's earnings monitoring report indicates that it is earning a return on invested capital of more than 75 basis points above the return established under the rates it would be charging if not for the GRIP statute, the utility must file a statement with its report, giving the reasons why the rates are not unreasonable or in violation of law. Tex. Util.Code Ann. § 104.301(g).

      . The utilities, on the other hand, take the position that an appeal to the Commission is available.

      . CenterPoint and Texas Gas also raise cross-points that conclusions of law numbers one and four are erroneous, and the Commission raises its own cross-point that conclusion of law number one is incorrect. Because these points were also raised by the Cities, they have already been addressed.

      . Because Chief Justice Law was originally assigned to author this opinion, authoring duties were reassigned as of November 6, 2009.


source: Caselaw Access Project

author: KEM THOMPSON FROST, Justice.

license: Public Domain

text:
    Albert Vincent THOMAS, Appellant, v. The STATE of Texas, Appellee.
    No. 14-08-01157-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Feb. 18, 2010.

      Casey Garrett, Houston, for appellant.
    Bridget Holloway, Houston, for appellee.
    Panel consists of Justices YATES, FROST, and BROWN.
   OPINION

KEM THOMPSON FROST, Justice.

Appellant Albert Vincent Thomas challenges his conviction for aggravated sexual assault of a child, asserting that a State’s witness was an improper outcry witness. We affirm.

Factual and Pkocedural Background

The State charged appellant by indictment with the offense of aggravated sexual assault of a child, appellant’s young stepdaughter, by causing the sexual organ of the child to contact appellant’s sexual organ. Appellant pleaded “not guilty” to the charged offense. Before trial, appellant filed a pre-trial motion for a determination of the State’s outcry witnesses. At the hearing on the matter, the complainant, eleven-year-old Mary testified that when she was eight years old, she first told her mother that appellant touched her in her “private areas.” According to Mary, she did not tell her mother everything about appellant’s conduct, but rather told her mother “just a little bit.” Mary explained that she did not tell her mother in what manner appellant touched her. Mary indicated that her mother confronted appellant, who denied the accusation. Mary testified that her mother passed away when Mary was ten years old.

Mary testified that when she was eleven years old, she told her stepmother, Marke-sha Federick, about appellant’s conduct. She testified that she gave the “whole story” to Federick. Mary explained that she told Federick that she was sleeping and appellant entered her room, removed her disposable diaper — a “pull-up,” and put his “private parts” into her “private parts.” Mary testified that she told Fed-erick that appellant moved “in and out” and that “white stuff started coming out of his private parts” and that it hurt her.

On cross-examination, Mary indicated that she told her mother that the incident occurred in her bedroom. She recalled telling her mother that appellant pulled her pull-up diaper down and touched her “private areas” with his hands. She denied telling her mother about appellant’s movement “in and out,” the “white stuff,” or that appellant touched her with his “private parts.”

At the end of the hearing, appellant objected to the designation of Federick as an outcry witness, asserting that Mary first made outcry to her mother, now deceased. The trial court ruled that Feder-ick was the proper outcry witness. After the trial that followed, the jury found appellant guilty as charged, and the trial court sentenced appellant to thirty years’ confinement.

Issue and Analysis

In a single issue appellant claims reversible error in the trial court’s designation of Federick as an outcry witness. According to appellant, Mary’s mother, who had since died, was the proper outcry witness because the mother was the first to hear Mary report appellant’s sexual conduct. We review a trial court’s designation of an outcry -witness under an abuse-of-discretion standard. See Garcia v. State, 792 S.W.2d 88, 92 (Tex.Crim.App.1990). A trial court’s designation of an outcry witness will be upheld when supported by the evidence. Id.

Under article 38.072 of the Texas Code of Criminal Procedure, some hearsay statements are admissible in prosecuting certain offenses, including aggravated sexual assault of a child, as in this case. Tex.Code Crim. PROC. Ann. art. 38.072, § 1 (Vernon 2005). This statute applies to “statements that describe the alleged offense” and that (1) were made by the child against whom the offense allegedly was committed and (2) were made to the first person, eighteen years of age or older, other than the defendant, to whom the child made a statement about the offense. Id. § 2(a). The Court of Criminal Appeals has construed the statute to apply to the first adult to whom the complainant makes a statement that in “some discernible manner describes the alleged offense.” See Garcia, 792 S.W.2d at 91. For the statute to apply, the statement must be more than words that give a “general allusion” that something in the area of child abuse has occurred. Id.

Although appellant contends that Feder-ick was not a proper outcry witness because Mary’s mother was the first adult to whom Mary outcried about appellant’s sexual misconduct, the record reflects that in her statements to her mother Mary did not “describe the alleged offense.” See Tex.Code Crim. Proc. Ann. art. 38.072, § 2(a)(1) (applying hearsay exception to “statements that describe the alleged offense”). Article 38.072 applies only to statements that describe the alleged offense. Id.; see Gallegos v. State, 918 S.W.2d 50, 56 (Tex.App.-Corpus Christi 1996, pet. ref'd) (providing that outcry testimony of appellant kissing child did not exceed the scope of the statute requiring statements to describe the alleged offense because in the indictment charging appellant the State alleged both sexual assault and indecency with a child by contact). Mary’s statements to her mother involved appellant’s sexual conduct with Mary in using his hands; however, appellant was charged with causing Mary’s sexual organ to contact his sexual organ. See Tex.Code Crim. Proc. Ann. art. 38.072, § 2(a)(1). Thus, it is not clear that the event to which Mary alluded when speaking with her mother was the same event that was the subject of Mary’s outcry to Federick.

Furthermore, according to Mary’s testimony at the outcry hearing, in statements to her mother Mary did not describe the occurrence with any specificity. See Reyes v. State, 274 S.W.3d 724, 728 (Tex.App.-San Antonio 2008, pet. ref'd). She denied telling her mother about appellant’s “private parts,” “white stuff,” appellant’s movement “in and out,” or how it hurt her; Mary testified that she only told her mother about appellant using his hands to touch her. The record does not reflect that Mary told her mother of any specific details of the offense for which appellant was charged. See Bargas v. State, 252 S.W.3d 876, 894 (Tex.App.-Houston [14th Dist.] 2008, no pet.); Sims v. State, 12 S.W.3d 499, 500 (Tex.App.-Dallas 1999, pet. ref'd) (involving child who told mother of sexual misconduct, although record does not reflect whether the child shared any specific details of the alleged offense with mother). The trial court reasonably could have determined that Mary’s statement to her mother was nothing more than a general allusion that something in the area of sexual abuse had occurred and not a clear description of the alleged offense. See Tex.Code Crim. Proc. Ann. art. 38.072, § 2(a); Bargas, 252 S.W.3d at 894. Such statements, as general allusions, in which the complainant does not describe the alleged offense in some discernible manner, are not within the purview of article 38.072. See Tex.Code Crim. Proc. Ann. art. 38.072, § 2(a); Garcia, 792 S.W.2d at 91.

As reflected by the record, Mary’s statements to Federick include a detailed description of the alleged offense with Mary describing how appellant put his “private parts” into her “private parts,” how appellant moved “in and out,” and that “white stuff started coming out of his private parts.” According to the record, Federick was the first person over eighteen years of age to whom Mary, in some discernible manner, described the offense charged in the indictment. See Tex.Code Crim. Proc. Ann. art. 38.072, § 2(a); Garcia, 792 S.W.2d at 91. Mary’s account to Federick of appellant’s sexual conduct was more than a general allusion that sexual abuse had occurred; her statements contained sufficient information about the nature of the acts and the perpetrator to meet the requirements of article 38.072. See Tex. Code Crim. Proc. Ann. art. 38.072, § 2(a); Garcia, 792 S.W.2d at 91. We conclude the trial court did not abuse its discretion in designating Federick as the proper outcry witness. See Tex.Code Crim. Proc. Ann. art. 38.072, § 2(a); Garcia, 792 S.W.2d at 91. Therefore, we overrule appellant’s sole issue and affirm the trial court’s judgment.

      . To protect the privacy of the child complainant, we refer to the child by a pseudonym.


author: WILLIAM J. BOYCE, Justice.

text:
    James and Elizabeth CARLSON, Jose and Elizabeth Referente, Roger Campodonico, Sergio A. Lopez, Yan Wang and Hui Yao, Daniel and Andrea Seluk, Robert Hutchins, Robert and Kelly Farfan, Bonnie Corbett, Helen Pagola, and Manny Espinola, Appellants, v. CITY OF HOUSTON, Appellee.
    No. 14-08-01044-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Feb. 18, 2010.

      William C. Ferebee, Robert G. Miller, Houston, for appellants.
    Bertrand L. Pourteau, II, Houston, for appellee.
    Panel consists of Justices FROST, BOYCE, and SULLIVAN.
   OPINION

WILLIAM J. BOYCE, Justice.

James and Elizabeth Carlson, Jose and Elizabeth Referente, Roger Campodonico, Sergio A. Lopez, Yan Wang, Hui Yao, Daniel and Andrea Seluk, Robert Hutch-ins, Robert and Kelly Farfan, Bonnie Cor-bett, Helen Pagóla, and Manny Espinóla appeal from an order granting the City of Houston’s plea to the jurisdiction. We reverse and remand.

Background

Appellants own residential units at Park Memorial, a condominium complex located at 5292 Memorial Drive in Houston. Park Memorial is governed by Park Memorial Condominium Association, Inc.

In 2007, the Association contracted with three professional engineering companies to investigate the structural integrity of some of the buildings constituting the Park Memorial complex. All three reports expressed concerns regarding the structural integrity of certain buildings. Specifically, the reports expressed concerns that wood and steel support beams were deteriorated and corroded in some of the buildings. The reports recommended replacing the beams and removing the stucco covering on other beams for further testing. One report recommended immediate “shoring” of the corroded beams. Another report stated that if the beams were not properly protected from further corrosion, they would “continue to deteriorate and may eventually fail.” None of the reports expressed concerns that the buildings were in danger of immediate collapse.

The City learned of concerns regarding the structural integrity of certain Park Memorial buildings in July 2008. The City subsequently contracted with David Collins, a licensed structural engineer, to independently investigate the structural integrity of the Park Memorial buildings. Collins’s report also expressed concerns regarding the structural integrity of some of the Park Memorial buildings due to the corroded beams. Collins’s report stated in part as follows:

[Bjuilding units A, B, C, G and H, should be considered an immediate danger to tenants and public safety. The wood structural members have lost [their] structural integrity. The members are water logged, dry rotted and termite infected. Steel members are corroding and have deteriorated.
The parking garage area where the beam(s) have totally deteriorated should not be occupied by cars and/or tenants.... The buildings appear to be structurally sound but in observing the main structural members of any of the buildings; there are serious damages and danger of walls and entire building[s] collapsing.

After reviewing Collins’s report, the City issued an order on August 15, 2008 directing all Park Memorial residents to vacate all Park Memorial buildings by September 15, 2008.

The City sent a letter to Park Memorial’s residents on August 20, 2008 informing them of their right under City of Houston Building Code section 116 to request an administrative hearing to contest the August 15, 2008 order to vacate. Four of the appellants requested an administrative hearing. The City held an administrative hearing on September 9, 2008 and affirmed the August 15, 2008 order to vacate in a letter dated September 10, 2008. On September 11, 2008, the City extended the deadline to vacate the property until October 1, 2008 due to the approach of Hurricane Ike.

Appellants timely filed a petition for writ of certiorari in district court on October 1, 2008 seeking judicial review of the August 15, 2008 order to vacate. See Tex. Local Gov’t Code Ann. § 214.0012(a) (Vernon 2008) (“Any owner, lienholder, or mortgagee of record of property jointly or severally aggrieved by an order of a municipality issued under Section 214.001 may file in district court a verified petition setting forth that the decision is illegal, in whole or in part, and specifying the grounds of the illegality.”). Appellants also requested a temporary restraining order and a temporary injunction. The district court signed an order on October 1, 2008 granting appellants’s request for a temporary restraining order.

The City filed its original answer and plea to the jurisdiction on October 8, 2008. Sean Cody filed a plea in intervention on October 13, 2008. The Association filed a petition in intervention on October 14, 2008. Appellants filed their response to the City’s plea to the jurisdiction on October 15, 2008, and a supplemental petition for writ of certiorari on October 17, 2008. The district court denied appellants’s request for a temporary injunction in an order signed October 31, 2008, and granted the City’s plea to the jurisdiction in an order signed November 7, 2008. Appellants timely appealed and now challenge the district court’s order granting the City’s plea to the jurisdiction.

Standard of Review

We review the district court’s grant of a plea to the jurisdiction de novo. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004). In reviewing a plea to the jurisdiction, we do not consider the merits of the underlying claim; we consider only the plaintiffs pleadings and the evidence pertinent to the jurisdictional inquiry. See Tex. Natural Res. Conservation Comm’n v. White, 46 S.W.3d 864, 868 (Tex.2001); Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554-55 (Tex.2000).

A plea to the jurisdiction can challenge the pleadings or the existence of jurisdictional facts. Miranda, 133 S.W.3d at 226-27. When a plea to the jurisdiction challenges the pleadings, we determine if the pleader has alleged facts that affirmatively demonstrate the court’s jurisdiction to hear the case. Id. at 226. The reviewing court must (1) examine the allegations in the pleadings; (2) liberally construe them in the plaintiffs favor; and (8) consider the pleader’s intent. Id. If the pleadings do not contain sufficient facts to affirmatively demonstrate the district court’s jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and the plaintiffs should be afforded the opportunity to amend. Id. at 226-27.

When a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider relevant evidence submitted by the parties. Id. at 227; Blue, 34 S.W.3d at 555. The standard of review for a jurisdictional plea based on evidence “generally mirrors that of a summary judgment under Texas Rule of Civil Procedure 166a(c).” Miranda, 133 S.W.3d at 228. Under this standard, we credit evidence favoring the non-movant and draw all reasonable inferences in the non-mov-ant’s favor. See id.

The jurisdictional facts are not in dispute. The issue before us presents a matter of statutory interpretation, which is a pure question of law. See State v. Shumake, 199 S.W.3d 279, 284 (Tex.2006). Therefore, we review the district court’s order granting the City’s plea to the jurisdiction de novo. See id.

Analysis

A district court has subject matter jurisdiction to review an administrative order when (1) a statute provides a right of judicial review; or (2) the order adversely affects a vested property right or otherwise violates a constitutional right. Cont’l Cas. Ins. Co. v. Functional Restoration Assoc., 19 S.W.3d 393, 398 (Tex.2000); Stone v. Tex. Liquor Control Bd., 417 S.W.2d 385, 385-86 (Tex.1967). Appellants argue that the district court had two bases for subject matter jurisdiction to consider their petition for writ of certiorari seeking judicial review of the August 15, 2008 order to vacate. First, they rely on Texas Local Government Code section 214.0012. Second, they contend the August 15, 2008 order to vacate adversely affected a vested property right. The City argues that Texas Local Government Code section 214.0012 does not apply here, and that the district court lacks subject matter jurisdiction to review the August 15, 2008 order to vacate under any other basis.

A. Statutory Right to Judicial Review

Texas Local Government Code section 214.001 permits municipalities to enact ordinances addressing buildings that are “dilapidated, substandard, or unfit for human habitation” and to require occupants to vacate such buildings when they pose “a hazard to the public health, safety, and welfare.” Tex. Local Gov’t Code Ann. § 214.001 (Vernon Supp. 2009). In turn, Texas Local Government Code section 214.0012 provides for judicial review of a municipality’s administrative order issued under section 214.001:

Any owner, lienholder, or mortgagee of record of property jointly or severally aggrieved by an order of a municipality issued under Section 214.001 may file in district court a verified petition setting forth that the decision is illegal, in whole or in part, and specifying the grounds of the illegality. The petition must be filed by an owner, lienholder, or mortgagee within 30 calendar days after the respective dates a copy of the final decision of the municipality is personally delivered to them, mailed to them by first class mail with certified return receipt requested, or delivered to them by the United States Postal Service using signature confirmation service, or such decision shall become final as to each of them upon the expiration of each such 30 calendar day period.

Id. § 214.0012(a). Appellants predicate the district court’s subject matter jurisdiction on section 214.0012(a).

The City responds that section 214.0012 does not establish a right to judicial review in this case because (1) it applies only to orders issued pursuant to section 214.001; and (2) the August 15, 2008 order to vacate was not issued pursuant to section 214.001. The August 15, 2008 order to vacate states that it was issued “[pjursuant to Section 104.12 of the [City of Houston Building Code].” The City asserts on appeal that it amended building code section 104.12 in January 2008 to authorize issuance of orders to vacate dangerous buildings under authority granted in Texas Local Government Code section 214.216.

As amended in January 2008, building code section 104.12 states in part as follows: “If the use or occupancy of the structure creates a serious and immediate hazard to human life or to property, the building official shall order the use discontinued immediately and may order the structure, or a portion thereof, vacated immediately.” Houston, Tex., Ordinance 2008-56 (Jan. 23, 2008).

The City argues that sections 214.001 and 214.216 of the Texas Local Government Code are independent sources of authority for municipalities “to order that a dangerous building be evacuated,” and that the City is not “compelled to follow the Section 214.001 procedure[ ] to the exclusion of other lawful processes.” The City further argues that municipalities can issue orders to vacate under section 214.216 “in an emergent situation, such as the one presented by the facts in this case,” and to enforce building codes. The City stated at oral argument that this is the first instance in which it has invoked section 214.216 of the Local Government Code and newly amended section 104.12 of the building code to require occupants to vacate an assertedly dangerous building.

Given these arguments, the issue before us is whether the judicial review procedure established in section 214.0012 applies to the City’s August 15, 2008 order to vacate. To determine whether section 214.0012 establishes a right to judicial review, we construe Texas Local Government Code sections 214.001, 214.0012, and 214.216 in light of the Code Construction Act. See Tex. Gov’t Code Ann. §§ 311.021-311.084 (Vernon 2005).

It is helpful to review some of the ground rules at the outset. Courts must not confine their review of a statute to isolated words, phrases, or clauses, but instead must examine the entire statute. See Meritor Auto., Inc. v. Ruan Leasing Co., 44 S.W.3d 86, 90 (Tex.2001); Tex. Workers’ Comp. Ins. Fund v. Del Indus., Inc., 35 S.W.3d 591, 593 (Tex.2000); see also Tex. Gov’t Code Ann. § 311.021(2) (Vernon 2005) (“In enacting a statute, it is presumed that ... the entire statute is intended to be effective!)]”). When two statutes concern the same subject matter, the more specific statute generally controls over the more general statute. Tex. Gov’t Code Ann. § 311.026(b) (Vernon 2005). We presume that the legislature intended the entire statute to be effective. See id. § 311.021. “‘[I]t is settled that every word in a statute is presumed to have been used for a purpose; and a cardinal rule of statutory construction is that each sentence, clause and word is to be given effect if reasonable and possible.’ ” Del Indus., Inc., 35 S.W.3d at 593 (quoting Perkins v. State, 367 S.W.2d 140, 146 (Tex.1963)). Courts should not adopt a construction that renders the statutory provisions meaningless. Fleming Foods of Tex. v. Rylander, 6 S.W.3d 278, 284 (Tex.1999).

Appellants argue that judicial review of the August 15, 2008 order to vacate is available here in light of the rules of construction that apply when statutory provisions are in pari materia. Statutes are in pari matería when they involve the same subject matter and general purpose. Jones v. State, 225 S.W.3d 772, 782 (Tex.App.-Houston [14th Dist.] 2007, no pet.); see also Black’s Law Dictionary 807 (8th ed. 2004) (in pari materia means “[o]n the same subject; relating to the same matter”). Appellants contend that sections 214.001, 214.0012, and 214.216 are in pari materia.

To address this argument, we first examine the purpose behind these provisions. See Jones, 225 S.W.3d at 782. Sections 214.001, 214.0012, and 214.216 are all part of Texas Local Government Code chapter 214. Section 214.001 permits a municipality to enact an ordinance concerning the “vacation, relocation of occupants, securing, repair, removal, or demolition of a building that is ... dilapidated, substandard, or unfit for human habitation and a hazard to the public health, safety, and welfare[.]” Tex. Local Gov’t Code Ann. § 214.001. Section 214.0012 establishes judicial review procedures for orders issued under section 214.001. See id. § 214.0012. Section 214.216(a), which became effective on January 1, 2006, adopts the International Building Code as “a municipal commercial building code in this state” to “protect the public health, safety, and welfare....” Id. § 214.216(a). We agree with appellants that sections 214.001, 214.0012 and 214.216 are in pari materia because they involve the same subject matter relating to conditions of buildings and serve the same general purpose of protecting “the public health, safety and welfare.” See Jones, 225 S.W.3d at 782.

The doctrine of in pari materia “provides that ‘[wjhere one statute deals with a subject in general terms, and another deals with a part of the same subject in a more detailed way, the two should be harmonized if possible; but if there is any conflict, the latter will prevail.’ ” Jones, 225 S.W.3d at 780 (quoting Burke v. State, 28 S.W.3d 545, 546-47 (Tex.Crim.App.2000)). The common law doctrine of in pari, materia has been codified in the Code Construction Act. See Tex. Gov’t Code Ann. § 311.026; Bradley v. State, 990 S.W.2d 245, 251 (Tex.1999); Jones, 225 S.W.3d at 782. Section 311.026 provides as follows:

(a) If a general provision conflicts with a special or local provision, the provisions shall be construed, if possible, so that effect is given to both.
(b) If the conflict between the general provision and the special or local provision is irreconcilable, the special or local provision prevails as an exception to the general provision, unless the general provision is the later enactment and the manifest intent is that the general provision prevail.

Tex. Gov’t Code Ann. § 311.026.

Section 214.216 is a “general provision” that grants municipalities broad authority to administer, enforce, and amend all facets of the International Building Code adopted as “a municipal commercial building code in this state.” Tex. Local Gov’t Code Ann. § 214.216(a), (c). Section 214.216 contains no specific references to dangerous buildings or orders to vacate. See id. In contrast, section 214.001 is a “special provision” that grants municipalities specific authority to order the “vacation, relocation of occupants, securing, repair, removal, or demolition of a building” that is “dilapidated, substandard, or unfit for human habitation and a hazard to the public health, safety, and welfare.” Id. § 214.001. Section 214.001 contains additional specific requirements that ordinances enacted under section 214.001 must meet. Id. Section 214.0012 establishes the specific judicial review procedure to be pursued by owners or other specified interest holders who are “aggrieved by an order of a municipality issued under Section 214.001.” See id. § 214.0012.

As interpreted by the City, sections 214.001, 214.0012, and 214.216 conflict. Section 214.0012 makes judicial review available for an order issued under section 214.001 requiring occupants to vacate a dilapidated building that is “a hazard to the public health, safety, and welfare.” According to the City, judicial review is not available for an identical order issued under section 214.216 requiring the same occupants to vacate the same dilapidated building that creates the same hazard.

The City contends that sections 214.001 and 214.216 are independent sources of authority for municipalities “to order that a dangerous building be evacuated,” and that it can act under any applicable provision it chooses to invoke. This argument impermissibly renders meaningless the judicial review mechanism established in section 214.0012.

Under the City's argument, municipalities could bypass section 214.0012’s judicial review procedures merely by amending the International Building Code under section 214.216 (as the City asserts it has done) to add provisions addressing the “vacation, relocation of occupants, securing, repair, removal, or demolition” of a “dilapidated building.” By doing so, municipalities could evade judicial review procedures mandated for such orders in section 214.0012. This approach is contrary to the Code Construction Act, and it renders section 214.0012 superfluous. See Tex. Gov’t Code Ann. § 311.021(2) (“In enacting a statute, it is presumed that ... the entire statute is intended to be effective!)]”).

If statutory provisions conflict, “the provisions shall be construed, if possible, so that effect is given to both.” Id. § 311.026(a). If the conflict is irreconcilable, “the special or local provision prevails as an exception to the general provision, unless the general provision is the later enactment and the manifest intent is that the general provision prevail.” Id. § 311.026(b).

Sections 214.001, 214.0012, and 214.216 can be harmonized to give effect to all sections in the circumstances presented in this case, which involve an order to vacate a building that is asserted to be a serious and immediate hazard to human life. These provisions can be harmonized by making an order to vacate a dangerous building issued under section 214.216 subject to section 214.0012’s judicial review procedures. Even if it is assumed for argument’s sake that the provisions cannot be harmonized, then judicial review still is mandated because the specific provisions in sections 214.001 and 214.0012 control over the general provisions in section 214.216. See Tex. Gov’t Code Ann. § 311.026(b). The City does not identify any portion of section 214.216 demonstrating a manifest intent that it should prevail over sections 214.001 and 214.0012.

The City argues that section 214.216 creates an exception to section 214.0012’s judicial review mechanism when the order to vacate is issued to enforce its building code “in an emergent situation.” The City claims that emergency circumstances necessitated reliance upon section 214.216 here because there was no time for judicial review of the August 15, 2008 order directing the occupants of Park Memorial to vacate. This argument fails because issuance of a writ under section 214.0012(e) “does not stay proceedings on the decision appealed from.” Id. § 214.0012(e). Therefore, the application of section 214.0012 would not impede a municipality’s ability to order occupants to vacate a dangerous building in emergency circumstances under either section 214.001 or section 214.216.

Even assuming that the City’s emergency circumstances argument raises a legitimate concern in some situations, the record here does not support the City’s assertion that emergency circumstances prompted issuance of the August 15, 2008 order to vacate. The City became aware of concerns about the structural integrity of the Park Memorial buildings in July 2008 but did not issue the order to vacate until August 15, 2008. The order gave residents 30 days to vacate the buildings. On September 11, 2008, the City extended the deadline until October 1, 2008 due to the approach of Hurricane Ike. Hurricane Ike made landfall on Galveston Island on September 13, 2008. The deadline extension as Hurricane Ike approached defeats any claim that an emergency existed at Park Memorial; the City is hard-pressed to suggest that portions of the Park Memorial complex were in danger of immediate collapse but occupants nonetheless were allowed to ride out a hurricane there.

The City next argues that judicial review will hamper enforcement of the City’s building code. The August 15, 2008 order to vacate states that it was issued “[p]ur-suant to Section 104.12 of the [City of Houston Building Code.]” Building Code section 104.12 refers to a structure “being used contrary to [the City of Houston Building Code] or otherwise in violation of [the City of Houston Building Code].” See Houston, Tex., Ordinance 2008-56 (Jan. 23, 2008). The record on appeal and the City’s brief identify no provision of the City of Houston Building Code or the International Building Code that was being violated. At oral argument, the City could not identify a provision of either building code that was being violated by the condition of the Park Memorial buildings. The City has not demonstrated that the August 15, 2008 order to vacate relates to the “administration and enforcement of the International Building Code” on this record. Therefore, the City cannot plausibly argue on this record that judicial review will impede building code enforcement.

The City also argues that judicial review of orders to vacate issued under section 214.216 would be burdensome on the district courts: “[I]f every person with an interest in any structure could file suit seeking judicial review of any determination by an inspector that a building did not meet the requirements of the Building Code, trial courts would be overwhelmed.” The City’s argument is misdirected because it addresses circumstances that are not present in this appeal. Our holding is limited to situations in which the City invokes authority granted under section 214.216 to bypass judicial review of orders requiring occupants to vacate a building that is deemed to be “dilapidated, substandard, or unfit for human habitation and a hazard to the public health, safety, and welfare.” We do not address whether section 214.0012 provides a right to judicial review regarding “any determination by an inspector” in connection with enforcement of a municipal building code in other situations.

B. Compliance with Section 214.0012

Having concluded that section 214.0012 applies to this case, we next determine whether appellants complied with this provision.

In order to properly invoke the jurisdiction of a district court under section 214.0012, a plaintiff must file a verified petition in district court “setting forth that the decision is illegal, in whole or in part, and specifying the grounds of the illegality” within 30 days of receipt of a copy of the final decision of the municipality. Tex. Local Gov’t Code Ann. § 214.0012.

After examining the pleadings in this case, we conclude that the pleadings contain sufficient facts to affirmatively demonstrate the district court’s jurisdiction under section 214.0012. The City issued a final decision on September 10, 2008 affirming the August 15, 2008 order to vacate. Appellants timely filed a petition for writ of certiorari challenging the City’s decision with accompanying affidavits in the district court 21 days later on October 1, 2008. Appellants complied with section 214.0012. Therefore, we conclude that the district court erred in granting the City’s plea to the jurisdiction.

We sustain the sole issue on appeal.

Conclusion

We reverse the district court’s order dismissing appellants’ case for want of jurisdiction and remand for further proceedings in accordance with this opinion.

      . Appellants do not seek damages in connection with the August 15, 2008 order to vacate.

      . Appellants also filed an interlocutory appeal on November 5, 2008 challenging the trial court's order denying their request for a temporary injunction. We dismissed the interlocutory appeal as moot.

      . Section 214.001 provides in part as follows:
      (a) A municipality may, by ordinance, require the vacation, relocation of occupants, securing, repair, removal, or demolition of a building that is:
      (1) dilapidated, substandard, or unfit for human habitation and a hazard to the public health, safety, and welfare;
      (2) regardless of its structural condition, unoccupied by its owners, lessees, or other invitees and is unsecured from unauthorized entry to the extent that it could be entered or used by vagrants or other uninvited persons as a place of harborage or could be entered or used by children; or
      (3)boarded up, fenced, or otherwise secured in any manner if:
      (A) the building constitutes a danger to the public even though secured from entry; or
      (B) the means used to secure the building are inadequate to prevent unauthorized entry or use of the building in the manner described by Subdivision (2).

        (b)The ordinance must:
      (1) establish minimum standards for the continued use and occupancy of all buildings regardless of the date of their construction;
      (2) provide for giving proper notice, subject to Subsection (b-1), to the owner of a building; and
      (3) provide for a public hearing to determine whether a building complies with the standards set out in the ordinance.
      Tex. Local Gov't Code Ann. § 214.001.

      . Section 214.216 provides as follows:
      (a) To protect the public health, safety, and welfare, the International Building Code, as it existed on May 1, 2003, is adopted as a municipal commercial building code in this state.
      (b) The International Building Code applies to all commercial buildings in a municipality for which construction begins on or after January 1, 2006, and to any alteration, remodeling, enlargement, or repair of those commercial buildings.
      (c) A municipality may establish procedures:
      (1) to adopt local amendments to the International Building Code; and
      (2) for the administration and enforcement of the International Building Code.
      (d) A municipality may review and consider amendments made by the International Code Council to the International Building Code after May 1, 2003.
      (e) A municipality that has adopted a more stringent commercial building code before January 1, 2006, is not required to repeal that code and may adopt future editions of that code.

        Id. § 214.216 (Vernon 2008).

      . Although the City asserts on appeal that it was acting pursuant to section 214.216 when it issued the August 15, 2008 order to vacate, the ordinance by which building code section 104.12 was amended in January 2008 does not refer to section 214.216. The ordinance expressly invokes Texas Local Government Code section 54.004 as statutory authority for the building code amendment adding the language upon which the August 15, 2008 order to vacate was predicated. See Houston, Tex., Ordinance 2008-56 (Jan. 23, 2008).
      Section 54.004 provides as follows:
      A home-rule municipality may enforce ordinances necessary to protect health, life, and property and to preserve the good government, order, and security of the municipality and its inhabitants.
      Tex. Local Gov’t Code Ann. § 54.004 (Vernon 2008).

        . As noted earlier, the City invokes section 214.216 on appeal even though the January 2008 amendment to building code section 104.12 expressly references a different statute. There is an additional anomaly in the City's argument. Section 214.216(a) refers to the adoption of the International Building Code “as a municipal commercial building code in this state.” Tex. Local Gov’t Code Ann. § 214.216(a). In contrast, Texas Local Government Code section 214.212(a) refers to the adoption of the International Residential Code "as a municipal residential building code in this state.” Id. § 214.212(a) (Vernon 2008). The City does not explain why the condition of the Park Memorial residential condominium complex relates to "a municipal commercial building code” under section 214.216(a) rather than "a municipal residential building code” under section 214.212(a).

      . An ordinance enacted under section 214.001 must:
      (1)establish minimum standards for the continued use and occupancy of all buildings regardless of the date of their construction:
      (2) provide for giving proper notice ... to the owner of a building; and
      (3) provide for a public hearing to determine whether a building complies with the standards set out in the ordinance.

        Id. § 214.001(b).

      . Because we conclude that section 214.0012 applies to this case, we do not address whether the district court had jurisdiction to hear this case based on the contention that the order to vacate adversely affected appellants vested property rights. See Tex. Workers' Comp. Comm'n v. Patient Advocates of Tex., 136 S.W.3d 643, 658-59 (Tex.2004).


author: LESLIE B. YATES, Justice.

text:
    MAN INDUSTRIES (INDIA) LTD., Appellant, v. BANK OF TOKYO-MITSUBISHI UFJ, LTD., Appellee.
    No. 14-09-00362-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Feb. 23, 2010.

      Michael 0. Connelly, Allison Jeanne Miller, B. Edward Williamson, Brian Anthony Amis, David George, J. Wiley George, John Muir, Houston, for appellant.
    Kelly Spragins Sandill, Kendall Matthew Gray, Houston, for appellee.
    Panel consists of Justices YATES, BROWN, and BOYCE.
   OPINION

LESLIE B. YATES, Justice.

Appellant Man Industries (India) Ltd. brings this interlocutory appeal from the trial court’s order denying its special appearance as to the cross-claim against it by appellee Bank of Tokyo-Mitsubishi UFJ, Ltd. Because we conclude that the trial court did not abuse its discretion in determining that the Bank’s cross-claim is not severable from the other claims in the case, we affirm.

Background

Man is an Indian company that manufactures pipe. This litigation arises out of a dispute concerning a purchase order agreement between Man and Midcontinent Express Pipeline LLC, a Houston company, for Man to supply Midcontinent with 1.3 million feet of pipe. The purchase order required that Midcontinent obtain a letter of credit to secure its payment obligations. The Bank issued a $33 million standby letter of credit that Man could draw on if Midcontinent failed to timely pay for the pipe.

The transaction did not proceed as anticipated, and Man eventually presented the letter of credit to the Bank for payment. In its presentment, Man certified, as required by the letter of credit, that Midcon-tinent was in default on its payments under the purchase order agreement. The next day, the Bank informed Man that it would not honor its presentment, which was made electronically, because original documents were required. The following day, Midcontinent filed suit against Man in Texas state court, alleging breach of the purchase order agreement and fraud. Midcontinent also sought and obtained an ex parte temporary restraining order (TRO) prohibiting Man from presenting the letter of credit to the Bank. Midconti-nent obtained the TRO on the grounds that Man’s certification to the Bank that Midcontinent had defaulted in its payment obligations was false and therefore its attempt to draw on the letter of credit was fraudulent. The TRO further stated that the Bank was permitted to rely on the TRO as authority to refuse to pay on the letter of credit. Midcontinent provided the Bank with a copy of the TRO. The day after the TRO was issued, Man again attempted to draw on the letter of credit. The Bank refused to honor the presentment, stating that there was a problem with the signature, and also delivered to Man a copy of the TRO at that time. The letter of credit expired four days later, never having been paid.

Man sued the Bank in New York state court, alleging it was damaged by the Bank’s wrongful refusal to pay on the letter of credit. The Bank thereafter filed a declaratory judgment cross-claim against Man in the Texas suit Midcontinent brought against Man, seeking a declaration that it did not breach any obligation to Man by refusing to honor Man’s presentments of the letter of credit. Man consented to personal jurisdiction as to Mid-continent’s breach of contract claim but specially appeared as to Midcontinent’s fraud claim and the Bank’s cross-claim. The trial court found, on several different grounds, that it had personal jurisdiction against Man as to all claims in the suit. In this interlocutory appeal, Man challenges only the trial court’s ruling that it had personal jurisdiction as to the Bank’s cross-claim and concedes for purposes of this appeal that the trial court had personal jurisdiction as to Midcontinent’s fraud claim.

Analysis

Rule 120a of the Texas Rules of Civil Procedure provides that “[a] special appearance may be made as to an entire proceeding or as to any severable claim involved therein.” Tex.R. Civ. P. 120a(l). A claim is severable if (1) the controversy involves more than one cause of action, (2) the severed claim would be the proper subject of a lawsuit if asserted independently, and (3) the claim to be severed is not so interwoven with the remaining action that they involve the same facts and issues. F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d 680, 693 (Tex.2007). We review a trial court’s decision as to whether a claim is severable under rule 120a for an abuse of discretion. See Pet JA, S.A. v. Shell Compañia Argentina de Petroleo, No. 01-02-00661-CV, 2003 WL 854163, at *4 (Tex.App.-Houston [1st Dist.] Mar. 6, 2003, pet. denied) (mem. op.) (applying abuse of discretion analysis to sev-erability determination under rule 120a(l)); see also Guar. Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 658 (Tex.1990) (reviewing for abuse of discretion trial court’s determination regarding whether claim to be severed is interwoven); In re Ben E. Keith Co., 198 S.W.3d 844, 853 (Tex.App.-Fort Worth 2006, orig. proceeding [mands. denied]) (same).

The issue in this appeal focuses on the third element — whether the Bank’s cross-claim is interwoven with the remaining claims. The trial court found that the claims in the case, including the Bank’s cross-claim, were not severable because they required an investigation of the same facts and issues. The record supports the trial court’s finding.

Midcontinent’s petition against Man alleges, among other things, that Man committed fraud in presenting the letter of credit to the Bank because its certification that Midcontinent had breached its payment obligations under the letter of credit was false. In the Bank’s cross-claim, the Bank alleged that it knew of the TRO, which stated explicitly that it was based on fraud, before Man’s second presentation and gave Man a copy of the TRO in the course of refusing to pay on the letter of credit the second time. Furthermore, the Bank requested that the trial court adjudicate Midcontinent’s fraud allegations before determining its rights and obligations under the letter of credit.

Whether Man’s actions were fraudulent is relevant to both Midcontinent’s claim and the Bank’s cross-claim, and both will involve the same issues, facts, and evidence. See F.F.P., 237 S.W.3d at 693-94 (finding trial court abused its discretion in severing contribution cross-claim because claims involved same facts and issues to be litigated); Liberty Nat’l Fire Ins. Co. v. Akin, 927 S.W.2d 627, 629-30 (Tex.1996) (finding no abuse of discretion in refusing to sever breach of contract bad faith claims because litigation of both claims would involve much of the same evidence); Oryx Energy Co. v. Union Nat’l Bank of Tex., 895 S.W.2d 409, 416 (Tex.App.-San Antonio 1995, writ denied) (finding trial court did not abuse its discretion in refusing to sever claim for breach of promissory note from tort claims, noting that “[t]he default on the note triggered this litigation” and “[t]he facts concerning all of the claims alleged by the Bank concerns identical facts surrounding one loan transaction and the security for the loan”). Thus, we determine the trial court did not abuse its discretion in determining that the Bank’s cross-claim was interwoven based on the issue of fraud and therefore not severable.

Man argues that the Bank’s cross-claim is not interwoven with Midcontinent’s fraud claim because the Bank never explicitly stated that it was refusing Man’s presentments because of fraud, rather than technicalities, and therefore fraud is irrelevant to the cross-claim. We reject this argument. As explained above, based on the Bank’s pleadings, the Bank’s cross-claim is interwoven with Midcontinent’s fraud allegation against Man.

Man is essentially requesting that we determine as a matter of law the Bank’s motives in denying its presentments and then use that determination as a basis to grant its special appearance. However, determining the merits of a claim in a special appearance proceeding is improper. See Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 582 (Tex.2007); Nogle & Black Aviation, Inc. v. Faveretto, 290 S.W.3d 277, 284 (Tex.App.-Houston [14th Dist.] 2009, no pet.). Similarly, Man tries to extricate fraud from the analysis by arguing that Midcontinent’s fraud claim is moot and that the alleged fraudulent conduct is not sufficiently egregious to meet the requirements for a fraud claim in the letter of credit context. Again, these arguments go to the merits of Midcontinent’s fraud claim and are therefore inappropriate in the special appearance context. See Moki Mac, 221 S.W.3d at 582; Nogle & Black, 290 S.W.3d at 284.

Because the Bank’s cross-claim is not severable, Man’s appearance as to the other claims in the litigation constitutes a general appearance, and the trial court did not err in determining it had personal jurisdiction over Man as to the Bank’s cross-claim. See Shapolsky v. Brewton, 56 S.W.3d 120, 140 (Tex.App.-Houston [14th Dist.] 2001, pet. denied) (“Any appearance before judgment, which is not in compliance with Rule 120a, constitutes a general appearance.”).

Conclusion

We conclude the trial court did not err in denying Man’s special appearance based on its conclusion that the Bank’s cross-claim is not severable. Because we have determined that the trial court had personal jurisdiction on this basis, we need not review Man’s remaining allegations regarding other potential bases for jurisdiction. We affirm the trial court’s order.

      . Man contends that we should review the severability determination de novo and only review for abuse of discretion the trial court’s consideration of equitable factors in deciding whether a severable claim actually should be severed. See F.F.P., 237 S.W.3d at 693 (“We have explained that avoiding prejudice, doing justice, and increasing convenience are the controlling reasons to allow a severance.”). Man cites no authority in which a court has held that any part of a trial court's severability determination should be reviewed under any standard other than abuse of discretion. Indeed, all authority suggests that every aspect of a severability determination is reviewed for an abuse of discretion. See, e.g., Guar. Fed., 793 S.W.2d at 658; In re Ben E. Keith, 198 S.W.3d at 853.

      . Even if we were to apply the de novo review standard Man advocates, we would conclude, as did the trial court, that the Bank's cross-claim is not severable because it is intertwined with the other claims.