source: Caselaw Access Project

author: DAVID PURYEAR, Justice.

license: Public Domain

text:
    ID/GUERRA LP, Appellant, v. TEXAS WORKFORCE COMMISSION, Appellee.
    No. 03-09-00263-CV.
    Court of Appeals of Texas, Austin.
    July 23, 2010.

      J. Winston Krause, Krause & Associates, LP, Austin, TX, for Appellant.
    Susan M. Wolfe, Assistant Attorney General, Taxation Division, Austin, TX, for Appellee.
    Before Justices PATTERSON, PURYEAR and PEMBERTON.
   OPINION

DAVID PURYEAR, Justice.

The Texas Workforce Commission (the “Commission”) sent ID/Guerra, LP (“ID/Guerra”) a notice informing ID/Guerra that it owed unemployment taxes. See Tex. Labor Code Ann. § 213.032(a) (West 2006) (specifying manner in which Commission must provide notice of assessment). After receiving the notice, ID/Guerra filed a lawsuit contesting the assessment. Id. § 213.032(c) (West 2006) (allowing employers to contest assessment by filing “petition for judicial review”). Almost two years later, the district court held a hearing regarding whether the case should be dismissed for want of prosecution. See Tex.R. Civ. P. 165a (allowing case to be dismissed due to failure of party to appear for hearing or trial “of which the party had notice”). Several months after the hearing, the district court signed an order dismissing the case.

Five months after the case was dismissed, ID/Guerra sent a discovery request to the Commission. After receiving the request, the Commission informed ID/Guerra that it would not be responding because the case had been dismissed. Early the next month, ID/Guerra filed a motion to reinstate the case. In its motion, ID/Guerra asserted that the case was improperly dismissed because no notice regarding the hearing or the dismissal order was sent to its attorney even though ID/Guerra listed its attorney’s name and address in its petition. As support for this assertion, ID/Guerra attached an affidavit from a deputy clerk for the district court and a printout from the district court’s internal database. The affidavit specified that the district clerk’s records for the case “reflectfed] no attorneys representing [ID/Guerra] nor any address or other contact information for” ID/Guerra. Further, the affidavit clarified that because the court’s database had no address for ID/Guerra or its attorney, the district clerk’s office “did not mail any notice” regarding the hearing or the dismissal to ID/Guerra “or its counsel.” The printout confirmed that the court’s database had no attorney listed for ID/Guerra.

The record does not indicate whether the district court made any ruling regarding the motion to reinstate. However, a few days after filing its notice to reinstate, ID/Guerra filed this restricted appeal. See Tex.R.App. P. 30 (allowing party who did not participate in dismissal hearing to file restricted appeal); see also id. R. 26.1(c) (specifying six-month deadline by which restricted appeal must be filed). We will affirm the judgment of the district court.

DISCUSSION

In one issue on appeal, ID/Guerra contends that the district court erred by dismissing this case for want of prosecution. Specifically, ID/Guerra repeats the assertions it made in its motion to reinstate and insists that because the district court “sent no notice to [ID/Guerra] of either the Court’s intent to dismiss, or of the hearing, or of the order dismissing the case,” the district court’s dismissal should be reversed.

In order for an appellate court to reverse a dismissal in a restricted appeal, the error complained of must be apparent on the face of the record. Tex.R.App. P. 26.1(c), 30; see Norman Commc’ns v. Texas Eastman Co., 955 S.W.2d 269, 270 (Tex.1997). In light of the facts that ID/Guerra listed its attorney’s name and address in its petition and that the Commission’s answer also listed the name and address for ID’s attorney, the affidavit and accompanying printout attached to ID’s motion to reinstate would seem to demonstrate error on the face of the record because they show that the case was dismissed without sending notice to ID’s attorney. See Tex.R.Civ. P. 165a(l) (allowing district court to dismiss case for want of prosecution only after providing parties and “each attorney of record” with notice of its “intention to dismiss and the date and place of the dismissal hearing”), 306a(l), (3) (requiring district court to send notice to parties or their attorneys that dismissal order was signed); see also General Motors Acceptance Corp. v. City of Houston, 857 S.W.2d 731, 733 (Tex.App.-Houston [14th Dist.] 1993, no writ) (concluding that error was present on face of record when notice of intent to dismiss and dismissal order contained “an improper and incomplete address”).

However, the motion and its attachments were not timely filed. Rule of civil procedure 165a states that a motion to reinstate must be “filed with the clerk within 30 days after the order of dismissal is signed” or within 30 days of the time specified in rule 306a. See Tex.R. Civ. P. 165a(3). Rule 306a contemplates situations in which a party or his attorney does not receive notice that a dismissal order has been entered and signed. Id. R. 306a(l), (4). In these circumstances, the rule specifies that the time to file a motion to reinstate begins on the date that a party adversely affected by the dismissal or his attorney receives notice from the clerk that the dismissal has been signed or acquires actual knowledge from another source that the dismissal has been signed. Id. R. 306a(4). However, the rule clarifies that “in no event shall such period begin more than ninety days after the original judgment or other appealable order was signed.” Id. (emphasis added).

The dismissal order was signed in November 2008, but the motion to reinstate was not filed until more than five months later. Accordingly, even the extended deadline applicable when parties do not receive notice had expired, and the district court no longer had plenary power to reinstate the case or to consider the information contained in and attached to the motion to reinstate. See Tex.R. Civ. P. 165a, 306a. For these same reasons, we must conclude that we cannot consider the motion or its attachments when determining if there is error on the face of the record. See Carroll v. Carroll, 304 S.W.3d 414, 419-20 (Tex.App.-Waco 2008) (refusing to consider as part of record testimony presented during hearing regarding untimely filed motion for new trial), rev’d on other grounds, 304 S.W.3d 366 (Tex.2010); see also General Elec. Co. v. Falcon Ridge Apartments, 811 S.W.2d 942, 944 (Tex.1991) (noting that rendering judgment on evidence trial court was not able to consider “undermines [the] judicial structure”); Laas v. Williamson, 156 S.W.3d 854, 857 (Tex.App.-Beaumont 2005, no pet.) (stating that documents that were placed in record after judgment was entered are not part of record to be reviewed in restricted appeal); Stankiewicz v. Oca, 991 S.W.2d 308, 311—12 (Tex.App.-Fort Worth 1999, no pet.) (noting that record only consists of those documents that were on file with district court when judgment was entered); Barker CATV Constr., Inc. v. Ampro, Inc., 989 S.W.2d 789, 794 (Tex.App.-Houston [1st Dist.] 1999, no pet.) (on reh’g) (concluding that in restricted appeals, appellate courts may not consider evidence “unless it was before the trial court when it rendered judgment”); cf. Ginn v. Forrester, 282 S.W.3d 430, 432-33 (Tex.2009) (explaining that affidavits from district clerk that assert that notice was not sent and that were filed for the first time in appellate court cannot support restricted appeal).

In its reply brief, ID/Guerra attempts to distinguish the circumstances found in several of the cases cited above from those present in this case and, therefore, argues that those cases cannot properly support an affirmance in this case. Specifically, ID/Guerra contends that Falcon Ridge, Laas, and Barker involved situations in which a party attempted to file documents for the first time with the appellate court or attempted to supplement the record after an appeal had been filed but that the affidavit and printout that it relies on were filed with the trial court and were part of the record when the appeal was originally filed. See 811 S.W.2d at 943 (addressing affidavits filed for first time in appellate court); 156 S.W.3d at 857 (involving corrected return of citation that was filed as appendix to appellate brief but was not in clerk’s record); 989 S.W.2d at 795-96 (concerning uncertified copy of amendment to return of citation that was included in supplemental clerk’s record as attachment to letter submitted to trial court by party after appeal had been filed). Consequently, ID/Guerra insists that the cases should not be read as prohibiting appellate courts from considering in a restricted appeal documents that are filed after an order of dismissal has been signed but before an appeal has been filed.

In this case, we are not presented with a situation in which an appellant filed a timely motion to reinstate and submitted documents supporting his assertion that the case was improperly dismissed. Consequently, we need not consider whether the record in a restricted appeal can include documents that were filed after a dismissal order is issued but within the time allowable to reinstate the case. Rather, in this case we have only determined that documents filed after the expiration of a trial court’s plenary power do not become part of the record to be reviewed in a restricted appeal. Because filing documents after a trial court has lost plenary power deprives the trial court of the opportunity to consider the evidence presented in those documents in the same way that filing documents for the first time on appeal does, we believe that the principles articulated in Falcon Ridge, Laas, and Barker are applicable to this case as well.

Other than those items untimely filed by ID/Guerra, the record is silent regarding whether the district court sent notice regarding the dismissal hearing and notice that a dismissal order had been signed. Because no obligation is imposed on district courts to keep records regarding whether notices were actually sent, the absence of proof in the record that notice was provided is “insufficient to establish reversible error in a restricted appeal.” Ginn, 282 S.W.3d at 433; see Falcon Ridge Apartments, 811 S.W.2d at 943-44 (noting that typically record in dismissals will be silent as to “whether or not the required notices were given” and concluding that silence does not constitute error on face of record).

For these reasons, we overrule ID’s issue on appeal. Because ID’s challenge to the district court’s judgment relies on evidence that was not timely filed with the district court, the appropriate remedy is a bill of review “so that the trial court has the opportunity to consider and weigh factual evidence.” See Ginn, 282 S.W.3d at 432; Falcon Ridge Apartments, 811 S.W.2d at 944; Laas, 156 S.W.3d at 857 (stating that documents “filed after judgment may be considered in a bill of review proceeding and on appeal from the denial of a bill of review, but not in a restricted appeal”); see also Caldwell v. Barnes, 154 S.W.3d 93, 96 (Tex.2004) (explaining that “bill of review is an equitable proceeding brought by a party seeking to set aside a prior judgment that is no longer subject to challenge by a motion for new trial or appeal”).

CONCLUSION

Having overruled ID’s issue on appeal, we affirm the judgment of the district court.

      . The following three requirements must also be met before an appellate court may reverse a dismissal in a restricted appeal: (1) the appeal must have been filed within six months after the trial court signed the judgment dismissing the case; (2) the appeal must have been filed by a party to the suit; and (3) the party must not have participated in the trial. See Tex.R.App. P. 26.1(c), 30; see Norman Commc’ns v. Texas Eastman Co., 955 S.W.2d 269, 270 (Tex.1997). None of those requirements are in dispute in this case.

        . As support for its assertion that this Court may consider items that were added to the record after the case was dismissed, ID/Guerra refers to various memorandum opinions. See, e.g., DC Controls, Inc. v. UM Capital, L.L.C., No. 05-07-01728-CV, 2008 WL 4648422, 2008 Tex.App. LEXIS 8018 (Tex.App.-Dallas Oct. 22, 2008, no pet.) (mem. op.) (addressing evidence that service of citation was sent one week after case was dismissed but before case was reinstated); Martin v. H & S Kadiwala, Inc., No. 05-06-00113-CV, 2007 WL 969593, 2007 Tex.App. LEXIS 2591 (Tex.App.-Dallas Apr. 3, 2007, no pet.) (mem. op.) (considering oral pronouncement at hearing occurring after dismissal order was entered when determining if there was error on face of record). However, none of those cases involved a situation in which evidence was filed after the trial court had lost plenary power.
      ID/Guerra also cites to a case in which an appellate court considered as part of the record an affidavit that was attached to a party's motion to reinstate but that was filed after the 30 day deadline for filing a motion to reinstate. See Cordero v. American Home Assurance Co., 281 S.W.3d 13 (Tex.App.-El Paso 2005, no pet.); see also Tex.R. Civ. P. 165a(3) (setting out deadlines for filing motion to reinstate). Although the affidavit was filed after the 30 day deadline, the affidavit specified that Cordero was not given notice of the dismissal until after the 30 day deadline had expired, and the court stated that the extended deadline for parties who do not receive notice of a dismissal order had not expired by the time she filed the motion and the affidavit. Cordero, 281 S.W.3d at 14-15, 15 n. 2; see Tex.R. Civ. P. 306a (setting deadlines for motions to reinstate when parties are not informed that their cases have been dismissed). In the present case, however, both the normal 30 day deadline and the extended deadline had expired by the time ID/Guerra filed its motion to reinstate and the accompanying attachments. Consequently, Cordero does not stand for the proposition that documents filed after the expiration of a trial court’s plenary power may be reviewed as part of the record in a restricted appeal.

      . In its reply brief, ID/Guerra insists that a letter prepared by the district clerk in response to a request by ID/Guerra demonstrates "that the trial court failed to notify appellants of its intent to dismiss their suit.” Specifically, ID/Guerra notes that it asked the clerk to prepare a supplemental clerks record containing copies of the following items: (1) the district court's "Notice of Intent to Dismiss," (2) its "Notice of Dismissal,” and (3) its docket "sheet for the dismissal hearing.” In response to the request, the clerk certified that those items were not part of the record on file at the district court. In light of that acknowledgment, ID/Guerra insists that there is error on the face of the record.
      However, ID’s assertions ignore the fact that although district court clerks are re-

        quired to mail notice regarding a dismissal hearing and regarding the signing of a dismissal order, the rules of civil procedure impose no duty "to record the mailing of the required notices.” See Ginn v. Forrester, 282 S.W.3d 430, 433 (Tex.2009). Accordingly, the clerk’s acknowledgment reflects "nothing more than affirmation of a silent record, which is insufficient to establish reversible error in a restricted appeal.” Id.


author: LESLIE B. YATES, Justice.

text:
    Joe Cruz BANDA, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 14-09-00209-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    July 27, 2010.

      Clyde Walter Burleson, Houston, for appellant.
    Donald W. Rogers Jr., Houston, for ap-pellee.
    Panel consists of Justices YATES, SEYMORE, and BROWN.
   OPINION

LESLIE B. YATES, Justice.

Appellant Joe Cruz Banda, Jr. pleaded guilty to misdemeanor driving while intoxicated. In two issues, appellant challenges the trial court’s denial of his motion to suppress evidence. We affirm.

Factual and Procedural Background

In May 2008, William White and his wife were driving on a highway when White was forced to veer into an emergency lane to avoid being struck by a Ford Taurus. White observed the Taurus travelling at inconsistent speeds and failing to stay within one lane. He also saw the driver drinking from a bottle covered by a brown bag. White began following the Taurus and called 911 to report a possible drunk driver. The Taurus soon exited the freeway and pulled into a convenience store, where the driver went inside and made a purchase. White stopped near the convenience store and gave the 911 dispatcher a physical description of the driver. After the Taurus left the convenience store, White saw the driver open the driver’s side door and throw two empty beer cans into the street. White continued following the Taurus until it turned into a neighborhood and stopped in a residential driveway. White parked a short distance from the residence and observed the driver stay in the Taurus for a short time, then enter the garage where several individuals were gathered. White stayed on the phone with the 911 dispatcher for approximately ten minutes until police officers arrived at his location.

Officer Miguel Daniel was the first officer to arrive at the scene. White recounted the evening’s events and described the Taurus’s driver to Officer Daniel. Officer Daniel then approached the residence and asked the individuals in the garage who had been driving the Taurus. A few moments later, appellant responded that he had been driving the vehicle and agreed to speak with Officer Daniel outside the garage. After appellant left the garage, Officer Charles Bartlett arrived at the scene and began speaking with White. Officer Daniel subsequently brought appellant to White’s vehicle, and White identified appellant as the individual he saw driving the Taurus.

Appellant informed the police that he had recently returned to his home after driving the Taurus to drop an acquaintance off at another location and stopping to buy ice for a party being held at his home. As Officer Bartlett spoke with appellant, he noticed that appellant had slurred speech and glassy eyes, as well as a strong odor of alcohol about him. Officer Bartlett then administered the one-leg-stand, walk-and-turn, and Horizontal Gaze Nystagmus (HGN) tests. Appellant exhibited six clues on the HGN test and was unable to complete the remaining two tests. After observing appellant’s responses to these tests, Officer Bartlett placed appellant under arrest for driving while intoxicated.

Appellant was charged with misdemean- or driving while intoxicated. Appellant filed a motion to suppress evidence challenging the legality of his arrest and seeking to suppress “any and all evidence” related to his arrest. Following a suppression hearing, the trial court denied appellant’s motion. After appellant pleaded guilty to the charged offense and true to the enhancement allegations, the trial court assessed punishment at thirty days’ confinement in the Harris County Jail. This appeal followed.

Standard of Review

We review a trial court’s ruling on a motion to suppress evidence under a bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex.Crim.App.2007). Trial judges are uniquely situated to observe the demeanor and appearance of any witnesses and, as the sole fact-finder at a suppression hearing, may believe or disbelieve any portion of a witness’s testimony and make reasonable inferences from the evidence presented. Amador v. State, 275 S.W.3d 872, 878 (Tex.Crim.App.2009); Wiede v. State, 214 S.W.3d 17, 24-25 (Tex.Crim.App.2007). Accordingly, we afford a great deal of deference to the trial court’s determination of historical facts. Amador, 221 S.W.3d at 673. However, whether a specific search or seizure is reasonable or supported by probable cause is a question of law subject to de novo review. Dixon v. State, 206 S.W.3d 613, 616 (Tex.Crim.App.2006).

During our review, we must consider all the evidence in the light most favorable to the trial court’s ruling. State v. Iduarte, 268 S.W.3d 544, 548 (Tex.Crim.App.2008). When, as here, the trial court enters findings of fact after denying a motion to suppress, we must determine whether the evidence — viewed in the light most favorable to the trial court’s decision — supports the findings. Keehn v. State, 279 S.W.3d 330, 334 (Tex.Crim.App.2009). We then review the trial court’s legal conclusions de novo and will uphold the ruling so long as it is supported by the record and correct under any legal theory applicable to the case. Iduarte, 268 S.W.3d at 548.

Analysis

Appellant raises two issues challenging the trial court’s denial of his motion to suppress evidence. In his first issue, appellant contends he was unlawfully seized because the officers involved in the arrest lacked reasonable suspicion to believe he drove while intoxicated. In his second issue, appellant argues he was subjected to an unlawful warrantless arrest because the police lacked probable cause and no exception to the warrant requirement justified his warrantless arrest. Because each of appellant’s issues require an analysis of similar facts, we will address the issues together.

1. Burden of Proof

A defendant seeking to suppress evidence on the basis of an alleged Fourth Amendment violation bears the initial burden of rebutting the presumption of proper police conduct. Young v. State, 283 S.W.3d 854, 872 (Tex.Crim.App.) (per curiam), cert. denied, — U.S. -, 130 S.Ct. 1015, 175 L.Ed.2d 622 (2009). A defendant meets this burden by demonstrating that the challenged search or seizure occurred without a warrant. Id. The burden then shifts to the State to prove that the search or seizure was reasonable under the totality of the circumstances. Amador, 221 S.W.3d at 672-73. This burden may be satisfied by a showing that one of the statutory exceptions to the warrant requirement is met. See Torres v. State, 182 S.W.3d 899, 902 (Tex.Crim.App.2005). In this case, it is undisputed that no warrant was issued for appellant’s arrest. As a result, the State bore the burden of establishing the reasonableness of appellant’s detention and arrest. See Young, 283 S.W.3d at 872; Amador, 221 S.W.3d at 672-73.

2. Consensual Encounter Versus Investigative Detention

Appellant contends the police lacked reasonable suspicion to believe he drove while intoxicated because no officers observed him driving and appellant does not match the physical description provided by White to the 911 dispatcher. For these reasons, appellant argues he was unlawfully detained either in his garage or in the area outside his home.

There are three distinct categories of interactions between citizens and police officers: encounters, investigative detentions, and arrests. State v. Perez, 85 S.W.3d 817, 819 (Tex.Crim.App.2002); Mount v. State, 217 S.W.3d 716, 724 (Tex.App.-Houston [14th Dist.] 2007, no pet.). Not all interactions between citizens and the police implicate constitutional protections against unreasonable searches and seizures. See Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991); Hunter v. State, 955 S.W.2d 102, 104 (Tex.Crim.App.1997). Each citizen-police interaction must be evaluated on its own terms. State v. Garcia-Cantu, 253 S.W.3d 236, 243 (Tex.Crim.App.2008). A consensual encounter occurs when a police officer approaches an individual in a street or other public place and asks if the person is willing to answer some questions. Perez, 85 S.W.3d at 819. Police officers are also free to approach an individual’s residence or vehicle and ask to speak with them. See Garcia-Cantu, 253 S.W.3d at 243. No constitutional rights are implicated in such situations. Perez, 85 S.W.3d at 819. So long as the citizen remains free to disregard the officer’s questions or go about his business, the encounter is consensual, and reasonable suspicion is unnecessary. St. George v. State, 237 S.W.3d 720, 726 (Tex.Crim.App.2007); McCraw v. State, 117 S.W.3d 47, 51 (Tex.App.-Fort Worth 2003, pet. ref'd).

An investigative detention is a confrontation between a police officer and a citizen in which the citizen yields to a display of authority and is temporarily detained for purposes of an investigation. Cantrell v. State, 280 S.W.3d 408, 412 (Tex.App.-Amarillo 2008, pet. ref'd). A person yields to an officer’s display of authority when a person would not feel free to leave and terminate the encounter. Johnson v. State, 912 S.W.2d 227, 235 (Tex.Crim.App.1995). Investigative detentions are authorized when an officer has reasonable suspicion to believe an individual is involved in criminal activity. Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App.2002). Reasonable suspicion exists if, under the totality of the circumstances, the detaining officer has specific articulable facts that, when combined with reasonable inferences, would lead him to reasonably suspect that a particular person will soon be or has been engaging in criminal activity. Id.; State v. Rudd, 255 S.W.3d 293, 299 (Tex.App.-Waco 2008, pet. ref'd).

The trial court entered the following relevant written findings of fact following the suppression hearing: After obtaining a description of the Taurus’s driver from White, Officer Daniel approached appellant’s open garage and asked those assembled in the garage who drove the Taurus. A few moments later, appellant responded that he drove the vehicle. Officer Daniel, who did not enter the garage, then asked appellant to come outside and speak with him in the driveway. Appellant voluntarily complied, without being forced or coerced, and accompanied Officer Daniel to White’s vehicle where White identified appellant as the Taurus’s driver. By this time, Officer Bartlett had arrived at the scene and began speaking with appellant. Officer Bartlett detected a strong odor of alcohol coming from appellant and observed that appellant’s eyes were glassy and his speech was slurred. Officer Bartlett then administered three field-sobriety tests, which yielded several signs of intoxication.

After reviewing these facts under the totality of the circumstances, we conclude the initial interaction between appellant and Officer Daniel constituted a consensual encounter. Following his conversation with White, Officer Daniel was free to approach appellant’s open garage, inquire who had been driving the Taurus, and ask to speak with appellant after appellant acknowledged driving the vehicle. See Perez, 85 S.W.3d at 819 (concluding interaction between police officer and appellant where officer followed appellant into an apartment complex and knocked on appellant’s door to investigate a reported purse-snatching constituted a consensual encounter); see also Garciar-Cantu, 253 S.W.3d at 243 (recognizing police officers are free to approach a residence to ask to speak with an individual and that such conduct does not constitute a seizure until the officer engages in coercive, offensive, or threatening conduct). Nothing in the record indicates that appellant was compelled to exit his garage due to the threatening presence of several officers, a display of a weapon or physical touching by Officer Daniel, a display of authority or control by the activation of a siren or patrol car overhead lights, or any indication through Officer Daniel’s words or tone of voice that appellant could not refuse Officer Daniel’s request to leave the garage and speak to him. See Koteras v. State, No. 14-09-00286-CR, 2010 WL 1790808, at *4 (Tex.App.-Houston [ 14th Dist.] May 6, 2010, no pet.) (mem. op., not designated for publication) (listing several factors that may indicate a police-citizen interaction is a seizure rather than a consensual encounter) (citing United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980)). Because the initial interaction between Officer Daniel and appellant was a consensual encounter, no reasonable suspicion was necessary for Officer Daniel to approach the garage and ask to speak with appellant. See St. George, 237 S.W.3d at 726. Accordingly, the interaction between appellant and Officer Daniel did not constitute an unlawful detention.

Appellant’s Fourth Amendment rights were not implicated, and no reasonable suspicion was required, until Officer Bartlett became involved in the investigation and administered field-sobriety tests. See Rudd, 255 S.W.3d at 298 (noting that an encounter escalates to an investigative detention when an officer obtains reasonable suspicion to believe an individual drove while intoxicated and then conducts field-sobriety tests). Appellant contends no reasonable suspicion was present because none of the officers involved in the arrest observed him driving. Reasonable suspicion, however, may be supplied by information acquired from another person and need not arise from an officer’s personal observations. Brother v. State, 166 S.W.3d 255, 257 (Tex.Crim.App.2005) (involving situation where private citizen remained in contact with 911 dispatcher while following suspected drunk driver).

Here, Officer Bartlett knew White had followed appellant to his present location and remained in contact with the 911 dispatcher until police arrived at his location. White was willing to identify himself, remain on the telephone, follow the suspect, and stay at the scene to identify the suspected drunk driver. This gives significant weight to the information provided by White to the police. See Reesing v. State, 140 S.W.3d 732, 737 (Tex.App.-Austin 2004, pet. ref'd) (involving facts similar to this case); see also In re J.D.B., 209 S.W.3d 708, 710 (Tex.App.-Houston [14th Dist.] 2006, no pet.) (recognizing information provided to the police by a citizen is inherently credible and reliable when the citizen’s only contact with the police is having witnessed the commission of a criminal act). Appellant also informed the police he had recently returned home after driving the Taurus and White positively identified appellant as the Taurus’s driver. Officer Bartlett detected several indicators that appellant was intoxicated. Taken together, these facts are sufficiently reliable to support a conclusion that appellant drove while intoxicated, thus providing Officer Bartlett with reasonable suspicion to detain appellant. See Garcia v. State, 296 S.W.3d 180, 185 (Tex.App.-Houston [14th Dist.] 2009, no pet.) (concluding police had reasonable suspicion to believe appellant drove while intoxicated based on private citizen’s eye-witness account of erratic driving and officer’s own observations). Accordingly, the interaction between appellant and Officer Bartlett did not constitute an unlawful investigative detention.

3. Appellant’s Warrantless Arrest

Appellant further contends he was illegally arrested because the police did not obtain a search warrant and had no probable cause to arrest appellant, and that none of the statutory exceptions to the warrant requirement apply in this case. See Torres, 182 S.W.3d at 901 (recognizing that, under Texas law, warrantless arrests are proper only when (1) probable cause for the arrest exists with respect to the individual in question and (2) the arrest falls within one of the statutory exceptions to the warrant requirement).

a. Probable Cause

Probable cause for a war-rantless arrest exists when the arresting officer possesses reasonably trustworthy information sufficient to warrant a reasonable belief that an offense has been or is being committed. Paulea v. State, 278 S.W.3d 861, 864 (Tex.App.-Houston [14th Dist.] 2009, pet. ref'd) (citing McGee v. State, 105 S.W.3d 609, 614 (Tex.Crim.App.2003)). The State bears the burden of proving probable cause to support a warrantless arrest. Id. at 865. We review de novo whether probable cause exists to justify a warrantless arrest after considering the totality of the circumstances surrounding the arrest. Id.

As discussed earlier, Officer Bartlett possessed sufficient facts to form a reasonable inference that appellant drove while intoxicated based on the background facts provided by White and appellant and appellant’s performance during the field-sobriety tests. See id. (defining “probable cause”); see also Diaz v. State, No. 05-09-00750-CR, 2010 WL 1714001, at *2 (Tex.App.-Dallas Apr. 28, 2010, no pet.) (not designated for publication) (concluding officer had probable cause to arrest appellant for driving while intoxicated based on results of field-sobriety tests, appellant’s breath smelling of alcohol, and appellant’s unsteady balance); Johnson v. State, No. 14-07-00818-CR, 2008 WL 5085561, at * 2 (Tex.App.-Houston [14th Dist.] Nov. 25, 2008, pet. dism’d) (mem. op., not designated for publication) (“[A]ppellant’s failure of the field[-]sobriety test also provided a basis for probable cause to arrest him.”).

b. Exception to the Warrant Requirement

Under Texas law, warrantless arrests are authorized only in limited circumstances outlined primarily in Chapter 14 of the Code of Criminal Procedure. Swain v. State, 181 S.W.3d 359, 366 (Tex.Crim.App.2005). The State contends appellant’s arrest is justified under article 14.03(a)(1) of the Code of Criminal Procedure, which authorizes the warrantless arrest of an individual found in a suspicious place under circumstances reasonably showing the individual committed a breach of the peace. See Tex.Code Crim. Proc. Ann. art. 14.03(a)(1) (Vernon Supp.2009). For a warrantless arrest to be justified under article 14.03(a)(1), the totality of the circumstances must show (1) the existence of probable cause that the defendant committed a crime and (2) the defendant must be found in a suspicious place. Dyar v. State, 125 S.W.3d 460, 468 (Tex.Crim.App.2003). Having earlier concluded that probable cause existed to arrest appellant, we must now determine whether appellant was found in a suspicious place.

Few places, if any, are inherently suspicious. Id. at 464-65. The determination of whether a place is suspicious requires a highly fact-specific analysis. Id. at 468. Any place may become suspicious when an individual at the location and the accompanying circumstances raise a reasonable belief that the individual committed a crime and exigent circumstances call for immediate action or detention by the police. Swain, 181 S.W.3d at 366; Hollis v. State, 219 S.W.3d 446, 459 (Tex.App.-Austin 2007, no pet.). A key factor used to justify the determination of a place as suspicious is whether the time frame between the crime and the apprehension of the suspect is short. See Dyar, 125 S.W.3d at 468.

Under the particular facts of this case, we conclude that the area outside appellant’s home where he was arrested was a suspicious place because the police could reasonably believe, based on the surrounding circumstances, that appellant drove while intoxicated and it was necessary to take prompt action in order to ascertain appellant’s blood-alcohol level. See Gallups v. State, 151 S.W.3d 196, 201-02 (Tex.Crim.App.2004) (concluding appellant’s home, where he was arrested for driving while intoxicated shortly after leaving his wrecked vehicle at the scene of an accident, was a suspicious place and that prompt action was needed to ascertain appellant’s blood-alcohol level). The short amount of time between appellant’s arrival at his home and Officer Daniel’s arrival at the scene — approximately ten minutes— also supports a conclusion that appellant was found in a suspicious place. See Dyar, 125 S.W.3d at 468; see also Cribley v. State, No. 04-04-00047-CR, 2005 WL 1812585, at *1-2 (Tex.App.-San Antonio Aug. 3, 2005, no pet.) (mem. op., not designated for publication) (affirming appellant’s conviction for driving while intoxicated after determining appellant’s home was a suspicious place because appellant returned home shortly after rear-ending another driver’s vehicle and was arrested at home an hour later); Sandoval v. State, 35 S.W.3d 763, 768-69 (Tex.App.-El Paso 2000, pet. ref'd) (concluding appellant’s backyard to be a suspicious place and recognizing warrantless arrest was necessary “because testing for alcohol is a time-sensitive matter”).

Because the totality of the circumstances show that the police possessed probable cause, appellant was found in a suspicious place, and exigent circumstances called for immediate action, we conclude appellant’s warrantless arrest is justified under article 14.03(a)(1). See Tex. Code Crim. Proc. Ann. art. 14.03(a)(1); Swain, 181 S.W.3d at 366; Dyar, 125 S.W.3d at 468. Accordingly, no search or arrest warrant was necessary in this case, and appellant was not subjected to an unlawful arrest.

Conclusion

After reviewing the record in the light most favorable to the trial court’s ruling, we conclude the trial court did not err in denying appellant’s motion to suppress evidence because its ruling is supported by the evidence and legally correct. See Id-uarte, 268 S.W.3d at 548. We overrule each of appellant’s issues and affirm the judgment of the trial court.

      . Because these findings are supported by the record, we defer to them in our review. See Iduarte, 268 S.W.3d at 549; Amador, 221 S.W.3d at 673.

      . During the suppression hearing, appellant elicited testimony that Officer Daniel physically entered the garage and that none of the individuals in the garage felt they could decline to answer Officer Daniel’s questions. Officer Daniel testified that he did not enter the garage or threaten or coerce anyone to answer his questions, and that appellant voluntarily exited the garage. As the sole judge of the credibility of the witnesses, the trial court was free to believe the version of events presented by Officer Daniel. See Wiede, 214 S.W.3d at 24-25. We defer to the trial court's determination. See Amador, 221 S.W.3d at 673.

      . Appellant insists White's identification of appellant is unreliable because appellant does not match the description given by White to the 911 dispatcher. White testified that he initially described the driver as a thirty-five to forty-five year old Hispanic male and may also have described the driver as 5'8" to 5'10" tall and weighing 160-180 pounds. During cross-examination, White acknowledged that he may have described the driver as a white male between 6'1" and 6'2" tall weighing 180 pounds. Appellant is a 5'9" Hispanic male weighing 140 pounds. The trial court found that White observed the suspected drunk driver to be a Hispanic male approximately thirty-five to forty-five years of age. As the sole judge of witness credibility, the trial court was free to determine which description White provided to the 911 dispatcher. See Wiede, 214 S.W.3d at 24-25. We defer to this finding of historical fact. See Iduarte, 268 S.W.3d at 549. We also note that White's identification of appellant as the Taurus’s driver is supported by appellant's admission to the police that he recently returned home after driving the Taurus.

      . Driving while intoxicated constitutes a breach of the peace. See Miles v. State, 241 S.W.3d 28, 42 (Tex.Crim.App.2007); Gallups v. State, 151 S.W.3d 196, 201 (Tex.Crim.App.2004).


author: Chief Justice WRIGHT.

text:
    POPCAP GAMES, INC., Appellant v. MUMBOJUMBO, LLC; MumboJumbo Distribution, LLC f/k/a Texas United Distribution, LLC; Jay Dinucci; Mark Cottam; and Strategic Marketing Partners, Inc., Appellees.
    No. 05-10-00301-CV.
    Court of Appeals of Texas, Dallas.
    July 30, 2010.
    Ben Taylor, Jason Keith Fagelman, Michael A. Swartzendruber, Oscar Rey Rodriguez, Fulbright & Jaworski L.L.P., Dallas, for appellant.
    Martin E. Rose, Steven Dominic Sanfel-ippo, Michael D. Richardson, Michael Ross Cunningham, Rose Walker, L.L.P., Dallas, for appellees.
    Jonathan A. Pace, for Strategic Marketing Partners, Inc.
    Before Chief Justice WRIGHT and Justices O’NEILL and MYERS.
   OPINION

Opinion by

Chief Justice WRIGHT.

The Court has before it appellant’s motion to vacate the trial court’s order declaring its supersedeas bond insufficient. For the reasons that follow, we grant the motion.

The underlying case involves claims for breach of contract and fraud. After filing its appeal, PopCap filed a supersedeas bond in the amount of $5,400,000, along with $20,000 additional security. Mumbo-Jumbo then filed a motion in the trial court seeking to declare the amount of the bond insufficient, because PopCap did not include the amount of attorney’s fees awarded to MumboJumbo in calculating the amount of the bond. The trial court granted MumboJumbo’s motion and ordered PopCap to post additional security in the amount of $2,148,948. PopCap then filed a motion in this Court seeking to overturn the trial court’s decision.

The supersedeas bond requirements are set out in Chapter 52 of the Texas Civil Practice and Remedies Code. Prior to 2003, appellants were required to supersede the total amount of a money judgment, plus interest and costs. In 2003, the legislature passed House Bill 4, which amended Chapter 52. Act of June 2, 2003, 78th Leg., R.S., ch. 204, §§ 7.02, 7.03, 2003 Tex. Gen. Laws 847, 863 (current version at Tex. Civ. PRAC. & Rem.Code Ann. §§ 52.001-.006 (Vernon 2008)). After that amendment, appellants were required to post an amount of security equal to the sum of: “(1) the amount of compensatory damages awarded in the judgment; (2) interest for the estimated duration of the appeal; and (3) costs awarded in the judgment.” Tex. Crv. PRAC. & Rem.Code Ann. § 52.006(a) (Vernon 2008). MumboJumbo argued, and the trial court agreed, that attorney’s fees must be superseded under this statute either as compensatory damages or as costs. PopCap claims attorney’s fees are neither compensatory damages nor costs, and its bond is therefore sufficient.

Two of our sister courts have addressed the issue of whether, and when, attorney’s fees must be superseded. MumboJumbo relies on Clearview Properties, L.P. v. Property Texas SC One Corp., 228 S.W.3d 262, 264 (Tex.App.-Houston [14th Dist.] 2007, mand. denied), which required the superseding of attorney’s fees. However, in Clearview, the Fourteenth Court of Appeals specifically noted that the parties’ contract provided for attorney’s fees as compensation for a breach, and based its decision, in part, on that fact. Id. (determining it was not error for trial court to require attorney’s fees to be superseded because fees were either costs or damages under facts of case). In the case before us, there is no contractual provision declaring that attorney’s fees are compensation.

We find the facts of this case to be closer to Shook v. Walden, 304 S.W.3d 910 (Tex.App.-Austin 2010, no pet.). Shook involved a breach of contract action where, as here, the parties’ contract did not specify that attorney’s fees would be an element of compensation. The Third Court of Appeals analyzed the legislative history of House Bill 4 as well as the common understanding of both the terms “costs” and “compensatory damages” and concluded that attorney’s fees were neither. Id. at 917-26. We find the Shook court’s analysis well reasoned and agree that section 52.006 does not require the superseding of attorney’s fees in this case. See id. at 927 (rejecting argument that party was entitled to security adequate to protect interest in award of attorney’s fees because legislature “has struck a different balance of interests in section 52.006, and we are bound to defer to these policy judgments”).

Accordingly, we grant PopCap’s motion seeking review of the trial court’s April 20, 2010 order granting MumboJumbo’s motion to declare PopCap’s supersedeas bond insufficient. We vacate the trial court’s April 20, 2010 order and order that execution on the final judgment on appeal is superseded by the bond filed by appellant on March 31, 2010.


author: JEFFREY V. BROWN, Justice.

text:
    In re BP OIL SUPPLY COMPANY, Relator.
    No. 14-10-00424-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Aug. 3, 2010.

      Sean Gorman, Christopher Wayne Lacy, Houston, for appellants.
    Lee L. Kaplan, Justin McKenzie Wag-goner, Houston, Sean C. Grimsley, Denver, CO, Philip Scott Beck, Chicago, IL, for appellees.
    Panel consists of Justices BROWN, SULLIVAN, and CHRISTOPHER.

      . In re Citigroup Inc. S’holder Derivative Litig., 964 A.2d 106, 116 (Del.Ch.2009) (holding two actions were contemporaneously hied where they were filed three days apart); Sprint Nextel Corp. v. iPCS, Inc., C.A. No. 3746, 2008 WL 4516645, at *2 (Del. Ch. Oct. 8, 2008) (holding two actions were contemporaneously filed when they were filed three business days apart); In re Bear Stearns Cos. S'holder Litig., C.A. 3643, 2008 WL 959992, at *5 (Del.Ch. Apr. 9, 2008) (finding complaints were contemporaneously filed where they were filed three days apart); Azurix Corp. v. Synagro Techs., Inc., C.A. No. 17509, 2000 WL 193117, at *34 (Del.Ch. Feb. 3, 2000), appeal refused, 748 A.2d 406 (Del.Super.2000) (Table) (finding two actions to be contemporaneously filed where first was filed at 4:28 p.m., on Friday, and second was filed early following Monday morning); Am. Guar. & Liab. Ins. Co. v. Intel Corp., C.A. No. 09C-01-170, 2009 WL 2589597, at *8 (Del.Super. July 24, 2009), appeal denied, 2009 WL 2581875 (Del.Super. Aug. 20, 2009) (finding two actions contemporaneously filed where they were filed thirteen hours apart).

   OPINION

JEFFREY V. BROWN, Justice.

On May 13, 2010, relator, BP Oil Supply Company, filed a petition for writ of mandamus in this court. See Tex. Gov’t Code Ann. § 22.221 (Vernon 2004); see also Tex. R.App. P. 52. In the petition, BP asks this court to compel the Honorable Alexandra Smoots-Hogan, presiding judge of the 164th District Court of Harris County, to set aside her order denying BP’s motion to dismiss, or in the alternative, to stay. We conditionally grant the petition.

I

The underlying dispute relates to a buy-sell agreement between BP and the real party in interest, ConocoPhillips Company. The agreement required BP to deliver 54,-000 barrels per day of Heavy Louisiana Sweet crude oil to ConocoPhillips in Empire, Louisiana, and required ConocoPhil-lips to deliver 54,000 barrels per day of West Texas Intermediate crude oil to BP in Cushing, Oklahoma. Due to Hurricanes Gustav and Ike, BP failed to deliver the required volumes of crude oil to Conoco-Phillips in August and September 2008. Instead, BP made its August and September deliveries in November 2008. Conoco-Phillips then paid the November 2008 price for the delayed deliveries, rather than the August and September 2008 prices. BP alleges that because the market price dropped significantly between August and November 2008, ConocoPhil-lips’ refusal to pay the August and September 2008 prices damaged BP in the amount of more than $50 million. Conoco-Phillips, on the other hand, asserts that paying the August and September 2008 prices would have resulted in a windfall to BP.

The parties unsuccessfully mediated their dispute before either filed suit. At 12:02 p.m. (CST), on November 4, 2009, BP filed a breach-of-contract action against ConocoPhillips in Delaware state court, seeking more than $50 million in damages. That same day, at 5:40 p.m. (CST), ConocoPhillips filed a declaratory-judgment action in the 164th District Court in Harris County seeking a declaration that it did not breach the buy-sell agreement and asserting a claim for breach of the duty of good faith and fair dealing.

On November 2, ConocoPhillips moved to dismiss or, alternatively, to stay the Delaware case for forum non conveniens. BP filed its own motion to dismiss or, alternatively, to stay the Texas case on December 7.

The hearing in the Delaware case took place on January 12, 2010; on February 25, the Delaware court denied ConocoPhil-lips’ motion to dismiss. See BP Oil Supply Co. v. ConocoPhillips Co., C.A. No. N09C-11-028, 2010 WL 702382 (Del.Super. Feb. 25, 2010). The Harris County trial court set BP’s motion to be heard on January 22. However, on January 20 BP requested that the hearing be reset for February 26, and on February 23 requested that the hearing be reset again for March 26. The trial court heard and denied BP’s motion to dismiss or, alternatively, to stay at the March 26 hearing.

At a scheduling conference on April 12, the Delaware court entered an order setting its case for trial on March 21, 2011. The Texas trial court also issued a docket control order on April 12 setting its case for trial on November 1, 2010.

II

To be entitled to the extraordinary relief of a writ of mandamus, the relator must show that the trial court abused its discretion and there is no adequate remedy by appeal. In re Laibe Corp., 307 S.W.3d 314, 316 (Tex.2010) (orig. proceeding) (per curiam). A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to constitute a clear and prejudicial error of law, or if it clearly fails to correctly analyze or apply the law. In re Columbia Med. Ctr. of Las Colinas, 306 S.W.3d 246, 248 (Tex.2010) (orig. proceeding) (per cu-riam); In re Cerberus Capital Mgmt., LP., 164 S.W.3d 379, 382 (Tex.2005) (orig. proceeding) (per curiam). In determining whether appeal is an adequate remedy, we consider whether the benefits outweigh the detriments of mandamus review. In re BP Prods. N. Am., Inc., 244 S.W.3d 840, 845 (Tex.2008) (orig. proceeding).

Abuse of Discretion

BP argues that the trial court abused its discretion by denying BP’s motion because principles of comity require deference to the first-filed Delaware case and that the later-filed Texas case be stayed. “Our federal system benefits from a measure of state-to-state comity, which, while not a constitutional obligation, is a ‘principle of mutual convenience whereby one state or jurisdiction will give effect to the laws and judicial decisions of another.’ ” In re AutoNation, Inc., 228 S.W.3d 663, 670 (Tex.2007) (orig. proceeding) (quoting Gannon v. Payne, 706 S.W.2d 304, 306 (Tex.1986)); see also Nowell v. Nowell, 408 S.W.2d 550, 553 (Tex.Civ.App.-Dallas 1966, writ dism’d) (“Comity has frequently been defined as the recognition that one sovereignty allows within its territory to the legislative, executive, or judicial act of another sovereignty, having due regard to the rights of its own citizens.”).

The mere pendency of. a prior suit in one state cannot be pleaded in abatement or in bar to a subsequent suit in Texas, even though both suits are between the same parties and involve the same subject matter. In re State Farm Mut. Auto. Ins. Co., 192 S.W.3d 897, 900 (Tex.App.-Tyler 2006, orig. proceeding) (citing Evans v. Evans, 186 S.W.2d 277, 279 (Tex.Civ.App.-San Antonio 1945, no writ)); Project Eng’g USA Corp. v. Gator Hawk, Inc., 833 S.W.2d 716, 724 (Tex.App.-Houston [1st Dist.] 1992, no writ). Texas is entirely sovereign and unrestricted in its powers, whether legislative, judicial, or executive, and it does not acknowledge the right of any other state to hinder its own sovereign acts or proceedings. In re State Farm Mut. Auto. Ins. Co., 192 S.W.3d at 901 (citing Mills v. Howard, 228 S.W.2d 906, 907 (Tex.Civ.App.-Amarillo 1950, no writ)); see also Crown Leasing Corp. v. Sims, 92 S.W.3d 924, 927 (Tex.App.-Texarkana 2002, no pet.) (“Courts of sister states are considered foreign to each other, and a suit pending in another state may not be pleaded in abatement of another suit involving the same subject matter brought in another state.”).

When a matter is first filed in another state, the general rule is that Texas courts stay the later-filed proceeding pending adjudication of the first suit. In re AutoNation, Inc., 228 S.W.3d at 670. It is generally appropriate for courts to apply principles of comity where another court has exercised jurisdiction over the matter and where the states agree about the public policy at issue. In re State Farm Mut. Auto. Ins. Co., 192 S.W.3d at 901 (citing Bryant v. United Shortline Inc. Assurance Servs., N.A., 972 S.W.2d 26, 31 (Tex.1998)). Once stayed, the later action remains pending until the judgment in the prior action becomes final. Id. (citing Bryant, 972 S.W.2d at 31). “It is a salutary rule because, if the determination of the suit in the foreign jurisdiction is in favor of the plaintiff there, he may plead it in bar of the local action. On the other hand, if he is the loser in the foreign suit, the plaintiff in the local action necessarily is the prevailing party in the foreign suit and further litigation on his part is not necessary.” Mills, 228 S.W.2d at 908.

A resolution of the abuse-of-discretion question demands a close inspection of the two pending actions. In re State Farm Mut. Auto. Ins. Co., 192 S.W.3d at 901 (citing Nowell, 408 S.W.2d at 553). To obtain a stay of the later action, it is, as a general rule, necessary that the two suits involve the same cause of action, concern the same subject matter, involve the same issues, and seek the same relief. Id. (citing Nowell, 408 S.W.2d at 553). One test to determine whether the causes of action are identical is to ascertain whether the parties could obtain all the relief in the prior suit that they would be entitled to in the subsequent action. Id. (citing Nowell, 408 S.W.2d at 553). Additional factors include, but are not limited to (1) which action was filed first; (2) whether the parties are the same in both actions; and (3) the effect of a judgment in the later action on any order or judgment entered in the prior action. Id.

Here, the Delaware case was filed first. The two cases involve the same parties, the same subject matter, and same contract, implicating the Uniform Commercial Code. The Delaware court was the first to exercise jurisdiction over the parties and subject matter of this ease. A judgment in the Texas case would render the Delaware court’s order denying ConoeoPhillips’ motion to dismiss moot. Moreover, because of the earlier trial setting, the Harris County trial court will likely try the underlying case first, and BP’s choice of forum will be lost.

ConoeoPhillips argues that a Texas court should extend comity to another state only when the other state would do the same for Texas. Under the principle of mutual convenience, Texas will recognize the laws and judicial decisions of other states, expecting that those states will extend Texas the same consideration. K.D.F. v. Rex, 878 S.W.2d 589, 593-94 (Tex.1994) (orig. proceeding). Because comity is grounded in cooperation and mutuality, Texas should not extend comity to another state so long as that state declines to extend comity to Texas or other states under the same or similar circumstances. Id. at 594. Nevertheless, “[i]n the absence of a clear indication to the contrary, we will treat [another state] as a cooperative jurisdiction. Texas will extend comity to the law of a cooperative jurisdiction so long as that law does not violate Texas public policy.” Id. at 595.

Under Delaware law, where one of two competing actions is filed before the other, the first-filed action is generally entitled to preference. However, where two cases are filed within a short time of each other Delaware does not apply a first-filed preference, but instead treats them as contemporaneously filed for purposes of forum non conveniens. In this case, the Delaware court found that the two actions were contemporaneously filed and considered ConocoPhillips’s motion to dismiss under the doctrine of forum non conve-niens. BP Oil Supply Co., 2010 WL 702382, at *2. Because ConocoPhillips could not meet the Delaware standard of forum non conveniens, the Delaware court denied its motion to dismiss. Id. at *3.

ConocoPhillips contends that, under the unique facts of this case, Delaware would not extend comity to Texas if the Texas case had been filed a few hours earlier than the Delaware case because the cases would be considered contemporaneously filed, and the Delaware court would then address the motion to dismiss or stay as a matter of forum non conveniens. Therefore, according to ConocoPhillips, the Texas trial court reached the same decision that the Delaware court would have reached had the situation been reversed.

But for the trial court to refuse to extend comity, it must find a “clear indication” that Delaware is not a cooperative jurisdiction. K.D.F., 878 S.W.2d at 595. There is no such “clear indication” in the record below. Extending comity to Delaware to try the breach of contract case would not violate Texas policy. To the contrary, extending comity to Delaware by staying the Texas case advances Texas public policy because it adheres to our well-established first-filed rule. We recognize that we would face a more difficult dilemma if the Texas case had been filed first; it is not clear that Delaware would have extended comity in that situation. But we do not encounter that problem under these facts.

Moreover, ConocoPhillips’ non-liability declaratory-judgment action is merely a mirror-image of the Delaware breach-of-contract action. Texas public policy does not favor the pursuit of a declaratory action when a previously filed liability action already addresses the same issues. “An action for declaratory judgment will not be entertained if there is pending, at the time it is filed, another action or proceeding between the same parties and in which may be adjudicated the issues involved in the declaratory action.” Tex. Liquor Control Bd. v. Canyon Creek Land Corp., 456 S.W.2d 891, 895 (Tex.1970); see also BHP Petroleum Co. v. Millard, 800 S.W.2d 838, 841 (Tex.1990) (orig. proceeding) (“The Declaratory Judgments Act is ‘not available to settle disputes already pending before a court.’ ”); Abor v. Black, 695 S.W.2d 564, 566 (Tex.1985) (orig. proceeding) (holding trial court should have declined to exercise jurisdiction over suit seeking declaration of non-liability for tort because it deprived real plaintiff of traditional right to choose time and place of suit); Space Master Int'l Inc. v. Porta-Kamp Mfg. Co., 794 S.W.2d 944, 948 (Tex.App.-Houston [1st Dist.] 1990, no writ) (holding trial court did not abuse discretion in dismissing later-filed Texas declaratory judgment involving same parties and issues as earlier filed New Jersey state case and Massachusetts federal case “[b]ased on considerations of comity and the unique nature of declaratory judgments”).

ConocoPhillips contends that Texas courts disfavor declaratory-judgment actions in tort cases, not in breaeh-of-con-tract cases where there is no “real” plaintiff. See MBM Fin. Corp. v. Woodlands Operating Co., L.P., 292 S.W.3d 660 (Tex.2009). In MBM Financial, the Texas Supreme Court stated:

[T]he “real plaintiff’ and the “traditional right to choose the time and place of suit” are materially different in contract and tort cases. The “real” plaintiff in a tort action is the injured party, yet both parties often suffer injury if a contract collapses. When each party claims the other breached (as is usually the case), it is hard to say who ought to be the “real” plaintiff. Here, for example, why should MBM get to choose the time and place of suit rather than Woodlands? The [Declaratory Judgment] Act itself specifically contemplates declarations that are negative (non-liability) as well as affirmative (liability). And historically, declarations of non-liability have been among the most common suits filed under the Act, including ... suits by a party to declare non-liability for higher or additional payments. Extending the bar against declarations of non-liability from tort to contract cases would drastically handicap declaratory-judgment practice in Texas.

Id. at 668.

But this case is not like MBM Financial. Unlike the contract at issue in MBM Financial, the contract in this case was not terminated. BP is the only party seeking affirmative relief and, therefore, is the “real plaintiff’ in this case. Cf BHP Petroleum Co., 800 S.W.2d at 842 (holding that declaratory-judgment counterclaim was more than mere denial of plaintiffs causes of action and stated a cause of action on which defendant could recover if plaintiff abandoned, or failed to establish, its causes of action). Moreover, the declaratory-judgment action in MBM Financial was not the mirror image of a first-filed breach-of-contract case in another state. Instead, the declaratory-judgment action in MBM Financial was “tacked onto a standard suit” as a vehicle for recovering attorney’s fees. Id. at 670. MBM Financial does not displace the first-filed rule or the plaintiffs choice of forum in a breach-of-contract action when the second-filed declaratory-judgment action is a mirror image of the first-filed claim for affirmative relief. See Space Master Int’l, Inc., 794 S.W.2d at 948.

For the foregoing reasons, we conclude that the trial court abused its discretion by not extending comity to Delaware and staying the underlying action pending the resolution of the first-filed Delaware suit.

No Adequate Remedy by Appeal

Having determined that the trial court abused its discretion, we must inquire whether BP has an adequate remedy by appeal. By setting the case for trial on November 1, 2010, the trial court has made it likely that the Texas case will be tried before the Delaware case. If the Texas case proceeds to trial and BP prevails, it will not appeal, and its right to a stay is lost forever. See In re State Farm Mut. Auto. Ins. Co., 192 S.W.3d at 903. If ConocoPhillips prevails in the Texas case, BP cannot obtain a reversal for the incorrect denial of a stay unless the court of appeals concludes that the error complained of probably caused the rendition of an improper judgment. See id. (quoting In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 138 (Tex.2004) (orig. proceeding) (quoting Tex.R.App. P. 44.1(a)(1)). Even if BP could somehow obtain reversal based on the denial of its motion, its right to a stay could not be recovered. See id.

ConocoPhillips argues that BP has not shown that it does not have an adequate remedy by appeal. Were the roles reversed, ConocoPhillips complains, Delaware would not extend comity to Texas. Therefore, the benefit of extending comity — reciprocity-—would not be achieved, and the disruption and delay caused by mandamus review would outweigh any benefit in granting BP’s petition. But it remains that ConocoPhillips has not shown that Delaware is an uncooperative jurisdiction, that the Delaware court hearing the breach-of-contract action under Texas law violates the public policy of this State, or why we should abandon Texas’ long-standing preference for first-filed cases. We conclude that BP does not have an adequate remedy by appeal.

* * *

We hold that the trial court abused its discretion by refusing to stay the underlying case pending the conclusion of the Delaware case, and that BP does not have an adequate remedy by appeal. Accordingly, we conditionally grant the petition for writ of mandamus and direct the trial court to (1) set aside its order of March 26, 2010, denying BP’s motion to dismiss, or in the alternative, to stay, and (2) enter an order that grants BP’s motion to stay and stays the proceedings until entry of final judgment in the Delaware case. The writ will issue only if the trial court fails to act in accordance with this opinion.

      . By its express terms, the agreement is to be construed under Texas law.

      . See McWane Cast Iron Pipe Corp. v. McDowell-Wellman Eng’g Co., 263 A.2d 281, 283 (Del.1970) ("As a general rule, litigation should be confined to the forum in which it first commenced, and a defendant should not be permitted to defeat the plaintiff's choice of forum in a pending suit by commencing litigation involving the same cause of action in another jurisdiction of its own choosing.”).

      .To justify dismissal for forum non conve-niens under Delaware law, the movant must demonstrate that litigation in Delaware would cause "overwhelming hardship.” BP Oil Supply Co., 2010 WL 702382, at *2. To justify a stay, the movant need only demonstrate that the preponderance of applicable forum factors "tips in favor” of litigating the dispute in the non-Delaware forum. Id. However, where a stay would have the same ultimate effect as dismissal, the more stringent "overwhelming hardship” standard applies. Id. "[A] stay has the same effect as a dismissal where ‘[a] stay in favor of another action, results in the action in Delaware being put on hold until the resolution of the action in another jurisdiction, at which point the principles of res judicata would likely apply [to bar the further prosecution of the Delaware action].’ ” Id. (quoting In re Citigroup, Inc., S’holder Derivative Litig., 964 A.2d at 117-18 n. 16). The Delaware court held that, “[a]s a matter of Texas Civil Procedure, the Texas action would likely resolve all disputes between the parties. Principles of res judicata would then likely prevent this Court from rehearing the same issues already decided in Texas, and the Delaware action ultimately would be dismissed. Therefore, in this case, a stay would have the same effect.” Id. at *3 (emphasis in original). Admittedly, under this interpretation oí Delaware law, it is difficult to imagine a situation where a stay would not have the same effect as a dismissal.

      . ConocoPhillips conceded in the Delaware court that it could not meet the "overwhelming hardship” standard. BP Oil Supply Co., 2010 WL 702382, at ⅜3.

      . ConocoPhillips conceded at oral argument that it is not seeking damages.

      . In Space Master, the court held that a party should not be allowed to use declaratory relief as a forum-shopping device where the same parties and issues, i.e., breach-of-contract actions for money damages, were pending in New Jersey state court and Massachusetts federal court, and where the declaratory-judgment action alleged contracts should not be enforced because of usurious interest rates. 794 S.W.2d at 948.

      .We recognize that BP would shed no tears at this result.


author: G. ALAN WALDROP, Justice.

text:
    Katherine MASON-MURPHY, Appellant, v. Richard Dennis GRABOWSKI, Appellee.
    No. 03-09-00564-CV.
    Court of Appeals of Texas, Austin.
    Aug. 6, 2010.

      Mary E. Jones, Amie Rodnick, Law Office of Amie Rodnick, Austin, TX, for Appellant.
    Robert B. Luther, Law Offices of Robert B. Luther, P.C., Austin, TX, for Appel-lee.
    Before Chief Justice JONES, Justices PEMBERTON and WALDROP.
   OPINION

G. ALAN WALDROP, Justice.

Katherine Mason-Murphy appeals the trial court’s June 4, 2009 Order in Suit to Modify Parent-Child Relationship concerning her daughter A.T. Mason-Murphy challenges the provision in the written order that permits A.T.’s father, Richard Dennis Grabowski, to retain possession of A.T. on his weekends during the school year until the beginning of the next school day. Mason-Murphy does not challenge the trial court’s original oral imposition of a modified standard possession order with Grabowski returning the child after weekend possession at 6 p.m. on Sunday, but asserts that the trial court erred by adopting in its subsequent written order Gra-bowski’s election to retain possession until the beginning of school on Monday without hearing additional evidence or making additional findings and conclusions supporting the change. We affirm.

The agreed November 2001 custody decree was signed when A.T. was almost ten months old. The decree ordered gradually increasing possession for Grabowski until the child turned three years old, and set an essentially standard possession schedule thereafter except that Grabowski’s Wednesday possession extended overnight through Thursday morning. At first, Gra-bowski lived in Austin, while Mason-Murphy lived in Houston. Grabowski then moved to Houston. Mason-Murphy moved to Austin just before A.T. started kindergarten. Grabowski continued to exercise his visitation rights until he moved back to Austin some months thereafter. Mason-Murphy then married a man who has a child about two years younger than A.T. Mason-Murphy and her husband had a child together in 2008.

Grabowski filed this suit seeking to modify the custody decree, including a request to increase the child support he pays. He initially sought to split possession evenly, but alternatively requested “extended” standard possession under which his Wednesday and weekend periods of possession during the school year would begin at the end of the school day rather than at 6 p.m., and would end with him returning A.T. to school the next school day. The parties and the trial court agreed that Grabowski should pay more child support and that the alternate weekends of possession should shift so that A.T. is with her mother and stepfather on the same weekends that her stepbrother is there. The court’s oral decree incorporated Grabowski’s request to begin Wednesday and weekend visitations with pickup from school, and maintained the Thursday morning return and weekend return time on Sundays at 6 p.m. After the court announced its order, but before the hearing adjourned and before any written order was signed, Grabowski orally elected to have the fully extended standard possession. After considering briefs, the trial court incorporated into its written order Grabowski’s election that his weekend possession periods during the school year end when A.T.’s school resumes.

The court issued findings of fact and conclusions of law in which it found that modification of the 2001 order was justified by the changes in A.T.’s life including (1) the various relocations of her parents, (2) her increased age (eight at the time of the modified order), and (3) the reconstitution of her mother’s family to include a stepfather, stepbrother, and half-brother. The court found that the parties could agree to any possession schedule and that, failing agreement of the parties, the terms of the standard possession order were in A.T.’s best interest. The court concluded that former section 153.317 of the family code gave Grabowski the right to elect extended standard possession “regardless of any ruling by the Court to the contrary, if the Court finds the Standard Possession order is in the child’s best interest.” The court found that Grabowski timely made his election, and ordered that Grabowski’s weekend possession periods end at the beginning of the next school day.

On appeal, Mason-Murphy contends that the trial court erred or abused its discretion by incorporating Grabowski’s election into the modified decree. She concedes in her brief that the trial court’s oral order announced near the end of the hearing on the motion to modify “was not an abuse of discretion,” but argues that it “should not have been disturbed” by Gra-bowski’s election for his school-year weekend possession to end at the beginning of the next school day. She asserts several variations on this theme in her issues on appeal: (1) having found that a Sunday evening return was in A.T.’s best interest, the trial court should not have ordered Sunday overnight possession, (2) the trial court should not have granted Grabowski’s election without finding a sufficient showing of material and substantial change in circumstances, (3) the trial court should not have concluded that Grabowski’s election made Sunday overnight possession mandatory, and (4) the trial court should not have granted Grabowski’s election without complying with or reconciling that decision with family code sections 153.193, 153.251, 153.252, 153.253, and/or 153.256.

Grabowski made his election under former family code section 153.317, which provided as follows:

If a child is enrolled in school and the possessory conservator elects before or at the time of the rendition of the original or modification order, the standard order must expressly provide that the possessory conservator’s period of possession shall begin or end, or both, at a different time expressly set in the standard order under and within the range of alternative times provided by one or both of the following subdivisions:

(1) instead of a period of possession by a possessory conservator beginning at 6 p.m. on the day school recesses, the period of possession may be set in the standard possession order to begin at the time the child’s school is regularly dismissed or at any time between the time the child’s school is regularly dismissed and 6 p.m.; and
(2) except for Thursday evening possession, instead of a period of possession by a possessory conservator end-mg at 6 p.m. on the day before school resumes, the period of possession may be set in the standard order to end at the time school resumes.

Act of May 27, 2003, 78th Leg., R.S., ch. 1036, § 15, sec. 153.317, 2003 Tex. Gen. Laws 2987, 2992 (amended 2009).

Former section 153.137 did not require an additional showing or finding of changed circumstances before the trial court could incorporate the election. The legislatively determined process of rendering a custody decree involving the standard possession order includes the possibility of the election of extended standard possession. See former Tex. Fam.Code Ann. § 153.317. Grabowski made his election at the time the trial court was rendering the modification order. The court’s choice to request briefing and study whether it would incorporate Grabowski’s election suspended rendition of the order as to the elements affected by the election. The trial court found that circumstances had changed sufficiently since the 2001 order to merit revisiting the terms of possession. The trial court did not err by failing to find that circumstances had changed again either in the time between the court’s oral announcement of its decision and Grabowski’s election or in the days before the court’s incorporation of Grabowski’s election into its written order.

Former section 158.1S7 did not require a separate showing or finding that the extended possession elected is in the child’s best interest before the trial court could incorporate the election. The legislature did not include such a requirement. The absence of such a requirement indicates that the legislature intended for the finding that the standard possession order was in the child’s best interest to include the range of choices available to the electing parent. After finding that the standard 6 p.m. Sunday return was in A.T.’s best interest, the trial court did not have to find additionally that a Monday morning return was in her best interest. Under former family code section 153.317, that finding was implicitly rebuttably presumed to have been incorporated in the finding that the standard possession order was in her best interest. That election was, as all decisions on issues of possession of a child are, subject to the requirement that the best interest of the child “shall always be the primary consideration of the court.” See Tex. Fam.Code Ann. § 153.002 (West 2008). There was testimony that the extended possession would enable A.T. to more fully engage in activities with her father on those alternate Sundays, including longer visits with his family in Chicago. There was testimony that A.T. returned to school unkempt on mornings her father possessed her overnight, but there was conflicting evidence on whether Grabowski was made aware of this problem. There was also testimony that A.T. was increasingly able to regulate her own grooming. The trial court did not err by failing to make an additional best interest finding, and did not abuse its discretion by failing to find that extended alternate Sunday visitation was not in A.T.’s best interest.

The trial court did not err by finding that Grabowski was entitled to have the election incorporated as an “absolute right” or by finding incorporation to be “mandatory” or “legislatively mandated,” because it did not so find. The trial court’s order on the motion to modify does not contain such language. The trial court’s letter to the parties announcing its decision on the election does not contain such language. The trial court’s findings of fact and conclusions of law state that “Section 153.317 of the Texas Family Code gives Richard Grabowski the right to elect to begin his periods of possession at the time school is regularly dismissed, and to end his periods of possession at the time school resumes.” The trial court also concluded that:

Section 153.317 of the Texas Family Code gives Richard Grabowski the right to elect to begin his periods of possession at the time school is regularly dismissed, and to end his periods of possession at the time school resumes, regardless of any ruling by the Court to the contrary, if the Court finds the Standard Possession order is in the child’s best interest.

The trial court did not state that section 153.317 overrode the requirement that the best interest of the child is the primary consideration of the court. See id. Even if it had, that conclusion would have been supported by the plain language of former section 153.317, which requires no additional findings of best interest following an election. Arguably, the legislature decided that the determination that the standard possession order was in the child’s best interest implicitly included a determination that the extended standard possession order was in the child’s best interest.

The plain language of the court’s findings and conclusions are consistent with the view that former section 153.317(2) did not leave the trial court discretion to reject Grabowski’s election so long as it found the standard possession order to be in A.T.’s best interest. Although the election might have persuaded the trial court that the standard possession order was not in A.T.’s best interest and convinced it to withdraw that finding, it did not. Grabowski’s timely election for extended possession coupled with the trial court’s undisturbed finding that the standard possession order was in A.T.’s best interest made incorporation of the election mandatory. See former Tex. Fam.Code Ann. § 153.317(2). That confluence of events meant that “the standard order must expressly provide that the possesso-ry conservator’s period of possession ... may be set in the standard order to end at the time school resumes.” Id. Other courts have found that the election is binding unless the trial court withdraws its finding that the standard possession order is in the child’s best interest. See Jacobs v. Dobrei, 991 S.W.2d 462, 467 (Tex.App.-Dallas 1999, no pet.) (affirming trial court’s refusal to incorporate father’s election of extended standard possession after finding overnight possession on weekend ending with return to school was not in child’s best interest); see also In re C.A.P., 233 S.W.3d 896, 902 (Tex.App.Fort Worth 2007, no pet.) (concluding that best interest requirements of Tex. Fam.Code Ann. § 153.002 bear on requests for extended possession under section 153.317). These decisions do not require a finding that the trial court below erred.

The 2009 legislature’s express incorporation into section 153.137 of the discretion to reject a parent’s election if it is not in the child’s best interest does not show that the trial court erred in this case. The statute now expressly requires the court to incorporate the conservator’s election of extended standard possession “unless the court finds that the election is not in the best interest of the child.” Tex. Fam.Code Ann. § 153.317(a) (West Supp.2009). This amendment reinforces the precedence of the concern for the best interest of the child. The parent’s election does not trigger the need for an additional finding that extended possession is in the child’s best interest, but the statute allows the court to reject the election if it affirmatively finds that the extended possession is not in the child’s best interest. See id. This amendment is consistent with our interpretation of the former statute, and does not support an argument that the trial court erred.

Finally, Mason-Murphy contends that the trial court erred by failing to reconcile its order with several sections of the family code. Section 153.193 instructs courts that orders that deny, restrict, or limit a parent’s right to possession may not exceed what is required to protect the child’s best interest. Tex. Fam.Code Ann. § 153.193 (West 2008). This concept is typically invoked in cases in which visitation is prohibited or severely limited. See, e.g., George v. Jeppeson, 238 S.W.3d 463, 470-71 (Tex.App.-Houston [1st Dist.] 2007, no pet.) (affirming order that mother visit her children only at supervised visitation program); see also Thompson v. Thompson, 827 S.W.2d 563, 566-67 (Tex.App.Corpus Christi 1992, writ denied) (reversing order awarding father possession only in summer); Hill v. Hill, 404 S.W.2d 641, 643 (Tex.Civ.App.-Houston [1st Dist.] 1966, no writ) (reversing order denying father visitation without mother’s written consent). Section 153.251 provides that possession orders should encourage frequent contact between a child and each parent, and preferably should keep children in a family together during possession periods. Tex. Fam.Code Ann. § 153.251 (West 2008). Section 153.252 creates a rebutta-ble presumption that the standard possession order is in the child’s best interest. Id. § 153.252. Section 153.253 provides that, if the standard possession order is unworkable, the court should approximate the time of possession awarded by the standard order. Id. § 153.258. Section 158.256 advises that, in creating the order, the court should consider the age, developmental status, circumstances, needs, and best interest of the child, the parents’ circumstances, and other relevant factors. Id. § 153.256.

The trial court’s order incorporating Grabowski’s election is not inconsistent with other parts of the family code as Mason-Murphy contends. This trial court’s order not only approximates the standard possession order, it is in relevant part a legislatively-approved variant of the standard possession order. The trial court expressly stated that A.T.’s age was one of the reasons for modifying the original 2001 order. The order maintains frequent contact with each parent, increasing Grabow-ski’s monthly possession by roughly 14 hours on alternate weekends (and 14 hours more on the occasional fifth weekend of the month), albeit at the expense of Mason-Murphy’s possession. However, Mason-Murphy’s possession is not being denied or seriously limited. In a typical two-

week cycle, she will possess A.T. approximately ten days and nine nights to Gra-bowski’s approximately four days and five nights. Further, the trial court deviated from the standard possession order to enable A.T. to spend alternate weekends with her stepbrother, achieving the goal of keeping the children — even those not related by blood — together when possible. The trial court’s order “denies” Mason-Murphy possession less than it denies Gra-bowski possession, and does so while implementing the legislatively-approved extended standard possession order. The trial court’s order is consistent with all of these statutes and needs no reconciliation with them.

Affirmed.

      . The order also extends the standard 6 p.m. Monday holiday return to the start of school on Tuesday. Our discussions of whether the trial court properly ordered weekend visitations to extend to the beginning of the next school day encompass these holiday provisions without further mention.

      . The hearing was held and the order and findings of fact signed by Associate Judge J. Andrew Hathcock. The order was approved and signed by District Judge Orlinda Naranjo.

      . We have reviewed the record and agree that the trial court did not abuse its discretion by finding that the circumstances surrounding A.T. had undergone substantial and material change, and that the terms of the oral possession order were in A.T.’s best interest.

      . We note that the statute speaks of possesso-ry conservators, while Grabowski is a joint managing conservator. Mason-Murphy does not raise this as an issue, and courts appear to follow the Texarkana court's determination that, “[e]ven though the standard possession order under Section 153.316 sets out the pos-sessory rights of the possessory conservator, the Section applies to joint managing conservators not awarded primary physical residence of the child pursuant to Tex. Fam.Code Ann. § 153.137 (Vernon 1996)." Weldon v. Weldon, 968 S.W.2d 515, 516 n. 2 (Tex.App.-Texarkana 1998, no pet.). Even the case on which Mason-Murphy relies for her contention that the trial court had the discretion to reject Grabowski's election assumes that section 153.137 applies to joint managing conservators who were not awarded primary physical custody. See generally In re C.A.P., 233 S.W.3d 896, 898-900 (Tex.App.-Fort Worth 2007, no pet.).

      . Although the election occurred after the trial court announced its order, it occurred within the same hearing. We do not read the "at the time” language of former family code section 153.317 to require that the parent speak his election simultaneously with the trial court's oral rendition of the order. See Act of May 27, 2003, 78th Leg., R.S., ch. 1036, § 15, sec. 153.317, 2003 Tex. Gen. Laws 2987, 2992 (amended 2009). In the reporter’s record, the election is on the same page as the completion of the court’s oral rendition of its order. There is no indication that there was any interruption of proceedings between the oral rendition and the election. We conclude that Grabowski’s election at the hearing was sufficiently close in time to satisfy the statute.

      . The trial court noted in a letter to the parties disclosing its decision on Grabowski’s election that it had “briefly conferred with Professor Jack Sampson about his comment to Section 153.317.” That comment states that "the judge is mandated to accede to the request of a possessory conservator for an order directing that: ... return be when the next school day begins." Sampson & Tin-dall’s Texas Family Code Ann.2008, 643. The trial court did not state in its letter to the parties, its findings and conclusions, or its decree that it agreed with Professor Sampson’s interpretation of former section 153.317. The trial court concluded only that it must incorporate the parent’s election “if the Court finds the Standard Possession order is in the child’s best interest.”

      . We are not persuaded that the "may” in the second clause gave the trial court discretion to deny Grabowski's election. Giving meaning to all the words in the statute requires that we interpret the "must” as mandating that the court incorporate the parent’s election. See Tex. Gov't Code Ann. §§ 311.016, .021(2) (West 2005). The “may” language recognizes that the parent is not required to choose all available extensions of the period of possession, that he or she may choose one or more of the options.

      . Section 153.317 now provides as follows:
      (a) If elected by a conservator, the court shall alter the standard possession order under Sections 153.312, 153.314, and 153.315 to provide for one or more of the following alternative beginning and ending possession times for the described periods of possession, unless the court finds that the election is not in the best interest of the child:
      (1) for weekend periods of possession under Section 153.312(a)(1) during the regular school term:
      (A) beginning at the time the child's school is regularly dismissed; or

        (B) ending at the time the child’s school resumes after the weekend;
      (2) for Thursday periods of possession under Section 153.312(a)(2):
      (A) beginning at the time the child’s school is regularly dismissed; or
      (B) ending at the time the child’s school resumes on Friday;
      (3) for spring vacation periods of possession under Section 153.312(b)(1), beginning at the time the child's school is dismissed for those vacations;
      (4) for Christmas school vacation periods of possession under Section 153.314(1), beginning at the time the child's school is dismissed for the vacation;
      (5) for Thanksgiving holiday periods of possession under Section 153.314(3), beginning at the time the child’s school is dismissed for the holiday;
      (6) for Father’s Day periods of possession under Section 153.314(5), ending at 8 a.m. on the Monday after Father’s Day weekend;
      (7) for Mother’s Day periods of possession under Section 153.314(6):
      (A) beginning at the time the child’s school is regularly dismissed on the Friday preceding Mother's Day; or
      (B) ending at the time the child’s school resumes after Mother's Day; or
      (8)for weekend periods of possession that are extended under Section 153.315(b) by a student holiday or teacher in-service day that falls on a Friday, beginning at the time the child's school is regularly dismissed on Thursday.
      (b) A conservator must make an election under Subsection (a) before or at the time of the rendition of a possession order. The election may be made:
      (1) in a written document filed with the court; or
      (2) through an oral statement made in open court on the record.
      Tex. Fam.Code Ann. § 153.317 (West Supp. 2009).

      . We note that, if Professor Sampson was correct that the former statute required courts to accede to the parent’s election, then the trial court plainly did not err by incorporating Grabowski’s election.