author: GUADALUPE RIVERA, Justice.

text:
    Mark BERRY, Appellant, v. Todd SEGALL, Appellee.
    No. 08-08-00188-CV.
    Court of Appeals of Texas, El Paso.
    May 19, 2010.
    Mark Berry, El Paso, TX, pro se.
    Angela Morrow Nickey, Robles, Bracken, Coffman & Hughes, El Paso, TX, for Appellee.
    Before CHEW, C.J., RIVERA, J., and LARSEN, J.
   OPINION

GUADALUPE RIVERA, Justice.

Mark Berry appeals a post-verdict take-nothing judgment entered by the trial court, asserting in a single issue that the trial court erred in determining that Todd Segall was entitled to offset the jury’s verdict when the issue was not submitted to the jury. We affirm.

BACKGROUND

This case arises from an automobile collision. In September 2005, while driving his truck, Segall collided with and damaged a vehicle owned by Berry. Berry filed suit against Segall and ultimately sought to recover $10,141.17 for vehicle repairs, $1,500 for diminution in value of the vehicle, and $2,250 for the lost use of the vehicle. Segall, in his amended answers and during pretrial and post-trial arguments, affirmatively pled entitlement to receive “credit and offset for said payment and for all other settlement or other monies received by or on behalf of [Berry] from any other person, party and/or entity.” In support of this defense, Segall alleged that his insurance carrier, State Farm Mutual Automobile Insurance Company (State Farm), had made a subrogation payment in the amount of $10,141.17 to Berry’s insurance carrier, USAA, “in full payment and satisfaction of the cost of repairs to Plaintiffs vehicle.”

As Segall made a pretrial admission of negligence, a jury trial was scheduled for the sole purpose of determining Berry’s alleged damages. In his pretrial submission to the court, Berry identified the following legal matter to be ruled on by the court: “Whether [Segall] may introduce evidence of payment to plaintiff by his insurance company for damage to the vehicle under the Collateral Source Rule.” Both parties presented pretrial arguments to the trial court addressing not only this issue but regarding the applicability of the collateral source rule and the right of Se-gall to offset any judgment. Berry specifically made these statements to the trial court:

So, my position would be that if there is any evidence concerning any payments by insurance companies in this case, they should be made to the Court out of the presence of the jury since they won’t have any bearing on the question for the jury of the value. The only questions for the jury are value. They have not submitted any proposed instructions or questions for the jury concerning this issue of setoff. So I think that’s going to be strictly a question of law.

While Segall presented arguments expressing disagreement with Berry’s characterization of the insurance payments as constituting a collateral source, both parties and the trial court agreed, that no insurance matters would be introduced during the damages trial and that the trial court’s post-verdict determination of offset issue as a question of law was appropriate.

The trial court advised it would research the offset issues and advised counsel to present any materials they wished the court to consider before trial. In its Order in Limine, the trial court barred the parties from raising or discussing in the presence of the jury any matters involving or relating to insurance, the liability or non-liability for any resulting judgment, or that any portion of the damages sought by Berry had been or would be paid by any collateral source in the presence of the jury during the trial. At no time did Berry register an objection to any of these discussions or determinations.

During the course of trial, but outside the presence of the jury, the trial court heard testimony from a State Farm claim representative who explained that State Farm had received a subrogation demand from USAA, Berry’s insurance carrier. The representative also testified that the two carriers had agreed that USAA would pay Berry’s vehicle repair claim and, in turn, State Farm would reimburse USAA. A copy of the check issued by State Farm to USAA in the amount of $10,141.17 was admitted into evidence for the trial court’s consideration.

The jury heard evidence regarding the alleged value of the damages that Berry sought to recover. In the court’s charge, the jury was asked to determine the reasonable costs to repair Berry’s vehicle, the value of the loss of use of the vehicle, and the difference in the market value of the vehicle. The jury returned a verdict identifying $10,141.17 as the reasonable cost of repairs to Berry’s vehicle but did not award Berry any damages for any diminution in value or loss of use of his vehicle.

On the day of trial, March 24, 2008, Berry hand-delivered to Segall a Memorandum of Law in support of his contention that Segall was not entitled to offset any judgment pursuant to an exception under the collateral source rule. Two days after trial, on March 26, 2008, the trial court entered an “Order Relative to Entry of Judgment or Final Disposition,” in which the court directed Berry to prepare a “dispositive pleading” by April 28, 2008. Segall also filed “Defendant’s Motion to Enter Judgment with Setoff’ on March 26, 2008. In his motion, Segall presented cases and arguments in support of his contention that the collateral source rule was inapplicable to the case because the payment was made from a source procured by and for the benefit of the tortfea-sor, Segall, and was not made from a source other than Segall. Segall also argued that Berry’s jury award should be offset by the subrogation amount already paid to Berry by his insurance carrier, USAA, which was, in turn, reimbursed by Segall’s insurer, State Farm. Segall explained that because each insurer had stepped into the shoes of its insured and because Segall’s insurer had paid Berry’s insurer through subrogation, a setoff of the amount already paid to Berry was proper to prevent Berry from obtaining a double recovery.

The trial court set Segall’s motion to be heard on April 22, 2008. Berry did not appear at the hearing and the trial court entered a take-nothing judgment against Berry. In its judgment, the trial court incorporated the jury’s verdict as to each of the damage issues and, having considered the evidence presented outside the presence of the jury, the court found that Segall was entitled to an offset in the amount of $10,141.17 against Berry’s judgment. Berry thereafter filed this appeal.

DISCUSSION

In his sole issue on appeal, Berry asks us to determine “[wjhether the trial court erred in making a finding of fact and conclusion that the defendant is entitled to a setoff where no such issue was submitted to the jury.” In support of his contention that the trial court did commit error, Berry makes three arguments. Berry first complains that the determination of whether a party was entitled to offset any judgment was a question of fact to be determined by the jury, not a question of law to be determined by the judge. His second contention is that Segall waived any claim of offset because the issue was not submitted to the jury and Segall did not object to the omission of the matter from the court’s charge. Finally, Berry complains that after the jury returned its verdict, Segall argued to the court that Berry was not entitled to a judgment based upon a claim of subrogation that Segall allegedly failed to plead. We disagree.

The doctrine of invited error provides that a party may not complain of an error which he has invited. In re Department of Family and Protective Services, 273 S.W.3d 637, 646 (Tex.2009); Tittizer v. Union Gas Corp., 171 S.W.3d 857, 862 (Tex.2005); Ramirez v. State, 973 S.W.2d 388, 392 (Tex.App.-El Paso 1998, no pet.). Nor may a party ask something of the trial court and then complain that the court erred in granting the relief sought. Northeast Tex. Motor Lines v. Hodges, 138 Tex. 280, 158 S.W.2d 487, 488 (1942); Bluestar Energy, Inc. v. Murphy, 205 S.W.3d 96, 101 (Tex.App.-Eastland 2006, pet. denied). Similarly, a party may not argue a theory on appeal that is different from that presented to the trial court. Austin Transp. Study Policy Advisory Committee v. Sierra Club, 843 S.W.2d 683, 689-90 (Tex.App.-Austin 1992, pet. denied); see Furnace v. Furnace, 783 S.W.2d 682, 684 (Tex.App.-Houston [14th Dist.] 1989, writ dism’d w.o.j.) (holding that appellant who argued at trial that trust agreement was ambiguous and should go to jury for interpretation could not on appeal assert that the trust agreement was unambiguous and should be interpreted as a matter of law); Ramirez, 973 S.W.2d at 392.

Application of Law

Before trial, Berry not only asked the trial court to make a legal ruling regarding whether or not insurance issues should be presented to the jury, he in fact characterized the issue of offset as one of law to be determined by the court and posited that the jury should not hear any evidence of insurance or offset issues. There was never any question by either party, nor objection by Berry, regarding the appropriateness of the trial court’s decision to make the offset ruling as a matter of law after the jury’s verdict and before entering the judgment. In this case, Berry received what he requested: the trial court’s consideration of insurance evidence outside the presence of the jury and a determination by the trial court of offset matters after the jury returned its verdict. He now complains on appeal that the trial court should have submitted the offset issue to the jury. Not only has Berry invited the error of which he complains on appeal, he now argues a theory different than that presented to the trial court, namely that the offset issue was a question of law for the judge’s determination.

Because the doctrine of invited error applies to this case, and because Berry asserts a different theory on appeal than the one he presented to the trial court, we overrule his sole issue on appeal. In re Department of Family and Protective Services, 273 S.W.3d at 646; Tittizer, 171 S.W.3d at 862; Ramirez, 973 S.W.2d at 392; Sierra, 843 S.W.2d at 689-90.

CONCLUSION

The trial court’s judgment is affirmed.

LARSEN, J., sitting by assignment.

      . Berry’s Memorandum of Law is file-stamped October 7, 2008, long after the conclusion of the trial and the filing of Berry's notice of appeal. The record on appeal does not reflect if or when the trial court may have received or considered Berry's memorandum. Berry does not complain on appeal that the trial court did not have the benefit of this legal memorandum.

      . On its face, the Order Setting Hearing contains a notation that a copy of the order was sent by facsimile transmission to Segall’s attorney, Mr. Ruben Robles. In the Clerk’s Record, there is also a facsimile cover sheet and facsimile transmission showing that the order was transmitted to Mr. Robles. There is no evidence in the record on appeal that Mr. Berry was ever provided notice of the order or the hearing date. Nonetheless, Mr. Berry does not complain on appeal about lack of notice.


source: Caselaw Access Project

license: Public Domain

text:
    EL PASO INDEPENDENT SCHOOL DISTRICT, Appellant, v. Muntasser ALSPINI, Appellee.
    No. 08-09-00104-CV.
    Court of Appeals of Texas, El Paso.
    May 19, 2010.

      S. Anthony Safi, Mounce, Green, Myers, Safi & Galatzan, El Paso, TX, for Appellant.

      Soraya Yanar Hanshew, El Paso, TX, for Appellee.
    Before McCLURE, J., RIVERA, J., and GUADERRAMA, Judge, sitting by assignment.
   OPINION

GUADALUPE RIVERA, Justice.

In a single issue, Appellant, El Paso Independent School District (EPISD), appeals the trial court’s denial of its motion for summary judgment based upon its plea to the jurisdiction. We reverse.

BACKGROUND

The facts relevant to our resolution of this appeal arise primarily from two interrelated proceedings at the trial court level: (1) the original lawsuit, and (2) the bill of review.

Original Lawsuit

On or about March 16, 2004, and May 11, 2004, Appellee Muntasser Alspini (Al-spini) filed complaints with the Civil Rights Division of the Texas Workforce Commission alleging he had suffered national-origin discrimination and retaliation during his employment at EPISD from early October 2003 through May 6, 2004. Then, on June 3, 2005, Alspini filed suit against EPISD and two individuals in Case 2005-3857, alleging, in part, that he had suffered national-origin discrimination in violation of Texas Labor Code Sections 21.051, 21.056, 21.110, and retaliation in violation of Texas Labor Code Section 21.055. Because the claims against the two individuals were ultimately dismissed by the trial court and are not relevant to our resolution of the issue on appeal, neither those claims nor the individual defendants will be referenced hereafter.

Although it is disputed, there is some evidence in the record to show that before service of process occurred, counsel for the parties entered into negotiations to resolve the case. The record specifically shows that Bruce Koehler, an attorney with the firm representing EPISD, contacted Alspi-ni’s attorney, Mark Briggs, prior to service of citation in the case and indicated that a resolution of the issues may be had prior to but not after receiving service. Negotiations between Koehler and Briggs remained ongoing while Briggs represented Alspini on this and other non-related legal matters in early 2006. In May 2006, after discussing with Koehler possible retirement scenarios for Alspini, it became apparent to Briggs that further negotiations and pretrial resolution of the case would be unsuccessful. Briggs then proceeded to serve EPISD with process on August 22, 2006.

However, unbeknownst to Briggs, the trial court had signed an order dismissing Alspini’s lawsuit in Case 2005-3857 five months earlier. Briggs had not received any notice of the hearing at which the trial court dismissed the original proceeding. Nonetheless, according to Briggs, upon receiving service of process on August 22, 2006, EPISD filed its answer and plea to the jurisdiction.

During a.hearing conducted on November 20, 2006, the trial court acknowledged the fact that there was no evidence to show that notice of the hearing had been given to Briggs or Alspini, even though it was the court’s practice to do so. The court judicially noticed its file and further acknowledged that although the District Clerk is required to send the parties notice of a dismissal once the court has signed it, there was no evidence that notice of the dismissal had been provided to either party. The trial court noted to Alspini that it may be possible to reinstate the case in a bill of review, and then declared that it had lost jurisdiction and signed an order granting EPISD’s plea to the jurisdiction.

Bill of Revieiv

Almost one year later, on October 25, 2007, and with different counsel, Alspini filed his original petition for bill of review in Case Number 2007-4751. In the bill-of-review petition, Alspini: (1) noted that the original proceeding had been dismissed without the requisite notice required by Rule 306(a)(3) of the Texas Rules of Civil Procedure; (2) recited the procedural history of the original case, including the fact that EPISD was served with process in the case on or about August 22, 2006; (3) asserted that the dismissal was the result of official mistake, was not preventable, and was not the result of his fault or negligence; (4) stated that his claims in the original case were meritorious; and (5) asked the trial court to reopen Case Number 2005-3857. Citation issued the following day and service was made upon EP-ISD on November 7, 2007.

In its response, EPISD asserted that Alspini’s claims were barred under theories of immunity and statutes of limitation. In its Order on Plaintiff’s Bill of Review, the trial court held that the bill of review was “not denied” as to EPISD and recognized that EPISD would be filing a motion for summary judgment based upon “the defenses included -within its Plea to the Jurisdiction.” The trial court specified that the order was not final and that the case remained pending.

EPISD filed its motion for summary judgment and again asserted that Alspini’s claims were barred as a matter of law based upon both governmental immunity as it related to common-law negligence claims against the school district and the two-year statutory limitation of Section 21.256 of the Texas Labor Code. In its order, the trial court granted EPISD’s motion for summary judgment as to Alspi-ni’s common-law negligence claims but denied the school district any relief as to its statute-of-limitations defense.

On appeal, EPISD asserts that the trial court erred in denying its motion for summary judgment and its plea to the jurisdiction therein because Alspini did not use due diligence in procuring service upon it and is barred by limitations as a matter of law.

DISCUSSION

Appellate courts have limited jurisdiction “over final judgments and such interlocutory orders as the legislature deems appealable.” Ruiz v. Ruiz, 946 S.W.2d 123, 124 (Tex.App.-El Paso 1997, no writ). We are statutorily granted jurisdiction to review an interlocutory order of a county court at law that grants or denies, as here, a plea to the jurisdiction by a governmental unit, in this case EPISD. Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(8) (Vernon 2008); Tex. Civ. Prac. & Rem. Code Ann. § 101.001(3)(B) (Vernon 2005); El Paso County v. Alvarado, 290 S.W.3d 895, 898 (Tex.App.-El Paso 2009, no pet.); see Midland ISD v. Whatley, 216 S.W.3d 374, 377-78 (Tex.App.-Eastland 2006, no pet.).

A plea to the jurisdiction is a mechanism by which a party contests the trial court’s authority to decide a case. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000); El Paso County v. Navamte, 194 S.W.3d 677, 682-83 (Tex.App.-El Paso 2006, pet. denied). The plea is dilatory and its purpose is to defeat a cause of action without addressing the merits of the case. Bland Indep. Sch. Dish, 34 S.W.3d at 554; Navarrete, 194 S.W.3d at 683. We review de novo a trial court’s ruling on a plea to the jurisdiction. Id. at 683.

The time frame within which an action for employment discrimination must be brought is set forth in Section 21.256 of the Texas Labor Code. Tex. Labor Code Ann. § 21.256 (Vernon 2006). That section provides that “[a] civil action may not be brought under this subchapter later than the second anniversary of the date the complaint relating to the action is filed.” Tex. Labor Code Ann. § 21.256. Section 21.256 is among the mandatory statutory requirements of the Texas Commission on Human Rights Act (TCHRA), and a failure to comply with the mandatory statutory requirements deprives a trial court of subject matter jurisdiction in a subsequent lawsuit alleging violations of the Act against a governmental entity. Tex. Labor Code Ann. § 21.256; Tex. Gov’t Code Ann. § 311.034 (Vernon 2005); In re United Services Auto. Ass’n, 307 S.W.3d 299, 308 (Tex.2010) (“While the Legislature could make the Labor Code filing deadlines jurisdictional, as it has in cases involving statutory requirements relating to governmental entities, see Tex. Gov’t Code § 311.034 (providing that ‘statutory prerequisites to a suit, including the provision of notice, are jurisdictional requirements in all suits against a governmental entity), it has not done so here.”); Balli v. El Paso Independent School Dist., 225 S.W.3d 260, 265 (Tex.App.-El Paso 2006, pet. granted, jdgmt. vacated) (“[f]ailure to comply with these mandatory statutory requirements deprives a trial court of subject matter jurisdiction in a subsequent lawsuit alleging violations of the Act”).

Service of process is achieved when the citation and a copy of the petition are delivered to the defendant, or the defendant is given notice of the suit through another authorized means. See Tex.R. Civ. P. 99(a). Citation serves the purposes of giving the court jurisdiction over the defendant, satisfying due process requirements, and giving the defendant an opportunity to appear and defend. Cockrell v. Estevez, 737 S.W.2d 138, 140 (Tex.App.San Antonio 1987, no writ). A suit is barred by limitations if the plaintiff did not exercise diligence in obtaining service. Proulx v. Wells, 235 S.W.3d 213, 215 (Tex.2007) (per curiam), citing Murray v. San Jacinto Agency, Inc. 800 S.W.2d 826, 830 (Tex.1990); Tarrant County v. Vandigrijfl 71 S.W.3d 921, 924 (Tex.App.-Fort Worth 2002, pet. denied), citing Boyattia v. Hinojosa, 18 S.W.3d 729, 733 (Tex.App.-Dallas 2000, pet. denied); see also Tranter v. Duemling, 129 S.W.3d 257, 259 (Tex.App.E1 Paso 2004, no pet.) (to bring personal injury suit within two-year limitation, plaintiff must file petition within the period and file service upon defendant).

When a plaintiff files a petition within the permitted limitation period but fails to serve a defendant within that period, the date of service may relate back to the date of filing if the plaintiff exercised diligence in effecting service. Vandigrijfj 71 S.W.3d at 924; Tranter, 129 S.W.3d at 259. The question of a plaintiffs diligence is typically one of fact and can be determined by examining the time it took to secure citation, service, or both, along with the type of effort or lack of effort the plaintiff expended in procuring service. Proulx, 235 S.W.3d at 216; M & A Technology, Inc. v. iValue Group, Inc., 295 S.W.3d 356, 369-70 (Tex.App.-El Paso 2009, pet. filed). An offered explanation must involve diligence to seek service. Rodriguez, 13 S.W.3d at 49, citing Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex.1990). While the determination of whether the plaintiff exercised due diligence is typically a fact question to be determined by a jury, the issue may be determined as a matter of law if no valid excuse for delay exists or if the plaintiffs actions, or inaction, and the lapse of time negate diligence. Tran-ter, 129 S.W.3d at 259; Eichel v. Ullah, 831 S.W.2d 42, 43 (Tex.App.-El Paso 1992, no writ).

A plaintiff has a duty to exercise diligence from the date suit is filed until the defendant is actually served. Rodñguez v. Tinsman & Houser, Inc., 13 S.W.3d 47, 50 (Tex.App.-San Antonio 1999, pet. denied). The two factors that control a determination of due diligence are: (1) whether the plaintiff acted as an ordinary prudent person would act under the same circumstances; and (2) whether the plaintiff acted diligently until the defendant was actually served. Proulx, 235 S.W.3d at 216; M & A Technology, Inc., 295 S.W.3d at 369; Tranter, 129 S.W.3d at 259; Eichel, 831 S.W.2d at 43.

When a defendant has affirmatively pleaded defense limitations, and when failure to timely serve the defendant has been shown, the burden shifts to the plaintiff to explain the delay. Proulx, 235 S.W.3d at 216, citing Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 830 (Tex.1990); Seagraves v. City of McKinney, 45 S.W.3d 779, 782 (TexApp.-Dallas 2001, no pet.). If a plaintiffs explanation for the delay raises a material fact issue regarding the diligence of service efforts, it becomes the defendant’s burden to conclusively show why, as a matter of law, the plaintiffs explanation is insufficient. Proulx, 235 S.W.3d at 216, citing Zale Corp. v. Rosenbaum, 520 S.W.2d 889, 891 (Tex.1975); M & A Technology, Inc., 295 S.W.3d at 370. However, in some instances, a plaintiffs explanation may be legally improper to raise the diligence issue and the defendant will bear no burden at all. Proulx, 235 S.W.3d at 216.

When an agreement between attorneys or parties delays a plaintiff from obtaining service on a defendant, that agreement must meet the requirements of Rule 11 of the Texas Rules of Civil Procedure. Tex.R. Civ. P. 11; Bellezar-Gonzalez v. Villa, 57 S.W.3d 8, 12 (Tex.App.-Houston [14th Dist.] 2001, no pet.) (holding that an unenforceable oral agreement to delay service was insufficient to show diligence as a matter of law); Allen v. City of Midlothian, 927 S.W.2d 316, 320 (Tex.App.Waco 1996, no writ). Rule 11 provides, “[u]nless otherwise provided in these rules, no agreement between attorneys or parties touching any suit pending will be enforced unless it be in writing, signed and filed with the papers as part of the record, or unless it be made in open court and entered of record.” Tex.R. Civ. P. 11. Unless the specific requirements of Rule 11 are met, no agreements between counsel are enforceable. London Market Companies v. Schattman, 811 S.W.2d 550, 552 (Tex.1991) (orig. proceeding); Allen, 927 S.W.2d at 320 (holding that even if attorney relied in good faith upon oral agreement to delay service, plaintiff could not claim the exercise of “due diligence” by relying upon the agreement as it was clearly unenforceable under Rule 11). See Tex.R. Civ. P. 11; Schattman, 811 S.W.2d at 552.

Application

Having found that the order denying EPISD’s plea to the jurisdiction is an interlocutory one, we now address the merits of EPISD’s issue on appeal. In the case at bar, it is undisputed that the facts that form the basis of Alspini’s complaints and lawsuit arose between October 2003 and March 2004. Neither party disputes that Alspini timely filed his initial complaints with the Texas Workforce Commission on March 16, 2004, as to the national-origin claim and on May 11, 2004, as to the retaliation claim. Likewise, it is uncontested that Alspini timely filed his lawsuit against EPISD asserting violations of the Texas Labor Code on June 3, 2005, within the requisite two-year time frame set out in Section 21.256 of the Texas Labor Code. Tex. Labor Code Ann. § 21.256 (Vernon 2006). However, Alspini did not effect service upon EPISD until August 22, 2006, a date that is beyond the two-year statutory provision for bringing action under Chapter 21 of the Texas Labor Code. Tex. Labor Code Ann. § 21.256. Because EPISD has affirmatively pleaded defense limitations, and because it is clear that Alspini failed to timely serve EPISD, Al-spini bears the burden of explaining the delay. Proulx, 235 S.W.3d at 216; Murray, 800 S.W.2d at 830; Seagraves, 45 S.W.3d at 782. Consequently, our review is necessarily restricted to a determination of whether Alspini exercised due diligence as to permit the date of service to relate back to the date the lawsuit was filed, thereby securing jurisdiction of the case in the trial court. We find that he did not.

While an offered explanation must involve diligence to seek service, we note that Alspini’s explanation for his delay in effecting service upon EPISD does not involve any act or attempt on his part to seek or secure timely service. Rodriguez, 13 S.W.3d at 49, citing Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex.1990). Rather, the delay purportedly arose from what may be described as a “gentlemen’s agreement” between counsel to delay service while pretrial negotiations were attempted. Because this oral agreement was not in writing, signed, and filed with the papers as part of the record, nor was made in open court and entered of record, it does not meet the requirements set forth in Rule 11. Tex.R. Civ. P. 11; Bellezar-Gon-zalez, 57 S.W.3d at 12; Allen, 927 S.W.2d at 320. Thus, the oral agreement between counsel was unenforceable. Schattman, 811 S.W.2d at 552; Allen, 927 S.W.2d at 320. See Tex.R. Civ. P. 11; Schattman, 811 S.W.2d at 552. We therefore hold that Alspini’s explanation for the delay of service upon EPISD, that is, an unenforceable oral agreement to delay service, is insufficient as a matter of law to show diligence of any kind in seeking or accomplishing timely service. Belleza-Gonzalez, 57 S.W.3d at 11; Tranter, 129 S.W.3d at 259; Eichel, 831 S.W.2d at 43-44; see also Rodriguez, 13 S.W.3d at 51 (holding that notwithstanding a well-intended gesture of professional courtesy such as directing a clerk to delay issuance of citation, where there is inactivity or complete failure to attempt service, even when due to miscom-munication, it cannot be said that a party exercised diligence or continual diligence in attempting service from the time suit was filed until service was accomplished).

Because EPISD was not properly served prior to the expiration of the limitations period and because we hold that Al-spini did not exercise due diligence in attempting to have EPISD served, the date of Alspini’s service upon EPISD does not relate back to the original filing of the lawsuit. Vandigriff, 71 S.W.3d at 924; Tranter, 129 S.W.3d at 259. Because EP-ISD is a governmental entity, Section 21.256 is mandatory and jurisdictional, and Alspini’s failure to diligently serve EPISD within the two-year statutory time frame of that provision bars his suit and any judicial jurisdiction. Tex. Labor Code Ann. § 21.256 (Vernon 2006); Tex. Gov’t Code Ann. § 311.034 (Vernon 2005); see Vandigriff, 71 S.W.3d at 925; In re United Services Auto. Ass’n, 307 S.W.3d 299, 308; see also Lottinger v. Shell Oil Co., 143 F.Supp.2d 743, 753 (S.D.Tex.2001); Proulx, 235 S.W.3d at 216; Murray, 800 S.W.2d at 830; Boyattia, 18 S.W.3d at 733. We sustain EPISD’s sole issue on appeal.

CONCLUSION

We reverse the trial court’s denial of EPISD’s motion for summary judgment and render judgment that the trial court should have rendered. We grant EPISD’s plea to the jurisdiction.

      . Although the parties presented oral arguments to the Court on February 18, 2010, we must consider the Texas Supreme Court’s ruling in In re United Services Auto. Ass’n, 307 S.W.3d 299, 308-11 (Tex.2010), and its applicability to this case. Each party has provided supplemental authority and argument to the Court since the opinion in In re United Services Auto Assn issued.


text:
    STATE OFFICE OF RISK MANAGEMENT, Appellant, v. Mae DAVIS, Appellee.
    No. 08-08-00307-CV.
    Court of Appeals of Texas, El Paso.
    May 19, 2010.
    Rehearing Overruled July 7, 2010.
    Norberto Flores, Assistant Attorney General, Austin, TX, for Appellant.

      Robert E. Riojas, Riojas Law Firm, El Paso, TX, for Appellee.
    Before McCLURE, J., RIVERA, J., and GUADERRAMA, Judge.
   OPINION

GUADALUPE RIVERA, Justice.

The State Office of Risk Management (SORM) appeals the trial court’s award of attorney’s fees, stemming from the jury’s verdict in favor of Mae Davis. We conclude the trial court erred by ordering SORM to pay Davis’s attorney’s fees, and therefore, we modify the trial court’s judgment to delete the award of attorney’s fees, and affirm the judgment as modified.

BACKGROUND

On November 30, 1999, Mae Davis was injured on the job while employed as a nurse with the El Paso State Center. As a result of that injury, she sought supplemental income benefits from SORM, the agency that administers her worker’s compensation claims, and was awarded the same for thirteen consecutive quarters. However, a benefits review conference was held for Davis’s entitlement to supplemental income benefits for the fourteenth, fifteenth, sixteenth, and seventeenth quarters. When the parties were unable to reach an agreement, a contested hearing was held on April 23, 2007, before the Texas Workers’ Compensation Commission (“TWCC”). The hearing officer determined that Davis was not entitled to supplemental income benefits for those quarters, and the TWCC Appeals Panel affirmed that decision. Davis then filed suit in district court seeking judicial review of the decision. In so doing, Davis sought attorney’s fees. SORM answered, pled sovereign immunity, and specially excepted to Davis’s request for attorney’s fees. The trial court denied SORM’s special exception, and after a jury found Davis was entitled to supplemental income benefits for the complained-of quarters and awarded her attorney’s fees, the court entered judgment accordingly.

DISCUSSION

On appeal, SORM contends, in a single issue, that the trial court erred by awarding attorney’s fees to Davis absent an express waiver of sovereign immunity for the same. We agree.

Applicable Law

A. Sovereign Immunity

Sovereign immunity consists of two components: (1) immunity from liability, and (2) immunity from suit. Tooke v. City of Mexia, 197 S.W.3d 325, 332 (Tex. 2006). While immunity from suit defeats a trial court’s subject-matter jurisdiction, see Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 639 (Tex.1999), immunity from liability protects the State from monetary judgments. Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 853 (Tex.2002). The legislature, however, may waive or abrogate sovereign immunity through clear and unambiguous statutory language. Tooke, 197 S.W.3d at 332; Tex. Gov’t Code Ann. § 311.034 (Vernon Supp. 2009) (“In order to preserve the legislature’s interest in managing state fiscal matters through the appropriations process, a statute shall not be construed as a waiver of sovereign immunity unless the waiver is effected by clear and unambiguous language.”).

B. Attorney’s Fees

Attorney’s fees are not recoverable unless such recovery is provided for by statute or by contract between the parties. See Travelers Indem. Co. of Conn. v. Mayfield, 923 S.W.2d 590, 593 (Tex.1996); Rodriguez v. Ysleta Independent School Dist., 68 S.W.3d 699, 700 (Tex.App.-El Paso 2001, pet. denied). As no contract existed between the parties, we limit our review to the statutory context. “In civil cases, the statute in question must expressly provide for the attorney’s fees.” Rodnguez, 68 S.W.3d at 700 (citing Mayfield, 923 S.W.2d at 593). Whether a statute authorizes an award of attorney’s fees is a question of law. See Holland v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 95 (Tex.1999).

Application of the Law to the Facts

Initially, we note that as SORM administers a workers’ compensation insurance program for government employees, it is treated as an “insurer” under the Labor Code. See Tex. Lab.Code Ann. § 412.011(a) (Vernon Supp. 2009); Tex. Lab.Code Ann. § 501.002(c) (Vernon 2006) (stating that for the purpose of applying Chapter 408, other than sections 408.001(b) and (c), “insurer” means “state” or “state agency”). Therefore, under Section 408.147, “[i]f an insurance carrier disputes the commissioner’s determination that an employee is entitled to supplemental income benefits or the amount of supplemental income benefits due and the employee prevails on any disputed issue, the insurance carrier is liable for reasonable and necessary attorney’s fees incurred by the employee as a result of the insurance carrier’s dispute....” Id. at § 408.147(c) (Vernon 2006). However, Section 501.002(d) limits a state agency’s liability under the Labor Code to only those actions and damages authorized by the Texas Tort Claims Act. Id. at § 501.002(d). And the Texas Tort Claims Act does not expressly provide for the recovery of attorney’s fees. See Texas Education Agency v. Leeper, 893 S.W.2d 432, 448 (Tex.1994) (Gonzalez, J., concurring in part and dissenting in part); City of Waco v. Hester, 805 S.W.2d 807, 820 (Tex.App.-Waco 1990, writ denied); Ramirez v. Dietz, No. 07-04-0108-CV, 2006 WL 507947, at ⅞2 (Tex. App.-Amarillo Mar. 1, 2006, no pet.) (mem. op., not designated for publication). Accordingly, we do not believe that the legislature has expressly waived SORM’s sovereign immunity for attorney’s fees under the Labor Code. See, e.g., Holland, 1 S.W.3d at 95; Stephens v. Dallas Area Rapid Transit, 50 S.W.3d 621, 631 (Tex. App.-Dallas 2001, pet. denied) (cases holding attorney’s fees not recoverable from worker’s compensation discrimination suit when there was no statutory provision specifically providing for recovery of attorney’s fees).

CONCLUSION

Finding the trial court erred by awarding Davis attorney’s fees, we sustain SORM’s sole issue. Therefore, we reform the trial court’s judgment to delete the award of attorney’s fees and affirm the judgment as reformed.

GUADERRAMA, Judge, sitting by assignment.

      . SORM's original brief also challenged the trial court's assessment of court costs; however, prior to submission on oral argument, SORM filed a motion to sever and dismiss that issue from its brief. The Clerk of this Court asked for a response from Davis, and Davis informed this Court that she did not oppose the motion. Accordingly, we grant SORM’s motion to sever its court-costs issue and dismiss that issue from this appeal. See Tex.R.App. P. 42.1(b) (allowing appellate court to dispose of severable portion of proceeding under Rule 42.1(a) if doing so will not prejudice remaining parties).


author: DAVID GAULTNEY, Justice.

text:
    Ex parte Jeffrey JAGNEAUX.
    No. 09-10-00160-CR.
    Court of Appeals of Texas, Beaumont.
    May 26, 2010.

      Jeffrey Jagneaux, Beaumont, pro se.
    Tom Maness, Crim. Dist. Atty., Rodney D. Conerly, Asst. Crim. Dist. Atty., for state.
    Before McKEITHEN, C.J., GAULTNEY and KREGER, JJ.
   OPINION

DAVID GAULTNEY, Justice.

The trial court denied Jeffrey Jag-neaux’s application for habeas corpus. Jagneaux is confined in county jail pending trial in three cases. He sought pre-trial release through a reduction of bail.

This Court’s jurisdiction depends on whether the trial court ruled on the merits of the application for habeas relief, rather than simply ruling on the request for issuance of a writ. See Ex parte Hargett, 819 S.W.2d 866, 868-69 (Tex.Crim.App.1991); Ex parte Noe, 646 S.W.2d 230, 231 (Tex.Crim.App.1983). Issuing the writ of habeas corpus is not the same as determining the merits of the habeas claim. See Hargett, 819 S.W.2d at 869. The writ is an order directed to anyone having a person in custody to produce the person at a time and place stated in the order, and to show why the person is held in custody. Ex parte Williams, 200 S.W.3d 819, 820 n. 2 (Tex.App.-Beaumont 2006, no pet.). The trial court must grant the writ without delay unless it is manifest from the application, or some document annexed to it, that the party is entitled to no relief whatsoever. Id. When a court decides the merits of the application, the court is considered to have issued the writ and has rendered a final judgment in the separate habeas corpus action. See Greenwell v. Court of Appeals for the Thirteenth Judicial Dist., 159 S.W.3d 645, 650 (Tex.Crim.App.2005) (orig. proceeding) (citing 43B George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice and Procedure § 47.51, at 219-20 (2d ed. 2001)). “ ‘An order denying relief on the merits is a final judgment in the habeas corpus proceeding ’ ” and “ ‘is immediately appeal-able by the unsuccessful petitioner.’ ” Id.; see Ex parte Williams, 200 S.W.3d at 820 (“An appeal is available only if the trial court considers and resolves the merits of the petition.”); see also Hargett, 819 S.W.2d at 868-69.

The district court addressed the merits of Jagneaux’s application for habeas corpus relief, although the court did not expressly issue a writ of habeas corpus and did not conduct an evidentiary hearing. Compare Ex parte Silva, 968 S.W.2d 367, 368 (Tex.Crim.App.1998); Ex parte McCullough, 966 S.W.2d 529, 532 (Tex. Crim.App.1998). The order states that “[i]t is the decision of the Court that the relief sought in reduction of bond is hereby denied.” An appeal can be taken from a district court order denying an applicant relief on the merits of his habeas claim. Ex parte Hargett, 819 S.W.2d at 868-69.

This Court has jurisdiction over the appeal of the final judgment in the habeas corpus proceeding. See id.; Ex parte Williams, 200 S.W.3d at 820. “The sole purpose of the appeal is to do substantial justice to the parties.” Tex.R.App. P. 31.2. In an appeal of a final order in a habeas corpus proceeding, we are to make “whatever orders the law and the nature of the case require.” Tex.R.App. P. 31.3.

Jagneaux alleges he has been confined for more than ninety days on charges of forgery and credit card abuse, and that the State is not ready for trial. He also contends that excessive bail was set. He argues his bail should be reduced, thereby affording him the possibility of release pri- or to trial.

Jagneaux provided insufficient information to suggest an abuse of discretion by the trial court in setting the amount of bail. Instead, the application for habeas corpus relief in the trial court relied primarily on the assertion that Jagneaux has been jailed for more than ninety days and the State is not ready for trial. Article 17.151 of the Texas Code of Criminal Procedure provides in part as follows:

Sec. 1. A defendant who is detained in jail pending trial of an accusation against him must be released either on personal bond or by reducing the amount of bail required, if the state is not ready for trial of the criminal action for which he is being detained within: (1) 90 days from the commencement of his detention if he is accused of a felony[.]

Tex.Code Crim. Proc. Ann. art. 17.151 § 1(1) (Vernon Supp. 2009); see also Jones v. State, 803 S.W.2d 712, 713, 719 (Tex.Crim.App.1991); Ex parte Craft, 301 S.W.3d 447, 448-49 (Tex.App.-Fort Worth 2009, no pet.).

Jagneaux is charged with two state jail felonies and one third-degree felony. See Tex. Pen.Code Ann. §§ 32.21(b),(d), 32.31(b),(d) (Vernon Supp.2009). The third-degree felony case was filed January 14, 2010. The order denying the application for habeas corpus relief was signed on February 22, 2010, less than ninety days after the detention began on that felony charge. Although the ninety-day period may have passed for the two other cases, section 2(2) of article 17.151 provides in part: “The provisions of this article do not apply to a defendant who is: ... (2) being detained pending trial of another accusation against the defendant as to which the applicable period has not yet elapsed[.]” Tex.Code CRIM. Proc. Ann. art. 17.151 § 2(2) (Vernon Supp. 2009); see Martinez v. State, 810 S.W.2d 428, 429-30 (Tex.App.Houston [14th Dist.] 1991), pet. dism’d as moot, 826 S.W.2d 620 (Tex.Crim.App.1992); but see Beckcom v. State, 938 S.W.2d 780, 782-83 (Tex.App.-Corpus Christi 1997, no writ).

We review for an abuse of discretion a trial court’s decision to deny habeas relief on a claim that article 17.151 was violated. See Ex parte Craft, 301 S.W.3d at 448. Because the record reflects Jag-neaux was being detained pending trial on the third-degree felony “as to which the applicable period ha[d] not yet elapsed” when the application was denied, we conclude the district court did not abuse its discretion in denying the relief requested.

The trial court’s order is affirmed.

AFFIRMED.


text:
    Michael Warren JARVIS, Appellant, v. The STATE of Texas, Appellee.
    No. 09-09-00300-CR.
    Court of Appeals of Texas, Beaumont.
    Submitted May 3, 2010.
    Decided May 26, 2010.

      Christine Brown-Zeto, Orange, for appellant.
    John D. Kimbrough, County Atty., Cory Andrew Kneeland, Asst. County Atty., Orange, for state.
    Before McKEITHEN, C.J., GAULTNEY and HORTON, JJ.
   OPINION

DAVID GAULTNEY, Justice.

Michael Warren Jarvis pleaded no contest to the offense of felony evading arrest or detention. The trial court sentenced appellant to twenty-four months of confinement in state jail and assessed a $10,000 fine. In one issue, appellant argues the trial court based the sentence on an erroneous drug test result, and the evidence is “insufficient to support the sentence.”

The trial court imposed a sentence within the legislatively prescribed range. Finding no preserved error, we affirm the judgment.

The Prooess

At sentencing, the trial court heard testimony from the defendant and his wife, and also had information provided by defendant’s employer. Jarvis testified to marijuana and alcohol use. The court reviewed a pre-sentence investigation report.

After receiving the evidence, the trial court reset the sentencing and ordered Jarvis to submit to a series of drug and alcohol tests in the interim. The court informed Jarvis that in the event of a positive test result “you’re probably going to go for the max because you have had far, far too many chances.” Jarvis told the court he understood. He subsequently tested positive for marijuana. He now challenges the sentence he received.

The Drug Test

Jarvis maintains that the positive drug test result must be incorrect, because he passed the drug and alcohol tests the week prior and also passed the tests in the two subsequent weeks. According to Jarvis, “[Tjhere is just no question that there is insufficient evidence to find that the scientific evidence used against [him] was in fact not faulty.”

At punishment, a party may offer evidence “as to any matter the court deems relevant to sentencing[.]” Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (Vernon Supp. 2009). “Relevant” as used in article 37.07 § 3(a)(1) means evidence helpful in determining the appropriate sentence for a particular defendant in a particular case. Rogers v. State, 991 S.W.2d 263, 265 (Tex.Crim.App.1999). Essentially, a trial court’s decision to admit specific evidence at the punishment stage may be viewed as a function of policy. See Sun-bury v. State, 88 S.W.3d 229, 233 (Tex.Crim.App.2002). The objectives of the Penal Code — deterrence, rehabilitation, and punishment — help guide the admissibility determination. See Rogers, 991 S.W.2d at 265-66; see also Tex. Pen.Code Ann. § 1.02(1) (Vernon 2003). In this case, the trial court chose to employ a drug-test regimen for two months to assist in determining the appropriate sentence. Jarvis did not object to that process and did not object specifically to the consideration of the results in the trial court. He offered no expert testimony suggesting the test result was incorrect. Although he told the court the result must be wrong, on this record the trial court was not required to ignore the result.

Appellate Review of Sentence Severity

Jarvis argues the evidence was legally and factually insufficient to support the sentence. Punishment for a crime may be imposed only in accordance with law. See Elliott v. State, 858 S.W.2d 478, 488 (Tex.Crim.App.1993). Appellant’s sentence falls within the permissible statutory range. See Tex. Pen.Code Ann. §§ 12.35(a),(b), 38.04(b)(1)(B) (Vernon Supp. 2009). Jarvis did not challenge the sentence in the trial court as being grossly disproportionate, nor does he raise that issue under the Eighth Amendment in this appeal. See Tex.R.App. P. 33.1; see generally Barrow v. State, 207 S.W.3d 377, 380-81 (Tex.Crim.App.2006) (noting potential Eighth Amendment gross-disproportionality challenge). The issue we consider is whether Jarvis can challenge the sufficiency of the evidence to support the length of the sentence imposed.

When a punishment decision is based on “nothing at all,” and a proper objection is made, a sentencing court violates the prohibition against the deprivation of liberty except by due course of law. See Jackson v. State, 680 S.W.2d 809, 814 (Tex.Crim.App.1984); see also Tex.Code CRIM. Proo. Ann. art. 1.04 (Vernon 2005); Tex. Const, art. I, § 19. In Jackson, the process followed was faulty, as the Court explained:

[I]n all of the cases dealing with review in this area there was at least some evidence or facts available to the court and upon which the court could have relied in assessing punishment. We can find no case sanctioning, over timely objection, a particular punishment decision in which there was no evidence of the offense, no information about the defendant, no punishment evidence, no plea bargain; in short, nothing at all upon which the punishment decision could have been based. We decline to sanction such procedure and hold that under the limited facts of this case the trial judge abused his discretion when, over proper objection, he determined the appellant’s punishment. Such determination was a violation of Art. 1.04, V.A.C.C.P., and Art. 1 Sec. 19 of the Texas Constitution constituting reversible error.

Id. at 814. (emphasis added). Errors in the process by which the defendant is sentenced are subject to review on appeal. See Hayes v. State, 709 S.W.2d 780, 782 (Tex.App.-Houston [1st Dist.] 1986, no pet.); see, e.g., Huizar v. State, 12 S.W.3d 479, 484 (Tex.Crim.App.2000) (error in failure to correctly instruct jury during punishment phase); see also Ex parte Chavez, 213 S.W.3d 320, 326 (Tex.Crim.App.2006) (“None of this is to say that principles of due process do not apply at the punishment phase of a non-capital trial.”); George E. Dix & Robert O. Dawson, 43A Texas Practice: Criminal PractiCe and ProCedure § 43.12, at 445 (2d ed. 2001) (“A convicted and sentenced defendant is entitled on appeal, of course, to consideration of whether there were procedural errors in the process by which the defendant was convicted and the punishment assessed and imposed. But very little review is available of the judge or jury’s decision as to the severity of the punishment.”). Other than attacking the trial court’s consideration of the drug test result, Jarvis does not raise any error in the punishment process.

This Court has declined to conduct a factual sufficiency review of the severity of a sentence. See Kanouse v. State, 958 S.W.2d 509, 510 (TexApp.-Beaumont 1998, no pet.). See also Bradfield v. State, 42 S.W.3d 350, 351-52 (TexApp.-Eastland 2001, pet. refd); Flores v. State, 936 S.W.2d 478, 479 (Tex.App.-Eastland 1996, pet. refd). With certain exceptions, the sentencer does not determine the existence of discrete facts. Sunbury, 88 S.W.3d at 233 (citing Murphy, 111 S.W.2d at 62-63). Generally, the assessment of punishment is a normative process, rather than one intrinsically factbound. Id. Specifically, a sentencer is not considered to be making an intrinsically factbound determination with respect to the appropriate length of the sentence. See Barrow, 207 S.W.3d at 381; see generally Ex parte Chavez, 213 S.W.3d at 323-25; Nunez v. State, 565 S.W.2d 536, 538 (Tex.Crim.App.1978).

The State argues that this Court cannot conduct a sufficiency of the evidence review of the length of a sentence, and argues that the proper standard of review of the sentence is for an abuse of discretion. The State relies on this Court’s opinions in Kanouse, 958 S.W.2d 509, and Gerhardt v. State, 935 S.W.2d 192 (Tex.App.-Beaumont 1996, no pet.). In Kanouse, we declined to conduct a factual sufficiency review of the punishment evidence, but neither did this Court conduct an abuse of discretion review. Kanouse, 958 S.W.2d at 510. Instead, we followed “[t]he general rule ... that as long as a sentence is within the statutory range, it will not be disturbed on appeal.” Id. In Gerhardt, the appellant recognized the no-review general rule, but argued that the trial court “abused its discretion” by failing to consider mitigating circumstances. Gerhardt, 935 S.W.2d at 195. This Court noted that the sentence in that case fell within the statutory range, and we found no abuse of discretion. Id. at 196. Gerhardt is properly viewed as following the no-review general rule, for which the case was cited in Ka~ nouse, rather than as adopting an abuse of discretion standard for appellate review of the length of a sentence.

Although the Court of Criminal Appeals has stated that “[t]he decision of what particular punishment to assess within the statutorily prescribed range for a given offense is a normative, discretionary function[,]” the Court further explained the sentencer’s discretion is “essentially ‘unfettered.’ ” See Barrow, 207 S.W.3d at 379-81; Ex parte Chavez, 213 S.W.3d at 323. “Subject only to a very limited, ‘exceedingly rare,’ and somewhat amorphous Eighth Amendment gross-dis-proportionality review, a punishment that falls within the legislatively prescribed range, and that is based upon the sentencer’s informed normative judgment, is unassailable on appeal.” Ex parte Chavez, 213 S.W.3d at 323-24 (footnote omitted); see also Barrow, 207 S.W.3d at 381. We conclude that the severity of a sentence is reviewable on appeal only under a gross-disproportionality standard when the sentence is within the legislatively prescribed range, is based upon the sentencer’s informed normative judgment, and is in accordance with due process of law. See Ex parte Chavez, 213 S.W.3d at 323-24; see also Lockyer v. Andrade, 538 U.S. 63, 72-73, 123 S.Ct. 1166,155 L.Ed.2d 144 (2003).

The trial court did not violate due process of law. Compare Jackson, 680 S.W.2d at 814. The sentence in this case was based upon the trial judge’s informed normative judgment. Punishment was assessed after the trial court considered evidence presented at the sentencing hearings and a pre-sentence investigation report. The length of the sentence is within the legislatively prescribed range, and is not subject to a sufficiency of the evidence review on appeal. See Barrow, 207 S.W.3d at 381; Garcia v. State, 166 Tex.Crim. 482, 316 S.W.2d 734, 735 (1958) (“[I]f the punishment is within that prescribed by the statute it is beyond the province of this Court to pass on the question as to whether the evidence is sufficient to support a punishment greater than the minimum.”). Jarvis did not present a timely objection at trial to the length of the sentence as being grossly disproportionate. He waived that Eighth Amendment challenge. See Tex.R.App. P. 33.1; Smedley v. State, 99 S.W.3d 317, 319 (TexApp.-Texarkana 2003, no pet.). The issue raised on appeal is overruled.

The trial court’s judgment is affirmed.

AFFIRMED.

      . Because section 38.04, as applied to Jarvis, has not materially changed since the date of the offense, we cite to the current version of the statute.

      . See Murphy v. State, 777 S.W.2d 44, 62-63 & n. 10 (Tex.Crim.App.1989) (plurality op. on reh'g); see also Wardrip v. State, 56 S.W.3d 588, 590-91 (Tex.Crim.App.2001) (per cu-riam); Ward v. State, 143 S.W.3d 271, 274 (Tex.App.-Waco 2004, pet. ref’d); Carlock v. State, 139 S.W.3d 90, 92-93 (Tex.App.-Texar-kana 2004, no pet.). Compare Naasz v. State, 974 S.W.2d 418, 423 (Tex.App.-Dallas 1998, pet. ref’d) ("We see no impediment to factual sufficiency review ... merely because sudden passion is now an issue in mitigation of punishment.’’).

      . See Fluellen v. State, 71 S.W.3d 870, 873 (Tex.App.-Texarkana 2002, pet. ref'd) ("A court’s proportionality analysis under the Eighth Amendment should be guided by (1) the gravity of the offense and the harshness of the penalty; (2) the sentences imposed on other criminals in the same jurisdiction; and (3) the sentences imposed for commission of the same crime in other jurisdictions.”); see also, generally, Lindley v. State, 24 S.W.3d 435, 437-38 (Tex.App.-Texarkana 2000, no pet.) (urging the Legislature “to consider the possibility of enacting sentencing guidelines that would create more consistency in sentencing in Texas.”).


text:
    In the ESTATE OF Patrick Gene CHAPMAN, Sr.
    No. 09-10-00130-CV.
    Court of Appeals of Texas, Beaumont.
    May 27, 2010.

      Ray J. Black, Jr., Law Offices of Ray J. Black, Jr., Houston, Mark Beausoleil, Liberty, for appellants.
    Tammy C. Manning, Galligan & Manning, Houston, Mark Morefield, Mark Morefield & Associates, Liberty, for appel-lee.
    Before GAULTNEY, KREGER, and HORTON, JJ.
   OPINION

DAVID GAULTNEY, Justice.

Patrick G. Chapman, Jr. and Sheri Ann Chapman Hardin, appellants, filed in the trial court a petition to remove appellee Kelley Lynn Chapman as administrator of the Estate of Patrick Gene Chapman, Sr. Appellants reserved the right to contest the validity of the holographic will. This appeal is from the trial court’s “Order Sustaining Motion In Limine,” signed May 8, 2009. The “motion in limine” challenged appellants’ standing.

A proponent of a will may challenge a contestant’s standing by filing a motion to dismiss the will contest before issue is joined on the merits of the will contest. See Chalmers v. Gumm, 137 Tex. 467, 154 S.W.2d 640, 643 (1941); see also Womble v. Atkins, 160 Tex. 363, 331 S.W.2d 294, 297-98 (Tex.1960); Boone v. LeGalley, 29 S.W.3d 614, 615 (Tex.App.-Waco 2000, no pet.); In re Estate of Hill, 761 S.W.2d 527, 528 (Tex.App.-Amarillo 1988, no writ) (failure to litigate standing before trial of will contest considered waiver of issue). An order dismissing a will contest because the contestant lacks standing is generally considered an appealable order. See Womble, 331 S.W.2d at 298. Appellee Kelley Lynn Chapman also filed a motion for sanctions. The Order Sustaining Motion in Limine reflects the trial court did not rule on the sanctions motion.

We questioned our jurisdiction over the appeal and instructed the parties to file written responses. Both the appellants and the appellee filed responses.

A probate order is appealable if an express statute declares the phase of the probate proceedings to be final and appeal-able. Crowson v. Wakeham, 897 S.W.2d 779, 783 (Tex.1995). “Otherwise, if there is a proceeding of which the order in question may logically be considered a part, but one or more pleadings also part of that proceeding raise issues or parties not disposed of, then the probate order is interlocutory.” Id.

“Motion in limine” is the name commonly given a pretrial motion that attempts to prevent the offer of, or reference to, specific evidence or other matter in the presence of the jury. See Bridges v. City of Richardson, 163 Tex. 292, 354 S.W.2d 366, 367 (Tex.1962) (purpose of motion in limine). A proceeding challenging standing in probate is sometimes referred to as an “in limine proceeding,” because it is a threshold or preliminary proceeding before the trial. See, e.g., Edwards v. Haynes, 690 S.W.2d 50, 51 (Tex.App.-Houston [14th Dist.]), rev’d on other grounds, 698 S.W.2d 97, 98 (Tex.1985) (“The proper procedure to follow on the issue of a contestant’s interest is to try the issue separately in an in limine proceeding and in advance of a trial on the issues affecting the validity of the will.”). A motion to dismiss for lack of standing, however, is properly called a motion to dismiss for lack of standing, rather than a “motion in limine.” To avoid ambiguity, if the motion to dismiss is granted, the order should reflect that the claim is dismissed.

In this case, the appellants petitioned for removal of the appellee as administrator of the Estate. In response, the appellee challenged the appellants’ standing on the ground of lack of interest in the Estate, by filing a document entitled “Motion in Limine, Plea to the Court’s Jurisdiction and Motion for Sanctions.” The trial court’s order of May 8, 2009 granted the motion in limine. The order makes no reference to the plea to the jurisdiction. The court apparently concluded that the appellants lacked standing to petition for the removal of the appellee as administrator of the Estate. See A & W Indus., Inc. v. Day, 977 S.W.2d 738, 740 (Tex.App.-Fort Worth 1998, no pet.). The order expressly reserved a ruling on the appellee’s motion for sanctions, however, and stated that “said motion for sanctions will be heard at a later date, if requested by any party[.]” Although the trial court subsequently signed a non-suit order, that order does not reference the pending sanctions motion either, and by rule had no effect on the motion. See Tex.R. Civ. P. 162; Unifund CCR Partners v. Villa, 299 S.W.3d 92, 96 (Tex.2009); Miller v. Armogida, 877 S.W.2d 361, 364 (Tex.App.-Houston [1st. Dist.] 1994, writ denied); see generally, McClendon v. State Farm Mut. Auto., Ins. Co., 796 S.W.2d 229, 233 (Tex.App.-El Paso 1990, writ denied) (the trial court may reinstate the dismissed cause of action.).

The order granting the motion in limine might logically be considered a part of an existing proceeding, the motion for sanctions was also a part of that proceeding, and the resolution of the issues raised in the sanctions motion were not disposed of by the Order Sustaining Motion in Limine, or by the non-suit order. Unresolved issues exist relevant to the order of May 8, 2009. Under the circumstances, the order did not clearly and completely terminate the phase of the probate proceeding. See Crowson, 897 S.W.2d at 783.

Appellants suggest that the appeal could be abated, and the case remanded to the trial court for entry of a final order. See Tex. R. App. P. 27.2. We conclude the proper course under the circumstances is to dismiss the appeal for lack of jurisdiction. The record does not indicate that the trial court intended its order to be a final determination of the motion for sanctions, and the order granting the motion in limine itself did not unambiguously dismiss the contest. Although an order dismissing a contest because the contestant lacks standing is an appealable order, under the unusual circumstances of this case the order is not yet a final probate order for purpose of appeal. The trial court retains jurisdiction to sign a final order resolving the discrete phase of the probate proceeding. The appeal is therefore dismissed.

APPEAL DISMISSED.


text:
    In re COMMITMENT OF Charles Edward WILSON.
    No. 09-09-00278-CV.
    Court of Appeals of Texas, Beaumont.
    Submitted May 20, 2010.
    Decided May 27, 2010.

      Dina F. Hardwick, State Counsel for Offenders, Huntsville, for appellant.
    Melinda Fletcher, Special Prosecution Unit, Amarillo, for appellee.
    Before GAULTNEY, KREGER, and HORTON, JJ.
   OPINION

DAVID GAULTNEY, Justice.

A jury determined that Charles Edward Wilson is a sexually violent predator. See Tex. Health & Safety Code Ann. § 841.003 (Vernon 2003). The trial court signed a judgment and order of civil commitment. In a single appellate issue, Wilson argues the trial court erred in overruling his Bat-son challenge. See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); see also Davis v. Fisk Elec. Co., 268 S.W.3d 508, 510-11, 518 (Tex.2008); Goode v. Shoukfeh, 943 S.W.2d 441, 445 (Tex.1997). Considering the required deference to be given to the trial court’s ruling, we conclude no error regarding the challenge supports a reversal of the trial court’s judgment. Accordingly, we affirm the judgment.

The Law

In Batson, the United States Supreme Court held that the Equal Protection Clause of the United States Constitution is violated if prospective jurors are excluded from service on the base of ethnicity or race. Batson, 476 U.S. at 86, 89, 106 S.Ct. 1712; see also Rivera v. Illinois, -U.S.-,-, 129 S.Ct. 1446, 1451, 173 L.Ed.2d 320 (2009). The Supreme Court extended this holding to civil cases. Edmonson v. Leesville Concrete Co., 500 U.S. 614, 616, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991). The exclusion of even one juror for prohibited reasons invalidates the entire jury-selection process. See Snyder v. Louisiana, 552 U.S. 472, 478, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008) (citing United States v. Vasquez-Lopez, 22 F.3d 900, 902 (9th Cir.1994)); Moeller v. Blanc, 276 S.W.3d 656, 659 (Tex.App.-Dallas 2008, pet. denied).

We review a trial court’s Batson ruling under an abuse of discretion standard. Davis, 268 S.W.3d at 515. In Davis, the Texas Supreme Court explained that a trial court abuses its discretion if its decision is arbitrary, unreasonable, and without reference to guiding principles. Id. In Goode, the Court also noted that, with regard to questions of fact, the standard is similar to, although not identical to, the federal “clearly erroneous’ standard.” Goode, 943 S.W.2d at 450; cf. Hernandez v. New York, 500 U.S. 352, 369, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) (holding that the finding of the trial court will not be disturbed unless the appellate court is left with a definite and firm conviction that a mistake has been committed). Determinations of credibility and demeanor in the Batson review lie within a trial judge’s province. Snyder, 552 U.S. at 477, 128 S.Ct. 1203. As the Court of Criminal Appeals has stated, “The trial court’s determination is accorded great deference and will not be overturned on appeal unless it is clearly erroneous.” Williams v. State, 301 S.W.3d 675, 688 (Tex.Crim.App.2009).

In the Batson context, we consider “all of the circumstances that bear upon the issue of racial animosity!.]” Snyder, 552 U.S. at 478, 128 S.Ct. 1203 (citing Miller-El v. Dratke, 545 U.S. 231, 239,125 S.Ct. 2317, 162 L.Ed.2d 196 (2005)); Moore v. State, 265 S.W.3d 73, 89-90 (Tex. App.-Houston [1st Dist.] 2008), pet. dism’d, improvidently granted,, 286 S.W.3d 371 (Tex.Crim.App.2009). The defendant must prove by a preponderance of the evidence that the allegations of purposeful discrimination were true in fact and that the prosecutor’s stated reasons were merely a pretext or sham. See Watkins v. State, 245 S.W.3d 444, 447, 452 (Tex.Crim.App.2008).

Batson Challenge

In evaluating a Batson challenge, the trial court follows a three-step process. See Batson, 476 U.S. at 93-98, 106 S.Ct. 1712; Goode, 943 S.W.2d at 445-46; see also Williams, 301 S.W.3d at 688. First, the party challenging the strike must make a prima facie showing that the other party has used a peremptory challenge to remove a potential juror on the basis of race. Batson, 476 U.S. at 93-94, 106 S.Ct. 1712; Goode, 943 S.W.2d at 445. If this showing is made, the burden then shifts in the second step to the striking party to come forward with a race-neutral explanation for the challenged strike. Batson, 476 U.S. at 97-98, 106 S.Ct. 1712. At the third stage of the process, the trial court determines “if the party challenging the strike has proven purposeful racial discrimination, and the trial court may believe or not believe the explanation offered by the party who exercised the peremptory challenge.” Goode, 943 S.W.2d at 445-16. “[T]he issue of whether the racemeutral explanation should be believed is purely a question of fact for the trial court.” Id. at 446 (citing Hernandez, 500 U.S. at 364, 367, 111 S.Ct. 1859.).

Application of Law to Facts

Because the issue of whether Wilson established a prima facie case is unchallenged, our review begins with the second step of Batson. We determine whether the State presented a race-neutral explanation for its peremptory strike of venireman 25. See Batson, 476 U.S. at 97-98, 106 S.Ct. 1712. “Batson requires a ‘clear and reasonably specific explanation’ of the legitimate reasons for a strike, ... and merely stating that a juror nonverbally ‘reacted’ is insufficient.” Davis, 268 S.W.3d at 519 (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 258, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)). The record reveals that the State offered a specific race-neutral explanation on the record: the venireman was inattentive and unresponsive, did not make eye contact, did not want to listen to what the State’s attorney was saying, and was looking around the room.

In the third step, we consider whether Wilson met his burden of proving purposeful racial discrimination. See Goode, 943 S.W.2d at 445-46; see also Rice v. Collins, 546 U.S. 333, 336-42, 126 S.Ct. 969, 163 L.Ed.2d 824 (2006) (discussion of evidence of juror’s purported eye-rolling, her youth, lack of ties to community, gender, and conclusion that defendant did not carry burden of proving purposeful racial discrimination). Wilson argues the State waived any claim of a racially neutral reason for striking venireman 25, because the State did not specifically question number 25 and did not object to Wilson’s Bat-son challenge. The State followed the Batson procedure by offering the race-neutral explanation required by step two. The lack of specific questions directed to a venireman is a factor to be weighed in evaluating the explanation, but the failure to specifically question a venireman does not constitute waiver of the State’s explanation. See Darnels v. State, 768 S.W.2d 314, 318 (Tex.App.-Tyler 1988, pet. refd) (citing with approval a case holding that “[n]o examination or only perfunctory examination of the challenged juror was one of five factors held to weigh heavily against the legitimacy of a purportedly race-neutral explanation”); see also Davis, 268 S.W.3d at 517, 519 (Failure to question the venireman about his purported nonverbal reaction suggests that his reaction had little to do with the strike.).

Although the State’s attorney did not direct any questions to number 25, she did specifically describe the conduct on which her strike was based. Another attorney for the State indicated she and several other attorneys observed and discussed the inattentiveness and non-responsiveness. The record contains evidence of the juror’s conduct. See Tate v. State, 939 S.W.2d 738, 745 (Tex.App.-Houston [14th Dist.] 1997, pet. refd), overruled on other grounds by Sarmiento v. State, 93 S.W.3d 566 (Tex.App.-Houston [14th Dist.] 2002, pet. refd) (trial court in best position to observe prospective juror’s demeanor and to determine the credibility of prosecutor’s explanation). The State argues that it treated number 25 no differently from number 24, who was struck for the same reason — inattentiveness.

“Peremptory strikes may legitimately be based on nonverbal conduct, but permitting strikes based on an assertion that nefarious conduct ‘happened,’ without identifying its nature and without any additional record support, would strip Batson of meaning.” Davis, 268 S.W.3d at 518. “Verification of the occurrence may come from the bench if the court observed it; it may be proved by the juror’s acknowledgement; or, it may be otherwise borne out by the record as, for example, by the detailed explanations of counsel.” Id.

The State’s attorney gave a specific explanation of why she struck venireman 25. The defense counsel indicated he did not see number 25 being inattentive. Defense counsel also stated number 25 did not say anything, but he was not directly asked anything; defense counsel stated number 25 lifted up his card when some questions were asked, and stated number 25 was not asleep. The State’s attorney stated she did not see number 25 raise his juror card. The trial court resolved the factual disputes and obviously believed that the State exercised the peremptory challenges for the reasons stated. The record does not indicate that the trial court’s ruling was an abuse of discretion.

“[N]either [.Batson nor Snyder ] held that a demeanor-based explanation for a peremptory challenge must be rejected unless the judge personally observed and recalls the relevant aspect of the prospective juror’s demeanor.” Thaler v. Haynes, — U.S. -, -, 130 S.Ct. 1171, 1174, - L.Ed.2d - (2010). When a party offers a facially race-neutral explanation, a reviewing court does not reweigh the evidence and reach a conclusion different from that of the trial court unless the explanation offered is “too incredible to be believed.” Goode, 943 S.W.2d at 448. Based on a review of the record, and giving the required deference to the trial court’s ruling, we conclude that the State provided facially race-neutral explanations for its use of the peremptory challenge on venireman 25, and that Wilson did not carry his burden to show that the stated reasons were pretextual. Wilson’s appellate issue is overruled. The judgment is affirmed.

AFFIRMED.


author: JAMES T. WORTHEN, Chief Justice.

text:
    Thomas HAYES, Margaret Hayes, and Dustin Stibbins, Appellants, v. ANDERSON COUNTY and Jack Herrington, Appellees.
    No. 12-09-00181-CV.
    Court of Appeals of Texas, Tyler.
    May 28, 2010.

      Stephen Evans, Diane B. Whitehurst, for appellants.
    Douglas E. Lowe, for appellees.
    Panel consisted of WORTHEN, C.J., GRIFFITH, J., and HOYLE, J.
   OPINION

JAMES T. WORTHEN, Chief Justice.

Thomas Hayes, Margaret Hayes, and Dustin Stibbins (collectively “Appellants”) appeal the trial court’s judgment entered in favor of Appellees Anderson County (the “County”) and Jack Herrington declaring that Anderson County Road 3016 (“CR 3016”) was impliedly dedicated as a public road with a width of fifty feet. Appellants raise four issues on appeal. We affirm in part and reverse and render in part.

Background

Stibbins and Hayes purchased real property along CR 3016 during the early to mid-2000s. In 2007, there were times when public access to CR 3016 became impeded. In April 2008, Anderson County filed an original petition seeking a declaratory judgment that CR 3016 was a public road that had been impliedly dedicated in Anderson County. Stibbins, the Hayeses, and Jack Herrington were named as defendants in the suit. Herrington aligned himself with the County, alleging that CR 3016 should be declared a public road. To the contrary, Stibbins and the Hayeses maintained that the roadway was, in fact, an easement granted by J.B. Herrington and his wife, Emma Herrington, to D.P. Berry in an instrument dated December 2, 1940.

Following a bench trial, the trial court determined that CR 3016 was a public road with a width of fifty feet. No findings of fact or conclusions of law were requested. This appeal followed.

Jurisdiction of Trial Court

In their third issue, Appellants contend that the trial court exceeded its jurisdiction by determining that CR 3016 had been dedicated to the public. In support of their argument, Appellants cite section 251.051(a)(1) of the Texas Transportation Code, which states, in pertinent part, that “the commissioner’s court of a county shall: (1) order that public roads be laid out, opened, discontinued, closed, abandoned, vacated or altered....” Tex. Transp. Code Ann. § 251.051(a)(1) (Vernon 1999).

Prior to 1981, Texas recognized dedication of public roads either by statute or by common law. See Jezek v. City of Midland, 605 S.W.2d 544, 548 (Tex.1980). In 1981, the legislature abolished the common law doctrine of implied dedication as a means of establishing that a particular road traversing private property was a public road. Baker v. Peace, 172 S.W.3d 82, 87 (Tex.App.-El Paso 2005, pet. denied) (citing Act of May 31, 1981, 67th Leg., R.S., ch. 613, §§ 1, 2 & 4, 1981 Tex. Gen. Laws 2412 (current version at Tex. Transp. Code Ann. §§ 281.002, 281.003 (Vernon 1999)). Because there is no provision in the statute for retroactive application, it can only be applied prospectively. See id. As such, the statutory abolishment of implied dedication of public roadways does not affect an implied dedication, which, as here, is alleged to have occurred before the effective date of the statute. See Scown v. Neie, 225 S.W.3d 303, 309-10 (Tex.App.-El Paso 2006, pet. denied).

Common law dedications can be either expressed or implied. Jezek, 605 S.W.2d at 544. An implied dedication occurs when there is some act or course of conduct from which the law will imply an intent to dedicate the land. See id. at 548-49. A district court of this state has jurisdiction to determine whether there has been an implied dedication of a public road and its location. See Tabor v. Hogan, 955 S.W.2d 894, 897 (Tex.App.-Amarillo 1997, no pet.) (trial court had jurisdiction to determine location of county road); see, e.g., County of Real v. Hafley, 873 S.W.2d 725, 725 (Tex.App.-San Antonio 1994, writ denied) (action seeking declaratory judgment that road was not public road). Therefore, we hold that the trial court had jurisdiction to enter a declaratory judgment based upon the legal theory of implied dedication. Appellant’s third issue is overruled.

Evidentiary Sufficiency-Implied Dedication

In their first issue, Appellants argue that there was insufficient evidence to establish that CR 3016 was impliedly dedicated for public use.

Standard of Review

Where, as in the instant case, findings of fact and conclusions of law are neither filed nor requested following a bench trial, it is implied that the trial court made all findings necessary to support its judgment, provided that (1) the necessary findings are raised by the pleadings and supported by the evidence and (2) the decision can be sustained by any reasonable theory consistent with the evidence and applicable law. See Santa Fe Petroleum, L.L.C. v. Star Canyon Corp., 156 S.W.3d 630, 636 (Tex.App.-Tyler 2004, no pet.); see also Tex.R. Civ. P. 296, 299a. We review de novo a trial court’s conclusions of law, whether express or implied. Santa Fe Petroleum, 156 S.W.3d at 636. A conclusion of law will be set aside if it is erroneous as a matter of law. Id. Moreover, when a reporter’s record is brought forward, the trial court’s implied findings may be challenged by legal sufficiency and factual sufficiency issues the same as jury findings or a trial court’s findings of fact. See Alford v. Johnston, 224 S.W.3d 291, 296 (Tex.App.-El Paso 2005, pet. denied). The judgment must be affirmed if it can be upheld on any legal theory that finds support in the evidence. See Woiford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990).

When reviewing a challenge to the legal sufficiency of the evidence, we must determine “whether the evidence at trial would enable reasonable and fair minded people to reach the verdict under review.” City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005). In making this determination, we must credit favorable evidence if a reasonable finder of fact could, and disregard contrary evidence unless a reasonable finder of fact could not. Id. The finder of fact is the sole judge of the credibility of the witnesses and the weight to be assigned to their testimony. See Canal Ins. Co. v. Hopkins, 238 S.W.3d 549, 557 (Tex. App.-Tyler 2007, pet. denied) (citing City of Keller, 168 S.W.3d at 819). The finder of fact is free to believe one witness and disbelieve another, and reviewing courts may not impose their own opinions to the contrary. Id. Accordingly, we must assume that the finder of fact decided all credibility questions in favor of the findings if a reasonable person could do so. Id. If a reasonable finder of fact could have done so, we must assume that the finder of fact chose what testimony to disregard in a way that favored the findings. See Canal, 238 S.W.3d at 557 (citing City of Keller, 168 S.W.3d at 820).

When considering a challenge to the factual sufficiency of the evidence, we examine the entire record to determine whether a finding is clearly wrong and unjust. See Kinder Morgan N. Tex. Pipeline, L.P. v. Justiss, 202 S.W.3d 427, 437 (Tex.App.-Texarkana 2006, no pet.). We must consider and weigh all the evidence, not just that evidence which supports the verdict. See Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex.1998). We can set aside the verdict only if it is so contrary to the overwhelming weight of the evidence that the verdict is clearly wrong and unjust. Id.; Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). We are not a fact finder. See Justiss, 202 S.W.3d at 437. Accordingly, we may not pass on the witnesses’ credibility or substitute our judgment for that of the fact finder, even if the evidence would clearly support a different result. See Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex.2003); Ellis, 971 S.W.2d at 407. If we find the evidence is factually insufficient, we must clearly state why the finding is insufficient or is so against the great weight and preponderance of the evidence as to be manifestly unjust. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986).

Governing Law

Dedication is the act of appropriating private land to the public for any general or public use. Baker, 172 S.W.3d at 87. Whether a road has been dedicated for public use is a question of fact. Steel v. Wheeler, 993 S.W.2d 376, 378 (Tex.App.Tyler 1999, pet. denied). The essential elements of implied dedication are (1) the acts of the land owner induced the belief that the land owner intended to dedicate the road to public use; (2) he was competent to do so; (3) the public relied on those acts and will be served by the dedication; and (4) there was an offer and acceptance of the dedication. Las Vegas Pecan & Cattle Co., Inc. v. Zavala County, 682 S.W.2d 254, 256 (Tex.1984).

Evidence of long and continued use by the public raises a presumption of dedication by the owner when the origin of the public use and the ownership of the land at the time it originated cannot be shown, one way or the other, due to the lapse of time. Baker, 172 S.W.3d at 88; see also O’Connor v. Gragg, 161 Tex. 273, 339 S.W.2d 878, 883 (1960) (“mere ownership of the land at the time of such origin is shrouded in obscurity, and no proof can be adduced to show the intention of the owner allowing the use, the law raises a presumption that the requisite intention and acts disclosing it were present.”). There must be some evidence of an additional factor that implies a donative intent when considered in light of the owner’s acquiescence in the public’s use of the roadway. Baker; 172 S.W.3d at 88. Evidence of this additional factor can be permitting public authorities to grade, repair, or otherwise improve the roadway. See id.

The Evidence

Herrington, a proponent of CR 3016’s dedication as a public road, testified that he grew up in the area where CR 3016 is now located. Herrington stated that, following his return from military service in World War II, the road was built at the prompting of R.J. Goodman. Herrington further stated that he had measured the road and that it was thirty-five feet in width. Herrington also testified that the County had maintained the road since its construction.

Sammy Overton, who grew up in the nearby Brushy Creek area, testified that he had worked for Anderson County for twenty-five years. Overton further testified that he did not remember precisely when the road was constructed, but that it had been constructed during the period of time when Tom Campbell Elrod was the County Commissioner for the precinct. Overton stated that, in 1965, he went to work for the County under Elrod’s successor as Precinct Commissioner, “Blue” Beard. Overton further stated that he used road equipment to maintain the road weekly from 1965 until 1977. Overton testified that he also maintained the road when he went back to work for the County from 1990 to 2003. Overton also testified that George Rose, who had worked under Elrod, operated a road grader on the road prior to Overton’s employment by the County in 1965. Overton stated that the road was previously known as “Goodman Road” before being designated CR 3016.

Carl House has worked for the County continuously since 1990. House testified that he has worked on CR 3016 throughout his tenure with the County. House further testified that during his time as a county employee, the County has bladed the road, put asphalt on it, and built a bridge. House stated that throughout the entirety of his employment with the County, the road has always been designated as CR 3016. Yet, House, who grew up nearby in Frankston, Texas, testified that he also had heard the road referred to as “Goodman Road.”

John Caveness testified on Appellants’ behalf. He testified that he had lived in the Frankston area for forty years and that he did not know that CR 3016 was a county road. Caveness further testified that he had done work in the area for a previous landowner along the road in 1993 and described the road as a “pig trail.” Caveness stated that he had used his equipment to clear the road enough so that he could get equipment in and out of the property where he was working. Caveness further stated that the road that the County used to work on in the area was actually another road, which was now behind a locked gate on Herrington’s property-

Bob Whitehurst testified that he had lived in the area since 1954 and that the road located behind a locked gate on Her-rington’s property was, in fact, the road formerly known as “Goodman Road.” Whitehurst further testified that this road had been open to public use. Whitehurst stated that what is now CR 3016 did not exist when he was growing up in the area. Additionally, in their respective testimonies, Thomas and Margaret Hayes each expressed disbelief that CR 3016 was a public road when they purchased their property. Rather, their respective testimonies reflect that each considered it a private easement benefiting their property purchased in 2005.

Dustin Stibbins testified that his parents purchased land along CR 3016 in 1995. Stibbins further testified that he purchased the land from his mother after his father’s death. Stibbins stated that he believed the road was only an easement owned by the Hayeses, which they allowed him to use.

Analysis

Based on the foregoing, we conclude that there was more than a scintilla of evidence to support the trial court’s implied finding that CR 3016 was impliedly dedicated to the public prior to 1981. Her-rington’s testimony that the road was built at Goodman’s prompting as well as Her-rington’s, Overton’s, and House’s testimonies that the road had been continuously maintained by the county since the late 1940s amounted to legally sufficient evidence to support the trial court’s judgment.

We next consider Appellants’ contention that the evidence is factually insufficient. We have examined the entirety of the record, and we have considered and weighed all of the evidence. Having done so, we have not determined that any evidence tending to contradict the evidence supporting the trial court’s findings, such as the testimony offered by Caveness, Whitehurst, the Hayeses, or Stibbins, is of such character so as to cause us to conclude that the trial court’s judgment is clearly wrong and unjust. Accordingly, we hold that the evidence is factually sufficient to support the trial court’s judgment. Appellants’ first issue is overruled.

Admission of Evidence

In their second issue, Appellants argue that the trial court erroneously admitted into evidence the field notes prepared by County Surveyor Gene Russell. Appellants objected at trial to exhibit 7, which comprised Russell’s field notes pertaining to CR 3016. Specifically, Appellants objected to exhibit 7 because the County failed to disclose in pretrial discovery the existence of Russell’s field notes.

The County responds that the same evidence comprising exhibit 7 was also contained in exhibit 8, which was a large plat showing CR 3016. The record indicates that exhibit 8 was admitted without objection. Any error in admitting evidence is cured when the same evidence comes in elsewhere without objection. Schwartz v. Forest Pha/rms., Inc., 127 S.W.3d 118, 124 (Tex.App.-Houston [1st Dist.] 2003, pet. denied). Here, because Appellants failed to object to the same evidence when it was offered as part of exhibit 8, we hold that they waived the trial court’s error, if any, in its admission of exhibit 7. Id. Appellants’ second issue is overruled.

Determination of Width of CR 3016

In their fourth issue, Appellants contend that the trial court improperly determined that the width of CR 3016 was fifty feet. The County responds that the testimony at trial supported that a fifty foot road was necessary so that the road could be safely maintained.

Kenneth Dickson, County Commissioner for Precinct 3 of Anderson County, Texas, testified that the minimum width of roads in Anderson County was set at fifty feet. Dickson further testified that the rationale for this minimum width was to allow the operators of the County’s maintenance equipment to maneuver off the roads so that cars could pass by while maintenance was underway. Dickson stated that if the roads were less than fifty feet wide, the County would have to disallow passage on a road in order to clean the ditches.

Herrington testified that the road used to be thirty-five feet wide. Herring-ton further stated that he had actually physically measured the width of the road. There was no other testimony in the record setting forth the actual width of the road. We are bound by the testimony in the record concerning the width of the road when it was dedicated. The only evidence of the road’s width when it became public by an implied dedication was the thirty-five foot width to which Herring-ton testified. When there is no evidence to support a vital fact in the judgment, we must reverse that portion of the judgment. See City of Keller, 168 S.W.3d at 810. As such, we hold that the trial court erred in its finding that the width of CR 3016 was fifty feet. Appellants’ fourth issue is sustained.

Disposition

Having sustained Appellants’ fourth issue, we reverse and render judgment that the width of CR 3016 is thirty-five feet. The remainder of the trial court’s judgment is affirmed. All pending motions are overruled as moot.

      . See TexR. Civ. P. 193.5, 193.6.


author: Justice MOSELEY.

text:
    In re: The TEXAS MEDICAL BOARD.
    No. 06-10-00041-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted June 1, 2010.
    Decided June 1, 2010.

      John S. Langley, Asst. Atty. Gen., Austin, for appellant.
    Clifton L. “Scrappy” Holmes, Gena B. Bunn, Holmes & Moore, PLLC, Longview, Carolyn Denero, Asst. Atty. Gen., Austin, for appellee.
    Before MORRISS, C.J., CARTER and MOSELEY, JJ.
   OPINION

Opinion by

Justice MOSELEY.

This mandamus proceeding arises from the prosecution of Dr. Oscar Reichert (the real party in interest) by the State of Texas on charges of Medicare fraud. The action has been brought by the Texas Medical Board (Board), a governmental agency of the State of Texas, charged by the Texas Legislature with regulating the practice of medicine. Tex. Const, art. XVI, § 31; Tex. Occ.Code Ann. § 151.003 (Vernon 2004), § 152.001 (Vernon Supp. 2009).

Pursuant to its duties to license and regulate physicians, the Board evaluates applications for licensure and investigates complaints against physicians. The Board’s files generated in connection with these functions are confidential. Section 155.007(g) of the Texas Occupations Code provides, in part, that “[e]ach report received or gathered by the board on a license applicant is confidential and is not subject to disclosure under Chapter 552, Government Code.” Tex. Occ.Code Ann. § 155.007(g) (Vernon Supp. 2009). Documents gathered by the Board as part of any investigation of any licensee are likewise confidential. Section 164.007(c) of the Texas Medical Practice Act provides:

Each complaint, adverse report, investigation file, other investigation report, and other investigative information in the possession of or received or gathered by the board or its employees or agents relating to a license holder, an application for license, or a criminal investigation or proceeding is privileged and confidential and is not subject to discovery, subpoena, or other means of legal compulsion for release to anyone other than the board or its employees or agents involved in discipline of a license holder. For purposes of this subsection, investigative information includes information relating to the identity of, and a report made by, a physician performing or supervising compliance monitoring for the board.

Tex. Occ.Code Ann. § 164.007(c) (Vernon Supp. 2009).

Here, the documents in question have been designated by the Texas Legislature as privileged, confidential, and not subject to discovery or subpoena under Texas law.

However, the State of Texas, in bringing its criminal prosecution, had obtained copies of the Board’s records of the disciplinary action pursuant to an exception to that confidentiality privilege, Section 164.007(h) of the Texas Occupations Code, which provides:

The board shall cooperate with and assist a law enforcement agency conducting a criminal investigation of a license holder by providing information that is relevant to the criminal investigation to the investigating agency. Information disclosed by the board to an investigative agency remains confidential and may not be disclosed by the investigating agency except as necessary to further the investigation.

Tex. Ogc.Code Ann. § 164.007(h).

On October 5, 2009, the 276th Judicial District Court of Titus County issued a ruling from the bench requiring the State to turn over the Board’s file to counsel for Reichert. On May 14, 2010, after having filed an unsuccessful motion to reconsider, the Board filed a motion for emergency stay of order of production and motion for leave to submit confidential documents under seal for in camera review. This motion was granted, and on May 19, 2010, following in camera review of the Board’s file, the respondent in this action, the Honorable Webb Biard, renewed and affirmed his order of May 7, 2010, and the Honorable William Porter’s order of October 5, 2009, requiring the State to produce the underlying documentation that supports the mediated order between Reichert and the Board.

The Board contends that the respondent erred in ordering the disclosure of confidential Board files. Reichert, the real party in interest, maintains that the State is obligated to turn over evidence in its possession that is both favorable to the accused and material to guilt or punishment. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Indeed, Reichert’s right to discover exculpatory evidence material to guilt or punishment in connection with his criminal prosecution is based on the United States Constitution. Id. If there were exculpatory evidence contained within the Board files, Reichert would be entitled to be supplied with that evidence.

Mandamus issues only when the mandamus record establishes (1) a clear abuse of discretion or the violation of a duty imposed by law and (2) the absence of a clear and adequate remedy at law. Cantu v. Longoria, 878 S.W.2d 131 (Tex.1994); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex.1992). A trial court clearly abuses its discretion when it reaches a decision which is so arbitrary as to amount to a clear and prejudicial error of law. Walker, 827 S.W.2d at 839. "While it is true that the reviewing court may not substitute its judgment for that of the trial court with respect to the resolution of factual issues, review of a trial court’s determination of legal principles controlling its ruling is much less deferential. Id. at 839-40. A trial court has no discretion in determining what the law is and in the application of the law to the facts. Id. at 840. In determining whether the trial court abused its discretion in the present case, we treat the trial court’s grant of the requested privileged Board file as a legal conclusion to be reviewed with limited deference to the trial court. See id.; In re Doctors’ Hosp. of Laredo, Ltd. P’ship, 2 S.W.3d 504, 506 (Tex.App.-San Antonio 1999, orig. proceeding).

The privileged documents were submitted under seal to the trial court and were reviewed in camera. While the trial court ordered the State to produce the documents, it made no finding that any of the information contained in the documents would serve to assist Reichert in his defense or would otherwise be classified as exculpatory evidence, as contemplated by Brady and its progeny. Further, we have reviewed the documents which were ordered to be produced and find no such exculpatory information contained within them.

In the absence of such a finding, together with our own in camera review in which we have concluded that there is no right under Brady for Reichert to obtain disclosure of the documents, and in the face of the statutorily privileged status of the documents in question, we are compelled to conclude that the trial court was without discretion to order disclosure of said documents. We further find that the Board, the relator, has no adequate remedy at law. We conditionally grant the writ of mandamus and direct the trial court to vacate its prior order directing the divul-gence of the contents of the Board’s file. We are confident the trial court will comply, and the writ will issue only if it fails to do so.

      . There are two categories of documents at issue. First, there is the information on which the Texas Medical Board relied in its disciplinary proceeding before the agency. These documents were heretofore provided to Reichert pursuant to Section 164.007(d) of the Texas Occupations Code, which provides:
      (d) Not later than the 30th day after the date of receipt of a written request from a license holder who is the subject of a formal complaint initiated and filed under Section 164.005 or from the license holder’s counsel of record, and subject to any other privilege or restriction set forth by rule, statute, or legal precedent, and unless good cause is shown for delay, the board shall provide the license holder with access to all information in its possession that the board intends to offer into evidence in presenting its case in chief at the contested hearing on the complaint. The board is not required to provide:
      (1) a board investigative report or memorandum;
      (2) the identity of a nontestifying complainant; or
      (3) attorney-client communications, attorney work product, or other material covered by a privilege recognized by the Texas Rules of Civil Procedure or the Texas Rules of Evidence.
      (e) Furnishing information under Subsection (d) does not constitute a waiver of privilege or confidentiality under this subtitle or other applicable law.
      Tex. Occ.Code Ann. § 164.007(d), (e) (Vernon Supp. 2009).
      The second category of documents at issue are those not relied upon by the Board at the contested hearing. These documents consist of board investigative reports or memorandums; the identity of the nontestifying complainant; and attorney-work product. The documents within this second category were disclosed to the State, but were not released to Reichert. It is this second category of documents the Board seeks to protect from disclosure to Reichert. We note that both categories of documents remain confidential, despite limited disclosure to law enforcement and to Reichert in accordance with the statute.

      . A prosecutor has an affirmative duty to turn over material, exculpatory evidence to the accused. Brady, 373 U.S. at 87, 83 S.Ct. 1194. Impeachment evidence is likewise included within the scope of this rule. See U.S. v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). Evidence is "material" if there is "a reasonable probability that, had the evidence been disclosed to the defense, the outcome of the proceeding would have been different." Id. at 682, 105 S.Ct. 3375. Exculpatory evidence is that which tends to justify, excuse, or clear the accused of fault or guilt. Wyatt v. State, 23 S.W.3d 18, 27 (Tex. Crim.App.2000).