author: BOB McCOY, Justice.

text:
    The CITY OF FORT WORTH and The City of Fort Worth Firefighters’ and Police Officers’ Civil Service Commission, Appellants, v. Samuel DAVIDSAVER, Appellee.
    No. 2-09-458-CV.
    Court of Appeals of Texas, Fort Worth.
    July 29, 2010.

      Theodore P. Gorski, Jr., Douglas W. Black, Asst. City Attys., Fort Worth, TX, for Appellants.
    Robert J. Myers & Associates, Wesley J. Cooper, Fort Worth, TX, for Appellee.
    PANEL: WALKER and McCOY, JJ.; and WILLIAM BRIGHAM (Senior Justice, Retired, Sitting by Assignment).
   OPINION

BOB McCOY, Justice.

I. INTRODUCTION

Appellants City of Fort Worth and City of Fort Worth Firefighters’ and Police Officers’ Civil Service Commission bring this interlocutory appeal challenging the trial court’s order denying their plea to the jurisdiction. In a single issue, appellants argue that appellee Samuel Davidsaver’s claims stemming from the scoring of his police officer promotional exam may be raised only by the Fort Worth Police Officers Association and that he lacks standing to pursue these claims individually in district court. Because we agree that Officer Davidsaver does not have standing to sue appellants, we reverse the trial court’s order and dismiss Officer Davidsaver’s claims against appellants for lack of subject matter jurisdiction.

II. BACKGROUND

Officer Davidsaver, a sergeant with the Fort Worth Police Department, sat for the department’s promotional exam for the rank of lieutenant on September 22, 2009. According to Officer Davidsaver, the notice of the exam published by the City of Fort Worth Firefighters’ and Police Officers’ Civil Service Commission (the “Commission”) stated that bonus points for seniority would be added to each candidate’s exam score pursuant to the guidelines of the local government code. However, when the final test scores were posted, his bonus points were calculated instead according to the procedures contained in the Meet and Confer Agreement between the City of Fort Worth and the Fort Worth Police Officers Association (the “Agreement”), not the local government code. Officer Davidsaver contends that as a result, he ranked lower on the list of promotion candidates than he would have ranked had the local government code’s bonus points system been applied.

Believing that his final test score had been detrimentally affected by the change in bonus score calculation procedures, Officer Davidsaver and his attorney sent a letter to the Fort Worth Police Officers Association (the “Association”) on October 19, 2009, asserting that seniority bonus points should have been allocated to him under the local government code instead of the Agreement. The Association forwarded Officer Davidsaver’s complaint to its Dispute Resolution Committee, which informed him that it would meet to review his complaint on November 11, 2009.

Before this meeting could take place, Officer Davidsaver sued the City, the Commission, and the Association, requesting a judgment declaring that the provisions of the local government code, and not the Agreement, applied to his promotional exam. Officer Davidsaver also requested a temporary restraining order and an injunction preventing the defendants from applying the Agreement’s provisions to the exam results and from promoting any candidates on the basis of exam scores calculated under the Agreement’s provisions. The City and the Commission filed a plea to the jurisdiction challenging Officer Davidsaver’s standing to sue on November '5, 2009. The Association’s Dispute Resolution Committee held its meeting on November 11, 2009, and it sent Officer Davidsaver’s counsel a letter the next day informing him that it had voted against taking any further action on Officer Davidsaver’s complaint. The trial court denied the City and the Commission’s plea to the jurisdiction in a written order dated December 7, 2009. The City and the Commission now appeal.

III. LAW AND APPLICATION TO FACTS

A. Local Government Code and Collective Bargaining Agreements

Chapter 143 of the local government code governs municipal civil service for firefighters and police officers in Texas. Tex. Loc. Gov’t Code Ann. §§ 143.001-.363 (Vernon 2008 & Supp. 2009). Its purpose is “to secure efficient fire and police departments composed of capable personnel who are free from political influence and who have permanent employment tenure as public servants.” Id. § 143.001(a). A fundamental principle of civil service is that appointments must be made according to merit and fitness. Klinger v. City of San Angelo, 902 S.W.2d 669, 671 (Tex.App.-Austin 1995, writ denied). One critical aspect of civil service protection is the right to seek promotion by way of competitive examinations. Lee v. City of Houston, 807 S.W.2d 290, 295 (Tex.1991). Chapter 143 provides a system for classification of police officers through the administration of promotional examinations. See Tex. Loc. Gov’t Code Ann. §§ 143.021-.038.

Chapter 143 also allows a municipality the size of Fort Worth to exercise local control over terms and conditions of police officer employment. See id. §§ 143.301-.313. This local control, however, extends only to those terms and conditions on which the city and an association that is recognized as the sole and exclusive bargaining agent for all police officers in the municipality agree. See id. § 143.303(a). On November 16, 2006, the Fort Worth City Council adopted a proposition authorizing the City to recognize an employee association as a sole and exclusive bargaining agent for the municipal police officers and authorizing the City to make agreements with the employee association as provided by state law. Finally, on January 30, 2007, the city council passed a resolution recognizing the Association as the sole and exclusive bargaining agent for all Fort Worth police officers. See id. § 143.304(a).

B. The Meet and Confer Agreement

Thereafter, on November 11, 2008, the Association and the City signed the Meet and Confer Agreement. Article 15 of the Agreement addresses promotions in officer classification, and section 4 of that article specifically addresses additional points added to promotional exam test scores for the ranks of lieutenant and captain according to the level of the candidate’s education and to the candidate’s number of years in rank — one point for each complete year that the officer has served in the current classification. Section 143.033 of the local government code, however, adds one point for each year of seniority as a classified police officer in the department without regard to number of years in each rank, and it does not add points for educational degrees. See id. § 143.033(b). Officer Davidsaver argued in his letter to the Association and in his lawsuit that under the terms of Article 15, the Agreement’s point system was not yet in effect at the time he took the exam on September 22, 2009; therefore, the point system of the local government code should have been applied to his exam score.

C. Standing to Sue Under the Agreement

In a single issue, appellants contend that the trial court has no jurisdiction over Officer Davidsaver’s suit because only the Association has the right to assert claims against appellants that arise under the Agreement. They argue that because Officer Davidsaver is not a party to the Agreement, he has no standing to complain of a breach of the Agreement or to demand enforcement of its provisions. Appellants assert that the trial court failed to recognize Officer Davidsaver’s lack of standing to challenge actions taken under the Agreement and therefore erred by denying their plea to the jurisdiction.

1. Standard of Review

A plea to the jurisdiction challenges the trial court’s authority to determine the subject matter of the action. Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex.1999). Whether a trial court has subject matter jurisdiction and whether a pleader has alleged facts that affirmatively demonstrate the trial court’s subject matter jurisdiction are questions of law that we review de novo. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004); Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.2002). The determination of whether a trial court has subject matter jurisdiction begins with the pleadings. Miranda, 133 S.W.3d at 226. The plaintiff has the burden to plead facts affirmatively showing that the trial court has jurisdiction. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993); Univ. of N. Tex. v. Harvey, 124 S.W.3d 216, 220 (Tex.App.-Fort Worth 2003, pet. denied). We construe the pleadings liberally in favor of the pleader, look to the pleader’s intent, and accept as true the factual allegations in the pleadings. See Miranda, 133 S.W.3d at 226, 228; City of Fort Worth v. Crockett, 142 S.W.3d 550, 552 (Tex.App.-Fort Worth 2004, pet. denied).

If a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised, as the trial court is required to do. See Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex.2000) (confining the evidentiary review to evidence that is relevant to the jurisdictional issue). We take as true all evidence favorable to the nonmovant and indulge every reasonable inference and resolve any doubts in the nonmovant’s favor. Miranda, 133 S.W.3d at 228. If the evidence creates a fact question regarding the jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction, and the fact question will be resolved by the fact finder. Id. at 227-28; Bland, 34 S.W.3d at 555. If the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, however, the trial court rules on the plea to the jurisdiction as a matter of law. Miranda, 133 S.W.3d at 227-28; Bland, 34 S.W.3d at 555.

2. Interpreting the Intent of the Agreement

Officer Davidsaver argues that the trial court did not err by denying appellants’ plea to the jurisdiction because the Agreement itself contemplates that police officers have standing under the Agreement. He points to Article 19 of the Agreement, titled “Complete Agreement,” which reads as follows:

Section 1. The Parties agree that each has had the full and unrestricted right and opportunity to make, advance, and discuss all matters properly within the province of bargaining for a Meet and Confer agreement. This Agreement constitutes the full and complete Agreement of the Parties and there are no others, oral or written, except as herein contained. No alteration, amendment or variation of this Agreement’s terms shall bind the Parties unless made, executed and voted on by the Parties as required by Subchapter I of chapter 143 of the TLGC. A failure of the City or Officer [] to insist in any one or more instances upon performance of any terms or condition of this Agreement shall not be considered as a waiver or relinquishment of the right of the City or the Association to future performance of any such term or condition, and the obligations of the City and the Association to such future performance shall continue in full force and effect. [Emphasis supplied.]

Officer Davidsaver contends that the plain meaning of this provision gives police officers the authority to insist upon the performance of the Agreement, so police officers must have standing to sue under the Agreement.

Our primary concern when interpreting a contract is to ascertain and give effect to the parties’ intent. Perry Homes v. Cull, 258 S.W.3d 580, 606 (Tex.2008), cert. denied, — U.S. -, 129 S.Ct. 952, 173 L.Ed.2d 116 (2009). We therefore focus on the language used in the contract because that is the best indication of the parties’ intent. See id. We examine the entire contract in an effort to harmonize and effectuate all of its provisions so that none are rendered meaningless. Seagull Energy E & P, Inc. v. Eland Energy, Inc., 207 S.W.3d 342, 345 (Tex.2006). Therefore, we do not give controlling effect to any single provision; instead, we read all of the provisions in light of the entire agreement. See id.

The Agreement itself is clear: the definition of “Parties” refers only to the City and the Association, not to police officers. The Agreement’s preamble states that the Agreement is entered into by the City and the Association and that the Agreement’s “intent and purpose” is “to achieve and maintain harmonious relations between the Parties and discuss issues of mutual concern.” The Agreement also provides a specific dispute resolution procedure “to provide a just and equitable method for resolving disagreements between the Parties regarding the interpretation of the provisions of this Agreement.” Article 8 of the Agreement, which details this dispute resolution procedure, provides that the first step of the procedure is set in motion by a police officer’s submitting a written dispute related to the interpretation of the Agreement to the Association. The Dispute Resolution Committee then meets to decide whether such a dispute actually exists; if the committee decides that the dispute does exist, then the Association prepares a formal written grievance and proceeds to step two of the dispute resolution procedure.

Examining the Agreement as a whole, as we must, we hold that the parties to the Agreement did not intend to give nonparty, individual police officers standing to sue under the Agreement. The dispute resolution procedure for resolving disagreements regarding the Agreement’s interpretation addresses disagreements between the Parties — -that is, the Association and the City — and not disagreements between individual police officers and the City. The fact that Article 19 contemplates that a police officer may fail to insist upon the Agreement’s performance does not automatically lead to a conclusion that the parties must have intended police officers to have standing. Rather, the mention of “Officer” in Article 19 is merely a recognition that dispute resolution proceedings under Article 8 can be instituted by an individual police officer’s written dispute, but even if no written dispute is submitted by a police officer, that lack of submission does not operate to waive any Party’s right to insist upon performance. Therefore, reading Article 19 in light of the entire agreement and not giving controlling effect to any single provision, we conclude that the Agreement does not give standing to individual police officers. See Seagull Energy, 207 S.W.3d at 345; see also City of Houston v. Williams, 290 S.W.3d 260, 270-71 (Tex.App.-Houston [14th Dist.] 2009, pet. granted) (holding that individual fee fighters did not have standing to sue for alleged breaches of an agreement between the fire fighters’ association and the city).

3. Interpreting the Intent of the Local Government Code

Officer Davidsaver also argues that the local government code gives him standing to sue because, regardless of the Agreement’s dispute resolution procedures, Sub-chapter I vests the district court with jurisdiction over his dispute as follows:

The district court of the judicial district in which the municipality is located has full authority and jurisdiction on the application of either party aggrieved by an act or omission of the other party related to a right, duty, or obligation provided by a written agreement.... The court may issue proper restraining orders, temporary and permanent injunctions, or any other writ, order, or process, including a contempt order, that is appropriate to enforce the agreement.

Tex. Loc. Gov’t Code Ann. § 143.306(c). But the very next section, titled “Agreement Supersedes Conflicting Provisions,” prioritizes the terms of a written agreement between a public employer and an association over the terms of the statute:

(a) An agreement under this subchap-ter supersedes a previous statute concerning wages, salaries, rates of pay, hours of work, or other terms and conditions of employment to the extent of any conflict with the statute.
(b) An agreement under this subchap-ter preempts any contrary statute, executive order, local ordinance, or rule adopted by the state or a political subdivision or agent of the state, including a personnel board, a civil service commission, or a home-rule municipality.
(c) An agreement under this subchap-ter may not diminish or qualify any right, benefit, or privilege of an employee under this chapter or other law unless approved by a majority vote by secret ballot of the members of the association recognized as a sole and exclusive bargaining agent.

Id. § 143.307. Officer Davidsaver acknowledges section 143.307 but asserts that the legislature could not have intended to construct a statute so that one section may overrule the immediately preceding section.

In construing statutes, we ascertain and give effect to the legislature’s intent as expressed by the statute’s language. City of Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex.2008). When the text is clear, it is determinative of that intent, Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex.2009) (op. on reh’g), and we give meaning to the language consistent with other provisions in the statute, Tex. Dep’t of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 642 (Tex.2004). Our practice when construing a statute is to recognize that the words that the legislature chooses should be the surest guide to legislative intent. Entergy, 282 S.W.3d at 437. We thus construe the text according to its plain and common meaning unless a contrary intention is apparent from the context or unless such a construction leads to absurd results. Hughes, 246 S.W.3d at 625-26. We also presume that the legislature intended a just and reasonable result by enacting the statute. Id. at 626 (citing Tex. Gov’t Code Ann. § 311.021(3) (Vernon 2005)).

We disagree with Officer Davidsaver’s contention that section 143.306 authorizes suit in district court regardless of the Agreement’s terms to the contrary. The text of section 143.307 plainly gives the City and the Association the authority to modify statutory terms and conditions of employment by agreement. Under this section, a validly executed agreement supersedes any conflicting statutory provisions and preempts any contrary statute. Further, the statute expressly states that “[a] municipality may not be denied local control over ... terms and conditions of employment, or other personnel issues on which the public employer and an association that is recognized as the sole and exclusive bargaining agent for all fire fighters or police officers in the municipality agree.” Tex. Loc. Gov’t Code Ann. § 143.303(a) (emphasis added). If the City and the Association cannot agree on how to modify a particular term or condition of employment, then that term or condition remains governed by applicable statutes, local ordinances, and civil service rules. See id.

In other words, the clear text of these two sections shows that the legislature’s intent was to enact a statute that established default terms and conditions of police officer employment but also granted local governments and police officer associations the power to modify those terms by mutual agreement. It is not an absurd result to recognize the legislature’s intent to allow a city to exercise some local control over police officer employment and to allow police officers, through an association serving as their sole and exclusive bargaining agent, to have some input in the process. We therefore conclude that while section 143.306 states that the district court has “full authority and jurisdiction” over a suit on the Agreement, it does not operate to grant the trial court jurisdiction over Officer Davidsaver’s cause of action in this case because the plain language of section 143.307 clearly allows the Agreement’s arbitration provision to preempt the statute’s authorization of suit in district court. See id. §§ 143.306-.307.

Similarly, we reject Officer Davidsaver’s argument that the district court has jurisdiction in this case because the local government code does not convey jurisdiction over his dispute to the Dispute Resolution Committee. Officer Davidsaver is correct that the local government code does not specifically designate the Dispute Resolution Committee as the entity with primary or exclusive jurisdiction over his dispute; rather, it is Article 8 of the Agreement that gives the Dispute Resolution Committee the power to evaluate a police officer’s complaint and decide whether the Association should escalate the dispute to the next step in the dispute resolution procedure. But the Agreement receives its authorization to establish this dispute resolution procedure as an alternative to lawsuits in district court from the local government code itself. See id. Accordingly, we conclude that the local government code does not give Officer Davidson standing to bring this dispute in district court.

D. Standing to Sue Because of the Association’s Alleged Breach of Duty of Fair Representation

Even if Officer Davidsaver has failed to show that either the Agreement or the local government code established his standing to sue, he may still survive a plea to the jurisdiction if he prevails on his argument that the Association, as his bargaining agent, breached its duty of fair representation in its handling of his grievance. See McNair v. U.S. Postal Serv., 768 F.2d 730, 735 (5th Cir.1985) (stating that if a union has breached its duty of fair representation, an employee’s right to seek redress in court is not foreclosed by the results of the grievance process). A union retains considerable discretion in processing the grievances of its members, but it must represent all employees fairly in its enforcement of a collective bargaining agreement. Landry v. Cooper/T. Smith Stevedoring Co., 880 F.2d 846, 852 (5th Cir.1989). A breach of this duty of fair representation occurs only when the union’s conduct toward an individual member “is arbitrary, discriminatory, or in bad faith.” Vaca v. Sipes, 386 U.S. 171, 190, 87 S.Ct. 903, 916, 17 L.Ed.2d 842 (1967).

Because a union has discretion in handling its individual members’ complaints, an employee has no absolute right to have his grievance taken to arbitration or to any other level of the grievance process. Landry, 880 F.2d at 852. An employee does, however, have the right to expect that his employer will not “arbitrarily ignore a meritorious grievance or process it in perfunctory fashion.” Vaca, 386 U.S. at 191, 87 S.Ct. at 917. Thus, the duty of fair representation imposes an obligation on a union to investigate a grievance in good faith and to prosecute a grievance with reasonable diligence unless it decides in good faith that the grievance lacks merit or for some other reason should not be pursued. Landry, 880 F.2d at 852. The critical question in determining whether a union has breached its duty of fair representation is whether its conduct was arbitrary, discriminatory, or in bad faith, so that it undermined the fairness or integrity of the grievance process. Id. (citing Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 567, 96 S.Ct. 1048, 1058, 47 L.Ed.2d 231 (1976)).

Accordingly, to survive appellants’ plea to the jurisdiction, Officer Davidsaver was required to plead facts affirmatively showing that the Association’s handling of his grievance was arbitrary, discriminatory, or in bad faith. Officer Davidsaver does not allege that the Association or its Dispute Resolution Committee was hostile toward him or that he was treated unfairly during the dispute resolution proceedings. Instead, he points solely to the Association’s refusal to file his dispute as a formal grievance as evidence establishing a breach of its duty of fair representation, claiming that the Association “failed to represent the interests of Davidsaver in any way” and “refused to become involved in the grievance process” for him by declining to escalate his complaint.

The decision whether to escalate Officer Davidsaver’s complaint, however, was within the Association’s discretion. See Landry, 880 F.2d at 852. Furthermore, the only evidence in the record of the manner in which the Association handled Officer Davidsaver’s complaint shows that it properly followed the Agreement’s dispute resolution procedure. It notified Officer Davidsaver of the date and time that the Dispute Resolution Committee would meet to review his dispute; it encouraged him to appear at the meeting and present his dispute in person to the committee; it allowed him to be represented by his counsel at the meeting; it considered his statement as well as exhibits presented by his counsel; it provided all committee members with copies of his original written dispute, the exhibits, and the Agreement; and then, after reviewing the information and deliberating, it took a vote on the issue of whether to prepare a formal written grievance for the police chief. In light of these undisputed facts, the Association’s decision not to file a formal written grievance, standing alone, is insufficient to establish that its conduct was arbitrary, discriminatory, or in bad faith. Accordingly, we conclude that the evidence fails to raise a fact question on the issue of breach of the Association’s duty of fair representation and hold that Officer Da-vidsaver has failed to establish standing under this theory as well. See Miranda, 133 S.W.3d at 227-28; Bland, 34 S.W.3d at 555.

IV. CONCLUSION

Because the pleadings and the undisputed evidence show that Officer Davidsaver does not have standing to sue under either the Agreement or the applicable statutes as a matter of law, we sustain appellants’ issue and hold that the trial court erred by denying their plea to the jurisdiction. We reverse the trial court’s order denying appellants’ plea to the jurisdiction and dismiss Officer Davidsaver’s claims against appellants.

      . That same day, the trial court also issued written orders denying Officer Davidsaver's applications for a temporary restraining order and a temporary injunction.

      . The Association did not join appellants in filing their plea to the jurisdiction and is not a party to this appeal.

      . This subchapter of Chapter 143, Subchapter I, applies to municipalities with a population of 460,000 or more that operate under a city manager form of government. The parties do not dispute that Fort Worth qualifies. See U.S. Census Bureau, U.S. Dep't of Commerce, Profiles of General Demographic Characteristics: 2000 Census of Population and Housing: Texas 713 (2001), available at http://www.census.gov/prod/cen2000/dpl/2kh48.pdf (reporting Fort Worth’s total population as 534,-694); Fort Worth, Tex., Code Part I, ch. 5, § 1 (1986) (requiring the city council to appoint a city manager, who shall be the chief administrative and executive officer of the city).

      .As required by the local government code, the resolution adopting this proposition was preceded by an election at which all qualified voters of Fort Worth could vote on the proposition. The city council canvassed the results of the election and found that the proposition had passed by a majority of the votes cast. See id. § 143.3015.

      . Section 143.304 provides that the public employer may recognize an association that submits a petition signed by a majority of the paid police officers in the municipality, excluding the head and assistant department heads of the department, as the sole and exclusive bargaining agent for all of the covered police officers unless recognition of the association is withdrawn by a majority of the covered police officers. See id. This resolution recited that the Association had presented a petition, validly signed by a majority of the paid police officers, requesting the Association to be recognized as the sole and exclusive bargaining agent on behalf of all Fort Worth police officers. Fort Worth, Tex., Res. 3451-01-2007 (Jan. 30, 2007).

      . Article 15, section 3B states,
      Effective upon the expiration or earlier exhaustion of any promotional eligibility list for sergeant, Lieutenantf,] or Captain in existence on October 1, 2009, an Officer will not be eligible to take a promotional eligibility examination for promotion to sergeant, Lieutenant!,] or Captain unless the Officer has served in the Department in the next lower classification ... for at least three (3) years immediately before the date the promotional eligibility examination is held.
      Officer Davidsaver's position below was that the September 2009 exam promotional eligibility list had not expired or been exhausted before October 1, 2009, so the Agreement should be interpreted to read that the September 2009 exams would be scored according to the local government code, not the Agreement.

      . The Agreement defines an "Officer” as a sworn police officer employed in the City of Fort Worth Police Department who is covered by the Agreement pursuant to Subchapter I of Chapter 143 of the local government code. See Section III.A., supra.

      . The Agreement specifies that " 'Party' or ‘Parties' means the City of Fort Worth and the Fort Worth Police Officers’ Association.”

      . In step two, the Association delivers its written grievance to the chief of police; in step three, the Association delivers it to the civil service director, who then forwards it to the city manager. If the dispute remains unresolved, the next step is binding arbitration. See Tex. Loc. Gov’t Code Ann. § 143.306(b) (stating that an agreement between a public employer and an association "may establish a procedure by which the parties agree to resolve disputes related to a right, duty, or obligation provided by the agreement, including binding arbitration on interpretation of the agreement”).

      . Indeed, proponents of the law pointed out that giving cities local control through negotiated agreements "could help both city management and city employees by establishing principles or guidelines that would not have to be revisited annually or with changing administrations and, in doing so, could help stabilize the budget process and other city deliberations.” House Research Org., Bill Analysis, Tex. S.B. 863, 74th Leg., R.S. (1995). Furthermore, "collective bargaining is a legitimate form of negotiation^] and associations can represent important employee and public priority viewpoints that may be overlooked even by the most conscientious city manager.” Id.

      . The parties apparently assume that federal law applies to Officer Davidsaver's argument. Stale law causes of action for violation of a collective bargaining agreement are displaced by section 301 of the Labor Management Relations Act of 1947. 29 U.S.C.A. § 185(a) (West 1998); Metro. Transit Auth. v. Buries, 79 S.W.3d 254, 256-57 (Tex.App.-Houston [14th Dist.] 2002, no pet.). Further, a labor organization's duty of fair representation is a statutory one imposed by the National Labor Relations Act. 29 U.S.C.A. §§ 151-69 (West 1998); Vaca, 386 U.S. at 177, 87 S.Ct. at 910. However, the City is specifically exempted from both these acts, so it is questionable whether this statutory duty extends to the Association. See 29 U.S.C.A. §§ 142(3), 152(2) (both excluding “any State or political subdivision thereof’’ from the statutes’ definition of "employer”), 152(5) (defining a labor organization as one that deals with “employers”).
      Regardless, we agree with the concept that a union's duty of fair representation "arises by implication as a necessary corollary to the right of exclusive representation.” Bowman v. Tenn. Valley Auth., 744 F.2d 1207, 1212 (6th Cir.1984) (holding that a federal corporation employees’ union has a federal common law duty of fair representation identical to that of a union whose members all work for a private employer), cert. denied, 470 U.S. 1084, 105 S.Ct. 1843, 85 L.Ed.2d 142 (1985). Accordingly, we may look to the well-developed body of federal labor law for guidance in connection with Officer Davidsaver's allegations of breach of the Association's duty of fair representation. See Flores v. Metro. Transit Auth., 964 S.W.2d 704, 707 (Tex.App.Houston [14th Dist.] 1998, no pet.) (applying the federal statute of limitations to a claim against a public employer, even though the public employer was exempt from federal labor acts, because the claim involved interpretation of a labor agreement and strongly resembled a federal unfair labor practices charge).

      . Appellants also assert that the trial court had no jurisdiction over Officer Davidsaver's claims because he had not exhausted the Agreement’s dispute resolution process before filing suit. Because we have determined that the trial court had no jurisdiction because Officer Davidsaver lacked standing to sue, we need not reach this argument. See Tex. R.App. P. 47.1.


source: Caselaw Access Project

author: MACKEY K. HANCOCK, Justice. PATRICK A. PIRTLE, Justice,

license: Public Domain

text:
    Alton ARMSTRONG, Appellant, v. The STATE of Texas, Appellee.
    No. 07-09-00091-CR.
    Court of Appeals of Texas, Amarillo, Panel A.
    July 29, 2010.
    Rehearing Overruled Aug. 30, 2010.
    Discretionary Review Granted Dec. 8, 2010.
    John Bennett, Attorney at Law, Amarillo, TX, for Appellant.

      Katherine L. Levy, Assistant District Attorney, Amarillo, TX, for Appellee.
    Before CAMPBELL and HANCOCK and PIRTLE, JJ.
   MEMORANDUM OPINION

MACKEY K. HANCOCK, Justice.

Appellant, Alton Armstrong, appeals from an adjudication of guilt of the offense of aggravated assault with a deadly weapon. Through three issues, appellant generally contests court costs assessed against him. We overrule appellant’s first issue, decline to address the remaining issues, and affirm the trial court’s judgment.

Factual and Procedural Background On August 8, 2005, appellant entered a plea of guilty to the offense of aggravated assault with a deadly weapon pursuant to a plea agreement. As part of the plea agreement, no finding of guilt was entered against appellant, and he was placed on deferred adjudication community supervision for two years. Subsequently, the community supervision order was amended on January 25, 2006, and again on July 6, 2007. Thereafter, the State filed a motion to proceed to adjudication on April 23, 2008. This resulted in an order, entered on August 11, 2008, continuing appellant on community supervision but modifying and extending the community supervision. On October 17, 2008, the trial court again entered an order amending the terms and conditions of community supervision. Finally, on November 18, 2008, the State filed a motion to proceed to adjudication that resulted in the judgment from which appellant appeals. At the hearing on the State’s motion, on February 26, 2009, appellant pleaded true to the allegations specifying the violations of community supervision alleged by the State. The trial court sentenced appellant to serve six years in the Institutional Division of the Texas Department of Criminal Justice.

The essence of appellant’s issues concerns the relationship between the written judgment and the bill of cost submitted by the district clerk. His first issue asks this Court to determine whether, absent written or oral incorporation of the bill of costs in the judgment, the bill of costs is part of the judgment or otherwise of any effect. Second, appellant asks whether, if the bill of cost has any effect, there is sufficient evidence in the record to support an order for appellant to pay court-appointed attorney’s fees. Finally, appellant asks, in the alternative, whether the bill of costs constitutes an order that appellant pay a specific sum in court-appointed attorney’s fees.

Assessment of Court Costs

By his first issue, Appellant contends that, absent incorporation by reference in the judgment, the clerk’s bill of costs is of no force or effect. The judgment in question orders appellant to pay “all fines, court costs, and restitution as indicated above,” but the “court costs” field in the judgment is blank. The clerk’s record contains a bill of costs issued by the district clerk reflecting total costs of $2,258.00.

Except for $1,900.00 in attorney’s fees for his court-appointed attorneys, which we address later in this opinion, all the costs listed on the clerk’s bill of costs appear to be among those listed in section 102.021 or section 102.041 of the Government Code. Tex. Gov’t Code Ann. §§ 102.021, 102.041 (Vernon 2005 and Supp.2009). The obligation of a person to pay such costs, and the obligation of the court clerk to collect them, is established by statute, not court order. See, e.g., Tex. Code Crim. Proc. Ann. art. 102.005 (Vernon 2005) (providing, as to fee for services of the clerk of the court, that a defendant convicted in the court “shall pay” the fee); Tex. Gov’t Code Ann. § 102.021 (providing “clerk of a district court shall collect fees and costs on conviction of a defendant”).

As stated by the Texas Court of Criminal Appeals, those fees are an assessment against a convicted defendant, not as an additional penalty for the crime committed, but as a non-punitive “recoupment of the costs of judicial resources expended in connection -with the trial of the case.” Weir v. State, 278 S.W.3d 364, 366 (Tex.Crim.App.2009). Because those costs are non-punitive, the court held they did not have to be included in the trial court’s oral pronouncement of sentence as a precondition to their inclusion in the trial court’s written judgment. Id. at 367. We further conclude that because the costs, other than the attorney’s fees, of which appellant complains are his predetermined, legislatively-mandated obligations, resulting from his conviction, the clerk’s certified bill of costs imposes an obligation upon him to pay the costs, again other than attorney’s fees, whether or not that bill is incorporated by reference into the judgment. Id. at 366. Accordingly, we overrule appellant’s first issue.

Collection of Costs

Appellant’s remaining two conditional issues are more nearly related to the terms of the trial court’s judgment, but we find we are not permitted to address these matters in this appeal because they concern collection, rather than assessment, of costs. Our high courts have drawn a distinction between these two matters, and we adhere to that distinction by respectfully declining to address civil matters in this direct appeal from a criminal conviction. See Harrell, 286 S.W.3d at 318; Johnson, 280 S.W.3d at 869.

So, to the extent that appellant’s issues raise matters relating to the ability to collect costs, we do not address such matters; they are properly a matter for a civil proceeding related to the collection of costs under the procedure outlined by the Texas Government Code. See Tex. Gov’t Code Ann. § 501.014(e) (Vernon Supp. 2009). In the record before us, there is no order from the convicting court authorizing withdrawal of funds from appellant’s inmate trust account. In other words, no effort has been made to collect these costs. Consequently, any analysis concerning the ability to collect costs would be advisory in nature, and we will not render such a judgment.

“Judicial power is the power of a court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for a decision.” Garrett v. State, 749 S.W.2d 784, 803 (Tex.Crim.App.1988) (op. on reh’g). Judicial power does not include the power to issue advisory opinions. Id. The underlying case between the parties is not one that involves questions of collection of court costs. Any attempt to address issues concerning the ability to collect court costs would result in the rendering of an advisory opinion because we are not faced with an appeal of an order authorizing the withdrawal of funds from appellant’s trust account, a matter of enforcement or collection and outside the purview of a direct appeal of a criminal conviction. See Harrell, 286 S.W.3d at 318. That said, we do not address the substance of appellant’s second and third conditional issues. See Dix v. State, 289 S.W.3d 333, 335 (Tex.App.Eastland 2009, pet. ref'd) (noting that appellant did not contend that trial court erred and did not challenge his conviction and declining to address points of error that would result in an advisory opinion); see also Tex.R.App. P. 47.1 (requiring appellate court to address “every issue raised and necessary to final disposition of the appeal”).

Conclusion

Having overruled appellant’s first issue and having determined that we may not address the remaining issues concerning the collection of court costs, we affirm the trial court’s judgment.

PIRTLE, J., concurring.

PATRICK A. PIRTLE, Justice,

concurring.

The majority concludes, and I agree, that a bill of costs imposes an obligation upon a criminal defendant to pay legislatively mandated “court costs,” irrespective of whether or not that bill of costs is incorporated by reference into the judgment. The majority then proceeds to pre-termit Appellant’s remaining issues by concluding that “to the extent that appellant’s issues raise matters relating to the ability to collect costs,” any analysis of the correctness of that bill of costs would improperly invade the distinction drawn by our high courts as it pertains to the collection of court costs. See Harrell v. State, 286 S.W.3d 315, 318 (Tex.2009); Johnson v. The Tenth Judicial District Court of Appeals, 280 S.W.3d 866, 869 (Tex.Crim.App.2008). While I do not disagree with this position, I write separately to address Appellant’s issues to the extent that they may be construed as raising issues unrelated to the collection of costs.

Assessment of Court Costs

Unfortunately, the term “assessment of costs” has been loosely used by both courts and lawyers to refer to both the judicial pronouncement of an obligation to pay court costs, as well as the administrative process of preparing a “bill of costs” by a county or district clerk. Further complicating the discussion of the assessment of costs of court is the fact that there are at least two distinctive types of costs: (1) judicially determined costs, such as the reimbursement of court-appointed attorney’s fees, which are collectable only if judicially pronounced and contained within a written judgment; and (2) legislatively mandated costs, such as filing fees, witness fees, and library fees, which are collectable irrespective of whether or not they are judicially pronounced. Weir v. State, 278 S.W.3d 364, 366 (Tex.Crim.App.2009).

Legislatively Mandated Costs of Court

As stated by the Texas Court of Criminal Appeals in Weir, legislatively mandated court costs are an assessment against a convicted defendant, not as an additional penalty for the crime committed, but as a nonpunitive “recoupment of the costs of judicial resources expended in connection with the trial of a case.” Id. at 366. Because those costs are nonpunitive, the court held they did not have to be included in the trial court’s oral pronouncement of sentence as a precondition to their inclusion in the trial court’s written judgment. Id. at 367. As predetermined, legislatively mandated obligations, the entry of a judgment ordering the payment of those sums is nothing more than a ministerial duty, imposed by law. In Weir, the Court left open the question of whether or not such costs needed to be included in the trial court’s written judgment in order to be collectable. As the majority correctly concludes, the issue of collectability is an issue which we too need not reach.

Judicially Determined Court Costs

The reimbursement of court-appointed attorneys’ fees is a judicially determined cost of court that depends not only upon a judicial determination of its amount, but also upon a judicial determination of the defendant’s ability to pay. Tex.Code Crim. Proc. Ann. art. 26.05(g) (Vernon Supp.2009); Mayer v. State, 309 S.W.3d 552 (Tex.Crim.App.2010). As is often the case, once a trial court enters an order to the county treasurer to pay the defendant’s court-appointed attorneys’ fees, the district or county clerk includes those sums in a bill of costs pursuant to article 26.05(f) of the Texas Code of Criminal Procedure, without the trial court ever having been asked to consider, much less having actually decided, the defendant’s ability to pay. What then is a defendant to do if the bill of costs appears to impose a discretionary judicially determined obligation which the trial court has not ordered the defendant to repay by oral pronouncement or written judgment?

With increasing frequency, this Court is being asked to review, in one context or another, that very question. See Mayer v. State, 274 S.W.3d 898 (Tex.App.-Amarillo 2008), aff'd, Mayer v. State, 309 S.W.3d 552 (Tex.Crim.App.2010) (direct appeal of judgment ordering defendant to reimburse the county for a specified amount of court-appointed attorneys’ fees); Harrell v. State, Nos. 07-06-0469-CR, 07-06-0470-CR, 2007 WL 2301350, 2007 Tex.App. LEXIS 6416 (Tex.App.-Amarillo Aug. 13, 2007), rev’d, Harrell v. State, 286 S.W.3d 315 (Tex.2009) (direct appeal of order denying indigent defendant’s motion to rescind a trial court notification to withdraw sums from the inmate’s trust account maintained by the Texas Department of Criminal Justice pursuant to § 501.014(e) of the Texas Government Code); Palomo v. State, 322 S.W.3d 304 Nos. 07-10-0181-CV, 07-10-0192-CV, 07-10-0123-CV, 2010 Tex.App. LEXIS 3757, (Tex.App.-Amarillo 2010, no pet. h.) (direct appeal of withdrawal notification pursuant to § 501.014(e) of the Texas Government Code, where attorneys’ fees were contained in a bill of costs but not included in a judgment which contained a blank for court costs and then ordered that the State recover “all court costs in this prosecution expended”); Smith v. State, Nos. 07-09-0009-CR, 07-09-0010-CR, 2010 WL 2010914, 2010 Tex.App. LEXIS 3846 (Tex.App.-Amarillo May 20, 2010, no pet. h.) (direct appeal of judgment, where attorneys’ fees were contained in a bill of costs but not included in a judgment containing a blank for court costs and then ordering the appellant to pay court costs “as indicated above”). Until trial courts, court clerks, and prosecuting attorneys (the party most often responsible for the drafting of the judgment in a criminal proceeding) begin paying attention to the details of the assessment of court-appointed attorneys’ fees as costs of court, these problems will continue to arise.

The Judgment

Stating it kindly, the judgment in this ease was poorly drafted. As to the issue of “court costs,” the judgment contains a summary provision which leaves blank the amount of court costs and then “[ojrders Defendant to pay all fines, court costs, and restitution as indicated above.” (Emphasis added). Unfortunately, the judgment entered in this case is not atypical. Like many of the judgments reviewed by this Court, this document shows little or no concern for detail when it comes to the assessment of court costs. According to the certified bill of costs contained in the record in this case, this judgment neither correctly states the amount of predetermined legislatively mandated costs; nor does it correctly assess any discretionary, judicially determined costs of court such as the reimbursement of court-appointed attorneys’ fees.

The Issues

It is in the context of this debate that Appellant raises three issues: (1) absent incorporation by reference in the judgment, is a certified bill of costs part of the judgment or otherwise effective, (2) was the evidence presented in this case sufficient to impose on Appellant an obligation to repay court-appointed attorneys’ fees, and (3) is a certified bill of costs a judicial determination of a specific sum payable? As the majority notes, the essence of these issues is “the relationship between the written judgment and the bill of costs submitted by the district clerk.”

Issue One — Incorporation of Bill of Costs Into the Judgment

By his first issue, Appellant contends that, absent incorporation by reference in the judgment, the clerk’s bill of costs is of no force or effect. As stated by the majority, a certified bill of costs imposes an obligation upon a criminal defendant to pay court costs, irrespective of whether or not that bill is incorporated by reference into the judgment. Smith, 2010 WL 2010914, at *7, 2010 Tex.App. LEXIS 3846, at *21. See generally Tex.Code Crim. Proc. Ann., arts. 103.001 and 103.003 (Vernon 2006). See also Tex. Gov’t Code Ann., §§ 102.001-103.033. (Vernon 2005 and Supp.2009). Because court costs are imposed as a matter of legislative directive, they do not need to be included in the oral pronouncement of sentence or the written judgment in order to be imposed upon a convicted defendant. See Weir, 278 S.W.3d at 367. Therefore, like the majority, I would find that a certified bill of costs need not be incorporated into the judgment in order to be effective. It should be noted, however, that an effective bill of costs is not the functional equivalent of a correct bill of costs and nothing in this opinion should be construed as reviewing, approving, or adopting the clerk’s bill of costs in this case. As the majority notes, that issue is more correctly reserved for a collection dispute. Appellant’s first issue should be overruled.

Issue Two — Reimbursement of Court-Appointed Attorneys’ Fees

By his second issue, Appellant contends he cannot be obligated to repay the State for the costs of his court-appointed attorney without a judicial determination, based upon competent evidence, that he has financial resources that enable him to offset, in whole or in part, the costs of legal services provided. Pursuant to article 26.05(g) of the Texas Code of Criminal Procedure, if a trial court determines that a defendant has financial resources that enable him to repay, in whole or in part, the costs of legal services provided by a court-appointed attorney, the court has authority to order a convicted defendant to pay “as court costs the amount that it finds the defendant is able to pay.” See Tex. Code Crim. Proc. Ann. art. 26.05(g) (Vernon Supp. 2009).

The record before us does not contain a determination or finding that Appellant had any financial resources or was “able to pay5’ any amount of attorneys’ fees. What the record does reflect is that on four separate occasions, February 23, 2005, May 28, 2008, January 30, 2009, and April 6, 2009, the trial court was sufficiently convinced of Appellant’s indigence to appoint an attorney to represent him during the various proceedings in this cause. Unless a material change in his financial resources occurs, once a criminal defendant has been found to be indigent, he is presumed to remain indigent for the remainder of the proceedings. Tex. Code Crim. Proc. Ann. art. 26.04(p) (Vernon Supp. 2009). Therefore, because there is evidence of record demonstrating that, before the final revocation of community supervision and immediately following rendition of judgment, Appellant was indigent and qualified for court-appointed counsel, we must presume that his financial status has not changed.

Without evidence demonstrating Appellant’s financial ability to offset the costs of legal services provided, obligating him to reimburse the State for the costs of his court-appointed attorney would be error. See Mayer, 309 S.W.3d at 557. But, as stated above, the judgment itself does not pronounce nor order the payment of any attorney’s fees. Therefore, the judgment does not contain a misstatement of discretionary court costs. Accordingly, Appellant’s second issue should be overruled.

Issue Three — Assessment of a Specific Identifiable Amount of Attorney’s Fees

Appellant’s third and final issue contends the trial court erred by failing to pronounce a specific and precise amount of attorneys’ fees it its written judgment. In support of this contention, Appellant relies upon the decision in Burke v. State, 261 S.W.3d 438, 439 (Tex.App.-Austin 2008, no pet.) (holding that a judgment assessing an undetermined amount of attorneys’ fees was error where the trial court did not order the defendant to pay a specific amount of attorneys’ fees in either its oral pronouncement or written judgment). Burke is clearly distinguishable from the facts of this case because Burke involved a written judgment that stated attorneys’ fees were “to be determined.” Here, even though the judgment in question contains a blank for court costs and does not specifically mention attorneys’ fees, the certified Bill of Costs contained in the Clerk’s Record indicates that Appellant was required to pay court-appointed attorneys’ fees of $1,900.00. Because the bill of costs does specify a definite and specific amount of attorneys’ fees, we are not faced with the lack of specificity issue addressed in Burke. Accordingly, Appellant’s third issue should be overruled.

Conclusion

I concur with the majority that the judgment of the trial court be affirmed.

      . See Tex Penal Code Ann. § 22.02(a)(2)(Vernon Supp.2009).

      . Appellant contrasts the judgment in this case with that in Perez v. State, 280 S.W.3d 886, 887 (Tex.App.-Amarillo 2009, no pet.), which ordered that the State “recover of the defendant all costs in this proceeding incurred, as set out in the Bill of Costs attached hereto.... ’’

      . Our law permits the Texas Department of Criminal Justice to withdraw funds from an inmate’s trust account when such has been authorized by the trial court of conviction and is pursuant to an order by the court to pay items included in a prioritized statutory list. Tex Gov't Code Ann. § 501.014(e).

      . See generally Tex. Gov’t Code Ann. §§ 101.021, 102.041 (Vernon 2005 and Supp. 2009).

      . The bill of costs contained in the Clerk’s Record indicates that Appellant was required to pay total costs of $2,258.00, including legislatively mandated fees of $358.00 and court-appointed attorneys’ fees of $1,900.00. Although the bill of costs also reflects prior payments of $80.00, that figure affects only the amount due and not the amount properly subject to assessment.


text:
    Robert CROWSON, Appellant, v. Steve BOWEN and Leigh Bowen, Appellees.
    No. 2-09-294-CV.
    Court of Appeals of Texas, Fort Worth.
    July 29, 2010.

      Ted Machi & Associates and Barry G. Johnson, Arlington, TX, for Appellant.
    Thompson, Coe, Cousins & Irons, L.L.P., Jacquelyn Chandler, Matthew G. Rittmayer, Dallas, TX, for Appellees.
    PANEL: GARDNER and McCOY, JJ.; and DIXON W. HOLMAN (Senior Justice, Retired, Sitting by Assignment).
   OPINION

BOB McCOY, Justice.

I. Introduction

In one point, Appellant Robert Crowson appeals the trial court’s take nothing judgment on his negligence claim against Ap-pellees Steve and Leigh Bowen (collectively “the Bowens”). We affirm.

II.Factual and Procedural History

Crowson filed suit against the Bowens, claiming he was the victim of a dog attack proximately caused by the Bowens’ negligent failure to secure their rottweiler, Roxy. The Bowens entered a general denial.

At the time of the incident, Crowson lived next door to the Bowens in a shed behind Howard Koon’s house. Two fences separated the Bowens’ yard from Koon’s yard. The Bowens had a four-foot chain-link fence surrounding their property, and Koon had a wooden fence that was missing a number of planks around his.

At trial, Crowson testified that he walked along a path between the shed and Koon’s house several times a day for various reasons, including to use Koon’s shower and restroom. According to Crowson, on one of those occasions and without provocation from him, Roxy jumped over the Bowens’ chain-link fence, entered Koon’s yard through one of the gaps in the wooden fence, and bit him on the nose. The Bowens testified that Roxy was no more than two feet six inches tall, had hip dysplasia, and could not jump to the top of the chain-link fence.

The trial court admitted Crowson’s medical records pertaining to the bite. The records contained notes written by a nurse that read, “per EMS: [patient] drinking [with] Mends, neighbor on vacation, [patient] doesn’t like dog, started shooting [with] bebe [sic] gun, got too close to dog, dog bit him.” Crowson admitted drinking at least eight beers before the incident but maintained that he did not shoot the BB gun until after Roxy bit him.

At the charge conference, Crowson objected to the submission of his negligence to the jury, arguing that neither the evidence nor the pleadings supported the question. Over Crowson’s objections, the trial court submitted the following question to the jury:

Did the negligence, if any, of those named below proximately cause the occurrence in question?
Answer “Yes” or “No” as to each of the following:
a.Steve Bowen:
b.Leigh Bowen:
c.Robert Crowson:

A separate question on damages instructed the jury not to reduce any damages it found as a result of the negligence, if any, of Crowson.

The jury found: (1) the Bowens were not the proximate cause of the occurrence, (2) Crowson was the proximate cause of the occurrence, and (3) there were zero dollars in damages. The trial court signed a take nothing judgment and subsequently denied Crowson’s motion for new trial. This appeal followed.

III. Jury Charge Error

In his sole point, Crowson asserts that the “[Bowens] did not plead that [Crowson] was negligent and therefore the issue of [his] negligence should not have been submitted to the jury.”

Jury questions must be supported by the pleadings. Gibbins v. Berlin, 162 S.W.3d 335, 341 (Tex.App.-Fort Worth 2005, no pet.); McReynolds v. First Office Mgmt., 948 S.W.2d 342, 345 (Tex.App.-Dallas 1997, no writ); see also Tex.R. Civ. P. 278 (“The court shall submit the questions, instructions, and definitions in the form provided by Rule 277, which are raised by the written pleadings and the evidence.”). Although issues may be tried by consent, “written pleadings, before the time of submission, shall be necessary to the submission of questions.... ” Tex.R. Civ. P. 67; Gibbins, 162 S.W.3d at 342. Trial by consent does not occur when the complaining party properly objects to the submission of issues not raised by the pleadings. Harkey v. Tex. Employers’ Ins. Ass’n, 146 Tex. 504, 509, 208 S.W.2d 919, 922 (1948). Stated differently, trial by consent is precluded where proper objection is made on the record before submission to the jury. Tex. Indus., Inc. v. Vaughan, 919 S.W.2d 798, 803 (Tex.App.Houston [14th Dist.] 1996, writ denied).

We review claimed error in the jury charge under an abuse of discretion standard. In re V.L.K., 24 S.W.3d 338, 341 (Tex.2000). A clear abuse of discretion exists when the trial court submits a jury question that is neither supported by the pleadings nor tried by consent. Stephanz v. Laird, 846 S.W.2d 895, 902 (Tex.App.-Houston [1st Dist.] 1993, writ denied); see also Webb v. Glenbrook Owners Ass’n, 298 S.W.3d 374, 380 (Tex.App.-Dallas 2009, no pet.) (op. on reh’g).

Here, Crowson filed suit against the Bowens for negligence. The Bowens responded with a general denial, which did not raise the issue of Crowson’s negligence. At the charge conference, Crowson objected to the submission of his negligence to the jury on the ground that the pleadings did not support it. See Harkey, 146 Tex. at 509, 208 S.W.2d at 922 (concluding issues were not tried by consent when appellant made no objection to the evidence supporting unpleaded issues but did object to the submission of the issues to the jury). Despite Crowson’s objection, the Bowens did not seek leave to amend or attempt to amend their answer prior to submission of the jury charge. Therefore, the trial court abused its discretion by submitting a question pertaining to Crow-son’s negligence that was neither supported by the pleadings nor tried by consent. Webb, 298 S.W.3d at 380; Stephanz, 846 S.W.2d at 902.

To obtain a reversal based on the trial court’s error, however, Crowson must show that the error probably caused the rendition of an improper judgment or probably prevented him from properly presenting his ease to this court. See Tex. R.App. P. 44.1(a); Romero v. KPH Consolidation, Inc., 166 S.W.3d 212, 225 (Tex.2005). Submission of an improper jury question can be harmless error if the jury’s answers to other questions render the improper question immaterial. City of Brownsville v. Alvarado, 897 S.W.2d 750, 752 (Tex.1995); see Pojar v. Cifre, 199 S.W.3d 317, 348 (Tex.App.-Corpus Christi 2006, pet. denied) (noting a line of cases holding that when a jury finds no damages, findings on liability are immaterial and harmless). A jury question is immaterial when its answer can be found elsewhere in the verdict or when its answer cannot alter the effect of the verdict. Alvarado, 897 S.W.2d at 752. Submission of an immaterial issue is not harmful unless it confuses or misleads the jury, which we determine by considering its probable effect on the jury in light of the charge as a whole. Id.

Here, reading the charge as a whole, we do not find that the question submitted was ambiguous or misleading. The question asked the jury to determine separately the negligence of the Bowens and Crow-son. A finding that the Bowens were not the proximate cause of the occurrence in question exonerated them from liability. Consequently, the question pertaining to Crowson’s negligence was immaterial — in other words, any answer pertaining to Crowson’s negligence would not have altered the verdict. See Alvarado, 897 S.W.2d at 752-53 (holding question of contributory negligence was harmless because once jury found defendant did not proximately cause the occurrence in question, defendant was exonerated of liability such that neither an affirmative nor a negative answer to plaintiffs negligence could have altered the verdict). Furthermore, putting the findings on liability aside, the jury unconditionally considered damages and awarded Crowson zero dollars in damages, which rendered the jury’s findings on liability immaterial and harmless. See Mitchell v. Chaparral Chrysler-Plymouth Sales, Inc., 572 S.W.2d 359, 360-61 (Tex.Civ.App.-Fort Worth 1978, writ ref'd n.r.e.) (concluding findings on issues of liability are immaterial and harmless when jury finds no damages). Thus, the submission of Crowson’s negligence to the jury was not harmful error. Id. Accordingly, we overrule Crowson’s sole point.

IV. Conclusion

Having overruled Crowson’s sole point, we affirm the trial court’s judgment.