text:
    Ronald W. BLACKBURN, Appellant, v. LOST CREEK MINING; Lost Creek Mining, as Insured by Old Republic Insurance Company; Frasure Branch; Special Fund; Lloyd R. Edens, Administrative Law Judge; and Workers’ Compensation Board, Appellees. Lost Creek Mining, Cross-Appellant, v. Ronald W. Blackburn; Frasure Branch Coal Company; Special Fund; Lloyd R. Edens, Administrative Law Judge; and Workers’ Compensation Board, Cross-Appellees.
    Nos. 2000-SC-0098-WC, 2000-SC-0122-WC.
    Supreme Court of Kentucky.
    Nov. 22, 2000.

      Ronnie Merel Slone, Prestonsburg, for Blackburn.
    David H. Neeley, Neeley & Reynolds Law Firm, P.S.C., Prestonsburg, for Lost Creek Mining.
    Benita J. Riley, Riley <& Walters, Pres-tonsburg, for Lost Creek Mining, as Insured by Old Republic Ins. Co.
    John Harlan Callis, III, Boehl, Stopher, & Graves, Prestonsburg, for Frasure Branch.
    David R. Allen, David W. Barr, Labor Cabinet, Special Fund, Frankfort, for Special Fund.
   OPINION OF THE COURT

This workers’ compensation appeal concerns whether the Court of Appeals erred by reversing the claimant’s retraining incentive benefit (RIB) award based upon its construction of KRS 342.125 as precluding the reopening of a dismissed RIB claim.

In 1992, the claimant had filed a RIB claim against a former employer and submitted medical reports from Drs. Myers and Baker which indicated the presence of category 1/0 pneumoconiosis. Reports from Drs. Wright and Lane indicated category 0/0. The claim was dismissed on April 9, 1993, upon an Administrative Law Judge’s (ALJ’s) determination that the claimant had failed to demonstrate the presence of category 1 pneumoconiosis.

After leaving that employment, the claimant worked successively for two other mining companies. In 1994, he sustained a work-related injury while employed by the second company. After recovering from the injury, he became employed by Lost Creek Mining (Lost Creek) and sustained seven to eight months of additional exposure to coal dust. He testified that he quit working due to left arm, shoulder, and neck pain and to numbness in his hands. His subsequent claims for the injury and for pneumoconiosis were consolidated. The ALJ determined that the claimant had sustained a 50% occupational disability due to the injury and awarded income benefits. That claim is no longer at issue.

Claimant alleged that he had worked as an underground coal miner for a total of approximately 17-18 years and that he suffered from category 1 pneumoconiosis. The parties stipulated that the last exposure occurred on August 26, 1995. On October 23, 1995, the claimant was again diagnosed with category 1/0 disease by Dr. Myers. He attempted to notify Lost Creek by means of a letter which was dated October 26,1995, and a similar letter dated October 31, 1995; however, both letters were returned with the notation “addressee unknown.” A third letter, dated November 9, 1995, was accepted by Rene Crum. Dr. Lane diagnosed category 1/0 disease on November 18, 1995. A RIB claim was filed against Lost Creek in January, 1996.

Lost Creek did not assert that KRS 342.125 precluded the reopening of a dismissed RIB claim. Its defense was that the claimant did not suffer from pneumo-coniosis and that he failed to give timely notice. Dr. Wright interpreted the November 18, 1995, x-ray as category 0/0. Dr. Westerfield interpreted a March, 1996, x-ray as category 0/0 and indicated that claimant’s respiratory impairment was not so great as to be compensable.

In deciding the 1996 claim, the ALJ noted that the 1992 RIB claim had been dismissed upon a finding that the claimant had failed to prove that he suffered from pneumoconiosis. Although additional exposure was sustained in subsequent employments after the 1992 claim was dismissed and although a new claim was filed against Lost Creek in 1996, the ALJ determined, without explanation, that the matter must be treated as a reopening. Noting that Dr. Lane had reported category 0/0 disease in the initial RIB claim and now reported category 1/0, the ALJ determined that claimant had shown a worsening of his condition. The ALJ chose to rely upon the testimony of Dr. Lane, determined that claimant suffered from category 1/0 disease, and awarded a RIB. In determining that Lost Creek was given timely notice, the ALJ again referred to the prior claim, noted that the claimant was found not to have pneumoconiosis, and pointed out that notice was received by Lost Creek within three weeks of the October, 1995, diagnosis.

Lost Creek appealed, asserting that under both the 1994 and 1996 versions of KRS 342.125, the claimant had failed to present evidence sufficient to support a RIB award. It asserted that the reopening of a RIB claim was controlled by KRS 342.125(2)(a) which required evidence of both a progression of the previously-diagnosed pneumoconiosis and the development of respiratory impairment. Lost Creek also asserted that the claimant faded to give timely notice or to prove that notice was actually received. It did not assert that KRS 342.125 precluded the reopening of a dismissed RIB claim.

The Workers’ Compensation Board (Board) rejected Lost Creek’s arguments. It was persuaded that KRS 342.125(1) applied to the reopening of a previously dismissed RIB claim, concluded that claimant gave timely notice under the circumstances, and affirmed. Lost Creek appealed, again asserting that only KRS 342.125(2)(a) applied, that claimant did not meet the evidentiary requirements of either the 1994 or 1996 version of KRS 342.125, and that he had failed to give timely notice. It did not assert that KRS 342.125 precluded the reopening of a dismissed RIB claim.

The Court of Appeals reversed the award, concluding that since April 4, 1994, only KRS 342.125(2)(a) may be applied to the reopening of claims controlled by KRS 342.732. Although no argument to that effect was raised by a party, the court also determined that KRS 342.125(2)(a) authorizes the review of an “award” and, therefore, that it precludes the reopening of a dismissed RIB claim. The court noted that, in the absence of an award, there is nothing to reopen and that the dismissal of the original claim left the claimant in the same position as if the claim had never been filed. Hysteam Coal Corp. v. Ingram, 283 Ky. 411, 141 S.W.2d 570 (1940). Claimant appeals, and Lost Creek crossappeals.

Claimant asserts that the Court of Appeals erred by reversing his award. He points out that his first RIB claim was filed against a previous employer. After the first claim was dismissed, he became employed by Lost Creek, sustained additional exposure to coal dust, obtained new evidence, and filed a new claim against Lost Creek. Although the two claims were filed against different employers, the ALJ treated the claim against Lost Creek as a reopening, and awarded a RIB. Claimant asserts that the Court of Appeals erred by rendering a decision which, contrary to the thrust of this Court’s decision in Pikeville Coal Co. v. Sullivan, 895 S.W.2d574 (1995), would deny reopening in every dismissed RIB claim. He also asserts that, even if the Court of Appeals is correct in concluding that there is nothing to reopen upon the dismissal of a RIB claim, his award is proper because he filed a new claim against Lost Creek and because the ALJ determined that he had demonstrated both a worsening of condition and the presence of category 1 disease.

Lost Creek asserts that the Court of Appeals’ construction of KRS 342.125 is correct. Lost Creek’s cross-appeal asserts that the 1996 amendments to KRS 342.125(2) and (5)(a) are remedial and control the reopening of the claim. It also asserts that the evidence compelled a conclusion that the claimant failed to give timely notice.

We begin by observing that the facts which were present in Pikeville Coal Co. v. Sullivan, supra, differ significantly from those which are present in the instant case. First, that case involved a series of three RIB claims. All three claims were filed within a two-year period against the same employer, and the second claim involved the same evidence that had been rejected by an ALJ in dismissing the first claim. Therefore, the circumstances supported an argument that the filing of successive claims amounted to “judge shopping” and economic blackmail of the employer. Second, in view of the fact that our decision was rendered in March, 1995, following an ALJ’s decision and appeals to the Board and the Court of Appeals, it is apparent that the claim was filed and practiced under the pre-April 4, 1994, version of Chapter 342. At that time, KRS 342.125(1) did not refer to orders or awards pursuant to KRS 342.730. Third, nothing in our decision contemplated a reopening where a worker filed an unsuccessful RIB claim against one employer, subsequently became employed by a different employer, sustained additional exposure to coal dust, and, some four years after the filing of the initial claim, filed a new RIB claim against the subsequent employer. We are not convinced that it was appropriate for the ALJ to treat the instant claim as a reopening or that Pikeville Coal Co. v. Sullivan, supra, has any application to the present facts. Under those circumstances, any effect that the 1994 amendment to KRS 342.125(1) may have had on the possibility of reopening a dismissed claim and any effect the 1996 amendment to KRS 342.125(5)(a) may have had is immaterial.

The employer has asserted that the claimant may not prevail on appeal, even if we were to determine that KRS 342.125 does not control his claim, because he failed to file a cross-appeal at the Board and the Court of Appeals in order to assert that the ALJ erred by treating the matter as a reopening. We disagree. Although we have concluded that the ALJ erred by treating the new claim against Lost Creek as a reopening, the claimant was awarded a RIB, the ultimate relief which he had sought. The Court of Appeals decided Lost Creek’s appeal on the basis of an issue that had never been raised by the parties. Under those circumstances, we are not persuaded that the claimant was required to cross-appeal at the Board and the Court of Appeals in order to preserve the argument that, even if the 1994 version of KRS 342.125 precluded the reopening of a dismissed RIB claim, he was entitled to prevail because he had filed a new claim and sought to have the matter treated as such by the ALJ. See Brown v. Barkley, Ky., 628 S.W.2d 616, 619 (1982). The authority upon which the employer relies is not persuasive on the present facts.

KRS 342.316 requires that notice of a “claim” for occupational disease be given “as soon as practicable” after the worker receives a diagnosis of the condition or experiences symptoms which reasonably apprise him that he suffers from the condition. KRS 342.200 provides that a delay in giving notice may be excused by mistake or other reasonable cause. Relying upon Newberg v. Slone, Ky., 846 S.W.2d 694 (1992), Lost Creek asserts that the claimant was required to give notice of his previous diagnosis and his potential claim as soon as practicable after he ceased his employment with Lost Creek in August, 1995.

It is undisputed that the claimant was diagnosed with category 1/0 pneumoconio-sis by Drs. Myers and Baker at the time of his 1992 claim; however, that evidence was adjudged not to demonstrate that he suffered from the disease. The claimant became employed by Lost Creek after the decision and did not obtain a second diagnosis of category 1/0 disease from Dr. Myers until after the employment with Lost Creek ceased; whereupon, he attempted to notify Lost Creek. The ALJ determined that notice was received by Lost Creek within three weeks of the diagnosis. Several days later, claimant was again diagnosed with category 1/0 disease by Dr. Lane, a physician who had reported category 0/0 in the initial claim. The ALJ concluded that under the circumstances, notice was timely. We are not persuaded that the legal conclusion which the ALJ drew from the evidence was so unreasonable that it must be viewed as erroneous as a matter of law.

We have determined that KRS 342.125 does not apply to this claim and that the claimant was entitled to have the matter considered as the new claim which it was. It is undisputed that the claimant introduced evidence which met the medical criteria for a RIB, that the ALJ was persuaded by the claimant’s evidence, and that the ALJ’s finding that he suffered from category 1 disease was supported by substantial evidence. We have reaffirmed the finding that Lost Creek was given timely notice of the claim. Under those circumstances, the claimant was entitled to his RIB award.

The decision of the Court of Appeals is hereby reversed, and the award which was entered by the ALJ is reinstated.

All concur.

      . Although no authority for doing so was cited, it would appear that the ALJ was relying upon our decision in Pikeville Coal Co. v.. Sullivan, Ky., 895 S.W.2d 574 (1995).


source: Caselaw Access Project

author: /s/ Joseph E. Lambert CHIEF JUSTICE

license: Public Domain

text:
    KENTUCKY BAR ASSOCIATION, Complainant, v. Joel Robinson EMBRY III, Respondent.
    No. 2000-SC-0948-KB.
    Supreme Court of Kentucky.
    Nov. 22, 2000.
    Bruce K. Davis, Executive Director, Jane H. Herrick, Deputy Bar Counsel, Kentucky Bar Association, Frankfort, Counsel for Movant.
    Joel Robinson Embry III, Hopkinsville, Counsel for Respondent.
   ORDER

Pursuant to SCR 3.166, the Kentucky Bar Association requests that this Court enter an order confirming the automatic temporary suspension of Respondent, Joel Robinson Embry III, from the practice of law due to his recent felony convictions. For the following reasons, the KBA’s request will be granted.

Respondent, whose last known bar roster address is 210 Fairview Drive, Hop-kinsville, Kentucky, 42240, was admitted to the practice of law in Kentucky on October 1, 1978. He was suspended from practice on April 21, 2000, for failure to pay dues. On September 20, 2000, Respondent entered Alford pleas to second degree manslaughter and first degree possession of a controlled substance, and to the misdemeanor charges of possession of drug paraphernalia and possession of marijuana.

SCR 3.166(1) provides that any member of the KBA convicted of a felony shall be automatically suspended from the practice of law in this Commonwealth, and that the suspension shall take effect automatically on the day following the finding of guilt or upon the entry of judgment, whichever occurs first, and shall remain in effect until dissolved or superseded by order of this Court.

Upon the foregoing facts, it is ordered that:

1. The automatic suspension of Respondent, Joel Robinson Embry III, from the practice of law in Kentucky is hereby confirmed. Said suspension shall be effective from July 29, 2000 until the suspension is dissolved or superseded by subsequent order of this Court.

2. Pursuant to SCR 3.166(4), Respondent, Joel Robinson Embry III, is required to notify all clients in writing of his inability to continue to represent them and to furnish copies of such letters to the Director of the KBA. In the event Respondent has failed to comply with the foregoing requirement, such letters shall be sent forthwith.

3. Pursuant to SCR 3.166(5), Respondent, Joel Robinson Embry III, is hereby ordered immediately to cancel and cease any advertising activity in which he is engaged.

All concur.

ENTERED: November 22, 2000.

/s/ Joseph E. Lambert CHIEF JUSTICE


text:
    KENTUCKY BAR ASSOCIATION, Complainant, v. Stephen Rice TURNBULL, Respondent.
    No. 2000-SC-0726-KB.
    Supreme Court of Kentucky.
    Nov. 22, 2000.
   OPINION AND ORDER

The Kentucky Bar Association (KBA) charged Respondent, Stephen Rice Turn-bull, with failing to act with reasonable diligence and promptness in representing a client, and failing to keep a client reasonably informed and to promptly comply with reasonable requests for information. SCR 3.130-1.3, SCR 3.130-1.4(a). After review, the KBA Board of Governors recommended that Respondent be suspended from the practice of law for thirty days. Since Respondent failed to request a review of the Board’s recommendation, SCR 3.370(8), the recommendation is adopted. SCR 3.370(10).

In January 1998, Don Hale hired Respondent to represent him in a divorce proceeding. During that representation, the Domestic Relations Commissioner determined that Hale and his wife shared an equal interest in a vehicle. Following this finding, Respondent asked Hale if he desired that exceptions be filed to this finding. Hale replied affirmatively as his father held a lien upon the vehicle, and, shortly thereafter, Hale gave Respondent the appropriate documentation. Months passed with no communication between Respondent and Hale. Respondent never filed the exceptions and never answered Hale’s inquiries concerning his case.

Upon these facts, the Inquiry Commission charged Respondent with the aforementioned violations of SCR 3.130-1.3 and SCR 3.130-1.4(a). Respondent was served with the two count charge, but failed to answer. The charge was forwarded to the KBA Board of Governors as a default proceeding. The Board found Respondent guilty of both counts and recommended a thirty-day suspension.

Upon the foregoing facts and charges, the Board of Governors’ recommendation is adopted and it is hereby ordered that:

1. Respondent, Stephen Rice Turnbull, is suspended from the practice of law in Kentucky for a period of thirty days. This period of suspension shall commence on the date of entry of this Opinion and Order.

2. In accordance with SCR 3.450, Respondent is directed to pay all costs associated with these disciplinary proceedings against him, said sum being $94.26, and for which execution may issue from this Court upon finality of this Opinion and Order.

All concur.

ENTERED: November 22, 2000.

/s/ Joseph E. Lambert CHIEF JUSTICE


text:
    Suzanne ROMANO, KBA Member No. 84323, Applicant, v. KENTUCKY BAR ASSOCIATION, Respondent.
    No. 2000-SC-0553-KB.
    Supreme Court of Kentucky.
    Nov. 22, 2000.
    Bruce K. Davis, Executive Director, Kentucky Bar Association, Frankfort, for respondent.
    Suzanne Romano, Bardstown, pro se.
   ORDER GRANTING MOTION FOR REINSTATEMENT

Applicant, Suzanne-Romano, seeks reinstatement to good standing before the Kentucky Bar Association. The Board of Governors unanimously recommended this Court grant her motion. For the reasons set forth herein, we accept the Board’s recommendation and grant the motion.

Applicant was admitted to the practice of law in Kentucky in October 1992. By order of this Court, she was permitted to withdraw from the Kentucky Bar Association pursuant to SCR 3.480(1) on October 15, 1998. Applicant was also granted a non-practice exemption from continuing legal education requirements pursuant to SCR 3.666(2)(a). She now applies for restoration to the Kentucky Bar Association pursuant to SCR 3.500.

SCR 3.500 provides that a member who has retired under SCR 3.480 may apply for restoration by “completing forms provided by the Director, tendering a fee of $250.00, and payment of dues for the current year and all back years.” Applicant Suzanne Romano has completed all of these requirements.

Accordingly, the application for reinstatement filed by Suzanne Romano is hereby granted.

ALL CONCUR.

ENTERED: November 22, 2000.

/s/ Joseph E. Lambert CHIEF JUSTICE


author: GRAVES, Justice. WINTERSHEIMER, Justice,

text:
    Mark DUNAGAN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 1998-SC-08030-DG.
    Supreme Court of Kentucky.
    Nov. 22, 2000.

      Norman R. Lemme, Patrick B. McClure, Lemme & Conway, Shepherdsville, Counsel for Appellant.
    A.B. Chandler III, Attorney General, Courtney J. Hightower, Assistant Attorney General, Criminal Appellate Division, Frankfort, Counsel for Appellee.
   GRAVES, Justice.

The Bullitt Circuit Court entered an order dismissing an indictment against Mark Dunagan for flagrant non-support, KRS 530.050, on double jeopardy grounds. The Court of Appeals vacated the circuit court’s order and remanded for trial. We granted discretionary review and affirm the Court of Appeals.

While the Court of Appeals focused on the nature of the contempt proceeding, namely whether it was civil or criminal, we are of the opinion that the decision turns more on whether double jeopardy principles prevent prosecution for flagrant nonsupport after a civil court has revoked a conditionally discharged sentence and imposed jail confinement for contempt for failing to pay child support.

In a 1987 dissolution action in Jefferson Circuit Court, Dunagan was ordered to pay $65 per week child support. In 1994, a Bullitt County grand jury indicted Duna-gan for flagrant non-support. According to figures presented by his former wife, Dunagan was over $10,000 delinquent in child support. In the spring of 1996, with the Bullitt County indictment still pending, the Jefferson Circuit Court found Dunagan in contempt for failing to pay child support as ordered by that court. Dunagan received a sentence of ninety (90) days in jail, discharged on the condition that he pay the court-ordered child support and make payments on the arrearage. When Dunagan failed to make the weekly payments, the court ordered him to serve 30 days of the 90 day sentence, probating the remaining 60 days on the condition that he comply with the payment order.

In September 1996, the Bullitt Circuit Court dismissed the 1994 Bullitt County indictment on Dunagan’s motion, concluding that prosecuting him for flagrant nonsupport after the Jefferson Circuit Court had held him in contempt for failure to pay child support for the same time period would constitute double jeopardy.

The Court of Appeals disagreed, relying primarily on its previous decision in Commonwealth ex rel. Bailey v. Bailey, Ky. App., 970 S.W.2d 818 (1998), which held that both a flagrant non-support prosecution and a civil contempt proceeding may lie for the same failure to pay support so long as the purpose of the civil action is coercive rather than punitive. The Bailey court applied the distinction between civil and criminal contempt as described in Commonwealth v. Burge, Ky., 947 S.W.2d 805 (1996).

The power to punish for contempt is an essential and inherent attribute of judicial authority. Young v. Knight, Ky., 329 S.W.2d 195 (1959). In this case, the indictment and the contempt citation addressed the same failure to pay. However, the contempt citation was for failing to perform an act ordered by the Court to enforce an individual’s rights, while the indictment was for an offense against society as a whole. One issue is whether the Jefferson Circuit Court’s partial revocation of a conditionally discharged sentence for Dunagan’s contempt is properly characterized as having a “coercive” or “punitive” purpose. Dunagan contends that the court’s actions — conditionally sentencing him to 90 days in jail, and later requiring him to serve 30 of those days — constituted punishment rather than coercion. The first contempt proceeding was clearly civil in nature since the sentence was discharged conditioned upon Dunagan’s compliance with the payment order. While the second contempt proceeding may be characterized as criminal in nature, in that the circuit court partially revoked the conditional discharge and ordered Dunagan to serve 30 days of the 90 day sentence, Dunagan could have avoided any period of confinement by complying with the court’s payment order.

Notwithstanding, a criminal prosecution for flagrant non-support following an incarceration for civil contempt is not double jeopardy. The civil contempt proceeding did not place Dunagan in jeopardy but rather was in response to civil contempt, designed to compel compliance with the court’s previous orders. The elements of the contempt charge are not the same as the charge of flagrant non-support. Duna-gan was indicted for flagrant non-support because of his persistent failure to provide support which resulted in: (1) an arrear-age of more than $1,000; and (2) six consecutive months without payment. KRS 530.050. On the other hand, Dunagan was in contempt of the Jefferson Circuit Court’s order as soon as he failed to comply with the terms of such. The finding of contempt in this case was not dependent upon the elements of KRS 530.050.

We affirm the holding in Bailey, supra, that a person convicted of flagrant non-support may also be subjected to civil action — even though both the criminal and the civil actions are based upon the same failure to pay support. The test is not only whether the purpose of loss of liberty in the civil action is coercive rather than punitive, but also whether the offense of flagrant non-support requires proof of facts which contempt does not. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). We find that it does and, as such, hold that no double jeopardy violation results.

The decision of the Court of Appeals is affirmed and this matter is remanded to the Bullitt Circuit Court for entry of appropriate orders in conformance with this opinion.

LAMBERT, C.J., COOPER, GRAVES, and KELLER, J.J., concur.

WINTERSHEIMER, J„ dissents in a separate opinion in which JOHNSTONE, and STUMBO, J.J., join.

WINTERSHEIMER, Justice,

Dissenting.

I must respectfully dissent from the majority opinion because the order of the Bullitt Circuit Court dismissing the indictment on double jeopardy grounds was correct. The result in this case, although perhaps popular, is an example of the end attempting to justify the means. Due process of law should always be evenhandedly applied regardless of the result. If there is a loophole in the law, then such a gap should be closed by legislative or proper judicial action. That is not the situation presented by the majority opinion.

It is abundantly clear that Dunagan was in contempt for failing to pay support in a civil case in the amount of $12,485. The subsequent orders of the circuit court provide the area of concern. The circuit court found that Dunagan was to be sentenced to 90 days in jail for contempt, but discharged the sentence on condition that for the next two years he would make weeMy payments as originally ordered plus $25 per week towards the arrearage. When Dunagan failed to make the weekly payments, the Jefferson Circuit Court ordered him to serve 30 days of the 90-day sentence and probated the remaining 60 days on the condition that he now comply with the payment order. We conclude that the order of the Jefferson Circuit Court was punitive in nature and that the time served without Dunagan having had the opportunity to purge his contempt results in making the contempt criminal in nature.

Flagrant nonsupport as denounced in KRS 530.050 can be a felony and is a serious crime pursuant to KRS 31.100(4)(c). As observed in Lewis v. Lewis, Ky., 875 S.W.2d 862 (1993), a serious crime is any legal action which could result in the detaining of a defendant.

The question in this case is not the imprisonment for contempt, but the manner in which it was imposed and the unexpected consequences of the sentence for contempt. Certainly, trial judges have the authority to impose punitive sanctions, but they must be aware of the effect and possible challenge on the basis of double jeopardy and of the distinctive feature of a coercive order. In order to avoid a double jeopardy challenge, any coercive order should permit the defendant to purge himself of contempt by compliance and not require service of a sentence beyond that point.

It is generally recognized that civil contempt consists of failure of a person to do something pursuant to an order of court, generally, for the benefit of another litigant. Clearly a person may be sentenced to jail for civil contempt but the party in contempt “carries the keys to jail in his pocket” because he is entitled to immediate release upon obedience to the order of the Court. See Commonwealth v. Burge, Ky., 947 S.W.2d 805 (1996). The purpose of civil contempt is to compel obedience to and respect for an order of the court. It is the reason for the confinement that distinguishes civil from criminal contempt. If the purpose of the court is to punish, sue.* sanction is criminal contempt. If it is the purpose of the court to compel into action a course of conduct, that sanction is civil. See Gordon v. Commonwealth, 141 Ky. 461, 133 S.W. 206 (1911); see also Blakeman v. Schneider, Ky., 864 S.W.2d 903 (1993); Bailey, supra.

A person convicted of flagrant nonsupport may be also subjected to civil action, even though both the criminal and civil actions are based on the same failure to pay support as long as the purpose of the civil action is coercive rather than punitive. If the person in contempt demonstrates the financial inability to comply with the order of the court, any subsequent imprisonment directly related thereto for contempt is punitive. See Lewis, supra; Bailey. Dunagan has not argued that he lacks the financial ability to comply with the order of the court.

Dunagan did not in effect “hold the keys to the jail cell in his hand” because he was conditionally discharged as a criminal defendant. He was sentenced to serve 90 days in jail for failure to. pay support. This order was punitive and he was required to serve 30 days of the conditionally discharged sentence. The circuit judge did not order Dunagan to be released if he began making weekly payments. If Duna-gan had begun to make payments on a weekly basis after his imprisonment, he could not have left jail until his 30-day sentence was completed. If he had failed to pay on a weekly basis after his release, he could not have avoided service of an additional 60 days in jail by beginning to make the weekly payments. The sentence Dunagan received and to some degree served had the effect of compelling obedience to the order of the Court but it was actually intended to punish him for failing to abide by the order of the Court. If it had simply coerced him to pay, advance payment on a monthly basis surely would not have triggered the service of his conditionally discharged sentence. As this Court noted in Lewis, where it becomes impossible for a person to obey a court order, placing that person in jail for contempt for failing to obey the order becomes punitive, rather than coercive. Du-nagan was ordered to serve 30 days and could not have obtained a release from jail by simply obeying the order of the court. As a result, the contempt finding became punitive, rather than coercive.

A finding of civil contempt does not necessarily prevent prosecution for flagrant nonsupport. The imposition of civil and criminal contempt sanctions for the same conduct does not automatically violate the double jeopardy clause. See U.S. v. Ryan, 810 F.2d 650 (7th Cir.1987). It is the purpose and character of the sanction, rather than the fact of the sanction itself, that distinguishes civil from criminal contempt. Schneider, supra. Shillitani v. U.S., 384 U.S. 364, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966), citing Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 31 S.Ct. 492, 55 L.Ed. 797 (1911).

I fully recognize the severity of the problem of flagrant nonsupport which the General Assembly addressed when it enacted KRS 530.050. Nothing in this opinion should be considered as diminishing our concern for the proper enforcement of the law as enacted by the legislature. In addition, the inherent authority of the courts to punish or sanction by contempt pursuant to the statutes and case law of the Commonwealth should not be disturbed.

In this instance, because of the unique nature of the Jefferson Circuit Court order which prevented the defendant from purging the contempt and thereby being released from confinement, the Court of Appeals was in error and should be reversed. The original order of the Bullitt Circuit Court dismissing the indictment should be reinstated.

JOHNSTONE and STUMBO, JJ., join in this dissent.


author: JAN P. PATTERSON, Justice.

text:
    Fred ROGERS, Appellant, v. TEXAS STATE BOARD OF PUBLIC ACCOUNTANCY, Appellee.
    No. 03-07-00440-CV.
    Court of Appeals of Texas, Austin.
    April 24, 2008.
    Rehearing Overruled May 20, 2008.

      Susan Henrieks, Hull, Henricks & Ma-eRae, L.L.P., Bryce E. Benjet, Austin, for appellant.
    Kara L. Kennedy, Asst. Atty. Gen., Austin, for Appellee.
    Before Justices PATTERSON, PURYEAR and HENSON.
   OPINION

JAN P. PATTERSON, Justice.

Fred Rogers appeals the district court’s judgment affirming the order of the Texas State Board of Public Accountancy revoking his certificate to practice accounting. Because we conclude that the Board’s order was supported by substantial evidence and was neither arbitrary nor capricious but that the district court erred in affirming the Board’s award of attorney’s fees, we affirm the district court’s judgment in part and reverse in part.

BACKGROUND

In order to practice public accountancy in Texas, the law requires a person to hold both a certificate and a license. Tex. Occ. Code Ann. §§ 901.251 (certificate required), .401 (license required) (West 2004). Rogers has at various times held both a certificate and a license.

In 1999, the Board disciplined Rogers for violations of the Public Accountancy Act and, in an order issued September 16, 1999, the Board suspended Rogers’s accounting certificate for two years. The Board’s 1999 order also imposed administrative costs of $17,429.20. Rogers appealed the Board’s 1999 order and sought a stay against the Board’s enforcement of the penalty as permitted under section 901.556 of the occupations code. The district court authorized a supersedeas bond in the amount of $17,429.20 on January 10, 2000. The district court and this Court affirmed the Board’s 1999 order on appeal, and the supreme court denied Rogers’s petition for review. See Rogers v. Texas State Bd. of Pub. Accountancy, No. 03-00-00738-CV, 2001 WL 1337606, at *1, 2001 Tex.App. LEXIS 7310, at *2 (TexApp.-Austin 2001, pet. denied) (mem. op., not designated for publication). This Court then issued mandate on March 26, 2002.

In a letter to the Board dated April 24, 2002, Rogers inquired about the period of his certificate suspension. The Board responded in a letter dated May 1, 2002, that Rogers’s certificate had been suspended for two years, including the time periods from September 16, 1999 (the date of the Board’s order) through January 10, 2000 (the date the district court authorized Rogers to post a supersedeas bond), and from March 26, 2002 (the date this Court issued mandate) through December 1, 2003. In its letter the Board notified Rogers as follows:

Our records show that the Order was entered September 16, 1999. Your certificate was suspended for a period of two years. On January 10, 2000 you requested and received a Stay of the Order from the Travis County District Court. This Stay entitled you to exercise all of the rights of a certificate holder. At the conclusion of your appeals on March 26, 2002, the Stay was dissolved and the Board’s Order took effect. Therefore, in accordance with the Board’s Order, your certificate is suspended until December 1, 2003. The Board gives you credit for the approximately four month period between issuance of the Order (September 16, 1999) and the issuance of the Stay (January 10, 2000).
To comply with the Board’s Order you should refrain from performing any service within the definition of the practice of public accountancy in Section 901.003 of the Public Accountancy Act.... The Board will periodically ask you to report on your professional activities. While we understand this Order imposes a hardship on you, the Order was reviewed at your request by three different appellate courts and it was upheld in all respects.

On January 9, 2004, the Board again initiated enforcement proceedings against Rogers for violations of the Act and the Board’s rules. The Board referred the matter to the State Office of Administrative Hearings for a contested case hearing, which was held on August 9, 2004. Although Rogers attended the hearing, he did not offer evidence or otherwise participate in the hearing. After the conclusion of the hearing, the ALJ issued a proposal for decision recommending that the Board revoke Rogers’s certifícate to practice public accountancy, impose an $8,000 administrative penalty, and assess $225 in administrative costs. The ALJ expressly rejected the Board’s request for attorney’s fees on the ground that the Board did not have statutory authority to award attorney’s fees.

The Board adopted the PFD in part and reversed in part. In its final order, the Board affirmed the ALJ’s recommendations to revoke Rogers’s certificate to practice public accountancy and to impose an $8,000 administrative penalty against Rogers. The Board reversed the award of $225 in administrative costs in favor of an award of $33,205, which included the original $225 in SOAH costs plus an additional $32,980 in attorney’s fees “as reasonable costs for staff attorney time expended in the handling of this case.”

Rogers appealed the Board’s final order to the district court, and the district court affirmed the Board’s order in its entirety. This appeal followed.

DISCUSSION

On appeal, Rogers asserts four issues: (1) the Board lacks statutory authority to award attorney’s fees; (2) the Board erred in its findings that Rogers violated the Act because Rogers held a certificate and a license at all relevant time periods; (3) the Board’s order is not supported by substantial evidence; and (4) the revocation of Rogers’s certificate to practice public accountancy is arbitrary and capricious. The Board responds that Rogers has waived his claims by failing to properly include them in his motion for rehearing filed with the Board and failing to properly include them in his motion for new trial filed in the district court. In the alternative, if the Court finds that Rogers has preserved error, the Board argues that the Act and the Self-Directed Semi-Independent Agency Project Act (“SDSI Act”) authorized the award of attorney’s fees as “direct administrative costs,” that the Board properly concluded that Rogers practiced public accountancy at a time when his certificate was suspended as a result of the Board’s 1999 order, and that the Board’s order, including its decision to revoke Rogers’s certificate, was supported by substantial evidence and was not arbitrary or capricious.

Standard of Review

We review the Board’s order under the substantial evidence rule. Tex. Gov’t Code Ann. § 2001.174 (West 2000). Under the substantial evidence rule, we presume that the agency’s order is valid and that its findings, inferences, conclusions, and decisions are supported by substantial evidence. City of El Paso v. Public Util. Comm’n, 883 S.W.2d 179, 185 (Tex.1994); Texas Health Facilities Comm’n v. Charter Med.-Dallas, Inc., 665 S.W.2d 446, 452 (Tex.1984). The complaining party has the burden to overcome this presumption. City of El Paso, 883 S.W.2d at 185; Hammack v. Public Util. Comm’n, 131 S.W.3d 713, 725 (Tex.App.-Austin 2004, pet. denied).

When conducting a substantial evidence review, the issue for the reviewing court is not whether we believe the agency’s decision was correct, but whether the record demonstrates some reasonable basis for the agency’s action. Charter Med., 665 S.W.2d at 452; Central Power & Light Co. v. Public Util. Comm’n, 36 S.W.3d 547, 561 (Tex.App.-Austin 2000, pet. denied). We evaluate the entire record to determine whether the evidence as a whole is such that reasonable minds could have reached the conclusion the agency must have reached in order to take the disputed action. Texas State Bd. of Dental Exam’rs v. Sizemore, 759 S.W.2d 114, 116 (Tex.1988); Suburban Util. Corp. v. Public Util. Comm’n, 652 S.W.2d 358, 364 (Tex.1983). We may not substitute our judgment for that of the agency on the weight of the evidence on questions committed to the agency’s discretion. Tex. Gov’t Code Ann. § 2001.174; Charter Med., 665 S.W.2d at 452; H.G. Sledge, Inc. v. Prospective Inv. & Trading Co., Ltd., 36 S.W.3d 597, 602 (Tex.App.-Austin 2000, pet. denied). We will sustain the agency’s order if the evidence is such that reasonable minds could have reached the conclusion that the agency must have reached in order to justify its action. Charter Med., 665 S.W.2d at 453; Suburban Util. Corp., 652 S.W.2d at 364.

Questions involving the Board’s statutory authority involve matters of statutory construction, which we review de novo. See, e.g., City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex.2003) (appellate courts review matters of statutory construction de novo); In re Humphreys, 880 S.W.2d 402, 404 (Tex.1994) (questions of law are always subject to de novo review). When construing a statute, our primary goal is to determine and give effect to the legislature’s intent. City of San Antonio, 111 S.W.3d at 25. To determine legislative intent, we look to the statute as a whole, as opposed to isolated provisions. State v. Gonzalez, 82 S.W.3d 322, 327 (Tex.2002). We begin with the plain language of the statute at issue and apply its common meaning. City of San Antonio, 111 S.W.3d at 25. Where the statutory text is unambiguous, we adopt a construction supported by the statute’s plain language, unless that construction would lead to an absurd result. Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 284 (Tex.1999). We give serious consideration to an agency’s interpretation of the statutes it is charged with enforcing, so long as that interpretation is reasonable and consistent with the statutory language. Tarrant Appraisal Dist. v. Moore, 845 S.W.2d 820, 823 (Tex.1993). Courts, however, “do not defer to administrative interpretation in regard to questions which do not lie within administrative expertise, or deal with a nontechnical question of law.” Rylander v. Fisher Controls Int’l, Inc., 45 S.W.3d 291, 302 (Tex.App.-Austin 2001, no pet.).

Attorney’s Fees

In his first issue, Rogers complains that the Board exceeded its statutory authority under the Act when it awarded itself attorney’s fees of $32,980 as administrative costs. Because we agree with Rogers that nothing in the Act expressly authorizes an award of attorney’s fees, we reverse that portion of the district court’s judgment affirming the Board’s award of attorney’s fees.

The availability of attorney’s fees under a particular statute is a question of law for the court. Holland v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 94 (Tex.1999). The Texas Supreme Court has consistently held that one cannot recover attorney’s fees unless permitted by statute or contract between the parties. Id. at 95 (citing cases). “ ‘[A]n award of attorney’s fees may not be supplied by implication but must be provided for by the express terms of the statute in question.’ ” Id. (quoting First City Bank-Farmers Branch v. Guex, 677 S.W.2d 25, 30 (Tex.1984)) (emphasis added); Travelers Indem. Co. v. Mayfield, 923 S.W.2d 590, 593 (Tex.1996). Thus, the supreme court has refused to authorize attorney’s lees when the legislature has not done so. Holland, 1 S.W.3d at 95.

In support of its argument that the Board has authority to award attorney’s fees, the Board points to section 901.501(a)(9) of the Act, which allows the Board to award “direct administrative costs,” and to the definition of “direct administrative costs” in former section 519.27 of the Board’s rules — currently at 22 Tex. Admin. Code § 519.2 (2007). Section 901.501 provides the disciplinary powers of the Board and, in relevant part, authorizes the Board to “revoke a certificate, firm license, or practice privilege,” “suspend under any terms a certificate, firm license, practice privilege, or license,” and “impose on a license holder the direct administrative costs incurred by the Board” in taking such action. Tex. Occ.Code Ann. § 901.501(a)(l)-(2), (9) (West 2004). By its express terms, however, section 901.501 only authorizes the Board to award “direct administrative costs.” Id. § 901.501(a)(9). Nowhere in the Act does the legislature expressly authorize the Board to award attorney’s fees. Based on the supreme court’s holdings in Holland and Mayfield, we conclude that the authority to award “direct administrative costs” in section 901.501(a)(9) does not authorize the Board to award attorney’s fees.

Notwithstanding the lack of an express authorization to award attorney’s fees in the Act, the Board asserts that it has promulgated a rule interpreting and defining the term “direct administrative costs” to include attorney’s fees and that the legislature has accepted this interpretation. The Board’s legislative acceptance argument fails for several reasons, the simplest being that the plain language of the Act does not authorize the Board to award attorney’s fees. See Holland, 1 S.W.3d at 95; Mayfield, 923 S.W.2d at 593.

The doctrine of legislative acceptance is a statutory construction aid that courts may use when the text of a statute is ambiguous. But the language of section 901.501(a)(9) is clear — it only permits an award of direct administrative costs, not attorney’s fees. The supreme court has long held that the term “costs” does not include attorney’s fees. See Johnson v. Universal Life & Accident Ins. Co., 127 Tex. 435, 94 S.W.2d 1145, 1146 (1936). When the legislature wants to authorize an award of attorney’s fees, it knows how to do so in clear and express language. See Tex. Occ.Code Ann. § 1201,605(a)(1)-(2) (West Supp.2007) (authorizing the agency director to award “reasonable attorney’s fees” and “administrative costs”); Tex. Labor Code Ann. § 21.259 (West 2006) (authorizing a court to award “a reasonable attorney’s fee as part of the costs”). Until it speaks with a clear voice to expressly provide for attorney’s fees, we conclude the legislature has not authorized an award of attorney’s fees in the language of the Public Accountancy Act.

To the extent the Board relies on its rule interpreting and defining the term “direct administrative costs,” the Board’s reliance is misplaced. At the time of Rogers’s alleged violations, the Board’s rule defined “administrative costs” to include attorney’s fees. See 29 Tex. Reg. 3331 (proposed Apr. 2, 2004), adopted 29 Tex. Reg. 5628 (2004) (former rule 519.2(2)). We observe, however, that the Board has since amended its rule. See 31 Tex. Reg. 639 (proposed Feb. 3, 2006), adopted 31 Tex. Reg. 4645 (2006) (codified at 22 Tex. Admin. Code § 519.2(8)). The amended version of the Board’s rule adds the word “direct” to “administrative costs” and substitutes “staff salary, payroll taxes and benefits and other non-salary related expenses” for “attorney’s fees and expenses, legal assistant fees and expenses.” See id. (codified as amended at 22 Tex. Admin. Code § 519.2(8) (2007)). These recent changes to the Board’s definition of “direct administrative costs” further undercut the Board’s legislative acceptance argument.

Nevertheless, the Board also points to the SDSI Act and its status as a “self-directed, semi-independent agency” in support of its argument that the legislature has accepted the Board’s interpretation that section 901.501(a)(9) permits an award of attorney’s fees. The plain language and legislative history of the SDSI Act do not support the Board’s argument. The SDSI Act was enacted by the legislature in 1999 as a pilot project. See Tex.Rev.Civ. Stat. art. 8930, §§ 1-2 (West Supp.2007). Like the Public Accountancy Act, nothing in the SDSI Act expressly authorizes the Board to award attorney’s fees. The SDSI Act allows the Board to set an annual budget and specifies that no costs shall be incurred by the general revenue fund. Id. § 6(a). The SDSI Act further specifies that the Board shall be responsible for all costs, both direct and indirect. Id. Section 13 of the SDSI Act provides that the office of the attorney general shall represent the Board in any litigation and that the attorney general’s office may assess and collect from the Board reasonable attorney’s fees associated with that litigation, but section 13 otherwise says nothing about the Board’s authority to assess and collect reasonable attorney’s fees. Id. § 13. In addition, section 14 of the SDSI Act allows the Board to set the amount of fees as necessary for the purpose of carrying out the Board’s functions, but that provision is subject to the limitations in the Board’s enabling act — i.e., the Public Accountancy Act, which does not provide authority to award attorney’s fees. Id. § 14.

Similarly, the legislative history of the SDSI Act does not support the argument that the Board may award attorney’s fees. Section 1 of the historical and statutory notes of enactment provides:

Legislative Intent, (a) Several agencies of the State of Texas regulate specific professions in the public interest. While these licensing agencies perform important public functions, the populations most directly affected by their activities, the members of the professions, are small in comparison to the population of the state. While the agencies may collect and remit the $200 professional fee to the state, their operations are supported by examination, licensing, and other fees paid by the professionals they regulate.
⅜ * *
(c) In addition, the agencies do not have unfettered discretion to raise funds from the public. The legislature has set specific limits on the amounts that may be charged the regulated profession for the services provided by the agencies.

Id. historical note [Act of May 30, 1999, 76th Leg., R.S., ch. 1552, 1999 Tex. Gen. Laws 5338, 5338-39]. Accordingly, we reject the Board’s argument of legislative acceptance, we sustain Rogers’s first issue on appeal, and we reverse the district court’s judgment to the extent it affirms the Board’s award of attorney’s fees as direct administrative costs.

Substantial Evidence and the Board’s Order

In issues two through four, Rogers challenges the Board’s order and its findings therein. For the following reasons, we conclude that the Board’s order was supported by substantial evidence and was neither arbitrary nor capricious.

In his second issue, Rogers contends that the Board erred in its findings that he violated the Act because he held a license and certificate during all relevant time periods. Essentially, Rogers complains that the Board miscalculated the period of time that his certificate was suspended as a result of the Board’s 1999 order. Rogers maintains that, pursuant to section 901.556, only the Board’s enforcement of its administrative penalty of $17,429.20, not the suspension of his certificate, was stayed during the pendency of Rogers’s appeals from the 1999 order. See Tex. Occ.Code Ann. § 901.556 (West 2004). Thus, according to Rogers, his certificate was suspended for two years from September 16, 1999, until September 15, 2001. The Board counters that Roger’s payment of the penalty into escrow in lieu of filing a bond stayed the enforcement of both the administrative penalty and the period of suspension from January 10, 2000 — the date the court approved the su-persedeas bond — until March 26, 2002— the date this Court issued mandate. Thus, according to the Board, Rogers’s certificate was suspended from September 16, 1999, until January 10, 2000, when the Board’s order was stayed as a result of the trial court’s order approving a supersedeas bond, and then again from March 26, 2002, when the stay was lifted, until December 1, 2003.

Regardless of whether we accept the suspension period urged by Rogers or the Board, we conclude there is substantial evidence in the record to support the Board’s conclusion that Rogers held himself out as an accountant while his certificate was suspended in violation of the Act. The record demonstrates that from January 1999 through July 2002, Rogers performed accounting services for Cen-Tex Family Services, Inc. There is also evidence in the record that Rogers held himself out as a certified public accountant and used the abbreviation “CPA” in his correspondence to Cen-Tex on May 25, 2000, August 1, 2000, January 30, 2002, and July 3, 2002. The record also includes a request for extension of time filed by Rogers with the Internal Revenue Service on June 14, 2001, in which Rogers listed his title as “CPA-POA.” In addition, the record includes a letter dated March 8, 2002, from Rogers to the Board in which Rogers states that he has discontinued the firm “Fred Rogers, CPA.” In another letter dated March 8, 2002, from Rogers to the Board, Rogers states that he has withdrawn, as a partner in the accounting firm of Kolheim, Rogers & Taylor, effective February 28, 2002. The record reflects that prior to his withdrawal on February 28, 2002, Rogers had been a partner in that firm since January 29,1980.

In support of his argument that the Board’s order is not supported by substantial evidence, Rogers points to finding of fact 16 in which the Board found that Rogers had represented himself as a certified public accountant in a letter to Cen-Tex dated July 30, 2003. Counsel for the Board conceded during oral argument that there was no letter from Rogers to Cen-Tex dated July 30, 2003, and that the date in the Board’s finding was the result of a typographical error. Even if we eliminate this finding as erroneous, there is evidence in the record to support the Board’s remaining findings and conclusions that Rogers practiced public accountancy in violation of the Board’s 1999 suspension order regardless of whether we accept Rogers’s period of suspension or that urged by the Board. There is also substantial evidence in the record to support the Board’s findings and conclusions that Rogers committed other violations of the Act and the Board’s rules.

We conclude that the Board did not err in its findings and conclusions that Rogers had violated the Act as well as the Board’s rules and that the Board’s order was supported by substantial evidence. We overrule Rogers’s second and third issues.

In his fourth issue, Rogers complains that the Board’s decision to revoke his accounting certificate was arbitrary and capricious in light of the Board’s continued renewal of his accounting license in 1999, 2000, and 2001. We disagree.

The legislature has expressly authorized the Board to revoke Rogers’s certificate after notice and hearing if the Board determines that grounds for discipline exist. Tex. Occ.Code Ann. § 901.501(a)(1). The Board’s determination of the appropriate penalty is a matter left to the Board’s discretion. Id. We may not substitute our judgment for that of the Board on the weight of the evidence on questions committed to the Board’s discretion. Tex. Gov’t Code Ann. § 2001.174. The record does not support Rogers’s claim that he misunderstood the effect of the Board’s 1999 order suspending his certificate to practice public accountancy. The record demonstrates that Rogers has been previously disciplined by the Board for violations of the Act and the Board’s rules and that Rogers had again committed violations of the Act and the Board’s rules. In addition to these violations, the Board found, and the record supports, that Rogers committed “discreditable acts” as defined in the Board’s rules and is not fit to hold a certificate to practice public accountancy under section 901.502(11) of the Act. Based on this record, we conclude that reasonable minds could have reached the conclusion reached by the Board and that the Board acted within its authority to revoke Rogers’s certificate. We cannot say that the Board’s decision was arbitrary or capricious. We overrule Rogers’s fourth issue.

CONCLUSION

Having concluded that the Board lacked statutory authority to award attorney's fees, we reverse that portion of the district court’s judgment affirming the Board’s award of attorney’s fees. Because we conclude that the remainder of the Board’s order was supported by substantial evidence and was neither arbitrary nor capricious, we affirm the district court’s judgment affirming the Board’s order in all other respects, and we remand this cause to the Board for further proceedings consistent with our opinion.

      . The Public Accountancy Act is codified in chapter 901 of the occupations code. Tex. Occ.Code Ann. §§ 901.001-.606 (West 2004 & Supp.2007).

      . There is no dispute and the record shows that, on February 4, 2000, Rogers made a cash payment to the Board for placement in an escrow account in lieu of filing a superse-deas bond. See Tex. Occ.Code Ann. § 901.556(b)(1) (West 2004) (allowing for payment in lieu of bond).

      . Rogers was represented by counsel, but his counsel did not attend the hearing due to a trial conflict. Rogers’s counsel had filed a motion for continuance, but the AU denied the motion. Rogers obtained new counsel to represent him in this appeal.

      . Having reviewed Rogers’s motion for rehearing filed with the Board, we conclude that Rogers sufficiently preserved his claims by including them in his motion for rehearing. See United. Sav. Ass’n v. Vandygriff, 594 S.W.2d 163, 169-170 (Tex.Civ.App.-Austin 1980, writ ref'd n.r.e.) (“A motion for rehearing ... is sufficient if it gives the agency sufficienl notice of alleged error so as to allow the agency to correct the error or to prepare to defend it.”).
      Likewise, we disagree with the Board’s contention that Rogers failed to preserve error by failing to include his claims in his motion for new trial. In support of this argument, the Board cites Texas Rule of Civil Procedure 324(b), but the plain language of that rule makes it inapplicable in the context of judicial review of the Board's order under the substantial evidence rule. See Tex. R. Civ. P. 324(b). Rule 324(b) provides that a point in a motion for new trial is required to preserve five categories of complaints on appeal: a complaint on which evidence must be heard, e.g., jury misconduct, a complaint of factual insufficiency to support a jury finding, a complaint that the jury finding is against the overwhelming weight of the evidence, a complaint as to damages, or a complaint of incurable jury argument. Because we review the Board's order under the substantial evidence rule, none of the five types of complaints listed in rule 324(b) occurs in the context of judicial review of the Board's order. A substantial evidence review is limited to the record of evidence taken before the agency; there is no jury — hence, no jury findings and no possibility of incurable jury argument; and there are no damages. The supreme court has held that the intent of rule 324 was to eliminate motions for new trial. See Howell v. Coca-Cola Bottling Co., 599 S.W.2d 801 (Tex.1980). The plain language of the rule does so with few exceptions. Tex. R. Civ. P. 324. Because none of the exceptions in rule 324(b) occur in the context of our substantial evidence review of the Board's order, we conclude that Rogers was not required to file a motion for new trial in order to preserve error. See id.

      . Tex. Rev. Civ. Stat. Ann. art. 8930 (West Supp.2007).

      . Because the Act does not define the scope of judicial review, we review the Board's decision under the substantial evidence rule. See Tex. Gov't Code Ann. § 2001.174 (West 2000).

      . See Texas Dep't of Protective & Regulatory Servs. v. Mega Child Care, Inc., 145 S.W.3d 170, 176 (Tex.2004) (explaining application of legislative acceptance doctrine in the context of an ambiguous statute); Sharp v. House of Lloyd, Inc., 815 S.W.2d 245, 248 (Tex.1991) (applying doctrine of legislative acceptance to a "statute of doubtful meaning”).

      . Section 901.556 provides:
      (a) Not later than the 30th day after the date the board’s order becomes final as provided by Section 2001.144, Government Code, the person shall:
      (1) pay the administrative penalty; or
      (2) file a petition for judicial review contesting the fact of the violation, the amount of the penalty, or both.
      (b) Within the 30-day period, a person who acts under Subsection (a)(2) may stay enforcement of the penalty by:
      (1) paying the penalty to the board for placement in an escrow account;
      (2) giving to the board a supersedeas bond in a form approved by the board that:
      (A) is for the amount of the penalty; and
      (B) is effective until judicial review of the board’s order is final; or
      (3) filing with the board an affidavit of the person stating that the person is financially unable to pay the penalty and is financially unable to give the supersedeas bond.
      (c)A person who fails to take action as provided by this section waives the right to judicial review of the board’s order.
      Tex. Occ.Code Ann. § 901.556 (West 2004).

      . There is some confusion in the record as to the Board’s calculation of Rogers’s suspension period. The Board’s letter of May 1, 2002, states that the Board gave Rogers credit for the four-month period from September 16, 1999, until the stay was issued on January 10, 2000. In the PFD, however, the ALJ concludes that the initial period of Rogers's suspension ran from September 16, 1999, until February 4, 2000, the date Rogers submitted his payment to the Board to be placed in escrow. The Board adopted the ALJ’s conclusion of law on this point. We observe, however, that this conflict does not affect our resolution of Rogers's claims.

      . It is not clear, but the Board likely meant to reference the letter from Rogers to Cen-Tex dated July 3, 2002.

      . In his letter to the Board dated April 24, 2002, Rogers stated, "I am requesting an appointment to discuss the other term or condition of the Board's order. I have satisfied one portion of the Board’s order and maybe two. I would like a fair chance to discuss the other portion with you and calculate a fair date of my license suspension. I did not start any audit engagements before or during the appeal period on the advice of my previous attorney ... I am not a member of any practice unit. I am still not performing any audits, compilations or reviews." These statements demonstrate that Rogers understood the Board’s 1999 order suspending his certificate to practice public accountancy meant that he could not practice during the period his certificate was suspended regardless of whether the Board renewed his license.


author: Opinion by Justice FITZGERALD.

text:
    Marquael Odoric GREER, Appellant, v. The STATE of Texas, Appellee.
    No. 05-08-00146-CR.
    Court of Appeals of Texas, Dallas.
    June 9, 2009.

      Gary A. Udashen, Sorrels, Udashen & Anton, Dallas, for Appellant.
    Craig Watkins, Dallas County Dist. Atty., Grace E. Shin, Asst. Dist. Atty., Dallas, for State.
    Before Justices MOSELEY, FITZGERALD, and LANG-MIERS.
   OPINION

Opinion by Justice FITZGERALD.

Marquael Odoric Greer was convicted of possession of cocaine and sentenced to 40 years in prison. He argues, among other things, that the trial court erred by overruling five Batson challenges he made during jury selection. The State raises one cross-point that the judgment incorrectly states that Greer was convicted of possession with intent to deliver. We agree with Greer that the trial court committed Bat-son error and consequently reverse Greer’s conviction.

I. Batson

In issues five through nine, Greer argues that the trial court erred by overruling five Batson challenges he made to the State’s use of peremptory strikes against African-American jurors. See Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Greer is African-American.

A. Facts

After strikes for cause and by agreement, 30 people were left in the venire. Eight veniremembers were African-Americans. After peremptory strikes, Greer raised a Batson objection, arguing that the State had used all six of its peremptory strikes against African-Americans. The trial judge asked for a response from the State, and the State gave justifications for each of its strikes. The court heard further arguments from both sides and sustained Greer’s Batson objection to the strike of one veniremember, Juror No. 27. The State made a Batson objection to Greer’s strikes, and both sides presented argument. The court overruled the State’s Batson objections, then reconsidered its initial ruling and decided to overrule all of Greer’s Batson objections, including his objection to the strike of Juror No. 27.

B. Law

Batson entails a three-step analysis. The opponent of the peremptory strike bears the initial burden of making out a prima facie case of racial discrimination. Watkins v. State, 245 S.W.3d 444, 447 (Tex.Crim.App.), cert. denied, — U.S. -, 129 S.Ct. 92, 172 L.Ed.2d 78 (2008). If he carries this burden, the burden of production shifts to the proponent of the strike to come forward with a race-neutral reason for the strike. Id. If a race-neutral explanation is proffered, the trial court must then decide, as a question of fact, whether the opponent of the strike has proved by a preponderance of the evidence that the strike was a pretext for purposeful racial discrimination. Id. We skip the first step of the analysis if the trial court proceeded immediately to the second step by inquiring as to the striking party’s race-neutral reasons. Id.

We may overturn the trial judge’s ruling on a Batson challenge only if that ruling was clearly erroneous. Id. at 447-48. This standard is “highly deferential” to the trial judge. Gibson v. State, 144 S.W.3d 530, 534 (Tex.Crim.App.2004). A ruling is clearly erroneous if, after a review of the entire record, we are left with the definite and firm conviction that a mistake has been committed. Whitsey v. State, 796 S.W.2d 707, 721, 726 (Tex.Crim.App.1989); Hutchinson v. State, 42 S.W.3d 336, 339 (Tex.App.-Texarkana 2001), aff'd, 86 S.W.3d 636 (Tex.Crim.App.2002). If the trial judge’s decision is plausible in light of the record viewed in its entirety, or if the judge chose between two permissible views of the evidence, we may not reverse even if we are convinced that we would have decided the matter differently had we been sitting as the trier of fact. Whitsey, 796 S.W.2d at 722. If the trial judge erroneously overruled even a single Batson objection, we must reverse and remand for a new trial. Thomas v. State, 209 S.W.3d 268, 275 (Tex.App.-Houston [1st Dist.] 2006, no pet.); see also Snyder v. Louisiana, 552 U.S. 472, 128 S.Ct. 1208, 1208, 170 L.Ed.2d 175 (2008) (reversing conviction based on wrongful exclusion of one juror).

At the outset, the State argues that we may not consider the juror questionnaires, even though they appear in our clerk’s record, because Greer did not introduce them into evidence at the Batson hearing. It also argues that we may not consider the factual assertions made by Greer’s counsel at the hearing because he was not placed under oath. The State relies on Shields v. State, 820 S.W.2d 831, 833-34 (Tex.App.-Waco 1991, no pet.), in support of both propositions. Shields, however, has been limited by subsequent decisions. The court of criminal appeals has held that juror information cards may be considered, even if they are not admitted into evidence, if defense counsel referred to the cards during the Batson argument and it is apparent that the parties and the trial court regarded the cards as part of the evidence on which the trial court would rule. Cornish v. State, 848 S.W.2d 144, 145 (Tex.Crim.App.1993). In this case, both attorneys referred repeatedly to the juror questionnaires during the Batson hearing. Further, the trial court made reference to the contents of the questionnaires in connection with the State’s own Batson motion. Accordingly, we may consider the juror questionnaires. Similarly, an appellate court may consider counsel’s factual assertions during the Bat-son hearing as evidence if they were considered by the trial court without objection. White v. State, 982 S.W.2d 642, 645 (Tex.App.-Texarkana 1998, pet. ref'd); see also Emerson v. State, 820 S.W.2d 802, 804 (Tex.Crim.App.1991) (“Because there were no objections made to appellant’s undisputed observations [during the Batson hearing], we hold that these observations constitute valid proof in support of appellant’s prima facie case.”); Jones v. State, 795 S.W.2d 32, 34 (Tex.App.-Houston [1st Dist.] 1990, no pet.) (same). We will thus accept the factual assertions of Greer’s counsel unless they were contradicted or objected to. See Watkins, 245 S.W.3d at 451 (relying on appellant’s counsel’s “iden-tif[ication] for the record which of the prospective jurors were African-American, without objection or correction by the State”).

C. Application of the law to the facts

Greer does not challenge the facial race-neutrality of the State’s reasons, so we proceed to the third step of Batson and the ultimate question: whether the trial court clearly erred by failing to find that the State’s proffered reasons for using all of its peremptory strikes against African-Americans were pretexts for race discrimination. The United States Supreme Court has identified several factors to be considered in assessing the striking party’s true motives for a peremptory strike:

• whether the party eliminated a far greater proportion of African-American veniremembers than non-African-American veniremembers;
• whether the party’s stated reasons for striking the African-American veniremembers would apply equally to non-African-American venire-members that the party did not strike;
• whether the party used a jury shuffle in a manner that appeared racially discriminatory;
• whether the party disproportionately singled out African-American venire-members for voir-dire questioning in a way designed to elicit grounds for peremptory challenges; and
• whether the party employed a formal policy to exclude minorities from jury service at the time of trial.

Watkins, 245 S.W.3d at 448-49 (summarizing Miller-El v. Dretke, 545 U.S. 231, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005)). Other relevant factors include:

• whether the party relied on reasons not related to the facts of the case; and
• whether the party failed to question the challenged veniremember.

Whitsey, 796 S.W.2d at 713-14. The party raising the Batson challenge need not prove every factor. In the recent case of Snyder v. Louisiana, for example, the Court found a Batson violation because the prosecutor’s reason for the challenged strike was “highly speculative” and was also implausible in light of the failure to strike two white veniremembers who were comparable to the struck African-American veniremember. 128 S.Ct. at 1209-12; see also Thomas, 209 S.W.3d at 275 (reversing conviction because of disparate treatment and disproportionate use of strikes against African-Americans). “The prosecution’s proffer of [a] pretextual explanation naturally gives rise to an inference of discriminatory intent.” Snyder, 128 S.Ct. at 1212.

The panel of 30 veniremembers included eight African-Americans, or 27%. Yet, the State used 100% of its six strikes against African-Americans. This remarkably disproportionate use of peremptory strikes weighs heavily in our analysis. See Miller-El, 545 U.S. at 240-41, 125 S.Ct. 2317 (prosecutor’s use of peremptory strikes against ten out of eleven available African-American veniremembers was “remarkable” and not likely caused by “[h]ap-penstance”); see also Snyder, 128 S.Ct. at 1207 (noting the prosecution struck all five African-American veniremembers from 36-person panel); Thomas, 209 S.W.3d at 275 (prosecution struck six out of seven qualified African-American venire-members from panel of 38).

We proceed with comparative juror analysis. The State struck Jurors 2, 21, 22, 27, 31, and 48, and Greer raises Batson arguments with respect to all except Juror No. 31. We consider Greer’s fifth and ninth issues, in which he argues that the State’s reasons for striking Juror No. 2 and Juror No. 48 were pretextual.

1. Juror No. 2

The State asserted that it struck Juror No. 2, an African-American, because she had family members who had been through the criminal justice system and because of her own bad experiences with police officers in the past. The State also relied on the fact that Juror No. 2 opined that rehabilitation of those convicted is the most important objective of “criminal justice punishment.” Greer argues that these reasons were pretextual, as shown by comparative juror analysis. We consider each of the State’s reasons in turn.

First, the State explained that it struck Juror No. 2 (and Juror No. 31) because “each of these jurors had a family history — or history in their family of someone being through the criminal justice system either in jail or on probation or had— having been sent to the penitentiary.” This explanation was factually accurate; on her juror questionnaire, Juror No. 2 wrote that her brother-in-law had served jail time for burglary and that her husband had received probation for burglary. But as Greer points out, the State did not strike other non-African-American venire-members who shared this characteristic. We focus in particular on Juror No. 7, a white woman who served on the jury. Juror No. 7 wrote on her questionnaire that her stepdaughter had served jail time for possession of a controlled substance. Yet, despite this similarity to Juror No. 2, the State did not strike Juror No. 7.

Second, the State explained that Juror No. 2 (and Juror No. 81) “had expressed that they, themselves, had bad experiences with police officers, and those two jurors specifically mark[ed] each of those two categories on the questionnaire.” This explanation is not factually accurate, because Juror No. 2’s questionnaire does not show that she had personally had a bad experience with law enforcement, as the State claimed. Rather, she answered “yes” to the following compound question: “Have you, a family member, or close friend ever had a bad experience with police or law enforcement?” Following that question was the request, “If yes, please explain:”, and in the following blank she wrote “brother-in-law put in jail for burglary.” Thus, the State’s assertion that it struck Juror No. 2 because she herself claimed to have had a bad experience with police officers was factually wrong. We recognize that pretext is not shown merely because an explanation is factually incorrect. Johnson v. State, 68 S.W.3d 644, 649 (Tex.Crim.App.2002); Ford v. State, 1 S.W.3d 691, 693-94 (Tex.Crim.App.1999). But when the State’s explanation for striking a juror is clearly contrary to the evidence, we have held that there is no innocent mistake and reversed for Batson error. See Reich-Bacot v. State, 789 S.W.2d 401, 404-05 (Tex.App.Dallas 1990) (reversing conviction where prosecutor’s only reason for peremptory strike was flatly contradicted by venire-member’s answers during voir dire), pet. dism’d per curiam as improvidently granted, 815 S.W.2d 582 (Tex.Crim.App.1991). Reich-Bacot is instructive here, because the juror questionnaire clearly shows that Juror No. 2 did not claim to have had a bad experience with law enforcement personally. The State’s reliance on a reason that is clearly contrary to the record is implausible and unconvincing.

For its third and final reason, the State asserted that it struck Juror No. 2 because she and some other veniremembers “had on their questionnaires rehab ... is the primary function of the criminal justice system.” To quote the questionnaire, Juror No. 2 marked “Rehabilitate those convicted” as the most important of three possible “objectives of criminal justice punishment.” But once again, Juror No. 7, a white woman, marked her juror question-name in exactly the same way, and the State did not strike her. In fact, both Juror No. 2 and Juror No. 7 rated rehabilitation the most important objective of criminal justice punishment, deterrence the second most important, and punishment of the convicted the third most important objective. Thus, comparative juror analysis again strongly supports Greer’s position that the State’s reasons for striking Juror No. 2 were pretextual.

We further note that both Juror No. 2 and Juror No. 7 were quiet during voir dire. Juror No. 2 never said anything, and the only opinion Juror No. 7 voiced was that she would not hold a defendant’s decision not to testify against him. In sum, Juror No. 2 and Juror No. 7 had very similar profiles aside from the fact that Juror No. 2 was African-American. We conclude that, under the facts of this case, the State’s disparate treatment of Juror No. 2 and Juror No. 7 is persuasive evidence that its stated reason for striking Juror No. 2 was pretextual, especially in light of the State’s decision to use all six of its strikes against African-American veniremembers. As to the other factors identified in the caselaw, only one is relevant to this case: The State did not engage in any individualized questioning of Juror No. 2, which adds further support to Greer’s argument.

In response, the State argues that Bat-son does not require it to mechanically strike every single veniremember who possesses a characteristic that might draw a peremptory strike. See, e.g., Brooks v. State, 894 S.W.2d 848, 846-47 (Tex.App.Tyler 1995, no pet.). The court of criminal appeals has held that disparate treatment is not shown where the State strikes a juror because of multiple characteristics and does not strike jurors of other races who share one or more of those characteristics. Cantu v. State, 842 S.W.2d 667, 689 (Tex.Crim.App.1992). But the State fails to overcome Greer’s disparate-treatment evidence in this case for three reasons. First, the characteristics the State relied on in striking Juror No. 2, who was African-American, were shared by Juror No. 7 to an extreme degree. Yet, the State did not strike Juror No. 7, whose only obvious difference from Juror No. 2 was her race. Second, the most recent precedents from the United States Supreme Court place heightened emphasis on juror comparisons of this kind. In Miller-El, the Court relied in part on such disparate treatment. 545 U.S. at 248, 125 S.Ct. 2317 (“The fact that [the State’s] reason also applied to other panel members, most of them white, none of them struck, is evidence of pretext.”). In Snyder, the Court reversed the conviction based almost entirely on juror comparisons between a single black venire-member and two white veniremembers. 128 S.Ct. at 1211-12. Miller-El and Snyder compel us to consider disparate-treatment evidence very carefully in the Batson analysis. Finally, the disparate-treatment evidence in this case is strongly reinforced by the State’s extremely disproportionate use of peremptory strikes against African-Americans.

2. Juror No. 48

The State gave only one reason for striking Juror No. 48, an African-American man. It asserted that he, along with several other veniremembers, said during voir dire that “police officers, in their answers, would start off with less credibility than an ordinary civilian.” Greer’s counsel responded, “I have no notes to that effect anywhere on my sheets. That’s not to say that they did not say it. I don’t remember hearing them say it.... But if they said that, then the way to get those people is for cause.” Our review shows that the record does not support the State’s explanation for striking Juror No. 48. The reporter’s record contains this passage:

[THE STATE]: You feel that way [that police officers are less credible than other people], [Juror No. 49]?
PROSPECTIVE JUROR: Yes.
[THE STATE]: What about you, [Juror No. 48]?
So can y’all promise to start everybody off on a level playing field?
However, you know we judge people every day. We meet people, and y’all met a lot of strangers today and probably make instant judgments] about people. You just do it. It’s human nature. Whatever measure stick you use to judge someone’s credibility or likability, just apply that standard to everybody. That’s all we’re saying. Don’t prejudge based on appearance. That’s only fair to the Defendant, only fair to the State. Can everybody promise to do that?

Thus, the record confirms that the State asked Juror No. 48 for his feelings about police-witness credibility and that Juror No. 48 did not answer. Moreover, during Greer’s voir dire, he asked many venire-members how they viewed the credibility of police officers as witnesses, including Juror No. 48. Juror No. 48 said that he would view them equally with other witnesses:

[COUNSEL]: [T]he law says you’re supposed to start everybody off equal. You’re saying if the police officer comes in here, your experience may cause them — to judge them with a little bit less credibility?
[JUROR NO. 23]: I say equal, but at the same time my feeling. So I say possibility.
[COUNSEL]: There’s some feelings that you are, yes, not happy with some police officer in the past. If you’re saying somebody testifies, you’ll start them off the same level as you would anybody here?
[JUROR NO. 23]: Right.
[COUNSEL]: [Juror No. 22].
[JUROR NO. 22]: Equal.
[COUNSEL]: Okay. [Juror No. 21].
[JUROR NO. 21]: Equal.
[COUNSEL]: [Juror No. 20].
[JUROR NO. 20]: Equal.
[COUNSEL]: [Juror No. 19], I think I already talked to you. [Juror No. 50].
[JUROR NO. 50]: Equal.
[COUNSEL]: [Juror No. 49].
[JUROR NO. 49]: Equal.
[COUNSEL]: [Juror No. 48].
[JUROR NO. 48]: Equal.

Just as with Juror No. 2, we conclude that, on the record before us, the State’s reliance on an explanation that is contradicted by the record is persuasive evidence that its stated reason for striking Juror No. 48 was pretextual. Again, our decision in Reicli-Bacot is instructive. In that case, the only explanation the State gave for striking one veniremember was that she worked with criminals in a halfway house. 789 S.W.2d at 403. But the record showed that the prosecutor had specifically asked her whether she did any work with people involved in criminal activity, and she specifically answered that she did not. Id. We held that the trial court erred by accepting the State’s explanation:

The reason advanced by the prosecutor has no support in the record, nor is there anything in the record to suggest a “strike for mistake.” While good faith reliance on information which is later proved to be false may justify a strike, as might confusion of one prospective juror for another, or obvious and understandable confusion of a veniremember’s statements, we are not faced with such situations in the case at bar.

Id. at 404. The same is true in this case. The State opted to rely on a single reason for striking Juror No. 48, and the record does not bear it out. Nor is there any indication that the State simply made a mistake. As the Supreme Court emphasized in Miller-El, the State is bound by the reason or reasons it proffers at the time of the Batson hearing: “[W]hen illegitimate grounds like race are in issue, a prosecutor simply has got to state his reasons as best he can and stand or fall on the plausibility of the reasons he gives.” 545 U.S. at 252,125 S.Ct. 2317.

We conclude that the State’s reason for striking Juror No. 48 is unsupported by the record.

3. Conclusion

Snyder emphasizes that we must consider all circumstances that bear on the presence or absence of racial discrimination. 128 S.Ct. at 1208. If the reason given for striking a single minority venire-member is sufficiently unconvincing, the striking of that veniremember suffices to show Batson error. Id. But the reviewing court may also consider the strikes of more than one juror together if the outcome is otherwise questionable. See id. (“[I]f there were persisting doubts as to the outcome, a court would be required to consider the strike of Ms. Scott for the bearing it might have upon the strike of Mr. Brooks.”).

In this case, our consideration of the strikes exercised against Juror No. 2 and Juror No. 48 convinces us that the trial court clearly erred by failing to find that the State’s race-neutral explanations were pretextual. First, the State used 100% of its peremptory strikes against African-Americans, who made up only 27% of the venire. This is a compelling fact weighing against the truthfulness of the State’s explanations. Second, comparative juror analysis makes the State’s explanations for striking Juror No. 2 implausible. Juror No. 7 was very similar to Juror No. 2 except that she was white, but the State struck Juror No. 2 and did not strike Juror No. 7. In Snyder, such disparate treatment of similar jurors was alone enough to justify reversal for Batson error. 128 S.Ct. at 1212. Third, the State did not engage in any individualized questioning of Juror No. 2. Fourth, the State struck another African-American venire-member, Juror No. 48, based on a single reason that has no support in the record.

Considering all relevant circumstances, we conclude that the trial court’s decisions overruling Greer’s Batson objections as to Juror No. 2 and Juror No. 48 were clearly erroneous. See Thomas, 209 S.W.3d at 275 (sustaining Batson challenge based on disproportionate use of strikes and disparate-treatment analysis). The proffer of a pretextual explanation “naturally gives rise to an inference of discriminatory intent.” Snyder, 128 S.Ct. at 1212. Accordingly, we sustain Greer’s fifth issue, in which he complains of the strike against Juror No. 2, and his ninth issue, in which he complains of the strike against Juror No. 48.

Because none of Greer’s other appellate issues would entitle him to more relief than his fifth and ninth issues, we need not address them. Likewise, we need not address the State’s cross-point concerning an erroneous statement in the judgment that Greer was convicted of possession of cocaine with intent to deliver.

II. Disposition

We reverse the trial court’s judgment and remand for further proceedings.

      . For simplicity's sake we will refer to the veniremembers as "Juror No. -," whether they actually served on the jury or not.

      . As previously discussed, the only difference between the two veniremembers cited by the State-Juror No. 2's personal bad experience with law enforcement — was clearly not supported by the record. Our own review of the record discloses no other significant difference between the two veniremembers.

      . We need not consider the issues Greer raises as to Jurors 21, 22, and 27.


author: Opinion By Justice FITZGERALD.

text:
    H. Glenn GUNTER, Appellant, v. EMPIRE PIPELINE CORPORATION, Empire Exploration, L.P., and Empire Exploration Corporation, Appellees.
    No. 05-08-00824-CV.
    Court of Appeals of Texas, Dallas.
    July 24, 2009.

      Emil Lippe, Jr., Law Offices of Lippe & Associates, Dallas, TX, for Appellant.
    Robert L. Harris, J. Stephen Gibson, Shannon, Gracey, Ratliff & Miller, L.L.P., Dallas, TX, for Appellee.
    Before Justices FITZGERALD, LANG, and SMITH.

      . The Honorable Bea Ann Smith, Justice, Court of Appeals, Third District of Texas at Austin, Retired, sitting by assignment.

   OPINION

Opinion By Justice FITZGERALD.

Appellant H. Glenn Gunter sued appel-lees Empire Pipeline Corporation, Empire Exploration, L.P., and Empire Exploration Corporation (collectively “Empire”). The parties signed a mediated settlement agreement, but Gunter later filed a motion to invalidate the settlement. Instead, the trial court signed an order enforcing the settlement and dismissing the lawsuit. We conclude that the trial court erred by enforcing the settlement in the absence of proper pleadings, proceedings, and proof. We accordingly reverse and remand for further proceedings.

I. BACKGROUND AND ISSUES ON APPEAL

Gunter sued Empire, alleging breach of contract and other theories of recovery. The parties went to mediation after the case had been pending for almost two years, and they signed a document entitled “settlement agreement.” About two months later, Gunter filed a motion to “vacate” the settlement agreement, contending that the agreement was invalid and unenforceable on grounds such as duress and fraud. A few days before the hearing, Gunter filed an amended motion to vacate the settlement agreement. Empire filed a response to the motion to vacate. Although Empire did not style this response as a cross-motion, it included in its prayer a request that the court “enter judgment enforcing the Settlement Agreement and Dismissal with Prejudice of all Plaintiffs Claims.”

The trial court held a nonevidentiary hearing at which the parties presented argument as to the proper procedure to be followed when a party seeks to avoid a settlement agreement. Gunter argued that Empire could not obtain judicial enforcement of the settlement agreement without pleading and proving its right to enforcement through the usual channels— trial or summary judgment. Empire argued that the court could enforce the agreement in a summary fashion if it concluded that the agreement was not ambiguous on its face. The court took the matter under advisement and later signed an order that both enforced the settlement agreement (by ordering Empire Pipeline Corporation to pay the consideration recited in the agreement) and dismissed Gun-ter’s claims with prejudice. Gunter filed a motion for new trial, which the trial court heard and denied.

Gunter presents five issues on appeal. In his first issue, he argues that the trial court erred by enforcing the settlement agreement without proper pleadings by Empire and without proper proof adduced through a trial or motion for summary judgment. In his other issues, he argues the merits of his position that the settlement agreement is unenforceable for various reasons.

II. Analysis

The law in this area is well-settled. The trial court cannot render an agreed judgment after a party has withdrawn its consent to a settlement agreement. Padilla v. LaFrance, 907 S.W.2d 454, 461-62 (Tex.1995); Quintero v. Jim Walter Homes, Inc., 654 S.W.2d 442, 444 (Tex.1983); Crump v. Crump, No. 05-04-01515-CV, 2005 WL 2841146, at *1 (Tex.App.-Dallas Oct. 31, 2005, no pet.) (mem. op.). After consent has been withdrawn, a court may enforce a settlement agreement “only as a written contract.” Mantas v. Fifth Court of Appeals, 925 S.W.2d 656, 658 (Tex.1996) (per curiam). The law does not recognize the existence of any special summary proceeding for the enforcement of a written settlement agreement, even one negotiated and executed in the context of a mediation. Cadle Co. v. Castle, 913 S.W.2d 627, 631 (Tex.App.-Dallas 1995, writ denied) (en banc). Thus, “[a]n action to enforce a settlement agreement, where consent is withdrawn, must be based on proper pleading and proof.” Padilla, 907 S.W.2d at 462. Proper notice and hearing are also required. See id. at 461. In short, if consent is withdrawn, “the only method available for enforcing a settlement agreement is through summary judgment or trial.” Staley v. Herblin, 188 S.W.3d 334, 336 (Tex.App.-Dallas 2006, pet. denied).

Empire had no pleadings to support rendition of judgment on the settlement agreement. It included a prayer for enforcement of the agreement in its response to Gunter’s motion to vacate, but that is not a sufficient pleading for these purposes. See Crump, 2005 WL 2841146, at *1 (“Application for Approval of Agreement to Settle Estates” not a sufficient pleading); Cadle Co., 913 S.W.2d at 681-32 (“Motion to Enforce Settlement Agreement” not a sufficient pleading); see also Rupert v. McCurdy, 141 S.W.3d 334, 339 (Tex.App.-Dallas 2004, no pet.) (“Pleadings are composed of petitions and answers.”). Moreover, the summary procedure employed by the trial court deprived Gunter of the right to be confronted by appropriate pleadings, assert defenses, conduct discovery, and submit factual disputes to a fact finder. Staley, 188 S.W.3d at 337; Crump, 2005 WL 2841146, at *1. Cf In re B.L.A., No. 05-07-00933-CV, 2008 WL 2313658, at *1 (Tex.App.-Dallas June 6, 2008, no pet.) (mem. op.) (“If parties do not adhere to summary judgment practice in cases such as this, the likely result will be uncertainty for the parties and trial courts and disparity in trial courts’ consideration and treatment of individual cases.”). We agree with Gunter that the trial court erred by rendering a judgment that essentially ordered specific performance of the settlement agreement without proper pleadings, proceedings, and proof.

Empire argues that Cadle, Crump, and other cases cited by Gunter are distinguishable. According to Empire, the settlements in those cases were subject to unfulfilled conditions precedent, so the parties could withdraw their consent before the agreements were consummated. Empire further argues that Gunter could not withdraw his consent to the settlement agreement because he “consummated [that agreement] unconditionally.” We disagree with Empire’s interpretation of the cases, and we conclude that Cadle and Crump are controlling. In both cases, one party contended that a settlement was an enforceable agreement, the other party notified the court that it no longer consented to the settlement, and we held that the trial court could not summarily enforce the agreement without proper pleadings, proceedings, and proof. Crump, 2005 WL 2841146, at *1; Cadle, 913 S.W.2d at 630-32. That is precisely the situation presented in this case. Just as in Cadle and Crump, we must reverse.

Empire contends that the execution of the settlement agreement destroyed the trial court’s subject-matter jurisdiction by eliminating the “case or controversy” between it and Gunter. We disagree. Empire cites no authority to support the proposition that a contested settlement agreement can moot a lawsuit and destroy subject-matter jurisdiction under circumstances like those presented in this case. We conclude that the record in this case discloses no defect in the trial court’s subject-matter jurisdiction.

Empire argues that a ruling in Gunter’s favor would effectively grant him rescission of the agreement even though he did not plead sufficient grounds for such relief. We express no opinion as to the legal merit of any of Gunter’s grounds for invalidating the settlement agreement, and we are not rendering judgment of rescission in his favor. The validity of the settlement agreement has yet to be properly tested, because neither side amended its pleadings to reckon with the settlement agreement and no trial or equivalent proceeding has been held. Gunter’s filing of the motion to vacate meant only that a consent judgment could not be rendered and that the validity of the agreement had to be litigated according to the usual procedures. See Staley, 188 S.W.3d at 336 (“Where fact issues are raised or consent has been withdrawn, the only method available for enforcing a settlement agreement is through summary judgment or trial.”). As further discussed below, the merits of Gunter’s grounds for invalidating the settlement agreement are not properly before us.

Finally, Empire argues that Gunter waived error by failing to make an offer of proof of the evidence he would have introduced if the trial court had conducted an evidentiary hearing. See Tex.R. Evid. 103(a)(2). We disagree. The error asserted by Gunter is not merely the erroneous exclusion of evidence. Gunter complains of the entire procedure employed by the trial court — the rendition of judgment enforcing the settlement agreement without supporting pleadings, evidence, or an appropriate proceeding such as a trial or summary judgment. Gunter made this complaint clear at the hearing on his motion to vacate. The trial court implicitly rejected Gunter’s argument by rendering the judgment enforcing the settlement agreement. Gunter adequately preserved error. See generally Tex.R.App. P. 33.1.

We sustain Gunter’s first issue on appeal. In his remaining issues, Gunter contends that the trial court erred by enforcing the settlement agreement for a variety of substantive reasons. Moreover, Gunter prays for us to reverse the judgment and to render judgment vacating the settlement agreement, arguing in essence that he conclusively established his defenses to the enforceability of the agreement. We need not address Gunter’s other issues. Gunter did not amend his pleadings in the trial court to attack the validity of the settlement agreement, nor were his defenses to the agreement’s enforceability properly adjudicated by summary judgment or trial. His merits arguments and his request for rendition of judgment are therefore premature. See Pollard v. Merkel, No. 05-96-00795-CV, 1999 WL 72209, at *3 n. 5 (Tex.App.-Dallas Feb. 12, 1999, no pet.) (not designated for publication) (refusing to address legal-sufficiency points on similar facts because no “trial” had been held).

III. Disposition

For the foregoing reasons, we reverse the trial court’s judgment and remand this case for further proceedings consistent with this opinion.