author: FEDERICO G. HINOJOSA, Justice.

text:
    Guadalupe Olivera VEGA, Jose Patricio Vega, and Rocio De Jesus Vega Figueroa, Appellants, v. Frank DAVILA, Appellee.
    No. 13-94-422-CV.
    Court of Appeals of Texas, Corpus Christi.
    Oct. 5, 2000.
    Rehearing Overruled Dec. 7, 2000.

      Andrew M. Greenwell, Harris & Green-well, Corpus Christi, for Appellants.
    Frank A. Lazarte, Corpus Christi, Hector Rene Gonzalez, Law Offices of Hector Rene Gonzalez, Corpus Christi, for Appel-lee.
    Before Justices DORSEY, HINOJOSA, and RODRIGUEZ.
   OPINION ON MOTION FOR REHEARING

FEDERICO G. HINOJOSA, Justice.

We previously issued an opinion dismissing this appeal for want of jurisdiction. Appellants, Guadalupe Olivera Vega, Jose Patricio Vega, and Rocío de Jesus Vega Figueroa (“the Vegas”), subsequently filed a motion for rehearing, urging us to reconsider our decision to dismiss this case for want of jurisdiction. We grant the motion for rehearing, withdraw our previous opinion, and substitute the following as the opinion of this Court.

The Vegas appeal from an order of the trial court denying their motion to quash subpoenas issued for their depositions. Appellee, Frank Davila, served subpoenas on the Vegas for their depositions in a tortious interference with a contract suit. The Vegas are not parties to the suit. The Vegas were served while they were in Corpus Christi, Nueces County, Texas, giving their depositions in another lawsuit. The Vegas filed a motion to quash the subpoenas on the basis that they were immune from service of process. After a hearing, the trial court denied the Vegas’s motion to quash. By four points of error, the Vegas contend the trial court erred in denying their motion to quash the subpoenas because: (1) they were improperly served; (2) the subpoenas were served upon them when they were immune from service of process; (3) the time and place of the depositions were unreasonable; and (4) the trial court improperly granted affirmative relief to Davila sua sponte when there was no motion before the court. We affirm the trial court’s order.

A. BACKGROUND

In 1986, the Vegas employed Davila to represent them in a lawsuit which was later filed in Starr County, Texas. The lawsuit arose out of an automobile collision. In 1991, the Vegas sued Davila for legal malpractice in Starr County (“the Vega/Davila case”). On August 4, 1994, the Vegas, by agreement, traveled from their home in Mexico City, Mexico to Corpus Christi, to give depositions in the legal malpractice suit. On August 6, 1994, the Vegas were at the Corpus Christi airport, waiting to return to Mexico City, when they were served with subpoenas for their depositions in a third case. The third case was filed by Davila in 1993, against Daniel V. Alfaro, Robert Anderson, James R. Harris, and Alex Gabert for tortious interference with a contract (“the Davila/Alfaro case”). The depositions were scheduled to take place in Corpus Christi on August 31,1994.

B.PROCEDURAL HISTORY

The subpoenas in question were served on the Vegas’s attorney on August 5, 1994, and upon the Vegas on August 6, 1994. On August 22, 1994, the Vegas filed their motion to quash the subpoenas. The trial court heard the motion on August 29,1994, and denied it by written order signed on August 31, 1994. The order states that “the motion to quash subpoenas for deposition and for protective order filed by [the Vegas] is denied in full, and the respective depositions of [the Vegas] should proceed and take place as scheduled on August 31, 1994.” On August 31, 1994, the Vegas filed a notice of appeal, but the appeal was stayed in 1995, because Davila filed for bankruptcy. The appeal was reinstated in 1999.

C.JURISDICTION

On September 13, 1994, this Court informed the Vegas:

[I]t does not appear that the order from which the Vegas are attempting to appeal is a final, appealable order.

The Vegas were then given the opportunity to cure the defect. On September 14, 1994, the Vegas filed a response in which they argued that the trial court’s order was a final, appealable order. The appeal was subsequently stayed by Davila’s bankruptcy, and the jurisdictional issue was carried with the case.

Because jurisdiction is fundamental, an appellate court must determine, sua sponte, whether it has jurisdiction to consider an appeal. H.E. Butt Grocery Co. v. Bay, Inc., 808 S.W.2d 678, 679 (Tex.App.—Corpus Christi 1991, writ denied). In line with the decision of the Texas Supreme Court in Ross Stores, Inc. v. Redken Lab., Inc., 810 S.W.2d 741 (Tex.1991) (bill of discovery orders directing discovery against third parties against whom suits are not contemplated are ends in themselves, resolving all discovery issues between the bill of discovery plaintiff and the discovery defendant and acting as mandatory injunctions against the discovery defendant, such orders are therefore final and appealable), and the decision of the El Paso Court of Appeals in Enviro Protection, Inc. v. National Bank of Andrews, 989 S.W.2d 454 (Tex.App.—El Paso 1999, no pet.) (protective order, which disposed of all parties and issues before trial court, was final judgment for purposes of appeal), we conclude the trial court’s order denying the motion to quash is a final, appealable order. We, therefore, will address the Vegas’s points of error.

D.Motion to Quash Subpoenas

1. Immune from Service of Process

By their first and second points of error, the Vegas complain the trial court erred in denying their motion to quash the subpoenas because they were improperly served. Specifically, the Vegas contend they were in Texas to give depositions in the Vega/Davila case when they were improperly served with subpoenas to give depositions for the Davila/Alfaro case.

In support of their contention, the Vegas rely on Stewart v. Ramsay, 242 U.S. 128, 37 S.Ct. 44, 61 L.Ed. 192 (1916), and Chief Justice Bond’s concurrence in Fishbein v. Thornton, 247 S.W.2d 404 (Tex.Civ.App.—Dallas 1952, no writ) (Bond, C.J., concurring). The Stewart court stated:

The true rule, well founded in reason and sustained by the greater weight of authority, is that suitors, as well as witnesses, coming from another state or jurisdiction, are exempt from the service of civil process while in attendance upon court, and during a reasonable time in coming and going.

Stewart, 242 U.S. at 129, 37 S.Ct. 44. In Fishbein, Chief Justice Bond stated:

Our courts, with practical unanimity, accord to nonresidents of a state who come within the territorial limits of the state to testify as witnesses in judicial proceedings therein an immunity or privilege from the service of civil process while in actual attendance at the trial or hearing and during such reasonable time as may be consumed in going to and returning from the place of trial.
It is in the public interest that nonresident suitors and witnesses be encouraged to appear voluntarily, and not deterred from so doing; and unless immunity from service of civil process is given they might be deterred from attending through fear of being subjected to the burden of new litigation, and delays might ensue and injustice be done. Therefore, the courts should protect them against possible litigation by granting immunity from service of civil process and thus removing the liability to such litigation.
It has also been said that the exemption is founded on the principle that, where the law exacts a duty from any person it will protect him in the discharge of it, and that individuals cannot demand the use of public civil process so as to arrest or interfere with others in the performance of public duties or of duties required by public process; and that immunity granted a nonresident witness does not work any injustice to anyone, since, unless he comes within the state, there will be no opportunity to serve any process on him.
In so far as the writer’s investigation has extended, the courts have uniformly extended this privilege of immunity not only to those who attended before the court on the actual trial, but also to those who attended as witnesses or suitors in the taking of depositions.

Fishbein, 247 S.W.2d at 408-09.

While public policy may be served by allowing immunity from service of process, we conclude the policy discussed in Oates v. Blackburn, 430 S.W.2d 400 (Tex.Civ.App.—Houston [14th Dist.] 1968, writ ref d n.r.e.), applies in this case. In Oates, the court of appeals stated:

As a general rule, derived from the common law, witnesses and 'suitors in attendance on a court outside the territorial jurisdiction of their residence are immune from service of civil process while attending court and for a reasonable time before and after in going to and returning from court, unless the process is issued in the very cause for which they entered the jurisdiction, or in another cause which is in aid of, or incidental to, or connected with, the original suit.

Id. at 401; See also 72 C.J.S. Process § 27 (1987) (the immunity of nonresident witnesses and suitors does not generally apply to process issued in the very cause for which they entered the jurisdiction, or in another cause which is in aid of, or incidental to, or connected with, the original suit, since the granting of an exemption in such circumstances would obstruct rather than expedite the administration of justice in the case).

After reviewing the record, we conclude that the Vega/Davila case is directly connected to the Davila/Alfaro case. The record reflects that the Davila/Alfaro case stems from the initial suit in which Davila represented the Vegas in Starr County. Because the Vegas brought themselves within the jurisdiction of the Texas courts when they filed their original lawsuit in Starr County, we hold they cannot now plead immunity from service of process in this directly connected case. The Vegas’s first and second points of error are overruled.

2. Unreasonable Time and Place

By their third point of error, the Vegas contend the trial court erred in denying their motion to quash the subpoenas because the time and place of the depositions was unreasonable. Specifically, they argue:

[T]he trial court’s ruling that [the Vegas], who are citizens and residents of Mexico City, Mexico, should at their burden and expense, interrupt their personal lives and obligations, travel to Corpus Christi', Texas, to give testimony in a case in Corpus Christi involving a lawyers’ squabble and to which they are not parties constitutes a gross abuse of discretion.

In 1994, when the Vegas were trying to quash the subpoenas, Texas Rule of Civil Procedure 201.5 provided:

The time and place designated shall be reasonable. The place of taking a deposition shall be in the county of the witness’ residence or, where he is employed or regularly transacts business in person or at such other convenient place as may be directed by the court in which the cause is pending; provided, however, the deposition of a party or the person or persons designated by a party under paragraph 4 above may be taken in the county of suit subject to the provisions of paragraph 5 of Rule 166b. A nonresident or transient person may be required to attend in the county where he is served with a subpoena, or within one hundred miles from the place of service, or at such other convenient place as the court may direct. The witness shall remain in attendance from day to day until such deposition is begun and completed.

Tex.R.Civ.P. 201, 599-600 S.W.2d [Tex. Cases] XLV-XLVI (1981, repealed, 977-78 S.W.2d [Tex. Cases] XXXIII (1999)) (emphasis added).

This Court may reverse a trial court’s judgment for abuse of discretion if it acts arbitrarily, without regard for guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985). While the Vegas may not live in Texas, they were properly served in Nueces County, Texas. Because a nonresident may be required to attend a deposition in the county in which he is served with a subpoena, we hold the trial court did not abuse its discretion in denying the Vegas’s motion to quash the subpoenas. The Vegas’s third point of error is overruled.

3. Beyond Motion to Quash

By their fourth point of error, the Vegas complain the trial court erred in ordering that they appear as ordered in the subpoenas. Specifically, the Vegas contend the trial court’s order goes beyond denying their motion to quash the subpoenas. The Vegas assert the trial court’s order that “the respective depositions of Rocío de Jesus Vega Figueroa, Jose Patricio Vega, and Guadalupe Olivera Vega should proceed and take place as scheduled on August 31, 1994,” provides affirmative relief not requested by Davila.

Texas Rule of Civil Procedure 301 provides:

the judgment of the court shall conform to the pleadings, the nature of the case proved and the verdict, if any, and shall be so framed as to give the party all the relief to which he may be entitled either in law or equity.

Tex.R.Civ.P. 301. The Vegas’s motion to quash the subpoenas claimed exemption from service, and “in the alternative, mov-ants ask[ed] that the depositions be taken in Mexico City, and that their expenses be paid in advance for the attendance.”

We conclude the trial court’s order that the depositions “should proceed and take place as scheduled” is in accordance with rule 301 and is nothing more than the denial of the Vegas’s request for alternative relief. The Vegas’s fourth point of error is overruled.

The trial court’s order is affirmed.

      . The suit for tortious interference with a contract stems from the initial suit in which Davila represented the Vegas in Starr County.


source: Caselaw Access Project

author: ROBERT J. SEERDEN, Chief Justice.

license: Public Domain

text:
    In re John PROFANCHIK and Conversant Technologies, Inc., Relators.
    No. 13-00-434-CV.
    Court of Appeals of Texas, Corpus Christi.
    Oct. 6, 2000.

      Charles C. Murray, Lisa D. Powell, L.L.P., McAllen, for Relators.
    Dennis A. Longoria, Edmundo 0. Ramirez, Ellis, Koeneke & Ramirez, L.L.P., McAllen, for Real Parties in Interest.
    Before Chief Justice SEERDEN and Justices DORSEY and RODRIGUEZ.
   OPINION

ROBERT J. SEERDEN, Chief Justice.

In this original proceeding, relators John Profanchik and Conversant Technologies, Inc. complain of the district court’s refusal to compel arbitration under the Federal Arbitration Act.

Standard of Review

Mandamus relief is available if the trial court violates a duty imposed by law or clearly abuses its discretion, either in resolving factual issues or in determining legal issues, when there is no adequate remedy at law. See Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex.1992). Mandamus is appropriate when a state court erroneously denies a motion to compel arbitration under the federal scheme. See In re Valero Energy Corp., 968 S.W.2d 916, 916 (Tex.1998); In re Bruce Terminix Co., 988 S.W.2d 702, 703-04 (Tex.1998).

Background

John Profanchik sent Fred Regalado, the real party in interest, a proposed letter agreement on December 30, 1997, soliciting Regalado’s participation as an investment owner in Conversant Technologies, Inc. (“CTI”). Although Regalado did not accept this initial offer, Regalado subsequently accepted a second letter agreement, sent on January 26, 1997, and executed with an addendum on February 5, 1998.

Under this agreement, Regalado agreed to invest $150,000 in CTI for fifteen percent ownership in CTI and all of CTI’s current and future assets and profits. The letter agreement also contained a provision whereby Regalado agreed that in the event any legal action were to be instituted against him that could result in a criminal conviction, CTI had the option to purchase Regalado’s fifteen per cent ownership back at fair market value. CTI further had the right of first refusal in the event Regalado decided to sell his ownership. The agreement further contained other provisions regarding the transfer of the purchase price, the use of CTI ownership as security, meetings, and methods for making major financial decisions.

The addendum to the agreement contains specifications regarding when Rega-lado was to remit his $150,000 initial investment and provisions for repayment of Regalado’s investment. Under the addendum, CTI agreed to “work very hard” to repay Regalado $120,000 by the end of 1998. The addendum further addressed salaries for CTI employees.

The parties thereafter executed a “Stock Purchase/Sale Agreement” in late 1998 and early 1999. The Stock Purchase/Sale Agreement governed the transfer of shares, provided the right of first refusal, and set various terms of payment. This agreement contains an arbitration provision:

Subject to the foregoing provisions for appropriate injunctive relief in connection with the sale and purchase of Shares pursuant hereto which will lie by agreement of the parties with any court of competent jurisdiction in Dallas County, Texas, the parties and signatories hereto agree that any dispute arising between them with regard to this Agreement shall be subject upon the application of any party to arbitration in Dallas, Texas in accordance with the rules and procedure of the American Arbitration Association. Any such arbitration proceeding shall be final and binding upon the parties with regard to all matters covered thereby, and upon application by any party the award of the arbitrators shall be confirmed and a judgment rendered thereon in an appropriate court of law.

Profanchik thereafter executed his option to purchase Regalado’s interest in CTI, and Regalado consequently sued Profan-chik and Conversant Technologies alleging causes of action for oppression of a minority shareholder, fraud, constructive trust, and slander.

Profanchik and CTI filed a motion in the district court to compel arbitration and abate the proceedings. After a hearing, the district court denied the motion to compel arbitration. Relators Profanchik and CTI now petition this Court for mandamus relief from this decision, arguing that arbitration should be compelled under the Federal Arbitration Act.

Applicability of the Federal Arbitration Act

The Federal Arbitration Act “applies to all suits in state or federal court when the dispute concerns ‘a contract evidencing a transaction involving commerce.’ ” Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 269-70 (Tex.1992). A written arbitration provision in a contract evidencing a transaction involving commerce extends to any contract affecting commerce, as far as the Commerce Clause of the United States Constitution will reach. Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 268, 115 S.Ct. 834, 130 L.Ed.2d 753 (1995); Inre L & L Kempwood Assoc., L.P., 9 S.W.3d 125, 127 (Tex.1999). The transaction must in fact involve interstate commerce. Allied-Bruce Terminix Cos., 513 U.S. at 281.

The issue is not whether the parties’ dispute affects interstate commerce, but whether their dispute concerns a transaction that affects interstate commerce. See Jack B. Anglin, 842 S.W.2d at 272; In re Education Management Corp., 14 S.W.3d 418, 423 (Tex.App.—Houston [14th Dist.] 2000, orig. proceeding). The FAA does not require a substantial effect on interstate commerce; rather, it requires only that commerce be involved or affected. Kempwood, 9 S.W.3d at 127.

There is a presumption favoring agreements to arbitrate under the federal act. Cantella & Co. v. Goodwin, 924 S.W.2d 943, 944 (Tex.1996). A party seeking to compel arbitration must present sufficient evidence to establish its right to arbitrate under the act. Id; see EZ Pawn Corp. v. Mandas, 934 S.W.2d 87, 91 (Tex.1996) (burden is on party seeking to compel arbitration to establish its right to arbitrate under FAA). If it does, and the opposing party does not defeat that right, the trial court is obliged to compel arbitration. Id.

When, as here, there is no express agreement to arbitrate under the federal act, the question of whether the parties’ transaction affects interstate commerce is one of fact. Stewart Title Guaranty Co. v. Mack, 945 S.W.2d 330, 332 (Tex.App.—Houston [1st Dist.] 1997, writ dism’d w.o.j.). A party who alleges interstate commerce may show it in a variety of ways: location of headquarters in another state; transportation of materials across state lines; manufacture of parts in a different state; billings prepared out of state; interstate mail and phone calls in support of a contract. See Anglin, 842 S.W.2d at 270; Stewart Title Guaranty Co., 945 S.W.2d at 332.

In support of its allegation that the present dispute concerns a transaction involving interstate commerce, Profanchik testified that CTI installs telephones in correctional facilities in Texas, Oklahoma, and New Mexico. The company thus does business in various states, and Profanchik testified, over objection, that CTI is involved in interstate commerce. Regalado argues, in response, that Profanchik and Regalado are both Texas residents and CTI is a Texas corporation with its main offices in Texas. Regalado thus characterizes the instant dispute as one between Texas residents over ownership in a Texas corporation, and contends that the ownership of the corporation does not affect interstate commerce.

We disagree. The United States Supreme Court and the Texas Supreme Court have clearly established that the Federal Arbitration Act applies to any contract affecting commerce, as far as the Commerce Clause of the United States Constitution will reach. Allied-Bruce Terminix Cos., 513 U.S. at 268, 115 S.Ct. 834; In re L & L Kenvpwood Assoc., 9 S.W.3d at 127. The contract at issue affects ownership of a corporation that is involved in interstate commerce. The undisputed facts establish that the corporation carries out commercial ventures in several states. Moreover, the nature of the business itself, telecommunications, clearly involves interstate commerce. It would be remarkable to say that the purchase of a single telephone could evidence a transaction in interstate commerce, yet an agreement relating to ownership of an entire interstate telecommunications business does not. Cf. Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 402 n. 7, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967); BWI Companies, Inc. v. Beck, 910 S.W.2d 620, 623 (Tex.App.-Austin 1995, orig. proceeding [leave denied] ) (FAA applies in employer-employee relationship where employer’s business operations involve interstate commerce). We conclude that the foregoing suffices to establish the applicability of the federal arbitration act.

Scope of the Arbitration Agreement

When a party asserts a right to arbitration under the federal act, the question of whether a dispute is subject to arbitration is determined under federal law. See Prudential Securities, Inc. v. Marshall, 909 S.W.2d 896, 899 (Tex.1995). Under federal law, whether a claim falls within the scope of an arbitration agreement depends on the factual allegations of the complaint, rather than the legal cause of action asserted. See id.; see also Ikon Office Solutions, Inc. v. Eifert, 2 S.W.3d 688, 697 (Tex.App.—Houston [14th Dist.] 1999, orig. proceeding); Prudential-Bache Securities, Inc. v. Garza, 848 S.W.2d 803, 807 (Tex.App.—Corpus Christi 1993, orig. proceeding).

Generally, if the facts alleged “touch matters,” have a “significant relationship” to, are “inextricably enmeshed” with, or are “factually intertwined” with the contract that is subject to the arbitration agreement, the claim will be arbitra-ble. See Pennzoil Co. v. Arnold Oil Co., 30 S.W.3d 494, 498, 2000 Tex.App. LEXIS 5622, *7 (San Antonio, 2000, no pet. h.) (citing Hou-Scape, Inc. v. Lloyd, 945 S.W.2d 202, 205-06 (Tex.App.—Houston [1st Dist.] 1997, orig. proceeding) and cases cited therein). However, if the facts alleged in support of the claim stand alone, are completely independent of the contract, and the claim could be maintained without reference to the contract, the claim is not subject to arbitration. See Fridl v. Cook, 908 S.W.2d 507, 511 (Tex.App.—El Paso 1995, writ dism’d w.o.j.).

Any doubts as to whether a claim falls within the scope of the agree-merit must be resolved in favor of arbitration. See Prudential Securities, Inc., 909 S.W.2d at 899. The federal policy in favor of enforcing arbitration agreements is so compelling that a court should not deny arbitration “unless it can be said with positive assurance that an arbitration clause is not susceptible of an interpretation which would cover the dispute in issue.” See id. In determining whether the claim falls within an arbitration clause, a court focuses on the facts alleged, not on the causes of action asserted. Prudential Sec., Inc., 909 S.W.2d at 899; Hou-Scape, Inc. v. Lloyd, 945 S.W.2d 202, 205 (Tex.App.-Houston [1st Dist.] 1997, orig. proceeding).

Regalado asserts that the arbitra-bility of the instant dispute should be determined by reference to his second amended petition, filed on July 31, 2000, two months after entry of the order denying arbitration on May 30, 2000. In his second amended petition, Regalado stated that:

Plaintiff Fred Regalado is now filing suit against ... Defendants John Profanchik and Conversant Technologies based on his original investment agreement. To clarify the record, none of the Plaintiffs claims are based on the stock purchase/sale agreement or the buyout of Plaintiffs shares of stock. Any claims relating to said stock purchase/sale agreement or the buyout of Plaintiffs shares are separate and apart from this lawsuit and Plaintiff is not asserting any claims nor seeking any damages in regards to the stock purchase/sale agreement of the buyout of his shares of stock.

Profanchik asserts that the arbitrability of the instant dispute should instead be determined on the basis of the pleadings on file at the time of submission and determination of the motion to compel. We agree with Profanchik, and will consider the record as it appeared before the trial court at the time of its ruling on the motion to compel arbitration. See, e.g., Goodchild v. Bombardier-Rotax GMBH, 979 S.W.2d 1, 9 (Tex.App.—Houston [14th Dist.] 1998, pet. denied) (court considers record at time of ruling on special appearance); H.S.M. Acquisitions, Inc. v. West, 917 S.W.2d 872, 878 (Tex.App.—Corpus Christi 1996, writ denied) (court considers record only as existed when summary judgment entered); Thompson v. Haberman, 739 S.W.2d 71, 72 (Tex.App.—San Antonio 1987, orig. proceeding) (discovery could not support protective order when not on file at time of ruling). Moreover, other than the disclaimer quoted above, we note that the original petition and the second amended petition do not greatly differ either in their recitation of facts or causes of action asserted.

The Stock Purchase/Sale Agreement provides for arbitration of “any dispute arising between [the parties] with regard to this Agreement.” The gravamen of Regalado’s complaint is that Pro-fanchik wrongfully deprived him of his fifteen percent interest in CTI. Profanchik acquired Regalado’s interest in CTI through exercise of the Stock Purchase/Sale Agreement. We conclude that Regalado’s claims fall within the scope of the arbitration agreement contained in the Stock Purchase/Sale Agreement.

Regalado contends that Profanchik “schemed to squeeze out” Regalado as a minority shareholder; attempted to force Regalado to sell him his shares; attempted to “terminate” Regalado’s relationship with the company; and attempted to deprive Regalado of his stock ownership in CTI. Regalado also argues that Profan-chik’s actions served to frustrate his legitimate expectations and were a departure from the standards of fair dealing owed to shareholders of a corporation.

Regalado alleges that Profanchik made several false representations to him regarding repayment of his initial investment and his ownership in CTI. Specifically, Re-galado argues that Profanchik falsely represented that CTI would repay him $120,000 of his $150,000 initial investment by the end of 1998, and that if CTI failed to acquire as many new contracts as it anticipated in 1998, CTI would repay Re-galado a minimum of $75,000. Regalado also contends that Profanchik told him that if he invested $150,000, Regalado would receive fifteen percent ownership in CTI and all of CTI’s current and future assets and profits. This ownership would include all equipment, phones, and accessories owned by CTI at the time and in the future.

Regalado argues that Profanchik obtained $150,000 and fifteen percent ownership in CTI through false promises and representations, and that Profanchik was unjustly enriched by being allowed to retain Regalado’s property.

We conclude that the facts alleged have a significant relationship with the Stock Purchase/Sale Agreement, and are factually intertwined with that agreement. Re-galado’s claims are thus arbitrable under the Federal Arbitration Act. See Pennzoil Co., at 498, 2000 Tex.App. LEXIS 5277, *7.

Regalado also asserts a cause of action for slander and defamation, alleging that Profanchik told third parties that Regala-do was involved in selling illegal drugs. A defamation claim is generally arbitrable if the alleged statements arose directly out of a dispute about the contractual relation, if the statements were integrally linked to the parties’ contractual relation, or if the statements arose from the contract’s performance. Hou-Scape, Inc., 945 S.W.2d at 206 (citing Popper v. Monroe, 673 F.Supp. 1228, 1230 (S.D.N.Y.1987)). At the hearing on the motion to compel arbitration, Profanchik testified that defendants opted to purchase Regalado’s shares in part because they learned that Regalado socialized with individuals out on bail for drug convictions, because Regalado had been searched by the sheriffs department, and because Regalado’s plane had been searched by the Drug Enforcement Administration. The alleged statements by Profanchik were integrally linked to the stock purchase/sale agreement, and were thus arbitrable.

Conclusion

Mandamus will issue only to correct a clear abuse of discretion when the abuse cannot be remedied by appeal. Walker, 827 S.W.2d at 840. In this case, the trial court abused its discretion because it misapplied the Federal Arbitration Act to the facts of this case. See Jack B. Anglin, 842 S.W.2d at 271. A party who is erroneously denied the right to arbitration has no adequate remedy at law because the fundamental purpose of arbitration — to provide a rapid, less expensive alternative to traditional litigation — would be defeated. Id.

Because the claims at issue in this lawsuit are within the scope of the agreement to arbitrate, we conditionally grant the petition for writ of mandamus and direct the trial court to order that all claims proceed to arbitration. The writ will issue only in the event that respondent fails to comply.

      . The addendum contains additional language relating to CTI’s obligation to repay Regalado; however, this language is partially obscured on all copies of the addendum in the record.

      . In his original petition, Regalado asserted causes of action for oppression of a minority shareholder, fraud, constructive trust, and slander. In his second amended petition, Re-galado asserts causes of action for oppression of a minority shareholder, fraud, slander and breach of contract.


author: PER CURIAM.

text:
    Elvira G. CASTANO, Appellant, v. FOREMOST COUNTY MUTUAL INSURANCE COMPANY, Appellee.
    No. 04-00-00441-CV.
    Court of Appeals of Texas, San Antonio.
    Oct. 11, 2000.

      Elvira G. Castaño, Del Rio, pro se.
    Thomas M. Fountain, Thomas M. Fountain & Associates, Houston, for appellee.
    Sitting: ALMA L. LÓPEZ, Justice, CATHERINE STONE, Justice, PAUL W. GREEN, Justice.
   OPINION

PER CURIAM.

On April 5, 2000, the appellant, Elvira G. Castaño, filed a notice of appeal to challenge a default judgment signed on March 3, 2000. Our initial review of the case indicated that the default judgment was interlocutory because it did not dispose of the claims against M. Marc Gonzalez, a person named as a defendant in the underlying petition for declaratory relief, and because no severance order appeared in the record. As a result, we issued a show cause order directing Castaño to show cause in writing, by September 22, 2000, why this appeal should not be dismissed for lack of jurisdiction. On September 25, 2000, Castaño responded with a motion asking us to dismiss her appeal.

Where the plaintiffs petition names multiple defendants as it does here, and the plaintiff obtains a no-answer default judgment against one of the defendants, the default judgment is interlocutory and cannot be appealed until the trial court either renders a final judgment in the case, or signs an order of severance making the interlocutory default judgment final. See Michol O’Connor, J., O’Connor’s Texas Rules Civil Appeals § 2.2 (1998); see also Tex.R.Civ.P. 240; $24,180.00 v. State, 865 S.W.2d 181, 188 (Tex.App.—Corpus Christi 1993, writ denied). In this case, the clerk’s record contains a motion to sever the plaintiff-appel-lee’s claims against the appellant, and a request for a final judgment, but the record does not contain a signed order granting a severance. As a result, the default judgment is interlocutory, and we have no jurisdiction to consider an appeal. Thus, had Castaño not asked us to dismiss the appeal, we would have dismissed the appeal for lack of jurisdiction. But because Castaño has filed a motion to dismiss, we will grant her motion and dismiss the appeal. See Tex.R.App.P. 42.1(a)(2).


text:
    In re WEEKS MARINE, INC., and Atlantic Sounding Company, Inc., Relators.
    No. 04-00-00571-CV.
    Court of Appeals of Texas, San Antonio.
    Oct. 11, 2000.
    Baldemar Garza, Law Office of Balde-mar Garza, Rio Grande City, Frank E. Perez, Gilbert Piette, John Jordan, Frank Perez & Associates, Brownsville, Thomas H. Crofts, Jr., Sharon E. Callaway, Crofts, Callaway & Jefferson, P.C., San Antonio, for appellant.
    Adam Pondo, Law Offices of Cerda & Poncio, P.C., San Antonio, Carlos L. Guerra, Guerra & Moore, L.L.P., McAllen, Am-ulfo Guerra, Sr., Guerra & Guerra, Roma, Clayton Clark, Clark Depew, L.L.P., Houston, for appellee.
    Sitting: ALMA L. LÓPEZ, Justice, ' SARAH B. DUNCAN, Justice, KAREN ANGELINI, Justice.
   OPINION

PER CURIAM.

The relators, Weeks Marine, Inc. and Atlantic Sounding Company, Inc. (hereinafter referred to as Weeks Marine), filed an application for writ of mandamus to compel the trial court to reverse its decision regarding discovery of certain documents. Weeks Marine’s application arises from a lawsuit brought by the real party in interest, Fidencio Martinez, under the Jones Act. Martinez was a crew member on a vessel allegedly owned and controlled by Weeks Marine. In his petition, Martinez claimed that he was permanently injured when the vessel struck a stationary object in the water. Martinez sought discovery of certain documents through a motion to compel, and Weeks Marine asserted that the documents were privileged.

The trial judge, the respondent in this application, conducted a hearing on Martinez’s motion and Weeks Marine submitted the documents to the trial judge for in camera inspection. After reviewing the documents and hearing arguments from the parties’ lawyers, the trial judge determined that some of the documents were not privileged; specifically, (1) David Ott’s investigative report, (2) a surveillance report that includes photographs of Martinez, and (3) a surveillance video of Martinez. In response, Weeks Marine filed a motion for emergency relief, and a petition for writ of mandamus, to protect the three documents.

“Mandamus issues only to correct a clear abuse of discretion or the violation of a duty imposed by law when there is no other adequate remedy at law.” Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985). Ordinarily, an appeal provides an adequate remedy at law, but an appeal does not provide an adequate remedy if the trial court erroneously orders the disclosure of privileged information. See Walker v. Packer, 827 S.W.2d 833, 843 (Tex.1992). Here, Weeks Marine contends that the three documents are protected by the work product privilege and the attorney-client privilege. Thus mandamus must issue if the documents are protected by either of these privileges.

Rule 192.5 of the rules of civil procedure protects core work product from discovery. The rule defines work product as:

(1) material prepared or mental impressions developed in anticipation of litigation or for trial by or for a party or a party’s representatives, including the party’s attorneys, consultants, sureties, indemnitors, insurers, employees, or agents; or
(2) a communication made in anticipation of litigation or for trial between a party and the party’s representatives or among a party’s representatives, including the party’s attorneys, consultants, sureties, indemnitors, insurers, employees, or agents.

Tex.R.Civ.PROC. 192.5(a) (emphasis added). Applying this definition to the documents in question here, and for the reasons discussed below, we find that the documents are privileged.

At the hearing on his motion to compel, Martinez relied on federal substantive law to obtain discovery of David Ott’s report. Martinez explained that federal law governing his cause of action for maintenance and cure imposed a duty upon him to supply medical information that would substantiate his claim. He explained how this duty imposed a correlative duty upon Weeks Marine to investigate his claim. He argued that he was entitled to discovery of the documents in question because Weeks Marine contended that he had not cooperated in their efforts to investigate his alleged injury. Although the trial judge did not explicitly reveal his reasons for ordering the discovery of the three documents, his ruling implies that he was persuaded by the argument.

A trial judge presiding over a maritime case in state court must apply federal substantive law, but he must apply state procedural law. See Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406 (Tex.1998). Here, state procedural law-rule 192.5 indicates that the documents in question are protected from discovery as work product prepared in anticipation of litigation. Although Ott’s report bears a caption that reads “Personal and Confidential, PREPARED IN ANTICIPATION OF LITIGATION,” the contents of the report, not the caption, indicates why the report is privileged. Ott explains in his report that he was initially tasked with investigating the nature and extent of Martinez’s injury and that he was unsuccessful in that effort, but the bulk of Ott’s report summarizes the results of his subsequent investigation about the accident that ostensibly resulted in injury to Martinez. Therein, Ott explained that after learning that Martinez had hired an attorney and after the attorney told him he could not meet with Martinez, he received a call “advising that litigation could occur since an attorney was now involved” and asking him to obtain recorded statements from other Weeks Marine employees and witnesses. The bulk of Ott’s report summarizes those statements, identifying inconsistencies in witnesses’ versions of what occurred. Each statement was recorded on a date subsequent to the time Ott learned that Martinez had hired an attorney. While a redacted form of the report may have been discoverable, the total report is privileged as core work product.

Like Ott’s report, the surveillance report that includes photographs of Martinez and the video tape are privileged as work product. The report contains the results of an investigation into Martinez’s background and summarizes surveillance activities. Although the report describes Martinez’s body movements, the report does not reveal any information about the accident or address any of Weeks Marine’s contentions regarding Martinez’s alleged injury. The video reflects additional surveillance of Martinez exiting and re-entering a vehicle. All surveillance and reporting occurred at times subsequent to the date Ott spoke with Martinez’s attorney.

Upon learning that an employee complaining of a work-related injury has hired an attorney, a reasonable defendant would believe a substantial chance of litigation existed. See Flores v. Fourth Court of Appeals, 777 S.W.2d 38, 40-41 (Tex.1989) (discussing test for determining “anticipation of litigation”). Based on such a belief, a defendant would likely conduct an investigation to prepare for litigation. That is what occurred here. For whatever reason the documents in question were initiated, they now represent documents prepared in anticipation of litigation. Martinez may have been able to discover the documents in federal court, but he subjected himself to rule 192.5 by choosing to sue in state court. Under rule 192.5, these documents are privileged. As a result, the trial judge abused his discretion by ordering the discovery of the three documents. Because the trial court abused his discretion in ordering the discovery of privileged documents, and by providing those documents to Martinez, we conditionally grant the writ of mandamus. The writ will issue only if the trial judge fails to reverse the erroneous ruling on Martinez’s motion to compel within ten days from the date of our opinion and order.

      . "The Jones Act is a federal statute that provides a remedy to any seaman who suffers personal injuries in the course of his employment due to the negligence of his employer or the employer's officers, agents, or other employees." Maritime Overseas Corp. v. Waiters, 923 S.W.2d 36, 45 n. 6 (Tex.App.—Houston [1st Dist.] 1995), aff'd as modified, 917 S.W.2d 17 (Tex.1996).

      . The correlative duties of the parties in a maintenance and cure action are discussed by the First Court of Appeals in its decision in Maritime Overseas Corp. v. Waiters, 923 S.W.2d 36, (Tex.App.—Houston [1st Dist.] 1995), aff'd as modified, 917 S.W.2d 17 (Tex.1996).


author: JOHN F. ONION, Jr., Justice (Retired).

text:
    David George CARNEY, Appellant, v. The STATE of Texas, Appellee.
    No. 03-99-00401-CR.
    Court of Appeals of Texas, Austin.
    Oct. 12, 2000.

      Melroy R. Koehler, New Braunfels, for appellant.
    Dib Waldrip, County and Dist. Atty., New Braunfels, for State.
    Before Justices B.A. SMITH, YEAKEL and ONION.

       Before John F. Onion, Jr., Presiding Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex.Gov’t Code Ann. § 74.003(b) (West 1998).

   JOHN F. ONION, Jr., Justice (Retired).

This appeal is taken from a conviction for interference with the duties of a peace officer. See Tex.Penal Code Ann. § 38.15 (West Supp.2000). The jury, having found appellant David George Carney guilty, assessed his punishment at 180 days in the county jail and a fine of $2000, the maximum punishment for a Class B misdemeanor. See Tex.Penal Code Ann. § 12.22 (West 1994).

Points of Error

Appellant advances six points of error. First, appellant challenges the legal sufficiency of the evidence to support the conviction. We sustain this challenge and find it unnecessary to enumerate or discuss the other points of error.

Facts and Background

At trial, the State utilized the testimony of four peace officer-witnesses. Appellant did not testify or call any witnesses. The incident in question occurred at the residence of appellant and his wife, Carolyn Carney, at 5341 Little Deer, Bulverde, in Comal County. On the morning of June 13, 1997, Sergeant Investigator Larry Anderson of the Special Crimes Unit of the Texas Department of Public Safety arrived, with other officers, at appellant’s home to serve a writ of attachment upon Carolyn Carney for failure to appear to give a deposition in a civil case. The process had originated in a district court in Travis County.

Anderson knocked on the door but got no response. The officer believed someone was in the house because of information received from a confidential informant. Anderson stated he had hoped to get “just compliance with the misdemeanor warrant” but he got “no cooperation at all.” Sergeant Anderson left the premises to secure a search warrant. A local justice of the peace issued a search warrant based on Anderson’s affidavit that Carolyn Carney was “concealed” in her own home in violation of the laws of the State of Texas, that a warrant of arrest had been issued for her, and based on information from a confidential informant that Carolyn Carney had been in the residence within the past eight hours.

On the same day about 5:45 p.m., Sgt. Anderson returned to appellant’s home with a combination arrest-search warrant and the writ of attachment. Anderson was dressed in mufti, but his jacket had “State Police” emblazoned on it. He was accompanied by uniformed D.P.S. Troopers Robert Armstrong, James Jones, Lin Manford, and Comal County deputy sheriffs Kenneth Joyce, Rick Sanchez, and Ed Whit-son. The officers arrived in marked patrol cars.

Appellant was in the front yard and walked down the driveway to meet the officers. Sergeant Anderson informed appellant that they had “a warrant” for his wife. Appellant responded that his wife was not there. Anderson told appellant that they had a search warrant and would search anyway. Appellant requested and was given a copy of the warrant, but Anderson could not recall what other copies of documents may have been given to appellant. The record does not reflect whether the search-warrant affidavit was available. Trooper Manford and Deputy Joyce went to the rear of the house in different directions.

Appellant began arguing with Sergeant Anderson about the validity of the search warrant, contending his wife’s name was not on the warrant, the property was not described, and the officers had no authority to be on the property. The argument continued for several minutes until Trooper Armstrong asked Sergeant Anderson if they should break down the front door. Appellant replied, “No, No, I’ll let y’all in.” While talking to Anderson, appellant moved to the closed garage door and opened it. The garage was full of miscellaneous items with a walk-way from the garage door to a side entry to the residence from the garage. Appellant continued to argue about the validity of the warrant with Anderson as he walked backwards toward the side-entry door. According to Trooper Armstrong, the officers were behind Anderson at this point and the door to the house was behind appellant. Sergeant Anderson testified that appellant was still debating and the officers were “getting kind of antsy to get in the house” and “eventually we just pulled him aside and detained him for not letting us in as soon as I would like.” Anderson estimated that six minutes had elapsed since the officers had arrived. Trooper Armstrong reported that “[a]t that time Trooper Jones shoved Mr. Carney to the side and entered the residence.” Jones was followed by Deputy Sanchez. Appellant was then handcuffed by other officers.

Trooper Jones testified appellant backed up the walk-way in the garage still arguing about the validity of the warrant. Jones related that all of the officers were there but he could not recall their positions. Jones explained that appellant “was facing me for one” and that the door to the residence from the garage was to his [Jones’s] right. Trooper Jones explained the safety issue involved in any delay in getting into a house to be searched. He added: “By this time, it was way overdue, so what I did was to ask Mr. Carney to move one more time. He didn’t. So I pushed him away; and, at that time I entered the house to the right.”

Deputy Kenneth Joyce testified that after going to the rear of the house he and Trooper Manford entered an unlocked door at the back of the garage. Appellant and the other officers were there. Joyce stated that appellant “was just left of the doorway” to the house. Joyce recalled that as one of the officers started towards the door, appellant “reached out as if to grab him.” Joyce “believed” the officer was Trooper Jones. As the officers entered the house, Joyce and Trooper Man-ford restrained appellant and handcuffed him.

The officers were permitted to testify simply that after entering the house they found Carolyn Carney hiding in a closet in an upstairs bedroom. They were not allowed to testify before the jury that Carolyn Carney pointed a gun at an officer nor was Sergeant Anderson permitted to relate that in his undercover work, he had determined appellant and his wife were associated with the group known as “The Republic of Texas.”

Section 38.15

The instant prosecution was pursued under Section 38.15 of the Texas Penal Code which provides in pertinent part:

(a) A person commits an offense if the person with criminal negligence interrupts, disrupts, impedes, or otherwise interferes with:
(1) a peace officer while the peace officer is performing a duty or exercising authority imposed or granted by law; ...
(b) an offense under this section is a Class B misdemeanor.
(d) It is a defense to prosecution under this section that the interruption, disruption, impediment, or interference alleged consisted of speech only.

Tex.Penal Code Ann. § 38.15 (West Supp. 2000).

The parties have not cited and we have not found any reported case on appeal involving prosecution under section 38.15 or its forerunners. The statute is one of a number of Texas penal statutes related to the obstruction of justice. Its forerunner (section 38.16) was first added to the Penal Code in 1989. The statute was later renumbered from section 38.16 to section 38.18. The current statute was renumbered from section 38.18 to section 38.15 and amended as part of the 1994 Texas Penal Code. The current section 38.15’s forerunners encompassed all four levels of culpable mental states. See Tex. Penal Code Ann. § 6.02(d) (West 1994). The current statute’s only culpability requirement is the lowest culpable mental state — criminal negligence which is defined in section 6.03(d). See Tex.Penal Code Ann. § 6.03(d) (West 1994). The act requirement of the statute is broad and in-eludes interrupting, impeding, disrupting, or otherwise interfering with the performance of official duties. One commentator has noted that the breadth of the conduct will probably require the State to allege specifically the manner and means used by an accused to interfere. See Gerald S. Reamey, Criminal Offenses and Defenses in Texas 255 (West 1993) (hereinafter Reamey ).

It is observed that section 38.15 expressly provides in subsection (d) a defense when the interference consists of speech only. Even without this statutory defense, a verbal interference with a public servant or officer could be defended on grounds of the First Amendment to the United States Constitution. See City of Houston v. Hill, 482 U.S. 451, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987); Reamey at 258.

The Information

With this background, we turn to the information in the instant case which provides in pertinent part that:

On or about the 13th day of June, 1997, and before the making and filing of this information, David George Carney, did then and there with criminal negligence interrupt, disrupt, impede or otherwise interfere with James Jones, a peace officer, while the said peace officer was performing a duty or exercising authority imposed or granted by law, to wit: by blocking the entry of Trooper James Jones into a residence, and the said Trooper was assisting in the execution of a search warrant and/or wit [sic] of attachment. (Emphasis added.)

The elements of the offense charged are (1) David George Carney (2) with criminal negligence (3) did interrupt, disrupt, impede or otherwise interfere with (4) James Jones, a peace officer, while the said peace officer was performing a duty or exercising authority imposed or granted by law (5) by blocking the entry of Trooper James Jones into a residence and (6) while the Trooper was assisting in the execution of a search warrant and writ of attachment.

The information, recognizing the expansiveness of the act requirement of section 38.15, specifically limited the manner and means allegedly used by appellant in interfering with Trooper Jones to “blocking entry into a residence.” See also Tex.Code Crim.Proc.Ann. art. 21.15 (West 1989) (must allege act of criminal negligence). In limiting the manner and means alleged, the information impliedly recognized that interference by speech only is a defense. See Tex.Penal Code Ann. § 38.15(d) (West 2000).

Legal Sufficiency Standard

In determining whether the evidence is legally sufficient to support the judgment, we view the evidence in the light most favorable to the jury’s verdict, asking whether any rational trier of fact could have found beyond a reasonable doubt all the essential elements of the offense charged. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Lane v. State, 933 S.W.2d 504, 507 (Tex.Crim.App.1996); Skillern v. State, 890 S.W.2d 849, 879 (Tex.App.—Austin 1994, pet. ref'd). In our review of the legal sufficiency of the evidence, we must consider all the evidence which the jury was permitted, properly or improperly, to consider. See Rodriguez v. State, 819 S.W.2d 871, 873 (Tex.Crim.App.1991).

The jury is the exclusive judge of the facts proven and the weight to be given to the testimony. It is the judge of the credibility of the witnesses. See Tex.Code Crim.Proc.Ann. art. 38.04 (West 1979); Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App.1992). The jury is free to accept or reject any or all of the evidence presented. Saxton v. State, 804 S.W.2d 910, 914 (Tex.Crim.App.1991; Miranda v. State, 813 S.W.2d 724, 733-34 (Tex.App.—San Antonio 1991, pet. ref'd).

Discussion

Putting aside the issue of proof of the culpable mental state alleged, we will examine the record to determine if the evidence is sufficient to establish an essential element of the offense alleged — interference “by blocking the entry of Trooper James Jones into a residence,” keeping in mind the statutory defense set forth in section 38.15(d).

“Blocking” is not defined by the Penal Code or Code of Criminal Procedure nor used in section 38.15. It is to be given its plain meaning in accordance with common usage. “Blocking” means “1. the act of one that blocks: as a: the act of obstructing.... ” Webster’s Third New International Dictionary 236 (Mirriam-Web-ster, Ine.1986). As synonyms of “block,” the terms “blocked, blocking, blocks” mean “(4) to stop or impede the passage of or movement through, hinder or obstruct: block traffic.” American Heritage Dictionary of the English Language 142 (1973).

As observed earlier, appellant met the officers on the driveway of his private residence when the officers arrived in force in the late afternoon. Appellant was informed that the officers were there to arrest his wife and to search the house if necessary. Appellant told the officers his wife was not there.

At his request, appellant was shown the combination search and arrest warrant and perhaps other documents. Appellant began to verbally challenge the warrant, claiming his wife was not named therein. Appellant argued that the officers had no authority or right to be on the property. This conversation or discussion apparently continued for several minutes until one of the officers mentioned the possibility of breaking down the front door to appellant’s home., At this point, appellant agreed to let the officers into the house. While still engaged in conversation with Sergeant Anderson, appellant voluntarily and physically opened the garage door. Appellant backed up a trail or walk-way through miscellaneous items in the garage while still continuing to argue and debate the validity of the search warrant. About this, there is no dispute. The position of the various individuals is not that clear. Trooper Armstrong testified that the door to the house was behind appellant, “we” were behind Sergeant Anderson, and Anderson and appellant were still talking about the warrant. Anderson related that at this point appellant “kind of positioned himself in front of the door” and the officers were “kind of in a semicircle around him,” and appellant was still arguing about the authority of the officers to be on the property. Deputy Joyce placed appellant as standing to the left of the doorway to the house inside the garage while a conversation with the officers continued. Trooper Jones stated that appellant was “facing me for one,” and the door to the residence from the garage was to his (Jones’s) immediate right. Appellant was still arguing.

At this point, the record reflects that the officers were getting “kind of antsy,” determined that “it was time to go in,” “thought appellant had been given' ample time,” and Trooper Jones stated that “it was way overdue.” Trooper Jones then “shoved” or “pushed” appellant, who was in front of him, and “entered the house to the right” through the doorway. Sergeant Anderson testified that “we just pulled him aside and detained him for not letting us in as soon as I would like.”

There can be no question that, by his argument and his conversation with the officers, appellant delayed the officers in obtaining entry in appellant’s home. He lied to the officers about his wife’s presence. Speech alone, however, is a statutory defense to the offense with which appellant was charged.

None of the armed officers expressly testified that appellant blocked their entry into the house by physical action. There was evidence that he was facing the officers and in front of the door while he continued arguing, but there was no evidence that he was up against the door physically preventing entry. In fact, the contrary appears. Joyce placed appellant to the left of the doorway and Jones placed the door to his right as he faced appellant. After shoving appellant aside, Jones entered the doorway to Jones’s right. There is nothing to show that the pushing or shoving of appellant was necessary to make entry. The only physical action on appellant’s part at the time was described by Deputy Joyce. When one of the officers “believed” by Joyce to be Jones “started towards the door,” appellant “reached out as if to grab him (officer).” There is nothing to show appellant reached or touched Jones or any other officer, or by his reaching, blocked entry into appellant’s home.

The State in its brief contends that:

[B]y arguing with the Troopers first in the front yard, then at the garage door, and then at the doorway leading from the garage into the residence proper, appellant was stalling the Troopers .... Appellant’s actions of more than mere words were the direct cause of Trooper Jones having to push appellant to the side but — for appellant’s physical presence at, in or near the doorway, he would have been neither pushed nor arrested.

Under section 38.15, arguing with the officers does not constitute an actionable offense. Speech is a statutory defense to the offense charge even if the end result is “stalling.” The culpable mental state under the statute is criminal negligence. Therefore, in order to satisfy the requirement of Article 21.15, the information alleged the act relied upon to constitute criminal negligence — the blocking of the entry of a particular named officer into appellant’s residence. There is no evidence that appellant was “in” the door as the State contends. Moreover, being “at or near” the door does not establish “blocking” of Trooper Jones’s entry under the circumstances showing the positions of appellant and Jones in relation to the door. The officers were getting “antsy” and Trooper Jones thought the time to enter was “way overdue.” For that reason, in this understandably tense situation, Trooper Jones shoved appellant and entered the door to Jones’s right, not because appellant was blocking Jones’s access to the door.

Viewing the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could not have found, beyond a reasonable doubt, the essential element of interference by blocking Trooper Jones’s entry into appellant’s home independent of speech. Thus, the evidence is legally insufficient to sustain the conviction. The first point of error is sustained.

Our disposition renders unnecessary a discussion of appellant’s other points of error. The judgment of conviction is reversed and judgment is rendered that appellant is acquitted. See Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978).

      . In his testimony, Sergeant Anderson may have misspoken when he referred to a "misdemeanor contempt of court warrant.” The order of attachment instructed the district clerk to issue a writ of attachment directing peace officers to arrest Carolyn Carney and bring her before the court at certain hours or confine her until that could be done, or until a further order to show cause why she should not be held in contempt of court issued.

      . Section 38.16 of the Penal Code (Preventing Execution of Civil Process) provides:
      (a) A person commits an offense if he intentionally or knowingly by words or physical action prevents the execution of any process in a civil case.
      (b) It is an exception to the application of this section that the actor evaded service of process by avoiding detection.

      (c) An offense under this section is a Class C misdemeanor.
      Tex.Penal Code Ann. § 38.16 (West Supp. 2000). (Emphasis added).

      . Trooper Jones revealed in his testimony that an FBI agent was present on the scene but did not enter the property.

      . At trial, Sergeant Anderson acknowledged that the combination arrest-search warrant itself lacked a property description and the name of the person to be arrested or seized. See infra, n. 12.

      . Carolyn Carney’s conviction for aggravated assault on a public servant wherein she was assessed ten years’ imprisonment and a fine of $10,000 was affirmed on appeal in an unpublished opinion. See Carolyn Carney v. State, No. 03-98-00240-CR, 1999 WL 737874 (Tex.App.—Austin 1999, pet. ref’d untimely filed).

      . “Recognizing that certain unintentional or less consequential interruptions or interferences with the duties of public servants in law enforcement or emergency roles should be treated with some leniency, this section provides only a Class B misdemeanor punishment.” Ed Kinkeade & S. Michael McCullough, Texas Penal Code Annotated (West 2000).

      . See Act of May 25, 1989, 71st Leg., R.S., ch. 1162, § 1, 1989 Tex. Gen. Laws 4780.

      . See Act of June 6, 1990, 71st Leg., 6th C.S. ch. 12, § 2(26), 1990 Tex. Gen. Laws 88, 90.

      . See Act of May 29, 1993, 73d Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3586, 3672.

      . Section 6.03(d) provides:
      (d) A person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.

      . This same commentator is of the view that the statute will undoubtedly be challenged on the grounds that other, more specific statutes control. He suggests the more specific statutes may relate to “evading arrest, facilitating escape, false report to an officer, harboring a runaway child, hindering apprehension or prosecution, preventing execution of civil process, resisting arrest or search, and tampering with physical evidence or governmental record.” See Reamey at 254-55. This may explain in part the lack of prosecution under section 38.15 and its forerunners.

      . Article 21.15 provides:
      Whenever recklessness or criminal negligence enters into or is a part or element of any offense, or it is charged that the accused acted recklessly or with criminal negligence in the commission of an offense, the complaint, information, or indictment or order to be sufficient in any such case must allege, with reasonable certainty, the act or acts relied upon to constitute recklessness or criminal negligence, and in no event shall it be sufficient to allege merely that the accused, in committing the offense, acted recklessly or with criminal negligence.

      . The search warrant itself (State’s Exhibit No. 2) did not describe the premises to be searched nor name the person to be seized. It merely incorporated the search warrant-affidavit by reference.


author: Opinion by Justice RODRIGUEZ.

text:
    Bernard ROSENBLATT, as applicant for AVW, Inc., d/b/a Adult Video Megaplexxx, Appellant, v. CITY OF HOUSTON, Appellee.
    No. 13-99-692-CV.
    Court of Appeals of Texas, Corpus Christi.
    Oct. 19, 2000.

      Bradley Reich, Law Offices of Bradley J. Reich, Aurora, CO, Richard Alan Anderson, Dallas, Richard B. Kuniansky, Kuniansky & Karahan, Houston, for Appellant.
    Michael Acuna, Houston, Patrick Zum-mo, Zummo, Mitchell & Perrys, Houston, Anthony W. Hall, City Atty., Houston, Gilbert D. Douglas, Houston, for Appellee.
    Before Justices HINOJOSA, YÁÑEZ, and RODRIGUEZ.
   OPINION

Opinion by Justice RODRIGUEZ.

Bernard Rosenblatt, as applicant for AVW, Inc. d/b/a Adult Video Megaplexxx, appellant, appeals from the granting of a motion for summary judgment. Appellant challenges the summary judgment by seven issues. We affirm.

Adult Video Megaplexxx (Megaplexxx) is an adult bookstore located in Houston, Texas. It contains adult video arcades where customers can enter booths to watch sexually explicit videos. In 1997, the City of Houston (the City) enacted Ordinance 97-75, which amended chapter 28 of its municipal code, having to do with sexually oriented businesses. Section 28-10, which is found in division 3 governing adult arcade and adult mini-theatre design, provides as follows:

(a) If an adult arcade or adult mini-theatre has one (1) manager’s station designated pursuant to section 28-92(c) of this Code, then the interior of the adult arcade or adult mini-theatre shall be configured in such a manner that there is an unobstructed view of every area of the adult arcade or adult mini-theatre to which any patron is permitted access for any purpose from that manager’s station. If an adult arcade or adult mini-theatre has two (2) or more manager’s stations designated pursuant to section 28-92(c) of this Code, then the interior of the adult arcade or adult mini-the-atre shall be configured in such a manner that there is an unobstructed view of each area of the adult arcade or adult mini-theatre to which any patron is permitted access for any purpose from at least one (1) of the manager’s stations. The view required in this subsection must be by direct line of sight from the manager’s station.
(b) It shall be the duty of the owners and operator, and it shall also be the duty of any agents and employees present in an adult arcade or adult mini-theatre, to ensure that the view area specified in subsection (a) remains unobstructed by any merchandise, display racks or other materials at all times that any patron is present in the adult arcade or adult mini- theatre and to ensure that no patron is permitted access to any area of the adult arcade or adult mini-theatre which has been designated as an area in which patrons will not be permitted in the plan filed pursuant to section 28-92 of this Code.

Houston, Tex., Municipal Code, Ord. 97-75, § 28 — 101(a) (emphasis added).

According to an affidavit of John Brat-ton, president of AVW, Inc., video cameras were installed in the arcade booths at Me-gaplexxx to comply with the “direct line of sight” provision of Ordinance 97-75. Brat-ton affied that “[t]he cameras in the arcades transmit a picture of the inside of the arcade to a monitor located in the manager’s station. The video coverage is live, and simultaneously transmits a picture of the inside of each and every arcade, as well as the hallways.” According to Bratton, “[pjatrons are advised in writing that their activities are being monitored by a video camera, and that Adult Video Me-gaplexxx does not permit lewd conduct of any kind.”

According to an officer of the Houston Police Department, Vice Division, during an inspection of Megaplexxx, he observed there is not an unobstructed view of every area to which a patron is permitted access. He also observed there was not a direct line of sight from the manager’s station and that the arcades have doors. Appellant does not contest that, without the use of video surveillance, there is no direct, unobstructed view from the manager’s station to each area of the adult arcade or adult mini-theatre to which any patron is permitted access.

Appellant applied for an adult arcade/adult mini-theater permit with the City. The City denied the application by written letter on July 15, 1998. According to the letter, the City denied the permit because (1) “[the] adult arcade is in violation of Section 28 — 93(b)(1) of the Adult Arcade/Adult Mini-Theater Ordinance having to do with the view design, and lighting requirements[,]” and (2) “the application ... submitted is in violation of Section 28-92(c).”

Appellant pursued an appeal as authorized by the ordinance. A hearing was held on the appeal on August 19,1998, and the hearing officer concluded by stating, “I’m going to hold that the denial of the permit was improper and then maybe [City] Council can straighten this out.” On August 24, 1998, the City moved for the hearing officer to reconsider and uphold the denial of the permit. Appellant responded to the motion for reconsideration on August 26, 1998. On September 22, 1998, the hearing officer reversed his prior ruling and signed a decision affirming the denial of the permit. The decision states that the denial of the permit “was based upon violations of Section 28-101(a); Adult Video Megaplexxx Arcade’s internal configuration does not permit an unobstructed view from the manager’s station by direct line of sight of every area of the adult arcade to which patrons are permitted access.” Thereafter, appellant appealed the hearing officer’s decision to a district court in Harris County. Both parties moved for summary judgment. The court granted the City’s motion for summary judgment without specifying the grounds on which it was rendered. This appeal ensued.

The proper inquiry on appeal is whether the defendant, in seeking summary judgment, fulfilled his initial burden (1) to establish as a matter of law that there remained no genuine issue of material fact as to one or more essential elements of the plaintiffs cause of action or (2) to establish his affirmative defense to the plaintiffs cause of action as a matter of law. Casso v. Brand, 776 S.W.2d 551, 556 (Tex.1989); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985); Pena v. State Farm Lloyds, 980 S.W.2d 949, 953 (Tex.App.—Corpus Christi 1998, no pet.). In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant must be taken as true. Nixon, 690 S.W.2d at 549. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in his favor. Id. In this case, the trial court granted summary judgment for the City; hence, we view all evidence favorable to appellant, the non-movant, as true and indulge every inference in its favor.

When there are multiple grounds for summary judgment and the order does not specify the ground on which the summary judgment was rendered, appellant must negate all grounds on appeal. State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 381 (Tex.1998). If the appellant fails to negate each ground on which the judgment may have been rendered, we must uphold the summary judgment. Id.

In its fourth and fifth issues, appellant avers the trial court erred in granting summary judgment because appellant was in full compliance with the ordinance as a matter of law, and there was a fact issue regarding whether appellant substantially complied with the ordinance.

Appellant first maintains it complied with the direct line of sight provision of the ordinance by installing video cameras in the arcades. According to appellant, the video cameras afford the manager a direct fine of sight inside the arcades. The City urges that the direct line of sight provision requires arcades to be visible from the manager’s station without the use of a medium.

The rules that apply to the construction of statutes apply as well to the construction of municipal ordinances. Wende v. The Board of Adjustment of the City of San Antonio, 27 S.W.3d 162, 169-70 (Tex.App.—San Antonio 2000, no pet. h.) (citing Mills v. Brown, 159 Tex. 110, 114, 316 S.W.2d 720, 723 (1958)). The cardinal rule of statutory construction is to discern and give effect to the intent of the enacting body. Sorokolit v. Rhodes, 889 S.W.2d 239, 241 (Tex.1994). We must first seek to discern that intent from the plain language of the statute or ordinance. Id.

The ordinance provides that there must be an unobstructed view of every area of the adult arcade or adult mini-theatre to which any patron is permitted access from the manager’s station and this view must be by direct line of sight. The Houston City Council did not define direct line of sight in the ordinance; thus we use the commonly understood, everyday definition of the word direct when interpreting the ordinance. Tex. Gov’t Code Ann. § 311.011 (Vernon 1998). Black’s Law Dictionary defines direct as “[ijmmediate; proximate; by the shortest course; without circuity; operating by an immediate connection or relation, instead of operating through a medium; the opposite of indirect.” Black’s Law Dictionary 315 (6th ed.1990) (emphasis added). Webster’s Dictionary defines direct as “a proceeding from one point to another in time or space without any deviation or interruption ... marked by absence of an intervening agency, instrumentality, or influence ...” WebsteR’s New Collegiate Dictionaky 571 (1981 ed.) (emphasis added).

Using the rules of construction, we presume the city council chose the words “direct line of sight” carefully and intended for them to have meaning and purpose. As provided in the ordinance, therefore, the use of video cameras within enclosed booths does not satisfy the direct line of sight requirement because it involves the use of a medium and intervening agency.

Appellant responds that such an interpretation of direct is unreasonable, as it would result in a person from the manager’s station not being able to use eyeglasses, which are arguably a medium, to view the arcades. We must avoid interpretations that would produce absurd results or render other language mere sur-plusage. City of Amarillo v. Martin, 971 S.W.2d 426, 430 (Tex.1998) We do not believe by requiring a direct line of sight, the council sought to prohibit the use of eyew-ear to improve the line of sight. Unlike video cameras and monitors, eyeglasses do not transmit images; rather, they refine images. We conclude that from the plain language of the ordinance, the council did not intend for enclosed arcades with video surveillance to satisfy the design requirements of section 28-101(a).

The legislative history in this case further supports this conclusion. When construing a statute or ordinance, whether or not the statute is ambiguous on its face, we consider such matters as the object sought to be attained by the statute, the circumstances involved, the legislative history, the common law, former provisions, and laws on the same or similar subjects. Tex. Gov’t Code Ann.- § 311.028 (Vernon 1998); Castle v. Harris, 960 S.W.2d 140, 143 (Tex.App.—Corpus Christi 1997, no pet.); Grothues v. City of Helotes, 928 S.W.2d 725, 728 (Tex.App.—San Antonio 1996, no writ).

Attached to the City’s motion for summary judgment is a transcript of a meeting held by the City’s Sexually Oriented Business Committee, during which the committee discussed proposed ordinance 97-75. According to an attorney making a presentation to the committee, the purpose of the ordinance was to provide an open and unobstructed view of the arcades, and to prevent illegal sexual activity. Although doors were not expressly prohibited in the ordinance, according to one council member, they were effectively prohibited by the requirement that there be an open view of every area where customers are permitted. Appellee also attached the minutes of the committee during which a draft ordinance was reviewed section by section. There, the attorney stated, “[t]he point of the Adult Arcade Ordinance is to eliminate the use of enclosed booths for viewing of such materials for places involving illegal or sexual conduct....”

We conclude appellant did not fully comply with the ordinance by installing video cameras in booths that were not open and visible from the manager’s station without the use of a medium.

Appellant contends, alternatively, that it substantially complied with the ordinance. Substantial compliance has been defined to mean performance of the essential requirements of a statute. Stratton v. Austin Ind. Sch. Dist., 8 S.W.3d 26, 31 (Tex.App.—Austin 1999, no pet. h.) (citing Harris County Appraisal Dist. v. Krupp Realty Ltd., Partnership, 787 S.W.2d 513, 515 (Tex.App.—Houston [1st Dist.] 1990, no writ)). A deviation from the requirements of the statute which does not seriously hinder the legislature’s purpose in imposing the requirement is substantial compliance. Id.

According to appellant, the camera system allowed a manager to view the interior of the arcades better than the naked eye. Therefore, appellant contends, there is a fact issue regarding whether it substantially complied with the purpose of preventing illegal sexual activity in the arcades. However, as discussed, the council sought to provide an open, direct, and unobstructed view of the arcades from the manager’s station. Although appellant may have had a means of monitoring the interior of its arcades, it did not afford a “direct line of sight” view from the manager’s station as set forth in the ordinance. Thus, it did not comply with an essential requirement of the ordinance. Significantly, the council may have reasoned that requiring arcades to be open, notwithstanding any video surveillance, would remove the feeling of privacy its occupants might otherwise have, thereby discouraging illegal sexual activity.

The Fourteenth Court of Appeals has interpreted a predecessor of the present ordinance. See City of Houston v. Mitchell, 737 S.W.2d 370, 371-73 (Tex.App.—Houston [14th Dist.], 1987, writ denied). Like the present ordinance, that ordinance required “an unobstructed view of every area of the adult arcade to which any patron is permitted access for any purpose from that manager’s station.... The view required ... must be by direct line of sight from the manager’s station.” Id. The court concluded that the ordinance prohibited fully or partially enclosed booths. Id. at 372-73.

We conclude that an arcade which may be enclosed, but is monitored by video camera, does not substantially comply with the ordinance, which requires a direct line of sight. To the extent that they do not encompass a First Amendment challenge of the ordinance, appellant’s fourth and fifth issues are overruled.

Appellant contends, in its sixth issue, that there is a fact issue regarding whether the ordinance violates its rights under the First Amendment because the predominant purpose of the ordinance was to target the viewing of adult movies in arcades, which is protected speech under the First Amendment. By its seventh issue, appellant asserts the trial court erred in granting summary judgment because its argument that the ordinance violated the First Amendment was not barred by res judica-ta.

As appellee notes in its brief, and as it explained in its motion for summary judgment, the constitutionality of section 28-101 of the ordinance under the First Amendment was litigated in N.W. Enterprises, Inc. v. City of Houston, 27 F.Supp.2d 754, 768 n. 11 (S.D.Tex.1998). In that case, a federal district court held that the structural, visibility, and fighting requirements in sections 28-101 and 128-103 were content-neutral and required intermediate level scrutiny. Id. at 827. The court concluded that the restrictions were narrowly tailored to serve the substantial governmental interest in decreasing public lewdness and prostitution inside sexually oriented businesses. Id. Thus, the court concluded these sections were facially valid under the First Amendment. Id.

Res judicata operates to prevent refitigation of claims that have been finally adjudicated, or could have been raised with proper diligence in the course of previous litigation, that terminated in final judgment, over the same subject matter. Barr v. Resolution Trust Corp., 837 S.W.2d 627, 628 (Tex.1992). When the first lawsuit at issue is decided in federal court, federal law controls the determination of whether res judicata bars the present state court proceeding. San Antonio Ind. Sch. Dist. v. McKinney, 936 S.W.2d 279, 281 (Tex.1996); Eagle Properties, Ltd. v. Scharbauer, 807 S.W.2d 714, 718 (Tex.1990). Under federal law, res judicata will apply if the parties are identical in both suits, the prior judgment is rendered by a court of competent jurisdiction, there is a final judgment on the merits, and the same cause of action is involved in both cases. Russell v. SunAmerica Securities, Inc., 962 F.2d 1169, 1172 (5th Cir.1992); Eagle Properties, Ltd., 807 S.W.2d at 718. Because appellee raised res judicata as an affirmative defense at the summary judgment stage, it bore the burden of proving each of these elements conclusively. See Johnson & Johnson Medical, Inc. v. Sanchez, 924 S.W.2d 925, 927 (Tex.1996).

Appellant was one of a multitude of plaintiffs in the federal suit against the City involving ordinance 97-75. See N.W. Enterprises, Inc., 2.1 F.Supp.2d at 768 n. 11. Thus, the parties are identical in both suits. Next, the judgment was rendered by a court of competent jurisdiction. Ap-pellees attached appellant’s petition from the suit in federal court in which appellant admits the court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331. The federal district court granted a partial summary judgment, concluding sections 28-101 and 28-103 were constitutional, by a written memorandum opinion. The opinion was eventually reduced to a final judgment. Thus, there was a final judgment on the merits.

Finally, we must consider whether the same cause of action was involved in the federal district court as in the present suit. In both cases, appellant challenged the constitutionality of the ordinance, arguing the ordinance targeted speech protected under the First Amendment. The court concluded the restrictions were content neutral, and that the requirements were facially valid under the First Amendment. Having previously litigated this claim in federal court, the doctrine of res judicata precludes appellant from raising it again. Appellant’s sixth and seventh issues are overruled.

We now return to appellant’s fifth issue, in which it complains there is a fact issue regarding whether the ordinance was narrowly tailored to protect the City’s interest in accordance with the First Amendment. This is an applied challenge in which appellant contends that because video surveillance is a method superior to the naked eye in monitoring arcades, an ordinance which requires a direct line of sight and precludes the use of video surveillance in enclosed booths is not narrowly tailored to further the City’s interest.

Appellant urges that the ordinance is unconstitutional under United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). In O’Brien, the Supreme Court announced that a governmental regulation does not infringe upon First Amendment rights if: (1) the regulation is within the constitutional power of the government; (2) it furthers an important or substantial governmental interest; (3) the interest furthered is unrelated to the suppression of free expression; and (4) “the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” Id. at 377, 88 S.Ct. 1673; see City of Dallas v. MD II Entertainment, Inc., 974 S.W.2d 411, 413 (Tex.App.—Dallas 1998, no writ). The O’Brien test does not require the government to use the “least intrusive means” of regulation. Ward v. Rock Against Racism, 491 U.S. 781, 798, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). “So long as the means chosen are not substantially broader than necessary to achieve the government’s interest, ... the regulation will not be invalid simply because a court concludes that the government’s interest could be adequately served by some less-speech-restrictive alternative.” Id. at 800, 109 S.Ct. 2746.

Appellant’s challenge is limited to the fourth O’Brien factor. That is, appellant contends the restriction on First Amendment speech is greater than necessary to further the City’s interest. We conclude the ordinance, by requiring a direct line of sight from the manager’s station into arcades, does not place a restriction on First Amendment speech greater than that which is essential to the furtherance of the City’s interest.

A city has a substantial interest in regulating sexually oriented businesses. Adust Video v. Nueces County, 996 S.W.2d 245, 253 (TexApp.—Corpus Christi 1999, no pet.) (citing City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986)). Requiring a direct fine of sight from the manager’s station into arcades, which necessarily prohibits enclosed arcades, regardless of video surveillance, places little, if any, restriction on First Amendment speech. The restriction does not affect appellant’s ability to show videos in the arcades nor its patrons’ right to view them. See id. The restriction limits itself to visibility of patrons; it does not limit who may access the arcades, the content of the films shown in the arcades, the number of films shown, nor the hours during which the films are shown. The means chosen are not substantially broader than necessary to achieve the government’s interest. Appellant’s First Amendment challenge in issue five is overruled.

In its first issue, appellant contends the trial court’s granting of summary judgment was improper because the City’s notice that it was denying appellant’s application for the permit did not comply with the specificity requirements of the ordinance. Section 28 — 93(d) of the ordinance provides, in relevant part, “[i]f a permit is denied, then a notice thereof setting forth the specific reasons therefor shall be given to the applicant and the owners.” Houston, Tex., Municipal Code, Ord. 97-75, § 28 — 93(d). In denying the permit,; the City sent appellant a letter stating the following reasons for denial:

(1) Your adult arcade is in violation of Section 28 — 93(b)(1) of the Adult Arcade/Adult Mini-Theater Ordinance having to do with the view, design, and lighting requirements.
(2) The application that you submitted is in violation of Section 29-92(c).

Appellant contends, without citing any authority, that this notice does not satisfy the specificity requirement of the ordinance. According to appellant, this notice was insufficient to apprise it of any infirmities it would have to defend against. An appellant has the burden to bring forth sufficient record and authority to support reversible error. Tex.R.App.P. 38.1(h); Pierce v. First Nat. Bank of Alvin, 899 S.W.2d 365, 371 (Tex.App.—Houston [14th Dist.] 1995, no writ). A point of error not supported by authority is waived. Trenholm v. Ratcliff, 646 S.W.2d 927, 934 (Tex.1983); Melendez v. Exxon Corp., 998 S.W.2d 266, 280 (Tex.App.—Houston [14th Dist.] 1999, no pet.). Even if appellant had provided authority in support of its argument, its own letter of appeal belies its argument that it did not have notice. By appellant’s letter of appeal dated July 23, 1998, it admitted that an officer of the Houston Police Department “orally confirmed that the ‘view1 and ‘design’ infirmities allegedly] relate to the installation of video cameras which allegedly fail to comply with the ‘direct line of sight’ provisions within Section 28-101 of the Ordinance .... [The officer] confirmed that [the violation of section 28-99] also relates to the alleged ‘line of sight’ violation.” Thus, appellant had actual notice of the reasons for the denial of the permit prior to the hearing of August 19, 1998. Appellant has failed to show that the notice given did not comply with the specificity requirements of the ordinance, and that he lacked adequate notice to prepare a defense of the denial of the permit. Appellant’s first issue is overruled.

By its second issue, appellant contends the trial court erred in granting summary judgment because the hearing officer erroneously held a second hearing on the appeal of the denial of the permit in contravention of the ordinance. According to appellant, the hearing officer lacked jurisdiction to conduct a reconsideration of his initial ruling because the ordinance only provides for a single hearing. Section 28-99 of the ordinance governs appeals and provides that an applicant shall be entitled to a hearing. The ordinance refers to a hearing throughout in the singular. From this, appellant infers that the ordinance prohibits a second hearing or rehearing.

The granting of a rehearing by an administrative agency is a discretionary matter. Texas State Bd. of Dental Examiners v. Silagi, 766 S.W.2d 280, 285 (Tex.App.—El Paso 1989, writ denied) (citing Braswell Motor Freight Lines, Inc. v. United States, 275 F.Supp. 98, 103 (W.D.Tex.1967), aff'd, 389 U.S. 569, 88 S.Ct. 692, 19 L.Ed.2d 779 (1968)). Until an agency issues an effective final order, the agency retains jurisdiction over the matter and can withdraw previous orders and issue new ones. Star Houston, Inc. v. Texas Dept. of Transp., Motor Vehicle Div., 957 S.W.2d 102, 106 (Tex.App.—Austin 1997, writ denied); Lone Star Greyhound Park v. Texas Racing Comm’n, 863 S.W.2d 742, 745-46 (Tex.App.—Austin 1993, writ denied).

In this case, when the trial court held the rehearing, it had not issued a written order as required by section 28-114. We conclude the hearing officer retained jurisdiction over the permit dispute to hold a rehearing. The hearing officer did not abuse its discretion in holding a rehearing. Appellant’s second issue is overruled.

Appellant argues, by its third issue, that the trial court erred in granting summary judgment because, to the extent the ordinance confers an implied right to conduct a second hearing on the denial of a permit, it violates the First Amendment to the United States Constitution by failing to provide time restraints on such additional hearings and orders. Appellant contends that if the ordinance permits the hearing officer to conduct reconsideration hearings, then it is unconstitutional on its face for failing to provide explicit time parameters within which a decision on the reconsideration must be rendered. Appellant cites FW/ PBS v. City of Dallas, 493 U.S. 215, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990), in furtherance of this argument.

In FW/PBS, the Supreme Court struck down a Dallas sexually oriented business ordinance as a prior restraint on the First Amendment, when it failed to provide a definite time limit for issuance of a license. Id. at 226-27, 110 S.Ct. 596. The Court held that two safeguards are essential for ordinances governing the issuance of licenses for First Amendment protected businesses: (1) “the licensor must make the decision whether to issue the license within a specified and reasonable time period during which the status quo is maintained, and [ (2) ] there must be the possibility of prompt judicial review in the event that the license is erroneously denied.” Id. at 228,110 S.Ct. 596.

The ordinance in this case requires the chief of police to issue or deny a permit within twenty days of receipt of an application. Houston, Tex., Municipal Code, Ord. 97-75, § 28-93. Thus, the Houston ordinance, unlike the Dallas ordinance in FW/ PBS, provides a definite and reasonable time limit for issuance of a license.

Appellant contends there is no possibility for prompt judicial review as required by FW/PBS if a hearing officer may conduct unlimited rehearings. The ordinance requires the hearing officer to render a written decision within five days of the conclusion of the hearing. Houston, Tex., Municipal Code, Ord. 97-75, § 28-125(e). In the event that the hearing official does not give timely notice of his decision, the applicant is entitled to a temporary permit upon written demand, which is valid until the third day after the hearing official gives notice of his decision on the appeal. Houston, Tex., Municipal Code, Ord. 97-75, § 28 — 125(f). Thus, if the hearing officer fails to issue a -written order within five days of the hearing because of a motion for rehearing or reconsideration, the applicant is entitled to a temporary permit upon written demand. We conclude the ordinance provides prompt judicial review as required by FW/PBS and is not a prior restraint on First Amendment speech. Appellant’s third issue is overruled.

The summary judgment is AFFIRMED.

      . "Adult arcades” are establishments containing "coin — or slug-operated or electronically or mechanically controlled machine[s] or device[s]” that dispense adult entertainment intended for viewing by five or fewer persons. Houston, Tex., Municipal Code, Ord. 97-75, § 28-81.

      .Section 28 — 93(b)(1) of the ordinance authorizes the denial of permits when adult arcades or adult mini-theatres do not comply with division 3 of the article. Division 3 includes sections 28-101 (view from the manager’s station), 28-102 (wall penetrations), and 28-1023 (lighting).

      . Section 28-92(c) requires applicants to submit a diagram of the arcade or mini-theatre.

      . The hearing officer is an official who is appointed by the mayor and confirmed by the city council. Houston, Tex., Municipal Code, Ord. 97-75, § 28-113.

      . Appellant also contends, alternatively, if appellant was not in substantial compliance with the ordinance, the ordinance infringed upon appellant's First Amendment rights because it was not narrowly tailored to protect the City’s interest. For convenience, we shall address this argument after considering appellant’s sixth and seventh issues.

      . We note that appellant’s applied challenge of the ordinance under the First Amendment, dealing with whether the ordinance was over-broad in precluding the use of video cameras to monitor arcades, has not been litigated and may be reviewed on its merits.

      . An administrative agency is "[a] governmental body charged with administering and implementing particular legislation." Black's Law Dictionary 29 (6th ed.1990). In the present case, the Houston City Council has authorized a hearing officer to consider appeals from the denial of permits. See Houston, Tex Municipal Code, Ord. 97-75, §§ 28-113, 28-114, 28-135.

      . The ordinance allows that the notice of issuance or denial of the permit may be extended until the thirtieth day after receipt of the application if "the police chief upon notice to the applicant that the police chief has been unable, after diligent effort, to schedule the conduct of any required inspections of the adult arcade or adult min-theatre with the liaison person designated therefor in the application by the nineteenth day next following the date of his receipt of the application.” Houston, Tex., Municipal Code, Ord. 97-75, § 28-93.