author: Justice MYERS.

text:
    DAVID L. SMITH & ASSOCIATES, L.L.P. and Eddie Large, Appellants, v. STEALTH DETECTION, INC., David Stull and Charles Townsend, Appellees.
    No. 05-09-00304-CV.
    Court of Appeals of Texas, Dallas.
    Nov. 16, 2010.

      Mark R. Lee, Cedar Park, for Appellant.
    David Stull, Thomas C. Barron, Law Offices of Thomas C. Barron, P.C., Dallas, for Appellee.
    Before Justices MORRIS, MOSELEY, and MYERS.
   OPINION

Opinion By

Justice MYERS.

David L. Smith & Associates, L.L.P. and Eddie Large appeal the trial court’s rendition of a take-nothing judgment following a trial before the court on their claims against Stealth Detection, Inc., David Stull, and Charles Townsend. Appellants bring five issues contending (1) the trial court’s findings of fact and conclusions of law were insufficient; (2) the trial court erred in failing to render a default judgment against Stealth Detection; (3) appellants conclusively proved appellees’ liability; (4) the trial court erred in not holding Stealth Detection jointly and severally ha-ble with another defendant; and (5) the trial court erred in failing to award appellants’ attorney’s fees on their motion to enforce a Rule 11 agreement. We reverse the trial court’s judgment and remand the cause for further proceedings.

BACKGROUND

In 2001 and 2002, appellants received numerous unsolicited faxes advertising alarm system monitoring by Stealth Detection. Appellants filed suit alleging appel-lees and other defendants violated the federal Telephone Consumer Protection Act and the state law governing electronic communications made for purposes of sales. See 47 U.S.C. § 227(b)(1)(C) (2006 & Supp. Ill 2009); Tex. Bus. & Com.Code Ann. § 35.47(b) (repealed 2007). Appellants sought the statutory damages of $500 per fax. See 47 U.S.C. § 227(b)(3); Tex. Bus. & Com.Code Ann. § 35.47(f). Other defendants, including Stealth Industry, Inc., did not answer, and the trial court rendered an interlocutory default judgment against them.

During the trial before the court, the president and vice president of Stealth Detection, David Stull and Charles Townsend, respectively, testified that the faxes were sent for the benefit of Stealth Detection as an advertising promotion for the company. They testified that they both agreed to the sending of unsolicited faxes, an activity they termed “fax blasting.” Stull testified that Townsend arranged with companies to send thousands of faxes advertising Stealth Detection’s monitoring services. Later, according to Stull, Townsend acquired equipment to send the faxes from the corporate offices and that Townsend operated the equipment. Townsend testified that he operated the fax-blasting equipment, but that Stull and Stull’s son also used it to send the unsolicited advertisements.

At the conclusion of the trial, the court rendered judgment for appellees on appellants’ claims, and the court rendered final judgment for appellants on their claims against the defaulting defendants. Appellants appeal the denial of their claims against appellees.

SUFFICIENCY OF THE EVIDENCE

In their third issue, appellants challenge the legal sufficiency of the evidence to support the trial court’s judgment for ap-pellees because, appellants argue, the evidence conclusively established appellees’ liability. Alternatively, appellants challenge the factual sufficiency of the trial court’s determination that appellees’ were not ha-ble to appellants and assert the court’s decision was against the great weight and preponderance of the evidence.

When an appellant challenges the legal sufficiency on which it had the burden of proof, it must establish on appeal that the evidence conclusively established all vital facts in support of the issue. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex.2001); Tricon Tool & Supply, Inc. v. Thumann, 226 S.W.3d 494, 501 (Tex.App.Houston [1st Dist.] 2006, pet. denied). We review a trial court’s findings for legal and factual sufficiency by the same standards applied to a jury’s answer. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.1994); In re C.A.T., 316 S.W.3d 202, 206 (Tex.App.-Dallas 2010, no pet.). In a legal sufficiency review, we consider the evidence in the light most favorable to the finding and indulge every reasonable inference that would support it. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex.2005). If the evidence allows only one inference, neither the finder of fact nor the reviewing court may disregard it. Id. We review a trial court’s legal conclusions de novo. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex.2002).

The federal Telephone Consumer Protection Act provides, “It shall be unlawful for any person ... to use any telephone facsimile machine, computer, or other device to send an unsolicited advertisement to a telephone facsimile machine. ...” 47 U.S.C. § 227(b)(1)(C). The act also provides a person or entity may bring in state court “an action to recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is greater.” Id. § 227(b)(3)(B). The act also provides that the actions of an employee in the scope of his employment that violate the act are deemed to be the actions of the employer and the employee. Id. § 217. Moreover, corporate officers with direct, personal participation in or personal authorization of conduct that violates the act are liable under the act. Texas v. Am. Blastfax, Inc., 164 F.Supp.2d 892, 898 (W.D.Tex.2001).

The Texas statute likewise prohibits sending unsolicited advertisements to a facsimile machine:

(b) A person may not make or cause to be made a transmission for the purpose of a solicitation or sale to a facsimile recording device or other telecopier for which the person or entity receiving the transmission will be charged for the transmission, unless the person or entity receiving the transmission has given, prior to the transmission, consent to make or cause to be made the transmission.
(f) A person who receives a communication that violates 47 U.S.C. Section 227, a regulation adopted under that provision, or this section may bring an action against the person who originates the communication in a court of this state for. an injunction, damages in the amount provided by this subsection, or both. A plaintiff prevailing in an action for damages under this subsection is entitled to the greater of $500 for each violation or the person’s actual damages ....

Tex. Bus. & Com.Code Ann. § 35.47(b), (f); see id. §§ 305.002, .005 (West 2009).

In this case, David Smith, owner of Smith & Associates, testified his company received thirty-three unsolicited faxed advertisements for alarm-monitoring service from Stealth Detection. Large testified that he received five unsolicited faxed advertisements for Stealth Detection’s monitoring service. Charles Turner, a director of Stealth Industries, testified that Townsend “was responsible” for the fax advertising campaign and that Stull “authorized” it. Stull, the president and CEO of Stealth Detection, testified that the faxed advertisements received by appellees were sent by his company to gain customers and business for Stealth Detection. Stull testified that Townsend operated the fax-blasting equipment and that he, Stull, “originally agreed with the fax advertising campaign.” Stull testified that he did not disagree with the fax blasting until April 2002, when he learned the company was being sued because of the faxed advertisements.

Townsend testified that the fax blasting was for the benefit of Stealth Detection, that Stull was aware of all of the fax blasting, that he and Stull jointly designed the advertisements to be fax blasted, and that both he and Stull, as well as Stull’s son, operated the fax-blasting equipment. The record does not reveal Stull’s son’s position with Stealth Detection, but Townsend testified that Stull’s son was paid a salary by the company.

John Castleberry, an independent contractor for the Stealth entities, testified that Townsend and Stull received training on the use of the fax-blasting equipment and that he saw Stull use the equipment to remove names from the list of people to receive faxes.

The trial court also admitted Townsend’s responses to appellees’ requests for admissions in which Townsend admitted that he leased and used fax-advertising equipment and gained customers and revenue through the transmission of fax advertisements.

The evidence in this case allows only one inference: the fax advertisements received by appellees were sent by officers or employees of Stealth Detection. There is no evidence contrary to this fact. Accordingly the evidence conclusively establishes Stealth Detection’s liability to appellees under 47 U.S.C. § 227(b)(1)(C) and (b)(3) as well as under section 35.47(b) and (f) of the Texas Business and Commerce Code.

Likewise, the evidence conclusively establishes that Stull and Townsend, as president and vice-president of Stealth Detection, authorized and approved the fax-blasting campaign when the faxes were sent to appellees. Accordingly, they also are liable for violating 47 U.S.C. section 227(b)(1)(C) and are subject to statutory damages of $500 per violation under 47 U.S.C. section 227(b)(3). We sustain appellants’ third issue.

Before trial, the court had rendered an interlocutory default judgment against Stealth Industries based on the same allegations presented against appel-lees. Appellants’ petition indicates they sued Stealth Industries and appellees for sending the same faxes. To render a separate award of damages against appellees from those rendered against Stealth Industries would provide a prohibited double recovery to appellants. See Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 390 (Tex.2000) (“Under the one satisfaction rule, a plaintiff is entitled to only one recovery for any damages suffered.”); Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 7 (Tex.1991) (same). Accordingly, we conclude appellees are jointly and severally liable with Stealth Industries for $16,500 to Smith & Associates and for $2500 to Large.

JOINT ENTERPRISE LIABILITY

In their fourth issue, appellants contend that the trial court erred in not rendering Stealth Detection jointly and severally liable with the defaulting defendant, Stealth Industries, because they were engaged in a joint enterprise. The trial court rendered a default judgment against Stealth Industries for $17,000 to Smith & Associates, and for $2500 to Large. In the third issue, we concluded that appellees were jointly and severally liable for $16,500 to Smith & Associates and for $2500 to Large. Accordingly, our discussion of this issue concerns only Stealth Detection’s joint and several liability for the additional $500 imposed on Stealth Industries in favor of Smith & Associates.

The theory of joint enterprise imputes liability to one who, although he did no wrong, is so closely connected to the wrongdoer that it justifies the imposition of vicarious liability. Seureau v. Exxon-Mobil Corp., 274 S.W.3d 206, 218 (Tex.App.-Houston [14th Dist.] 2008, no pet.). In Shoemaker v. Whistler’s Estate, 513 S.W.2d 10 (Tex.1974), the Texas Supreme Court adopted the definition of “joint enterprise” in The Restatement 2d of Torts:

The elements which are essential to a joint enterprise are commonly stated to be four: (1) an agreement, express or implied, among the members of the group; (2) a common purpose to be carried out by the group; (3) a community of pecuniary interest in that purpose, among the members; and (4) an equal right to a voice in the direction of the enterprise, which gives an equal right of control.

Id. at 16-17; see also St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 530 (Tex.2002). A joint enterprise requires evidence that monetary benefits are shared among the members of the group without special or distinguishing characteristics.

Stealth Detection was a wholly owned subsidiary of Stealth Industries. In support of the argument that Stealth Industries and Stealth Detection were a joint enterprise, appellants rely on the testimony they assert shows that Stealth Industries and Stealth Detection had the same directors, officers, and employees; the same address and telephone number; the same logo; the same goals; and that they shared assets including ten trucks and $40,000 worth of computers. The only bank account for the companies was in the name of Stealth Industries, which paid all the bills for Stealth Detection. However, none of this evidence, or any evidence in the record, shows how, or whether, the monetary benefits of the enterprise were shared between Stealth Detection and Stealth Industries. Nor does any evidence show the two corporations had “an equal right to a voice in the direction of the enterprise, which gives an equal right of control.” Accordingly, we conclude appel-lees failed to prove joint-enterprise liability between Stealth Industries and Stealth Detection.

We overrule appellees fourth issue.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

In their first issue, appellants contend the trial court erred in refusing to file sufficient findings of fact and conclusions of law. They assert that the trial court’s findings of fact and conclusions of law were so vague that they were required to guess at the reasons for the trial court’s decision. Appellants timely requested the court to file findings of fact and conclusions of law and timely filed a notice of past due findings of fact and conclusions of law. After the trial court filed its three findings of fact and conclusions of law, appellants filed a request for additional findings and conclusions setting forth numerous issues on which appellants sought findings. The trial court did not respond to this request.

If the record shows the complaining party did not suffer injury from the trial court’s refusal to file additional findings of fact and conclusions of law, then the court’s refusal is not erroneous. Johnston v. McKinney Am., Inc., 9 S.W.3d 271, 277 (Tex.App.-Houston [14th Dist.] 1999, pet. denied). In this case, because we have reversed the trial court’s judgment and rendered judgment for appellants, we conclude they suffered no injury from the trial court’s failure to make additional findings on their causes of action for statutory damages for unsolicited faxed advertisements.

As for appellants’ claim that Stealth Detection is vicariously liable for the acts of Stealth Industries in a joint enterprise, appellants did not request findings and conclusions on the four elements of joint-enterprise liability. Accordingly, we conclude appellants did not preserve their complaint concerning the trial court’s failure to make findings of fact and conclusions of law on joint-enterprise liability. See Intec. Sys., Inc. v. Lowrey, 230 S.W.3d 913, 918 (Tex.App.-Dallas 2007, no pet.).

We overrule appellants’ first issue.

ATTORNEY’S FEES

In their fifth issue, appellants contend the trial court erred in failing to award them attorney’s fees on their claim for breach of a Rule 11 agreement. See Tex.R. Civ. P. 11. During the discovery process, appellees refused to provide requested information to appellants, who obtained an order from the court directing appellees to comply, and a show-cause order when appellees failed to comply with the court’s order. On August 11, 2005, the parties entered into an agreement settling the discovery dispute in which appellees promised, among other things, to pay appellants $500 by August 21, 2005 to reimburse appellants for their attorney’s fees incurred in the discovery issue. Appellees failed to pay the $500 by August 21, 2005, and appellants moved for enforcement of the Rule 11 agreement seeking the $500 owed under the Rule 11 agreement and attorney’s fees for enforcement of the agreement. The trial court determined the agreement was enforceable under Rule 11 and ordered appellees to pay the $500 per the Rule 11 agreement, but the court denied the request for attorney’s fees “in light of the case-related complaints of counsel both at the hearing and in unsolicited, fax correspondence with this court post-hearing.”

A Rule 11 agreement is enforceable as a contract. See Padilla v. LaFrance, 907 S.W.2d 454, 461 (Tex.1995). Under section 38.001 of the Texas Civil Practice & Remedies Code, a plaintiff who prevails on a claim for breach of contract and recovers damages is entitled to recover reasonable attorney’s fees. Tex. Civ. Prac. & Rem.Code Ann. § 38.001(8) (West 2008); see Green Int’l, Inc. v. Solis, 951 S.W.2d 384, 390 (Tex.1997); Cordova v. Sw. Bell Yellow Pages, Inc., 148 S.W.3d 441, 446 (Tex.App.-El Paso 2004, no pet.). Appellants prevailed on their claim for breach of the Rule 11 agreement, and they recovered damages of $500. The trial court could not deny an award of attorney’s fees under section 38.001(8) on the ground of “case-related complaints.” See Cordova, 148 S.W.3d at 446 (trial court has limited discretion to fix amount of attorney’s fees but has no discretion to deny fees completely if fees are proper under section 38.001); We sustain appellants’ fifth issue.

CONCLUSION

We reverse the trial court’s judgment for appellees, and we render judgment that appellees are jointly and severally liable with Stealth Industries for $16,500 plus prejudgment interest to Smith & Associates and for $2500 plus prejudgment interest to Large. We reverse the trial court’s order denying attorney’s fees to appellants for enforcement of the August 21, 2005 Rule 11 agreement. In all other respects, we affirm the trial court’s judgment. We remand the cause to the trial court for further proceedings, including determination of appellants David L. Smith & Associates L.L.P. and Eddie Large’s reasonable and necessary attorney’s fees for enforcement of the August 11, 2005 agreement.

      . Act of May 23, 1989, 71st Leg., R.S., ch. 783, § 1, 1989 Tex. Gen. Laws 3469, 3469, amended by Act of May 26, 1999, 76th Leg., R.S., ch. 635, § 1, 1999 Tex. Gen. Laws 3203, 3203, amended by Act of May 24, 2001, 77th Leg., R.S., ch. 1429, § 2, 2001 Tex. Gen. Laws 5102, 5108-09, repealed by Act of May 15, 2007, 80th Leg., R.S., ch. 885, § 2.47(1), 2007 Tex. Gen. Laws 1905, 2082 (now codified at Tex. Bus. & Com.Code Ann. § 305.001-.053 (West 2009)).

      . Now codified at Tex. Bus. & Com.Code Ann. §§ 305.002, 305.053 (West 2009).

      . Having concluded Stealth Detection is liable for sending the unsolicited fax advertisements to appellants, we do not reach appellants’ second issue asserting the trial court erred in failing to render a default judgment against Stealth Detection because it had forfeited its existence or because it was not represented by an authorized attorney.

      . The record does not disclose the reason for imposing $17,000 damages against Stealth Industries instead of $16,500. Smith & Associates did not present any evidence of damages beyond the $500 statutory damages for each of the thirty-three violations. However, no party complains of the default judgment against Stealth Industries.

      . Appellees also assert that (1) Stealth Detection operated as a mere tool or business conduit of another corporation, (2) the companies used the corporate fiction to circumvent the statute requiring those engaged in the alarm business be licensed, and (3) appellees relied upon one corporation to justify a wrong, i.e., appellees’ shifting assets from Stealth Industries to Stealth Detection after Stealth Industries was sued. Although these may be grounds for piercing the corporate veil, they are not evidence of joint-enterprise vicarious liability. See Castleberry v. Branscum, 721 S.W.2d 270, 272 (Tex.1986) (discussing grounds for disregarding corporate fiction); Shoemaker, 513 S.W.2d at 16-17 (discussing elements of joint-enterprise liability).

      . The courts findings and conclusions were the following:
      This Court is of the opinion that plaintiffs failed to meet their burden in proving each and every element of any cause of action alleged by plaintiffs by the greater weight and degree of credible evidence.
      This Court is of the opinion that plaintiffs failed to meet their burden in proving by the greater weight and degree of credible evidence that defendants violated 47 U.S.C. Sec. 227.
      This Court is also of the opinion that plaintiffs failed to meet their burden in proving by the greater weight and degree of credible evidence that defendants violated Texas Business and Commerce Code Sec. 35.47.


source: Caselaw Access Project

author: HOLLIS HORTON, Justice.

license: Public Domain

text:
    Kleodis Byrd ROBERTS, Appellant, v. The STATE of Texas, Appellee.
    No. 09-09-00570-CR.
    Court of Appeals of Texas, Beaumont.
    Submitted Nov. 4, 2010.
    Decided Nov. 17, 2010.

      Stephen C. Taylor, Conroe, for appellant.
    Brett W. Ligón, Dist. Atty., Darla Faulkner, Marc Brumberger, Asst. Dist. Attys., Conroe, for state.
    Before MeKEITHEN, C.J., KREGER and HORTON, JJ.
   OPINION

HOLLIS HORTON, Justice.

After entering a. plea bargain agreement, Kleodis Byrd Roberts pled guilty to a charge of theft, which was enhanced by prior convictions. See Tex. Penal Code Ann. §§ 12.42, 31.03 (West Supp.2010). The trial court sentenced Roberts to serve two years in the Correctional Institutions Division of the Texas Department of Criminal Justice. In a single issue, Roberts argues the trial court erred in ordering her to pay Montgomery County $855 in attorney’s fees that were awarded in the trial court’s judgment. Because there was no evidence to support an award of fees, we sustain Roberts’s sole issue and modify the judgment to delete the attorney’s fees award; otherwise, we affirm the judgment.

Background

Prior to entering her plea, Roberts filed a motion in which she asked the trial court to find that she was financially unable to pay fees for her court-appointed attorney. See Tex.Code Crim. Proc. Ann. art. 26.05(g) (West Supp.2010). However, the trial court did not hear Roberts’s motion until after it had sentenced her. Roberts’s court-appointed attorney advised the trial court that he had been appointed because Roberts was indigent, and that she “does not presently have the means to repay the county for court-appointed counsel.” Roberts also volunteered that she received social security disability because of a mental disability, but she was never asked to state the amount she received in disability, nor was the record developed regarding her expenses or whether she had additional resources. Instead, the trial judge expressly stated that he would accept the statement of her appointed counsel that Roberts was and remained indigent.

After accepting Roberts’s attorney’s statement that Roberts was and remained indigent, the trial court then denied her motion, stating “I think [section] 26.05 [of the Texas Code of Criminal Procedure] looks into the future. I think in the future you can get a job and help. Every time you play the Lotto, the State of Texas will play the Lotto with you.” The trial court then ordered Roberts to pay $855 in attorney’s fees to defray the expense of having received court-appointed counsel.

Jurisdiction

Before addressing the issue Roberts raises — whether the trial court erred in ordering her to repay Montgomery County for court-appointed attorney’s fees — we first address whether Roberts has the right to pursue an appeal. In a criminal case, a defendant, sentenced under the terms of a plea-bargain agreement, can only appeal “(A) those matters that were raised by written motion filed and ruled on before trial, or (B) after getting the trial court’s permission to appeal.” Tex.R.App. P. 25.2(2). During the hearing, the trial court informed Roberts that to appeal from a plea bargain, the trial court would need to give her permission to appeal. At the conclusion of the hearing, the trial court told Roberts that she could appeal its ruling concerning the court’s imposing an obligation on her to pay attorney’s fees.

However, the trial court’s certification of appellant’s right to appeal states that Roberts’s criminal case “is a plea-bargain case, and the defendant has NO right of appeal[.]” Under this statement, the trial court altered the certification form and inserted the statement, “except the Art. 26.05 issue.” Article 26.05 generally concerns the payment of court-appointed counsel, and article 26.05(g) provides the trial court with discretion to require the defendant to contribute to the expenses of a court-appointed attorney in the following circumstance:

If the court determines that a defendant has financial resources that enable him to offset in part or in whole the costs of the legal services provided, including any expenses and costs, the court shall order the defendant to pay during the pendency of the charges or, if convicted, as court costs the amount that it finds the defendant is able to pay.

Tex.Code Crim. Proc. Ann. art. 26.05(g).

Because the trial court’s certification did not comply with the form created by the Court of Criminal Appeals for certifications, we inquired of the parties whether we could exercise jurisdiction over Roberts’s appeal. Both parties replied, and both agree that the trial court intended to grant Roberts permission to appeal from the trial court’s ruling that taxed Roberts with attorney’s fees.

The trial court’s certification is based on a form promulgated by the Court of Criminal Appeals. By order, the Court of Criminal Appeals provided a form for trial courts to use that it titled “Certification of Defendant’s Right of Appeal.” See Tex. R.App. P.App. D (Amended May 2, 2007 and Aug. 20, 2007, eff. Sept. 1, 2007). While the trial court used this form, it altered it by inserting the language we have previously identified. But, the form promulgated by the Court of Criminal Appeals does not appear to constitute the sole means by which a trial court can signify its decision to grant permission to appeal. See Carroll v. State, 119 S.W.3d 838, 841 (Tex.App.-San Antonio 2003, no writ) (explaining that no rule or order prescribes the use of the form provided by the Court of Criminal Appeals, and that the form may be modified to reflect that a defendant has the right to appeal under circumstances not addressed by the form). Having reviewed the trial court’s certification, the parties’ responses to our jurisdictional inquiry, the transcript of the hearing, and the parties’ briefs, we hold that the trial court certification is sufficient to indicate that the trial court gave Roberts permission to appeal its ruling to the extent the judgment required her to pay the county for having received the benefit of court-appointed counsel. See Tex.R.App. P. 25.2(a)(2)(B). We conclude that we have jurisdiction of Roberts’s appeal.

Taxing Fees of Court-Appointed Counsel

Article 26.05(g) of the Texas Code of Criminal Procedure provides trial courts with discretionary authority to order reimbursement of appointed attorney’s fees when the “defendant has financial resources that enable him to offset in part or in whole the costs of the legal services provided[.]” Tex.Code Crim. Proc. Ann. art 26.05(g). The Court of Criminal Appeals, after the date the trial court entered the judgment at issue here, addressed whether a record contained sufficient evidence to show that a trial court made a sufficient inquiry before requiring the defendant to pay court-appointed-attorney’s fees. Mayer v. State, 309 S.W.3d 552, 556 (Tex.Crim.App.2010). The Court affirmed a judgment by the Amarillo Court of Appeals, which had determined that a trial court had erred in awarding attorney’s fees under article 26.05(g) “in the absence of ‘evidence to demonstrate appellant’s financial resources to offset the costs of the legal services[.]’ ” Id. at 553, 558 (quoting Mayer v. State, 274 S.W.3d 898, 901 (Tex.App.-Amarillo 2008), aff'd, 309 S.W.3d 552 (Tex.Crim.App.2010)). The Court of Criminal Appeals specifically noted that under section 26.04(p) of the Code of Criminal Procedure, “ ‘[a] defendant who is determined by the court to be indigent is presumed to remain indigent for the remainder of the proceedings in the case unless a material change in the defendant’s financial circumstances occurs.’” Id. at 557 (quoting Tex.Code Crim. Proc. Ann. art. 26.04(p) (West Supp.2010)).

Here, the trial court determined that Roberts was indigent when it initially appointed her counsel, and again when it appointed her counsel to represent her in this appeal. At the hearing, her counsel represented to the trial court that Roberts had continuously resided in the county jail from her arrest until the day of her sentencing, she had no income, and that she had no opportunity to earn any income. Roberts’s counsel concluded that following his appointment, Roberts remained indigent and that she did not have the means to repay Montgomery County for her court-appointed attorney’s fees. Roberts told the trial court that she did receive “SSI disability payments[,]” but no evidence was presented as to the amount she received or whether she had been receiving these payments when she was originally appointed trial counsel.

Having carefully reviewed the record, we find nothing in it to support a finding that Roberts’s financial circumstances had materially changed. The trial court’s presumption that Roberts might be able to get a job in the future does not tend to prove that she presently has financial resources enabling her to offset the expense incurred by the county to pay for court-appointed attorney’s fees. Further, without evidence to indicate that Roberts had not received disability payments prior to the trial court’s having found her indigent, her isolated statement that she received SSI payments during the guilty plea proceeding is no evidence that there had been a material change in Roberts’s financial circumstances.

Based on this record, there was no evidence to show that Roberts’s finances had undergone a “material change.” See Mayer, 309 S.W.3d at 557; see also Tex.Code Crim. Proc. Ann. art. 26.04(p). Therefore, no evidence supports the trial court’s decision that Roberts “has” the ability to pay her attorney’s fees. See Tex.Code Crim. Proc. Ann. art. 26.05(g); Barrera v. State, 291 S.W.3d 515, 518 (Tex.App.-Amarillo 2009, no pet.) (“There must be some factual basis in the record illustrating that an accused is capable of paying a legal fee levied under art. 26.05(g) of the Code of Criminal Procedure.”). We sustain Roberts’s sole issue.

The State contends that if we sustain Roberts’s issue, we should abate this appeal and remand the matter to the trial court for an evidentiary hearing regarding Roberts’s financial resources because the trial court denied the State the opportunity to respond to the issue. However, the Court of Criminal Appeals, concluding that a challenge to an article 26.05(g) ruling amounted to a sufficiency inquiry, held that

[w]hen claims of insufficient evidence are made, the cases are not usually remanded to permit supplementation of the record to make up for alleged deficiencies in the record evidence. Sufficiency of the evidence is measured by viewing all of the record evidence in the light most favorable to the verdict.

Mayer, 309 S.W.3d at 557. Here, the record does not support the State’s argument that the trial court precluded the State from presenting evidence to show that Roberts’s financial circumstances had materially changed. See id. at 556-57.

In light of the Court of Criminal Appeals’s holding in Mayer, we hold that the trial court abused its discretion in taxing Roberts with attorney’s fees. Accordingly, we modify the judgment to delete the portion requiring that she pay attorney’s fees in the amount of $855. In all other respects, the judgment is affirmed.

AFFIRMED AS MODIFIED.


text:
    Ex Parte Shane Jermaine MATTHEWS.
    No. 09-10-00238-CR.
    Court of Appeals of Texas, Beaumont.
    Submitted Oct. 11, 2010.
    Decided Nov. 24, 2010.

      Dennis D. Horn, Kirbyville, for appellant.
    Steven Hollis, Crim. Dist. Atty., Jasper, for state.
    Before McKEITHEN, C.J., GAULTNEY and HORTON, JJ.
   OPINION

HOLLIS HORTON, Justice.

A Jasper County, Texas, grand jury indicted Shane Jermaine Matthews for causing the death of Jessie Palamo, Jr. The State alleged that Shane shot Palamo with a firearm in the course of committing or attempting to commit a robbery. Shane was held in jail without bail for more than ninety days. In response to Shane’s application for habeas relief requesting that he be released or that the trial court set his bail, the trial court set Shane’s bail at $475,000. Shane appeals from the trial court’s order setting his bail at $475,000. We affirm.

Background

In January 2010, a Jasper County grand jury indicted Shane for capital murder. See Tex. Penal Code Ann. § 19.03(a)(2) (West Supp. 2010). Three others were also arrested and charged with capital murder in connection with Palamo’s death. On January 14, 2010, the trial court conducted a bond hearing. At the January bond hearing, Captain Robert Walker of the Jasper County Sheriffs Department testified that Shane would probably not appear for trial if the trial court were to allow his release on bond. Walker’s opinion was based on the strength of the State’s case against Shane and Shane’s criminal history. The record now before us does not contain a written order following the January hearing, but the State does not dispute that the trial court did not allow Shane’s release on bail following the January hearing.

In April 2010, Shane filed an application for writ of habeas corpus, and he requested that the trial court grant his release on a personal bond or “set the amount of bail required for his release.” According to the application, Shane had been incarcerated for ninety days or more, and during that time, the State was not ready for trial. See Tex.Code Crim. Proc. Ann. art. 17.151 § 1(1) (West Supp. 2010). During the hearing, the State conceded that it was not ready for trial. The application further asserts that proof of Shane’s guilt was not evident nor had the State established the likelihood that Shane would receive a death sentence .upon his conviction. See Tex. Const. art. I, § 11 (West 2007) (providing right to release upon posting bail except for cases of capital offenses when the proof is evident).

“[T]he State has the burden to establish that the proof is evident by producing ‘evidence [that] is clear and strong, leading a well-guarded and dispassionate judgment to the conclusion that the offense of capital murder has been committed; that the accused is the guilty party; and that the accused will not only be convicted but that the jury will return findings which will require a sentence of death.’ ” Ex parte Richardson, 750 S.W.2d 896, 897 (Tex.App.-Amarillo 1988, pet. ref'd) (quoting Ex parte Wilson, 527 S.W.2d 310, 311 (Tex.Crim.App.1975)). The State’s burden of proof requires that the State not only introduce evidence that the jury would convict the accused, but that they would also return the findings required to impose a death sentence. Ex parte Alexander, 608 S.W.2d 928, 930 (Tex.Crim.App.1980).

In May 2010, the trial court conducted a hearing on Shane’s application for writ of habeas corpus. The trial court took judicial notice of Captain Walker’s prior testimony for the purpose of the May 2010 hearing. During the May hearing, Shane testified about his criminal history, his sporadic work history, his lack of community ties to Jasper County, and his inability to make bail. Shane further explained that he would be required to rely on his family to pay his bail, and he also testified that the State had not informed him about whether it intended to pursue a death penalty claim. John Matthews, one of the others the State indicted for Palamo’s murder, also testified at the hearing. John explained that in a prior hearing involving his case, the prosecutor made statements tending to reflect some degree of doubt about whether the State intended to seek the death penalty against him. During the January and May hearings, the State did not put on evidence that it intended to seek a death sentence. At the conclusion of the hearing, the trial court fixed Shane’s bail at $475,000.

Excessive Bail

In a single point of error, Shane argues that his bail is excessive. According to Shane, the trial court is required to set his bail in an amount that he can afford so that he can secure his release from confinement. See Tex.Code Crim. Proc. Ann. art. 17.151; Rowe v. State, 853 S.W.2d 581, 582 (Tex.Crim.App.1993). During the May hearing, Shane’s attorney argued that Shane should be released on a bond of $50,000.

Article 17.151 provides: “A defendant who is detained in jail pending trial of an accusation against him must be released either on personal bond or by reducing the amount of bail required, if the state is not ready for trial of the criminal action for which he is being detained within[] 90 days from the commencement of his detention if he is accused of a felony[.]” Tex. Code Crim. Proc. Ann. art. 17.151 § 1(1). In support of his argument, Shane relies on Rowe v. State, a Court of Criminal Appeals case decided in 1993. In Rowe, the State did not indict Rowe within the ninety-day period that followed Rowe’s incarceration. Rowe, 853 S.W.2d at 581. The Court of Criminal Appeals concluded that article 17.151 requires a trial court to reduce a defendant’s bail to an amount the record reflects that he can afford, or to release a defendant on personal bond where the record reflects that he cannot make any bond. Id. at 582 & n. 1; see Tex.Code Crim. Proc. Ann. art. 17.151.

Generally, a court’s discretion in fixing a defendant’s bail is governed by article 17.15, which contains rules for fixing the amount of a defendant’s bail. In May 1993, when the Court of Criminal Appeals reached its decision in Rowe, article 17.15 allowed but did not require trial courts to consider the future safety of a victim of the respective alleged offense in fixing the defendant’s bail. See Act of May 23, 1985, 69th Leg., R.S., ch. 588, § 2, 1985 Tex. Gen. Laws 2219 (amended 1993) (current version at Tex.Code Crim. Proc. Ann. art. 17.15 (West 2005)). At that time, the statute was silent with respect to whether a trial court could consider community safety concerns, such as the safety of witnesses to the alleged offense, in determining the question of bail. After the Court of Criminal Appeals decided Rowe, the Legislature amended article 17.15. The amended version of the statute applicable in Shane’s case places a mandatory duty on courts to consider the future safety of the community in fixing the amount of a defendant’s bail. See Act of May 22, 1993, 73rd Leg., R.S., ch. 396 § 1, 1993 Tex. Gen. Laws 1694,1695.

Article 17.15 applies to all bail hearings. See Tex.Code Crim. Proc. Ann. art. 17.15. By placing a mandatory duty on trial courts to consider the safety of the victim and the safety of the community in fixing bail in all cases, the Legislature requires trial courts to consider a factor that is not related to the amount the defendant can afford to pay. We doubt that the Legislature intended to mandate trial courts to release defendants on bail on a personal bond or based solely on the amount they can afford in cases in which the defendant, although unable to pay a significant bail, represents a real threat to his victim or to the community; these are considerations that extend beyond the criteria of article 17.151 § 1 which focuses only upon the defendant’s ability to pay.

The Legislature’s mandate requiring trial courts to consider victim and community safety extends to “any case,” which we believe includes a release on bail that is sought based on the State’s delay in bringing the defendant to trial. See Tex.Code Crim. Proc. Ann. art. 17.15. Nevertheless, in cases where the defendant has been incarcerated and there has been a ninety-day period of delay in which the State has not announced ready for trial, the trial court must either release the defendant on a personal bond or allow the defendant to secure his release by setting a bail in some amount. In fixing the amount of bail in a case to which article 17.151 applies, trial courts have been authorized to consider victim and community safety concerns in determining the amount of bail that is appropriate to require.

In the case before us, there was testimony from which the trial court could reasonably infer that community safety concerns existed, which then allowed it to exercise its discretion in fixing Shane’s bail at $475,000. Orders setting bail are reviewed on appeal to determine whether the trial court abused its discretion. See Ex parte Ruiz, 129 S.W.3d 751, 753 & n. 2 (Tex.App.-Houston [1st Dist.] 2004, no pet.) (citing Ex parte Rubac, 611 S.W.2d 848, 849 (Tex.Crim.App.1981)).

In determining Shane’s bail, the trial court could consider the testimony of Cap-' tain Walker, a criminal investigator who conducted an investigation of Palamo’s murder. Walker’s testimony was before the court at the January hearing because the trial court took judicial notice of his testimony during the May hearing. Captain Walker’s testimony was sufficient to establish that community safety concerns were implicated by Shane’s release. According to Captain Walker, Palamo was shot and killed during a drug deal that was also intended to be a robbery. Captain Walker testified that witness statements revealed that Shane was one of three males present in the motel room when Palamo was murdered, that all three males had a weapon on them at the time of the murder, and that they left the scene wearing ski masks. Walker also related that his investigation indicated that Shane was a member of a gang known for “[rjobbing, stealing, committing murders, [and] thefts.” When Shane testified, he did not deny his gang membership or dispute the gang’s reputation. Thus, this evidence raises a reasonable inference that were Shane to secure his release on the bail he proposed of $50,000, the witnesses in Shane’s case were likely to face threats and intimidation for cooperating with the State.

The trial court also heard evidence relevant to Shane’s violent nature. Shane testified that he had been convicted in 2003 for assault with a deadly weapon, a case that resulted in a five-year sentence. Shane explained that after his release from prison, he was arrested and then indicted for illegally possessing a firearm.. On the date Palamo was murdered, Shane was out on bond pending trial of the firearms charge. From this evidence, the trial court could have concluded that Shane would likely disregard conditions of bond were he to gain his release on a bond of $50,000.

We conclude that the trial court properly considered community safety concerns in determining the required amount of Shane’s bail. In light of the community safety concerns presented by Shane’s release, we conclude that Shane’s bail of $475,000 is reasonable and that Shane has failed to demonstrate that his bail is excessive. See Ex parte Charlesworth, 600 S.W.2d 316, 317 (Tex.Crim.App.1980).

Conclusion

The trial court did not abuse its discretion by fixing Shane’s bail at $475,000. We overrule Shane’s point of error and affirm the trial court’s order.

AFFIRMED.

      . In 2005, the Texas Legislature amended article 17.151 to allow for an exemption to the mandatory release of a defendant who is being detained for violating a condition of a previous release related to the safety of a victim of the alleged offense or to the safety of the community. Act of May 10, 2005, 79th Leg., R.S., ch. 110, § 1(4), 2005 Tex. Gen. Laws 206; Senate Comm, on Criminal Justice, Bill Analysis, Tex. S.B. 599, 79th Leg., R.S. (2005); House Comm, on Criminal Jurisprudence, Bill Analysis, Tex. S.B. 599, 79th Leg., R.S. (2005). The purpose of S.B. 599 was to allow a judge the discretion to deny a defendant’s request for release on bond if the defendant had violated a condition of his original bond. House Comm, on Criminal Jurisprudence, Bill Analysis, Tex. S.B. 599, 79th Leg., R.S. (2005). Prior to S.B. 599, a trial judge’s only recourse was to set a higher bond. Id.


author: CHARLES KREGER, Justice. HOLLIS HORTON, Justice,

text:
    Jordan MASWOSWE, Appellant, v. Gerald Joseph NELSON, Jr. and Jason Apodaca, Appellees.
    No. 09-09-00471-CV.
    Court of Appeals of Texas, Beaumont.
    Submitted Aug. 5, 2010.
    Decided Dec. 2, 2010.

      Joe Michael Dodson, Dodson Law Office, P.C., Beaumont, for appellant.
    Christopher Portner, Reaud, Morgan & Quinn, LLP, Beaumont, for appellees.
    Before McKEITHEN, C.J., KREGER and HORTON, JJ.
   OPINION

CHARLES KREGER, Justice.

Appellant Jordan Maswoswe appeals the summary judgment in favor of appellees Gerald Joseph, Jr. and Jason Apodaca. Maswoswe argues in part that the trial court improperly granted summary judgment on unpled causes of action, and the summary judgment evidence was insufficient to support the judgment. We reverse the judgment of the trial court and remand the case for further proceedings.

In December 2008, Nelson and Apodaca obtained an ownership interest in the Southeast Texas Mustangs Professional Basketball Franchise (hereinafter, the “Mustangs”). Specifically, Nelson obtained a twenty-five percent interest in the team, and Apodaca obtained a five-percent interest in the team. Jordan Maswoswe, defendant in the underlying suit, retained a seventy-percent ownership interest in the team.

THE LAWSUIT

On February 3, 2009, Nelson and Apo-daca filed suit against Maswoswe. They asserted a breach of contract claim against Maswoswe, and alleged the following:

Plaintiff Gerald Joseph Nelson, Jr .... contracted with [Maswoswe] to be an owner in the Southeast Texas Mustangs Professional Basketball Franchise .... Plaintiff Jason Apodaca ... also contracted with [Maswoswe] to be an owner of the Mustangs. Eventually, [Maswoswe] sold a substantial interest in the Mustangs to Plaintiffs and agreed to sell his remaining interest in the Mustangs to Plaintiff Nelsom Now [Mas-woswe] has breached the contract and refused to sell his remaining interest in the Mustangs to Plaintiff Nelson.
Money damages for the violation of Plaintiff Nelson’s rights under the contract would be [an] inadequate remedy because of the unique nature of the property in question, namely ownership of the Mustangs. The only adequate remedy for the violation of Plaintiff Nelson’s rights would be to compel [Mas-woswe] to specifically perform the agreement between Plaintiff Nelson and [Maswoswe] described above. Plaintiff Nelson has performed all terms, covenants and conditions under the contract.

Additionally, plaintiffs sought actual damages for breach of contract. Additionally, through their unsworn pleading, plaintiffs sought an ex parte temporary restraining order and injunction to prevent Maswoswe from

(i) terminating the coach of the Mustangs ...,
(ii) terminating any of the assistant coaches of the Mustangs,
(iii) entering into, modifying, and/or terminating any contract involving and/or on behalf of the Plaintiffs and/or the Mustangs, “including any agreement and/or contract with SMG d/b/a Ford Park Event Center!,]”
(iv) entering into, modifying, and/or terminating any other contract or other agreement between the Mustangs and the American Basketball Association,
(v) taking any action to impair and/or damage the Plaintiffs’ and/or the Mustang[s’] relationship with the American Basketball Association; and/or
(vi) transferring any of his ownership interest in the Mustangs to anyone other than Plaintiffs!.] • • •

The same day the plaintiffs’ petition was filed, the trial court granted plaintiffs’ request for an ex parte temporary restraining order and set a hearing on the motion for temporary injunction. Shortly thereafter, the parties entered an agreed temporary injunction, which prohibited Maswoswe from taking any of the above referenced actions.

Maswoswe retained counsel and filed a general denial. In March 2009, Mas-woswe’s counsel filed a motion to withdraw as attorney of record. The trial court granted counsel’s motion to withdraw on May 4, 2009. Plaintiffs served requests for admissions upon Maswoswe on or about May 11, 2009. Maswoswe, who was not represented by counsel at the time, did not respond to the requests for admissions.

THE MOTION FOR SUMMARY JUDGMENT

In June 2009, plaintiffs filed a motion for summary judgment based solely on deemed admissions. The motion for summary judgment stated in pertinent part:

Plaintiffs entered into a Partnership Agreement with Defendant regarding the Southeast Texas Mustangs, an ABA Professional Basketball Franchise, (the “Agreement.”). A copy of the Agreement is attached hereto as Exhibit “A” and is incorporated by reference. Plaintiffs performed all of their obligations pursuant to the Agreement. Defendant has breached the Agreement. Furthermore, Defendant never intended to hon- or the terms of the Agreement and fraudulently induced Plaintiffs to enter in[to] the Agreement.

Exhibit “A” attached to plaintiffs’ motion for summary judgment was a one-page document entitled “Letter of Ownership Partnership.” The Letter of Ownership was signed in December 2008 by all three parties, and stated in its entirety as follows:

This letter states that Mr. Jason W. Apodaca will purchase 5% in the Southeast Texas Mustangs by paying $15,000.00 by December 2008 and $15,000.00 in January 2009 for a total investment of $30,000.00. Mr. Apodaca will also head up the Sales & Marketing of the SETX Mustangs. Mr. Apodaca is interested in increasing his interest in team ownership at a later time upon agreement with Ownership Partners Mr. Jerry Nelson, Jr. (25% ownership) and Dr. Jordan J. Maswoswe (70% ownership). Upon the finalization of this agreement Mr. Apodaca will begin immediately with his Sales and Marketing efforts for the Mustangs. He is committed to making the SETX Mustangs a highly successful Professional Sports Franchise in Beaumont, TX and in the Golden Triangle Area.

In their motion for summary judgment, plaintiffs asserted that they had served Maswoswe with requests for admissions and Maswoswe had failed to respond. Pursuant to Rule 198.2(c) of the Texas Rules of Civil Procedure, and in support of their motion for summary judgment, plaintiffs set forth the following deemed admissions:

(1) That Defendant entered into a Partnership Agreement with Gerald Nelson, Jr. and Jason Apodaca regarding the Southeast Texas Mustangs, an ABA Professional Basketball Franchise.
(2) That the Partnership Agreement states that Defendant, Gerald Nelson, Jr. and Jason Apodaca were the owners of the Southeast Texas Mustangs, an ABA Professional Basketball Franchise.
(3) That Gerald Nelson, Jr. performed all of his obligations pursuant to the Partnership Agreement.
(4) That Jason Apodaca performed all of his obligations pursuant to the Partnership Agreement.
(5) That Defendant breached the Partnership Agreement.
(6) That Defendant’s breach of the Partnership Agreement proximately caused damages to Gerald Nelson, Jr. in the amount of $1,000,000.00 or more.
(7) That Defendant’s breach of the Partnership Agreement proximately caused damages to Jason Apodaca in the amount of $1,000,000.00 or more.
(8) That Defendant fraudulently induced Gerald Nelson, Jr. to execute the Partnership Agreement.
(9) That Defendant fraudulently induced Jason Apodaca to execute the Partnership Agreement.
(10) That Defendant never intended to honor the terms of the Partnership Agreement
(11) That Defendant made false statements to Gerald Nelson, Jr. to induce him to execute the Partnership Agreement.
(12) That Defendant made false statements to Jason Apodaca to induce him to execute the Partnership Agreement.
(13) That Defendant’s false statements were the reason that Gerald Nelson, Jr. executed the Partnership Agreement.
(14) That Defendant’s false statements were the reason that Jason Apodaca executed the Partnership Agreement.
(15) That Gerald Nelson, Jr. relied upon Defendant’s false statements when Gerald Nelson, Jr. executed the Partnership Agreement.
(16) That Jason Apodaca relied upon Defendant’s false statements when Jason Apodaca executed' the Partnership Agreement.
(17) That Defendant’s net worth is in excess of $1,000,000.
(18) That Defendant’s conduct towards Gerald Nelson, Jr. regarding the Partnership Agreement resulted from Malice.
(19) That Defendant’s conduct towards Jason Apodaca regarding the Partnership Agreement resulted from Malice.
(20) That $1,000,000 or more should be assessed against Defendant and awarded to Gerald Nelson, Jr. as exemplary damages as a result of Defendant’s conduct regarding the Partnership Agreement.
(21) That $1,000,000 or more should be assessed against Defendant and awarded to Jason Apodaca as exemplary damages as a result of Defendant’s conduct regarding the Partnership Agreement. (22) That $1,000,000 or more should be assessed against Defendant and awarded to Gerald Nelson, Jr. as exemplary damages as a result of Defendant’s malicious- conduct regarding the Partnership Agreement.
(28) That $1,000,000 or more should be assessed against Defendant and awarded to Jason Apodaca as exemplary damages as a result of Defendant’s malicious conduct regarding the Partnership Agreement.

Plaintiffs sought damages for breach of contract, as well as punitive damages for fraud in the inducement, in the amount of four million dollars.

Maswoswe, who was still -without counsel, did not respond to plaintiffs’ motion for summary judgment. The trial court granted the motion for summary judgment and awarded one million dollars to each plaintiff for “breach of contract” and an additional one million dollars to each plaintiff “in punitive damages for fraud[,]” for a total of four million dollars in damages against Maswoswe. Following the trial court’s entry of the order granting summary judgment, Maswoswe timely filed a motion for new trial, together with a motion to withdraw the deemed admissions. Both motions were denied by the trial court. Maswoswe filed a motion for reconsideration. This appeal followed.

In five issues, Maswoswe asserts the following errors: (1) the trial court granted a summary judgment that failed to conform to the pleadings, (2) the trial court wrongfully denied Maswoswe’s motion for the withdrawal of deemed admissions, (3) the evidence was insufficient to support the summary judgment, (4) the trial court entered summary judgment for unliquidat-ed and exemplary damages, and (5) the judgment is so out of proportion and contrary to the law that it violates Mas-woswe’s right to due process.

JUDGMENT MUST CONFORM TO THE PLEADINGS

In issue one, Maswoswe argues that the judgment was improper because it was granted on claims not raised in plaintiffs’ original petition. In their motion for summary judgment, plaintiffs argued that the deemed admissions established as a matter of law that Maswoswe breached a partnership agreement between the parties and that the breach proximately caused each plaintiff to suffer damages in the amount of one million dollars. Plaintiffs further argued that the deemed admissions established the elements of fraud as a matter of law and that damages in. the amount of one million dollars or more should be awarded in favor of each plaintiff “as exemplary damages as a result of [Maswoswe’s] conduct regarding the Partnership Agreement.”

Maswoswe contends that summary judgment on causes of action for breach of the alleged partnership agreement and fraud was improper because plaintiffs’ petition sought only specific performance of Mas-woswe’s alleged agreement to sell his remaining interest in the Mustangs to Nelson, actual damages for breach of that agreement, and injunctive relief. Mas-woswe argues that plaintiffs did not assert any allegations of fraud, false statements or misrepresentations in plaintiffs’ original petition, nor did they allege malice or seek exemplary damages. Further, plaintiffs’ original petition made no allegations of breach of a partnership agreement.

“ ‘A court’s jurisdiction to render judgment is invoked by the pleadings, and a judgment unsupported by pleadings is void.’ ” In re S.A.A., 279 S.W.3d 853, 856 (Tex.App.-Dallas 2009, no pet.) (quoting Ex parte Fleming, 532 S.W.2d 122, 123 (Tex.Civ.App.-Dallas 1975, no writ)). Therefore, a trial court’s judgment must conform to the pleadings. Tex.R. Civ. P. 301. “A plaintiff may not be granted a favorable judgment on an unpled cause of action, absent trial by consent.” Marrs & Smith P’ship v. D.K. Boyd Oil & Gas Co., 223 S.W.3d 1, 18 (Tex.App.-El Paso 2005, pet. denied) (citing Oil Field Haulers Ass’n v. R.R. Comm’n, 381 S.W.2d 183, 191 (Tex.1964)); see also Hartford Fire Ins. Co. v. C. Springs 300, Ltd., 287 S.W.3d 771, 779 (Tex.App.-Houston [1st Dist.] 2009, pet. denied) (“A trial court cannot enter judgment on a theory of recovery not sufficiently set forth in the pleadings or otherwise tried by consent.”); Huddleston v. Pace, 790 S.W.2d 47, 50 (Tex.App.-San Antonio 1990, writ denied) (“A party must recover on the right in which he sues and upon proof of the facts stated in his pleadings, and he cannot recover through a right not asserted.”). “Absent trial by consent, judgment on an unpled action is void.” In re S.A.A., 279 S.W.3d at 856 (citing Stoner v. Thompson, 578 S.W.2d 679, 682 (Tex.1979)); see also Webb v. Glenbrook Owners Ass’n, 298 S.W.3d 374, 380 (Tex.App.-Dallas 2009, no pet.).

A plaintiffs petition must give adequate notice of the facts upon which the plaintiff bases his cause of action. See Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 897 (Tex.2000). The purpose of this rule is to provide the defendant with sufficient information to allow him to prepare a defense. Id. A reviewing court should liberally construe the plaintiffs petition to assert any claim that could reasonably be inferred from the specific language in the petition. Moneyhon v. Moneyhon, 278 S.W.3d 874, 878 (Tex.App.Houston [14th Dist.] 2009, no pet.). However, “a reviewing court cannot use a liberal construction of the petition as a license to read into the petition a claim that it does not contain.” Id.; see also Tex.R. Civ. P. 47; see generally Krull v. Somoza, 879 S.W.2d 320, 322 (Tex.App.-Houston [14th Dist.] 1994, writ denied) (holding that a request for damages contained in a motion for summary judgment did not meet the pleading requirement).

Nelson and Apodaca argue that their petition “is clearly sufficient to support [their] claim for damages for breach of contract.” Significantly, they do not argue on appeal that their petition supports their claim for fraud. The only cause of action alleged in the original petition is a cause of action for breach of an alleged agreement by Maswoswe to sell his remaining ownership interest in the Mustangs to Nelson. However, plaintiffs’ motion for summary judgment does not address the alleged agreement by Maswoswe to sell his remaining interest in the Mustangs to Nelson. Instead, the motion for summary judgment alleges that the parties entered into a partnership agreement, referencing that which is attached to the motion as an exhibit, and that breach of the partnership agreement is established solely by the deemed admissions. The “Letter of Ownership Partnership,” attached and incorporated into the motion for summary judgment as the purported “Agreement,” does not contain any language of an obligation by Maswoswe to sell his remaining interest in the team to Nelson, nor does it contain any language of an obligation of Mas-woswe to Apodaca beyond the recitation of Apodaca’s initial stock ownership interest in the team. We conclude that plaintiffs’ petition cannot be read to allege causes of action for either breach of a partnership agreement or fraud.

TRIAL BY CONSENT

Plaintiffs argue that even if the summary judgment did not conform to the pleadings, the breach of partnership and fraud claims were tried by consent. The doctrine of trial by consent only applies when the issue is developed under circumstances indicating both parties understood the issue was in the case, and the other party failed to make the appropriate complaint. Case Corp. v. Hi-Class Bus. Sys. of Am. Inc., 184 S.W.3d 760, 771 (Tex.App.-Dallas 2005, pet. denied). The First Court of Appeals explained the application of the doctrine as follows:

Trial by consent is intended to cover the exceptional case in which it clearly appears from the record, as a whole, that the parties tried the unpleaded issue. It is not intended to establish a general rule of practice and should be applied with care, and never in a doubtful situation. Trial by implied consent ‘applies only where it appears from the record that the issue was actually tried, although not pleaded.’ To determine whether the issue was tried by consent, the court must examine the record not for evidence of the issue, but rather for evidence of trial of the issue. When evidence relevant to both a pleaded and unpleaded issue has been admitted without objection, the doctrine of trial by consent should not be applied unless clearly warranted.

Greene v. Young, 174 S.W.3d 291, 301 (Tex.App.-Houston [1st Dist.] 2005, pet. denied) (citations omitted); see generally Tex.R. Civ. P. 67 (““When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.”).

Citing Goodyear Tire and Rubber Co. v. Mayes, 236 S.W.3d 754 (Tex.2007) and Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492 (Tex.1991), Nelson and Apoda-ca contend that parties may try an issue by consent in a summary judgment proceeding. However, this case is distinguishable from both Goodyear and Roark because Maswoswe did not respond to the motion for summary judgment; therefore, the unpled issues were never “tried.” In Roark, the Supreme Court held that “an unpleaded affirmative defense may also serve as the basis for a summary judgment when it is raised in the summary judgment motion, and the opposing party does not object to the lack of a rule 94 pleading in either its written response or before the rendition of judgment.” Roark, 813 S.W.2d at 494. However, in Roark, the plaintiff responded to defendant’s motion for summary judgment and presented argument at the hearing on the motion. Id. Roark argued that the evidence did not conclusively establish the defense. Id. Roark did not raise defendant’s lack of pleading in its written response, at the hearing, or at any time before summary judgment was rendered. Id. The trial court noted, “[t]he party who allows an issue to be tried by consent and who fails to raise the lack of a pleading before submission of the case cannot later raise the pleading deficiency for the first time on appeal.” Id. at 495. Likewise, in Goodyear, there is nothing to suggest that the nonmoving plaintiff in that ease did not respond to the defendant’s motion for summary judgment. See Goodyear, 236 S.W.3d at 756 n. 1, 757 (The Court noted that while the plaintiffs pleadings did not specifically include a claim for negligent entrustment, plaintiff did not object to defendant’s characterization of his claims, and the plaintiff argued before the appellate court that a fact issue existed with regard to negligent entrustment.)

Some courts have concluded that “there can be no trial by consent on issues decided by default judgment.” In re J.A.A., No. 13-07-413-CV, 2008 WL 384250, at *1 (Tex.App.-Corpus Christi 2008, no pet.) (mem. op.) (citing Westchester Fire Ins. Co. v. Nuckols, 666 S.W.2d 372, 375 (Tex.App.-Eastland 1984, writ ref'd n.r.e.)); see also Facundo v. Solis, No. 03-05-00059-CV, 2006 WL 66467, at *5 n. 1 (Tex.App.Austin 2006, no pet.) (mem. op.) (recognizing that there is no possibility of trial by consent in cases involving default judgments). Similarly, because Maswoswe did not respond to the motion for summary judgment, or otherwise participate in the summary judgment proceedings, there is no evidence of trial by consent of the unpled issues. See Greene, 174 S.W.3d at 301. On the record before us, we cannot conclude that this is one of the exceptional cases in which the issues can be deemed to have been tried by implied consent. See In re S.A.A., 279 S.W.3d at 856; Moneyhon, 278 S.W.3d at 879. We sustain issue one.

INSUFFICIENT EVIDENCE TO SUPPORT THE JUDGMENT

In his third issue, Maswoswe argues that the evidence was insufficient to support the summary judgment. Plaintiffs relied solely upon deemed admissions to support their motion for summary judgment and did not file any affidavits in support of the motion. While considering without finding that the issues of breach of partnership agreement and fraud were tried by consent, we find the deemed admissions insufficient to support summary judgment on those claims. See Cedyco Corp. v. Whitehead, 253 S.W.3d 877, 879-81 (Tex.App.-Beaumont 2008, pet. denied). In Cedyco we explained that a party moving for summary judgment must conclusively establish the elements of its cause of action even when the summary judgment is based on deemed admissions. We stated:

‘The function of summary judgment is not to deprive a litigant of his right to trial by jury, but to eliminate patently unmeritorious claims and untenable defenses.’ A plaintiff is entitled to summary judgment on a cause of action only if he conclusively' proves all essential elements of his claim as a matter of law.... When the movant’s summary judgment proof fails to conclusively establish each element of his cause of action, the trial court may not render a summary judgment by default solely because the nonmovant did not file a summary judgment response. The movant’s motion ‘for summary judgment must itself expressly present the grounds upon which it is made, and must stand or fall on these grounds alone.’
Regarding the deemed admissions, ... when a party fails to timely respond to request for admissions, the matters therein are deemed admitted. Admissions of fact on file at the time of a summary judgment hearing are proper summary judgment proof and will, therefore, support a motion for summary judgment. However, a request for admission asking a party to admit or deny a purely legal issue is improper, and a deemed admission involving a purely legal issue is of no effect. This is so because the primary purpose of requests for admissions is to simplify trials by eliminating matters about which there is no real controversy.

Id. at 879-80 (citations omitted); see also Boulet v. State, 189 S.W.3d 833, 838 (Tex.App.-Houston [1st Dist.] 2006, no pet.) (“[Responses to requests for admissions merely constituting admissions of law are not binding on the court and a party is not precluded from proving a fact necessary to its cause or defense.”).

In a request for admission, a party may ask another party to admit or deny issues of fact relevant to the pending action or to apply the law to relevant issues of fact; however, a request for admission that asks a party to admit or deny a purely legal issue is improper. See Cedyco, 253 S.W.3d at 880-81; see also Boulet, 189 S.W.3d at 838; Fort Bend Cent. Appraisal Dist. v. Hines Wholesale Nurseries, 844 S.W.2d 857, 858-59 (Tex.App.-Texarkana 1992, writ denied); see generally Tex.R. Civ. P. 198.1. The requests for admissions in this case do not address any issues of fact relevant to the claims for breach of partnership agreement or fraud, nor do they apply the law to any relevant issues of fact. For example, there is a request for admission that Maswoswe breached the partnership agreement but no request for admission of any facts as to how he purportedly committed the breach or seeking to establish the terms of the agreement allegedly breached by Maswoswe. Likewise, there are deemed admissions that Maswoswe made false statements to induce Nelson and Apodaca to execute the partnership agreement, but no admissions regarding what those false statements were or what they concerned. There are deemed admissions that Maswoswe’s “conduct” toward Nelson and Apodaca regarding the partnership agreement resulted from malice. However, there are no admissions addressing what that conduct was. The deemed admissions merely set forth legal conclusions. Further, because all of the requests for admissions seek discovery of matters not relevant to any cause of action pending at the time such discovery requests were propounded, the discovery requests are outside the scope of discovery and are improper. Tex.R. Civ. P. 198.1; see Cedyco, 253 S.W.3d at 880. Therefore, they are not competent as summary judgment evidence, and Nelson and Apodaca have failed to conclusively prove all essential elements of their claims as a matter of law. See Cedyco, 253 S.W.3d at 880-81. We sustain issue three.

Because we sustain issues one and three, we need not address Maswoswe’s remaining issues. We reverse the judgment of the trial court and remand this case for further proceedings in accordance with this opinion.

REVERSED AND REMANDED.

HORTON, Justice, concurring.

HOLLIS HORTON, Justice,

concurring.

I concur with the court’s opinion to reverse and remand the trial court’s judgment, but disagree with the court’s opinion to the extent it states that the deemed admissions, due to the form of the requests, were incompetent summary judgment proof. Instead, under the circumstances in this case, the trial court erred because it failed to grant Maswoswe’s motion to withdraw the deemed admissions. In my opinion, Maswoswe’s motion established the grounds required for the trial court to allow admissions to be withdrawn.

A trial court is required to allow admissions to be withdrawn upon a showing of “good cause” and that no undue prejudice will result from their withdrawal. See Tex.R. Civ. P. 198.3. “Good cause is established by showing the failure involved was an accident or mistake, not intentional or the result of conscious indifference.” Wheeler v. Green, 157 S.W.3d 439, 442 (Tex.2005). “Undue prejudice depends on whether withdrawing an admission or filing a late response will delay trial or significantly hamper the opposing party’s ability to prepare for it.” Id. at 443. Allowing Maswoswe to withdraw the admissions would not have delayed the resolution of the case, as nothing in the record suggests that a trial setting was imminent. Moreover, nothing in the record suggests that the plaintiffs were not capable of proving their damage claim with the parties’ testimony concerning the damages that Maswoswe’s alleged breach had caused.

With respect to good cause, Maswoswe’s motion established his receipt of the plaintiffs’ requests for admissions shortly after his attorney’s withdrawal and also proved he did not understand that he was required to file answers to them, nor was he aware of the consequences of failing to respond to them. This case is similar to Wheeler, as nothing in the record before us suggests that before summary judgment was granted, Maswoswe realized that he needed to move to withdraw the deemed admissions. See id. at 442. “[A]bsent flagrant bad faith or callous disregard for the rules, due process bars merits-preclusive sanctions[.j” Id. at 443. Due process concerns arise where admissions are used, as they were here, to attempt to preclude a party from presenting the merits of his case. See id.

Even though I believe the record supports a reversal of the judgment, which is the result the court reaches in the majority opinion, I disagree with the opinion to the extent it argues that the plaintiffs’ requests for admissions addressed matters beyond the scope of discovery. Requests for admissions can be and in this case were used to require Maswoswe to admit propositions applying law to fact, and are proper for the reasons discussed in my dissent in Cedyco Corp. v. Whitehead, 253 S.W.3d at 881-84 (Horton, J., dissenting) (noting that Tex.R. Civ. P. 198.1 allows written requests that seek to require the other party to “admit the truth of any matter within the scope of discovery, including statements of opinion or of fact or of the application of law to fact”). Because the plaintiffs’ requests sought applications of law to fact concerning the parties’ contractual dispute, the requests were not in an improper form. Therefore, Maswoswe’s admissions could be used as proper support for a motion for summary judgment, and his admissions do not constitute improper summary judgment evidence.

Nevertheless, a new trial is warranted because the trial court was required to allow Maswoswe to withdraw the deemed admissions even though he first requested to do so after the trial court had granted the plaintiffs’ motion for summary judgment. See Wheeler, 157 S.W.3d at 442 (determining that Wheeler did not waive her arguments seeking to withdraw deemed admissions because she presented them for the first time in her motion for new trial). Thus, I agree that Maswoswe is entitled to receive a new trial, but for reasons different than those upon which the majority relies in its opinion. Therefore, I concur in the remedy only, not the court’s reasoning.


author: JAN P. PATTERSON, Justice.

text:
    TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant, v. Josue GARCIA, Appellee.
    No. 03-09-00394-CV.
    Court of Appeals of Texas, Austin.
    Dec. 7, 2010.

      Ana Marie Jordan, Assistant Attorney General, Law Enforcement Defense Division, Austin, TX, for Appellant.
    Kristin M. Etter, Sumpter & Gonzalez, LLP, Austin, TX, for Appellee.
    Before Justices PATTERSON, PURYEAR and HENSON.
   OPINION

JAN P. PATTERSON, Justice.

Appellant Texas Department of Public Safety appeals from a district court order in favor of Josué Garcia reversing the Department’s determination that Garcia was required to register as a sex offender for life pursuant to the Texas Sex Offender Registration Act (SORA). See generally Tex.Code Crim. Proc. Ann. arts. 62.001-.408 (West 2006 & West Supp.2010). In two issues, the Department complains that the district court erred (i) in determining that the Oregon statute under which Garcia was convicted is not substantially similar to a SORA offense and (ii) in considering the individual facts and circumstances of Garcia’s conviction in its determination. For the reasons that follow, we affirm the district court’s order.

FACTUAL AND PROCEDURAL BACKGROUND

In 2005, appellee Josué Garcia, who was 21 years old at the time, was charged with the offense of contributing to the sexual delinquency of a minor in Oregon. See Or.Rev.Stat. § 163.435 (2010). Under the Oregon statute, the age of consent is 18. Id. Garcia contends, and the Department does not dispute, that the victim was Garcia’s 17-year-old girlfriend and that the act forming the basis of the charge was consensual. Garcia pleaded guilty and was sentenced to 36 months probation. His probation was subsequently revoked, and he was sentenced to 180 days in jail with credit for time served.

In 2007, Garcia moved to Texas. Soon thereafter, the Department determined that Garcia was required to register as a sex offender annually for his lifetime based on the Department’s previous determination, pursuant to its statutory duty under articles 62.001 and 62.003 of the Texas Code of Criminal Procedure, that the elements of the Oregon statute under which Garcia was convicted are “substantially similar” to those of an offense identified as reportable under SORA. See id.; Tex.Code Crim. Proc. Ann. arts. 62.001(5)(H) (West Supp.2010), 62.003 (West 2006); see also Tex.Code Crim. Proc. Ann. art. 62.101 (West 2006) (lifetime registration unless exception applies). Pursuant to articles 62.004 and 62.053 of the code of criminal procedure, the Department then provided Garcia with notice of the requirement to register. See Tex.Code Crim. Proc. Ann. arts. 62.004, .053 (West Supp.2010).

In 2009, Garcia appealed the Department’s determination to the Travis County district court pursuant to article 62.003(c) of the code of criminal procedure. See id. art. 62.003(c). In his appeal, Garcia argued that the elements of the Oregon statute under which he was convicted are not substantially similar to the elements of section 22.011 of the Texas Penal Code and asked the district court to find that his prior conviction did not constitute a reportable conviction for purposes of sex offender registration under article 62.001(5)(H) of the code of criminal procedure. See id. art. 62.001(5)(H); Or.Rev. Stat. § 163.435; Tex. Penal Code Ann. § 22.011 (West Supp.2010).

At a hearing, the district court heard argument of counsel and considered Garcia’s evidence, which consisted of a copy of the Department’s sex offender registry entry for Garcia, section 163.435 of the Oregon Revised Statutes, and section 22.011 of the Texas Penal Code. The Department offered no evidence. Following the hearing, the district court entered an order finding that Garcia’s conviction under section 163.435 of the Oregon Revised Statutes is not a reportable conviction or adjudication under article 62.001(5)(H) of the Texas Code of Criminal Procedure in that it is not substantially similar to Texas Penal Code section 22.011. The court then ordered that Garcia’s conviction under Oregon Revised Statutes section 163.435 is not substantially similar to an offense under section 22.011 of the Texas Penal Code, that Garcia be relieved of the duty to register as a sex offender in Texas, and that the Department remove Garcia from its sex offender registry. This appeal followed.

ANALYSIS

In two issues, the Department complains that the district court erred (i) in determining that an offense under section 163.435 of the Oregon Revised Statutes is not substantially similar to an offense identified in SORA and (ii) in considering facts and circumstances of Garcia’s conviction. Because the Department complains that the district court erred in applying provisions of the code of criminal procedure, its issues involve matters of statutory construction, which we review de novo. See Texas Mun. Power Agency v. Public Util. Comm’n, 253 S.W.3d 184, 192 (Tex.2007). Our primary objective is to give effect to the legislature’s intent as expressed in the statute’s language. See Tex. Gov’t Code Ann. § 312.005 (West 2005); Galbraith Eng’g Consultants, Inc. v. Pochucha, 290 S.W.3d 863, 867 (Tex.2009). We rely on the plain meaning of the text unless a different meaning is supplied by legislative definition or is apparent from the context, or the plain meaning leads to absurd results. See City of Rockwall v. Hughes, 246 S.W.3d 621, 625-26 (Tex.2008). We determine legislative intent from the entire act, not from isolated portions. 20801, Inc. v. Parker, 249 S.W.3d 392, 396 (Tex.2008). We also presume that the legislature intended a just and reasonable result, see Tex. Gov’t Code Ann. § 311.021(3) (West 2005); Presidio Indep. Sch. Dist. v. Scott, 309 S.W.3d 927, 930 (Tex.2010), and we consider the consequences of a particular construction. See Tex. Gov’t Code Ann. § 311.023(5) (West 2005); Lexington Ins. Co. v. Strayhorn, 209 S.W.3d 83, 88 (Tex.2006).

The Texas Sex Offender Registration Act

The Texas Legislature enacted SORA in 1991, requiring persons convicted of certain “reportable” sex offenses to register with the local law enforcement authorities in the municipalities in which they reside. See Sex Offender Registration Act, 72d Leg., R.S., ch. 572, § 1, 1991 Tex. Gen. Laws 2029 (current version at Tex.Code Crim. Proc. Ann. arts. 62.001-408). The offense of sexual assault under section 22.011 of the penal code is listed in SORA as a reportable offense. See Tex.Code Crim. Proc. Ann. art. 62.001(5)(A); Tex. Penal Code Ann. § 22.011. In 1995, the legislature amended the definition of reportable offenses to include convictions “under the laws of another state for an offense containing elements that are substantially similar to the elements of an offense listed” in SORA as reportable. Act of May 19, 1995, 74th Leg., R.S., ch. 258, § 2, 1995 Tex. Gen. Laws 2197, 2197 (current version at Tex.Code Crim. Proc. Ann. art. 62.001(5)(H)). The statute does not define “substantially similar.” See Tex.Code Crim. Proc. Ann. art. 62.001. The Department is responsible for determining whether the elements of an out-of-state offense are substantially similar to the elements of a reportable SORA offense. See id. art. 62.003(a). Appeals of the Department’s determinations must be brought in district court in Travis County. Id. art. 62.003(c). As a matter of first impression, we consider whether section 163.435 of the Oregon Revised Statutes is substantially similar to an offense listed as reportable in SORA, pursuant to article 62.001(5)(H) of the Texas Code of Criminal Procedure, and whether the Department and reviewing courts may consider the facts and circumstances of the offender’s prior conviction in determining substantial similarity.

Substantial Similarity

In its first issue, the Department contends that the elements of the Oregon statute under which Garcia was convicted are substantially similar to the elements of two SORA offenses, sexual assault under section 22.011 of the penal code and sexual performance by a child under section 43.25 of the penal code. See Or.Rev.Stat. § 163.435; Tex. Penal Code Ann. § 22.011, § 43.25 (West Supp.2010). The record shows, however, that Garcia appealed only the Department’s determination of substantial similarity between the Oregon statute and section 22.011 of the Texas Penal Code and the Department defended that determination only. The Department offered no evidence of any determination it made of substantial similarity between the Oregon statute and either section 22.011 or section 43.25 of the penal code. The Department’s notice to Garcia does not identify the offense or offenses for which Garcia is required to register; in fact, the space in the notice for stating the “Registering Offense (Penal Code)” is blank. Thus, the record shows that section 22.011 of the penal code was the only Texas statute contained in the pleadings, offered into evidence, addressed by either party at the hearing, or ruled on by the district court.

The Department argues that its assertion on appeal that the Oregon statute is similar to a second SORA offense is not a new argument but an additional example of the same legal theory. We disagree. The district court did not consider or make a determination regarding substantial similarity between the Oregon statute in issue and section 43.25 of the Texas Penal Code, and we cannot reverse the district court on an issue not brought before it. The Department has waived the argument that section 163.435 of the Revised Oregon Statutes is substantially similar to section 43.25 of the penal code by not raising it in the district court. See Dreyer v. Greene, 871 S.W.2d 697, 698 (Tex.1993) (“As a rule, a claim ... must have been asserted in the trial court in order to be raised on appeal.”); see also Tex.R.App. P. 33.1; In re A.S., 298 S.W.3d 834, 836-37 (Tex.App.Amarillo 2009, no pet.) (party waived reliance on additional provision of family code by not mentioning provision to trial court).

We turn, then, to the Department’s contention that the trial court erred in finding that the Oregon statute under which Garcia was convicted is not substantially similar to section 22.011 of the Texas Penal Code. Section 163.435 of the Oregon Revised Statutes provides in relevant part as follows:

(1) A person 18 years of age or older commits the crime of contributing to the sexual delinquency of a minor if:
(a) Being a male, he engages in sexual intercourse with a female under 18 years of age.

Or.Rev.Stat. § 163.435.

Section 22.011 of the Texas Penal Code provides in relevant part as follows:

(a) A person commits an offense if the person:
(2) intentionally or knowingly:
(A) causes the penetration of the anus or sexual organ of a child by any means;
(B) causes the penetration of the mouth of a child by the sexual organ of the actor;
(C) causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor;
(D) causes the anus of a child to contact the mouth, anus, or sexual organ of another person, including the actor; or
(E) causes the mouth of a child to contact the anus or sexual organ of another person, including the actor.
(c) In this section:
(1) “Child” means a person younger than 17 years of age.

Tex. Penal Code Ann. § 22.011.

In asserting that the Oregon crime is not sufficiently like the Texas crime of sexual assault to meet the “substantial similarity” inquiry, Garcia focuses on the maximum victim age designations in the two offenses. While the Oregon offense criminalizes sexual conduct with persons under the age of 18, the Texas .provision applies only to sexual conduct with persons under the age of 17. See Or.Rev.Stat. § 163.485(l)(a); Tex. Penal Code Ann. § 22.011(c)(1). Thus, it is possible to violate the Oregon statute with a person less than 18 years of age without violating the Texas statute. Garcia argues that, because the crime he was convicted of in Oregon would not have been a crime in Texas, the Oregon offense does not contain elements that are substantially similar to a Texas “offense” under article 62.001(5)(H) of the code of criminal procedure. See Or.Rev.Stat. § 163.435(l)(a); Tex. Penal Code Ann. § 22.011(c)(1); Tex.Code Crim. Proc. Ann. § 62.001(5)(H).

In support of this argument, Garcia cites cases interpreting section 12.42 of the Texas Penal Code, which contains language parallel to that in article 62.001(5)(H) of the code of criminal procedure. See Tex. Penal Code Ann. § 12.42 (West Supp. 2010). Section 12.42(c)(2)(B)(v) provides for enhanced sentencing if a defendant has previously been convicted of a crime “under the laws of another state containing elements that are substantially similar to the elements of’ certain listed offenses. See id. § 12.42(c)(2)(B)(v). In particular, Garcia relies on language in Prudholm v. State, 274 S.W.3d 236 (Tex.App.-Houston [1st Dist.] 2008, pet. ref'd). In Prudholm, the court of appeals commented on Ex parte White, 211 S.W.3d 316, 318 (Tex.Crim.App.2007), in which the court of criminal appeals held that elements of a Delaware statute were substantially similar to a Texas statute. Prudholm, 274 S.W.3d at 240. The Prudholm court observed that, although “[t]he Court of Criminal Appeals did not emphasize the point, ... it is significant that a person guilty of the Delaware law would also be guilty under the Texas law.” Id. Applying this reasoning to the facts of his conviction, Garcia contends that because he could not have been prosecuted in Texas, the two offenses are not substantially similar.

The Department contends that its statutory duty is to look only to the elements of the offenses and that, based strictly on the elements of each offense, the Oregon offense in issue is substantially similar to the Texas crime of sexual assault under section 22.011 of the penal code. Although acknowledging that the Oregon statute includes 17-year-old victims while the Texas statute does not, the Department argues that both statutes identify victims up to 16 years of age, making them substantially similar. The Department also argues that section 12.42 of the penal code is criminal and punitive in nature, while SORA is intended to accomplish the goals of notification and protection of the public, and that consequently the rationales and holdings of the cases applying section 12.42 are inapplicable. The Department further contends that SORA does not authorize an appeal to challenge the appropriateness of a determination of substantial similarity on a case by ease basis and that this Court must look only to the elements of each law without considering the facts and circumstances of Garcia’s conviction.

We are not fully persuaded by the reasoning of either party. While we agree with the Department that the cases interpreting penal code section 12.42 are not controlling, we find the language in Prudholm instructive. Reaching the inverse of the Prudholm court’s conclusion, we find it significant that a person guilty of section 163.435 of the Oregon Revised Statutes may not be guilty under section 22.011 of the Texas Penal Code. See id.; Or.Rev.Stat. § 168.435; Tex. Penal Code § 22.011. Thus, we cannot agree with the Department that its inquiry, and ours, are limited to the elements of the offenses as set forth in the statutes and that neither the Department nor we can consider the facts and circumstances of Garcia’s foreign conviction. On the other hand, although we agree with Garcia that the facts and circumstances of his conviction should be considered, we do not believe that such an inquiry is called for in all cases involving a conviction under section 163.435 of the Oregon Revised Statutes.

To construe the relevant provisions of the code of criminal procedure to require a person whose conduct does not constitute criminal behavior in this state to register as a sex offender for life would yield an unjust and unreasonable result— one we presume the legislature did not intend. See Hernandez v. Ebrom, 289 S.W.3d 316, 321 (Tex.2009) (citing Tex. Gov’t Code Ann. § 311.021(3)). We may not subject a citizen to an interpretation that would yield that result until the legislature has spoken with a clear voice. Rather, presuming that a just and reasonable result is intended, see Tex. Gov’t Code Ann. § 311.021(3); Presidio Indep. Sch. Dist., 309 S.W.3d at 930, and considering the consequences of the Department’s construction, see Tex. Gov’t Code Ann. § 311.023(5); Lexington, 209 S.W.3d at 88, we conclude that the “substantially similar” test in article 62.001(5)(H) of the code of criminal procedure requires registration whenever an individual is convicted of criminal conduct in a foreign jurisdiction that, if committed in Texas, would have amounted to a registerable “offense.”

This construction necessarily requires that the Department compare the elements of the out-of-state offense with the analogous Texas offense to identify points of overlap. When the Department finds that the offenses cover the same conduct, the analysis need proceed no further because it will be evident that the foreign conviction is substantially similar to the Texas offense for SORA purposes. However, in circumstances in which the offenses overlap but the foreign offense also criminalizes conduct that is not covered under the Texas offense, the Department must review the conduct underlying the foreign conviction to determine if that conduct is, in fact, within the scope of the Texas offense. If it is, then the foreign conviction is a registerable offense under SORA’s substantially similar test.

In this case, comparison of the elements of the two offenses reveals that there is significant overlap between the activity covered by the Oregon statute concerning contributing to the sexual delinquency of a minor and the conduct that is criminalized in the analogous Texas offense. However, because the Oregon statute covers some activity — sexual conduct with persons aged 17 — not encompassed in the Texas offense, review of the conduct underlying Garcia’s Oregon conviction is necessary. Here, it is undisputed that Garcia engaged in consensual sexual conduct with his 17-year-old girlfriend and therefore engaged in conduct that was criminal under the Oregon statute, but not under the Texas statute. Therefore, Garcia’s conviction is not a reportable or regis-terable offense under SORA, and the district court did not err in finding that the Oregon and Texas statutes are not substantially similar and in relieving Garcia of the duty to register. We overrule the Department’s first issue.

Consideration of Facts Particular to Garcia’s Offense

In its second issue, the Department complains that the district court erred when or to the extent it considered the facts particular to Garcia’s offense. We find no evidence in the record, and the Department cites none, showing that the district court took into account the facts and circumstances of Garcia’s Oregon conviction. However, in light of our holding, even if the record showed that the district court did consider the facts particular to Garcia’s offense, we would conclude that it was not error to do so. We overrule the Department’s second issue.

CONCLUSION

Having overruled both of the Department’s issues, we affirm the order of the district court.

      . The parties dispute whether Garcia’s conviction required him to register as a sex offender in Oregon. Garcia argues that, under sections 181.830 and 181.832 of the Oregon Revised Statutes, on the facts of his case, he was not required to register unless the state proved he did not meet eligibility requirements for nonregistration or Garcia and the district attorney stipulated he was required to report. See Or.Rev.Stat. §§ 181.830, .832 (2010). The Department contends that section 181.830, which provides that persons otherwise required to register are not required to do so if they meet certain eligibility requirements, does not apply to Garcia because his conviction preceded the effective date of the section. The Department further contends that, even if section 181.830 applies, Garcia was required to register unless the court made certain findings, and there is "no reliable evidence in this record demonstrating that those necessary findings could not have been made.” See id. §§ 181.830, .832, .833.
      We disagree with the Department's contention that section 181.830 does not apply to Garcia. See id. § 181.830 (person currently reporting no longer required to report if certain conditions met). Moreover, under our reading of sections 181.830, 181.832, and 181.833, Garcia had the burden to seek relief from the duty to register, the state had the duty to prove he did not meet the eligibility requirements, and the court was required to grant the relief unless the state proved Garcia did not meet the eligibility requirements or he and the district attorney stipulated he was required to report. See id. §§ 181.830, .832, .833. However, neither party produced any evidence regarding registration in Oregon. Had Garcia shown at the hearing that he was not required to register in Oregon, the Department's determination would create the anomalous situation in which a defendant was required to register in Texas for a conviction that was neither registerable in Oregon nor an "offense” here, creating an extraordinary burden on the defendant in addition to a criminal conviction. Because the record is silent as to whether Garcia met the eligibility requirements or requested relief from registration or whether any such relief was granted, however, we do not consider this factor.

      . We also note that the majority of courts that have found substantial similarity under section 12.42 of the Texas Penal Code have done so when the conduct forming the basis of the foreign conviction would also be a crime in Texas. See Tex. Penal Code Ann. § 12.42(c)(2) (B) (v) (West Supp.2010). At least one other court interpreting section 12.42 expressly noted that the conduct giving rise to the foreign conviction would also have been a crime in Texas. See Hulsey v. State, No. 06-03-00122-CR, 2004 WL 2002579, at *3, 2004 Tex.App. LEXIS 8180, at *7 (Tex.App.-Texarkana Sept. 9, 2004, pet. ref’d) (mem.op.) ("We hold this description [of the conduct] is sufficient to demonstrate that the Arkansas offense was substantially similar to the Texas offense of sexual assault — and that it could have been charged as sexual assault if committed in Texas.”).
      Other courts have implicitly based their holdings, at least in part, on the fact that the conduct in question would be criminal in Texas. See Ex parte White, 211 S.W.3d 316, 318 (Tex.Crim.App.2007) (offenses substantially similar where age of consent 16 under foreign statute and 17 under Texas statute); Cross v. State, 114 S.W.3d 92, 100 (Tex.App.-Eastland 2003), aff'd in part & rev’d in part on other grounds, 144 S.W.3d 521 (Tex.Crim.App.2004) (facts included unlawful entering and physical force, and age of victim not in issue); Hughes v. State, No. 04-08-00864-CR, 2009 WL 4139231, at *1-2, 2009 Tex.App. LEXIS 9062, at *5-6 (Tex.App.-San Antonio Nov. 25, 2009, pet. ref'd) (mem.op.) (offenses substantially similar where age of consent 12 under foreign statute and 17 under Texas statute); Randolph v. State, No. 06-08-00058-CR, 2008 WL 5058597, at *1-2, 2008 Tex.App. LEXIS 8923, at *4-5 (Tex.App.-Texarkana Dec. 2, 2008, pet. ref’d) (mem.op.) (offenses substantially similar where age of consent 13 under foreign statute and 14 under Texas statute); White v. State, No. 02-02-00143-CR, 2003 WL 865351, at *3-4, 2003 Tex.App. LEXIS 2033, at *10 (Tex.App.-Fort Worth Mar. 6, 2003, no pet.) (mem.op.) (upholding trial court’s determination of substantial similarity where age of consent 16 under foreign statute and 17 under Texas statute). We have found no cases interpreting section 12.42 of the penal code, and the parties have pointed us to none, in which a foreign offense was determined to be substantially similar to a Texas offense when the conduct forming the basis of the foreign conviction would not constitute a crime in this state.

      . The Department contends that it “would be impossible without a full blown due process hearing” to consider the individual facts and circumstances of any given case because often the factual allegations, including the age of the victim, are not verifiable from the face of the judgment and the Department must then rely on the offender’s representations. However, there is nothing to preclude the Department from contacting authorities in the state in which the conviction was obtained and/or obtaining additional documents to determine any missing relevant facts, and in light of the onerous burden of lifetime registration as a sex offender, such an effort on the part of the Department would seem appropriate. We do not find this argument persuasive.

      . The Department contends that it relied on Garcia’s verbal report as to the age of the victim, which may not be reliable, and that it did not and does not dispute the age of the victim because it is irrelevant to the outcome of this case. Nonetheless, the Department relied on Garcia's statement, cited the age Garcia provided in its sex offender registry, did not dispute the victim's age in the district court proceeding, and does not now dispute it. Thus, the record reflects that the victim was 17 years old.