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    Olga (Chapa) VILLARREAL and Isreal Chapa, Appellants, v. WELLS FARGO BROKERAGE SERVICES, LLC, Wells Fargo Investments, LLC, and Charles J. Lewis, Jr., Appellees.
    No. 01-08-00258-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    March 11, 2010.

      Leonard J. Meyer, Leslie K. Hillendahl, Zimmerman, Axelrad, Meyer, Stern & Wise, P.C., Houston, TX, for Appellants.
    Lindsey Eubank Simmons, Joyce McFarland & McFarland LLP, Yasmin Islam Atasi, Winstead PC, Houston, TX, Michael L. Scanes, Scanes, Routh & James, LLP, Waco, TX, for Appellees.
    Panel consists of Chief Justice RADACK and Justices ALCALA and HIGLEY.
   OPINION

LAURA CARTER HIGLEY, Justice.

In this appeal, plaintiffs/appellants, Olga (Chapa) Villarreal and Israel Chapa, present three issues challenging the trial court’s order granting summary judgment in favor of defendants/appellees, Wells Fargo Brokerage Services, LLC, Wells Fargo Investments, LLC (collectively, “Wells Fargo”), and Charles J. Lewis, Jr.

We affirm in part and reverse in part.

Factual & Procedural Background

Pete David Chapa (“Mr. Chapa”) developed silicosis after working at a glass plant for 20 years. Mr. Chapa filed suit based on his silicosis injuries and obtained a settlement for $650,000. The settlement funded shortly after his death in February 1997. As directed by Mr. Chapa, the settlement funds were placed in a testamentary trust for the benefit of his two adult children, Olga (Chapa) Villarreal and Israel Chapa (collectively, “the Chapas”). Mr. Chapa named a family friend, Ramiro Pena, Jr. (“Pena”), to act as trustee.

Pena opened a non-diseretionary brokerage account with investment broker Charles J. Lewis, Jr. (“Lewis”) at Wells Fargo. Pena deposited $634,000 into the account on May 19, 1997. In August 1997, Pena began margin trading with the account’s funds. Pena signed a margin trading agreement with Wells Fargo. The agreement explained that margin trading allowed Pena to borrow money from Wells Fargo and that such loans were secured by the brokerage account’s assets.

In late 1999 and early 2000, Pena authorized Wells Fargo to invest the account’s funds in technology mutual funds. From December 31, 1999 to January 31, 2001, the value of the brokerage account went from $653,214.87 to $361,538.98.

Pena closed the brokerage account with Wells Fargo on November 1, 2001. Pena then invested the funds with Jubilee Investments.

On June 21, 2005, Israel Chapa’s attorney sent a letter to Pena regarding the trust’s assets. The letter indicated that the beneficiaries had never received an accounting of the trust’s funds, but had received only “a few general comments about some money being lost in investments.” The letter also stated that Israel had stopped receiving monthly payments from the trust and had been told by Pena that the money was “tied up” in Jubilee Investments. Israel’s counsel demanded that Pena provide an accounting of the trust’s assets since its creation. Pena provided information to the beneficiaries, but not until six months after receiving Israel’s request.

The Chapas filed suit against Pena, Wells Fargo, and the principals of Jubilee Investments on August 17, 2006. The Chapas alleged that Pena breached his fiduciary duty as trustee by failing to properly invest, manage, and preserve the trust’s assets. The Chapas also alleged that Pena breached his fiduciary duty by failing to “institute[ ] legal action” against Wells Fargo and by failing to fully disclose “material facts” to the Chapas regarding the losses sustained by the trust.

The Chapas also alleged that Wells Fargo owed a fiduciary duty to Pena in his capacity as trustee of the testamentary trust and, by extension, to them as beneficiaries of the trust. The Chapas asserted that Wells Fargo, through the acts of its employee, investment broker Charles Lewis, had breached that duty by advising Pena to make “unsuitable” high-risk investments with the trust’s funds, despite Pena’s request that the funds be placed in low-risk investments. Specifically, the Chapas identified the technology mutual funds and the margin trading as “unsuitable” investments for the trust’s assets. The Chapas claimed that, when Pena had questioned Lewis about the suitability of these investments, Lewis had continually assured him that they were suitable investments for the trust’s funds.

Besides breach of fiduciary duty, the Chapas also sued Wells Fargo for breach of the duty of good faith and fair dealing, negligent misrepresentation, negligence, and violations of the Deceptive Trade Practices Act and the Texas Securities Act. In addition, the Chapas set forth a cause of action against Wells Fargo for assisting Pena in breaching his fiduciary duty to the Chapas.

In their petition, the Chapas further asserted that Wells Fargo was vicariously liable for Lewis’s acts based on respondeat superior and based on a “negligent failure to supervise.” The Chapas also alleged that the discovery rule and “fraudulent concealment” had served to toll the statute of limitations on their claims.

After the Chapas filed their third amended petition, Pena filed a motion to designate Lewis as a “responsible third party” pursuant to Civil Practices and Remedies Code section 33.004. The Cha-pas also filed a motion to join Lewis as a defendant based on section 33.004(e). After the trial court granted the motion to join, the Chapas filed their fourth amended petition, adding Lewis as a defendant. The Chapas asserted the same causes action against Lewis as they had previously asserted against Wells Fargo. The Cha-pas also added a cause of action for fraud against Wells Fargo and Lewis.

Wells Fargo and Lewis filed a “traditional” rule 166a(c) motion for summary judgment against the Chapas. The summary judgment movants asserted, “as a threshold matter,” that they did not owe an independent fiduciary duty to the Cha-pas because Pena was the account holder, not the Chapas.

Wells Fargo and Lewis asserted the affirmative defense of limitations as the primary basis for summary judgment. They argued that the applicable statutes of limitation had expired on all of the Chapas’ causes of action. Wells Fargo and Lewis contended that the discovery rule and fraudulent concealment did not operate to toll the various limitations periods.

The summary judgment movants asserted that, because the Chapas’ alleged injuries were not “inherently undiscoverable,” the discovery rule did not apply to toll the statutes of limitation. Wells Fargo and Lewis acknowledged Pena’s deposition testimony in which he testified that he was unaware that investing in technology mutual funds or margin trading were not “suitable” investments for the trust’s assets until he consulted an attorney in 2005 after receiving the Chapas’ demand letter requesting an accounting for the trust. Wells Fargo and Lewis averred that Pena’s claim was “misplaced.” The mov-ants asserted, “[A]ny injury or wrongdoing caused by Wells Fargo or Lewis was clearly evident on the face of the bank statements, which showed all activity in the margin account, the funds in which the account was invested, and gains and losses to the account.”

To support this assertion, Wells Fargo and Lewis offered, as evidence, monthly and quarterly account statements received by Pena from December 1999 through January 2001. The statements show a noticeable decline in the brokerage account’s funds. They also offered a document signed by Pena on December 4, 2000, which directed Wells Fargo to transfer funds from Internet and technology mutual funds into a “unit investment trust” that had “greater diversification and less overall volatility.” The movants pointed to the monthly account statement following this transaction, which reflected that proceeds from this sale had been used to pay monies owed on the margin account balance.

With regard to fraudulent concealment, Wells Fargo and Lewis argued that nothing had been concealed from Pena. They again pointed to the monthly and quarterly statements received by Pena, which showed the decline in the brokerage account’s value.

Wells Fargo and Lewis argued that “any claims Pena may have had against Wells Fargo or Lewis accrued in 2000 when Pena received the monthly statements and quarterly reports reflecting the losses in technology funds, and certainly no later than December 4, 2000, when Pena decided to move the brokerage account investments out of the technology funds into more conservative investments, as a result of the losses.” Wells Fargo and Lewis concluded that the Chapas’ claims first asserted in their August 17, 2006 lawsuit were “barred by the statutes of limitations, as the longest period for any cause of action they allege is four years.”

The Chapas responded to the motion for summary judgment by first clarifying that they, as the trust’s beneficiaries, had the legal right to pursue claims on behalf of the trust which the trustee, Pena, had not pursued. The Chapas also reminded Wells Fargo and Lewis that they had asserted a claim against both defendants for assisting Pena in breaching his fiduciary duty as trustee to the Chapas.

The Chapas reasserted their claim that the discovery rule tolled the running of limitations. They argued that “a fiduciary’s misconduct is inherently undiscovera-ble.” The Chapas again pointed out that Pena, as trustee, owed them a fiduciary duty. They asserted, “Pena actively concealed from them the fact and extent of the injury they suffered through the misfeasance of Lewis.” They continued, “Plaintiffs have established that they did not learn of their injury until December 2005 when [Pena] finally provided an accounting to the Plaintiffs.”

In their summary judgment response, the Chapas also reasserted their claim that “the various statutes of limitations are tolled due to fraudulent concealment.” They asserted that they had “produced evidence of a breach of trust/breach of fiduciary duty by Lewis, Wells Fargo, and [Pena] in picking out investments for the trust that were prima facie unsuitable.” The Chapas argued that the defendants “knew of the tort, but used deception to conceal the tort.” They further asserted that “a fiduciary has an affirmative duty to disclose material facts to the beneficiaries and a breach of the duty to disclose is tantamount to concealment.” The Chapas averred that Pena had “failed to provide periodic statements regarding the trusts to Plaintiffs and did not disclose the losses occasioned by Lewis’s negligence until long after they occurred.” They asserted that they had “relied on Lewis’s and Pena’s deception to their detriment.” For these reasons, the Chapas concluded, “[T]he applicable statute of limitations for the various causes of action were tolled during the time that the losses were fraudulently concealed.”

In their motion for summary judgment, Wells Fargo and Lewis also argued that Lewis could not properly be joined pursuant to Civil Practice and Remedies Code section 38.004. The movants acknowledged that section 33.004 provides that a claimant (plaintiff) is not barred by limitations from seeking to join a responsible third party within 60 days after that person is designated as a responsible third party.

Wells Fargo and Lewis argued that the Chapas should not be permitted to join Lewis because such joinder was a “fraudulent” attempt to avoid limitations. They alleged that the Chapas and Pena had conspired to circumvent limitations.

Wells Fargo and Lewis also argued that allowing joinder of a defendant against whom limitations had run before the lawsuit was initially filed would be an “absurd result” and a “nonsensical” interpretation of the statute.

The movants also asserted that section 33.004 did not apply to those causes of action asserted by the Chapas for which limitations had expired prior to the section’s effective date. Wells Fargo and Lewis further asserted that section 33.004 did not apply to certain statutory claims asserted by the Chapas.

The Chapas responded that the plain language of section 33.004(e) permitted their joinder of Lewis and appeared to “contemplate[ ] the very issue of bringing in a person who limitations may have run against.” The Chapas further asserted that Wells Fargo was “liable under the doctrine of respondeat superior to the extent that [Lewis] is found liable.”

Wells Fargo and Lewis filed a reply to the Chapas’ summary judgment response. In addition to reasserting their initial summary judgment arguments, the summary judgment movants pointed out that, in their response, the Chapas “do not dispute that they stand in the shoes of Pena, the trustee, for purposes of their claims.” Wells Fargo and Lewis agreed that the Chapas could assert claims based on their status as beneficiaries of the testamentary trust. But, they disagreed that the Cha-pas had “individual claims against Wells Fargo and Lewis.” They asserted, “Plaintiffs stand in the trustee’s shoes, and Plaintiffs’ limitations period is computed from the time the trustee acquired his right to sue.”

In their reply, Wells Fargo and Lewis also asserted, “[sjection 33.004 was clearly not intended to allow for the collusive join-der of an employee of a previously-named defendant where, as here, the claims against the employee and employer are one and the same, and the employee was known to the parties all along, and Plaintiffs made a conscious decision not to sue the employee at the outset.” They further alleged that, even assuming that Lewis was properly joined, section 33.004 does not operate to “revive” time-barred claims against Wells Fargo “by virtue of respon-deat superior.”

In addition to their traditional motion for summary judgment, Wells Fargo and Lewis also asserted a no-evidence motion for summary judgment with respect to one of the Chapas’ causes of action: the Cha-pas’ claim that Wells Fargo and Lewis had participated or assisted in Pena’s breach of his fiduciary duty as trustee to the Chapas. Specifically, Wells Fargo and Lewis asserted that the Chapas could produce no evidence that Wells Fargo’s and Lewis’s conduct breached a duty to the Chapas.

The trial court granted Wells Fargo’s and Lewis’s motion for summary judgment. In its order, the trial court specified that “all claims asserted by Plaintiffs [the Chapas] against Wells Fargo and Lewis are barred by the statutes of limitations.” The trial court ordered that all of the Chapas’ claims against Wells Fargo and Lewis “are hereby dismissed with prejudice, and Plaintiffs shall take nothing by reason of those claims.” The trial court then granted the movants’ motion to sever, making the summary judgment order final for purposes of appeal.

The Chapas appealed. They present three issues challenging the summary judgment order. In their first two issues, the Chapas contend that summary judgment was not proper based on limitations. In their third issue, the Chapas assert that summary judgment could not be based on the ground that there was no evidence to support their claim that Wells Fargo and Lewis participated or assisted Pena in breaching his fiduciary duty.

Summary Judgment Based on Limitations

In their first and second issues, the Cha-pas contend that the trial court erred by granting summary judgment because Wells Fargo and Lewis failed to prove, as a matter of law, that limitations bar the Chapas’ claims, which they assert as trust beneficiaries on behalf of the trustee. On appeal, the Chapas contend that a genuine issue of material fact exists regarding whether the discovery rule deferred the accrual of these causes of action.

A. Legal Principles: Traditional Summary Judgment and Limitations

Because summary judgment is a question of law, a trial court’s summaiy judgment decision is reviewed de novo. See Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005). In our review, we take the nonmovant’s competent evidence as true, indulge every reasonable inference in favor of the nonmovant, and resolve all doubts in favor of the nonmov-ant. Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex.2005). To prevail on a “traditional” summary-judgment motion asserted under Rule 166a(e), a movant must prove that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law. See Tex.R. Civ. P. 166a(c); Little v. Texas Dep’t of Criminal Justice, 148 S.W.3d 374, 381 (Tex.2004).

A defendant moving for summary judgment on the affirmative defense of limitations must conclusively establish the date on which the limitations commenced; that is, the date on which the cause of action accrued. See Pustejovsky v. Rapid-American Coup., 35 S.W.3d 643, 646 (Tex.2000); Zale Corp. v. Rosenbaum, 520 S.W.2d 889, 891 (Tex.1975). The determination of this date is typically a question of law. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 221 (Tex.2003).

As a general rule, a cause of action accrues, and the statute of limitations begins to run, when facts come into existence that authorize a party to seek a judicial remedy. Id. (citing Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 514 (Tex.1998)). In most eases, claims accrue “when a wrongful act causes some legal injury.” Via Net v. TIG Ins. Co., 211 S.W.3d 310, 313 (Tex. 2006). This is true even if the fact of injury is not discovered until later, and even if all resulting damages have not yet occurred. Knott, 128 S.W.3d at 221 (citing S.F v. R.V., 933 S.W.2d 1, 4 (Tex.1996)).

The discovery rule defers the accrual of a cause of action until the plaintiff knows, or by exercising reasonable diligence, should know of the facts giving rise to the claim. Barker v. Eckman, 213 S.W.3d 306, 311-12 (Tex.2006). For the discovery rule to apply, the injury must be inherently undiscoverable and objectively verifiable. Id. at 312; Via Net, 211 S.W.3d at 313.

If the plaintiff pleads the discovery role as an exception to limitations, the moving defendant then has the dual burden of proving the date of accrual and of negating the discovery-rule exception. See Envtl. Procedures, Inc. v. Guidry, 282 S.W.3d 602, 622 (Tex.App.-Houston [14th Dist.] 2009, pet. denied). The defendant may negate the exception by proving, as a matter of law, that no genuine issue of material fact exists regarding when the plaintiff discovered, or in the exercise of reasonable diligence should have discovered, the wrongful act and resulting injury. See KPMG Peat Marwick v. Hamson County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex.1999); see also Childs v. Haus-secker, 974 S.W.2d 31, 37 (Tex.1998). If the movant establishes that limitations bars the action, the nonmovant must then adduce summary judgment proof raising a fact issue to avoid limitations. KPMG Peat Marwick, 988 S.W.2d at 748.

B. Analysis of Whether Limitations had Expired

In Interfirst Bankr-Houston, N.A. v. Quintana Petroleum Corporation, we explained,

It is only when the trustee cannot or will not enforce the cause of action that he has against the third person that the beneficiary is allowed to enforce it. In such a case, the beneficiary is not acting on a cause of action vested in him, but is acting for the trustee, and the period of the statute of limitations should be computed from the time the trustee acquired his right to sue.

699 S.W.2d 864, 874 (Tex.App.-Houston [1st Dist.] 1985, writ ref d n.r.e.).

In this case, the Chapas asserted their claims against Wells Fargo and Lewis for breach of fiduciary duty, breach of the duty of good faith and fair dealing, negligent misrepresentation, negligence, fraud, and for statutory violations, as trust beneficiaries on behalf of the trustee. See id. The parties agree that the limitations periods for these claims began to run when Pena, as trustee, acquired his right to sue. See id. As a result, Wells Fargo and Lewis had to show that no genuine issue of material fact exists regarding when Pena, not the Chapas, discovered, or in the exercise of reasonable diligence should have discovered, the wrongful act and resulting injury. See id. Indeed, all of the arguments and evidence offered by Wells Fargo and Lewis related to Pena’s knowledge, not the Chapas’ knowledge.

The Chapas allege that Lewis owed a fiduciary duty to Pena to correctly advise him regarding suitable investments for the testamentary trust funds. The Chapas allege that Lewis breached this duty when he directed Pena to engage in margin trading and invest in high-risk technology mutual funds.

The Chapas correctly point out that when analyzing the applicability of the discovery rule in cases in which the alleged injuries arise from a breach of fiduciary duty, the claims are generally considered inherently undiscoverable. See S.V., 933 S.W.2d at 8; Computer Assocs. Int’l, Inc. v. Altai, Inc., 918 S.W.2d 453, 456 (Tex.1996). Nonetheless, once the fiduciary’s misconduct becomes apparent, the claimant cannot ignore it, regardless of the fiduciary nature of the relationship. See S.V., 933 S.W.2d at 8; see also Computer Assocs., 918 S.W.2d at 456. In other words, such claims accrue when the claimant knows or in the exercise of ordinary diligence should know of the wrongful act and resulting injury. See Murphy v. Campbell, 964 S.W.2d 265, 271 (Tex.1997). The date that a claimant knew or should have known of an injury is generally a fact question. See Childs, 974 S.W.2d at 44. However, if reasonable minds could not differ about the conclusion to be drawn from the facts in the record, the start of the limitations period may be determined as a matter of law. See id.

Here, Wells Fargo and Lewis offered evidence to show that, on December 4, 2000, Pena knew, or should have known, the risky and “unsuitable” nature of the subject investments and of the injury to the trust. To support summary judgment, the movants offered the monthly and quarterly statements received by Pena from December 1999 through January 2001. The statements show that from December 31,1999 to November 30, 2000 the value of the brokerage account declined from $653,214.87 to $433,202.86. In the month of November 2000, the account lost $152,886.26. The statement dated December 29, 2000 indicates that account funds were used to pay for losses sustained due to margin trading.

The movants offered Pena’s deposition testimony in which Pena admitted that he was aware that the losses to the brokerage account resulted from the investments in the technology mutual funds. Pena acknowledged that he decided to take the brokerage account’s funds out of the technology sector investments in December 2000 because he knew that the account had sustained losses from the technology investments.

The movants also offered the “Client Investment Replacement Authorization” form signed by Pena on December 4, 2000. In the form, Pena directed that the brokerage account’s funds “exit” from the technology mutual funds and be invested in a “unit investment trust.” The handwritten notation on the form indicates that the “reason for [the] change” was as follows: “Diversify from internet sector/technology funds into UIT with greater diversification and less overall volatility.”

By the hand-written notation, the Client Investment Replacement Authorization form indicates that Pena was aware that the technology investments were, as the Chapas allege, not “suitable” investments for the trust fund’s assets because of their volatility. Pena was also aware that the trust’s corpus had sustained substantial losses caused by investment in the technology mutual funds. And he was aware that margin trading was also depleting the trust fund’s assets.

Pena’s awareness of these facts, at a minimum, would have caused a reasonably prudent trustee to further inquire into Lewis’s conduct. Even assuming a fiduciary relationship between Pena and Lewis, Pena could not simply sit back and ignore the very facts that the Chapas now, acting on his behalf, claim afford them a judicial remedy.

Based on the summary judgment.proof offered, Wells Fargo and Lewis conclusively established that Pena knew, or should have known of Lewis’s alleged wrongdoing, and of the resulting injury, on December 4, 2000. See Murphy, 964 S.W.2d at 271; S.F., 933 S.W.2d at 8; Computer Assocs., 918 S.W.2d at 456; see also Freuden v. Hibernia Nat. Bank, No. 09-08-00398-CV, 2009 WL 2045158, at *3 (Tex.App.-Beaumont July 16, 2009, pet. denied) (mem.op.). This is true even when the evidence is viewed in favor of the Chapas. Thus, Wells Fargo and Lewis conclusively proved that the Chapas’ causes of action brought on behalf of Pena accrued on December 4, 2000.

On appeal, the Chapas point to record evidence to show that, when viewed in the light most favorable to them, a genuine issue of material fact exists regarding when their causes of action accrued. The Chapas rely on Pena’s testimony that he did not realize that the trust’s funds had not been suitably invested until December 2005, when Pena consulted an attorney to respond to the Chapas’ demand for an accounting of the trust.

The Chapas also point to evidence that Pena was inexperienced as a trustee and as an investor. Pena testified that he told Lewis that he did not want to place the trust’s funds in any risky investments. He stated that Lewis had assured him that the funds would be not be put at risk. Pena testified that, when he questioned Lewis regarding the losses in the account, Lewis reassured him that the investments were suitable. In their brief, the Chapas point to testimony that Lewis had “crafted the investment strategy specific for the Trust to achieve ‘preservation’ of the principal for the benefit of the Chapas as beneficiaries, all the while knowing that Pena was relying on his expert advice as a ‘certified financial planner.’ ” The Chapas also cite testimony that, on one occasion, “Lewis made the decision to sell stock out of the Trust account to reduce the amount of margin without seeking the approval of Pena or even notifying him of such sale until after the fact.”

Here, the monthly account statements, coupled with the Client Investment Replacement Authorization, shows that, on' December 4, 2000, Pena had an affirmative awareness of the losses sustained by the trust’s assets and of the cause of that loss. When viewed in their favor, the evidence cited by the Chapas may raise a fact issue regarding whether Pena knew, or should have known, of the alleged unsuitable nature of the investments before December 4, 2000, given the claimed fiduciary relationship between Lewis and Pena. The evidence cited by the Chapas may also be relevant to the underlying merits of their claims. But, such evidence does not raise a genuine issue of material fact regarding whether Pena knew, or should have known, of Lewis’s alleged wrongdoing and of the resulting .injury on December 4, 2000.

Viewing the evidence in the light most favorable to the Chapas, Wells Fargo and Lewis established that Pena knew, or should have known, of Lewis’s alleged wrongdoing and of the resulting injury on December 4, 2000. See Murphy, 964 S.W.2d at 271; S.V., 933 S.W.2d at 8; Computer Assocs., 918 S.W.2d at 456. Accordingly, Wells Fargo and Lewis conclusively proved that the Chapas’ causes of action brought on behalf of Pena accrued on December 4, 2000.

It is undisputed that the Chapas’ causes of action have statutes of limitations ranging from two years to four years. The Chapas did not file suit until August 17, 2006. Therefore, we conclude that the Chapas’ claims against Wells Fargo and Lewis, asserted by them on behalf of Pena, for breach of fiduciary duty, breach of the duty of good faith and fair dealing, negligent misrepresentation, negligence, fraud, and violating the Deceptive Trade Practices Act and the Texas Securities Act were barred by limitations when the suit was filed.

C. Civil Practices and Remedies Code Section 38.004

In support of their first two issues challenging summary judgment, the Cha-pas also contend that Civil Practices and Remedies Code section 33.004 permits them to pursue their claims against Lewis and Wells Fargo, regardless of whether those claims were time-barred at the time suit was initially filed. Section 33.004 is part of Chapter 33, the statutory scheme for the apportionment of responsibility in tort and deceptive trade practices actions. See Tex. Civ. Prac. Rem.Code Ann. §§ 33.001-.017 (Vernon 2008).

Section 33.004 provides, in relevant part, (a) A defendant may seek to designate a person as a responsible third party by filing a motion for leave to designate that person as a responsible third pai’ty. The motion must be filed on or before the 60th day before the trial date unless the court finds good cause to allow the motion to be filed at a later date.
(e) If a person is designated under this section as a responsible third party, a claimant is not barred by limitations from seeking to join that person, even though such joinder would otherwise be barred by limitations, if the claimant seeks to join that person not later than 60 days after that person is designated as a responsible third party.

Tex. Civ. Prac. Rem.Code Ann. § 33.004(a),(e) (Vernon 2008).

It is undisputed that, pursuant to section 33.004(e), the Chapas joined Lewis within 60 days after he had been designated as a responsible third party by Pena. In their motion for summary judgment, Wells Fargo and Lewis raised several grounds to support their assertion that section 33.004(e) did not permit Lewis’s joinder.

1. Public Policy

The movants first characterize Lewis’s joinder as “fraudulent.” They alleged that the Chapas and Pena colluded to join Lewis after the Chapas realized that their claims against Wells Fargo were time-barred. The movants argued that section 33.004(e)’s joinder provision should not apply when, as here, a plaintiffs claims were time-barred before suit was filed. Specifically, the movants asserted,

[Interpreted logically, the apparent limitations savings clause [of section 33.004(e) ] should only operate to revive claims against later joined responsible third parties in cases where the initial lawsuit was timely filed. Any suggestion to the contrary, namely that limitations may be revived as to claims which were barred on the date the lawsuit was first filed, would essentially strip all defendants who are joined as responsible third parties from any limitations defense, regardless of how far back the conduct in question occurred. Taken to its end, this argument would lead to absurd results and potential for collusion that the legislature could not have possibly intended when they drafted § 33.004(e).

The movants acknowledged that no case law supports their policy argument and that “the legislative history does not shed any light on the limitations issue.”

Although the movants’ policy argument has certain common sense appeal, it cannot serve to defeat the plain language of the statute, which permitted the joinder of Lewis in this case. Last year, the San Antonio Court of Appeals rejected a similar public policy argument in Flack v. Hanke, — S.W.3d --•,-(Tex.App.San Antonio 2009, no pet.). There, the designating defendant had agreed to designate the appellees as responsible third parties in exchange for being dismissed from the suit as part of a settlement agreement with the plaintiff. See id. at -. The appellees argued that their designation as responsible third parties should be disallowed because such designation was an “attempt to manipulate the process” and to circumvent their statutory limitations defense. Id. at-. The court of appeals acknowledged that the appel-lees were likely designated as responsible third parties solely to “wash out” the ap-pellees’ limitations defense. Id. at-. Nonetheless, the San Antonio court of appeals rejected the appellees’ policy argument, explaining, “[T]he statute does not specifically preclude such designations based on the intent of the designor.” Id.

We must construe section 33.004(e) according to its plain language and may not add language that is not implicitly contained in the language of the statute. See Lee v. City of Houston, 807 S.W.2d 290, 295 (Tex.1991). Here, we can ascertain no legislative intent from the statutory scheme that the legislature meant to preclude the joinder of a responsible third party, which had a valid limitations defense when the suit was filed. See Tex. Civ. Prac. Rem.Code Ann. § 33.004(e); see also Tex. Civ. Prac. Rem.Code Ann. § 33.002 (defining applicability of Chapter 33, including listing types of claims to which chapter does not apply). Rather, the provision’s plain language expressly allows, for a limited period, the revival of claims that were previously time-barred. See Tex. Civ. Prac. Rem.Code Ann. § 33.004(e).

We further note that our function is not to question the wisdom of the statute or measure it for logic; we are to apply the statute as written, unless the context or an absurd result requires a different construction. See City of Rock-wall v. Hughes, 246 S.W.3d 621, 629 (Tex.2008); Lee, 807 S.W.2d at 293. Wells Fargo and Lewis argued in their summary judgment motion that allowing Lewis’s joinder leads to such an absurd result. To illustrate their point, they offered the following example and argument:

Plaintiff (P) files suit in January 2008 against Dl, an individual driving alone, and D2, a moving company, for negligence stemming from a May 1997 three-car automobile accident. P’s claims against Dl and D2 are clearly barred by the two-year negligence statute of limitations. Dl, the individual, files a motion to designate T, the employee driver of D2’s moving company vehicle, as a responsible third party. P then joins T as a defendant pursuant to 33.004(e), even though over 10 years have passed since the accident, and any claims against T are clearly time-barred. By the Chapa Plaintiffs’ logic, the claims against T should survive pursuant to the savings clause of 33.004(e), even though the initial suit by P was not timely filed. Thus, P would be able to revive a completely dead case and pursue his 10-year-old claims against T. Clearly this was not the intent of the legislature in drafting 33.004.

Again, Wells Fargo and Lewis provide a compelling argument. Nonetheless, the underlying facts of this case are unlike those in the movants’ example. Here, no allegation or proof has been offered to show that the Chapas’ claims against Pena, the defendant who designated Lewis as a responsible third party, were time-barred when suit was initially filed. To the contrary, it appears accepted by the parties that the Chapas’ claims against Pena were timely. In contrast, the defendant, Dl, in the movants’ example, who designated T as a responsible third party, had a valid limitations defense when suit was filed.

The distinction does have significance. Here, the case is not “completely dead,” as the movants characterized the claims in their example. The Chapas had a “live” claim against Pena when they filed suit. Under the statutory scheme of Chapter 33, Pena had the right to designate Lewis as a responsible third party to apportion responsibility. See Tex. Civ. Prac. Rem.Code Ann. § 33.004(a).

The legislature has chosen to permit a defendant to designate a responsible third party, regardless of whether that party has a valid limitations defense. See Tex. Civ. Prac. Rem.Code Ann. § 33.011(6) (Vernon 2008) (broadly defining “responsible third party”). In turn, the legislature balanced out the rights of a claimant, such as the Chapas, by giving the claimant a 60-day window to join a responsible third party, regardless of whether that party has a valid limitations defense. See Tex. Civ. Prac. Rem.Code Ann. § 33.004(e); see also Kimbrell v. Molinet, 288 S.W.3d 464, 470 (Tex.App.-San Antonio 2009, pet. filed) (Simmons, J., concurring) (discussing legislative history of Chapter 33 and balancing of parties’ rights under statutory scheme). In short, we conclude the movants’ policy argument is without merit and did not prevent Lewis’s joinder by the Chapas.

2. Claims with Two-Year Limitations Period

In their motion for summary judgment, Wells Fargo and Lewis also asserted that section 33.004(e) did not apply to the Cha-pas’ claims governed by two-year statutes of limitations. The movants pointed out, “The amendments to Chapter 33, including § 33.004(e), became effective September 1, 2003.” See Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 23.02, 2003 Tex. Gen. Laws 847, 898-99. The 2003 version governs all cases filed on or after July 1, 2003. See Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 23.02(c), 2003 Tex. Gen. Laws 847, 899.

Wells Fargo and Lewis further asserted, “It is well-settled that a new limitations statutory scheme cannot revive claims on which limitations had expired prior to enactment of the new statute.” They averred, “In the instant case, the [Chapas’] claims with a two-year statute of limitations had already expired by September 1, 2003.”

It is undisputed that the following claims asserted by the Chapas against Lewis had a two-year statute of limitations: breach of the duty of good faith and fair dealing, negligent misrepresentation, negligence, and DTPA violations. The movants asserted that, because these claims were time-barred when the 2003 amendments to Chapter 33 were enacted, the Chapas could not assert these causes of action against Lewis when they joined him pursuant to section 33.004(e). We agree.

In Baker Hughes, Inc. v. Keco R. & D., Inc., the Texas supreme court reaffirmed “settled law” that, “after a cause has become barred by the statute of limitation, the defendant has a vested right to rely on such statute as a defense.” 12 S.W.3d 1, 4 (Tex.1999) (citing Wilson v. Work, 122 Tex. 545, 62 S.W.2d 490, 490 (1933); Cathey v. Weaver, 111 Tex. 515, 242 S.W. 447, 453 (1922); Mellinger v. City of Houston, 68 Tex. 37, 3 S.W. 249, 255 (1887)). The court continued, “To permit barred claims to be revived years later would undermine society’s interest in repose, which is one of the principal justifications for statutes of limitations.” Id. The court explained, “[W]e have written that a statute extending the limitations period of a claim already barred by limitations violates the Texas Constitution’s prohibition against retroactive laws, which is article I, section 16.” Id.

Here, the Chapas’ claims against Lewis for breach of the duty of good faith and fair dealing, negligent misrepresentation, negligence, and DTPA violations accrued, as discussed above, on December 4, 2000. When the legislature enacted the 2003 amendments to Chapter 33, including section 33.004(e), these claims were already time-barred. At the time of 33.004(e)’s enactment, Lewis had a vested right to rely on the statutes of limitation barring these claims. See id. Reading section 33.004(e) to divest Lewis of that right violates article I, section 16 of the Texas Constitution. See id. Accordingly, the Chapas’ time-barred claims for breach of the duty of good faith and fair dealing, negligent misrepresentation, negligence, and DTPA violations may not, as a matter of law, be revived against Lewis pursuant to section 33.004(e). See id,.; see also Mann, v. Jack Roach Bissonnet, Inc., 623 S.W.2d 716, 718-19 (Tex.Civ.App.-Houston [1st Dist.] 1981, no writ) (holding that legislature cannot extend limitations period for claims that are already time-barred).

3. Statutory Claims

Civil Practice and Remedies Code section 33.002(a) provides that Chapter 33 applies to

(1) any cause of action based on tort in which a defendant, settling person, or responsible third party is found responsible for a percentage of the harm for which relief is sought; or
(2) any action brought under the Deceptive Trade Practices-Consumer Protection Act (Subchapter E, Chapter 17, Business & Commerce Code) in which a defendant, settling person, or responsible third party is found responsible for a percentage of the harm for which relief is sought.

Tex. Civ. Prac. Rem.Code Ann. § 33.002(a) (Vernon 2008). The movants argued that Chapter 33 does not apply to the Chapas’ statutory claims asserted under the Texas Securities Act and the Texas Trust Act. The movants’ assertions are not supported by the weight of authority.

Article 33.002(a) provides that Chapter 33 applies to “any action based in tort.” Tex. Civ. Prac. Rem.Code Ann. § 33.002(a) (emphasis added). The Texas supreme court has applied Chapter 33 to statutory tort claims that do not include a separate and conflicting legislative fault allocation scheme. Compare JCW Elees., Inc. v. Garza, 257 S.W.3d 701, 705-06 (Tex.2008) (holding that Chapter 38 applied to UCC article 2 claims) with Sw. Bank v. Info. Support Concepts, Inc., 149 S.W.3d 104, 111 (Tex.2004) (declining to apply Chapter 33 to UCC article 3 conversion claims because article 3 contains “its own loss allocation scheme uniquely applicable to conversion claims involving negotiable instruments”); see also Werner v. KPMG, L.L.P., 415 F.Supp.2d 688, 703 (S.D.Tex. 2006).

Here, the movants made no assertion in their motion for summary judgment that the Chapas’ statutory claims are not “based in tort.” Nor is there any argument that the subject statutes contained a separate and conflicting legislative fault allocation scheme. Accordingly, we conclude that section 33.004(e) applied to the Chapas’ statutory claims asserted against Lewis. See JCW Elees., 257 S.W.3d at 705-06.

4. Respondeat Superior

In the trial court and on appeal, the Chapas contend that, to the extent that section 33.004(e) applies to Lewis, it also applies to Wells Fargo, based on responde-at superior. As a result, the Chapas contend that Wells Fargo remains a defendant in the lawsuit, regardless of whether it has a valid limitations defense.

In them opening brief, the Chapas contend that “the doctrine of respondeat superior clearly and most logically applies to the context of Section 33.004(e).” They argue, “Permitting a claim against an employer based on vicarious liability should be revived if the claim against the employee is revived as well.” The Chapas do not cite, nor can we locate, any authority determining this issue. Nor does Chapter 33 generally, or section 33.004(e) specifically, address the interplay between the proportionate liability scheme and claims based on theories of vicarious liability. See generally Fid. & Guar. Ins. Underwriters Inc. v. Wells Fargo Bank, No. H-04-2833, 2006 WL 870683, at *5 (S.D.Tex. Mar. 31, 2006) (noting that “courts and commentators alike have recognized the difficulty in reconciling the language of the Proportionate Responsibility Statute with certain causes of actions, including vicarious and/or derivative liability actions”); D. Underwood & Michael D. Morrison, Apportioning Responsibility in Cases Involving Claims of Vicarious Derivative, or Statutory Liability for Harm Directly Caused by the Conduct of Another, 55 Baylor L.Rev. 617, 647-48 (2003) (writing that the legislature, in enacting the original and present versions of section 33.003, did not consider derivative or vicarious liability cases).

As noted by the El Paso Court of Appeals, “The purpose of Chapter 33 ... is to apportion the damages for which joint tortfeasors are liable, according to the percentage of fault.” Gilcrease v. Garlock, Inc., 211 S.W.3d 448, 457 (Tex.App.-El Paso 2006, no pet.); see also Tex. Civ. Prac. Rem.Code Ann. § 33.003 (directing that jury apportions responsibility among only those persons whose conduct caused or contributed to cause harm on which damages sought). Pursuant to the doctrine of respondeat superior, an employer will be held vicariously liable for the negligence of its employee regardless of any allegation of fault on the part of the employer. See Bedford v. Moore, 166 S.W.3d 454, 461 (Tex.App.-Fort Worth 2005, no pet.). Allowing a plaintiff to use section 33.004(e) to revive a time-barred claim against a party, not for its tortious conduct, but merely based on its relationship with a tortfeasor, is incongruent with Chapter 33’s statutory scheme to apportion responsibility based on the person’s harm-causing conduct. Cf Rosell v. Cent. W. Motor Stages, Inc., 89 S.W.3d 643, 656-57 (Tex.App.-Dallas 2002, pet. denied) (explaining that, “while the statute on its face requires all defendants to be included in the apportionment question, it would not be proper for an employer to be included along with the driver if its only responsibility was that of respon-deat superior”).

Moreover, section 33.004(e) permits a claimant to join a designated “responsible third party.” Under § 33.011(6), a “responsible third party”

means [in pertinent part] any person who is alleged to have caused or contributed to causing in any way the harm for which recovery of damages is sought, whether by negligent act or omission, by any defective or unreasonably dangerous product, by other conduct or activity that violates an applicable legal standard, or by any combination of these.

Tex. Civ. Prac. Rem.Code Ann. § 33.011(6). A party that is liable based purely on respondeat superior does not fit this definition. The definition further underscores that section 33.004(e) should not be used to hold a party liable when no allegations have been made that the party caused or contributed to the claimant’s damages. Accordingly, we conclude that the Chapas’ time-barred claims against Wells Fargo based on respondeat superior are not revived by section 33.004(e).

No Evidence Motion for Summary Judgment

In their third issue, the Cha-pas contend that summary judgment cannot be based on Lewis’s and Wells Fargo’s no-evidence motion for summary judgment. The movants filed a no-evidence motion for summary judgment with respect to the Chapas’ claim that Lewis and Wells Fargo assisted Pena in his breaching his fiduciary duty to the Chapas.

“When a third party knowingly participates in the breach of a fiduciary duty, the third party becomes a joint tort-feasor and is liable as such.” Kastner v. Jenkens & Gilchrist, P.C., 231 S.W.3d 571, 580 (TexApp.-Dallas 2007, no pet.). In their fourth amended petition, the Chapas asserted a breach of fiduciary duty claim against Pena, individually, and against Wells Fargo and Lewis as joint tortfea-sors. The Chapas claimed that Wells Fargo and Lewis, as third parties, knew that Pena was committing a breach of his fiduciary duty. They alleged that Wells Fargo and Lewis knowingly participated in Pena’s breach. The Chapas further alleged that Wells Fargo and Lewis became joint tortfeasors with Pena. They asserted that, as a result, Wells Fargo and Lewis are liable for participating in Pena’s breach of trust. See Kinzbach Tool Co. v. Corbett-Wallace Corp., 138 Tex. 565, 160 S.W.2d 509, 514 (1942); Denson v. Dallas County Credit Union, 262 S.W.3d 846, 851 (Tex.App.-Dallas 2008, no pet.).

In their no-evidence summary judgment motion, Wells Fargo and Lewis alleged that there is no evidence that their conduct, separate from Pena’s conduct, breached a duty to the Chapas. In so doing, the movants misinterpreted the Chapas’ cause of action. With regard to their assisting-in-breach-of-fiduciary-duty claim, the Chapas do not allege that Wells Fargo and Lewis breached a duty that they owed to the Chapas. Rather, they allege that Wells Fargo and Lewis knowingly assisted Pena in breaching his fiduciary duty to the Chapas. Indeed, to succeed on their assisting-in-breach-of-fi-dueiary-duty claim, the Chapas need not show that Wells Fargo and Lewis owed them a fiduciary duty or that Wells Fargo’s and Lewis’s conduct breached such a duty. See Denson, 262 S.W.3d at 851.

In a no-evidence motion for summary judgment, the movant must state the elements as to which there is no evidence for a claim. Tex.R. Civ. P. 166a(i); Roventini v. Ocular Sciences, Inc., Ill S.W.3d 719, 722 (Tex.App.-Houston [1st Dist.] 2003, no pet.) (noting that “motion must specify which essential elements of the opponent’s claim or defense lack supporting evidence”). Here, the only element identified by the movants as entitling them to summary judgment is not an element of the Chapas’ assisting-in-breach-of-fiduciary-duty claim, as pleaded. Accordingly, summary judgment cannot be properly granted on the movants’ no-evidence summary judgment motion. See Denson, 262 S.W.3d at 851 (concluding that no-evidence summary judgment erroneously granted on assisting-in-breach-of-fiduciary-duty claim because movant mischaracterized duty element of claim).

Conclusion

Based on the record and the foregoing analysis, we summarize our conclusions as follows:

• The Chapas’ claims against Wells Fargo and Lewis, asserted on behalf of Pena, accrued on December 4, 2000.
• The Chapas’ claims against Wells Fargo and Lewis, asserted on behalf of Pena, were time-barred when suit was filed.
• The Chapas’ claims against Lewis for breach of fiduciary duty, fraud, and violating the Texas Securities Act were revived by Civil Practices and Remedies Code section 33.004(e).
• Because they were time-barred when the statute was enacted, the Chapas’ claims against Lewis for breach of the duty of good faith and fair dealing, negligent misrepresentation, negligence, and DTPA violations, which have two-year statutes of limitations, are not revived by section 33.004(e).
• The Chapas’ claims against Wells Fargo, based on respondeat superior, are not revived by section 33.004(e).
• The Chapas’ claims against Wells Fargo and Lewis for assisting Pena in breaching his fiduciary duty are not time-barred, and the no-evidence motion for summary judgment on this claim should not have been granted.
• The trial court properly granted summary judgment based on limitations with regard to the Chapas’ claims against Wells Fargo for breach of fiduciary duty, fraud, breach of the duty of good faith and fair dealing, negligent misrepresentation, negligence, and violating the DTPA and the Texas Securities Act.
• The trial court did not properly grant summary judgment with regard to the Chapas’ claim against Wells Fargo for assisting Pena in the breach of his fiduciary duty.
• The trial court properly granted summary judgment based on limitations with regard to the Chapas’ claims against Lewis for breach of the duty of good faith and fair dealing, negligent misrepresentation, negligence, and DTPA violations.
• The trial court did not properly grant summary judgment with regard to the Chapas’ claims against Lewis for breach of fiduciary duty, fraud, violating the Texas Securities Act, and assisting Pena in the breach of his fiduciary duty.

Accordingly, we affirm the judgment of the tidal court to the extent that it grants summary judgment on the Chapas’ claims against Wells Fargo for breach of fiduciary duty, fraud, breach of the duty of good faith and fair dealing, negligent misrepresentation, negligence, and violating the DTPA and the Texas Securities Act. We also affirm the judgment of the trial court to the extent that it grants summary judgment on the Chapas’ claims against Lewis for breach of the duty of good faith and fair dealing, negligent misrepresentation, negligence, and DTPA violations.

We reverse the judgment of the trial court to the extent that it grants summary judgment on the Chapas’ claims against Wells Fargo for assisting Pena in breaching his fiduciary duty. We also reverse the judgment of the trial court to the extent that it grants summary judgment on the Chapas’ claims against Lewis for breach of fiduciary duty, fraud, violating the Texas Securities Act, and assisting Pena in breaching his fiduciary. We remand the case for further proceedings.

      . In the trial court, the Chapas asserted that fraudulent concealment also served to toll the running of limitations. On appeal, the Cha-pas do not separately brief fraudulent concealment, but incorporate certain aspects of it into their discovery-rule argument.

      . In contrast, the Chapas prosecute the claim against Wells Fargo and Lewis for assisting or participating in Pena’s breach of his fiduciary duty in individual capacities, not on behalf of the trustee. We agree with the Chapas that the limitations period for this claim began when the Chapas knew or should have known of facts that, in the exercise of reasonable diligence, would have led to the discovery of Pena's alleged breach of his fiduciary duty. See Little v. Smith, 943 S.W.2d 414, 420 (Tex. 1997); Slay v. Burnett Trust, 143 Tex. 621, 187 S.W.2d 377, 394 (1945). Wells Fargo and Lewis offered no summary judgment argument or proof to show when the Chapas knew or should have known of facts that, in the exercise of reasonable diligence, would have led to discovery of Pena's alleged breach of his fiduciary to them. Thus, summary judgment was not proper on this claim based on limitations. As mentioned. Wells Fargo and Lewis asserted a no-evidence motion for summary judgment regarding this cause of action. We discuss the propriety of the no-evidence motion for summary judgment with respect to this claim infra.

      . The same rule applies by statute in DTPA claims. See Tex. Bus. & Com.Code Ann. § 17.565 (Vernon 2002).

      . We note that, unlike in Flack, there is no evidence in this case that Pena and the Cha-pas had any express agreement whereby Lewis would be designated by Pena as a responsible third party.

      . The parties also agree that the other causes of action asserted by the Chapas against Lewis and Wells Fargo are subject to three- or four-year limitation periods.

      . Wells Fargo and Lewis also assert on appeal that Chapter 33 does not apply to fraud claims. The movants did not raise this ground in the trial court to support summary judgment. As a result, we cannot reach this ground. The law is clear: we may not affirm a summary judgment on grounds "not expressly sel out in the motion or response.” Stiles v. Resolution Trust Corp., 867 S.W.2d 24, 26 (Tex. 1993). In any event, the Chapter 33 has been held to apply to fraud claims. See Isaacs v. Bishop, 249 S.W.3d 100, 116 (Tex.App.-Texarkana 2008, pet. denied).

      . Wells Fargo and Lewis cite Davis v. Es-tridge, 85 S.W.3d 308, 311 (Tex.App.-Tyler 2001, pet. denied), for its conclusion that Chapter 33 does not apply to a statutory fraud claim because the DTPA was the only statute expressly mentioned in section 33.002(a). We do not find Davis persuasive. Since Davis, the Texas supreme court has held that Chapter 33 applied to a statutory tort claim in JCW Electronics, Inc. v. Gana, 257 S.W.3d 701, 705-06 (Tex.2008). Moreover, the express language of section 33.002(a) provides that Chapter 33 applies 'To any action based in tort.” Tex. Civ Prac. Rem.Code Ann. § 33.002(a) (Vernon 2008) (emphasis added).

      . In the trial court, the Chapas also asserted that Wells Fargo was liable for Lewis’s conduct based on Wells Fargo's alleged negligent failure to supervise Lewis. The Chapas do not argue or brief this theory of vicarious liability on appeal.

      . As mentioned, unlike all their other claims against Wells Fargo and Lewis, the Chapas' claim for assisting Pena in the breach of his fiduciary duty was not brought by the Chapas on behalf of Pena. Accordingly, the accrual date for this claim would be different from the accrual date of Chapas' other claims. No argument or evidence has been offered to show the accrual date for the Chapas' assisting-in-breach-of fiduciary-duty claim. Therefore, summary judgment based on limitations was not proper on this claim. Although the trial court's order identified limitations as the only basis for summary judgment, we may consider, in the interest of justice, grounds that the movant preserved for review and on which the trial court did not rule. See Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 (Tex. 1996).

      . In the trial court, Wells Fargo's and Lewis’s no-evidence motion for summary judgment also identified other elements on which there was no evidence. On appeal, the parties now disagree only regarding the propriety of die movants' assertion that there is no evidence that the conduct of Wells Fargo and Lewis breached a duty that they owed to the Chapas. In their brief, Wells Fargo and Lewis argue that they owed no fiduciary duty directly to the Chapas. They contend that, if they owed any duty, it was owed only to Pena.


source: Caselaw Access Project

author: JANE BLAND, Justice.

license: Public Domain

text:
    STATE of Texas, Appellant, v. RIVER FOREST DEVELOPMENT COMPANY, Appellee.
    No. 01-09-00252-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    March 18, 2010.

      Roger Haseman, Assistant District Attorney, Richmond, TX, for appellant.

      John D. Perches, Wharton, TX, for ap-pellee.
    Panel consists of Justices JENNINGS, HANKS, and BLAND.
   OPINION

JANE BLAND, Justice.

After real estate developer Lawrence Siller burned piles of timber in connection with a landclearing operation, the State of Texas charged River Forest Development Company (River Forest) and Siller, its principal, by information with the misdemeanor offense of unlawful outdoor burning, a violation of section 111 of the Texas Administrative Code, issued pursuant to section 7.002 of the Texas Water Code. See Tex. Health & Safety Code Ann. § 382.011 (Vernon 2004); Tex. Water Code Ann. § 7.002 (Vernon 2000); Tex. Admin. Code § 111.201 (2004). River Forest and Siller moved to quash the indictments on the basis that the outdoor burning regulations promulgated by the Texas Commission on Environmental Quality (TCEQ) pursuant to the Texas Clean Air Act were unconstitutionally vague. After a hearing, the trial court granted the motions to quash.

The State appeals this ruling, contending that the trial court erred in concluding that the regulation’s ban on outdoor burning except “when no practical alternative to burning exists” is not vague and complies with constitutional due process requirements. We reverse and remand the case for trial.

BACKGROUND

River Forest, acting through Siller, hired a contractor to help clear some right-of-ways in a heavily-wooded fifty-acre tract located along the Brazos River in Fort Bend County. In connection with the landclearing operation, Siller decided the most expedient way to dispose of the large trees was to burn them and directed the contractor accordingly. Siller burned twenty large piles of timber over a two-week period.

At the hearing on the motions to quash, Siller testified that he believed that he could burn on his own property and had been doing so for years. Siller contacted the Fort Bend County fire marshal to inform him of the burning plan, and the fire marshal gave him a copy of the TCEQ requirements. Siller reviewed the requirements, but admittedly did not contact the TCEQ before beginning the burn in December 2006.

The State learned about the burning and, by information, charged that Siller and River Forest,

on or about June 2006, did then and there intentionally or knowingly cause, allow, or permit outdoor burning within the State of Texas in violation of Title 30, Administrative Code Rule § 111.201, and the outdoor burning was not authorized by the Executive Director of the Texas Commission on Environmental Quality, nor was the outdoor burning authorized by any exception contained in Title 30, Texas Administrative Code Rule § 111.

River Forest and Siller moved to quash the informations, contending that the legal provision underlying the charges was unconstitutionally vague. After a hearing on the motions, the trial court signed orders quashing the informations.

DISCUSSION

Void for vagueness challenge

The State contends that the trial court erred in quashing the informations as unconstitutionally vague. We review de novo a trial court’s ruling on a motion to quash. State v. Moff, 154 S.W.3d 599, 601 (Tex.Crim.App.2004).

All criminal laws must give fair notice as to what activity is made criminal so that the people have fair warning of what is forbidden. Bynum v. State, 767 S.W.2d 769, 774 (Tex.Crim.App.1989). Defendants have a constitutional right to be informed of the nature and cause of the accusation against them. See U.S. Const. amend. VI; Tex. Const, art. I, § 10. The Texas Constitution requires that the charging instrument provide fair notice, in plain and intelligible language, of the act or omission alleged. See Tex. Const, art. I, § 10; Riney v. State, 28 S.W.3d 561, 565 (Tex.Crim.App.2000).

We begin our review of a challenge to a statute’s constitutionality with the presumption that the statute is valid and the legislature has not acted unreasonably or arbitrarily in enacting it. Rodriguez v. State, 93 S.W.3d 60, 69 (Tex.Crim.App.2002); Ex parte Gmnviel, 561 S.W.2d 503, 511 (Tex.Crim.App.1978). If a statute does not substantially implicate constitutionally protected conduct or speech, it is valid unless it is impermissibly vague in all applications. State v. Holcombe, 187 S.W.3d 496, 499 (Tex.Crim.App.) (citing Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982)), cert. denied, 549 U.S. 824, 127 S.Ct. 176, 166 L.Ed.2d 41 (2006).

We apply a two-part inquiry to determine if a criminal statute is unconstitutionally vague. To overcome a vagueness challenge, a criminal statute must define the offense (1) with sufficient specificity that ordinary people can understand what actions are prohibited, and (2) in a manner that does not permit arbitrary and discriminatory enforcement. See Holcombe, 187 S.W.3d at 499. Either the lack of notice or lack of guidelines for law enforcement constitutes an independent ground for finding a statute void for vagueness. Adley v. State, 718 S.W.2d 682, 685 (Tex.Crim.App.1985).

A party challenging the constitutionality of a statute bears the burden “to show that in its operation the statute is unconstitutional to him in his situation; that it may be unconstitutional to others is not sufficient.” Bynum, 767 S.W.2d at 774; see Santikos v. State, 836 S.W.2d 631, 633 (Tex.Crim.App.1992); Rodriguez v. State, 47 S.W.3d 86, 88 (Tex.App.-Houston [14th Dist.] 2001, pet. refd); accord Hoiveth Invs., Inc. v. City of Hedwig Village, 259 S.W.3d 877, 903-04 (Tex.App.-Houston [1st Dist.] 2008, pet. denied) (quoting In re Commitment of Fisher, 164 S.W.3d 637, 655 (Tex.2005)). Courts must decide constitutional issues narrowly based on the precise facts of the case, not on speculative or hypothetical injuries. In re C.M.D., 287 S.W.3d 510, 515 (TexApp.-Houston [14th Dist.] 2009, no pet.); Tex. Dep’t of Family & Prot. Sens. v. Dickensheets, 274 S.W.3d 150, 155 (TexApp.-Houston [1st Dist.] 2008, no pet.); see Corwin v. State, 870 S.W.2d 23, 29 (Tex.Crim.App.1993) (“That there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls is no sufficient reason to hold language too ambiguous to define a criminal defense”; if defendant’s conduct falls within “core” conduct proscribed by criminal statute, then statute is constitutional to that defendant); Bynum, 767 S.W.2d at 774 (pointing out that hypothetieals are of no value in examining vagueness challenge).

The parties disagree about the stringency of .the defendant’s burden to prove vagueness. River Forest and Siller, relying on Connally v. General Construction Co., contend that the prohibited conduct “must be so clearly expressed that the ordinary person can intelligently choose, in advance, what course it is lawful for him to pursue.” 269 U.S. 385, 393, 46 S.Ct. 126, 128, 70 L.Ed. 322 (1926). They take exception to the State’s reliance on Bynum v. State for the proposition that a statute meets the due process standard so long as the “ordinary, law-abiding individual received sufficient information that his or her conduct risked violating a criminal law.” 767 S.W.2d 769, 773 (Tex.Crim.App. 1989), cited in Griffin Indus., Inc. v. State, 171 S.W.3d 414, 417 (Tex.App.-Corpus Christi 2005, pet. refd). Since deciding Connally, the United States Supreme Court has applied the standard enunciated in Connally to reject other regulatory challenges, like the one River Forest and Siller bring here, when the condition at issue is narrowly defined. See Papachris-tou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972). “In the field of regulatory statutes governing business activities, where the acts limited are in a narrow category, greater leeway is allowed.” Id. at 163, 92 S.Ct. at 844. Connally stands for the proposition that a citizen must receive fair notice of unlawful conduct.

Because statutes are presumed constitutional, a defendant who attacks that presumption should raise a void-for-vagueness challenge as an affirmative defense to enforcement of the statute at trial. Id.; see also State v. Scott, 460 S.W.2d 103, 107 (Tex.1970). Here, River Forest and Siller properly raised their challenge to the constitutionality of the statute in their motions to quash, contending that certain outdoor burning provisions in the Texas Clean Air Act were unconstitutional because they failed to give proper notice to the public about what conduct constitutes an offense and what conduct is lawful. The trial court held a hearing on the issue and sought additional briefing on the issue from the parties.

The Texas Outdoor Burning Regulations

Outdoor burning is unlawful in the State of Texas except as specifically provided. 30 Tex. Admin. Code § 111.201 (Vernon 2004). The exception at issue in this case is that for disposal fires, including land-clearing. The applicable provision provides that legal burning includes

on-site burning of trees, brush, grass, leaves, branch trimmings, or other plant growth, by the owner of the property or any other person authorized by the owner, and when the material is generated only from that property: ... in a county that is part of a designated nonattainment area or that contains any part of a municipality that extends into a designated nonattainment area; if the plant growth was generated as a result of right-of-way maintenance, landclearing operations, and maintenance along water canals when no practical alternative to burning exists.

30 Tex. Admin. Code § 111.209(4)(A) (2004). The Code defines “practical alternative” as “an economically, technologically, ecologically, and logistically viable option.” 30 Tex. Admin. Code § 111.203(4) (2004).

Motions to Quash

River Forest and Siller’s motions to quash attacked the “statute underlying the charge” as a whole, but their constitutional challenge focuses on whether the regulation’s term “practical alternative” and its definition provide sufficient notice of the conduct subject to criminal prosecution. The State contends that the regulation is valid and that River Forest and Siller committed an offense because (1) they failed to contact the TCEQ to obtain an exception for their outdoor burning, and (2) River Forest and Siller are familiar with the rules and terms used in outdoor burning from their experience in the landclearing industry, and therefore had notice as to what conduct constituted an offense.

In considering the State’s first contention, we look to the plain language of Chapter 30 of the Texas Administrative Code in effect on the date of the charged offense. Section 111.209(4) provides that:

When possible, the notification of intent to burn should be made to the appropriate commission regional office prior to the proposed burn.... Commission notification or approval is not required.

30 Tex. Admin. Code § 111.209(4). The challenged provision does not require an entity to obtain approval from the TCEQ before acting under a statutory exception to the outdoor burning prohibition; it only urges the entity to do so when possible. The hortatory term does, however, cut against River Forest and Siller’s constitutional challenge. See Village of Hoffman Estates, 455 U.S. at 498, 102 S.Ct. at 1193 (explaining that economic regulation is subject to less stringent vagueness test, because its subject matter is often more narrow and because “the regulated enterprise may have the ability to clarify the meaning of the regulation by its own inquiry, or by resort to an administrative process.”).

We next consider the State’s second contention that the term “practical alterna-five” as used in the Texas Administrative Code gave Siller and River Forest notice concerning the kind of conduct that violates the provision. According to the State, the statute is not unconstitutionally vague because, as developers, River Forest and Siller were aware of the TCEQ requirements and familiar with its rules, and understood the challenged term but opted to disregard it.

A regulation’s use of terms like “practical” or “practicable,” is not fatal to a regulation’s constitutionality even if the term is left undefined. See Sproles v. Binford, 286 U.S. 374, 393, 52 S.Ct. 581, 587, 76 L.Ed. 1167 (1932) (holding that use of terms “nearest practicable common carrier receiving or loading point” and “shortest practicable route to destination,” in statute limiting net loads of trucks operating over state highway, did not render statute too vague to be understood); see also Ahearn v. State, 588 S.W.2d 327, 338 (Tex.Crim.App.1979) (observing that even when statute contains undefined terms, lack of definition, standing alone, does not render statute unconstitutional). Here, the TCEQ defines “practical alternative,” explaining that it is “an economically, technologically, ecologically, and logistically viable option.” 30 Tex. Admin. Code § 111.203(4). River Forest and Siller admitted that they had a copy of the outdoor burning regulations but did not contact the TCEQ for clarification even though it was possible to do so before beginning the burn. Further, Siller explained in his testimony to the trial court that he considered “logistics and costs” in determining whether a practical alternative to burning existed, and did not claim any lack of understanding about the requirement that he also take into consideration whether an alternative to outdoor burning is technologically or ecologically viable. In light of the statute, Siller considered and rejected alternatives like hauling and trench burning. Siller’s testimony does not support a conclusion that an ordinary individual would fail to understand the law because it was too vague in describing the conduct it sought to deter. The record thus does not overcome the presumption that laws passed by the Legislature are constitutional.

Although they have asserted a viable statutory defense of practicality to urge acquittal at trial, River Forest and Siller have failed to meet the requisite burden for their facial constitutional challenge based on vagueness. We thus hold that the trial court erred in granting their motions to quash.

Conclusion

We hold that the Texas Clean Air Act’s outdoor burning regulation exception to criminal sanction for fires when “no practical alternative to burning exists” is not unconstitutionally vague. Accordingly, we reverse the judgment of the trial court and remand the case for trial.

      . We also observe that, several years before the burning incident, the Field Operations Division of the Texas Natural Resource Conservation (now the TCEQ) published a handbook concerning the outdoor burning regulations specifically for public use. See Outdoor Burning in Texas (RG-49, revised Nov. 2000), available at http://www.nmenv.state.nm.iis/aqb/ projectslopenburniTX-OBguidemle.pdf (last accessed Jan. 14, 2010). The Frequently Asked Questions section contains a section on land-clearing that states the following:

        I have some uncleared property inside city limits that I would like to develop. Hauling the trees and brush off would not be practical because it is too expensive. May I dispose of the trees and brush by burning? Unless the county or municipal government has enacted ordinances that permit burning consistent with state law, this situation does not meet any of the exceptions to die prohibition on outdoor burning. You may need to consider alternatives such as chipping or trench burning. If there is no practical alternative, you may request written permission from die TNRCC for authorization to bum. Such requests are evaluated on a case-by-case basis. Contact the appropriate TNRCC regional office for guidance.

        Id. at 10.

      . River Forest and Siller have not made any contention or presented any evidence under the second prong of the vagueness inquiry— that law enforcement officers arbitrarily applied the regulation to their conduct. See Adley v. State, 718 S.W.2d 682, 685 (Tex.fTex. Crim.App.App. 1985)); State v. Fiy, 867 S.W.2d 398, 403 (Tex.App.-Houston [1st Dist.] 1993, no pet.). We therefore do not consider it.


author: TOM GRAY, Chief Justice.

text:
    Dr. Steven Leon GATES, D.O. and/or Dr. Steven Leon Gates, D.O., P.A., Appellant, v. Jack Thomas ALTARAS, Appellee.
    No. 10-09-00236CV.
    Court of Appeals of Texas, Waco.
    April 14, 2010.

      David M. Walsh IV and William H. Chamblee, Chamblee & Ryan PC, Dallas, TX, for Appellant.
    W. Kelly Puls, Attorney at Law, Jeff Kobs, Kobs Haney & Hundley LLP, Ft. Worth, TX, for Appellee.
    Before Chief Justice GRAY, Justice REYNA, and Justice DAVIS.
   ORDER

TOM GRAY, Chief Justice.

Jack Thomas Altaras sued Dr. Steven Leon Gates, D.O. and/or Dr. Steven Leon Gates, D.O., P.A. for negligence. Altaras presented an expert report in the form of an affidavit from Dr. Bernard A. McGowen. Gates filed objections to the report and a motion to dismiss. Both were denied and Gates appealed. See 10-08-00239-CV. A few weeks prior to oral argument in the appeal, Gates and Altaras reached an agreement that Altaras would submit a supplemental report within 45 days and Gates would dismiss his appeal. After the supplemental report was presented, Gates again filed, in one document, objections and a motion to dismiss. The trial court again denied relief, and Gates appealed. On appeal, this Court held that the trial court erred in finding the expert report to be sufficient and reversed and remanded the case for further proceedings.

On appeal, Gates argued in his third issue that the expert affidavit failed to mention the professional association, Gates, P.A. Gates further argued that because of this failure, no expert report was filed as to Gates, P.A. and no extension to cure deficiencies in the report was permitted. Altaras argued in response that because his claims were based solely on the actions of Gates and no direct liability claims were asserted against Gates, P.A., the affidavit was not required to mention the professional association by name.

In our opinion, we determined that because the expert affidavit was deficient as to Gates, it was deficient as to Gates, P.A. as well. We also held that we did not need to determine whether the affidavit was the equivalent of no report as to Gates, P.A.

In a motion for rehearing, Gates asks that we dismiss the claims against Gates, P.A. because the expert affidavit did not address any conduct of Gates, P.A. and is thus no report as to Gates, P.A. We decline to dismiss the claims for two reasons. First, Altaras argued in response to Gates’s argument that no direct liability claims were asserted against Gates, P.A., and thus, no mention of the professional association in the expert affidavit was necessary. Second, Gates never made this “no report” argument to the trial court. We decline to address an argument of this nature raised for the first time on appeal. See Tex.R.App. P. 33.1.

Accordingly, Gates’s motion for rehearing is denied.


author: G. ALAN WALDROP, Justice.

text:
    Chris D. RILEY, Appellant, v. TEXAS STATE BOARD OF EXAMINERS OF PROFESSIONAL COUNSELORS, Appellee.
    No. 03-09-00058-CV.
    Court of Appeals of Texas, Austin.
    May 14, 2010.
    Rehearing Overruled June 25, 2010.

      Darby Riley, Charles Riley, Law Office of Darby Riley, San Antonio, for appellant.
    Eugene A. Clayborn, Asst. Atty. Gen., Austin, for appellee.
    Before Chief Justice JONES, Justices WALDROP and HENSON.
   OPINION

G. ALAN WALDROP, Justice.

The Texas State Board of Examiners of Professional Counselors (the “Board”) denied appellant Chris D. Riley’s application to renew her license to practice professional counseling, based on Riley’s failure to renew her license within a year of its expiration in accordance with section 503.354 of the Texas Occupations Code. Riley asserts that her failure to timely renew her license is excused by the Board’s failure to provide pre-expiration notice in accordance with section 503.353 of the Texas Occupations Code. We hold that pre-expiration notice under section 503.353 is not a prerequisite to Riley’s compliance with section 503.354. We affirm the judgment of the district court affirming the decision of the Board.

Factual and Procedural Background

Riley received a license to practice professional counseling in 1983. See Tex. Occ. Code Ann. § 503.003 (West 2004) (defining the practice), § 503.301 (West 2004) (license required). She was licensed for 19 years, renewing her license each year. Riley’s license was next set to expire on December 31, 2002. The Board did not provide notice to Riley 30 days prior to such expiration date, despite its statutory obligation to do so. See id. § 503.353 (West 2004). Riley did not perform the necessary actions to renew her license by the December 31, 2002 deadline. Nor did she attempt to renew her license in 2003. In December 2006, upon learning for the first time that she was no longer listed as a licensed professional counselor, Riley attempted to renew her license. However, the Board denied her request based on her failure to renew her license before 2004. See id. § 503.354(e) (West Supp.2009) (“A person whose license has been expired for one year or more may not renew the license.”).

Riley sought and obtained a hearing at the State Office of Administrative Hearings to contest the denial of her application for renewal of her license. The issue presented was whether the Board could deny Riley’s request for license renewal when the Board had failed to send notice to Riley regarding her license expiration date. Following the hearing, on August 27, 2007, the administrative law judge (ALJ) concluded that Riley’s license should be renewed, based on the determination that the Board could not enforce the license’s expiration date if the Board failed to comply with the applicable notice requirements.

By order issued February 22, 2008, the Board rejected most of the ALJ’s conclusions of law and adopted new conclusions of law to the effect that Riley could not renew her license. See Tex. Gov’t Code Ann. § 2001.058(e) (West 2008) (state agency may change conclusion of law made by ALJ if agency determines ALJ did not properly apply or interpret applicable law). The Board concluded that its failure to prove it sent notice to Riley prior to her license’s expiration “does not relieve her from the responsibility to renew her license and is not a defense to her failure to renew.” Riley filed a motion for rehearing, which was denied by the Board. See id,. §§ 2001.145, .146 (West 2008) (motions for rehearing).

On April 25, 2008, Riley filed suit in district court seeking judicial review of the Board’s decision denying her claim for reinstatement of her license. See id. § 2001.171 (West 2008) (judicial review of final decision in contested case). On January 8, 2009, the district court entered judgment in favor of the Board and affirmed the Board’s February 22, 2008 decision. Riley appeals.

Analysis

Review of an administrative decision in a license revocation hearing is generally a substantial evidence review. See id. § 2001.174 (West 2008). An administrative decision is subject to reversal if it is affected by error of law. See id. § 2001.174(2)(D). The interpretation of a statute is a question of law, which we review de novo. See State v. Shumake, 199 S.W.3d 279, 284 (Tex.2006); In re Humphreys, 880 S.W.2d 402, 404 (Tex.1994). Therefore, we review de novo whether the Board’s failure to timely provide notice has the result of excusing or tolling a licensee’s failure to timely renew her license.

Section 503.353 of the occupations code sets out the Board’s obligation to provide notice of impending license expiration:

Not later than the 30th day before the expiration date of a person’s license, the board shall send written notice of the impending license expiration to the person at the person’s last known address according to the board’s records.

Tex. Occ.Code Ann. § 503.353. Section 503.354 of the occupations code sets out the procedures for a licensee to renew her license:

(a) A license holder is responsible for renewing the license before the expiration date of the license.
(b) A person may renew an unexpired license by paying the required renewal fee to the board before the expiration date of the license.
(c) A person whose license has been expired for 90 days or less may renew the license by paying to the board a fee that is equal to 1-1/4 times the amount of the renewal fee.
(d) If a person’s license has been expired for more than 90 days but less than one year, the person may renew the license by paying to the board a fee that is equal to 1-1/2 times the amount of the renewal fee.
(e) A person whose license has been expired for one year or more may not renew the license. The person may obtain a new license by complying with the requirements and procedures for obtaining an original license.

Id. § 503.354.

When construing a statute, we begin with its language. Shumake, 199 S.W.3d at 284. Neither section 503.353 nor section 503.354 states that failure to comply with the former statute excuses, tolls, or otherwise affects the deadlines imposed by the latter statute. Moreover, section 503.354 specifically states that the licensee is the responsible party for timely renewing her license. See id. § 503.354(a). To construe the statutes to mean that the Board’s sending the section 503.353 notice is a prerequisite to the licensee’s obligation to renew her license would be to impose the initial responsibility for the license’s renewal on the Board — a result not contemplated by the statutory structure. The language of the statutes indicates that the Board’s failure to give notice does not affect the licensee’s responsibilities regarding license renewal.

Riley refers to the Texas Supreme Court’s statement that “[w]hen the statute is silent about consequences of noncompliance, we look to the statute’s purpose in determining the proper consequence of noncompliance.” See Albertson’s, Inc. v. Sinclair, 984 S.W.2d 958, 961 (Tex.1999). This does not alter the analysis. The relevant statutes, here, require that a person be licensed under occupations code chapter 503 to engage in the practice of professional counseling. See Tex. Occ.Code Ann. § 503.301. The deadlines provided by section 503.354 ensure that a licensee is up to date with license fees, see id. § 503.354, continuing education requirements, see id. § 503.351(2) (West Supp.2009), and any other statutory requirements for a licensee, see id. § 503.351(1); see also 22 Tex. Admin. Code § 681.123(c) (2009) (renewal form includes criminal history information). An apparent purpose of section 503.354’s deadlines, then, is that licensees remain subject to the Board’s oversight. In this context, the section 503.353 notice serves as a reminder, not a trigger for deadlines. Under Riley’s interpretation of the statutes, if for any reason the Board failed in its administrative responsibility to send notice to a licensee, the licensee would remain licensed — even if he failed to fulfill the applicable continuing education requirements or otherwise became unfit to be licensed — until the Board learned of its administrative error. This conflicts with the purposes of occupations code chapter 503.

We also note that these are not circumstances in which the licensee is unable to timely renew her license in the absence of prior notice. Cf. Commercial Life Ins. Co. v. Texas State Bd. of Ins., 774 S.W.2d 650, 651-52 (Tex.1989) (holding that deadline to file motion for rehearing following agency order was tolled until party received notice because otherwise party had no notice of order and would be precluded from appealing order). Even if it is true, as Riley argues, that a licensee cannot know for certain “how to renew” without notice because the Board might change the applicable procedures, Riley does not assert that the Board can change the expiration date itself that is applicable to a particular license from the date of its issuance. Moreover, a licensee’s ability to obtain an unexpired license following the expiration date, although made more costly or difficult, is not removed. Within a year of the expiration date, a license may be renewed by paying an increased fee. See Tex. Occ.Code Ann. § 503.354(c), (d). After the end of the year, a license may be obtained in accordance with the procedures applicable to a new license. See id. § 503.354(e); see also id. § 503.302 (West Supp.2009) (qualifications for license), § 503.305 (West Supp.2009) (license examination), § 503.3055 (West Supp.2009) (jurisprudence examination).

Riley contends that the Board’s regulations support her interpretation because they state that the board “will send notice.” See 22 Tex. Admin. Code § 681.123(a); see also Tarrant Appraisal Dist. v. Moore, 845 S.W.2d 820, 823 (Tex. 1993) (construction of statute by administrative agency charged with its enforcement is entitled to serious consideration if construction reasonable and does not contradict plain language of statute). However, as with the relevant statutes, none of the regulations provides that the Board’s failure to comply with the notice requirement excuses, tolls, or otherwise affects the renewal deadlines imposed on the licensee. We also note that, effective April 27, 2008, the following provision was added to the Board’s regulations: “Failure to receive notice does not reheve the licensee from the responsibility to timely renew.” 22 Tex. Admin. Code § 681.123(b). Moreover, prior to such addition, the regulations stated that the license holder was “responsible for renewing the license,” and “shall not be excused” from paying any late fees or penalty fees. See 28 Tex. Reg. 4134, adopted 28 Tex. Reg. 1329, 1352 (2003), amended by 33 Tex. Reg. 3268, adopted 33 Tex. Reg. 476, 489-90 (2008).

Next, Riley argues that the Board’s denial of her license’s renewal without first providing her notice of the license’s expiration date was a violation of her constitutional right to due process. See Tex. Gov’t Code Ann. § 2001.174(2)(A) (administrative decision may be reversed if in violation of constitutional provision). Assuming without deciding that Riley had a property interest in her license warranting protection under the federal and state constitutions, any such interest had an expiration date. Riley might have been entitled to notice and an opportunity to be heard in the event that the Board sought to revoke her license during its term. See, e.g., House of Tobacco, Inc. v. Calvert, 394 S.W.2d 654, 657 (Tex.1965) (due process applies to revocation of cigarette distribution license). Here, however, Riley’s license expired in accordance with its statutory expiration date and Riley did not comply with the statutory renewal procedures. Therefore, the expiration of Riley’s license did not cause the loss of a protected property right. See Smith v. Travis County Bail Bond Bd., 559 S.W.2d 693, 694 (Tex.Civ.App.-Austin 1977, no writ).

We recognize Riley’s allegation that the Board’s failure to give notice preceded and contributed to Riley’s failure to comply with the applicable renewal requirements. However, any property rights here have their origin in the applicable licensing statutes, and as we have concluded, the pre-expiration notice is not a statutory prerequisite to Riley’s obligation to comply with the applicable renewal requirements. Consequently, Riley cannot elevate the provision of pre-expiration notice to a constitutional right with respect to the non-renewal of her license. See Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) (property interests created by state law and have their dimensions defined by state law).

Conclusion

We conclude that the Board’s failure to provide notice of impending license expiration as required by occupations code section 503.353 did not excuse, toll, or otherwise affect Riley’s independent responsibility to comply with occupations code section 503.354 in order to renew her license to practice professional counseling. Therefore, we hold that the Board properly denied Riley’s application for renewal of her license. The judgment of the district court is affirmed.

      . Occupations code section 503.351 provides for license renewal '‘biennially." See Tex. Occ.Code Ann. § 503.351 (West Supp.2009). Prior to 2005, however, renewals were required annually. See Act of June 1, 1981, 67th Leg., R.S., ch. 775, sec. 14(e), 1981 Tex. Gen. Laws 2913, 2920, recodified by Act of May 13, 1999, 76th Leg., R.S., ch. 388, § 1, sec. 503.351, 1999 Tex. Gen. Laws 1431, 1905, amended by Act of May 24, 2005, 79th Leg., R.S., ch. 561, § 20, 2005 Tex. Gen. Laws 1489, 1493.

      . Our interpretation of sections 503.353 and 503.354 is consistent with the statutes' legislative history. When the relevant provisions were enacted in 1981, the licensee was “responsible for renewing his license before the expiration date,” and notice of license expiration by the Board was not required until 30 days after the expiration date. See Act of June 1, 1981, 67th Leg., R.S., ch. 775, sec. 14(f), (g), 1981 Tex. Gen. Laws 2913, 2920. In 1993, the legislature amended the statutes to require that notice be sent at least 30 days before the expiration date, but the provision regarding the licensee being the responsible party was not removed or revised. See Act of May 26, 1993, 73d Leg., R.S., ch. 581, § 12, sec. 14(h), (n), 1993 Tex. Gen. Laws 2196, 2203-04. On recodification, the statutes retained both the pre-expiration notice and the placing of responsibility on the licensee. See Act of May 13, 1999, 76th Leg., R.S., ch. 388, § 1, secs. 503.353, .354(a), 1999 Tex. Gen. Laws 1431, 1905.

      . Riley also argues that the statutory requirement that notice be sent 30 days prior to the date of expiration is mandatory and not directory. The mandatovy/directory distinction might be relevant if the Board were attempting to enforce a right arising from a late or undelivered notice. See, e.g., Edwards Aquifer Auth. v. Chemical Lime, Ltd., 291 S.W.3d 392, 402-05 (Tex.2009) (applicant sought to obtain permit despite application's post-deadline filing); Texas Dep't of Pub. Safety v. Dear, 999 S.W.2d 148, 150-51 (Tex.App.-Austin 1999, no pet.) (drivers' license suspension upheld in hearing held after time period when hearing "shall be held”). Here, however, even if we determined that the 30-day deadline for notice is mandatory, we would still be left with the issue in this case: whether the Board’s failure to timely provide notice excuses or tolls Riley's independent responsibility to renew her license. We have already concluded that it does not. Thus, we need not decide whether the 30-day deadline for notice is mandatory or directory.