author: Opinion by Chief Justice SEERDEN.

text:
    James R. BARTLETT, Linda Beth Bartlett, and William L. Andersen, Appellants, v. Gunter SCHMIDT, Appellee.
    No. 13-98-295-CV.
    Court of Appeals of Texas, Corpus Christi.
    Aug. 31, 2000.
    Rehearing Overruled Dec. 14, 2000.

      Deborah R. Sundermann, Corpus Christi, for Appellants.
    John Miller, Jr., Sinton, Pat Morris, Nicolas, orris, Gilbreath & Smith, Corpus Christi, for Appebee.
    Before Chief Justice SEERDEN and Justices DORSEY and CHAVEZ.
   OPINION

Opinion by Chief Justice SEERDEN.

This is an appeal of a judgment, based upon a jury verdict, which awards appel-lee, Gunter Schmidt, $58,700, plus prejudgment interest, against James R. Bartlett, individually; Linda Beth Bartlett, individually, and as co-independent executrix of the Estate of Martha Francis Pugh, deceased; Wilbam Andersen, individually and as co-independent executor of the Estate of Martha Francis Pugh; Stewart Title of San Patricio County, Inc.; and Stewart Title Guaranty Company. The judgment furthermore awards appellee the sum of $499,000.00, including pre-judgment interest against James R. Bartlett, individuahy; Linda Beth Bartlett, individually and as co-independent executrix of the estate; and Wilbam Anderson, individ-uaby and as co-independent executor of the estate. Whbe ab parties against whom the judgment was taken were originally parties to this appeal, the Stewart Title Companies have settled their part of the dispute and have been dismissed from this appeal.

This lawsuit arose with the purchase of real estate by appellee from Mrs. Bartlett, Andersen, and Thomas Heard Martin (who was absolved of liability in the judgment) through their broker, James R. Bartlett. The basis for the damages is that the property was restricted for only residential use; whereas, appebee intended to use the property for commercial purposes. The facts were known to appellants but not to appebee. The title companies negligently represented to appellee that there were no restrictions on his use of the property.

General Factual Statement

Summarizing the facts of this ease in the light most favorable to the jury’s verdict and the judgment, appellee purchased the property in question with the intention of using it as a shipyard to construct oceangoing vessels. The suitability of the property originally came to his attention when he personally viewed it. A sign on the property advised it was for sale and gave a telephone number for “Bartlett Real Estate Company, Inc.” Schmidt had a realtor in Ingleside, Bill McAllister, contact James Bartlett, of Bartlett Real Estate, also the husband of Linda Beth Bartlett, to make an offer to purchase the property. When Schmidt and Bartlett met to discuss the purchase, Schmidt told Bartlett of his intention to use the property to construct ships. Bartlett orally advised him there were no restrictions on the property and he could use it for anything he wanted.

McAllister, on Schmidt’s behalf, submitted an earnest money contract (EMC) to Bartlett and Schmidt on a form provided by the Texas Association of Realtors entitled “ONE TO FOUR FAMILY RESIDENTIAL EARNEST MONEY CONTRACT-RESALE, ALL CASH, ASSUMPTION, THIRD PARTY CONVENTIONAL OR SELLER’S FINANCING.” It was signed by the parties and provided for a title insurance policy to be issued by Stewart Title.

The title company issued a title commitment to Schmidt which showed covenants and restrictions referenced to a deed and plat involving “Ingleside Cove area and vicinity.” The deed and “Covenants and Restrictions” restricted the use of portions of land not being purchased by Schmidt to uses that would prevent Schmidt from constructing his desired building on the restricted property. The documents submitted by the title company to Schmidt had no restrictions on the land being purchased by him. However, the title company did not furnish Schmidt with the documents replating and modifying the restrictions to include the property acquired by Schmidt.

The commitment also specifically excepted from coverage of the title insurance:

The Covenants, terms, conditions, restrictions and reservations contained in Warranty Deed dated June 18, 1958 from INGLESIDE LAND COMPANY to W.D. WELLER INVESTMENT COMPANY, recorded in Volume 234, Page 552, Deed Records of San Patricio County, Texas.

Schmidt examined these documents and determined the restrictions did not apply to the property he was buying. He also contacted his attorney in Germany who advised Schmidt that his property was not burdened by the restrictions and covenants. The sale of the property to Schmidt was completed in May or June, 1994.

When Schmidt began to lay the foundation for his shipbuilding enterprise, he was advised that the property had been annexed by Ingleside on the Bay and limited to residential use only. After being informed of the limitations, Schmidt continued landscaping the property and obtained a building permit to build the facility and to use the property as his residence.

Negligent Misrepresentation, Fraud, and DTPA Claims

The jury found Bartlett liable on three distinct theories of liability: negligent misrepresentation, fraud, and deceptive trade practices. By their first issue, appellants contend that there is no evidence that Schmidt relied on any representations made by Bartlett. By their second issue, appellants argue that there is no proof that Bartlett’s representations were either the producing cause or the cause-in-faet of Schmidt’s damages.

A. Fraud and Negligent Misrepresentation

Both fraud and negligent misrepresentation require a showing of reliance.

See Federal Land Bank Ass’n of Tyler v. Sloane, 825 S.W.2d 439, 442 (Tex.1991) (negligent misrepresentation); Eagle Properties, Ltd. v. Scharbauer, 807 S.W.2d 714, 723 (Tex.1990) (fraud).

Appellants argue that Schmidt’s consultation with an attorney regarding his purchase of the property constitutes an independent investigation which they allege negates all of his claims. Many courts have held that

where false and fraudulent representations are made concerning the subject-matter of a contract, but the person to whom they are made, before closing the contract inspects and examines the subject of the contract, or conducts an independent investigation into the matters covered by the representations, which is sufficient to inform him of the truth, and which is not interfered with or rendered nugatory by any act of any other party, it is presumed that he places his reliance on the information acquired by such investigation and on his own judgment based on such facts, and not on the representations made to him, and therefore he cannot have relief because his bargain proves unsatisfactory to him.

Marcus v. Kinabrew, 438 S.W.2d 431, 432 (Tex.Civ.App.—Tyler 1969, no writ); see also Kolb v. Texas Emp. Ins. Ass’n, 585 S.W.2d 870, 872 (Tex.Civ.App.—Texarkana 1979, writ ref d n.r.e.); Lone Star Machinery Corp. v. Frankel, 564 S.W.2d 135, 138 (Tex.Civ.App.—Beaumont 1978, no writ); Mayfield Petroleum Corp. v. Kelly, 450 S.W.2d 104, 109 (Tex.Civ.App.—Tyler 1970, writ ref d n.r.e.); Mann v. Rugel, 228 S.W.2d 585, 587 (Tex.Civ.App.—Dallas 1950, no writ).

The common thread of the decisions reaching this conclusion is that, regardless of the result of his investigation, the buyer’s decision to undertake such an investigation indicates that he or she is not relying on the seller’s representations about the property. The record shows that Schmidt undertook such an investigation. Prior to his purchase of the property, Schmidt asked third parties to review conveyancing documents specifically to assure that no restrictions would interfere with his development of the property for his intended purpose. He did this after specifically asking Bartlett about the very same thing. He did not rely on Bartlett’s representations in making his decision to purchase the property.

Accordingly, as a matter of law, Schmidt cannot recover for either negligent misrepresentation or fraud. Because we hold that Schmidt cannot recover for negligent misrepresentation or fraud, we need not reach appellants’ seventh issue concerning Schmidt’s failure to allege negligence in his petition. See Tex.R.App. P. 47.1. We also need not consider the causation element necessary to support either claim. See Alamo Lumber Co. v. Pena, 972 S.W.2d 800, 806 (Tex.App.—Corpus Christi 1998, rev. den.) (negligent misrepresentation); Fun Time Centers, Inc. v. Continental Nat’l Bank, 517 S.W.2d 877, 883 (Tex.Civ.App.-Tyler 1974, writ refd n.r.e.).

Accordingly, because Schmidt did not rely on Bartlett’s representations, we hold that he cannot recover for either fraud or negligent misrepresentation.

B. DTPA Claims

At the time of the actions complained of in this case, the DTPA provided recovery for false, misleading, or deceptive acts or practices in the conduct of any trade or commerce. Tex. Bus. & Comm. Code Ann. § 17.46(b)(23) (Vernon Supp. 1994). To recover damages for any deceptive act or practice under that version of the Act, it is necessary to prove the conduct was a “producing cause” of the injuries sustained. Weitzel v. Barnes, 691 S.W.2d 598, 600 (Tex.1985). Producing cause is an “efficient, exciting or contributing cause, which in a natural sequence produced injuries or damages complained of, if any.” Rowrke v. Garza, 530 S.W.2d 794, 801 (Tex.1975). In other words, producing cause “requires proof that an act or omission was a substantial factor in bringing about injury which would not have otherwise occurred.” Prudential Ins. Co. of Am. v. Jefferson Assoc., Ltd., 896 S.W.2d 156, 161 (Tex.1995). There may be more than one producing cause of a plaintiffs injury. Id.

Texas courts have imputed the concept of intervening or superseding causes into the DTPA proof as well. See Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 481 (Tex.1995). This requires that the causal connection between the alleged wrong and the plaintiffs injury be unbroken. Id. If the defendant can demonstrate that a “new and independent basis” for the plaintiffs actions exists, such proof may negate the assertion that the defendant’s acts were the producing cause of the plaintiffs injury. See id. at 475; Dubow v. Dragon, 746 S.W.2d 857, 860 (Tex.App. — Dallas 1988, no writ); Riojas v. Lone Star Gas Co., 637 S.W.2d 956, 959 (Tex.App. — Fort Worth 1982, writ refd n.r.e.).

In sustaining his or her burden of proof, a plaintiff need not show either reliance or foreseeability under this version of the DTPA. Weitzel, 691 S.W.2d at 600; Camden Mach. & Tool Inc. v. Cascade Co., 870 S.W.2d 304, 311 (Tex.App.— Fort Worth 1993, no writ). Reliance may, nevertheless, be a factor in deciding whether the defendant’s conduct was a producing cause of damages to the plaintiff. See Cianfichi v. White House Motor Hotel, 921 S.W.2d 441, 443 (Tex.App.— Houston [1st Dist.] 1996, writ denied); Century 21 Real Estate Corp. v. Hometown Real Estate Co., 890 S.W.2d 118, 130 (Tex.App. — Texarkana 1994, writ denied). Regardless, the plaintiff must show that there is some unbroken causal connection between the allegedly deceptive act and the actual damages suffered. See Prudential, 896 S.W.2d at 161.

In the context of real estate sales, under Texas law, when a seller makes an affirmative representation, the law imposes a duty upon the seller to know whether such a statement is true. First Title Co. of Waco v. Garrett, 860 S.W.2d 74, 76 (Tex.1993). A seller and its agent may be liable under the DTPA for affirmative misrepresentations. Henry S. Miller Co. v. Bynum, 797 S.W.2d 51, 55 (Tex.App.—Houston [1st Dist.] 1990) aff'd, 836 S.W.2d 160 (Tex.1992).

The record in this case reflects that Schmidt was visiting the Ingleside area, looking for an appropriate plot of land upon which to build and maintain his shipbuilding facility, or “hangar.” One day in April of 1994, Schmidt observed a property which he deemed suitable for his purposes, noticed the property was for sale, and attempted to contact the listed seller, Bartlett Real Estate Company. Finding that he was unable to contact anyone at the listed number, he returned to Ingleside, and contacted the first realtor he saw, Bill McAllister. After some conversations with McAllister, during which Schmidt’s intended use of the property was discussed in general and somewhat vague terms, McAllister attempted to and did contact James Bartlett.

McAllister engaged Bartlett in a preliminary conversation which focused primarily upon the price of the property. After discovering that the price Schmidt was willing to offer was substantially less than the price Bartlett was willing to accept for the property, McAllister put Schmidt on the phone to negotiate with Bartlett. The two engaged in a discussion, during which Schmidt told Bartlett that he was “going to make sailing catamarans.” Schmidt claims Bartlett assured him that there were no restrictions on the property to prohibit him from conducting his business:

Q [Schmidt’s counsel]: Now tell the jury what specific [sic] was said to you by Jim Bartlett about restrictions on that property.
A [Schmidt]: He confirmed that what I’ve already been told [by McAllister], there were no restrictions, and I do ever what [sic] I want, and it was out of city limits, it was not zoned.

This is the sole statement upon which Schmidt bases his DTPA claim against Bartlett.

Schmidt and Bartlett agreed to enter into an earnest money contract which required Schmidt to deposit $1000 and Bartlett to secure a title commitment. The final sale of the property was conditioned upon a showing of good title by the title company. Once the earnest money contract was executed, the title company incurred an obligation to show any restrictions on the use of the property. The title company provided Schmidt with numerous documents as part of its title commitment, including a schedule of relevant covenants and restrictions. Schmidt read the title commitment and the schedule of covenants and restrictions. He concluded that since he was purchasing lots 1 through 12 of Block 57, and since the only listed restrictions applied to lots 15 through 24 of Block 57, his property was not encumbered by the restrictions. Schmidt consulted with his German attorney, who likewise concluded that the property Schmidt sought to purchase was not encumbered. After

conducting his double check, Schmidt closed the sale of the property.

While we accept as true Schmidt’s assertion that Bartlett’s statements were a cause of his damages, his decision to enter into the earnest money contract and the subsequent acts of reviewing the title commitment were “new and independent” causes of those injuries.

The Supreme Court of Texas has recognized that real estate purchasers often rely upon title commitments in making decisions to purchase property. See Garrett, 860 S.W.2d at 77. Reliance on such external assessments of the feasibility of purchasing land has been held to introduce a “new and independent” cause of the buyer’s damages in several pertinent DTPA cases, thus negating the producing cause element of a DTPA claim. See Camden Mach. & Tool, 870 S.W.2d at 313; Dubow, 746 S.W.2d at 860.

The Dallas Court of Appeals has held that a careful subsequent investigation was an intervening and superseding, “new and independent” cause of a buyer’s damages. See Dubow, 746 S.W.2d at 860. In Dubow, appellants sought to purchase a home from appellees. Id. at 858. After consulting with experts and conducting further investigation which disclosed certain defects in the house, appellants renegotiated the purchase price for the home. Id. at 859. When appellants were dissatisfied with the house, they subsequently claimed that statements made by the sellers were the producing cause of their injuries. Id. at 860. The court of appeals affirmed a summary judgment for the sellers, concluding that “the ‘careful inspection of the house’ and the ‘professional opinions’ obtained by the [appellants] were the sole efficient cause of the [appellants’] actual damages.” Id. The 'court concluded that the sellers proved as a matter of law that their representations were not the producing cause of the appellants’ injuries. Id. at 861.

Similarly, the Fort Worth Court of Appeals has held that a seller’s representations were not the producing cause of the buyer’s injuries where the buyer undertook his own investigation prior to purchasing the property. Camden Mach. & Tool, Inc., 870 S.W.2d at 313. In Camden, the buyer sought an appraisal of the building he sought to purchase. Id. at 307. After the appraisal revealed a previously-undisclosed crack in the foundation, the buyer investigated the cost to repair the foundation and received varying estimates. Id. at 308. Despite the seller’s unwillingness to renegotiate and the buyer’s own awareness that the foundation problem was severe, the buyer decided to “bite the bullet” and absorb the repair costs in his purchase price. Id. The court concluded that the buyer’s subsequent investigation and continued habitation established that he would have purchased the building regardless of seller’s representations, and thus, established as a matter of law that the seller’s statements were not the producing cause of his injuries. Id. at 313.

While neither of the foregoing cases is dispositive of the present dispute, they are helpful to our analysis. In each, the court concluded that the subsequent investigation by the buyer was a “new and independent” basis upon which the sale was consummated. While there are certain factual differences which make this case a closer call, we are convinced that Schmidt’s subsequent investigation here, and particularly, his expressed reliance upon the title commitment, see Garrett, 860 S.W.2d at 77, is sufficient as a matter of law to negate the producing cause element of his DTPA claim against Bartlett.

Appellant’s first and second issues are sustained.

Because we conclude that James Bartlett’s representations were neither the producing cause nor the cause-in-fact of Schmidt’s decision to purchase this property, we need not consider appellants’ remaining issues. Tex.R.App. P. 47.1.

The judgment of the' trial court is REVERSED and judgment RENDERED that Schmidt take nothing.

      . Schmidt is a German citizen.

      . Because all of the events in issue in this appeal occurred in 1994, the subsequent changes to the DTPA are not applicable here. See generally Tex. Bus. & Comm.Code Ann. § 17.42 (Vernon 1995); Act of June 8, 1995, 74th Leg., R.S., ch. 414, § 20, 1995 Tex. Gen. Laws 3004.

      . Schmidt expressly stated that Bartlett’s representations directly influenced his decision to enter into the earnest money contract, testifying that Bartlett’s statement "makes me sign the earnest money contract.”

      . The record shows that the title commitment also provided Schmidt with adequate information to discover that his property was actually encumbered by the restriction. Schedule B of the title commitment provides:
      In addition to the Exclusions and Conditions and Stipulations, your Policy will not cover loss, costs, attorney's fees, and expenses resulting from:

      13. The Covenants, terms, conditions, and restrictions and reservations contained in Warranty Deed dated June 18, 1958, from INGLESIDE LAND COMPANY to W.D. WELLER INVESTMENT COMPANY, .... (recording data omitted).
      That Warranty Deed covers all of Block 57. Investigation of the recording data provided in the title commitment furthermore discloses that Block 57 has been replatted and that the restriction has run with the land, and now covers the entirety of Block 57. Arguably, this information placed Schmidt on constructive notice of the restriction prior to his decision to purchase.


source: Caselaw Access Project

author: Justice GRANT.

license: Public Domain

text:
    Reginald LITTLETON, Appellant, v. The STATE of Texas, Appellee.
    No. 06-00-00026-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted Sept. 14, 2000.
    Decided Sept. 14, 2000.

      George Walker, Lufkin, for appellant.
    Clyde M. Herrington, Dist. Atty., Albert John Charanza, Asst. Dist. Atty., Lufkin, for appellee.
    Before CORNELIUS, C.J., GRANT and ROSS, JJ.
   OPINION

Opinion by

Justice GRANT.

Reginald Littleton appeals from his conviction for the offense of possession of a controlled substance. He pleaded guilty and the court sentenced him, pursuant to a plea bargain agreement, to sixteen years’ imprisonment.

Littleton raises six points of error in which he contends for various reasons that his plea of guilty was involuntary or that his plea was taken in an improper manner.

Littleton had filed a waiver of the right to a jury trial. At the beginning of the hearing, which was to be on his guilty plea, the court was informed that Littleton had changed his mind. The court asked Little-ton if he wanted a jury trial, and Littleton told the court that he did. The court then stated that he would have a jury panel brought down ■ to begin trial. Littleton stated that he was not prepared to go to trial, because he wanted to retain other counsel. The court denied his motion to release his attorney (and counsel’s motion to withdraw).

As the hearing continued, it became clear that the case had on an earlier date been set for a jury trial and that Littleton had waived his right to a jury. Then, with the case set for a plea hearing, Littleton changed his mind and again asked for a jury. The result was not so simple, however. The trial court spent a substantial amount of time attempting to force Little-ton to decide whether he wanted a jury. Littleton steadfastly avoided answering. The court presented a motion to withdraw his waiver of a jury trial to Littleton. He refused to sign it. Because he refused to do so, the court recognized that the last written statement by Littleton reflected that he waived his right to a trial by jury.

The court then asked Littleton to plead to the offense, recognizing that the case had been set for a guilty plea. Littleton refused to plead. The court then entered a plea of not guilty on his behalf and called the case to trial. The State called its first witness. As that witness was testifying, Littleton fell to the floor, an ambulance was called, and at 9:36 a.m., the court called a recess. The trial was resumed at 3:25 p.m. At that time, Littleton informed the court that he wished to change his plea to guilty. The court then admonished him about the consequences of his plea and the range of punishment for the charged offense.

Because of Littleton’s intransigence, the trial court discussed at length the ramifications of a guilty plea, and questioned Littleton carefully about his understanding of the plea. The trial court then reminded Littleton about the waiver of rights involved in a guilty plea under the plea bargain agreement (one of which was the waiver of his right to appeal) and questioned him about his understanding of those waivers and his continuing intention to plead guilty. The court eventually concluded that Littleton understood, and Littleton pleaded guilty. After a similar discussion explaining the enhancement allegation against him, Littleton pleaded true to the prior conviction. The court found Littleton guilty and sentenced him to sixteen years’ imprisonment in accordance with the plea bargain agreement.

The first question is whether the appeal is properly before this Court. The general rule is that a defendant in any criminal action has the right of appeal. See Tex.Code CRIM. PRoc. Ann. art. 44.02 (Vernon 1979). If the appeal is from a judgment rendered on the defendant’s plea of guilty or nolo contendere under Tex. Code Crim.PRoc. Ann. art. 1.15 (Vernon Supp.2000), and the punishment assessed did not exceed the punishment recommended by the prosecutor and agreed to by the defendant, the notice of appeal must specify: (1) that the appeal is for a jurisdictional defect, (2) that the substance of the appeal was raised by written motion and ruled on before trial, or (3) that the trial court granted permission to appeal. See Tex.R.App. P. 25.2(b)(8).

The notice of appeal specifies that the appeal is based on matters raised by written motion and ruled on before trial. Further, this Court has held that the volun-tariness of the plea may be raised as well. Thus, several of the issues raised in this appeal are properly before this Court.

Before we can reach those issues, however, we must also determine whether Littleton has effectively waived his right to pursue this appeal as a condition of his plea bargain agreement with the State. A criminal defendant may waive many rights, including the right to appeal. See Smith v. State, 858 S.W.2d 609, 611 (Tex.App.Amarillo 1993, pet. ref'd) (citing Faulder v. Hill, 612 S.W.2d 512, 514 (Tex.Crim.App.1980)).

Until recently, the cases uniformly held that it is premature to waive the right to appeal prior to trial or sentencing because a defendant has no way of knowing with certainty either the errors that might occur at trial or what punishment would be assessed. Thus, before a waiver could be effective, a defendant must be able to make it knowingly and intelligently and with certainty as to what punishment would be assessed. Ex parte Thomas, 545 S.W.2d 469, 470 (Tex.Crim.App.1977); Doyle v. State, 888 S.W.2d 514, 518 (Tex.App.-El Paso 1994, pet. ref'd); Smith, 858 S.W.2d at 611.

Thomas was recently overruled by the Court of Criminal Appeals. Affirming this Court’s opinion, the Court of Criminal Appeals held in Blanco v. State, 18 S.W.3d 218 (Tex.Crim.App.2000), that a waiver of appeal made as a condition of a plea bargain agreement before sentencing occurs is valid. In the underlying opinion, Blanco v. State, 996 S.W.2d 345, 348 (Tex.App.-Texarkana 1999), ajfd, 18 S.W.3d 218 (Tex.Crim.App.2000), we had joined several other courts of appeals, reasoning that the concerns set out in Thomas no longer existed under the present state of the law. We recognized in that appeal that, under the present rules, a premature notice of appeal is effective and that the defendant knows if the court accepts his plea, the negotiated punishment will be assessed (and if not, he can withdraw his plea). We further concluded that, at the point of waiver, a defendant could not state that he was unaware of the errors that might be committed during his trial because he did not waive his right to appeal until after the trial had reached its conclusion and, in that case, the jury had already found the defendant guilty. All that remained was the issue of punishment, and by agreeing to a fixed punishment, the defendant removed any source of error.

Littleton does not argue that he did not knowingly and voluntarily enter into the plea agreement (although he does argue that he did not want to enter any plea on that particular date) nor does he argue that he was unaware of the waiver provision of that plea agreement. The question is whether a written waiver of the right to appeal, signed on the • day of trial and discussed along with the admonishments of the court in accepting the guilty plea and entered concurrently with the plea of guilty, is effective.

There are substantial similarities between this case and Blanco. Littleton had a right to appeal, and a premature notice of appeal would have been effective. Lit-tleton knew with certainty what punishment would be assessed-and that he could withdraw his plea if the court did not act in accordance with that agreement. The proceeding had reached its conclusion, and the court reiterated the various waivers before the guilty plea was accepted and the court found him guilty.

We recognize that the Court of Criminal Appeals has explicitly held as a matter of law that a waiver of right of appeal made prior to trial cannot be made knowingly and intelligently and that such a waiver is therefore not binding on a defendant. Ex parte Townsend, 538 S.W.2d 419, 420 (Tex.Crim.App.1976). This case does not involve a pretrial waiver, and by the point at which the waiver was made effective, the proceeding was effectively over-lacking only the formal acceptance of the plea and the court’s adjudgment of guilt to be complete. We think that, under these facts, the waiver was effective and Littleton should be held to his plea bargain agreement. The appeal is dismissed.

      . Counsel informed the court that he had planned for a later hearing on punishment after a presentence investigation was completed and had a request issued to a Mississippi district court to require a witness (suggested by Littleton) to appear before the court at punishment. Counsel stated that he was not ready to proceed with that phase of the proceeding because the requested witness was not present.

      . The Fifth Circuit has similarly addressed waivers of the right to appeal during a plea proceeding. That court requires that such waivers must be informed and voluntary, and finds waivers made as a part of the plea proceeding and reviewed by the court in accepting a plea bargain sufficient. United States v. Melancon, 972 F.2d 566, 567 (5th Cir.1992). Further, that court does not require that the proposed sentence be an exact number, as is typical in state cases, but finds sufficient specificity when the court informs the defendant of its right to depart from guideline sentencing ranges. Id. In such a case, the uncertainty of the sentence does not render a waiver uninformed. Id. at 568. The key question is instead whether the defendant knew whether he had a right to appeal his sentence and was giving up that right. Id.


author: BARAJAS, Chief Justice.

text:
    The COUNTY OF EL PASO, Appellant, v. Jessie DORADO, Individually and as Mother and Next Friend of Brianna Alexis Miranda, a Minor and on behalf of the Estate of Eduardo Miranda a/k/a Eduardo Miranda Duarte, Deceased, Appellee.
    No. 08-99-00446-CV.
    Court of Appeals of Texas, El Paso.
    Sept. 14, 2000.
    Rehearing Overruled Oct. 11, 2000.

      Jesus Rodriguez, Asst. County Atty., Maria Aurelia Salas-Mendoza, Asst. County Atty., Jose R. Rodriguez, County Atty., El Paso, for Appellant.
    James F. Scherr, Scherr & Legate, P.C., Rodrigo V. Ramos, El Paso, for Appellee.
    Before BARAJAS, C.J., McCLURE and CHEW, JJ.
   OPINION

BARAJAS, Chief Justice.

This is an appeal from an unsuccessful plea to the jurisdiction. For reasons set forth below, we reverse and render.

I. SUMMARY OF THE EVIDENCE

On July 25,1997, Jessie Dorado, (“Dora-do”), sued the County of El Paso, (“El Paso County”), in her individual capacity, as Mother and Next Friend of Brianna Alexis Miranda, and on behalf of the Estate of Eduardo Miranda a/k/a Eduardo Miranda Duarte, deceased. Dorado alleged that the decedent died after he was denied access to his seizure medication following his arrest and subsequent detention in the El Paso County Detention Facility. In her second amended petition, Dorado enunciated six “counts” against El Paso County in which she stated the following causes of action: (1) Civil rights violations under 42 U.S.C. § 1983; (2) Negligence in administering medication and treatment; (3) Twenty-one additional acts of alleged negligence; (4) Recklessness; (5) Further constitutional violations; and (6) Section 101.021 of the Texas Civil Practice and Remedies Code, (i.e., Governmental Liability section of the Tort Claims Act). Dorado also included the following phrase in her petition: “This is an action for damages instituted by Plaintiffs against Defendant is hable in monetary damages to Plaintiffs pursuant to Texas Civil Practice and Remedies Code §§ 71.002, 71.003, 71.004, 71.021 and § 101.001 et seq.”

In response to Dorado’s second amended petition, El Paso County challenged the court’s jurisdiction to hear Dorado’s claims brought under the wrongful death statutes. Specifically, El Paso County complained that the court “does not have subject matter jurisdiction over this cause of action because Defendant County of El Paso is specifically exempt from Section 71.001, 71.002, 71.003, 71.004, and 71.021 of the Texas Civil Practice and Remedies Code, more commonly known as the Wrongful Death and Survival Act.” In her response to El Paso County’s challenge to the court’s subject matter jurisdiction, Do-rado argued that counties are not exempt from the wrongful death statutes. The trial court agreed with the position asserted by Dorado and denied El Paso County’s plea to the jurisdiction. El Paso County now brings this interlocutory appeal, and Dorado seeks sanctions against El Paso County for filing the appeal.

II. DISCUSSION

The sole issue on appeal is whether the trial court erred in denying Appellant’s challenge to the trial court’s jurisdiction to hear a separate cause of action brought under the wrongful death statute.

Whether the trial court properly denied Appellant’s plea to the jurisdiction presents a pure question of law that we will examine under a de novo standard of review. See State Farm Lloyds v. Kessler, 932 S.W.2d 732, 735 (Tex.App.—Fort Worth 1996, writ denied).

The Wrongful Death Act sets forth the circumstances under which a “person” may be liable for an injury that causes an individual’s death. See Tex.Civ.Prac. & Rem. Code Ann. § 71.002 (Vernon 1997). The word “person” is specifically defined to include “an individual, association of individuals, joint-stock company, or corporation or a trustee or receiver of an individual, association of individuals, joint-stock company, or corporation.” Tex.Civ.Prac. & Rem.Code Ann. § 71.001(2) (Vernon 1997). The term “corporation” is further defined to exclude “... a county or a common or independent school district.” Tex.Civ. Prac. & Rem.Code Ann. § 71.001(1) (Vernon 1997). Thus, the plain wording of the statute makes it clear that a county may not be sued for wrongful death under the Wrongful Death Act.

In her response to Appellant’s plea to the court’s jurisdiction, Appellee cited Whipple v. Deltscheff, 731 S.W.2d 700 (Tex.App.—Houston [14th Dist.] 1987, writ ref'd n.r.e.) in support of her contention that “the County of El Paso is not exempt from the Wrongful Death Statute." (emphasis added). Although Appellee accurately summarized the court’s analysis in Whipple, that case simply does not support Appellee’s assertion that a county may be sued for wrongful death under the Wrongful Death Act.

In Whipple, Mr. and Mrs. Delt-scheff successfully prosecuted wrongful death claims against Harris County and Lorraine Whipple. Harris County appealed the verdict. Harris County asserted that the language found in the Wrongful Death Act which excludes counties from liability for wrongful death under the Wrongful Death Act, also excludes counties from being liable for any wrongful death claim. Thus, the issue to be decided was whether the exclusionary language which excludes counties from being liable for wrongful death under the Wrongful Death Act also excludes counties from being liable for wrongful death under the Tort Claims Act. The court, while agreeing that a county cannot be sued for wrongful death under the Wrongful Death Act, held that a county may nonetheless be sued for wrongful death under the Tort Claims Act. The court elaborated:

The language of the statute [Tort Claims Act] could not be more specific: units of government, including counties, that previously enjoyed immunity from suit, shall now be hable for damages for death in certain prescribed situations if a private person would be so liable. The liability of a private person is set out in the Wrongful Death Statute,... The fact that counties are not ‘corporations’ as used in the statute, while still true, is irrelevant to the issue of their liability for wrongful death. The relevant fact is that the liability of a county is, under certain conditions, that of a private person.

Whipple v. Deltscheff, 731 S.W.2d at 704. The court then went on to explain that the Texas Supreme Court has recognized that school districts, which are also excluded from liability under the Wrongful Death Act, have nonetheless been held hable for wrongful death under the Tort Claims Act. See id. at 705. The court concluded its opinion with the following often quoted phrase: “[T]he Wrongful Death Statute does not exempt counties from liability for wrongful death imposed by the limited waiver provisions of the Texas Tort Claims Act.” Id. at 705 (emphasis added). This phrase makes it absolutely clear that a county may indeed be held accountable for wrongful death, but such accountability is imposed by the Texas Tort Claims Act, and not the Wrongful Death Act. Accordingly, we believe the trial court erred by denying Appellant’s challenge to the court’s jurisdiction to hear Appellee’s clear attempt to plead a cause of action under the Wrongful Death Act.

We reverse the trial court’s denial of Appellant’s plea to the jurisdiction to the extent that Appellant challenged the court’s jurisdiction to hear a cause of action under the Wrongful Death Act asserted against Appellant, and we further deny Appellee’s request for sanctions.

      . Chapter 71 of the Texas Civil Practice and Remedies Code is titled "Wrongful Death; Survival; Injuries Occurring Out of State.” Chapter 101 is titled “Tort Claims.”

      . After the court issued its order, Dorado filed a third, fourth and fifth amended petition. In all of her petitions, Dorado continues to include a clear reference to the Wrongful Death Act codified at Tex.Civ.Peac. & Rem Code Ann. § 71.002, et seq. (Vernon 1997).

      . In a drastic departure from the stance she took in the trial court, Appellee now asserts that “Plaintiffs have repeatedly informed Defendant that they have never intended to bring an independent and separate cause of action against Defendant pursuant to the Wrongful Death Act. Plaintiffs’ only claims are raised pursuant to the Texas Tort Claims Act and 42 U.S.C. § 1983.” It is difficult to take this contention seriously, however, because, as noted above, even after Appellant challenged the court’s jurisdiction to hear a cause of action under the Wrongful Death Act, Appellee filed her third, fourth and fifth amended petitions, all of which made a clear reference to section 71.002 of the Texas Civil Practice and Remedies Code. Because the trial court agreed with the argument she asserted in her response to Appellant’s plea to the jurisdiction, we will briefly address that position.

      . The section of the Tort Claims Act that gives rise to a cause of action against a county for wrongful death states: “A governmental unit in the state is liable for: (1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if: (A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and (B) the employee would be personally liable to the claimant according to Texas law; and (2) personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas Law.” Tex.Civ.Prac. & Rem. Code Ann. § 101.021 (Vernon 1997).


author: JIM WORTHEN, Justice.

text:
    CITY OF LONGVIEW, Texas, and A.J. Key, in his Official Capacity, Appellants, v. Jim HEAD d/b/a A & P Amusements, Appellee. Bobby Weaver, Sheriff, Gregg County, Texas, Appellant, v. Jim Head d/b/a A & P Amusements, Appellee.
    Nos. 12-00-00091-CV, 12-00-00103-CV.
    Court of Appeals of Texas, Tyler.
    Sept. 21, 2000.

      Gary Shaver, Longview, for appellants.
    Rex Nichols, Longview, for appellee.
    Panel consisted of DAVIS, C.J., HADDEN, J„ and WORTHEN, J.
   JIM WORTHEN, Justice.

Appellee, Jim Head, owns and operates amusement machines known as eight-linr ers. He filed a declaratory judgment action regarding the legality of his machines naming as defendants the City of Long-view and A.J. Key, in his official capacity as Chief of Police (collectively “the City”) and Bobby Weaver, Sheriff of Gregg County. The two companion cases before us are interlocutory appeals from the trial court’s denial of two pleas to the jurisdiction filed separately by the City and Weaver (collectively “Appellants”) in a single case in the trial court. In two separate briefs, Appellants raise six issues. Because we determine that the trial court does not have jurisdiction to consider this case, we reverse the trial court’s orders and remand to the trial court with instructions to dismiss.

Facts

On January 23, 1998, the Attorney General issued an opinion, DM-466, stating that section 47.01(4)(B) of the Texas Penal Code is unconstitutional, resulting in a determination by the Attorney General that eight-liners are illegal gambling devices. See Op. Tex. Att’y Gen. No. DM-466 (1998). In 1998, Head filed suit in the 188th District Court of Gregg County, seeking declaratory and injunctive relief. He originally named only Weaver as defendant. Head alleged that Weaver had threatened to seize, confiscate or shut down Head’s eight-liners based on the authority of DM-466. In part, Head sought a declaratory judgment that Penal Code section 47.01(4)(B), which sets out an exception to the definition of illegal gambling device and which Head contends describes his eight-liners, is valid and constitutional, and that the Attorney General had no authority to suspend the exemption of section 47.01(4)(B). On June 18, 1998, the trial court granted a temporary injunction. The court found that Head had vested property rights that would be violated by enforcement or prosecutions based on DM-466. The trial court ordered Weaver to desist and refrain from relying on DM-466 to arrest or prosecute Head or to seize or otherwise interfere with Head’s ownership, possession, or operation of his property. Weaver appealed that order to the Texarkana Court of Appeals. See Weaver v. Head, 984 S.W.2d 744 (Tex.App.-Texarkana 1999, no pet.). That court held that the trial court had jurisdiction over the matters alleged by Head, but nonetheless reversed the trial court’s order because it is improper for the trial court to prohibit an official from relying on legal advice from a proper source. Id. at 746-47. The Texarkana court issued its opinion on January 7, 1999, remanding the cause to the 188th District Court for further proceedings.

On November 16, 1999, the Gregg County District Attorney filed a criminal complaint against Head for possession of a gambling device, which is still pending in the Gregg County Court at Law. Head added the City of Longview and A.J. Key, in his capacity as Chief of Police, to his civil action on February 1, 2000. In his Second Amended Original Petition, filed on that date, Head asked the trial court to declare the state’s gambling statute, Chapter 47 of the Penal Code, unconstitutional and issue an injunction against criminal prosecution, confiscation, forfeiture or other action based on Chapter 47. On April 4, 2000, Head filed a supplemental petition by which he withdrew his request for a permanent injunction. At a hearing held that same day, the trial court denied Weaver’s and the City’s previously filed pleas to the jurisdiction. Appellants brought these interlocutory appeals of the trial court’s determination that it has jurisdiction over this case.

Appellants’ JuRisdictional ARGUMENTS

Appellants raise several arguments in support of their position that the trial court does not have jurisdiction over this case. Because they overlap, we will address Weaver’s issues one and two together with the City’s first issue. Appellants complain that Head presents criminal issues to a civil court that a civil court has no jurisdiction to consider, while a criminal case is pending against him in which these issues should be presented. The City asserts that Head’s bare statement that Chapter 47 of the Penal Code is unconstitutional, without specific factual allegations and legal bases challenging its validity, is insufficient to invoke the trial court’s jurisdiction. Although Head states in his petition that he is attacking the constitutionality of Chapter 47, in reality, Appellants argue, Head is merely seeking a declaration that his machines are legal. Appellants contend that, without a request for injunctive relief, Head merely requests an advisory opinion as to whether his eight-liners are legal. Further, Head did not plead, and cannot prove, any harm to a vested property right. Weaver complains that the trial court, by finding it has jurisdiction, has created the potential for conflicting civil and criminal court rulings on the same issue. Finally, the City asserts that the Texarkana opinion in Weaver v. Head is not controlling on the issue of jurisdiction.

Discussion

Pondering whether he could be held criminally liable for operating his eight-liners, Head attempted to have that question answered in a civil forum by filing a declaratory judgment action. The purpose of a declaratory judgment is to obtain a clarification of one’s rights. J.E.M. v. Fidelity & Cas. Co., 928 S.W.2d 668, 671 (Tex.App.-Houston [1st Dist.] 1996, no ■writ). It is preventive in nature and is intended as a means for determining the rights of parties when a controversy has arisen, even before any wrong has actually been committed. Id. A declaratory judgment is appropriate only if a justiciable controversy exists as to the rights and status of the parties and the controversy will be resolved by the declaration sought. Texas Ass’n of Bus. v. Texas Air Control Bd., 862 S.W.2d 440, 446 (Tex.1993). A justiciable controversy must be distinguished from an advisory opinion, which is prohibited under both the Texas and federal constitutions. See id. at 444. Subject matter jurisdiction is an essential requirement to the authority of a court to decide a case. Id. at 443. Head was required to allege facts that affirmatively demonstrate the 188th District Court’s jurisdiction to hear his declaratory judgment action. See id. at 446. Alleging that there are incurable jurisdictional defects visible on the face of Head’s pleadings, Appellants’ pleas to the jurisdiction challenge the trial court’s authority to determine the subject matter of this cause of action. See Bland Indep. Sch. Dist. v. Blue, 989 S.W.2d 441, 445 (Tex.App.-Dallas 1999, pet. granted). When deciding a plea to the jurisdiction, the general rule is the trial court must look to the allegations in the petition and must accept those allegations as true. The trial court does not look at the merits of the case. Id. at 446. We review the trial court’s ruling on a plea to the jurisdiction under a de novo standard of review. Id.

Head asserts that the Texarkana court has determined that the 188th District Court has jurisdiction over this case and argues that the parties are bound by that determination. The general rule is that once subject matter jurisdiction is properly acquired by a court, no later fact or event can defeat jurisdiction. Dallas Indep. Sch. Dist. v. Porter, 709 S.W.2d 642, 643 (Tex.1986). Further, the law of the case doctrine mandates that the ruling of an appellate court on a question of law raised on appeal will be regarded as the law of the case in all subsequent proceedings of the same case. City of Dallas v. Cornerstone Bank, N.A., 879 S.W.2d 264, 268 (Tex.App.-Dallas 1994, no writ). However, this doctrine applies only if the facts in the second trial are substantially the same as in the first trial or so nearly the same that they do not materially affect the legal issues involved in the second trial. Id. There are several factors distinguishing the case before us from the case that was before the Texarkana court in 1999. Head has added defendants and the State has instituted criminal proceedings against Head. However, the most significant factual difference lies in Head’s pleadings, the documents courts consider to determine jurisdiction. More than one year after the Texarkana opinion issued, Head filed a supplemental pleading with the express and sole purpose of withdrawing his request for an injunction. In the context of a declaratory judgment action attacking the validity of a criminal statute, this is a significant fact materially affecting juris-' diction.

The Uniform Declaratory Judgment Act does not confer any additional subject matter jurisdiction on a court. Marshall v. City of Lubbock, 520 S.W.2d 553, 555 (Tex.Civ.App.-Amarillo 1975, writ refd n.r.e.). The meaning and validity of a penal statute or ordinance should ordinarily be determined by courts exercising criminal jurisdiction. State v. Morales, 869 S.W.2d 941, 945 (Tex.1994). Civil courts do not have jurisdiction to address the validity of penal statutes except under limited circumstances. A civil court has jurisdiction to declare constitutionally invalid and enjoin the enforcement of a criminal statute only when (1) there is evidence that the statute at issue is unconstitutionally applied by a rule, policy, or other noncriminal means subject to a civil court’s equity powers and irreparable injury to property or personal rights is threatened, or (2) the enforcement of an unconstitutional statute threatens irreparable injury to property rights. Id. at 942. Moreover, the Supreme Court has made it clear that a naked declaration as to the constitutionality of a criminal statute alone, without a valid request for injunc-tive relief, is not within the jurisdiction of a Texas civil court. See id. At the time the trial court first ruled on the jurisdictional issue in 1998, Head was requesting injunctive relief. The live pleadings before the trial court at the time it made the jurisdictional ruling before us requested a declaration as to the constitutionality of Chapter 47 of the Penal Code without a request for injunctive relief. In the context of the determination of the question of jurisdiction in a declaratory judgment action involving a criminal statute, the absence of that request is a fact that materially affects the legal issue of jurisdiction. Accordingly, because the facts of the case are not substantially the same as in the first trial, and at least one new fact materially affects jurisdiction, we determine that we are not bound by the Texarkana court’s finding on the issue of jurisdiction.

We turn now to our de novo review of the question of the trial court’s jurisdiction over Head’s request for a declaration that this state’s gambling statute is unconstitutional. We determine that the 188th District Court does not have jurisdiction to issue a declaratory judgment determining the constitutionality of Chapter 47.

We are purportedly concerned here with the second scenario referred to in Morales. A civil court has jurisdiction to declare constitutionally invalid and enjoin the enforcement of a criminal statute when the enforcement of an unconstitutional statute threatens irreparable harm to property rights. See id. at 942. Head made the bare allegation in his Second Amended Petition that Chapter 47 of the Texas Penal Code, in its entirety, is unconstitutional. He did not elaborate. We are left to guess whether he refers to the Texas Constitution, the federal constitution, or both, what specific portions of the constitution are offended, and the specific manner in which Chapter 47, in its entirety, offends. Further, not only did Head fail to identify any particular vested property rights that would be harmed by the application of Chapter 47, he did not make even a bare allegation that application of Chapter 47 would harm any vested property right. See Bearing v. Wright, 653 S.W.2d 288, 290 (Tex.1983) (Robertson, J., concurring) (trial court lacked jurisdiction where Dear-ing failed to plead or prove that any vested right will be injured). Head’s petition refers to specific articles and sections of the Texas Constitution and to specific amendments to the federal constitution only with regard to his complaints against DM^166. Likewise, his references to injured vested property rights are all tied to his complaints that law enforcement officials, following the direction of DM-466, are violating his constitutional rights by prohibiting the use of his eight-liners. Allegations directed at DM-466 are not pertinent to the question of jurisdiction, the only question before us.

Head condemned all of Chapter 47, which is entitled “Gambling.” It defines at least nine terms and describes numerous offenses. See Tex. Pen.Code Ann. §§ 47.01-.02, 47.09 (Vernon Supp.2000), §§ 47.03-.08 (Vernon 1994). The record before us indicates a prosecution is pending against Head for possession of gambling devices pursuant to section 47.06 and incorporating the definition of gambling device in section 47.01(4). The pleadings do not show that Head is in danger of being prosecuted for any other offense named in Chapter 47. Therefore, a declaration that the entire chapter is unconstitutional would be improper as Head presents, at best, only hypothetical questions regarding the majority of that chapter, rather than the required justiciable controversy. See Empire Life Ins. Co. v. Moody, 584 S.W.2d 855, 858 (Tex.1979) (“A judgment under the Uniform Declaratory Judgments Act depends on a finding that the issues are not hypothetical or contingent, and the questions presented must resolve an actual controversy, although such questions may in the future require adjudication.”). Further, portions of Chapter 47 have previously withstood attacks on constitutional grounds. See State v. Taylor, 805 S.W.2d 440, 442 (Tex.Crim.App.1991) (held section 47.04(a), offense of keeping a gambling place, not unconstitutionally vague); Garrett v. State, 721 S.W.2d 480, 482 (Tex.App.-Beaumont 1986, no pet.) (held section 47.03(a)(1), offense of gambling promotion by operating or participating in the earnings of a gambling place, not unconstitutionally vague). Moreover, section 47.01(4)(B), which sets out the exception to the definition of illegal gambling device that goes to the heart of Head’s case, has recently been found constitutional by the Amarillo Court of Appeals reviewing a criminal conviction for possession of a gambling device. See Owens v. State, 19 S.W.3d 480, 484 (Tex.App.Amarillo 2000, no pet.). Additionally, while his petition refers globally to Chapter 47, there seems no question that Head is actually only concerned with section 47.01(4)(B). To the extent Head has requested relief in the form of a declaration that his machines are not illegal gambling devices, such relief is inappropriate as it involves a question of fact. See Warren v. Aldridge, 992 S.W.2d 689, 691 (Tex.App.-Houston [14th Dist.] 1999, no pet.) (trial court had no jurisdiction to declare that use of eight-liners does not constitute criminal activity); Emmco Ins. Co. v. Burrows, 419 S.W.2d 665, 671 (Tex.Civ.App.-Tyler 1967, no writ) (declaratory judgment is not proper remedy to resolve factual dispute).

As explained above, Head’s petition lacks specificity with regard to the jurisdictional allegations he is required to set forth. Additionally, the petition fails to request an injunction as required by Morales. Any declaration of the trial court relative to the constitutionality of the statute is unenforceable except by injunction. Malone v. City of Houston, 278 S.W.2d 204, 206 (Tex.Civ.App.-Galveston 1955, writ ref d n.r.e.). If Head’s petition could garner any relief from the trial court, it would be merely advisory. No controversy would be resolved. Accordingly, a “naked” declaration that Chapter 47 is unconstitutional, without a valid request for injunctive relief, is not within the civil district court’s jurisdiction. See Morales, 869 S.W.2d at 947; Dallas County Dist. Attorney v. Doe, 969 S.W.2d 537, 542 (Tex.App.Dallas 1998, no pet.).

In light of the state of Head’s deficient pleadings, we hold that the 188th District Court does not have jurisdiction over this action. Further, in the absence of any showing that vested property rights are in jeopardy, these questions can be resolved in the pending criminal proceeding and there is no occasion for the intervention of a civil court. See Morales, 869 S.W.2d at 945. The opportunity to assert the unconstitutionality of a penal provision as a defense to a criminal prosecution is an adequate remedy at law. State v. Logue, 376 S.W.2d 567, 572 (Tex.1964); City of Austin v. Austin City Cemetery Ass’n, 87 Tex. 330, 28 S.W. 528, 530 (1894). In some instances, irreparable injury may occur where the enforcement of the penal provision would result in the destruction of the property before the validity of the provision could be tested in the courts. Adams v. Antonio, 88 S.W.2d 503, 506-07 (Tex. Civ.App.-Waco 1935, writ ref d). However, Head’s pleadings do not show that is the case here. The harm inherent in prosecution for an offense does not constitute irreparable harm as contemplated by Morales. See City of Dallas v. Dallas County Housemovers Ass’n, 555 S.W.2d 212, 214 (Tex.Civ.App.-1977, no writ). Further, where civil courts exercise equity jurisdiction to determine the constitutionality of criminal statutes, there exists a real danger of conflicting decisions between civil and criminal courts of last resort regarding the validity of such statutes. See Mor ales, 869 S.W.2d at 947-48. We conclude that the 188th District Court does not have jurisdiction to issue a declaratory judgment determining the constitutionality of Penal Code Chapter 47. We sustain Weaver’s first and second issues and the City’s first issue.

In his third issue, Weaver asserts that the trial court lacked jurisdiction over Head’s suit because Head sued the wrong parties. We agree. Authority to enforce criminal statutes is vested in district and county attorneys. See Tex. Const, art. V, § 21; Lone Starr Multi Theatres, Inc. v. State, 922 S.W.2d 295, 298 (Tex.App.-Austin 1996, no writ). The party responsible for enforcement of the allegedly unconstitutional statute must be the defendant against whom suit for declaratory relief is brought. Lone Starr, 922 S.W.2d at 297. In the absence of that party, the petitioner merely requests an advisory opinion. Id. Accordingly, Head’s failure to name as a party the district or county attorney of Gregg County constitutes an additional ground for our holding that the 188th District Court does not have jurisdiction over this cause. We sustain Weaver’s third issue. Due to our disposition of these issues, we need not address the remainder of Appellants’ complaints. See Tex.R.App. P. 47.1.

Subject matter jurisdiction is lacking when, as here, incurable jurisdictional defects are shown on the face of the plaintiffs pleadings. See Blue, 989 S.W.2d at 445. When subject matter jurisdiction is lacking, dismissal is required, regardless of the stage in the proceedings at which the lack of subject matter jurisdiction arises. Morales, 869 S.W.2d at 949; General Tel. Co. v. City of Point Comfort, 553 S.W.2d 808, 811 (Tex.Civ.App.-Corpus Christi 1977, no writ). Accordingly, we reverse the trial court’s order, dated April 13, 2000, denying Weaver’s Second Amended Plea to the Jurisdiction and the trial court’s order, dated April 7, 2000, denying the City’s Plea to the Jurisdiction and remand this case to that court with instructions to dismiss for want of jurisdiction.

      . Tex. Pen.Code Ann. § 47.01(4)(B) (Vernon Supp.2000).


author: ANN CRAWFORD McCLURE, Justice.

text:
    Mark ELIAS, Appellant, v. MR. YAMAHA, INC., d/b/a Team Mr. Honda, Yamaha, Appellee.
    No. 08-99-00100-CV.
    Court of Appeals of Texas, El Paso.
    Oct. 12, 2000.

      Corey W. Haugland, James, Goldman & Haugland, P.C., El Paso, for appellant.
    Don Studdard, Patrick A. Groves, Stud-dard & Melby, Jeffrey D. Rago, El Paso, for appellee.
    Before Panel No. 2 BARAJAS, C.J., McCLURE, and CHEW, JJ.
   OPINION

ANN CRAWFORD McCLURE, Justice.

Mark Elias (Elias) filed suit against Mr. Yamaha, Inc., d/b/a Team Mr. Honda, Yamaha (Mr. Yamaha) for violations of the Texas Deceptive Trade Practices Act (DTPA), breach of contract, fraud, and conversion arising out of Elias’s attempted purchase of a jet ski. Following a bench trial, the court found that Mr. Yamaha committed fraud, had breached its contract to sell a jet ski to Elias, and had converted the jet ski offered by Elias as a trade-in on the purchase of a new jet ski. The court awarded actual damages in the total amount of $1,738, attorneys’ fees through the entry of judgment in the sum of $11,-000, and punitive damages in the sum of $8,000. On appeal, Elias attacks the trial court’s adverse finding on his DTPA claim, and the amounts awarded for loss of use and attorneys’ fees. We modify the damage award, reform the judgment, and affirm as reformed.

FACTUAL SUMMARY

On March 28, 1998, Elias visited the sales floor of Mr. Yamaha where he had purchased several jet skis in the past. He saw on display a red 1998 GSX Limited Sea-Doo jet ski and spoke to Ryan Seavey, a salesperson he knew from prior dealings. After negotiating a base sales price of approximately $7,999 and discussing the possibility of using his 1996 Sea-Doo as a trade-in, Elias decided to purchase the GSX Limited. He left a $100 deposit with Seavey, explaining that he did not want the display model sold to someone else as had happened to him the previous year. Seavey assured Elias that the display model would be his. Elias agreed to bring his 1996 Sea-Doo into the store for appraisal on April 1 and his brother, Matthew Elias, delivered the jet ski on that date. The following day, Elias entered into a written contract with Mr. Yamaha for purchase of the GSX-Limited for the total price of $9,986.33. Because Elias was “upside down” with respect to his trade-in, the purchase price included the $989 difference between the trade-in value and the amount Elias still owed on it. Mr. Yamaha did not inform Elias that it had sold the display model red GSX-Limited to Ricardo Lopez on April l.

Elias initially intended to finance the purchase through his local bank, Bank CNB. However, he agreed to seek financing from a company known as HRSI based upon Seavey’s representations that HRSI might structure the deal with no down payment and no payments for nine months. Elias was familiar with HRSI because the company had financed his 1996 Sea-Doo. Although he did not expect to have any difficulty obtaining financing, he told Seavey to utilize Bank CNB in the event HRSI refused funding. As it turned out, Seavey called Elias on April 3 and told him that HRSI had refused to finance the purchase. Consequently, Elias called Robert Juarez, his loan officer at Bank CNB. Juarez agreed to approve financing, called Michelle at Mr. Yamaha, told her that Bank CNB would provide financing, and asked her to fax him the purchase order. The purchase order faxed to Juarez lacked a serial number and Juarez informed Elias that he needed the serial number in order to complete the loan. Elias, in turn, called Seav-ey who told him for the first time that Mr. Yamaha had sold the GSX-Limited to someone else. Seavey promised Elias that they would order one and that it would be available in one or two weeks. Since it was clear they would not obtain a serial number immediately, Juarez put the deal “on the back burner” until April 20, when he learned that Seavey had told Elias that the jet ski should arrive “any day.” Elias went to the bank on April 22 to sign a loan application. According to Juarez, the financing would have been completed in less than a day once he received the serial number. The jet ski did not arrive in April. In early May, Mr. Yamaha once again led Elias to believe that the jet ski would be delivered soon,. but it did not arrive in May either. Unbeknownst to Elias, Mr. Yamaha had not even ordered the jet ski despite Seavey’s representations to the contrary.

As a result of the delay, Elias was required to make the April and May payments on his 1996 Sea-Doo which he intended to trade in for the new model. Although Elias did not yet know it, Mr. Yamaha had sold the trade-in to Richard Escobar on May 6, 1998 for $4,668. Mr. Yamaha did not immediately deliver title to Escobar since it had not completed the deal with Elias and paid off the loan. Mr. Yamaha told Escobar that he would receive the title within three to four weeks. In the meantime, a Parks and Wildlife officer stopped Escobar at an area lake, questioned him about title to the jet ski, and warned him that he would be given a ticket. When Escobar called to inquire at Mr. Yamaha, he was told that the bill of sale would serve the purpose until they received his title. Escobar subsequently received another warning and then a ticket for not having the title. He again inquired with Mr. Yamaha, but they continued to make excuses, telling him that the lien-holder had not released the lien. Finally, around June 11, Escobar received his title from Mr. Yamaha. By admittedly backdating the title and other documents to May 6, 1998, Mr. Yamaha had made the title transfer based upon a power of attorney purportedly bearing Elias’s signature. Elias denied ever signing the power of attorney and claimed it was a forgery.

On June 2, Seavey called Elias and tried to sell him an XP Limited jet ski, a model Elias considered inferior. When Elias refused, the conversation abruptly concluded. A few minutes later, Mike McIntyre, one of the owners of Mr. Yamaha, called Elias and asked what could be done to resolve the problem. McIntyre also tried to convince Elias to buy the XP Limited. Elias replied that they could not resolve the dispute because Mr. Yamaha did not have the jet ski he wanted. Instead, he demanded that McIntyre return his old jet ski so that he could take his business elsewhere. McIntyre said he could not return it because it had been sold; he then became angry and uttered an obscenity before hanging up. Elias and his brother immediately went to Mr. Yamaha. Upon seeing Elias walk into the office, McIntyre asked someone to call the police. Elias demanded the return of the jet ski that had been brought in for repairs, but McIntyre refused and told him they would have to “take it to court and settle it there.” Elias waited for the police to arrive and, with their assistance, retrieved his jet ski. A few days later, Elias bought a GSX-Limited jet ski from a dealer in Las Cruces, New Mexico.

On July 14, 1998, Elias filed suit against Mr. Yamaha for breach of contract, DTPA violations, fraud, and conversion. The trial court found in favor of Elias on the breach of contract, fraud, and conversion actions, but found the evidence insufficient to establish the DTPA violations. The court awarded actual damages, punitive damages, and attorneys’ fees.

DPTA CLAIM

In his first issue on appeal, Elias challenges the trial court’s adverse finding on his DTPA claim pertaining to the sale of his trade-in. He asks us to reform the judgment to include an award of treble damages in the sum of $27,742 for a knowing violation of the DTPA. Although he does not specifically raise his contention in terms of either legally or factually insufficient evidence, we interpret his argument to be that he established the DTPA violation as a matter of law. See Sterner v. Marathon Oil Company, 767 S.W.2d 686, 690 (Tex.1989).

When attacking the legal sufficiency of the evidence to support an adverse finding on an issue for which he had the burden of proof, i.e., challenging the trial court’s finding as a matter of law, the appellant must demonstrate on appeal that the evidence conclusively established all the vital facts in support of the issue. Sterner, 767 S.W.2d at 690; Kratz v. Exxon Corp., 890 S.W.2d 899; 902 (Tex.App.—El Paso 1994, no writ); Chandler v. Chandler, 842 S.W.2d 829, 832 (Tex.App. — El Paso 1992, writ denied). A party attempting to overcome an adverse fact-finding as a matter of law must surmount two hurdles. Sterner, 767 S.W.2d at 690. First, the record must be examined for evidence that supports the finding, while ignoring all evidence to the contrary. Sterner, 767 5.W.2d at 690; Kratz, 890 S.W.2d at 902. Second, if there is no evidence to support the finding, then the entire record must be examined to see if the contrary proposition is established as a matter of law. Sterner, 767 S.W.2d at 690; Kratz, 890 S.W.2d at 902. Only if the contrary position is conclusively established will the point of error be sustained. Kratz, 890 S.W.2d at 902; Chandler, 842 S.W.2d at 832.

Citing Apple Imports, Inc. v. Koole, 945 S.W.2d 895 (Tex.App. — Austin 1997, writ denied), Elias contends that Mr. Yamaha breached an implied representation that it would not sell his trade-in before completing the purchase of the new jet ski. In Apple Imports, the plaintiffs visited the defendant automobile dealership on a Saturday, decided to purchase a used Mazda MX-3, and orally agreed to trade in their Dodge Dynasty. Apple Impends, 945 S.W.2d at 897. Because it was late in the day, they could not complete the transaction by executing the necessary documents before the dealership closed for the weekend. Id. The plaintiffs left their Dodge at the dealership and took the Mazda home for the weekend, intending to return on Monday and complete the deal. Id. During the course of the weekend, however, they changed their minds about the purchase. Id. When they returned to the dealership on Monday, they discovered that their Dodge had already been sold to a wholesaler even though the dealership lacked both the plaintiffs’ authorization to make the sale and the title to the vehicle. Id. The dealership made arrangements to have the plaintiffs’ car returned, but the plaintiffs did not pick it up for several months. Id. When they ultimately retrieved it, the plaintiffs discovered that it had an additional 800 miles on the odometer and a large scratch on one side. Id. The plaintiffs filed suit, alleging DTPA violations and conversion. A jury found in favor of the DTPA violation but found that the dealership had not converted the automobile. Apple Imports, 945 S.W.2d at 897. On appeal, the dealership, asserting that its sale of the Dodge was a mere mistake and not a misrepresentation, challenged the jury’s finding of a DTPA violation. Id. at 898. The Court of Appeals determined that when the dealership took possession of the plaintiffs’ car to determine its trade-in value, it made an implied representation that it would not sell the vehicle until the transaction had been completed and there was a clear showing of a valid and complete transfer of ownership. Id. at 898-99. By selling the car before they completed the transaction and secured the title, the dealership violated the implied representation.

We do not read Apple Imports to hold that a dealership, upon receiving a trade-in vehicle, must wait for delivery of the new vehicle to the buyer before it sells the trade-in vehicle. Instead, it holds that the dealership could not sell the vehicle without authorization or title. This case is distinguishable because Elias and Mr. Yamaha executed the documents necessary to complete the transaction, including a power of attorney authorizing Mr. Yamaha to sell, transfer, and assign the 1996 jet ski. While Elias denied signing the power of attorney, he admitted that the signature on the document looked like his signature. Recognizing that in a legal sufficiency review, we must examine only the evidence that supports the finding and ignore all evidence to the contrary, we must discount Elias’s protests that he did not sign the power of attorney. Viewed in that prism, there is some evidence to support the adverse finding. Because Appellant has failed to overcome the first hurdle, it is unnecessary for us to address the second. Point of Error No. One is overruled.

LOSS OF USE DAMAGES

In Issue Two, Elias contends that the trial court improperly limited his loss of use damages to only four days at the rate of $239 per day, rather than awarding him damages for each of the ninety-one days he was deprived of his new jet ski. Although Elias does not address the standard of review pertaining to this issue, Mr. Yamaha argues that Elias is effectively challenging the legal sufficiency of the evidence to support the trial court’s award of damages for loss of use. We disagree that Elias’s argument concerns only evidentiary sufficiency. Whether the trial court applied an improper measure of damages is a question of law subject to a de novo review, and Elias’s brief fairly raises this issue. Additionally, an examination of whether the trial court properly applied the law to the facts implicates the legal and factual sufficiency of the evidence. Because Elias requests us to “modify” the award pertaining to loss of use damages, we interpret his challenge as being directed at only the legal sufficiency of the evidence to support the award. Therefore, we restrict our review to these two issues.

Regarding the issue of the proper measure of damages, Mr. Yamaha contends that Elias is not permitted to recover both loss of use damages and the total value of the property that has been lost. We would agree with this argument if the trial court had awarded the loss of use damages in connection with Mr. Yamaha’s conversion of the 1996 jet ski. See Winkle Chevy-Olds-Pontiac, Inc. v. Condon, 830 S.W.2d 740, 746 (Tex.App. — Corpus Christi 1992, writ dism’d) (holding that a plaintiff who establishes conversion is entitled to either the return of the property and damages for loss of use during the tortfeasor’s detention, or the value of the property); First Nat’l Bank of Missouri City v. Gittelman, 788 S.W.2d 165, 169 (Tex.App.—Houston [14th Dist.] 1990, writ denied)(holding that the plaintiff may not generally recover in conversion both for the market value of the property and for loss of use). Here, however, the trial court awarded loss of use damages in connection with Mr. Yamaha’s breach of the contract, that is, its failure to deliver the new jet ski. Mr. Yamaha does not direct us to any authority holding that Elias is unable to recover loss of use damages arising from the breach of contract and also recover the market value of the jet ski converted by Mr. Yamaha. Because there are two different injuries, we conclude that Elias may recover both types of damages.

In support of his argument that the trial court applied an incorrect measure of damages and improperly limited his recovery, Elias relies upon Luna v. North Star Dodge Sales, Inc., 667 S.W.2d 115 (Tex. 1984), which addressed the correct method by which to measure loss of use damages for deprivation of the use of a repairable car. Luna rejected the argument that in order to recover loss of use damages, a plaintiff had to prove that he actually incurred monetary loss by renting an automobile or expending monies for alternative transportation. Luna, 667 S.W.2d at 118. Instead, the plaintiff may establish loss of use by showing the reasonable rental value of a substitute automobile. Id. at 119. The Supreme Court also addressed the specific issue before us, that is, the period of compensatory loss. The intermediate appellate court had determined that when the loss of use is over an extended period of time, the proper method of proving reasonable rental value is not by the day, week, or month, but by a sum certain covering the entire period. Emphasizing that “[t]he thing to be kept in view is that the party shall be compensated for the injury done,” the Supreme Court concluded that the period of compensatory loss of use will be the amount of time the plaintiff was deprived of the loss of use of the automobile. Luna, 667 S.W.2d at 119. Thus, the rental value, whether by the day, week, or month, is indicative of the loss suffered. Id.

Mr. Yamaha asserts that Luna is inapplicable here because it is a DTPA case and the trial court below found against Elias on his DTPA claim. We disagree. Even though Luna is a DTPA case, its common-sense method of measuring loss of use damages is not limited to DTPA cases and can be applied in other contexts. On the other hand, Elias suggests that Luna painted a bright-line rule that he is entitled to recover for the entire period he was deprived of his jet ski regardless of whether he would have actually used it every day. We disagree with his assessment as well. Luna emphasized that a rigid and unbending rule is inadvisable and the period of compensation will vary with the character of the property and with the facts of the case. Luna, 667 S.W.2d at 119. We interpret this language as requiring courts to consider the particular circumstances of the plaintiff and the facts of each case in assessing loss of use damages. See Mondragon v. Austin, 954 S.W.2d 191, 194 (TexApp. — Austin 1997, pet. denied)(holding that the fact finder should consider the particular circumstances of the plaintiff in determining a compensable period of time for loss of use damages). Luna clearly established that the character of the property must be considered in determining loss of use damages. While a jet ski is readily distinguishable from a personal automobile in terms of utility, and while it may be used only seasonally, we are not inclined to limit recovery to established use patterns provided there is evidence to support its intended use. Clifton v. Jones, 634 S.W.2d

883, 887 (Tex.App.—El Paso 1982, no writ) (holding that although the plaintiffs proposed use of his airplane was greatly in excess of his recent actual use, there was evidence to support the court’s findings); Carroll v. State Farm Ins. Co., 427 So.2d 24, 27 (La.App. 3rd Cir.1983) (appellate court deleted award of damages for loss of use of ski boat where owners failed to offer evidence to show the time period required to make repairs to their boat, and no evidence was introduced showing extent that plaintiffs had actually used the boat in the past or extent to which they were deprived of its use).

We now turn to whether the trial court properly applied the measure of damages to these particular facts. In considering a legal sufficiency or “no evidence” point, an appellate court considers only the evidence which tends to support the jury’s findings and disregards all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965); Parallax Corp., N.V. v. City of El Paso, 910 S.W.2d 86, 89 (Tex.App.—El Paso 1995, writ denied). If any probative evidence supports the jury’s determination, it must be upheld. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661-62 (Tex.1951); Parallax Corp., N.V., 910 S.W.2d at 89. In a bench trial, a legal sufficiency challenge to the trial court’s findings of fact is reviewable under the same standard that is applied in reviewing evidence supporting a jury’s answer. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.1994); Schwartz v. Pinnacle Communications, 944 S.W.2d 427, 432 (Tex.App.—Houston [14th Dist.] 1997, no writ).

The trial court heard evidence that Elias only used the jet ski on weekends and that he never went to the lake until after Memorial Day weekend. In 1998, Memorial Day occurred on May 25 so there were five weekends between Memorial Day and July 2, a Saturday, when Elias obtained his new jet ski. There is no evidence to support a conclusion that he would have only used the jet ski on four of these ten days. Thus, Elias conclusively established that he was deprived of the use of the jet ski for these ten days. Consequently, we find that the trial court improperly limited his loss of use damages to four days. Point of Error No. Two is sustained.

ATTORNEYS’ FEES

In Issue Three, Elias contends that the trial court should have awarded him attorneys’ fees through the entry of judgment in the sum of $18,000 based upon uncontroverted expert testimony rather than limiting the award to $11,000. In awarding attorney’s fees, the trial court, as the trier of fact, must take into account various factors such as the nature and complexity of the case, the nature of the services provided by counsel, the time required for trial, the amount of money involved, the client’s interest that is at stake, the responsibility imposed upon counsel, and the skill anda expertise required. Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 881 (Tex.1990). The allowance of attorneys’ fees rests within the sound discretion of the trial court and will not be reversed without a showing of an abuse of that discretion. Id. Generally, the testimony of an interested witness, though uncontradicted, does no more than raise a fact issue to be determined by the jury. Id. at 882. However, an exception to this rule exists where the testimony of an interested witness is not contradicted by any other witness, or attendant circumstances, and the same is clear, direct, and positive, and free from contradiction, inaccuracies, and circumstances tending to cast suspicion thereon. Id.; see also Gunter v. Bailey, 808 S.W.2d 163, 165 (Tex.App.—El Paso 1991, no writ). In such a case, the testimony is taken as true, as a matter of law. Ragsdale, 801 S.W.2d at 882. The exception to this interested witness rule is especially true where the opposing party has the means and opportunity of disproving the testimony, if it is not true, and fails to do so. Ragsdale, 801 S.W.2d at 882; Anchor Casualty Co. v. Bowers, 393 S.W.2d 168, 169-70 (Tex.1965). In other words, failure to contradict is another factor to be considered by the court, but it does not necessarily preclude a finding that a fact issue is raised when there are circumstances in evidence tending to discredit or impeach the testimony of the interested witness. Id. Ragsdale does not mandate an award of the amount claimed in every case when uncontradicted testimony is offered. Id. If the evidence is unreasonable, incredible, or its belief is questionable, then such evidence would only raise a fact issue to be determined by the trier of fact. Id.

Corey Haugland, one of the two attorneys representing Appellant, testified regarding attorneys’ fees. Haugland had been involved in similar types of cases in the past and believed a fee in the amount of $125-$175 per hour was a reasonable rate. Although they had a contingent fee contract with Elias, Haugland and Minton maintained billing records indicating that the total amount of fees incurred was $17,-712. Both Haugland and Minton had incurred additional time which was not reflected in the billing statement. With those additional hours calculated at a rate of $175 per hour for Haugland and $115 per hour for Minton, the total fees came to approximately $20,000. Admitting that he would trim the bill if he were actually billing Elias for their fee, Haugland suggested that the total attorneys’ fees should be reduced by 10 percent or to $18,000 in order to constitute a reasonable and necessary fee. He specifically stated that $18,000 is a reasonable and necessary fee under what he described as extraordinary circumstances. Although Haugland attempted to put the case on a fast track and handle it at low cost by not taking depositions, the defendant forced him to handle the case at a high cost, especially with regard to attorney time, due to excessive discovery fights and difficulty in obtaining records related to the transactions. Mr. Yamaha did not cross-examine Haugland at all.

Haugland’s testimony relating to attorneys’ fees was uncontradicted, unim-peached, internally consistent, and readily subject to disproof. Mr. Yamaha chose not to cross-examine him about his testimony or the billing statement he had before him. On appeal, Mr. Yamaha asserts that Haugland’s testimony that he would trim the bill by 10 percent is an admission that his bill was inflated, and thus, the trial court could have found that the attorneys’ fees testified to by Haugland were also inflated and unbelievable. We disagree that Haugland’s testimony permits such a conclusion. Haugland’s acknowledgment that he and Minton had been forced to devote an excessive amount of time into the case does not permit a conclusion that the bill is artificially inflated, at least not in the absence of any cross-examination of Haugland or other evidence to establish that the amount of billable time was not a reasonable amount to expend in prosecuting this case. Because none of the surrounding circumstances of the case indicate that the amounts testified to by Haugland are incredible or unreasonable, we find that the trial court abused its discretion in reducing the award of attorneys’ fees to $11,000. See Board of County Comm’rs of County of Beaver Oklahoma v. Amarillo Hosp. Dist., 835 S.W.2d 115, 128 (Tex.App. — Amarillo 1992, no writ). Point of Error No. Three is sustained.

Having sustained Points of Error Nos. Two and Three, we modify the portion of the judgment pertaining to the award of loss of use damages and reform it to reflect damages in the amount of $2,390. We further modify the portion of the judgment pertaining to the award of attorneys’ fees through trial and reform it to reflect fees in the sum of $18,000. The judgment is affirmed as reformed.

      . At the same time he delivered the trade-in jet ski, Matthew also delivered another jet ski that needed repairs.

      . This term means Elias owed more than the trade-in or market value of the item. Elias owed $4,189 on the loan as of April 2, but Mr. Yamaha valued the trade-in at only $3,200.

      .The sales contract between Lopez and Mr. Yamaha indicates that his base price was $7,530. There is no explanation in the record for the $469 discrepancy between the base sales price contained in Lopez’s contract and the $7,999 base sales price contained in Elias's contract. The two sales contracts involved the identical watercraft model and were signed only one day apart.

      . Elias paid $105 on April 16, 1998, and $500 on May 25, 1998.

      . Elias testified at trial that McIntyre said, "You're acting like a f — ing idiot” and hung up on him.

      . In his prayer for relief, Elias asks that we reverse and render judgment, rather than reverse and remand. Because the former is the appropriate remedy for a legal sufficiency challenge, and the latter is only appropriate when we sustain a factual sufficiency complaint, we have construed his arguments as challenging only the legal sufficiency of the evidence.

      . The 91-day period represents the time from the date the parties entered into the contract, April 3, 1998, until Elias finally obtain a jet ski on July 3, 1998. The trial court calculated Elias’s loss of use damages by multiplying four days by a rental rate of $239 per day. Thus, the court specifically found that Elias suffered loss of use damages in the amount of $956 as a result of Mr. Yamaha’s breach of the contract.

      . We note that Mr. Yamaha did not bring its own appeal in order to challenge this aspect of the trial court’s judgment. In fact, Mr. Yamaha requests in its prayer that we affirm the trial court’s judgment as rendered. Therefore, even if Mr. Yamaha had been correct in this contention, its complaint would be waived.

      . The trial court specifically found that “[a]s a result of Mr. Yamaha’s failure to comply [with the agreement to sell Elias a 1998 Sea Doo GXS-Limited] Mark Elias suffered damages as follows: ... $956.00 for the loss of use due to Mr. Yamaha’s failure to deliver.”

      . We also recognize that recreational vehicles are often considered status symbols by their owners. Thus, we find some merit to Elias's contention that deprivation of use need not be limited to those periods of time that a watercraft is actually launched in the water. It is not outside the realm of possibility that a boat owner may periodically "use” the boat simply by venturing into the garage to admire it, or to park it in view of the neighborhood. However, to the extent that loss of use damages should be expanded to encompass such a custom, there must nevertheless be evidence to support it. There being no such evidence in the record before us, we need not decide the issue here.

      . Haugland initially filed the DXPA letter but, in order to "hold down costs,” he subsequently turned the matter over to one of his associates, Don Minton, after receiving an unsatisfactory response to the letter. Haug-land continued to supervise the case.

      . This figure represents ten days at a rental rate of $239 per day.


text:
    Patricia BECKER, Appellant, v. The STATE of Texas, Appellee.
    No. 08-99-00405-CR.
    Court of Appeals of Texas, El Paso.
    Oct. 12, 2000.

      Catherine Clifton, Asst. County Atty., Odessa, for Appellant.
    Tracey Bright, County Atty., Michele L. Surratt, Asst. County Atty., Odessa, for State.
    Before Panel No. 1 LARSEN, McCLURE, and CHEW, JJ.
   OPINION

ANN CRAWFORD McCLURE, Justice.

Patricia Becker appeals from an order of the trial court revoking her misdemean- or probation. She had previously been convicted of assault and assessed punishment of a fine of $250 and confinement in jail for one year, probated for one year. The State filed a motion to revoke based upon allegations that Appellant had committed theft and had failed to pay her fine, court costs, and monthly probation fee. Following a contested hearing, the trial court determined that Appellant had violated the terms and conditions of probation by committing theft. Regarding the remaining allegations, the court found she had established her affirmative defense of an inability to pay. Based upon the proven violation, the trial court revoked its prior probation order. Appellant challenges the revocation order by a single point of error. We affirm.

REVIEW OF THE REVOCATION ORDER

In Point of Error No. One, Appellant contends that the evidence is factually insufficient to support the court’s determination that she committed theft. She does not allege that the court abused its discretion in revoking her probation. The State, on the other hand, argues that the sole question in an appeal from a revocation order is whether the trial court abused its discretion in revoking Appellant’s probation. See Jackson v. State, 645 S.W.2d 303, 305 (Tex.Crim.App.1983); Naquin v. State, 607 S.W.2d 583, 586 (Tex.Crim.App. [Panel Op.] 1980). Under the traditional standard applied in these cases, the evidence is viewed in the light most favorable to the verdict and an abuse of discretion will not be found so long as there is some evidence to support any of the alleged violations. See Cardona v. State, 665 S.W.2d 492, 493-94 (Tex.Crim.App.1984); O’Neal v. State, 623 S.W.2d 660, 661 (Tex.Crim.App.1981). The State, maintaining that factual sufficiency review has not been extended to ancillary determinations such as revocation proceedings, urges us to apply the traditional abuse of discretion analysis.

Factual Sufficiency Review Inapplicable

The State is correct that a probation revocation proceeding is not an ordinary criminal proceeding. Like a parole revocation hearing, a community supervision revocation hearing does not constitute a stage of a criminal prosecution even though it results in the probationer’s loss of conditional liberty. Gagnon v. Scarpelli 411 U.S. 778, 782, 93 S.Ct. 1756, 1759, 36 L.Ed.2d 656 (1973). Further, it is neither a criminal nor a civil trial, but rather an administrative hearing. See Cobb v. State, 851 S.W.2d 871, 873 (Tex.Crim.App.1993); Burke v. State, 930 S.W.2d 230, 232 (Tex.App.—Houston [14th Dist.] 1996, pet. refd). The degree of discretion possessed by the trial courts also distinguishes the community supervision revocation proceeding from other criminal proceedings. As a general matter, the trial courts possess broad discretion in supervising those defendants who are placed on community supervision. See generally Tex.Code Crim. Proc.Ann. art. 42.12 (Vernon Supp.2000); see also Speth v. State, 6 S.W.3d 530, 533 (Tex.Crim.App.1999) (consistent with its broad discretionary powers in deciding whether to grant community supervision, a trial court likewise has broad discretion in determining the conditions to be imposed); Todd v. State, 911 S.W.2d 807, 817 (Tex. App.—El Paso 1995, no pet.) (accord). This degree of discretion extends to revocation proceedings such that the trial court has considerable discretion to modify, revoke, or continue the probation. See Tex. Code Crim.Proc.Ann. art. 42 .12, § 21; Ex parte Tarver, 725 S.W.2d 195, 200 (Tex.Crim.App.1986); Flournoy v. State, 589 S.W.2d 705, 707 (Tex.Crim.App.1979); Cole v. State, 578 S.W.2d 127, 128 (Tex.Crim.App.1979). Given the broad discretion vested in the trial court and the nature of the proceeding, the courts have traditionally held that the only issue presented in an appeal from an order revoking probation is whether the trial court abused its discretion.

In Clewis v. State, the Court of Criminal Appeals determined that the courts of appeals are constitutionally empowered to determine whether factually sufficient evidence supports the elements of the offense. See Cain v. State, 958 S.W.2d 404, 408 (Tex.Crim.App.1997); Clewis v. State, 922 S.W.2d 126, 129-30 (Tex. Crim.App.1996). Prior to Clewis, this type of review had been available only in examining affirmative defenses. See e.g, Meraz v. State, 785 S.W.2d 146, 153-54 (Tex. Crim.App.1990). However, the higher Court has not extended factual sufficiency review to other types of criminal proceedings, and a number of intermediate courts which have considered the question have determined that factual sufficiency review is inapplicable to a review of revocation orders. See e.g., Joseph v. State, 3 S.W.3d 627, 642 (Tex.App.—Houston [14th Dist.] 1999, no pet.); Johnson v. State, 2 S.W.3d 685, 687 (Tex.App.—Fort Worth 1999, no pet.); Liggett v. State, 998 S.W.2d 733, 735-36 (Tex.App.—Beaumont 1999, no pet.); Johnson v. State, 943 S.W.2d 83, 85 (Tex.App.—Houston [1st Dist.] 1997, no pet.); Brumbalow v. State, 933 S.W.2d 298, 300 (Tex.App.—Waco 1996, pet. ref'd). These decisions generally reason that examination of the revocation order for factually sufficient evidence is inappropriate given the trial court’s wide discretion and the unique nature of community supervision revocation proceedings. Because we are persuaded there is merit in both arguments, we likewise decline to extend Cle-wis to a review of revocation orders and instead will conduct our review according to the traditional analysis.

No Abuse of Discretion

In a community supervision revocation proceeding, the State bears the burden to establish the alleged violations of the trial court’s order by a preponderance of the evidence. Cobb, 851 S.W.2d at 873. It is the trial court’s duty to determine whether the allegations in the revocation motion are true. Langford v. State, 578 S.W.2d 737, 739 (Tex.Crim.App.1979). In making this determination, the trial court is the sole trier of facts, and the judge of the credibility of the witnesses and the weight to be given the testimony. Taylor v. State, 604 S.W.2d 175, 179 (Tex.Crim. App.1980); Johnson, 2 S.W.3d at 686-87. The reviewing court examines the record in the light most favorable to the judge’s ruling to determine whether the State established by a preponderance of the evidence that the defendant violated the terms and conditions of probation as alleged. See Jackson, 645 S.W.2d at 304; Johnson, 2 S.W.3d at 686; Greer v. State, 999 S.W.2d 484, 486 (TexApp. — Houston [14th Dist.] 1999, pet. refd). If there is some evidence to support the finding of even a single violation, the order must be upheld. See Cardona, 665 S.W.2d at 493-94; O’Neal, 623 S.W.2d at 661.

Here, the trial court concluded that Appellant violated the terms and conditions of probation by committing the offense of theft under $500 but over $50 on January 28, 1999 in Ector County, Texas. In January of 1999, Appellant offered to assist Brooks Davis while he was hospitalized for an extended period of time due to open-heart surgery. Because his home had been burglarized during his absence, Davis needed someone to house-sit. When Appellant insisted that Lori Taylor would do a better job than the individual Davis had intended to rely upon, Davis agreed. Davis did not ask Appellant to do anything else for him, and in particular, he did not ask her to help with his auto repair business or to deposit any receipts into his account. Tabitha Weesner was in charge of the business while Davis was hospitalized. Her duties included taking payments and ordering parts until Davis’ daughter arrived in town. On January 28, 1999, while Weesner was picking up Davis’ daughter from the airport, another woman was at the business answering the telephone. During Weesner’s absence, a patron brought in a $250 payment and left it with the receptionist who issued him a receipt. The receptionist then gave the money to Appellant based upon her representation that she was responsible for making deposits to Davis’ account during his illness. Davis’ daughter subsequently asked Appellant for the money, but Appellant gave her only $100 and said she would deposit the remainder in Davis’ bank account. Appellant never turned over the remaining $150 nor did she deposit it into the bank account.

Appellant presented an entirely different version of the events. Davis asked her to work in his office as a bookkeeper after he fell ill because he did not trust some of the other people working for him. Based upon this arrangement, Appellant took the $250 payment and gave $100 to an individual for parts, $75 to Lori Taylor, and the remaining $75 to Davis. Appellant denied keeping any of the money. Taylor testified in support of Appellant’s version to the extent she said that Davis notified her by telephone that Appellant would give her $75 for groceries. In rebuttal, Davis contradicted Appellant’s testimony.

The trial court was free to reject the defense testimony that Appellant acted with Davis’ permission and that she did not keep any portion of the money. Taken in the light most favorable to the verdict, the State proved by a preponderance of the evidence that Appellant acquired the funds on false pretenses and then refused to turn it over to the owner or to those rightfully acting on his behalf. This is sufficient to establish that Appellant acted with the intent to deprive the owner of the property and appropriated more than $50 but less than $500 without the owner’s effective consent. See TexPen.Code Ann. § 31.03 (Vernon Supp.2000). Accordingly, the trial court did not abuse its discretion in revoking her community supervision. Appellant’s sole point of error is overruled and the revocation order is affirmed.

      . None of the witnesses identified this woman by name so the opinion will refer to her as the receptionist.