source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re UNIVAR USA, INC.
    No. 09-10-00148-CV.
    Court of Appeals of Texas, Beaumont.
    Submitted April 5, 2010.
    Decided April 21, 2010.

      Robert Scott, Barry Abrams, Marquel S. Jordan, Lance Leisure, Abrams Scott & Bickley, L.L.P., Houston, for relator.
    Darren L. Brown, J. Keith Hyde, Paul F. “Chip” Ferguson, D’Juana Parks, John A. Cowan, Provost Umphrey Law Firm, L.L.P., Beaumont, for real parties in interest.
    Before McKEITHEN, C.J., GAULTNEY and HORTON, JJ.
   OPINION

PER CURIAM.

In this original proceeding, we must determine whether the remaining nonsettling defendant is entitled to discover the contents of settlement agreements between the real parties in interest and the defendants with whom they settled. Relator is Univar USA, Inc. (“Univar”), who allegedly supplied benzene to John Thompson’s employer. The real parties in interest are the Estate of John Thompson and his survivors (“Thompsons”).

Background

In February 2008, John and Carol Thompson filed suit against various suppliers of benzene-containing products and various oil and chemical companies on whose premises John had worked. Their original petition alleges that John contracted acute myelogenous leukemia (AML) from his occupational exposure to benzene. Univar, although not originally named as a defendant, was subsequently named as an additional defendant in the first amended petition filed by the Thompsons. In November 2009, John died, and in February 2010, the Thompsons amended their pleadings to substitute John’s estate for John and to add John’s surviving child as a plaintiff.

In April 2008, prior to John’s death, John and Carol answered a set of “Master Requests for Disclosures.” With respect to settlement agreements, the “Master Requests for Disclosures” contain a request that the Thompsons disclose “Any settlement agreements described in Rule 192.3(g)[.]” The Thompsons answered this request: “None.”

In December 2009, Univar requested the Thompsons supplement their answers to the “Master Requests for Disclosures.” Univar also requested that the Thompsons supplement their discovery to reveal “the total amounts of the settlements reached with any defendants listed individually by party.” In January 2010, Univar filed a motion to compel, and in its motion, asked the trial court to compel the Thompsons to supplement their disclosures, specifically requesting that the trial court compel the Thompsons to disclose the settlement agreements and the amounts of the settlements.

In February 2010, the trial court conducted a non-evidentiary hearing on Uni-var’s motion to compel. When the trial court conducted the hearing, the Thomp-sons had neither filed a motion for protection, nor pled that the settlement agreements to which they were parties were privileged, either in whole or in part. At the hearing on Univar’s motion to compel, the Thompsons argued that until a jury had awarded damages, the amounts involved in their settlements were irrelevant. Nevertheless, the Thompsons’ attorney advised the trial court that he had offered to “let the Univar defendant know which of the other defendants in the case have settled so that they would know [the identity of the] settling parties.” With respect to the settlement amounts, the Thompsons’ attorney asserted at the hearing that “those amounts are confidential,” as there are “confidentiality agreements that have been entered with the other parties.” Based on that argument, the Thompsons asserted that the amounts paid by each individual settling party should not be disclosed. At the conclusion of the hearing, the trial court did not rule on Univar’s motion to compel the disclosure of the settlement agreements.

In March 2010, the Thompsons filed supplemental responses to the “Master Requests for Disclosures.” With respect to disclosing whether the Thompsons had settled any of their claims, the Thompsons added the following to their prior response: “Plaintiff objects to this Request for Disclosure pursuant to the holdings of Palo Duro Pipeline Co., Inc., et al[.] v. Hon. Ann Cochran, Judge, 785 S.W.2d 455 (Tex.App.-Houston [14th Dist.], 1990). See Plaintiffs response to Defendant’s Motion to Compel on this issue.” Once again, the Thompsons attached no evidence to their supplemental response to support their objection to producing the settlement agreements. In March 2010, the Thompsons also filed a written response to Univar’s Motion to Compel. This response also contains no evidence to support the Thompsons’ objection to producing the contents of the settlement agreements.

In late March 2010, approximately two weeks after the Thompsons filed their written response to Univar’s motions to compel, the trial court entered an order that denied Univar’s motion, “except to the extent that the Court ORDERS Plaintiffs, within 2 days of the signing of this order, to provide to counsel for Defendant Univar USA[,] Inc.[,] the aggregate amount of any and all settlements agreed upon with regard to the claims made in this case and the identity of all parties who have agreed to contribute to such settlements.” Univar filed its petition seeking a writ of mandamus on March 30, 2010.

Mandamus and Discovery Standards

For discovery matters, mandamus relief is generally appropriate only if a trial court abuses its discretion and the party resisting the discovery has no adequate appellate remedy. CSR Ltd. v. Link, 925 S.W.2d 591, 596 (Tex.1996) (orig.proceeding); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex.1992) (orig.proceeding). A trial court clearly abuses its discretion when its action is “ ‘so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.’ ” Walker, 827 S.W.2d at 839 (quoting Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985)).

Generally, the Texas Rules of Civil Procedure allow a party to discover “any matter that is not privileged and is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party.” Tex.R. Civ. P. 192.3(a). With respect to documents, a party may obtain discovery of documents “that constitute or contain matters relevant to the subject matter of the action.” Tex.R. Civ. P. 192.3(b).

The discovery of settlement agreements is specifically addressed by the Texas Rules of Civil Procedure. See Tex.R. Civ. P. 192.3(g). Rule 192.3(g) provides: “A party may obtain discovery of the existence and contents of any relevant portions of a settlement agreement. Information concerning a settlement agreement is not by reason of disclosure admissible in evidence at trial.” Id. With respect to settlement agreements, the Texas Rules of Civil Procedure further require that a party, within thirty days after being served with a request, file a response to the request of another party for “any settlement agreements described in Rule 192.3(g)[.]” Tex.R. Civ. P. 194.2(h), see also Tex.R. Civ. P. 194.3.

On March 25, 2010, the trial court denied Univar’s motion to compel disclosure of the contents of the settlement agreements. The trial court did not require the settlement agreements to be produced for an in camera inspection; consequently, the settlement agreements are not in the record before us. We review the trial court’s order to determine whether the trial court abused its discretion, and to determine whether Univar has an otherwise adequate appellate remedy.

Analysis

Generally, the Texas Civil Practice and Remedies Code requires the trial court, after first reducing the claimant’s recovery by any percentage fault assigned to the claimant, to then further reduce the damages recovered by “the sum of the dollar amounts of all settlements.” Tex. Civ. Prac. & Rem.Code § 33.012 (Vernon 2008). Thus, the settlement agreements containing the dollar amounts of a claimant’s settlements are relevant to a remaining nonsettling defendant in at least two ways; first, to determine the amount of its settlement credit after a trial is completed, and second, before trial, to determine whether any settlement demand being made is reasonable when compared to the likely outcome of a trial.

Had settlement with others been relevant only under the condition that the nonsettling defendant was entitled to a credit, the Texas Rules of Civil Procedure could have made them conditionally discoverable after the jury reached a verdict, and only if the jury determined the plaintiffs’ damages. However, the settlement agreements were not made conditionally discoverable under the relevant rules of procedure. Instead, the Texas Rules of Civil Procedure require that settlement agreements be produced within thirty days of the service of the request. Tex.R. Civ. P. 194.3 (requiring, with respect to settlement agreements, the response to a request for disclosure filed “within 30 days after service of the request”). Because the Texas Rules of Civil Procedure expressly require settlement agreements to be produced before trial, the rules implicitly recognize that settlement agreements are relevant beyond their relevance to the trial court’s mechanical calculation of the judgment.

In this case, it is undisputed that Univar served the Thompsons with a proper request for disclosure. Generally, settlement agreements are discoverable by nonsettling parties where they are shown to be relevant. Tex.R. Civ. P. 192.3(g); Ford Motor Co. v. Leggat, 904 S.W.2d 643, 649 (Tex.1995). Further, the general rule is that a party resisting discovery has the burden to plead and prove the basis for its objections. State v. Lowry, 802 S.W.2d 669, 671 (Tex.1991) (orig.proceeding).

In this case, the Thompsons objected to the request to supplement their disclosures. Objections to requests for disclosure are specifically not permitted by the Texas Rules of Procedure. Tex.R. Civ. P. 194.5. Nevertheless, a party is allowed to file a motion for a protective order pursuant to Rule 192.6, although the Thompsons did not do so here. See Tex.R. Civ. P. 194 cmt. 1; see also Tex.R. Civ. P. 192.6 (explaining the procedure to obtain “an order protecting that person from the discovery sought”).

The cases upon which the Thompsons rely to argue that courts have protected claimants from producing settlement agreements are distinguishable, as all of the cases they cite were decided prior to the Texas Supreme Court’s revision of the Texas Rules of Civil Procedure. These revisions were effective January 1, 1999, and they expressly address the discovery of settlement agreements. See Tex.R. Civ. P. 192.3(g); Tex.R. Civ. P. 194.2(h).

Moreover, in this case, the Thompsons failed to follow the Texas Rules of Civil Procedure to support their claim that the settlement agreements contain provisions that would prohibit a court from disclosing the amount that each settling party paid to nonsettling parties. Nevertheless, the trial court simply accepted the Thompsons’ bare claim that the agreements contained such provisions, and also accepted the claim that those provisions prevented the Thompsons from disclosing the amounts of the settling parties’ individual settlements.

While the trial court’s remedy was to require the Thompsons to disclose the total aggregate of the settlements and to make the Thompsons disclose the identity of the settling defendants, Rule 192.3 expressly allows the discovery of the “contents” of the relevant portions of settlement agreements. See Tex.R. Civ. P. 192.3(g). The procedure suggested by the trial court would preclude the nonsettling defendant from verifying the accuracy of the settlement credits by examining the settlement agreements and it would further preclude judicial oversight over any dispute between the parties concerning the proper amount of any settlement credit.

“Affording parties full discovery promotes the fair resolution of disputes by the judiciary.” Lowry, 802 S.W.2d at 671. Lawsuits should be “ ‘decided by what the facts reveal, not by what facts are concealed.’ ” Id. (quoting Jampole v. Touchy, 673 S.W.2d 569, 573 (Tex.1984) (orig.pro-eeeding)). Because Univar demonstrated that the contents of the settlement agreements were relevant, and the Thompsons failed to establish that the provisions in the agreements prohibited disclosing the settlement amounts to nonsettling parties, the trial court was required by the Rules of Procedure to allow the discovery of the individual settlement amounts.

We also conclude that Univar has no adequate remedy on appeal for three reasons. Without the agreements being placed in the record, a nonsettling defendant’s ability to obtain adequate appellate review of a claim that the trial court failed to give the proper settlement credit is frustrated. See Tex. Civ. Prac. & RemlCode Ann. § 33.012; Tex.R.App. P. 44.4(a)(1). Second, the nonsettling defendant should be entitled to make its own independent assessment of its settlement credits to evaluate a settlement offer to avoid trial. This assessment is achieved by discovering the contents of the agreements by virtue of the Texas Rules of Civil Procedure. See Tex.R. Civ. P. 194.2(h). Because the sole source of a nonsettling defendant’s knowledge about its settlement credits is based on what a party with an incentive to minimize that amount tells the nonsettling defendant, without being given the opportunity to verify that information, a nonset-tling defendant might be pressured into settling. Such a settlement, procured by darkness, is neither just, fair, equitable, or impartial, and appears to be inconsistent with the objective of the Texas Rules of Civil Procedure. Tex.R. Civ. P. 1 (providing that “[t]he proper objective of rules of civil procedure is to obtain a just, fair, equitable and impartial adjudication of the rights of litigants”). For example, the allocation of a settlement between actual damages and punitive damages could become relevant to properly calculating the applicable settlement credit. See Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 928 (Tex.1998) (requiring the settling party to tender to the trial court the settlement agreement allocating between actual and punitive damages to calculate the dollar-for-dollar settlement credit). In our opinion, fairness should allow nonsettling parties to be on equal footing with plaintiffs who are aware of the amounts of settlements with others. Equal knowledge means that nonsettling defendants and the plaintiffs have access in a timely manner to the settlement agreements’ relevant terms. To require one party to summarize those terms is insufficient to give both parties the necessary knowledge to evaluate the likely trial result after accounting for any settlement credits.

Third, fairness should allow a non-settling party to evaluate whether a given settlement agreement potentially affects the prospective testimony of witnesses at a trial, an argument Univar advanced in the trial court and in its petition seeking a writ of mandamus. With respect to witness bias, we note that settlement agreements and offers may be discoverable for purposes other than to establish liability, such as to demonstrate bias or prejudice of a party or witness, or, to establish the existence of a promise or agreement made by nonparties to the settled lawsuit. See Bristol-Myers Co. v. Gonzales, 561 S.W.2d 801, 805 (Tex.1978) (trial court committed reversible error by excluding claimant’s settlement agreement with physician, which was offered to show the physician’s bias against the drug manufacturer). Because the settlement agreements are not in the record, whether they contain agreements relevant to any witness’s bias is unreviewable. But, the nonsettling defendant’s right to protect itself through discovery to discover agreements reasonably calculated to demonstrate a witness’s bias is before us. In our opinion, the trial court’s order prevents the nonsettling defendant any opportunity to examine the contents of the settlement agreements and thus, deprives the nonsettling defendant of the opportunity to evaluate whether some portions of the settlement agreements demonstrate the presence of bias. In due course, and if the agreements do contain provisions that affect the testimony of the trial witnesses, the trial court’s ruling prevents the nonsettling defendant from using the settlement agreements during the trial. In turn, by neither having the agreements in the record nor having them to utilize in examining the witnesses at trial, the nonsettling defendant is restricted of its subsequent ability to demonstrate on appeal that it did not receive a fair trial.

As the burden is on the party objecting to the disclosure of the evidence to show that it was not offered for some other valid purpose permitted by Rule 408, a burden that the Thompsons failed to fulfill, the trial court failed to follow the Rules of Civil Procedure to require the Thompsons to produce any portions of the settlement agreements relevant to witness bias. See Haney v. Purcell Co., 796 S.W.2d 782, 789-90 (Tex.App.-Houston [1st Dist.] 1990, writ denied). We conclude that parts of the settlement agreements are directly relevant to demonstrating the settlement credit available for reducing any judgment, pursuant to the terms of section 33.012 of the Texas Civil Practice and Remedies Code. We further conclude that parts of the settlement agreements are relevant to the existence or nonexistence of potential witness bias, such as those portions that reflect agreements to provide testimony, to provide cooperation, or to not cooperate with the nonsettling defendant, as a consideration for the settlement are reasonably calculated to lead to the discovery of relevant impeachment evidence. See Tex.R. Evid. 408. We direct the trial court to vacate its March 25, 2010 order denying Univar’s motion, and to promptly enter an order granting Univar’s motion to compel production of the relevant portions of the settlement agreements by no later than two days prior to the beginning of jury selection. With respect to the relief granted herein, the writ will issue only if the trial court fails to act promptly in accord with this opinion.

WRIT CONDITIONALLY GRANTED.

      . The order allowing the Thompsons to handle their disclosure obligations by responding to a "master” set is not in the record before us. Nevertheless, the Thompsons do not argue that Univar did not serve them with a request for disclosure, and the record contains the Thompsons’ "Supplemental Responses to Master Requests for Disclosure,” filed March 2010.

      . Section (g) of Rule 192.3 provides: "Settlement Agreements. A party may obtain discovery of the existence and contents of any relevant portions of a settlement agreement. Information concerning a settlement agreement is not by reason of disclosure admissible in evidence at trial." Tex.R. Civ. P. 192.3(g).

      . Univar's motion to compel also included other discovery disputes that are not the subject of this original proceeding.

      . The response filed by the Thompsons to Univar’s Motion to Compel contained attachments, but these attachments address the parties’ other discovery disputes and for the most part do not concern the disclosure of the Thompsons' settlement agreements. The attachments to the Thompsons' response indicate that the parties had not reached agreement about Thompsons’ production of the contents of the settlement agreements.

      . The relevant part of comment 1 states: "In those extremely rare cases when information ordinarily discoverable should be protected, such as when revealing a person's residence might result in harm to the person, a party may move for protection.” Tex.R. Civ. P. 194 cmt. 1. The Thompsons did not assert that the settlement agreements were protected by any specific privileges, move for protective order, or comply with Rule 193.3, providing the procedure to follow to preserve privileged material. See Tex.R. Civ. P. 193.3 ("Asserting a Privilege”).

      . The cases on which the Thompsons rely for this part of their argument, Ford Motor Co. v. Leggat, 904 S.W.2d 643 (Tex.1995), Burlington N., Inc. v. Hyde, 799 S.W.2d 477 (Tex.App.-El Paso 1990, orig. proceeding); Nermyr v. Hyde, 799 S.W.2d 472 (Tex.App.-El Paso 1990, orig. proceeding); Palo Duro Pipeline Co. v. Cochran, 785 S.W.2d 455 (Tex.App.Houston [14th Dist.] 1990, orig. proceeding), all predate the change in the Texas Rules of Civil Procedure. The changes to the Texas Rules of Civil Procedure — incorporating requests for disclosures — became effective January 1, 1999. TexR. Civ. P. 192.3(g) (amended Jan. 1, 1999); TexR. Civ. P. 194 (amended Jan. 1, 1999); see also 61 Tex. B.J. 1140, 1148, 1153-154(1998).

      . We are advised that trial is scheduled during the week of April 26, 2010. In light of the scheduled trial date, and the objective of the Rules of Procedure to obtain a just, fair, equitable, and impartial adjudication of the rights of the litigants, producing the settlement agreements before jury selection occurs is appropriate. See TexR.App. P. 52.8(c) ("If the court determines that relator is entitled to relief, it must make an appropriate order.”); Tex.R. Civ. P. 1 (stating the objective of the rules of civil procedure).


author: STEVE McKEITHEN, Chief Justice.

text:
    In re UNIVAR USA INC. f/k/a McKesson Chemical.
    No. 09-10-00064-CV.
    Court of Appeals of Texas, Beaumont.
    Submitted March 5, 2010.
    Decided April 21, 2010.
    Robert Scott, Barry Abrams, Marquel S. Jordan, Abrams Scott & Bickley, L.L.P., Houston, for relator.
    Darren Brown, J. Keith Hyde, John A. Cowan, Provost Umphrey Law Firm, L.L.P., Beaumont, for real parties in interest.
    Before McKEITHEN, C.J., GAULTNEY and KREGER, JJ.
   OPINION

STEVE McKEITHEN, Chief Justice.

Univar USA Inc. Wa McKesson Chemical seeks mandamus review of an order of the trial court, signed February 12, 2010, compelling relator to present a corporate representative for deposition. We conditionally grant partial relief and direct the trial court to vacate its prior order and enter an order quashing the notice of deposition.

The real parties in interest, Carol Thompson acting individually and as the representative of the Estate of John Thompson, and Greg Thompson, allege that John Thompson died as the result of acute myelogenous leukemia allegedly caused by occupational exposure to benzene. The trial court’s order concerns the deposition of a corporate representative of McKesson Chemical. In its first issue, Univar contends the trial court abused its discretion by compelling discovery without an adequate showing that Thompson was exposed to benzene sold by McKesson Chemical. In its second issue, Univar contends that the discovery compelled by the trial court is overbroad with respect to subject matter, place, and time.

Univar relies upon the precedent established by this Court’s opinion in In re Mallinckrodt, in which we stated the standard of review. See In re Mallinckrodt, Inc., 262 S.W.3d 469, 472 (Tex.App.-Beaumont 2008, orig. proceeding).

For discovery matters, mandamus relief is generally appropriate only if a trial court abuses its discretion and the party resisting the discovery has no adequate appellate remedy. CSR Ltd. v. Link, 925 S.W.2d 591, 596 (Tex.1996) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex.1992) (orig. proceeding). A trial court clearly abuses its discretion when an action is “so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.” Walker, 827 S.W.2d at 839.
Generally, the trial court has discretion to control the scope of discovery for the cases over which it presides. See Dillard Dep’t Stores, Inc. v. Hall, 909 S.W.2d 491, 492 (Tex.1995) (per curiam). However, its discretion is not unlimited, as the trial court is obligated to make an effort to impose reasonable discovery limits. In re Am. Optical Corp., 988 S.W.2d 711, 713 (Tex.1998) (per curiam). For example, ordering discovery that exceeds “that permitted by the rules of procedure” constitutes an abuse of discretion. Texaco, Inc. v. Sanderson, 898 S.W.2d 813, 815 (Tex.1995) (per curiam).
On multiple occasions the Texas Supreme Court has prohibited discovery that it has characterized as constituting a fishing expedition. K Mart Corp. v. Sanderson, 937 S.W.2d 429, 431 (Tex.1996) (per curiam); Dillard Dep’t Stores, Inc., 909 S.W.2d at 492; Texaco, 898 S.W.2d at 815. The Texas Supreme Court also requires that requests to produce be tailored to include only matters relevant to the case. In re Am. Optical Corp., 988 S.W.2d at 713. Moreover, the Texas Supreme Court has criticized discovery orders “requiring document production from an unreasonably long time period or from distant and unrelated locales” as impermissibly overbroad and held that such requests are subject to correction by mandamus. In re CSX Corp., 124 S.W.3d 149,152-53 (Tex.2003) (per curiam). Recently, the Texas Supreme Court reiterated: “[T]rial courts ‘must make an effort to impose reasonable discovery limits.’” In re Allstate County Mut. Ins. Co., 227 S.W.3d 667, 668 (Tex.2007) (per curiam) (quoting In re CSX Corp., 124 S.W.3d at 152).
Before a court can order production based on discovery requests that cover multiple decades, the discovery proponent must make a threshold evidentiary showing to demonstrate the relevance of the requested documents. See In re Dana Carp., 188 S.W.3d 298, 301 (Tex.2004) (per curiam) (“[O]ur rules require that a threshold showing of applicability must be made before a party can be ordered to produce multiple decades of insurance polieies[.]”). In Dana Corporation, the discovery proponents made their threshold showing with respect to some of the requested discovery by affidavit. Id. The affidavits were insufficient, however, with respect to some of their other discovery requests. Id. at 301-02.
This court has likewise required that the proponent of discovery covering large periods of time make a threshold evidentiary showing to demonstrate how the discovery will result in the production of relevant evidence. In re TIG Ins. Co., 172 S.W.3d 160, 167 (Tex.App.Beaumont 2005, orig. proceeding). In that case, we stated: “It is the discovery proponent’s burden to demonstrate that the requested documents fall within the scope-of-discovery of Rule 192.3.” Id. [ (citing Tex.R. Civ. P. 192.3) ] We followed the reasoning of the Texas Supreme Court in determining whether information was discoverable, namely that courts must ascertain if the information is discoverable under Rule 192.3(a)’s general scope-of-discovery test. Id. (quoting In re Dana Corp., 138 S.W.3d at 301).

In re Mallinckrodt, 262 S.W.3d 469, 472-73 (Tex.App.-Beaumont 2008, orig. proceeding).

Thompson testified that he used benzene that came from black drums or green and white drums, but he did not identify the names of the manufacturers or suppliers of the products. Thompson worked at DuPont Sabine River Works from 1966 through 1968 and used benzene as a cleaning solvent. The benzene he used came from black drums. Thompson submitted testimony from Rayford Jimer-son that the benzene used at the Sabine River Works came from Van Waters & Rogers. Harold Wellen of Van Waters & Rogers testified that the drums used by that company to supply benzene in the 1960’s and early 1970’s were green and white. A drum filler for Van Waters & Rogers, Joseph Beverly, testified that his company put benzene in green and white drums.

Thompson worked at Texas U.S. Chemical Company from 1970 to 1971. While employed at Texas U.S. Chemical, Thompson used benzene in fifty-five gallon drums as a cleaning agent. Lee Fry testified that during his employment as a chemist at Texas U.S. Chemical from 1959 through the late 1970’s, Van Waters and Rogers and McKesson supplied benzene to the plant in fifty-five gallon drums. Connie Lowell, who sold chemicals for McKesson from 1963 through 1979, recalled only one occasion in the late 1960’s when he sold benzene to Texas U.S. Chemical. It was either a solid black drum with a white top or a black drum with a white ring around the center and a white top and bottom.

The trial court had before it some evidence that Thompson used benzene that came in black drums and that during the period when Thompson used benzene McKesson’s Beaumont office sold benzene to chemical plants in black drums. Discovery related to McKesson’s sale of benzene to the DuPont Sabine Works and Texas U.S. Chemical during the time Thompson worked at those plants is likely to lead to the production of relevant evidence. See Tex.R. Civ. P. 192.3(a). Accordingly, the trial court did not abuse its discretion by-permitting the plaintiffs to depose Univar’s representative. We overrule issue one.

In its second issue, Univar complains that the trial court failed to narrowly tailor its discovery to the relevant product, time, and place. In response, the real parties in interest contend that the scope of discovery in their notice of deposition largely corresponds to the period of time when Thompson was employed at DuPont Sabine River Works and Texas U.S. Chemical. Univar’s motion to quash included a complaint that both the notice of deposition and the attached subpoena duces tecum were overbroad.

Requests for discovery must be tailored to include only matters relevant to the case. Mallinckrodt, 262 S.W.3d at 473. With the exception of requests for records of benzene deliveries, warnings, and purchase orders, the subpoena duces tecum contains no date restrictions. Most of the topics listed in both the notice and the subpoena contain no geographical restrictions. Both the notice and the subpoena require discovery regarding medical policies and medical surveillance that is not limited to benzene.

‘When a party propounds overly broad requests, the trial court must either act to narrowly tailor the requests or sustain objections advancing the complaint that the requests are overly broad.” Id. at 474. Univar objected that the notice of deposition and the subpoena duces tecum were overbroad and requested that the trial court quash the deposition. The trial court failed to limit the breadth of the deposition and the production . of documents to matters relevant to the subject matter of the pending action. See Tex.R. Civ. P. 192.3(a).

We hold that the trial court abused its discretion by permitting discovery into matters beyond the scope of discovery permitted by Rule 192.3(a). Id. We are confident that the trial court will vacate its order of February 12, 2010, and that any further discovery orders in this case will be tailored to include only matters relevant to this case. The writ of mandamus shall issue only if the trial court fails to act promptly in accordance with this opinion.

WRIT CONDITIONALLY GRANTED.


author: STEVE McKEITHEN, Chief Justice. DAVID GAULTNEY, Justice,

text:
    In re UNIVAR USA INC. f/k/a Texas Solvents and Chemical Co.
    No. 09-10-00065-CV.
    Court of Appeals of Texas, Beaumont.
    Submitted March 5, 2010.
    Decided April 21, 2010.

      Robert Scott, Barry Abrams, Lance Leisure,'Marquel S. Jordan, Abrams Scott & Bickley, L.L.P., Houston, for relator.
    Darren Brown, J. Keith Hyde, John A. Cowan, Provost Umphrey Law Firm, L.L.P., Beaumont, for real parties in interest.
    Before McKEITHEN, C.J., GAULTNEY and KREGER, JJ.
   OPINION

STEVE McKEITHEN, Chief Justice.

Univar USA Inc. f/k/a Texas Solvents and Chemical Company seeks mandamus review of an order of the trial court, signed February 12, 2010, compelling relator to present a corporate representative for deposition. We conditionally grant partial relief and direct the trial court to vacate its prior order and enter an order quashing the notice of deposition.

The real parties in interest, Carol Thompson acting individually and as the representative of the Estate of John Thompson, and Greg Thompson, allege that John Thompson died as the result of acute myelogenous leukemia allegedly caused by occupational exposure to benzene. The trial court denied relators motion to quash the deposition of a corporate representative of the former Texas Solvents. In its first issue, Univar contends the trial court abused its discretion by compelling discovery without an adequate showing that Thompson was exposed to benzene sold by Texas Solvents. In its second issue, Univar contends that the discovery compelled by the trial court is over-broad with respect to subject matter, place, and time.

The trial court abuses its discretion if it orders discovery that exceeds that permitted by the rules of procedure. Texaco, Inc. v. Sanderson, 898 S.W.2d 813, 815 (Tex.1995); In re Mallinckrodt, Inc., 262 S.W.3d 469, 472 (Tex.App.-Beaumont 2008, orig. proceeding). In determining whether particular information is discoverable, we apply the general scope-of-discovery test found in Rule 192.3(a). Mallinckrodt, 262 S.W.3d at 473; see also Tex.R. Civ. P. 192.3. It is the discovery proponents burden to demonstrate that the requested documents fall within the seope-of-discovery of Rule 192.3. Id. (quoting In re TIG Ins. Co., 172 S.W.3d 160, 167 (Tex.App.-Beaumont 2005, orig. proceeding)).

Univar contends that the real parties in interest failed to establish that Thompson used or was exposed to benzene supplied by Texas Solvents when Thompson worked at Texas U.S. Chemical from 1970-71. The real parties in interest rely upon the deposition testimony of Harold Wellen. Wellen, a Van Waters and Rogers employee, sold benzene to Texas U.S. Chemical from 1968-71. During the hearing, Univar provided the trial court with a copy of the exhibits attached to Univar’s motion to compel, which included an excerpt from Wellen’s 1997 deposition, as follows:

Q. Do you know who sold benzene to Texas U.S. prior to Van Waters & Rogers being able to sell to that company?
A. I would have to speculate.
Q. And who would that be? (objection)
Q. Well, according to your best guess, who would it be?
A. I think it was Texas Solvents. It could have been Ashland.

During the hearing at issue in this case, the real parties in interest also relied upon Wellen’s testimony from a 2002 deposition. In that deposition, Wellen was asked who supplied benzene in Beaumont and Orange County during 1965-74. Wellen replied, I can only guess at who might be supplying there. I know that at the rubber company, we did see Texas Solvents as a supplier there, and I believe also Ashland.

Before this Court, the real parties in interest argue that Wellen’s testimony places Texas Solvents product at Texas U.S. Chemical while Thompson was employed there. While employed at Texas U.S. Chemical, Thompson used benzene in fifty-five gallon drums as a cleaning agent. Wellen’s first statement was mere speculation, and it covers a time prior to the years 1970-71. Assuming it was provided to the trial court, Wellen’s second statement identifies Texas Solvents as a seller of benzene to an unidentified rubber company. Wellen’s testimony, standing alone, does nothing to establish that Texas Solvent sold benzene to Texas U.S. Chemical in 1970-71. Without more, this evidence fails to raise a reasonable possibility that benzene from Texas Solvent was present at Texas U.S. Chemical in 1970-71. This does not establish a threshold evidentiary showing that Thompson was exposed to Texas Solvents product. Accordingly, the real parties in interest failed to show that discovery related to benzene sales by Texas Solvents is reasonably calculated to lead to the production of relevant evidence. See Tex.R. Crv. P. 192.3(a). Accordingly, the trial court abused its discretion by permitting the plaintiffs to depose Univar’s representative regarding Texas Solvents. We sustain issue one.

In its second issue, Univar complains that the trial court failed to narrowly tailor any discovery to the relevant product, time, and place. In response, the real parties in interest contend that the scope of discovery in their notice of deposition largely corresponds to the period of time when Thompson was drawing benzene from fifty-five gallon drums in the course of his employment at Texas U.S. Chemical.

Requests for discovery must be tailored to include only matters relevant to the case. Mallinckrodt, 262 S.W.3d at 473. The mandamus record does not show that the deposition of the representative of the former Texas Solvents most knowledgeable regarding sales and deliveries of benzene to Texas U.S. Chemical during 1970-71 would lead to the discovery of matters relevant to this litigation. See Tex.R. Crv. P. 192.3(a). Furthermore, the categories identified in the notice of deposition and the subpoena duces tecum are not limited to the products Texas Solvents sold to Texas U.S. Chemical during Thompson’s employment. The real parties in interest seek discovery regarding Texas Solvents medical policies and practices from 1960-72 without limitation on the type of medical issue involved. Moreover, all but one of the topics upon which discovery is sought have no geographical limitation.

When a party propounds overly broad requests, the trial court must either act to narrowly tailor the requests or sustain objections advancing the complaint that the requests are overly broad. Mallinckrodt, 262 S.W.3d at 474. Univar objected that the notice of deposition and the subpoena duces tecum were overbroad and requested that the trial court quash the deposition. The trial court failed to limit the breadth of the deposition and the production of documents to matters relevant to the subject matter of the pending action. See Tex.R. Civ. P. 192.3(a).

We hold that the trial court abused its discretion by permitting discovery into matters beyond the scope of discovery permitted by Rule 192.3(a). Id. We are confident that the trial court will vacate its order of February 12, 2010, and that any further discovery orders in this case will be tailored to include only matters relevant to this case. The writ of mandamus shall issue only if the trial court fails to act promptly in accordance with this opinion.

WRIT CONDITIONALLY GRANTED.

DAVID GAULTNEY, Justice,

dissenting.

I respectfully dissent. We should not be ruling on the sufficiency of the evidence at this stage. Plaintiffs allege John Thompson used benzene sold by Texas Solvents, and benzene caused Thompson’s death. The record indicates Texas Solvents may have sold benzene in this area around the time Thompson is alleged to have used the product. Plaintiffs want to discover from the defendant whether the benzene used by John Thompson’s employer was sold by Texas Solvents. Relator argues plaintiffs are not entitled to the discovery without establishing Texas Solvents sold benzene to Thompson’s employer; but that is one of the goals of the deposition. Because the deposition is reasonably calculated to lead to the discovery of admissible evidence, the trial court did not clearly abuse its discretion in permitting a deposition of a representative most knowledgeable about Texas Solvents sales and deliveries to Texas U.S. Chemical during 1970-71. We should do as we did in the companion case involving McKesson Chemical and permit the deposition, with a more narrowly tailored notice and subpoena duces tecum. See Tex.R. Civ. P. 192.3(a).

      . Univar objects to the inclusion of this testimony in the mandamus record because the real parties in interest did not submit the supporting documentation until several days after the trial court ruled on the motion. Counsel for Thompson described the testimony during the hearing and the trial court granted leave to supplement the record with that testimony. The trial court informed counsel that he wanted to see what Wellen said the second time he was deposed and told both parties they could provide the testimony in a supplemental submission. Univar did not object to this action by the trial court.


author: HOLLIS HORTON, Justice.

text:
    Fallon GORDON, Appellant, v. Paul SEBILE, Sr., Individually and as Heir and Representative of the Estate of Laura Sebile, Paul Sebile, Jr., Lawrence C. Sebile, Eric Sebile, Don C. Sebile, Clara J. Semien, Frankie L. Cobb, and Sharon K. Dean, Appellees.
    No. 09-10-00007-CV.
    Court of Appeals of Texas, Beaumont.
    Submitted April 8, 2010.
    Decided April 22, 2010.

      Barbara A. Hilburn, Divya R. Chundru, Harris, Hilburn & Sherer, Houston, for appellant.
    Jane S. Leger, Provost Umphrey Law Firm, Beaumont, for appellees.
    Before McKEITHEN, C.J., KREGER and HORTON, JJ.
   OPINION

HOLLIS HORTON, Justice.

Paul Sebile, Sr., individually and as heir and representative of the estate of Laura Sebile, deceased, Paul Sebile, Jr., Lawrence C. Sebile, Eric Sebile, Don C. Sebile, Clara J. Semien, Frankie L. Cobb, and Sharon K. Dean, as children of the deceased, (the “Sebiles”), filed a health care liability claim against Fallon Gordon, M.D. and others. Gordon filed a motion to dismiss that challenged whether the Sebiles had filed an expert report that complied with section 74.351 of the Texas Civil Practice and Remedies Code. See Tex. Civ. PRAC. & Rem.Code Ann. § 74.351(l) (Vernon Supp.2009). The trial court denied Gordon’s motion, and Gordon appealed. We affirm.

The Sebiles’ suit alleges that Gordon’s negligence, together with that of the other defendants, caused Laura Sebile’s death. The Sebiles asserted that Gordon punctured Laura’s heart while she was undergoing a thoracoscopy to biopsy her lymph nodes. The Sebiles contend that Gordon, along with the other defendants, negligently cared for Laura, and that their acts and omissions were proximate causes of Laura’s death.

The Sebiles attached the expert report of Dr. Shabir Bhimji to their Original Petition. Shortly after being served, Gordon filed a motion to dismiss, asserting that the report of Dr. Bhimji did not comply with the requirements of Texas law. However, Gordon did not request that the trial court conduct a hearing on his objections to Dr. Bhimji’s initial report. The other defendants also filed objections to the adequacy of Dr. Bhimji’s initial report. Within one hundred twenty days of filing their original petition, the Sebiles served Gordon and the other defendants with Dr. Bhimji’s second report. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a) (Vernon Supp.2009). Gordon’s co-defendants filed objections challenging the adequacy of Dr. Bhimji’s second report, but Gordon did not do so. At the request of Gordon’s co-defendants, the trial court conducted hearings to address whether the Sebiles’ expert reports adequately complied with Texas law. Following the hearings, and with respect to each of the co-defendants, the trial court gave the Sebiles an extension of time to file a sufficient expert report, as is statutorily permitted by Texas law. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(c) (Vernon Supp.2009).

Following the extension granted by the trial court, the Sebiles served Gordon and the other defendants with Dr. Bhimji’s third report. On December 16, 2009, approximately ten months after being served with Dr. Bhimji’s second report, and approximately seven months after being served with Dr. Bhimji’s third report, Gordon filed “Supplemental Objections to the Sufficiency of Plaintiffs Expert Report and Motion to Dismiss.” Gordon’s Supplemental Objections contend that Dr. Bhim-ji’s report fails to adequately link Gordon’s alleged breaches of the standard of care to Laura’s injuries. The Sebiles filed a response, arguing that Gordon’s supplemental objections were untimely, and that Dr. Bhimji’s report adequately addresses the issue of causation. The trial court, without explanation, denied Gordon’s motion to dismiss. Gordon did not request findings of fact or conclusions of law.

In one issue, Gordon argues that the trial court abused its discretion by denying his motion to dismiss. The Sebiles maintain that Gordon failed to timely challenge Dr. Bhimji’s amended expert reports; as a result, the Sebiles assert that, by statute, “all objections are waived.” See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a). In his reply brief, Gordon asserts that his objections to Dr. Bhimji’s original expert report were timely; Gordon concludes that he “did not have a duty to object to the Amended Report of [Dr. Bhimji], as it did not render any new or altered opinions as to Dr. Gordon and did not implicate Dr. Gordon’s conduct in any way not previously expressed in the original Expert Report of [Dr. Bhimji].”

We review a trial court’s ruling on a motion to dismiss a health care liability claim for abuse of discretion. See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex.2001). “A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles.” Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002). A trial court also abuses its discretion if it fails to analyze or apply the law correctly. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992).

Section 74.351(a) of the Texas Civil Practice and Remedies Code provides, in pertinent part, that: “Each defendant physician or health care provider whose conduct is implicated in a report must file and serve any objection to the sufficiency of the report not later than the 21st day after the date it was served, failing which all objections are waived.” Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a) (emphasis added). We have previously held that a trial court did not abuse its discretion by denying a physician’s motion to dismiss when objections to a report were not timely filed and served. See Desai v. Garcia, No. 09-06-332-CV, 2006 WL 3627008, 2006 Tex. App. LEXIS 10627 (Tex.App.-Beaumont Dec. 14, 2006, no pet.). In Desai, the claimant filed suit against Dr. Desai and served Desai with a “Second Addendum” to a previous report. Id. at *1, *2, 2006 Tex.App. LEXIS 10627, at *2, ⅜5. More than twenty-one days after being served with the Addendum, Desai filed a motion to dismiss, asserting for the first time that the expert’s report was statutorily insufficient. Id. at *1, 2006 Tex.App. LEXIS 10627, at *3. We held that Desai’s objections to the sufficiency of the expert reports were waived because Desai had not timely objected. Id. at *2-3, 2006 Tex. App. LEXIS 10627, at *7-8.

In Ogletree v. Matthews, 262 S.W.3d 316, 322 (Tex.2007), the Texas Supreme Court held that a hospital’s objections had been waived when the objections were not timely filed, as they were not filed within twenty-one days after the report was served on the hospital. The Supreme Court emphasized that section 74.351 requires physicians and health care providers implicated in a report to file and serve any objection not later than the twenty-first day after service occurred. Id. at 321-22.

The record before us shows that Gordon did not file objections to Dr. Bhimji’s second or third reports. The second and third reports assert that Gordon’s acts and omissions played a role in causing Laura’s death. While it appears that the Sebiles filed their second report within the 120-day period allowed by statute for filing an expert report in a health care liability claim, Gordon did not file any objections to the second report within the twenty-one-day period that the statute provides for a party to file objections to insufficient reports. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a). Although Gordon argues that the second report added “inconsequential references to the Texas Administrative Standards of Physician Practice,” and that “the only material change [was] Dr. Bhimji’s opinions as to Dr. Gonzalez,” we find nothing in section 74.351 that excepted him from the requirement that he file any objections by the twenty-first day after being served with the second report that implicated him as having caused Laura’s death. We conclude that Gordon waived all of his objections to Dr. Bhimji’s second report. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a).

Gordon also argues that he is relieved of filing objections to Dr. Bhimji’s third report because it was filed outside the 120-day period allowed for claimants to file their expert reports. However, as noted in Gordon’s reply brief, Dr. Bhimji’s third report was filed after the trial court expressly granted the Sebiles an extension to amend their reports in light of the objections Gordon’s co-defendants lodged against the second report. The third report, dated April 30, 2009, also implicated Gordon, and in our opinion, because it constituted “a report,” its service on Gordon also triggered his duty to file any objections to the sufficiency of that report within twenty-one days of being served. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a). This section of the health care liability statute requires physicians “whose conduct is implicated in a report” to file “any objection to the sufficiency of the report not later than the 21st day after the date it was served.” Id. (emphasis added). In our opinion, when a party files an expert report pursuant to the trial court’s express permission in order to cure a deficient report, the new expert report constitutes “a report” within the meaning of section 74.351(a), thus triggering the physician’s or health care provider’s obligation to file specific objections to the new report within twenty-one days of being served with the report. If no objections are filed to a report that implicates the physician’s conduct, by the plain wording of the statute, “all objections are waived.” Id. In our opinion, and in light of the clear language of this statute, whether exceptions should exist to the legislatively created waiver is a matter best left to the Legislature.

Because Gordon’s supplemental objections, filed December 16, 2009, were not timely, the trial court did not abuse its discretion in overruling the ^supplemental objections, nor did it abuse its discretion in denying Gordon’s motion to dismiss. See Palacios, 46 S.W.3d at 877; Bowie Mem’l Hosp., 79 S.W.3d at 52. The trial court’s order of December 18, 2009, is affirmed.

AFFIRMED.


text:
    In re COMMITMENT OF David DODSON.
    No. 09-09-00053-CV.
    Court of Appeals of Texas, Beaumont.
    Submitted March 17, 2010.
    Decided April 22, 2010.

      George W. Lang II, State Counsel for Offenders, Huntsville, for appellant.
    Melinda Fletcher, Special Prosecution Unit, Amarillo, for appellee.
    Before McKEITHEN, C.J., KREGER and HORTON, JJ.
   OPINION

HOLLIS HORTON, Justice.

A jury determined that David Dodson is a sexually violent predator under Texas law. See Tex. Health & Safety Code Ann. §§ 841.001-.150 (Vernon 2003 & Supp. 2009) (SVP statute). The jury found that Dodson suffers from a behavioral abnormality that predisposes him to engage in a predatory act of sexual violence. In two issues, Dodson appeals the trial court’s judgment and order of civil commitment. We reverse the judgment and remand the case for a new trial.

Background

In a civil commitment proceeding under Chapter 841, the fact-finder, after a trial, decides whether the person being tried is a sexually violent predator. See Tex. Health & Safety Code Ann. § 841.061 (Vernon Supp. 2009), § 841.062 (Vernon 2003). Because the jury is usually given a broad-form issue to answer, its determination of the issue often resolves more than one disputed issue. For example, to answer the broad-form issue submitted in Dodson’s case, the jury was asked to determine whether Dodson “suffers from a. behavioral abnormality that predisposes him to engage in a predatory act of sexual violence[.]” The term “behavioral abnormality” has its own unique statutory definition that the trial court provided to the jury. Thus, to resolve the broad-form issue, the jury was required to resolve any dispute over whether Dodson’s condition had affected him to the extent that he would, beyond a reasonable doubt, be predisposed “to engage in a predatory act of sexual violence!.]”

As is often the case, Dodson and the State both utilized experts at trial to address whether Dodson had a behavioral abnormality as defined by the Legislature. In the case before us, Dodson challenges the trial court’s ruling that his expert witness, Dr. Anna Shursen, was not qualified to address whether he suffers from a “behavioral abnormality.”

Expert Testimony in SVP Cases

Because “behavioral abnormality” includes by definition an assessment of an individual’s risk of recidivism, as well as determining whether the individual has a congenital or acquired condition that affects his ability to control his behavior, resolving whether an individual has a “behavioral abnormality” is a multifaceted inquiry. See Tex. Health & Safety Code Ann. § 841.002(2) (Vernon Supp. 2009). The SVP provisions allow the State and the person that the State is seeking to commit to obtain pre-trial, “an immediate examination of the person by an expert.” Tex. Health & Safety Code Ann. § 841.061(c) (Vernon Supp. 2009). During pre-trial proceedings in this case, Dodson availed himself of his right to have experts examine him by filing a pro se motion to appoint consulting experts. On April 7, 2008, the trial court appointed Dr. Shursen and several others to serve as Dodson’s consulting experts. On that same date, the trial court appointed an attorney employed by the State Counsel for Offenders to represent Dodson.

Subsequently, in July 2008, Dodson’s court appointed attorney designated Dr. Shursen as a testifying expert. Dodson’s expert-designation states that “Dr. Shur-sen will testify at court as to whether Mr. Dodson has a behavioral abnormality that makes him likely to re-offend as a sexually violent predator.” In December 2008, the case went to trial.

After the State completed its evidence, Dodson called Dr. Shursen as a witness. Dr. Shursen testified that she holds a bachelor’s degree of science, a master’s degree in counseling and psychotherapy, and a doctorate in family sciences. In addition, Dr. Shursen holds Texas licenses as a professional counselor and as a sex offender treatment provider. See Tex. Occ.Code Ann. § 503.302 (Vernon Supp. 2009) (qualifications for professional counselor’s license); Tex. Occ.Code Ann. § 110.001(7) (Vernon Supp. 2009) (defining “sex offender treatment provider”); 22 Tex. Admin. Code § 810.3(a) (2009) (requiring sex offender treatment providers to be licensed by the Council on Sex Offender Treatment). Dr. Shursen also described that she had approximately twelve years of experience “working with juvenile and adult sex offenders.” As a treatment provider, Dr. Shursen testified that she received three thousand hours of clinical training at a “psyche hospital facility” and that she had twelve years of experience providing behavioral therapy treatment to sex offenders. Dr. Shursen further explained that she had previously assessed approximately twelve to fifteen persons in cases that involved the civil commitment of sexually violent predators.

Dr. Shursen met with Dodson for approximately three hours. After briefly describing her impression of Dodson based on her interview, Dr. Shursen was asked: “Did you find Mr. Dodson to have a [behavioral] abnormality?” Dr. Shursen replied: “I did not, not at this time.” Just after Dr. Shursen expressed her opinion about whether Dodson had a behavioral abnormality, Dr. Shursen noted that the term “behavioral abnormality” was a legal and not a medical term. Dr. Shursen also testified that in her opinion Dodson has stopped the behavior that previously caused him to offend.

The record further reflects that the State first objected to Dr. Shursen’s qualifications after she had provided the jury with her conclusions, but before she had expressed the reasons for reaching her conclusions. When asked about Dodson’s medical history, the State’s attorney objected that Shursen “has not ... qualified as an expert yet,” and at that time, the trial court allowed the State’s attorney to question Dr. Shursen about her qualifications. When Dr. Shursen stated that she was not a psychiatrist or psychologist, the State’s attorney re-urged the State’s prior objection that Dr. Shursen was not qualified to testify, stating: “[W]e don’t believe that she meets the qualifications of an expert.”

In response to a question by Dodson’s attorney, the trial court clarified that it understood the State’s objection to concern whether Dr. Shursen was qualified to give any opinion testimony on the subject matter involved in the suit. At that point, and while still in the jury’s presence, Dr. Shursen provided additional details about her experience assessing risks of sex offenders. Dr. Shursen described that she was trained to do actuarial testing, and she specifically mentioned the Mn-SOST, the Hare PCL-R, and the Static. Dr. Shursen further testified that she had approximately twelve years of “experience working with sex offenders and doing the assessments.”

After Dr. Shursen had provided additional information regarding her experience, Dodson tendered Dr. Shursen as an expert witness. The State again objected, and the State’s attorney argued that Dr. Shursen’s “risk assessments are for treatment purposes and not related to behavioral abnormality.” The trial court then ruled on the State’s objection, stating that it did not hear any evidence to support her being able to make a qualified decision as to whether or not a respondent in one of these cases is likely to commit future acts of sexual violence and is, in fact, a sexually violent offender. Therefore, [the court] sustain[s] the objection.” At the point the court announced its ruling, the jury had heard Dr. Shursen’s testimony about her qualifications and knew that she had interviewed Dodson. The jury was aware that the State had objected to Dr. Shursen’s qualifications on the grounds that she was not a psychiatrist or psychologist and that the trial court had decided that Dr. Shur-sen was not a qualified expert.

Immediately thereafter, the trial court excused the jury to allow Dodson to make his bill of exception. See Tex.R.App. P. 33.2. Outside the jury’s presence, Dr. Shursen explained that the term “behavioral abnormality” was not a mental health term, and that having a mental health diagnosis does not necessarily place a person “at risk to reoffend sexually.” Dr. Shursen also described her training as a sex offender treatment provider. At the conclusion of the bill, the trial court, outside the jury’s presence, stated that it was “confident [Dr. Shursen’s] a very excellent treatment provider. And she probably has done actuaríais. But [the court] rule[s] that she is not qualified to present an opinion on [Dodson] as being a person as defined or not being a person as defined under Chapter 841 as a sexually violent predator.”

Issue One

In Issue One, Dodson contends the trial court abused its discretion by refusing to permit Dr. Shursen, his expert witness, “to testify as to whether [Dodson] has a behavioral abnormality.” Dodson argues that the State’s objections to Dr. Shursen’s qualifications were not timely. He also argues that Chapter 841 of the Health and Safety Code does not specify that the trial court is limited to appointing experts from particular fields to assess whether a person is a sexually violent offender, but instead contemplates that a multidisciplinary team will conduct a review of persons referred to as potential predators. See Tex. Health & Safety Code Ann. § 841.022 (Vernon Supp. 2009). According to Dodson, had the Legislature intended only for psychiatrists or psychologists to make these assessments of whether a person has a behavioral abnormality that predisposes them to reoffend, “[i]t could have so provided.” Dodson further notes that the Texas Rules of Evidence do not require that an expert possess any specific type of degree, and instead, points out that Rule 702 provides: “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.” Tex.R. Evid. 702. Finally, Dodson argues that the trial court’s ruling prevented him from presenting his side of the case to the jury, which he contends denied him his due process rights guaranteed by the Fourteenth Amendment. See U.S. Const, amend. XIV.

In response, the State argues that Dodson failed to preserve any due process complaints because he failed to raise them at trial. With respect to Dodson’s argument that it had failed to timely object to Dodson’s expert, the State argues that Dodson never complained in the trial court that the State’s objection had not been timely. On the merits of whether Dr. Shursen had the necessary qualifications to express opinions in this case, the State argues that “[njothing in Dr. Shursen’s testimony indicated that she is qualified to determine whether someone meets [the] definition [of being a person who suffers from a ‘behavioral abnormality.’]” The State also argues, in the alternative, and if the exclusion of Dr. Shursen’s further testimony constitutes error, that the exclusion was harmless. The State argues that because Dr. Shursen had already expressed her opinion that Dodson did not have a behavioral abnormality, “[t]he mission was accomplished. [Dr. Shursen] was able to give the jury a pretty thorough description of [Dodson] and his history, as well as her opinion on the ultimate issue.”

Standard of Review

In the absence of an abuse of discretion, an appellate court will not disturb a trial court’s ruling regarding whether a witness qualifies as an expert. Broders v. Heise, 924 S.W.2d 148, 151 (Tex.1996). “The test for abuse of discretion is whether the trial court acted without reference to any guiding rules or principles.” E.I. du Pont de Nemours & Co., Inc. v. Robinson, 923 S.W.2d 549, 558 (Tex.1995). The Rules of Evidence place the burden to prove that the witness is an expert on the party seeking to offer the expert’s testimony. Broders, 924 S.W.2d at 151; see also Tex.R. Evid. 702.

Analysis

Rule 702 “requires that experts be qualified ‘by knowledge, skill, experience, training, or education,’ and that their testimony ‘assist the trier of fact.’ ” Broders, 924 S.W.2d at 153 (quoting Tex.R. Evid. 702). Before the court excluded Dr. Shur-sen’s farther testimony, Dr. Shursen had described her specialized training and experience in treating persons with sexual abnormalities and she had stated that she possessed special skills in administering actuarial tests relevant to assessing an individual’s risk of reoffending in the future. The trial court acknowledged as much when the court stated that Dr. Shursen was an excellent treatment provider and that she had done actuarial testing.

Whether the person being tried is a “sexually violent predator” is dependent on his being a repeat sexually violent offender and having a behavioral abnormality that predisposes him to engage in a predatory act of sexual violence. See Tex. Health & Safety Code Ann. §§ 841.003(a), 841.062 (Vernon 2003). Thus, to qualify for SVP status, a person must not only have an acquired or congenital condition, but he must also be predisposed to committing a sexually violent offense to the extent that he becomes a menace to the health and safety of another person. Id. § 841.002(2). The jury’s task of determining whether a person is a “sexually violent predator” is not completely finished if it only determines that the person on trial has an acquired or congenital condition. We have previously held: “[T]he legislature intended there be competent medical or psychiatric testimony to support an involuntary commitment under the Act, and provided for it therein.” Beasley v. Molett, 95 S.W.3d 590, 599 (Tex.App.-Beaumont 2002, pet. denied). However, Beasley does not hold that in SVP commitments, the jury should only hear from psychiatrists and psychologists, or that the term “behavioral abnormality can be addressed only by physicians and psychiatrists. Instead, in Beasley, we reasoned that article I, section 15-a of the Texas Constitution, read together with the SVP statute, required the State to produce competent medical or psychiatric testimony to support an involuntary commitment under the Act. Id.; see Tex. Const, art. I, § 15-a.

The determination of whether a person is predisposed to committing a future act of sexual violence, a sub-issue inherent in the broad-form issue the jury answered, can be guided by the opinions of persons who possess the requisite experience in providing treatment to persons with sexual abnormalities and who also have the required expertise to assess recidivism risks. See Tex.R. Evid. 702. Although the trial court submitted the case in a broad-form submission, one of the sub-issues the jury had to resolve in Dodson’s case was whether Dodson is predisposed to engage in a predatory act of sexual violence.

While courts are authorized to use broad-form submissions to determine disputed issues, the broad-form issue in an SVP case is a multifaceted inquiry. See Tex.R. Civ. P. 277 (providing that “the court shall, whenever feasible, submit the cause upon broad-form questions”). Whether a person has a “behavioral abnormality,” as that term is defined by statute, is not a question that is limited to determining whether the person has an underlying congenital or acquired condition. In other words, a medical opinion to demonstrate that a person suffers from a behavioral or congenital abnormality may be a precondition to commitment, as such evidence is required by the Texas Constitution, but requiring medical evidence as a part of the State’s proof does not mean that medical evidence is the only admissible proof used to resolve whether a person has a “behavioral abnormality” that includes a risk assessment as a subordinate issue.

In general, the Texas Rules of Evidence apply to all civil and criminal trials. Tex.R. Evid. 101(b). An expert’s opinion may assist the jury by virtue of the witness’s “technical, or other specialized knowledge!)]” Tex.R. Evid. 702. In Gammill v. Jack Williams Chevrolet, Inc., the Texas Supreme Court used the following “beekeeper” analogy to illustrate the distinction between scientific and non-scientific expert testimony, stating:

[I]f one wanted to explain to a jury how a bumblebee is able to fly, an aeronautical engineer might be a helpful witness. Since flight principles have some universality, the expert could apply general principles to the case of the bumblebee. Conceivably, even if he had never seen a bumblebee, he still would be qualified to testify, as long as he was familiar with its component parts.
On the other hand, if one wanted to prove that bumblebees always take off into the wind, a beekeeper with no scientific training at all would be an acceptable expert witness if a proper foundation were laid for his conclusions. The foundation would not relate to his formal training, but to his firsthand observations. In other words, the beekeeper does not know any more about flight principles than the jurors, but he has seen a lot more bumblebees than they have.

972 S.W.2d 713, 724-25 (Tex.1998) (quoting Berry v. City of Detroit, 25 F.3d 1342, 1349-50 (6th Cir.1994)). If the ordinary person is asked to select, out of a given patient population of ill people, the patients to avoid because of concerns that those persons might commit future violent acts, we think the providers dealing with that patient-population might have valuable insight into which patients present a significant risk. In our opinion, the care-providers that have dealt with the patients and who have seen and had experience with them could provide assistance in predicting which of the specific patients represented the greatest threat.

The risk of recidivism, or whether an individual will probably reoffend, strikes us as a question that depends on both training and experience, and having insight into the recidivism risk is not a matter that is susceptible only to scientific proof. The Legislature expressly acknowledged that a risk assessment is part of determining whether a given individual is a sexual predator in the definition it provided to define the term “sexually violent predator.” See Tex. Health & Safety Code Ann. § 841.003(a) (creating the standard of “likely to engage in a predatory act of sexual violence” as part of the definition of sexually violent predator). While Dr. Shursen was not Dodson’s treatment provider, she had given him tests to assess his recidivism risk, and she had conducted a three hour interview of him to form an opinion about the threat he represented.

In a prior SVP case, we noted that the Court of Criminal Appeals referred to the field of predicting a person’s future dangerousness as an area that involves a “soft” science. See In re Commitment of Gollihar, 224 S.W.3d 843, 853-54 (Tex.App.-Beaumont 2007, no pet.) (citing Russeau v. State, 171 S.W.3d 871, 883 (Tex.Crim.App.2005)). As a result, we applied the Russeau and Rodgers analyses in rejecting Gollihar’s challenge to the State’s use of a board certified psychiatrist who had testified that Gollihar would likely reoffend. Id. at 853-854; Rodgers v. State, 205 S.W.3d 525, 528 (Tex.Crim.App.2006); Russeau, 171 S.W.3d at 883. We continue to maintain the view that predicting the risk of an individual’s future recidivism is a “soft” science based largely on training and experience.

With respect to Dr. Shursen’s training and experience, the record shows that in addition to her degrees and licenses, she was trained and licensed as a sex offender treatment provider. A sex offender treatment provider is, by definition:

[A] person, licensed by the council and recognized based on training and experience to provide assessment and treatment to adult sex offenders or juveniles with sexual behavioral problems who have been convicted, adjudicated, awarded deferred adjudication, or referred by a state agency or a court, and licensed in this state to practice as a physician, psychiatrist, psychologist, psychological associate, provisionally licensed psychologist, licensed professional counselor, licensed professional counselor intern, licensed marriage and family therapist, licensed marriage and family associate, licensed clinical social worker, licensed master social worker under a clinical supervision plan approved by the Texas State Board of Social Worker Examiners, or advanced practice nurse recognized as a psychiatric clinical nurse specialist or psychiatric mental health nurse practitioner, who provides mental health or medical services for rehabilitation of sex offenders.

Tex. Ooc.Code. Ann. § 110.001(7). The administrative regulations that apply to licensed sex offender treatment providers contain several standards, including one requiring a minimum of one thousand documented hours of clinical experience in the assessment and treatment of sex offenders, a reference from a qualified person who has actual knowledge of applicant’s clinical work, and a minimum of forty hours of documented education in the prior three year period specific to sex offender assessment and treatment. 22 Tex. Admin. Code § 810.3(d)(1) (2009). The Council on Sex Offender Treatment regulates sex offender treatment licensing and is a program specifically created by the Legislature to coordinate effective assessment and treatment strategies to reduce recidivism of sex offenders and to enhance public safety. See 22 Tex. Admin. Code § 810.1 (2009).

Additionally, the Legislature did not restrict the question of risk assessment to physicians and psychologists, but instead it provided for a multidisciplinary approach for determining whether a person is a sexually violent predator. See Tex. Health & Safety Code Ann. § 841.022. The SVP’s multidisciplinary approach implicitly recognizes that persons who are not psychiatrists or psychologists are capable of providing assistance in assessing whether an individual should be identified as a candidate for being subjected to a civil commitment proceeding under the SVP statute.

We conclude that Dr. Shursen possessed the necessary qualifications to provide an opinion related to her assessment of the risk that Dodson would commit a future act of sexual violence, a component part of the broad-form issue the jury evaluated and answered. Dr. Shursen’s lack of credentials as a psychiatrist or psychologist may impact the weight the fact-finder gives her opinions about whether Dodson is predisposed to commit sexually violent acts; the lack of a medical degree does not of itself make her opinions on the issue of Dodson’s risk to recidivate inadmissible.

With respect to the treatment of sex offenders and to the assessment of their risk of reoffending, the record before us reflects that Dr. Shursen possessed the knowledge and skills not possessed by the population generally, and that she was qualified to assess the risk that Dodson would commit another sexually violent offense. Additionally, at the point the State objected, the jury had already heard Dr. Shursen’s opinion. “A trial court abuses its discretion in excluding expert testimony if the testimony is relevant to the issues in the case and is based on a reliable foundation.” State of Tex. v. Cent. Expressway Sign Associates, 302 S.W.3d 866, 870 (Tex. 2009). On this record, we conclude the trial court abused its discretion by refusing to allow Dr. Shursen to further explain the basis of her conclusion that Dodson was not predisposed to engage in a predatory act of sexual violence, a component of his qualifying as a “sexually violent predator” as defined by statute. See Tex. Health & Safety Code Ann. § 841.003.

Harm Analysis

Having found error, we must determine whether the trial court’s error in excluding Dr. Shursen’s explanation of her opinion was harmful. See Tex.R.App. P. 44.1. The State argues that because the trial court’s decision to exclude Dr. Shur-sen’s further testimony occurred after she had already expressed her opinion concerning the risk that Dodson might reof-fend, the trial court’s error in excluding her additional testimony was harmless. Dodson argues that depriving him of his only expert denied him of his right to a fair trial.

With respect to the standard we use to review the erroneous exclusion of evidence, the State cites the standard of review that we use in civil cases, Rule 44.1 of the Texas Rules of Appellate Procedure. Dodson does not refer to any specific standard of review, but relies on civil cases in arguing that the trial court erroneously excluded Dr. Shursen’s testimony, and he does not argue that the civil standard of review is inappropriate. Section 841.146(b) of the SVP statute provides, in pertinent part, that: “Except as otherwise provided by this subsection, a civil commitment proceeding is subject to the rules of procedure and appeal for civil cases.” Tex. Health & Safety Code Ann. § 841.146(b) (Vernon Supp. 2009). We conclude that Rule 44.1(a) of the Texas Rules of Appellate Procedure applies to reviewing Dodson’s claim that the trial court erred in excluding Dr. Shursen’s further testimony. See Tex.R.App. P. 44.1(a).

Although we apply the civil appellate standard for reversible error, we note that in a civil SVP commitment case the jury is required to “determine whether, beyond a reasonable doubt, the person is a sexually violent predator.” Tex. Health & Safety Code Ann. § 841.062(a). As of the date of the trial, Dr. Shursen was Dodson’s sole designated expert witness. The dispute over whether Dodson would, beyond a reasonable doubt, probably reoffend was a critical issue at the trial, and Dodson presented no other expert witness testimony to address the issue.

“A person seeking to reverse a judgment based on evidentiary error need not prove that but for the error a different judgment would necessarily have been rendered, but only that the error probably resulted in an improper judgment.” City of Brownsville v. Alvarado, 897 S.W.2d 750, 758 (Tex.1995). Generally, to succeed on a claim that the trial court erred in admitting or excluding evidence, the complaining party is required “to show that the judgment turns on the particular evidence excluded or admitted.” Id. at 753-54. We review the entire record to determine whether the case turns on the evidence that the trial court excluded. Id. at 754. “[I]f erroneously admitted or excluded evidence was crucial to a key issue, the error is likely harmful.” Cent. Expressway, 802 S.W.3d at 870.

The record demonstrates that the trial court appointed Dr. Shursen as a consulting expert and that Dodson timely designated her as an expert trial witness. The record further reflects that Dr. Shursen had the qualifications and had performed testing and interviews that would have provided the jury insight on the risk that Dodson would reoffend in a sexually violent manner. Whether Dodson would or would not probably reoffend was one of the critical issues that the jury resolved. There were no other experts that supported Dodson’s contention that he was not likely to reoffend; therefore, Dr. Shur-sen’s testimony was not cumulative of other expert testimony in the case. See id. While Dodson, and his mother, expressed opinions regarding the risk that Dodson would reoffend, neither were experts, and each was likely viewed by the jury as having biases that clouded their individual judgments on the question.

We are also not persuaded by the State’s argument that Dodson was not harmed by the trial court’s ruling. While Dr. Shursen stated her conclusion that she did not believe that Dodson currently had a “behavioral abnormality” before the State lodged objections, Dr. Shursen was never allowed to explain that her conclusion had been based on her experience and testing in evaluating the risk that Dodson would reoffend.

As the Texas Supreme Court has noted, “It is well settled that the naked and unsupported opinion or conclusion of a witness does not constitute evidence of probative force and will not support a jury finding even when admitted without objection.” Dallas Ry. & Terminal Co. v. Gossett, 156 Tex. 252, 294 S.W.2d 377, 380 (1956). It is the basis of the witness’s opinion, and not the witness’s bare opinion, that has evidentiary weight. See Burrow v. Arce, 997 S.W.2d 229, 235 (Tex.1999). The fact that the trial court allowed Dr. Shursen to express her mere conclusion, but refused to allow her to explain the basis for the opinion, stripped her mere conclusion of its weight. In a case in which the State’s burden was to prove beyond a reasonable doubt that Dodson was predisposed to reoffend, we are unable to conclude that admitting Dr. Shursen’s opinion without also allowing her to express her reasons for reaching her opinion made the trial court’s error harmless.

In summary, Dr. Shursen’s testimony related directly to one of the key issues in the case — whether Dodson was predisposed to reoffend. After reviewing the entire record, we find that Dr. Shursen’s testimony on that issue was not cumulative of any of the other expert testimony. Based on her training, experience, and her interview and testing of Dodson, Dr. Shur-sen was qualified to provide a risk assessment about whether Dodson was predisposed to reoffend. The jury should have been allowed to hear Dr. Shursen’s further explanation about that conclusion. Because the trial court erred by excluding relevant and material testimony on a critical issue, and because no other expert testified in Dodson’s favor on the critical issues in his case, the law requires that we reverse and remand Dodson’s case for a new trial. See Tex.R.App. P. 44.1(a)(1).

Because the trial court committed harmful error, we sustain Dodson’s first issue. Because Dodson’s other issue would not result in greater relief, it is not necessary that we address Issue Two. Tex.R.App. P. 47.1.

REVERSED AND REMANDED.

      . " 'Behavioral abnormality' means a congenital or acquired condition that, by affecting a person’s emotional or volitional capacity, predisposes the person to commit a sexually violent offense, to the extent that the person becomes a menace to the health and safety of another person.” Tex. Health & Safety Code Ann. § 841.002(2) (Vernon Supp. 2009).

      . Dodson’s pro se motion is not contained in the clerk's record before us.

      . Dodson also designated a psychologist as an expert, but for reasons that are not apparent from the record, Dodson later filed a notice withdrawing his prior designation of the psychologist as one of his expert witnesses.

      . Dr. Jason Dunham, a forensic psychologist who testified for the State, explained that the Minnesota Sex Offender Screening Tool Revised, known as the Mn-SOST-R, is an actuarial measure that estimates the risk of reof-fense over a six year period.

      . Dr. Dunham explained that the Hare Psychopathy Checklist-Revised, or Hare PCL-R, is a psychological test that measures psychopathy.

      .Dr. Dunham testified that the Static-99 is the most popular actuarial test used to measure the rate of reconviction for periods of five, ten, and fifteen years, and we assume that this is the test to which Dr. Shursen’s testimony refers.

      . "No person shall be committed as a person of unsound mind except on competent medical or psychiatric testimony. The Legislature may enact all laws necessary to provide for the trial, adjudication of insanity and commitment of persons of unsound mind and to provide for a method of appeal from judgments rendered in such cases. Such laws may provide for a waiver of trial by jury, in cases where the person under inquiry has not been charged with the commission of a criminal offense, by the concurrence of the person under inquiry, or his next of kin, and an attorney ad litem appointed by a judge of either the County or Probate Court of the county where the trial is being held, and shall provide for a method of service of notice of such trial upon the person under inquiry and of his right to demand a trial by jury.” Tex. Const, art. I, § 15-a.

      . We emphasize that the parties in SVP cases can file objections before trial in an attempt to avoid a number of the problems that can arise when the objections to the experts are first lodged in the midst of the trial. In our opinion, the parties should ask trial courts to resolve issues over the qualifications of experts and the admissibility of their testimony in SVP cases as early as possible to allow the parties to fully develop the record, and the parties should ask the trial court to conduct hearings on their objections well before trial. See Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 414 (Tex. 1998) (Gonzalez, J„ concurring) ("I do not think that allowing parties to raise Robinson objections for the first time post verdict, or even during trial, is fair to the litigants or judicially efficient.”). Nevertheless, a complaint that an expert's opinion is unreliable may be preserved by lodging an objection either before trial or when the evidence is offered. Id. at 409-410.

      . "No judgment may be reversed on appeal on the ground that the trial court made an error of law unless the court of appeals concludes that the error complained of: (1) probably caused the rendition of an improper judgment; or (2) probably prevented the appellant from properly presenting the case to the court of appeals.” TexR.App. P. 44.1(a).


author: CHARLES KREGER, Justice.

text:
    In the Interest of C.T.H.S. and C.R.H.S.
    No. 09-09-00004-CV.
    Court of Appeals of Texas, Beaumont.
    Submitted Sept. 17, 2009.
    Decided April 29, 2010.

      Sheila R. Haley, Cordell & Haley, L.L.P., Houston, for appellant.
    Jack C. Ogg, Kim Ogg, The Ogg Law Firm, Houston, for appellee.
    Before GAULTNEY, KREGER, and HORTON, JJ.
   OPINION

CHARLES KREGER, Justice.

Sheila R. Haley appeals the dismissal of her petition to be appointed sole managing conservator with the right to designate the primary residence of the twin children of Charlena Renee Smith. In two issues, Haley contends the trial court erred in determining that Haley lacked standing to pursue an original suit affecting the parent-child relationship (“SAPCR”) and in considering affidavits offered by Smith. Because Haley did not establish she has standing, and because we presume the trial court ignored all incompetent evidence in reaching its conclusion, the order of the trial court is affirmed.

Standing is a component of subject matter jurisdiction and is a constitutional prerequisite to maintaining a lawsuit under Texas law. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444-44 (Tex.1993). A person who seeks con-servatorship of a child must have standing to file suit. In re K.K.C., 292 S.W.3d 788, 790 (Tex.App.-Beaumont 2009, orig. proceeding). “Whether a trial court has subject-matter jurisdiction is a question of law subject to de novo review.” Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.2002).

In an original suit affecting the parent-child relationship in which the petitioner seeks managing conservatorship, the question of standing is a threshold issue. In re M.P.B., 257 S.W.3d 804, 808 (Tex.App.-Dallas 2008, no pet.). The Texas Legislature has provided a comprehensive statutory framework for conferring standing in the context of suits involving the parent-child relationship. See Tex. Fam.Code ANN. §§ 102.003, .0035, .004, .0045 (Vernon Supp. 2009), § 102.006 (Vernon 2008). A petitioner seeking managing conservatorship has the burden to prove standing. In re Smith, 262 S.W.3d 463, 465 (Tex.App.-Beaumont 2008, orig. proceeding [mand. denied]).

In an earlier mandamus proceeding, this Court held that a 2002 agreed order naming Haley as joint managing conservator of C.T.H.S. and C.R.H.S. was void. Id. at 466-67. We identified two reasons why the trial court lacked jurisdiction in 2002. First, the twins were only four months old at the time the suit was commenced, and, therefore, Haley lacked standing. Id. at 465; see Tex. Fam.Code Ann. § 102.003(a)(9) (conferring standing on “a person, other than a foster parent, who has had actual care, control, and possession of the child[ren] for at least six months ending not more than 90 days preceding the date of the filing of the petition”). Second, in 2002 there was no real controversy between Haley and Smith to be resolved by the court. Smith, 262 S.W.3d at 466. We held that the temporary orders arising out of the motion to modify the void order must be vacated. Id. at 467. The trial court vacated its prior orders on August 19, 2008.

Haley’s 2008 petition seeking to be named sole managing conservator is an original petition under Chapter 153 of the Texas Family Code. Haley argues she has standing to file suit under section 102.003(a)(9). See Tex. Fam.Code Ann. § 102.003(a)(9). At the request of the trial court, the parties briefed the issue of whether Haley had standing to maintain an original SAPCR action and presented supporting affidavits to the trial court. The trial court conducted a hearing at which it initially stated that there were outstanding fact issues with regard to the allegations of whether the parent was unfit. However, after consideration of trial counsel’s arguments and the parties’ affidavits, the trial- court dismissed Haley’s SAPCR petition for lack of standing. The trial court made written findings of fact and conclusions of law, as follows:

1. There is no evidence that, during the relevant time period, the parent Ms. Smith totally abdicated her parental responsibilities over the children to the non parent Ms. Haley.
2. There is no evidence that, during the relevant time period, the parent Ms. Smith did not exercise some care for, some control over or some supervision over the children at the same time that the non parent Ms. Haley exercised some care for, some control over and some supervision over the children.
3. There is no evidence that, during the relevant time period, the non parent Ms. Haley exercised exclusive care for, control over and supervision over the children to the exclusion of the parent Ms. Smith.
4. A parent must totally abdicate their parental responsibilities to another person during the relevant time period before that other person can acquire standing to file an original SAPCR with respect to that parent’s child.
5. A parent’s allowing of a non parent to have some care for, some control over and some supervision over the parent’s child during the relevant time period is insufficient for the non parent to acquire standing to file an original SAPCR with respect to that child.
6. If a parent, to any extent whatsoever, retains or exercises any care for, any control over or any supervision over their child during the relevant time period, then a non-parent cannot as a matter of law acquire standing to file an original SAPCR with respect to that child.
7. During the relevant time period, a non-parent must exercise exclusive care for, control over and supervision over a child (not necessarily continuous for the entire time period, but during the relevant time period) to the exclusion of the child’s parent in order to acquire standing to file an original SAPCR with respect to that child.

On appeal, Haley argues that the trial court’s conclusions of law are erroneous. She states she “does not necessarily disagree with the factual findings,” but “the factual findings have no effect as applied, because they are based on the erroneous conclusions of law.”

We are to consider the findings as a whole and adopt the construction that gives effect to all material findings. See generally De Llano v. Moran, 160 Tex. 490, 333 S.W.2d 359, 360 (1960). When the findings are “subject to more than one reasonable construction, they should be given that meaning which will support the action of the court” as expressed in the order. Id. We conclude the trial court determined Smith was a fit parent adequately caring for her children. See Tex.R. Civ. P. 299. Although Haley challenges the court’s conclusions of law, she does not argue on appeal that Smith does not adequately care for her children.

This Court stated as follows in K.K.C.:

The interest of parents in the “care, custody, and control” of their children “is perhaps the oldest of the fundamental liberty interests” recognized by the United States Supreme Court. (Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000)). Furthermore, this State has long recognized that the “natural right which exists between parents and their children is one of constitutional dimensions.” See Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex.1976); see also Holick v. Smith, 685 S.W.2d 18, 20 (Tex.1985); In re Pensom, 126 S.W.3d 251, 254 (Tex.App.San Antonio 2003, orig. proceeding).

In re K.K.C., 292 S.W.3d at 792 (footnote omitted). “These parental interests are a fundamental right protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution.” In re Pensom, 126 S.W.3d 251, 254 (Tex.App.-San Antonio 2003, orig. proceeding) (citing Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000)). “Texas statutes are intended by the Legislature to be in compliance with the Constitutions of this State and the United States.” In re K.K.C., 292 S.W.3d at 792 (citing Tex. Gov’t Code Ann. § 311.021(l)(Vernon 2005)) (footnote omitted). “A court construes a statute to give effect to the Legislature’s intent as expressed in the actual language used in the statute.” Id. (citing Osterberg v. Peca, 12 S.W.3d 31, 38 (Tex.2000) and In re Pen-som, 126 S.W.3d at 255-56).

The power of a trial court to adjudicate disputes between a parent and a non-parent, and to enforce its own orders contrary to a parent’s decisions concerning her children, constitutes state involvement that implicates the parent’s fundamental liberty interests in the care, custody, and control of her children. See Troxel, 530 U.S. at 65-76, 120 S.Ct. 2054. The jurisdictional requirement of standing helps ensure that a parent’s constitutional rights are not needlessly interfered with through litigation. See generally In re Pensom, 126 S.W.3d at 255 (“[JJurisdictional prerequisite of standing [in grandparent access context] serves to ensure that the statutory scheme is narrowly tailored so that a parent’s personal affairs are not needlessly intruded upon or interrupted by the trauma of litigation by any third party seeking access.”). As the United States Supreme Court explained in Troxel, “[S]o long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children.” Troxel, 530 U.S. at 68-69, 120 S.Ct. 2054 (citing Reno v. Flores, 507 U.S. 292, 304, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993)).

The standing statutes should be construed in a manner consistent with the constitutional principles stated in Troxel. See In re Pensom, 126 S.W.3d at 255-56. In the provision at issue here, the Legislature chose the words “actual care, control and possession.” Tex. Fam.Code Ann. § 102.003(a)(9). We presume each word was used for a purpose, and give each word effect if it is reasonable and possible to do so. Tex. Workers’ Comp. Ins. Fund v. Del Indus., Inc., 35 S.W.3d 591, 593 (Tex.2000). The law recognizes that a parent has the responsibility to care for her children. See Tex. Fam.Code Ann. § 151.001(a)(2) (Vernon 2008). The words “actual care” must be given effect in the context of the responsibilities of the parent and the parent’s liberty interests. See generally In re K.K.C., 292 S.W.3d at 792-93 (meaning of “control” in section 102.003(a)(9)).

We note that section 102.003(a)(ll) separately provides standing to a person with whom the child and a parent have resided for at least six months if the “parent is deceased at the time of the filing of the petition[J” Tex. Fam.Code Ann. § 102.003(a)(ll). Presumably, a person residing with a parent and child may care for the child over the course of time, yet that person would not have standing simply by the care that would normally be exercised when residing in the same household with the parent and the child. If the same degree of care, control, and possession that would accompany living with the parent and child were sufficient to establish standing under section 102.003(a)(9), the requirement that the parent be deceased in section 102.003(a)(ll) would be without effect, because standing would separately exist under section 102.003(a)(9). We should not construe section 102.003(a)(9) so broadly that section 102.003(a)(ll) is rendered meaningless. See Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 441-42 (Tex.2009) (noting that a statute should not be interpreted in a manner that renders parts of it meaningless).

The Fort Worth Court of Appeals in the case of In re M.J.G., 248 S.W.3d 753, 757-59 (Tex.App.-Fort Worth 2008, no pet.), considered the “actual care” requirement in section 102.003(a)(9). In M.J.G., the court held that grandparents who alleged “M.J.G. had lived with them since she was born[,] with the exception of one two-week period when she stayed with her parents in another town[,]” nevertheless lacked standing under section 102.003(a)(9). Id. at 757, 759. Even though M.J.G. and her brother lived with the grandparents, and the grandparents performed day-to-day caretaking duties for the children, the children’s parents were also living with the children in the home, and there was no evidence that the parents did not care for the children or that the parents had abdicated their parental duties and responsibilities to the grandparents. See id. at 758-59. Haley argues that “the decision reached in [M.J.G. ] incorrectly construes Tex. Fam.Code § 102.003(a)(9).” She argues that a parent often lives with others, and that the best interest of the children should be considered.

The holding in M.J.G. appears to be consistent with the meaning of the language used by the Legislature, the constitutional liberty interests retained by a fit parent adequately caring for her children, and the statutory scheme for standing set forth in the Family Code. See In re EEC., 292 S.W.3d at 793. Standing does not turn on whether a trial court agrees or disagrees with a parent’s decision concerning the best interest of her children, or a parent’s decision regarding who may associate with her children. Specifically, when someone other than a parent claims standing under the “actual care” requirement of section 102.003(a)(9), the court considers whether the parent is adequately caring for her children. See Tex. Fam.Code. Ann. § 102.003(a)(9); In re M.J.G., 248 S.W.3d at 757-59; see also Troxel, 530 U.S. at 68-69, 120 S.Ct. 2054 (presumption that fit parents act in the best interest of their children); see generally In re Pensom, 126 S.W.3d at 255 (considering limitations of intrusion into the parent-child relationship in the grandparent access context). Although Haley lived with the children, Smith also lived with her children in the home, and the record does not establish that Smith failed to adequately care for her children or that she abdicated her parental duties and responsibilities. See In re M.J.G., 248 S.W.3d at 757-59; see also In re EEC., 292 S.W.3d at 792-94.

In issue two, Haley complains about the affidavits Smith submitted to the trial court. Haley filed a motion to strike Smith’s affidavits. The trial court stated generally that the court was granting proper objections and overruling improper ones. Haley did not request clarification. We presume the trial court disregarded incompetent evidence. See Gillespie v. Gillespie, 644 S.W.2d 449, 450 (Tex.1982).

Haley had the burden to establish standing. See In re Smith, 262 S.W.3d at 465. The trial court could reasonably conclude she failed to meet her burden. We overrule issues one and two. The trial court’s order is affirmed.

AFFIRMED.

      . Oral statements by the trial judge may not be considered as a substitute for findings of fact or conclusions of law. See In the Interest of W.E.R., 669 S.W.2d 716, 716 (Tex.1984); Tate v. Tate, 55 S.W.3d 1, 7 n. 4 (Tex.App.-El Paso 2000, no pet.). Furthermore, when a trial court issues findings that conflict with an initial finding, the later findings control over the earlier findings. Jefferson County Drainage Dist. No. 6 v. Lower Neches Valley Auth., 876 S.W.2d 940, 960 (Tex.App.-Beaumont 1994, writ denied).

      . Rule 299. Omitted Findings
      When findings of fact are filed by the trial court they shall form the basis of the judgment upon all grounds of recovery and of defense embraced therein. The judgment may not be supported upon appeal by a presumed finding upon any ground of recovery or defense, no element of which has been included in the findings of fact; but when one or more elements thereof have been found by the trial court, omitted unrequested elements, when supported by evidence, will be supplied by presumption in support of the judgment....
      Tex.R. Civ. P. 299.