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    Melina CASTRO, in Her Official Capacity as an Elected Member of the Council of the City of El Paso, Appellant, v. Charles McNABB, City Attorney for the City of El Paso, Texas, in His Official Capacity, Appellee.
    No. 08-07-00074-CV.
    Court of Appeals of Texas, El Paso.
    Oct. 28, 2009.

      John P. Mobbs, Attorney at Law, El Paso, TX, for Appellant.
    Jeffrey H. Ray, Ray Valdez McChristian & Jeans, El Paso, TX, for Appellee.
    Before CHEW, C.J., McCLURE, and RIVERA, JJ.
   OPINION

ANN CRAWFORD McCLURE, Justice.

Melina Castro, in her official capacity as an elected member of the El Paso City Council, appeals from an order granting a plea to the jurisdiction filed by Charles McNabb in his official capacity as the El Paso City Attorney. She also appeals an order requiring her to pay attorney’s fees in the amount of $30,000. Because of the nature of the underlying proceedings, a detailed factual recitation is necessary.

FACTUAL SUMMARY

Rita Rodriguez has served the City of El Paso as both an assistant city attorney and as the El Paso City Attorney. On November 17, 2004, she filed suit against the City alleging wrongful termination by then-acting City Attorney, Lisa Elizondo. The City’s insurance carrier retained outside counsel, Steve Blanco, to represent the City in that suit. On June 21, 2005, the City Council removed Elizondo and appointed McNabb as City Attorney. McNabb had previously served as City Attorney from 1997 to 2003. McNabb formally advised City Council on July 5 about a potential conflict of interest in the Rodriguez litigation because he had been her supervisor when she was an assistant city attorney and he had been identified as a person with knowledge of relevant facts. He told the council members that if subpoenaed, he would testify as to Rodriguez’s competence but he would not testify regarding her discrimination claims. McNabb advised that he would not involve himself in any aspect of the litigation unless he received waivers from both the City and Rodriguez. The City Council voted unanimously to waive potential and existing conflicts of interest. Blanco continued to represent the City in the Rodriguez litigation and he appeared before City Council on five occasions in connection with that suit. On September 27, 2005, the City Council voted to settle the Rodriguez suit for $500,000 upon the advice of Blanco and the insurance carrier. Castro voted against the settlement. The case was settled and Rodriguez’s suit was dismissed.

On November 9, 2005, assistant city attorney John Batoon wrote a letter to Castro and two other city council members at the request of Mayor John Cook. The letter cautioned them about potential violations of the Open Meetings Act. The next day, Castro responded with a five-page letter to McNabb. She first objected to the Batoon letter and accused McNabb and his staff of committing violations of the Open Meetings Act. Castro devoted the remainder of her letter to questioning McNabb’s relationship with Rodriguez and his involvement in the suit. She then demanded that McNabb produce documents and information, including all litigation discovery documents, a copy of Blanco’s evaluation letter, communications by McNabb or his staff with the insurance carrier, McNabb’s phone records, and all correspondence and email with Rodriguez. Castro told McNabb that his conduct “implicates severe and gross misconduct on your part as legal counsel for the City of El Paso — thus I advise you to seek legal counsel before responding.” [Emphasis in original]. She added, “Your failure to make full disclosure with regard to your involvement in the Rita Rodriguez settlement will be considered an aggravated breach of fiduciary duty and legal malpractice.” [Emphasis in original]. In addition to these accusations, Castro asked McNabb to disclose whether he had received anything of value in exchange for recommending that the City settle the Rodriguez suit. Although she did not believe her requests were subject to the Texas Open Records Act, Castro specifically requested that McNabb “encourage the City Council to request an opinion from the Attorney General of Texas as to all questions in this request that you refuse to answer for any reason based on privilege, attorney client relationship or any other such defensive position that you may allege.”

On November 14, Travis Ketner wrote McNabb to advise him that he — Ketner— represented Castro and that she was contemplating litigation against McNabb for breach of fiduciary duty and legal malpractice in connection with the City’s settlement of the Rodriguez suit. Ketner said Castro needed the information she requested in the November 10 letter for two reasons: (1) to evaluate the documents upon which McNabb based his settlement recommendation; and (2) to evaluate the potential for civil claims against McNabb personally. Ketner reiterated that Castro did not believe her request for the information was covered by the Texas Open Records Act, but to “please consider this letter as my authorization to you to proceed pursuant to provisions of that statute.” If McNabb did not comply, Castro was prepared to test the denial of access to public documents under the Open Records Act. Ketner gave McNabb until November 18 to provide a “favorable response.”

Ketner wrote to McNabb again on November 19. He reiterated that Castro was not making an Open Records request but said that if McNabb disagreed, Castro would enforce her request for information under the provisions of the Act. Referencing a statement by McNabb that he represented the City, not the individual council members, Ketner warned that Castro would vigorously contest McNabb’s “interpretation” in a declaratory judgment action. On November 20, Ketner sent two more letters. In the first, he advised McNabb that the time in which to request an attorney general opinion was about to expire: “If you fail to request an Attorney General’s Opinion within ten business days and fad to notify me of such, this information is deemed to be public.” Ketner also demanded that McNabb answer all questions addressed to him “personally.” In the second letter, Ketner notified the City that he intended to advise Castro of her powers under Section 3.8 of the City Charter, including the power to issue subpoenas and administer oaths. Ketner expressed his opinion that all of Castro’s requests were covered by Section 3.8.

Because Castro’s requests implicated the Texas Public Information Act (TPIA), the City Attorney’s Office forwarded the letters to Joyce Wilson, the City Manager. Wilson is the City’s officer for public information. On November 23, the City Attorney’s Office, on behalf of the City, requested an opinion from the Texas Attorney General on the TPIA request. The request stated that the City had no objection to releasing most of the documents which could be identified as responsive to Castro’s requests or which answered a specific question. For some of Castro’s requests, the City did not have documents. The City refused to disclose documents which it believed to be exempt from disclosure under Sections 552.101, 552.107, and 552.111. The City also acknowledged that Castro, as a City Council member, was entitled to records which are not available to the general public. The City Attorney’s Office forwarded a copy of the request to Castro along with a cover letter advising her that she was entitled to listen to tapes of the executive sessions and that approximately 870 pages of documents were available for her to review and copy.

On November 28, Castro sent notice to McNabb that she intended to file a declaratory judgment action with respect to her rights to obtain access to the documents in the Rodriguez litigation file. She also gave notice that she would seek a judicial declaration regarding her entitlement “pursuant to the grant of authority in Section 3.8 of the City Charter ... to review any and all documents prepared by or for the City of El Paso in connection with litigation claims against the City.” The notice was placed on the City Council Agenda for December 6. At that meeting, May- or Cook advised Castro that she had been given the opportunity to review the records. But instead of reviewing the records, Castro filed a declaratory judgment action against McNabb on December 7. In the petition, Castro echoed the allegations made against McNabb in her letters and assailed his competence to serve as City Attorney. The petition alleged that McNabb advised the City Council that he had a conflict of interest in the Rodriguez litigation, and:

[I]n a severe breach of his fiduciary duties to the elected members of City Council, failed to make full disclosures, either verbally or in writing as to the basis for his conflict of interest and that he did not possess the essential knowledge and legal skills necessary to give competent legal advice in employment law legal issues. Upon incomplete and perhaps false information to be discovered in these proceedings, council voted to waive Respondent McNabb’s conflicts of interest.

Castro also alleged her belief that McNabb did not inform members of City Council about Blanco’s evaluation letter because it contained information which conflicted with McNabb’s recommendation to settle the lawsuit. She claimed she had tried to obtain the letter and other documents in the Rodriguez litigation file but McNabb had refused her request. She then sought a judicial declaration that:

1. McNabb had an attorney-client relationship with her;
2. McNabb had a fiduciary duty to make a full and complete disclosure pri- or to seeking a waiver of his conflict of interest with respect to the Rodriguez litigation; and
8. Castro had a right to see any and all documents created or obtained in connection with the City’s defense of the Rodriguez litigation, including settlement documents, evaluation by outside counsel, phone records of counsel, and email communications of transactions of McNabb and his assistants.

On January 25, 2006, Castro contacted the City to arrange a time to review the records identified as public records. It is unclear from the record whether Castro kept the appointment.

The Attorney General issued an informal letter ruling on February 3 in response to the City’s request. Tex.Atty. Gen. OR2006-01160, 2006 WL 332305 (2006). The Attorney General found that an official of a governmental body who, in an official capacity, requests information held by the governmental body, does not act as a member of the public in doing so. Id. Thus, exceptions to public disclosure under the Act do not control the right of access of an official of a governmental body to information maintained by the governmental body. Id. The Attorney General concluded that Castro was seeking the information in her official capacity and to the extent she had requested records of the City, she had an inherent right of access. Id. Noting that the release of the information to Castro was not a release to the public, the Attorney General cautioned Castro to maintain the documents in the same manner as they were maintained by the City. Id., citing Tex.Gov’t Code Ann. § 552.352 (criminal penalties imposed for release of confidential information to a person who is not authorized to inspect the records).

On February 6 and again on February 22, the City wrote Castro asking her to schedule a time to review the records in accordance with the Attorney General’s opinion. The record does not reflect whether Castro reviewed the records at that time. The City Council then investigated Castro’s allegations. On February 14, it passed a motion stating:

(1) the settlement in the case of Rita Rodriguez was fair, equitable and beneficial to the City of El Paso;
(2) The City of El Paso was well informed of the risks and liabilities associated with the Rodriguez litigation;
(3) The City is satisfied that Charles McNabb made a full and complete disclosure of any potential or existing conflicts of interest that may have existed in this case; and
(4) The evaluation letter which was prepared by outside counsel in the Rita Rodriguez matter confirmed that the claim made by Rodriguez was not frivolous and the evaluation was consistent with the recommendations that were made by the insurance carrier representing the City, the City Attorney’s office, the mediator, and the outside attorney representing the Plaintiff and the City.

Castro amended her petition for declaratory judgment on February 21. As she had requested in the original petition, Castro sought a declaration that McNabb had an attorney-client relationship with her and owed her a fiduciary duty to make complete disclosure of his conflict of interest with respect to the Rodriguez litigation. With regard to her rights concerning the Rodriguez litigation file, Castro added a elaim that she had a right to review the file with the assistance of private legal counsel. She also sought declarations that the Texas Open Records Act was inapplicable and that the City Council’s action excluding her from certain executive sessions was unlawful. Consistent with her original petition, Castro’s prayer was limited to requesting a declaration that she had a right to review the Rodriguez litigation file.

On March 2 and 3, Castro reviewed the entire Rodriguez litigation file. She was told that Steve Blanco would be available by telephone if she had questions, but the record does not reflect whether she contacted him.

McNabb filed an answer to Castro’s petition and included a plea to the jurisdiction. He also filed a motion to dismiss pursuant to Section 101.106(f) of the Civil Practice and Remedies Code. The issues were submitted to the trial court for resolution and the court entered an order in which it found:

1. Petitioner Melina Castro was not acting with the authorization of the City Council of the City of El Paso when she initiated this litigation and therefore was not acting in her official capacity.
2. Respondent Charles McNabb has been wrongly named as a party by Petitioner Melina Castro. The Court finds Petitioner’s alleged claims against Respondent should have been brought against the City of El Paso under § 101.106 of the Tex.Civ.Prac.Rem. Code. Any alleged conduct of Respondent was within the general scope of his employment as the City Attorney for the City of El Paso.
3. On December 14, 2005, the Respondent filed his answer and advised Petitioner that she had not properly named the Respondent in this cause of action. On December 30, 2005, Respondent requested Petitioner amend her pleadings. Petitioner refused. This Court finds according to § 101.106(f) Tex.Civ.Prag. Rem.Code, this the [sic] suit against McNabb is dismissed in its entirety.
4. Petitioner Melina Castro has no right to seek relief from this Court for the matters enumerated in her Amended Petitioner [sic] for Declaratory Judgment. Petitioner improperly seeks this Court to adjudicate matters that can or have already been determined by the City of El Paso, the City Council and the Attorney General’s Office of the State of Texas. Accordingly, the Court finds that Petitioner lacks standing and therefore, the Court lacks subject matter jurisdiction.
5. This Court finds Respondent Charles McNabb is entitled to recover all applicable costs of Court and reasonable and necessary attorney’s fees from Petitioner Melina Castro, according to § 37.009 Tex.Civ.Prac. & Rem.Code, and other applicable provisions, to be determined by this Court. The Court orders Respondent to prepare an affidavit of reasonable and necessary attorneys fees and costs incurred in the defense of this cause of action by April 14, 2006. Petitioner shall file any response by April 21, 2006.
6. All other relief not specifically granted is denied.

MeNabb’s attorney complied with the order and submitted an affidavit regarding attorney’s fees. Castro did not file a response to the affidavit but instead filed a motion for reconsideration of the dismissal. On April 24, Castro amended her motion to include an objection to the fees and a motion for new trial, both of which were denied at a hearing on June 1. On December 21, the court entered an order awarding attorney’s fees to McNabb in the amount of $30,000. This appeal follows.

DISMISSAL OF THE SUIT

Castro brings five issues challenging the dismissal of her declaratory judgment action and two issues pertaining to the award of attorney’s fees. We will first address Issue Two wherein Castro argues that the trial court erred in basing the dismissal of her suit on Section 101.106(f) of the Civil Practice and Remedies Code.

Dismissal under Section 101.106(f)

Section 101.106, entitled “Election of Remedies,” provides:

(a) The filing of a suit under this chapter against a governmental unit constitutes an irrevocable election by the plaintiff and immediately and forever bars any suit or recovery by the plaintiff against any individual employee of the governmental unit regarding the same subject matter.
(b) The filing of a suit against any employee of a governmental unit constitutes an irrevocable election by the plaintiff and immediately and forever bars any suit or recovery by the plaintiff against the governmental unit regarding the same subject matter unless the governmental unit consents.
(c) The settlement of a claim arising under this chapter shall immediately and forever bar the claimant from any suit or recovery from any employee of the same governmental unit regarding the same subject matter.
(d) A judgment against an employee of a governmental unit shall immediately and forever bar the party obtaining the judgment from any suit against or recovery from the governmental unit.
(e) If a suit is filed under this chapter against both a governmental unit and any of its employees, the employees shall immediately be dismissed on the filing of a motion by the governmental unit.
(f) If a suit is filed against an employee of a governmental unit based on conduct within the general scope of that employee’s employment and if it could have been brought under this chapter against the governmental unit, the suit is considered to be against the employee in the employee’s official capacity only. On the employee’s motion, the suit against the employee shall be dismissed unless the plaintiff files amended pleadings dismissing the employee and naming the governmental unit as defendant on or before the 30th day after the date the motion is filed.

Tex.Civ.Prac. & Rem.Code Ann. § 101.106 (Vernon 2005). Subsections (e) and (f) are critical to our analysis.

Section 101.106 forces a plaintiff to make an irrevocable election at the time suit is filed between suing the governmental unit under the Tort Claims Act or proceeding against the employee alone. It thus narrows the issues for trial and reduces delay and duplicative litigation costs. Mission Consolidated Independent School District v. Garcia, 253 S.W.3d 653, 657 (Tex.2008). Under this election scheme, recovery against an individual employee is barred and may be sought against the governmental unit only in three instances: (1) when suit is filed against the governmental unit only, id. § 101.106(a); (2) when suit is filed against both the governmental unit and its employee, id. § 101.106(e); or (3) when suit is filed against an employee whose conduct was within the scope of his or her employment and the suit could have been brought against the governmental unit, id. § 101.106(f). Mission Consolidated ISD, 253 S.W.3d at 656.

Castro argues that Section 101.106(f) is inapplicable because her declaratory judgment suit against MeNabb does not fall within the Tort Claims Act. The Supreme Court addressed a similar argument in Mission Consolidated ISD. There, the plaintiff sued the District for violations of the Texas Commission on Human Rights Act (TCHRA). She also sued an individual District employee for defamation, negligent misrepresentation, and fraud. She sued the District and the employee jointly for intentional infliction of emotional distress. Relying on Section 101.106(b), the District sought dismissal of the claims. The trial court denied the District’s jurisdictional pleas and the District appealed. The court of appeals affirmed, finding that the Tort Claims Act’s election-of-remedies scheme is applicable only when the plaintiffs suit is one for which the Act actually waives immunity. Mission Consolidated Independent School District v. Garcia, 166 S.W.3d 902, 905 (Tex.App.-Corpus Christi 2005). In reaching this conclusion, the intermediate court focused on the “under this chapter” language found in various subsections of Section 101.106. Id. at 905. Because the plaintiffs suit against the District was not one for which the Act waives immunity, the court held that Section 101.106 was inapplicable. Id. The Supreme Court disagreed, holding it had never interpreted the phrase “under this chapter” to encompass only those tort claims for which the Tort Claims Act waives immunity. Mission Consolidated ISD, 253 S.W.3d at 658. Because the Tort Claims Act is the only avenue for common-law recovery against the government, all tort theories alleged against a governmental unit, whether it is sued alone or together with its employees, are assumed to be “under [the Tort Claims Act]” for purposes of Section 101.106. Id. at 659. By virtue of subsection (e), the employee would be entitled to dismissal of the suit against him upon the filing of a motion to dismiss by the District. Id. But the District had not sought the employee’s dismissal under subsection (e) and the employee had not filed his own motion to dismiss under subsection (f). Id. If the District had obtained the employee’s dismissal under subsection (e), all of the tort claims against the District would be barred. Id. The Supreme Court also held that claims against the government brought pursuant to waivers of sovereign immunity that exist apart from the Tort Claims Act are not brought “under [the Tort Claims Act].” Id. Thus, the plaintiffs claim filed under TCHRA was not “a suit filed under this chapter” because TCHRA provides a statutory remedy for unlawful discrimination. The court concluded that the election-of-remedies scheme was inapplicable to that claim. It also determined that the plaintiffs suit under TCHRA was not barred by Section 101.106(b) because TCHRA clearly and unambiguously waives immunity. Id. at 660.

Focusing on Mission ISD’s holding with respect to the TCHRA claim, Castro argues that her petition for declaratory judgment is not a suit under the Tort Claims Act because the Declaratory Judgment Act provides a statutory remedy. The Supreme Court’s holding is based upon its construction of subsection (e) while MeNabb filed his motion to dismiss pursuant to subsection (f). Section 101.106(f) requires a showing that the suit “could have been brought under this chapter against the governmental unit....” Although the Supreme Court did not address subsection (f) in Mission ISD, we believe its holding applies equally to that subsection. The issue, then, is whether Castro’s suit could have been “brought under this chapter” against the City of El Paso. It is well established that the Declaratory Judgments Act waives sovereign immunity for governmental entities. Texas Education Agency v. Leeper, 893 S.W.2d 432, 436 (Tex.1994). And it provides a statutory remedy for a person seeking to compel state officers to act within their official capacity. We conclude that Castro’s declaratory judgment action could not have been brought against the City of El Paso “under this chapter” for purposes of Section 101.106(f). Accordingly, the trial court erred in dismissing Castro’s suit pursuant to that section. We sustain Issue Two. But our resolution of this issue does not end the inquiry. We turn now to McNabb’s jurisdictional arguments.

PLEA TO THE JURISDICTION

A plea to the jurisdiction contests a trial court’s subject matter jurisdiction. Bland Independent School District v. Blue, 34 S.W.3d 547, 554 (Tex.2000); City of El Paso v. Maddox, 276 S.W.3d 66, 70 (Tex.App.-El Paso 2008, pet. denied). The plaintiff has the burden to allege facts affirmatively demonstrating that the trial court has subject matter jurisdiction. Texas Association of Business v. Texas Air Control Board, 852 S.W.2d 440, 446 (Tex.1993). Whether a court has subject matter jurisdiction is a question of law which we review de novo. Texas Department of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004); Maddox, 276 S.W.3d at 70. We consider the allegations in the petition and accept them as true. Maddox, 276 S.W.3d at 70. When deciding a plea to the jurisdiction, a court is not required to look solely to the pleadings, but may consider evidence and must do so when necessary to resolve the jurisdictional issues raised. Bland, 34 S.W.3d at 555.

The Declaratory Judgments Act

The Declaratory Judgments Act is a procedural device for deciding cases that are within the trial court’s jurisdiction. State v. Morales, 869 S.W.2d 941, 947 (Tex.1994). The stated purpose of the Act is “to settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations.” Tex.Civ.PraC. & Rem.Code Ann. § 37.002(b)(Vernon 2008); Bonham State Bank v. Beadle, 907 S.W.2d 465, 467 (Tex.1995). A declaratory judgment is appropriate only where there is a justiciable controversy about the rights and status of the parties and the declaration will resolve the controversy. Bonham State Bank, 907 S.W.2d at 467. To constitute a justiciable controversy, there must exist a real and substantial controversy involving genuine conflict of tangible interests and not merely a theoretical dispute. Id. The Act does not empower courts to issue advisory opinions. Brooks v. Northglen Association, 141 S.W.3d 158, 164 (Tex.2004).

McNabb’s Duties to Castro

Castro sought declarations that McNabb had an attorney-client relationship with her and owed her a fiduciary duty to make a full and complete disclosure prior to seeking a waiver of his conflict of interest with respect to the Rodriguez litigation. Castro argues that she has standing to seek a declaratory judgment as a member of the City Council.

Castro’s appellate counsel has done a commendable job of re-shaping Castro’s pleadings in an effort to demonstrate that the trial court had jurisdiction of her suit. But the declarations Castro seeks cannot be considered apart from her accusations about McNabb and her threats to sue him for legal malpractice and breach of fiduciary duty. Castro claims that these declarations are related to her request for the documents. Another view is that Castro sought the documents to obtain evidence which would support her allegations of malfeasance against McNabb. Under these circumstances, Castro is using her petition for declaratory judgment to establish a critical element in these tort causes of action. Castro, as an individual city council member, lacks standing to investigate McNabb or sue him for any conduct committed by him in connection with his representation of the City in the Rodriguez suit. Additionally, the second declaration she seeks is moot and would amount to an advisory opinion because the City Council has waived the potential conflict of interest and the Rodriguez suit was settled. The Declaratory Judgment Act does not empower courts to issue advisory opinions. Brooks, 141 S.W.3d at 164.

Exclusion of Castro from Executive Sessions

Castro also sought a declaration that her exclusion from certain executive sessions was unlawful. While McNabb provides non-binding advice to the City Council, decisions regarding executive sessions belong to the City Council itself. See TexGov’t Code Ann. § 551.071 (providing that a governmental body may not conduct a private consultation with its attorney except when the governmental body seeks the advice of its attorney about pending or contemplated litigation or a settlement offer, or on a matter in which the duty of the attorney under the Texas Disciplinary Rules of Professional Conduct clearly conflicts with Chapter 551). A declaration against McNabb would not bind the City or the City Council and would be purely advisory. The trial court does not have jurisdiction to issue an advisory decision. Brooks, 141 S.W.3d at 164.

Castro’s Review of the Rodriguez File

We turn now to the primary issue in this case — whether the trial court lacked subject matter jurisdiction of Castro’s request for declarations that (1) she was entitled to review the Rodriguez litigation file with the assistance of private counsel, and (2) the Texas Public Information Act does not apply to her request to review this file. McNabb maintains that the trial court lacked subject matter jurisdiction to make these declarations because there is no justiciable controversy between the parties. Citing Section 552.3215 of the TPIA, he argues that because Castro did not name the City as a party, the controversy would not be resolved by these declarations. The Attorney General found in its informal letter ruling that Castro’s request to review documents in the possession of the City Attorney was not governed by the TPIA because she had made the request in her official capacity as a member of the City Council and she had an inherent right to review the file in that capacity. But the Attorney General determined that Castro must maintain the privileged documents in the same manner as they are maintained by the City in order to avoid waiver of the attorney-client privilege. This would preclude disclosure of confidential information to a person who is not authorized to inspect the records. The Attorney General’s ruling does not address whether the records could be disclosed to Castro’s private legal counsel or whether Castro is restricted to the remedies set forth in Chapter 552 of the Government Code. We need not address McNabb’s argument that Section 552.3215 applies to Castro’s suit because we conclude that even if it doesn’t apply, Castro was required to join the City as a party.

There are two prerequisites for a declaratory judgment action: (1) there must be a real controversy between the parties and (2) the controversy must be one that will actually be determined by the judicial declaration sought. Houston Chronicle Publishing Company v. Thomas, 196 S.W.3d 396, 401 (Tex.App.-Houston [1st Dist.] 2006, no pet.); see Tex.Civ.Prao. & Rem. Code Ann. § 37.008 (“The court may refuse to render or enter a declaratory judgment or decree if the judgment or decree would not terminate the uncertainty or controversy giving rise to the proceeding.”). And Section 37.006(a) of the Civil Practice and Remedies Code provides:

(a) When declaratory relief is sought, all persons who have or claim any interest that would be affected by the declaration must be made parties. A declaration does not prejudice the rights of a person not a party to the proceeding.

Tex.Civ.Prac. & Rem.Code Ann. § 37.006(a).

The Rodriguez litigation file and the privileged information it contains belong to the City of El Paso, not to the City Attorney. A declaratory judgment against McNabb individually would not bind the City and would merely be advisory. Citing Texas A & M University v. Koseoglu, 233 S.W.3d 835 (Tex.2007), Castro argues that a suit filed against an official in his official capacity is effectively a suit against the governmental entity. In that case, a former employee sued a state university, the state engineering experiment station where the former employee had worked, and his former supervisor for breach of settlement agreement regarding an employment dispute. One issue addressed by the Supreme Court was whether appellate courts have jurisdiction of a government official’s interlocutory appeal from the trial court’s denial of a plea to the jurisdiction based on sovereign immunity. Id. at 845. In construing Section 51.014(a) of the Texas Civil Practice and Remedies Code to provide for an interlocutory appeal by a governmental official, the Supreme Court held that:

When a state official files a plea to the jurisdiction, the official is invoking the sovereign immunity from suit held by the government itself. It is fundamental that a suit against a state official is merely ‘another way of pleading an action against the entity of which [the official] is an agent.’ [Citations omitted]. A suit against a state official in his official capacity ‘is not a suit against the official personally, for the real party in interest is the entity.’ [Citation omitted]. Such a suit actually seeks to impose liability against the governmental unit rather than on the individual specifically named and ‘is, in all respects other than name, ... a suit against the entity.’ [Citation omitted]. Id. at 844.

This discussion is inapplicable here because McNabb did not invoke the doctrine of sovereign immunity in his plea to the jurisdiction. He sought dismissal on the ground that the trial court lacked subject matter jurisdiction. Moreover, Castro has made it clear that her complaint is with McNabb personally and she did not amend her pleadings to name the City as a party even after McNabb filed a motion to dismiss. Finally, suits to compel state officers to act within their official capacity do not attempt to subject the State to liability and are not suits against the state. See Texas Natural Resource Conservation Commission v. IT-Davy, 74 S.W.3d 849, 855 (Tex.2002). We therefore conclude that Castro’s declaratory judgment action against McNabb is not a suit against the City. The Declaratory Judgments Act expressly provides that a declaration does not prejudice the rights of a person not a party to the proceeding. Tex.Civ.PraC. & Rem.Code Ann. § 37.006(a). Because Castro failed to make the City a party to this suit, any decision by the trial court on the merits would not have resolved the controversy and would have been advisory.

Application of the TPIA

Castro also sought a declaration that the TPIA does not apply to her request for information related to the Rodriguez litigation file. Given our conclusion that the trial court lacked jurisdiction to declare that Castro has a right to review this information with the assistance of her private attorney, it follows that the court lacked jurisdiction to declare that the TPIA does not apply to her request. A suit to produce information under the Texas Government Code must be filed against the governmental body withholding the information. TexGov’t Code Ann. § 552.3215. We recognize that Castro has taken the position that the TPIA does not apply to her request, but such a declaration against McNabb would not bind the City. Thus, the trial court does not have jurisdiction to make the requested declaration.

ASSESSMENT OF ATTORNEY’S FEES

In Issues Six and Seven, Castro contends that the trial court erred in assessing attorney’s fees against her because she brought the suit in her official capacity. She also argues that if the trial court lacked subject matter jurisdiction of the declaratory judgment action, then it also lacked jurisdiction to award attorney’s fees. We will address the latter argument first.

The Declaratory Judgments Act provides that:

In any proceeding under this chapter, the court may award costs and reasonable and necessary attorney’s fees as are equitable and just.

Tex.Civ.PRAC. & Rem.Code Ann. § 37.009. In a declaratory judgment action, the decision to grant or deny attorney’s fees is solely within the discretion of the trial court. Neeley v. West Orange-Cove Consolidated Independent School District, 176 S.W.3d 746, 799 (Tex.2005). Under Section 37.009, a trial court may exercise its discretion to award attorney’s fees to either the prevailing or the nonprevailing party. See Barshop v. Medina County Underground Water Conservation District, 925 S.W.2d 618, 637-38 (Tex.1996). The requirements that fees be reasonable and necessary are matters of fact, while the requirements that fees be equitable and just are matters of law. Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex.1998).

Castro directs us to several cases in support of her argument that the trial court lacked jurisdiction to award fees: Angell v. City of Garland, No. 05-89-001174-CV, 1991 WL 158667 (Tex.App.-Dallas 1991, writ dism’d w.o.j.)(op. on reh’g); Gregg County Appraisal District v. Laidlaw Waste Systems, Inc., 907 S.W.2d 12, 21 (Tex.App.-Tyler 1995, writ denied); Ankrom v. Dallas Cowboys Football Club, Ltd., 900 S.W.2d 75, 81 (Tex.App.-Dallas 1995, writ denied); Commissioners Court of Brown County v. Grigsby, No. 11-01-00254-CV, 2002 WL 32344508 at *4 (Tex.App.-Eastland 2002, no pet.); North East Independent School District v. Kelley, 277 S.W.3d 442, 445 (Tex.App.-San Antonio 2008, no pet.); and It’s the Berrys, LLC v. Edom Cornier LLC, 271 S.W.3d 765, 772 (Tex.App.-Amarillo 2008, no pet.). We respectfully decline to follow these cases because not a single one of them examines the plain language of Section 37.009 which authorizes a trial court to award attorney’s fees “[i]n any proceeding under this chapter.” The statute does not require a judgment on the merits of the dispute as a prerequisite to a fee award. Castro invoked the entire Declaratory Judgments Act when she filed suit. Her failure to make the City a party to the suit meant that any declaration made by the trial court would have been an advisory opinion. Our determination that the trial court lacked jurisdiction to render the specific declarations sought does not change the nature of the proceedings below. Because this was a proceeding under the Declaratory Judgments Act, the trial court properly exercised jurisdiction under Section 37.009 to award attorney’s fees to McNabb.

Finally, we turn to Castro’s argument that attorney’s fees may not be awarded against public officials. The trial court did not award attorney’s fees against Castro in her official capacity because the court expressly found that she was not acting in her official capacity. This conclusion was based on its finding that Castro had not obtained authorization of the City Council to file the suit.

Acting pursuant to Section 1.5 of the City Charter, Castro provided the City with notice of her intent to file a declaratory judgment suit related to her right to review the Rodriguez litigation file. She also gave notice that she would seek a judicial declaration regarding her entitlement “pursuant to the grant of authority in Section 3.8 of the City Charter ... to review any and all documents prepared by or for the City of El Paso in connection with litigation claims against the City.” Section 3.8 of the City Charter provides that:

The council shall have the express power to inquire into the official conduct of any department, officer or employee of the City and for that purpose shall have the power to administer oaths, subpoena witnesses and compel the production of evidence material to the inquiry.

In her petition, Castro did not seek a declaration related to Section 3.8. But she did make numerous allegations about the official conduct of McNabb. Her request to review the Rodriguez litigation file is based on these allegations and Castro’s intent to investigate McNabb’s official conduct. Castro made her intentions clear when she stated in response to McNabb’s motion to dismiss:

The City of El Paso states in their Brief in Support of their Motion to Dismiss that the controversy in this lawsuit arises from Rita Rodriguez v. The City of El Paso. This statement is incorrect. This lawsuit arises from the actions of the Respondent, Charles McNabb, in the face of legitimate and probing questions concerning his behavior and actions regarding the Rodriguez settlement. A close inspection of Petitioner’s claims listed above shows that Petitioner’s only concern in this action is Respondent McNabb’s behavior before, during, and after the Rodriguez settlement, particularly as it implicates the withholding of litigation documents requested by Representative Castro. [Emphasis added].

An individual city council member is not authorized to take action under Section 3.8 because that section vests authority in the City Council, not individual council members, to inquire into the official conduct of any department, officer or city employee. To the extent Castro’s suit was based upon her purported authority under Section 3.8, the trial court correctly determined that she was not authorized to bring suit and that she was not acting in her official capacity.

Castro argues, however, that she has authority as an individual city council member to file a declaratory judgment action in order to clarify her legal relationship with the City Attorney and to determine whether she has a right to have private counsel review the litigation file with her. If Castro had limited her suit to these issues, we might be more persuaded by her argument, but the declarations Castro seeks are inextricably bound to her assertions about the Rodriguez settlement and her allegations that McNabb acted improperly in that regard. As an individual city council member, Castro lacks authority to investigate McNabb’s official conduct. The trial court did not err by concluding that Castro did not act in her official capacity when she filed the declaratory judgment suit. We overrule Issues Six and Seven. It is unnecessary to address the remaining issues raised by the parties.

Having sustained Issue Two, we reverse that portion of the trial court’s order dismissing Castro’s suit pursuant to Section 101.106(f). Because we have determined that the trial court lacked jurisdiction to grant the relief requested by Castro, we render judgment dismissing Castro’s suit for want of subject matter jurisdiction. Having overruled Issues Six and Seven, we affirm the portion of the trial court’s order awarding attorney’s fees to McNabb.

      . The City paid $200,000 of the settlement and the insurance carrier paid the balance.

      . Tex Gov’t Code Ann. §§ 551.001-551.146 (Vernon 2004 & Vernon Supp.2009).

      . The Texas Public Information Act is found at Tex.Gov't Code Ann. §§ 552.001-.353 (Vernon 2004 & Vernon Supp.2009). The Act was formerly known as the Texas Open Records Act. Castro refers to the Act by its former name in her correspondence.

      . The chief administrative officer of a governmental body is the officer for public information, except as provided by Subsection (b). Tex.Gov’t Code Ann. § 552.201.

      . McNabb asserts in his brief that Castro and Ketner reviewed over 800 pages of public documents related to the Rodriguez litigation on January 30, 2006, but we have been unable to find evidence supporting this assertion in the record.

      . See Tex.Lab.Code Ann. §§ 21.001-21.556 (Vernon 2006 & Vernon Supp.2009).


source: Caselaw Access Project

author: ANN CRAWFORD McCLURE, Justice.

license: Public Domain

text:
    Doris PENROD, Appellant, v. David R. SCHECTER, M.D., Individually and d/b/a Schecter and Blumenfeld, P.A., Appellees.
    No. 08-07-00121-CV.
    Court of Appeals of Texas, El Paso.
    Nov. 12, 2009.
    Rehearing Overruled Jan. 13, 2010.

      Enrique Moreno, Law Offices of Enrique Moreno, Larry W. Hicks, Hicks & Llamas, P.C., El Paso, TX, for Appellant.
    Cynthia C. Llamas, Hicks & Llamas, P.C., El Paso, TX, for Appellee.

      Before CHEW, C.J., McCLURE, and RIVERA, JJ.
   OPINION

ANN CRAWFORD McCLURE, Justice.

Is it reversible error to permit a jury to decide a case based on an instruction that is neither supported by the evidence, intended by the trial court, nor properly defined? Because we conclude that it is, we reverse and remand.

FACTUAL SUMMARY

Doris Penrod appeals from a take nothing judgment entered in favor of David R. Schecter, M.D., Individually, and d/b/a Schecter and Blumenfeld, P.A., following a jury trial on her medical malpractice claim.

The Events at Dr. Schecter’s Office

On August 6, 2003, Jessica Penrod took her grandmother, Doris Penrod, to a surgical center for cataract surgery. Penrod was scheduled to undergo cataract surgery on her left eye with Dr. Schecter. At approximately 11:30 a.m., Cesar Berdeja, M.D., an anesthesiologist, administered a retrobulbar injection of anesthesia. The injection caused a small retrobulbar hemorrhage (RBH) about the size of a dime in the superior portion of Penrod’s eye. RBH is a rare complication, occurring in less than 2 percent of patients who receive a retrobulbar injection, and of this subset, about .025 percent suffers damage to the optic nerve. RBH can cause pressure to build up behind the eye which the body relieves by allowing the eye to move forward against the eyelid. The optic nerve has some elasticity which enables the eye to push out to reheve pressure. In that instance, a rise in the intraocular pressure will not occur. The bleeding often stops due to clotting or from the increasing pressure which tamponades the bleeding. If the RBH continues to bleed, the pressure can increase to the point that the patient is at risk for injury to the optic nerve.

Dr. Berdeja observed the RBH for fifteen to twenty minutes. The size of it did not change during this period of observation. Dr. Berdeja took Penrod into the operating room and Dr. Schecter examined the RBH under a microscope for three to five minutes. The RBH did not change and had tamponaded. Dr. Schec-ter did not observe any swelling of the eyelids, redness in the eye, ecchymosis, discoloration of the eye, or proptosis. He specifically examined Penrod’s eyelids to determine if there was room for the eye to push out and relieve the pressure. Dr. Schecter observed that the eyelids were not taut. Based on his clinical evaluation, he did not believe there was a need to use the tonometer to assess intraocular pressure. Nevertheless, Dr. Schecter canceled the cataract surgery due to the risk of complications. A shield and eyepatch were placed over the eye and Penrod was discharged at approximately 2 p.m. with instructions to apply an ice pack to the eye for two to three hours and to call Dr. Schecter if she had any problems. She was also instructed to return to Dr. Schec-ter’s office the following morning.

Penrod Leaves Dr. Schecter’s Office

Jessica drove Penrod to a podiatrist’s office where Jessica’s mother, Lily Penrod, worked. The trip from the surgical center to Lily’s place of employment took twenty to twenty-five minutes. When they arrived, Jessica could see redness around the eyepatch which had not been there when they were at Dr. Schecter’s office. Lily removed the eyepatch and shield and saw a large hemorrhage around the eye. Lily’s employer looked at the eye and recommended that she take Penrod to a hospital. Lily instead decided that Jessica should drive Penrod home. Afterward, Penrod began complaining of severe pain. Jessica claimed that she called Dr. Schec-ter that afternoon to report that Penrod was experiencing extreme pain and asked whether she should take Penrod to the hospital. Dr. Schecter purportedly told Jessica not to go to the hospital and instructed her to return Penrod to his office the following morning. He also told Jessica to give Penrod some Tylenol 3. Dr. Schecter denied speaking with Jessica that afternoon and denied prescribing Tylenol 3. He would not have advised Jessica against taking her grandmother to the hospital.

The Second Visit and the Aftermath

Penrod, accompanied by Jessica, returned to Dr. Schecter’s office the following morning. There was substantial bruising around the eye and Penrod had no vision — only light perception. She could not identify two fingers held up in front of her. Dr. Schecter concluded that Penrod had suffered a rebleed after she left his office the previous day. He prescribed Lumigan drops and Neptazine, which are used to lower intraocular pressure. Jessica took Penrod home but she continued to suffer from significant eye pain. Jessica called Dr. Schecter around 1 p.m. that afternoon and he advised her to take Pen-rod to the hospital and to tell the emergency room staff to call him. Penrod did not present at the ER until 6 p.m. that evening and the ER staff did not call Dr. Schecter until approximately 2:30 a.m. He went directly to the ER and examined the eye. The proptosis appeared the same and Dr. Schecter concluded that Penrod’s eye pain was due to swelling of the conjunctiva and stretching of nerve endings. He discussed performing a lateral canthotomy but did not believe it was necessary.

Penrod returned to Dr. Schecter’s office a week later. The vision in the left eye had not improved. Dr. Schecter measured the intraocular pressure using the tonome-ter and determined that it was normal. When Penrod’s vision did not improve after three weeks, Dr. Schecter sent her to a specialist, Dr. Roy Levit, to determine whether she had optic nerve or retinal damage. Dr. Levit found that Penrod did not have macular or retinal changes but she had severe ischemic optic atrophy. RBH is one possible cause of ischemic optic atrophy, but Dr. Levit opined it could also be caused by toxicity resulting from the injection, or blockage in a blood vessel from the injection.

The Experts

At trial, Penrod offered the testimony of Oliver Schein, M.D., a professor of ophthalmology at the Wilmer Eye Institute at Johns Hopkins University. Dr. Schein spends about one-half of his time in direct patient care with most of the remainder of his time devoted to clinical research. His expertise is in the anterior segment of the eye and he primarily specializes in cataract, cataract surgery, and complications of cataract surgery. Dr. Schein explained to the jury the structures of the eye and the function of those structures, including the optic nerve. The optic nerve requires oxygen to survive. Consequently, if the blood supply to the optic nerve and its coating is diminished from compression for a long enough period of time, then the nerve will cease to function and will result in loss of vision. When a retrobulbar injection is made, the needle is inserted between the bone and the eye into the space behind the eye. It is possible that the needle could encounter and lacerate a blood vessel. Because the space behind the eye is enclosed, it fills up with blood within seconds and there is no place for the blood to escape. As a result, it seeps forward and can be seen in the upper and lower eyelids and in the white part of the eye. The bleeding often stops because the pressure tamponades the lacerated vessel, but pressure is also placed on the eye itself.

Dr. Schein viewed a photograph of Pen-rod taken by her grandmother on August 6, 2003, the day of surgery. The upper and lower lids are dark with blood and the eye is swollen and protruding from pressure. In Dr. Schein’s expert opinion, the standard of care required Dr. Schecter to measure intraocular eye pressure through the use of a tonometer. If the pressure is substantially elevated, the appropriate intervention would be to perform a procedure known as a lateral canthotomy which involves cutting a tendon in the eyelid to create an opening for the blood to move forward and reduce pressure on the eye. If that failed to reduce the pressure, a small opening could be made in the eye to remove some of the aqueous. Dr. Schein acknowledged that there are medicines which can bring the pressure down but they take thirty to sixty minutes to work. Dr. Schein believed that Dr. Schecter’s method of detecting elevated eye pressure — moving the eyelid to determine mobility — was not an assessment at all because the pressure could be elevated even where the eyelid is mobile. On cross-examination, he admitted that clinical observation of eyelid elasticity is part of an assessment, but he maintained that mere observation is inadequate and Dr. Schecter should have used a tonometer. In his opinion, Dr. Schecter did not do enough to determine whether a lateral canthotomy should have been performed.

Dr. Schein also testified that there could be compression of the optic nerve even in the presence of a normal eye pressure reading. Thus, the standard of care also required Dr. Schecter to evaluate Penrod’s vision and the response of her pupils to light four to six hours after surgery. Due to the anesthesia injection, it is impossible to measure vision until the anesthesia wears off. According to Dr. Schein, damage to the optic nerve from compression could occur in an hour or two, or occur over a longer period of time. He could not state whether the damage to Penrod’s optic nerve occurred two hours after the RBH or twenty-four hours later. Dr. Schecter did not examine her vision until the following day approximately twenty-four hours after the retrobulbar injection. If her vision was poor at this time, a physician should be concerned about compression of the optic nerve. In such a case, a CAT scan of the eye would be the next step. Finally, a physician should perform surgery to evacuate the blood accumulated behind the eye. All of these procedures should be done within twenty-four hours of the retrobulbar injection. In Dr. Schein’s opinion, Penrod’s loss of vision could have occurred through two mechanisms: increased intraocular pressure or compression of the optic nerve from blood accumulated in the back of the eye. Further, he opined that it was reasonably foreseeable that Dr. Schecter’s failure to measure the intraocular pressure and evaluate her vision led to damage of the optic nerve and loss of vision. Dr. Schein acknowledged that damage to the optic nerve following RBH could occur without negligence.

Dr. Schecter offered the expert testimony of Bernard A. Milstein, M.D., the Clinical Professor of Ophthalmology at the University of Texas Medical Branch in Galveston. Dr. Milstein devotes approximately 95 percent of his time to patient care, and in the last fifteen to twenty years, his practice has centered around cataract surgery and intraocular lens implantation using Verisyse Phakic and La-sik surgery. Dr. Milstein averages 400 to 500 cases of cataract surgery per year and he has extensive experience with retrobul-bar injections. Dr. Milstein explained for the jury how a retrobulbar injection is performed and he described the potential complications which could occur. In addition to an RBH, the optic nerve can be damaged by the injection itself or the anesthetic can cause a toxic injury. He could not determine which of these events caused Penrod’s optic nerve atrophy. In his opinion, if Dr. Berdeja injected the optic nerve or if the anesthetic caused a toxic injury, Dr. Schecter could not have taken any action which would have prevented damage to the optic nerve. It has been postulated that if there is pressure behind the eye from the blood pushing the globe forward, the pressure of the eye against the lids can cause pressure inside the eye. Dr. Milstein agreed with Dr. Schecter that an ophthalmologist can assess whether there is too much pressure behind the eye by feeling the tensile pressure on the lids. If the lids are taut, a lateral canthotomy can be performed to reduce or relieve the pressure on the lids and allow the globe to move forward. If there is no pressure on the lids from the eye, then there is no reason to use a tonometer or to perform the lateral can-thotomy. Based on his review of the records and the evidence presented to him, Dr. Milstein concluded that a reasonably prudent ophthalmic surgeon would not have used a tonometer on the day of surgery given the absence of tautness in the eyelids. Dr. Milstein also found that a reasonably prudent ophthalmologist would have released Penrod with instructions to call if a problem arose and to return to the office the following day.

The Charge Conference

During the charge conference, Dr. Schecter’s counsel objected to the court’s failure to include an instruction on “new and unexpected cause.” The court denied that request. Immediately after that ruling, Penrod’s counsel pointed out that the proximate cause definition included in the charge had the “unbroken by any new and independent cause” language in it. The court cut counsel off, stating that Dr. Schecter’s counsel had requested an instruction on unavoidable accident and said, “Let’s just not waste time.” The court’s charge included the following definition:

‘PROXIMATE CAUSE’, when used with respect to the conduct of DAVID R. SCHECTER, M.D., means that cause which, in a natural and continuous sequence, unbroken by any new and independent cause, produces an event, and without which cause such event would not have occurred. In order to be a proximate cause, the act or omission complained of must be such that an ophthalmic surgeon exercising ordinary care would have foreseen that the event, or some similar event, might reasonably result therefrom. There may be more than one proximate cause of an event. [Emphasis added].

The jury found that the negligence, if any, of Dr. Schecter did not proximately cause the occurrence in question. Penrod filed a motion for new trial complaining that the inclusion of the “new and independent cause” language in the proximate cause instruction was erroneous. At the hearing on the motion for new trial, the trial judge admitted that it was not his intention to leave that language in the definition since he had denied Dr. Schecter’s request for an instruction on “new and independent cause.” He had noticed the error when he was reading the charge to the jury. The court also observed that Penrod’s counsel had attempted to bring the error to his attention but he was focused on something else at the time.

Trial court: And for the record, it was the Court’s mistake to leave that wording in under proximate cause because I had found not to instruct them on new and independent cause. You did point it out to me; however, I think I was looking at something else at the time and, frankly, as I was reading the charge, I realized that that shouldn’t have been in there in proximate cause. And then I know Mr. Hicks argued that. So, for the record, the Court did make a mistake in leaving that in the definition of proximate cause. Whether that’s harmful error or no error at all, we’ll see.
* ⅜ ⅜ # * *
Trial court: And frankly, my mind was some place else, but he’s telling me, “If you leave it in there,” quote, “unbroken by any new and independent cause,” because you assumed that you were going to get the inferential rebuttal.
So, I’ve got my mistake and then rightfully so, rightfully so, I don’t think you did anything wrong in arguing it because it’s there. I gave it to you. So I don’t know if that compounds or magnifies my error.
******
Trial court: And, for the record, whoever reads this record upstairs, I never intended for that to go in. I made a mistake. Now, whether that’s harmful or harmless is for somebody else to decide.

Ultimately, the trial court denied the motion for new trial and this appeal follows.

PROXIMATE CAUSE INSTRUCTION

In two related issues for review, Penrod contends that the take nothing judgment should be reversed because of the erroneous inclusion of the “new and independence cause” language in the definition of proximate cause. Dr. Schecter responds that the definition did not misstate the law. Alternatively, he argues that the error is harmless.

Preservation of Error

Dr. Schecter did not raise preservation of error in his brief, but he asserted at oral argument that Penrod has waived her complaint about the proximate cause instruction. Rule 274 of the Texas Rules of Civil Procedure provides:

A party objecting to a charge must point out distinctly the objectionable matter and the grounds of the objection. Any complaint as to a question, definition, or instruction, on account of any defect, omission, or fault in pleading, is waived unless specifically included in the objections. When the complaining party’s objection, or requested question, definition, or instruction is, in the opinion of the appellate court, obscured or concealed by voluminous unfounded objections, minute differentiations or numerous unnecessary requests, such objection or request shall be untenable. No objection to one part of the charge may be adopted and applied to any other part of the charge by reference only.

Tex.R.Civ.P. 274. Under Rule 272, the trial court is required to rule on objections to the charge before reading the charge to the jury. See Tex.R.Civ.P. 272. This rule also imposes a presumption that “the party making such objections presented the same at the proper time and excepted to the ruling thereon.” Id. The Texas Supreme Court has held that Rule 272’s presumptive provision means that if an objection is articulated and the trial court makes no change in the charge, the objection is, of necessity, overruled. Acord v. General Motors Corp., 669 S.W.2d 111, 114 (Tex.1984). Rule 33.1(a)(2)(A) of the Texas Rules of Appellate Procedure is consistent with the Aeord decision because it permits error to be preserved by either an express or implicit ruling on an objection. See Tex.R.App.P. 33.1(a)(2)(A).

It is undisputed that Penrod’s attorney specifically objected to the inclusion of the “unbroken by any new and independent cause” language in the proximate cause instruction. The trial court cut counsel off stating, “She requested one on unavoidable accident. Let’s just not waste time.” The court then instructed defense counsel to proceed. Because the definition of proximate cause included the language objected to by Penrod, we conclude that the court impliedly overruled the objection. Therefore, Penrod preserved error under Aeord and Rule 33.1(a)(2)(A).

Standard of Review

Rule 278 requires the trial court to “submit the questions, instructions and definitions in the form provided by Rule 277, which are raised by the written pleadings and the evidence.” Tex.R.Civ.P. 278. We review an allegation of jury charge error for an abuse of discretion. Texas Department of Human Services, v. E.B., 802 S.W.2d 647, 649 (Tex.1990); Alfiji, S.A. de C.V. v. Woodal, 280 S.W.3d 897, 899-900 (Tex.App.-El Paso 2009, no pet.). A trial court abuses its discretion by acting arbitrarily, unreasonably, or without consideration of guiding principles. Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex.2003).

New and Independent Cause

New and independent cause is a component of the proximate cause issue. Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 856 (Tex.2009), citing Dallas Railway & Terminal Co. v. Bailey, 151 Tex. 359, 250 S.W.2d 379, 383-84 (Tex.1952)(“The theory of new and independent cause is not an affirmative defense; it is but an element to be considered by the jury in determining the existence or non-existence of proximate cause.”). A new and independent cause of an occurrence is the act or omission of a separate and independent agent, not reasonably foreseeable, that destroys the causal connection, if any, between the act or omission inquired about and the occurrence in question. Columbia Rio Grande Healthcare, L.P., 284 S.W.3d at 856.

If the act or omission alleged to have been a new and independent cause is reasonably foreseeable at the time of the defendant’s alleged negligence, the new act or omission is a concurring cause as opposed to a superseding or new and independent cause. Id. at 857; Dew v. Crown Derrick Erectors, Inc., 208 S.W.3d 448, 451 (Tex.2006). A new and independent cause alters the natural sequence of events, produces results that would not otherwise have occurred, is an act or omission not brought into operation by the original wrongful act of the defendant, and operates entirely independently of the defendant’s allegedly negligent act or omission. Columbia, Rio Grande Healthcare, L.P., 284 S.W.3d at 857.

Is the Definition Erroneous?

An instruction is proper only if it (1) assists the jury, (2) accurately states the law, and (3) finds support in the pleadings and evidence. Columbia Rio Grande Healthcare, L.P., 284 S.W.3d at 855; El Paso Refining, Inc. v. Scurlock Permian Corporation, 77 S.W.3d 374, 388 (Tex.App.-El Paso 2002, pet. denied). The definition of proximate cause submitted to the jury fails on all accounts. It does not assist the jury because it includes the phrase “unbroken by any new and independent cause” without any explanatory provisions. Further, the definition does not accurately state the definition of proximate cause applicable in this case. Finally, Dr. Schecter’s answer raised the issue of new and independent cause, but the evidence did not support its submission to the jury. We understand Dr. Schecter to posit that the new and independent cause is the rebleed which occurred after Penrod left the surgical center. While there is some evidence in the record that the RBH had tamponaded before Penrod left the surgical center and began to rebleed sometime after she left, there is no evidence of what act or omission caused the rebleed. Thus, there is no evidence that the act or omission which caused the rebleed was not brought into operation by the original wrongful act of the defendant. There is no evidence that the rebleed altered the natural sequence of events, produced results that would not otherwise have occurred, or that it operated entirely independently of the defendant’s allegedly negligent act or omission. We therefore conclude that the definition of proximate cause is erroneous because it included the “unbroken by new and independent cause” language.

Is the Erroneous Definition Harmful?

We turn now to a harm analysis. A judgment will not be reversed for charge error unless the error was harmful because it probably caused the rendition of an improper verdict or probably prevented the petitioner from properly presenting the case to the appellate courts. Tex. R.App. P. 44.1; Wal-Mart Stores, Inc. v. Johnson, 106 S.W.3d 718, 723 (Tex.2003); AIM S.A. de C.V., 280 S.W.3d at 900. Charge error is generally considered harmful if it relates to a contested, critical issue. Columbia Rio Grande Healthcare, L.P., 284 S.W.3d at 856.

The record reflects that causation was a contested, critical issue at trial. Penrod’s expert, Dr. Schein, testified that the standard of care required an ophthalmologist to evaluate the patient’s eye pressure and vision following the RBH and for several hours afterward to ensure that the optic nerve had not been damaged. In Dr. Schein’s expert opinion, it was likely that Penrod’s eye pressure was high as a result of the RBH, such that Dr. Schecter’s failure to measure intraocular pressure resulted in a failure to treat elevated pressure which in turn resulted in optic nerve damage and loss of vision. Dr. Schecter, on the other hand, testified that the standard of care did not require him to continue to evaluate Penrod on the day of the scheduled surgery. Dr. Milstein agreed that a reasonably prudent ophthalmologist would have released Penrod with instructions to call if a problem arose and to return to the office the following day. Both Drs. Schecter and Milstein believed that Penrod experienced a rebleed after she left the surgical center.

Penrod maintains that the erroneous definition of proximate cause probably caused the rendition of an improper judgment because it permitted Dr. Schecter to advocate a defensive theory otherwise unavailable to him. In support of her contention, Penrod points to the following portion of defense counsel’s final argument:

Proximate cause says, ‘That cause which in a continuous sequence unbroken by any new or independent cause produces an event.’ Unbroken by any new or independent cause. There was a new independent cause. A new independent cause is whatever caused it to rebleed. That is what broke. Even if you think Dr. Schecter should have used the to-nometer, after she left his care, after the nurses from the surgical center saw her, after he saw her, something happened that she had a rebleed. That’s a new and independent cause that occurred. If you get to Question Number One, it says: Did the negligence of David R. Schecter, M.D. proximately cause the occurrence in question? My suggestion is that the answer to that is no. If you answer no, then you’re done.

Defense counsel seized upon the inadvertent but erroneous language in the jury charge to argue that “whatever” caused the re-bleed after Penrod left the surgical center was a new and independent cause, and therefore, the jury should find that Dr. Schecter’s negligence, if any, did not proximately cause the occurrence in question. This argument could not have been made absent the defective proximate cause instruction. The argument is significant because it provided a defense to Penrod’s claim that Dr. Schecter failed to monitor the RBH complication. While defense counsel argued, based on the evidence, that the standard of care did not require Dr. Schecter to continue to monitor Pen-rod's condition on the day of surgery, the defective proximate cause definition permitted counsel to sidestep Dr. Schein’s expert opinion that Dr. Schecter should have continued to monitor the complication. Instead, he was able to argue that there was a new and independent cause for the rebleed, albeit that the “whatever caused it to rebleed” was never identified.

Dr. Schecter contends that the error is harmless because the jury could have rejected Dr. Schein’s testimony given the testimony about alternative causes for Appellant’s loss of vision that were unrelated to Dr. Schecter’s conduct. He cites James v. Kloos, 75 S.W.3d 153 (Tex.App.-Fort Worth 2002, no pet.) in support of his argument. There, the trial court granted the defendant’s request for an instruction on new and independent cause. The court of appeals determined that the instruction should not have been given because the defendant failed to present any evidence of an act or omission of a separate and independent agency that destroyed the causal connection between the defendant’s allegedly negligent act and the plaintiffs injury. Id at 163. Thus, the defendant did not offer evidence that the plaintiffs injury was not a reasonably foreseeable result or natural consequence of the incident in question. Id at 162-63. The court determined, however, that the instruction was not harmful because defense mentioned new and independent cause only twice in sixteen pages of argument and it could not be determined that the improper instruction resulted in an improper judgment. Id. at 163-64.

James is factually distinguishable. The trial court there intentionally submitted a properly worded instruction on new and independent cause. As it turned out, the charge should not have been given. Here, the trial court did not instruct the jury on new and independent cause but inadvertently left the new and independent cause language in the definition of proximate cause. In the absence of an instruction to guide the jury’s consideration of new and independent cause, the jury was able to disregard whether Penrod’s injury was a natural consequence of Dr. Schecter’s failure to monitor the complication if it found, at defense counsel’s urging, that something caused it to rebleed after she left the surgical center.

CONCLUSION

Under the unique facts presented, we conclude that the charge error probably caused the rendition of an improper verdict. Accordingly, we sustain Issues One and Two and remand the cause for a new trial.

      . At the time of trial, Dr. Schecter had seen about twenty-five cases of RBH during his twenty-five year career.

      . A bruise or contusion is sometimes referred to by doctors as ecchymosis. It involves injury to tissues in which the capillaries are damaged, allowing blood to seep into the surrounding tissue.

      .Proptosis is a bulging of the eye anteriorly out of the orbit.

      . A lateral canthotomy is a surgical division of the outer canthus to release the accumulated blood.

      . In his brief on appeal, Dr. Schecter maintains that he did not request an instruction on new and independent cause but instead requested an unavoidable accident instruction. In his first amended answer, Dr. Schecter raised numerous defensive matters, including both unavoidable accident and new and independent cause. Prior to trial, Dr. Schecter filed his requested definitions and instructions which included an instruction on new and independent cause. The record before us reflects that Dr. Schecter indeed tendered a written instruction on unavoidable accident which the trial court denied during trial. Counsel's objection to the absence of a “new and unexpected cause” instruction sounds more like "new and independent cause” than "unavoidable accident," but the record does not include a written request for a "new and independent cause” instruction.

      . We agree with the trial court’s assessment that counsel did nothing wrong in arguing the issue because the language was indeed included in the charge.


author: RICK STRANGE, Justice.

text:
    Dewayne Heath WOOLDRIDGE, Appellant, v. STATE of Texas, Appellee.
    No. 11-08-00134-CR.
    Court of Appeals of Texas, Eastland.
    Dec. 17, 2009.
    Rehearing Overruled Jan. 7, 2010.

      Stan Brown, Abilene, for appellant.
    James Eidson, Dist. Atty., Patricia Dyer, Asst. Crim. Dist. Atty’s Office, Abilene, for appellee.
    Panel consists of: WRIGHT, C.J., McCALL, J., and STRANGE, J.
   MEMORANDUM OPINION

RICK STRANGE, Justice.

Dewayne Heath Wooldridge was convicted of aggravated assault with two priors. Appellant appeals from a punishment hearing setting his punishment at twenty-five years confinement in the Texas Department of Criminal Justice, Institutional Division. We affirm.

Procedural History

This case has spanned seven years and is before this court for the third time. In 2002, Wooldridge was indicted for aggravated assault with a deadly weapon. The indictment alleged two enhancements for theft of motor vehicle convictions. The first occurred in 1990 and the second in 1992. Both offenses were classified as third degree felonies at the time of Wool-dridge’s convictions. See former Tex. Penal Code § 81.03(e)(4)(A) (1989) (current version at Tex. Penal Code Ann. § 31.03 (Vernon Supp. 2009)). In 1993, the legislature amended Section 31.03 to provide that theft of property with the value involved in Wooldridge’s 1992 conviction would be classified as a state jail felony and his 1990 conviction a Class A misdemeanor. Act of May 29, 1993, 73rd Leg., R.S., ch. 900, 1993 Tex. Gen. Laws 3586, 3637-3638. Because of this change in the law, the trial court found that the alleged enhancements were state jail felonies and could not be considered for enhancement purposes under Tex. Penal Code Ann. § 12.42(d) (Vernon Supp. 2009) and sentenced Wooldridge to seven years confinement.

The State appealed the trial court’s judgment, asserting that the trial court illegally sentenced Wooldridge because it had failed to sentence him as a habitual offender to a minimum sentence of twenty-five years under Section 12.42(d). See State v. Wooldridge, 135 S.W.3d 312 (Tex.App.-Eastland 2004, pet. granted). We held that we did not have jurisdiction because the State did not have grounds to appeal under Tex.Code CRiM. Proc. Ann. art. 44.01(b) (Vernon Supp. 2009). We held that the State was not appealing the legality of the sentence but, rather, was appealing the trial court’s ruling on a question of law. Id. at 317. We further held that the enhancements were not part of Wool-dridge’s sentence because the trial court did not find the enhancements true. Id.

On petition for discretionary review, the Court of Criminal Appeals reversed this court’s judgment and held that we did have jurisdiction to consider the State’s appeal. Wooldridge v. State, 158 S.W.3d 484 (Tex.Crim.App.2005). The court explained that “[a]ny legal significance attributable to the trial court’s failure to find the enhancement allegations to be true ... relates to the merits of the State’s contention that the sentence is illegal, and not to whether the State is appealing a sentence on the grounds that the sentence is illegal.” Id. at 485. The Court of Criminal Appeals remanded the case to this court to determine whether the sentence was legal. Id.

On remand, we held that the trial court made an error in law by finding that the prior convictions could not be considered for enhancement purposes. State v. Wooldridge, 170 S.W.3d 194 (Tex.App.-Eastland 2005, pet. granted). The alleged convictions were for offenses that were third degree felonies when they were committed; therefore, they could be used as felony enhancements under Section 12.42(d). Id. at 196. However, relying on Harris v. State, 153 S.W.3d 394 (Tex.Crim.App.2005), we concluded that the trial court’s seven-year sentence was not illegal because the trial court did not make a finding of true on the enhancements. Id. at 197. Without a finding of true on the enhancements, the trial court could not sentence Wooldridge as a habitual offender. Id.

The Court of Criminal Appeals again granted discretionary review and reversed this court’s judgment. State v. Wooldridge, 237 S.W.3d 714 (Tex.Crim.App.2007). The Court of Criminal Appeals distinguished Harris by noting that while in both cases the trial court received evidence of prior convictions, and in both cases it made no specific finding of true, in this instance the court discerned that the trial court believed the enhancement allegations were true. Id. at 718. Because it believed the enhancement allegations were true, the original punishment was not based upon a fact but on a ruling of law. Id. The case was remanded to the trial court for a new sentencing hearing.

Despite the Court of Criminal Appeals’s postulation, the trial court on remand noted that there was no finding of true, and the State conceded that there was no finding “one way or the other on the record.” The trial court proceeded to make a factual determination on the enhancement allegations. The State agreed with the trial court that Wooldridge needed to enter a plea. Wooldridge pleaded not true, and the trial court heard evidence and found that the enhancement paragraphs were true. The trial court then sentenced Wooldridge to twenty-five years confinement. Wooldridge appeals the trial court’s judgment.

Issues

Wooldridge raises three issues on appeal. In his first two issues, he asserts that the evidence is legally and factually insufficient to sustain the jury’s verdict of guilty. In his third issue, he asserts that his resentencing was barred by double jeopardy.

Sufficiency of the Evidence

Wooldridge argues that the evidence is legally and factually insufficient to sustain the jury’s guilty verdict for aggravated assault. This is the first time that Wooldridge has raised this issue on appeal. Wooldridge initially filed an appeal challenging his conviction. However, before any briefs were filed, Wooldridge moved to dismiss his appeal, and we did so. See State v. Wooldridge, No. 11-03-00186-CR, 2003 WL 22103212 (Tex.App.-Eastland, Sept. 11, 2003).

When a court of appeals or the Court of Criminal Appeals reverses a judgment only on the basis of an error or errors made during the punishment phase of a trial, the case shall stand as if a finding of guilt has been returned and proceed to the punishment stage of the trial. Tex.Code Crim. Proc. ANN. art. 44.29(b) (Vernon Supp. 2009). When a case is remanded for punishment only, the conviction on guilt/innocence is essentially affirmed. Sanders v. State, 963 S.W.2d 184, 186 (Tex.App.-Corpus Christi 1998, pet. refd). The only issues that can be raised on remand from either a court of appeals or the Court of Criminal Appeals are those issues raised as a result of the opinion by the court, its application on remand, and any subsequent authorities on the issues that had previously been presented. Id.

Wooldridge did not challenge the sufficiency of the evidence in his original appeal. The Court of Criminal Appeals only remanded the case to the trial court for a new punishment hearing. Wooldridge cannot now challenge the jury’s verdict on guilt/innocence when that issue was not before the trial court on remand. Wool-dridge’s first and second issues are overruled.

Double Jeopardy

Wooldridge argues that his resen-tencing was barred by double jeopardy. Wooldridge’s argument stems from two rules of law. First, Wooldridge argues that the trial court’s initial seven-year sentence should be upheld under the “right ruling, wrong reason” doctrine. See, e.g., State v. Herndon, 215 S.W.3d 901, 905 (Tex.Crim.App.2007) (holding that a trial court’s ruling on a motion for new trial will be upheld if it is correct on any applicable legal theory, even if the court articulated an invalid basis). Wooldridge argues that it does not matter that the trial court incorrectly assumed that it could not consider the enhancements because the trial court did not find the enhancements true. Without true findings, Wooldridge asserts that the enhancements could not be used. Thus, even though it erred in determining what could be considered, its punishment was correct because it was based upon the findings in the record.

Second, Wooldridge argues that the Court of Criminal Appeals failed to consider the factual eonclusivity clause. Decisions of the courts of appeals are conclusive on all questions of fact brought before them on appeal. The Court of Criminal Appeals does not have jurisdiction to “unfind” a vital fact. Goodman v. State, 66 S.W.3d 283, 284-85 (Tex.Crim.App.2001). Wooldridge argues that this court found that the trial court did not make a finding of true or untrue and that the Court of Criminal Appeals did not have jurisdiction to unfind that fact. See Wooldridge, 170 S.W.3d at 195.

We cannot sustain either argument because to do so would require that we overrule the Court of Criminal Appeals’s last holding — a prerogative we do not enjoy. We previously found that Harris was applicable because the trial court made no finding of true before assessing Wool-dridge’s sentence. On remand, the trial court agreed with our determination, the State conceded that there was no finding, and — without objection by either side — the trial court conducted an evidentiary hearing to determine if the enhancement allegations were in fact true. However, the Court of Criminal Appeals has previously distinguished Harris by ascertaining that the trial court believed the enhancements were true, and it has determined that this unregistered belief is sufficient to preclude application of the double jeopardy clause. Consequently, we have no discretion but to overrule Wooldridge’s third issue.

Conclusion

We affirm the trial court’s judgment.

      . Tex. Const, art. V, § 6.

      . U.S. Const, amend. V.