author: Justice BRIDGES.

text:
    In re ONCOR ELECTRIC DELIVERY COMPANY LLC, Relator.
    No. 05-10-00459-CV.
    Court of Appeals of Texas, Dallas.
    May 26, 2010.
    Nuru Witherspoon, Kevin Kelley, Dallas, for Real Party in Interest.
    Before Justices BRIDGES, LANG-MIERS, and MYERS.
   OPINION

Opinion by

Justice BRIDGES.

The Court has before it relator’s motion for rehearing, which is GRANTED. We withdraw our opinion of April 23, 2010 and vacate our order of that same date. The following is now the opinion of the court.

Relator filed this mandamus proceeding after the trial court orally ordered it to respond to an interrogatory and document request that required relator to provide information and documents related to every litigation in which it has been involved for the last five years. We conclude the trial court abused its discretion in ordering this discovery and relator has no adequate remedy by appeal. We therefore conditionally grant the writ of mandamus.

Mandamus is an appropriate remedy when a trial court orders discovery of information that is clearly irrelevant and unlikely to lead to the discovery of admissible evidence. See K Mart Corp. v. Sanderson, 937 S.W.2d 429, 431-32 (Tex.1996) (finding interrogatory and document request seeking information about criminal conduct on company property nationwide for past ten years overly broad); Dillard Dept. Stores, Inc. v. Hall, 909 S.W.2d 491, 492 (Tex.1995) (holding a twenty-state search for documents over a five-year period to attempt to identify racial discrimination in false arrests by store was overly broad). In this case, the discovery ordered by the trial court, which required relator to produce every document from every lawsuit in which it has been involved for the past five years, with no limitations as to subject matter, was overly broad as a matter of law. Accordingly, we conditionally grant the relators’ petition for writ of mandamus. A writ will issue only in the event the trial court fails to vacate its oral order of April 12, 2010, that requires relator to respond in full to real party in interest’s Interrogatory Number 5 and Request for Production Number 9.


source: Caselaw Access Project

author: JOHN S. ANDERSON, Justice.

license: Public Domain

text:
    In re COOPER TIRE & RUBBER COMPANY, Relator.
    No. 14-09-00906-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    May 27, 2010.

      Ruth G. Malinas, Christopher John Deeves, San Antonio, T. Christopher Trent, Houston, for Relator.
    Robert J. Malinak, Kyle Wayne Farrar, Wesley T. Ball, Houston, Kirk L. Pittard, Frederick Leighton Durham, Dallas, for Real Party in Interest.
    Panel consists of Chief Justice HEDGES and Justices ANDERSON and BOYCE.
   SUBSTITUTE OPINION

JOHN S. ANDERSON, Justice.

The Real Parties in Interest’s motion for rehearing en banc is denied, our opinion of February 2, 2010 is withdrawn, and the following substitute opinion is issued in its place.

On October 26, 2009, relator, Cooper Tire & Rubber Company, filed a petition for writ of mandamus in this Court. See Tex. Gov’t Code Ann. § 22.221 (Vernon 2004); see also Tex.R.App. P. 52. In the petition, Cooper Tire asks this Court to compel the Honorable R.K. Sandill, presiding judge of the 127th District Court of Harris County, to set aside his October 12, 2009 order compelling relator to produce documents reviewed in camera because they contain confidential trade secret information and, alternatively, are not relevant. We conditionally grant the petition.

Background

On October 27, 2007, the plaintiffs were involved in a head-on collision with Dustin Langstaff. The plaintiffs allege that the tread separated from the right rear tire on Langstaffs vehicle, causing him to lose control and collide with the vehicle driven by one of the plaintiffs, Maria Del Rocio Rodriguez, and occupied by the other plaintiffs. The plaintiffs sued Cooper Tire, the manufacturer of the tire at issue, the Weather-Master S/T, for strict liability, design defect, manufacturing defect, marketing defect, and negligence. The plaintiffs allege that Cooper Tire failed to incorporate a design element known as belt edge gumstrips (“BEGs”) into the design for the Weather-Master S/T, and that the incorporation of this design element would have resulted in a safer alternative design.

The plaintiffs seek documents regarding a different tire that show when BEGs were added and removed from that tire. The tire involved in the accident was made from Green Tire Spec 3004, while the documents the plaintiffs seek are for the tire made from Green Tire Spec 2257. The Green Tire Spec (“GTS”) is essentially the tire design or fundamental blueprint according to which the given tire is manufactured and reflects the various manufacturing and design changes to a GTS.

In response to the plaintiffs’ requests for production, Cooper objected on the basis of relevance. The plaintiffs moved to compel production. In response to the plaintiffs’ motion to compel, Cooper Tire argued that the requested documents contain trade secrets and they are not relevant because they concern information on a tire other than the tire involved in the accident.

The plaintiffs contend that the documents for GTS 2257 are relevant because they show when BEGs were added and removed and the circumstances surrounding tire failures both with and without BEGs. Specifically, the plaintiffs argue that this information is necessary to establish that Cooper Tire had actual knowledge of the defect in its tire design and that BEGs would cure the defect, but continued to produce defective tires with conscious disregard for the rights and safety of people like the plaintiffs.

On August 18, 2009, the trial court ordered Cooper Tire to produce in camera documents responsive to the plaintiffs’ motion to compel regarding GTS 2257. On October 5, 2009, the trial court conducted the in camera review and, on October 12, 2009, the trial court signed the following order:

To prevail on their design defect claim at trial, Plaintiffs have the burden of proving Defendant could have provided a safer alternative. Documents which show that Cooper Tire knew of possible design changes that could have made the tire at issue less likely to fail are relevant and a proper subject for discovery. Any danger of disseminating this information is remedied by the Protective Order that is in place.
IT IS THEREFORE ORDERED that Defendant Cooper Tire shall produce the documents reviewed in camera on October 5, 2009, to Plaintiffs within 5 business days of this order.

The trial court determined the documents are relevant, but did not address whether the documents contain trade secret information.

Mandamus Standard of Review

To be entitled to the extraordinary relief of a writ of mandamus, the party resisting discovery bears the heavy burden of establishing an abuse of discretion and an inadequate remedy by appeal. In re CSX Carp., 124 S.W.3d 149, 151 (Tex.2003) (orig. proceeding) (per curiam). A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to constitute a clear and prejudicial error of law, or if it clearly fails to correctly analyze or apply the law. In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex.2005) (orig. proceeding) (per curiam); Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992) (orig. proceeding). In reviewing whether appeal is an adequate remedy, we consider whether the benefits of mandamus review outweigh the detriments. In re BP Prods. N. Am., Inc., 244 S.W.3d 840, 845 (Tex.2008) (orig. proceeding).

Analysis

Trade Secret Privilege

“A trade secret is any formula, pattern, device or compilation of information which is used in one’s business and presents an opportunity to obtain an advantage over competitors who do not know or use it.” Computer Assocs. Int’l, Inc. v. Altai, Inc., 918 S.W.2d 453, 455 (Tex.1996). Rule 507 of the Texas Rules of Evidence provides for the protection of trade secrets:

A person has a privilege, which may be claimed by the person or the person’s agent or employee, to refuse to disclose and to prevent other persons from disclosing a trade secret owned by the person, if the allowance of the privilege will not tend to conceal fraud or otherwise work injustice. When disclosure is directed, the judge shall take such protective measure as the interests of the holder of the privilege and of the parties and the furtherance of justice may require.

Tex.R. Evid. 507.

The trade secret privilege seeks to accommodate two competing interests. In re Continental Gen. Tire, Inc., 979 S.W.2d 609, 612 (Tex.1998) (orig. proceeding). First, it recognizes that trade secrets are an important property interest, worthy of protection. Id. Second, it recognizes the importance placed on fair adjudication of lawsuits. Id. Rule 507 accommodates both interests by requiring a party to disclose a trade secret only if necessary to prevent “fraud” or “injustice.” Id. Disclosure is required only if necessary for a fair adjudication of the requesting party’s claims or defenses. Id.

The party asserting the trade secret privilege has the burden of proving that the discovery information sought qualifies as a trade secret. In re Bass, 113 S.W.3d 735, 737 (Tex.2003) (orig. proceeding). If the resisting party meets its burden, the burden shifts to the party seeking the trade secret discovery to establish that the information is necessary for a fair adjudication of its claim. Id. It is an abuse of discretion for the trial court to order production once trade secret status is proven if the party seeking production has not shown necessity for the requested materials. Id. at 738.

To determine whether a trade secret exists, the following six factors are weighed in the context of the surrounding circumstances: (1) the extent to which the information is known outside of the business; (2) the extent to which it is known by employees and others involved in the business; (3) the extent of measures taken to guard the secrecy of the information; (4) the value of the information to the business and to its competitors; (5) the amount of effort or money expended in developing the information; and (6) the ease or difficulty with which the information could be properly acquired or duplicated by others. In re Union Pac. R.R. Co., 294 S.W.3d 589, 592 (Tex.2009) (orig. proceeding) (per curiam). The party claiming a trade secret is not required to satisfy all six factors because trade secrets do not fit neatly into each factor every time. In re Bass, 113 S.W.3d at 740.

The Texas Supreme Court has not stated conclusively what would or would not be considered necessary for a fair adjudication; instead, the application depends on the circumstances presented. In re Bridgestone/Firestone, Inc., 106 S.W.3d 730, 732 (Tex.2003) (orig. proceeding). The degree to which information is necessary depends on the nature of the information and the context of the case. Id. However, “we can say with certainty that the test cannot be satisfied merely by general assertions of unfairness.” Id. “Just as a party who claims the trade secret privilege cannot do so generally but must provide detailed information in support of the claim, so a party seeking such information cannot merely assert unfairness but must demonstrate with specificity exactly how the lack of the information will impair the presentation of the case on the merits to the point that an unjust result is a real, rather than a merely possible, threat.” Id. at 732-33. An appellate remedy does not exist if a trial court orders a party to produce privileged trade secrets absent a showing of necessity. In re Bass, 113 S.W.3d at 745.

Application of Six Factors

In support of its claim of trade secret privilege, Cooper Tires submitted three affidavits of Anthony E. Brinkman, Cooper Tire’s Principal Tire Analysis Engineer, dated August 5, 2008, February 20, 2009, and August 7, 2009. After reviewing Brinkman’s three affidavits together and applying the six factors, we conclude that Cooper Tire has established that the subject documents contain trade secrets.

Factors One, Two and Three

The first three factors are the extent to which the information is known outside Cooper Tire’s business; the extent to which the information is known by employees and others involved in Cooper Tire’s business; and the extent of measures taken by Cooper Tire to guard the secrecy of the information. Brinkman testified that Cooper Tire keeps the information contained in the GTS History of GTS 2257, Product Change Notifications (“PCNs”) related to the addition and removal of BEGs in GTS 2257, the Experimental Mold Design for GTS 2257, and Adjustment Follow-Up Reports for GTS 2257 secret, and this information is not generally known or ascertainable by its competitors. Cooper Tire’s policies with respect to handling trade secret information are given to all salaried employees when they are hired. All salaried employees must sign a nondisclosure agreement stating they understand that Cooper Tire’s internal information and documentation such as research, drawings, formulae, methods, processes, know-how, and facilities are trade secrets and this information will be treated as such. Cooper Tire’s policy statement on business ethics and standards of conduct emphasizes the importance of appropriately safeguarding the company’s trade secrets, including without limitation, planned new products, the ways Cooper Tire manufactures its products, and test data. Cooper Tire’s policy on disclosures and use of corporate information forbids all employees from disclosing trade secret information without proper authorization from an officer of Cooper Tire.

Access is limited and tight controls are maintained for any vendors, business partners, contractors, and all other individuals who are not employed by Cooper Tire, but require entry onto Cooper Tire property for a compelling business necessity. Cooper Tire’s Technical Center in Findlay, Ohio is locked and accessible only through special, computerized coded access cards and/or coded keypad access 24 hours a day. A similar system is employed at Cooper Tire’s corporate headquarters in Findlay, Ohio. Access to Cooper Tire’s manufacturing plant is through 24-hour guarded entrances.

Cooper Tire may share its trade secret information with its employees or agents without endangering the trade secret’s protection. See In re Bass, 113 S.W.3d at 742. Brinkman details Cooper Tire’s efforts maintain the secrecy of its information. See Phillips v. Frey, 20 F.3d 623, 631 (5th Cir.1994) (explaining party that fails to take reasonable precautions to secure its secrecy cannot properly claim that information constitutes trade secret). Therefore, Cooper Tire has established that it maintains procedures to keep the information secret. Accordingly, we comelude that factors one, two, and three weigh in favor of finding that the documents contain trade secret information.

Factor Four

The fourth factor is the information’s value to Cooper Tire and its competitors. In his affidavits, Brinkman explained the importance of the type of information in the GTS 2257 documents. Brinkman explained that the GTS History summarizes revisions that have been made to a GTS throughout the history of the GTS, and such documents reflect various manufacturing and design changes and can include rubber compound formula information.

Product Change Notifications (“PCNs”) are issued to notify personnel of an impending authorized product change, and these documents include a description of the change, the reason for the change, the data supporting the change, the products affected by the change, a proposed implementation schedule, and the plants affected by the change. PCN documents may also contain analysis and data regarding the material production, and processing requirements necessary to implement the change and rubber compound formula information.

With respect to the Experimental Mold Designs, in the manufacturing process, tire builders assemble raw and uncured components into a “green” tire that is placed in a curing mold. The green tire is then subjected to heat and pressure to achieve its final form.

Adjustment Follow-Up Reports, which contain trade secret information, are issued at the request of the engineer to determine the impact of a design or manufacturing change to a particular tire design or GTS on the number of tires manufactured to that GTS returned to Cooper Tire for a specific condition. The reports contain its adjustment or tire return information for the particular GTS and specific condition being examined as well as the analysis and conclusions drawn from that information. They may also contain production information and background information regarding the change being examined.

Brinkman testified that the documents contain trade secret information developed at great expense to Cooper Tire; such information would be extremely valuable to its competitors; a competitor could use the information to copy Cooper Tire’s products and sell them in the tire market in competition with Cooper Tire; and such competitor could do so without compensating Cooper Tire for its design expenses. The availability of Cooper Tire’s specifications for tire building, manufacturing, and design, and other documents to another tire manufacturer would enable that manufacturer to gain a significant competitive advantage over Cooper Tire because it would allow the competitor to evaluate the performance of various tire components, without investing any time or expense.

Brinkman further testified that conceptualizing, developing, testing, and implementing new products and improving the durability or performance characteristics of current products require a substantial commitment of time and personnel and an enormous financial and technological investment. Any advantage, whether it is a gain in lead time for the introduction of new products or an understanding of the competition’s weakness, thinking, goals, and strategy can lead to significant gains.

With adjustment data, a competitor could discern or infer certain qualities about Cooper Tire’s products and thereby adjust its product or warranty practices to the same quality level to better compete. Adjustment data would permit a competitor to learn Cooper Tire’s production schedule, including the numbers and types of tires produced, from which the competitor could discern or infer the demand for particular types of products, and such information could be used to the competitor’s advantage. Cooper Tire’s competitors do not publicize their tire return and other adjustment data because of its competitive value.

Brinkman’s affidavits sufficiently establish the value of the information contained in the subject documents to Cooper Tire and its competitors. Therefore, we conclude that factor four weighs in favor of finding that the subject documents contain trade secret information.

Factor Five

The fifth factor is the amount of money expended by Cooper Tire in developing information. Cooper Tire admits that Brinkman does not place a dollar figure on developing the requested information about the GTS 2257. This factor weighs against finding that the documents contain trade secret information.

Factor Six

Factor six is the ease or difficulty with which the information could be properly acquired or duplicated by others. Brink-man testified that this information could not be easily duplicated, and this information would facilitate easy duplication of Cooper Tire’s product. With regard to adjustment data reports, the plaintiffs concede that a competitor generally cannot acquire or duplicate data that would appear in such reports given that these reports are generated by information gathered by Cooper Tire. Brinkman testified that Cooper Tire’s competitors do not publish their adjustment data. We find that this factor weighs in favor of finding that the documents contain trade secret information.

Cooper Tire has established five of the six factors. However, Cooper Tire is not required to establish all six factors. See In re Bass, 113 S.W.3d at 740. Weighing the factors in the context of the surrounding circumstances, we conclude that Cooper Tire has established that the documents contain trade secrets. See In re Union Pac. R.R. Co., 294 S.W.3d 589, 592. Because Cooper Tire met its burden to establish that the documents contain trade secret information, the burden shifted to the plaintiffs to establish that the information is necessary for a fair adjudication of their claims. See Bass, 113 S.W.3d at 737.

Necessary for Fair Adjudication

Cooper Tire argues that the plaintiffs did not meet their burden to produce evidence “demonstrat[ing] with specificity exactly how the lack of information will impair the presentation of the case on the merits to the point that an unjust result is real, rather than a merely possible, threat.” In re Bridgestone/Firestone, Inc., 106 S.W.3d at 733. The plaintiffs argue that there is sufficient evidence to support a determination that these documents are necessary for the fair adjudication of their claims because the information is essential to prove two elements of their claims. First, the plaintiffs’ design defect claims require evidence that a safer alternative design was available when the subject tire was manufactured, and evidence that the use of BEGs on other Cooper Tires reduced the number of tire separation incidents establishes this point. Second, the plaintiffs’ claim for punitive damages requires proof that Cooper Tire had actual subjective awareness of the risk associated with producing defective tires that could be remedied by BEGs and, nevertheless, proceeded to produce defective tires with conscious indifference to the rights and safety of people like the plaintiffs.

Brinkman stated that the use of BEGs is a method of providing the proper thickness of rubber at the belt edges, and that the rubber on the subject tire was at the proper thickness. Based on these statements, the plaintiffs contend that Cooper Tire intends to argue that the inclusion of the BEGs would not decrease the number of tread separations in the subject tire. Therefore, the plaintiffs claim it would be unjust to allow Cooper Tire to assert that the inclusion of the BEGs would not have been a safer alternative design while depriving the plaintiffs of evidence that the inclusion of BEGs as part of a different Cooper Tire designs decreased the number of tread separations.

Based on the record before us, we conclude that the plaintiffs have not established that the trade secret information is necessary to the fair adjudication of their claim that the use of BEGs provides a safer alternative design. In their briefing to the trial court, the plaintiffs rely on documents already produced to them that “discuss[] the use of BEGs to improve Cooper’s tires.” Moreover, the Texas Supreme Court recently rejected a similar argument regarding punitive damages, explaining that “we would have difficulty concluding that evidence of damages, even punitive damages, could not be anywhere but through trade secrets.” In re Union Pac. R.R. Co., 294 S.W.3d at 593. We hold that the plaintiffs have not met their burden to establish the information in the GTS 2257 documents is necessary to a fair adjudication of their claims. Because the plaintiffs have not established that the trade secret information is necessary for a fair adjudication of their claims, the trial court abused its discretion by compelling Cooper Tire to produce the GTS 2257 documents. See In re Bass, 113 S.W.3d at 737. Moreover, Cooper Tire does not have an adequate remedy by appeal. See id. at 745 (holding appellate remedy does not exist if trial court orders party to produce privileged trade secrets absent showing of necessity).

Conclusion

We hold the trial court abused its discretion by compelling Cooper Tire to produce to the plaintiffs the documents submitted in camera. Accordingly, we conditionally grant the petition for writ of mandamus and direct the trial court to set aside its October 12, 2009 order compelling Cooper Tire to produce to the plaintiffs the subject documents. The writ will issue only if the trial court fails to act in accordance with this opinion. We lift the stay issued on October 26, 2009.

      . The Real Parties in Interest are the plaintiffs below and they are: Maria Del Rocio Rodriguez, individually and as next friend of William Vasquez, a minor; Santiago Vasquez; Macrina Hernandez, individually and as next friend of Ximena Chavez and Jose Chavez, minors; and Jose Chavez and Elena Rodriguez, individually and as next friend of Este-fanía Rodriguez, Yesenia Rodriguez, and Jesus Rodriguez, minors. In this opinion, we refer to the Real Parties in Interest collectively as "plaintiffs.”

      . See Union Pac. R.R. Co., 294 S.W.3d at 592 ("The information is not generally known or readily available to Union Pacific's competitors or its customers or other businesses. The information is not even generally known throughout the company. Rather the information is known only to a limited number of Union Pacific employees and certain management employees.”); Bancservices Group, Inc. v. Strunk & Assocs., L.P., No. 14-03-00797-CV, 2005 WL 2674985, at *3 (Tex.App.-Houston [14th Dist.] Oct. 20, 2005, pet. denied) (mem. op.) (”[T]he compilation and implementation of those parts were not generally known.... All employees of Strunk were required to sign a confidentiality agreement. In addition, the banks who purchased the program were required to sign a confidentiality agreement.”); In re The Cayman Island Firm of Deloitte & Touche, No. 04-01-00491-CV, 2001 WL 1042233, at *4 (Tex.App.-San Antonio Sept. 12, 2001, orig. proceeding) (not designated for publication) (‘'Filling's affidavit details the efforts by DT Cayman to maintain the secrecy of the Manual, including that its disclosure is limited internally on a ‘need to know' basis. Pilling also states that the information is highly confidential and proprietary and would greatly benefit DT Cayman’s competitors. Although the details offered in the affidavit are sketchy, the affidavit is sufficient to satisfy the initial burden imposed on DT Cayman.”).

      . Because we hold that the plaintiffs did not meet their burden to demonstrate that the discovery of the trade secret information is necessary to a fair adjudication of their claim, we need not address Cooper Tire's argument that discovery in a product liability case is limited to the product at issue in the case. Tex.R.App. P. 47.1.


author: BRIAN HOYLE, Justice.

text:
    TEXAS PARKS AND WILDLIFE DEPARTMENT, Appellant, v. Kenneth W. GARLAND, Appellee.
    No. 12-09-00117-CV.
    Court of Appeals of Texas, Tyler.
    May 28, 2010.

      Ranee L. Craft, Nelly R. Herrera, C. Andrew Weber, Gregory W. Abbott, Bridget L. McKinley, for Appellant.
    Hutton W. Sentell, for Appellee.
    Panel consisted of WORTHEN, CJ., GRIFFITH, J. and HOYLE, J.
   OPINION

BRIAN HOYLE, Justice.

The Texas Parks and Wildlife Department (TPWD) appeals the denial of its plea to the jurisdiction in a lawsuit brought against it by Kenneth W. Garland. In one issue, TPWD asserts that the trial court should have granted the plea because Garland’s lawsuit was barred by sovereign immunity. We reverse and dismiss.

Background

On June 30, 2003, Garland was performing court ordered community service at Tyler State Park, a TPWD-operated park, and was assigned to trash collection. A TPWD employee drove Garland around in a pickup truck so that he could empty trash barrels and remove litter from the roadside. Garland rode in the bed of the pickup. While the pickup was moving, Garland fell from the back of the truck, suffering significant injuries.

Garland sued TPWD, alleging that the TPWD driver had negligently operated the truck, resulting in his fall and injuries. TPWD filed a plea to the jurisdiction, alleging that sovereign immunity barred Garland’s lawsuit. Following a hearing, the trial court denied the plea. This interlocutory appeal followed.

Plea to the Jurisdiction

In its sole issue, TPWD argues that sovereign immunity bars Garland’s lawsuit. More specifically, TPWD asserts that Garland’s pleadings fail to affirmatively demonstrate jurisdiction.

Sovereign Immunity

In 1847, the Texas Supreme Court held that no State can be sued in her own courts without her consent, and then only in the manner indicated by that consent. Hosner v. DeYoung, 1 Tex. 764, 769 (1847). This immunity also applies to the various divisions of state government, including agencies, boards, hospitals, and universities. Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n. 3 (Tex.2003). In this context, it is referred to as sovereign immunity. Id.

In Texas, sovereign immunity has two components: immunity from suit and immunity from liability. Gen. Servs. Comm’n v. Little-Tex Insulation Co., Inc., 39 S.W.3d 591, 594 (Tex.2001). Immunity from suit is jurisdictional and bars suit; immunity from liability is not jurisdictional and protects from judgments. Harris County Hosp. Dist. v. Tomball Reg’l Hosp., 283 S.W.3d 838, 842 (Tex.2009). Sovereign immunity from suit deprives a trial eourt of subject matter jurisdiction. Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex.2006).

Standard of Review

The absence of subject matter jurisdiction may be raised by a plea to the jurisdiction. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000). Whether a court has subject matter jurisdiction is a question of law. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004). An appellate court addressing a challenge to a trial court’s subject matter jurisdiction reviews the trial court’s ruling de novo. Id. at 228. The reviewing court exercises its own judgment and redetermines each issue of fact and law. See Schade v. Tex. Workers’ Comp. Comm’n, 150 S.W.3d 542, 549 (Tex.App.-Austin 2004, pet. denied) (citing Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex.1998)). The reviewing court accords the trial court’s decision no deference. See Schade, 150 S.W.3d at 549 (citing Quick, 7 S.W.3d at 116). When a conclusion of law is erroneous, but the trial court reached the right result, the erroneous conclusion of law does not require reversal. See BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex.2002). If a trial court lacks jurisdiction over some claims but not others, the trial court should dismiss those claims over which it does not have subject matter jurisdiction but retain those claims over which it does. See Thomas v. Long, 207 S.W.3d 334, 339 (Tex.2006).

When a plea to the jurisdiction challenges the pleadings, we determine if the pleader has alleged facts that affirmatively demonstrate the court’s jurisdiction to hear the cause. Miranda, 133 S.W.3d at 226. We construe the pleadings liberally in favor of the plaintiff and look to the pleader’s intent. Id. If the pleadings affirmatively negate the existence of jurisdiction, a plea to the jurisdiction may be granted without allowing the plaintiff an opportunity to amend. Id. at 227. If the pleadings do not contain sufficient facts to affirmatively demonstrate the trial court’s jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and the plaintiff should be afforded the opportunity to amend. Id. at 226-27. If a plaintiff has been provided a reasonable opportunity to amend after a governmental entity files its plea to the jurisdiction, and the plaintiffs amended pleading still does not allege facts that would constitute a waiver of immunity, the trial court should dismiss the plaintiffs action. Harris County v. Sykes, 136 S.W.3d 635, 639 (Tex.2004). Such a dismissal is with prejudice because a plaintiff should not be permitted to relitigate jurisdiction once that issue has been finally determined. Id.

Garland’s Pleadings

In order for the State’s immunity to be waived and the trial court to have jurisdiction, a party must show that the State has consented to suit. See Travis County v. Pelzel & Assocs., Inc., 77 S.W.Bd 246, 248 (Tex.2002). Consent can be established by statute or legislative resolution. Id. In very limited situations, consent can be established by conduct. See, e.g., Reata Constr., 197 S.W.3d at 376-77. Garland’s pleadings present facts in support of pleaded assertions that the legislature has consented to suits such as his by way of section 101.021 of the Texas Tort Claims Act. See Tex. Civ. Prac. & Rem.Code Ann. § 101.021 (Vernon 2005).

As it did in its plea, TPWD asserts here that section 101.021 does not provide Garland the necessary waiver of immunity when that section is read in light of article 42.20 of the Texas Code of Criminal Procedure. See Tex.Code Crim. Proc. Ann. art. 42.20 (Vernon 2006). Article 42.20(b) provides that

[the Texas Tort Claims Act] does not apply to a claim based on an act or a failure to act of an individual [who is an officer or employee of a state agency or of a political subdivision other than a county] or a governmental entity the officer serves as an officer or employee if the act or failure to act is in connection with [a community service program or work program].

See id. Thus, TPWD argues the plain language of article 42.20(b) negates any consent to suit that might otherwise be provided by section 101.021. Because Garland asserts no other basis for the State’s alleged consent to suit, TPWD claims that it is immune from Garland’s suit and the trial court erred in denying its plea to the jurisdiction.

Garland argues that article 42.20(b) does not negate the Texas Tort Claims Act as to the actions complained of in his suit because the driver’s actions were ministerial, not discretionary. Alternatively, Garland argues that article 42.20(b) applies only to acts “not performed with conscious indifference to the safety of others.” See Tex. Code Crim. Proc. Ann. art. 42.20(a)(2). Because he contends that the driver’s actions were committed with conscious indifference to the safety of others, Garland asserts that article 42.20(b) is inapplicable to his case and that he can utilize the Texas Tort Claims Act to establish TPWD’s consent to suit by statute.

Statutory Construction

In construing a statute, our primary objective is to determine and give effect to the legislature’s intent in enacting it. McIntyre v. Ramirez, 109 S.W.3d 741, 745 (Tex.2003). In determining legislative intent, we examine the entire act, not just isolated portions of it. City of San Antonio v. City of Boeme, 111 S.W.Sd 22, 25 (Tex.2003). We start with the plain and common meaning of the statute’s words. McIntyre, 109 S.W.3d at 745. Unless the statute is ambiguous, we determine the legislature’s intent from the language of the statute itself. Continental Cas. Co. v. Downs, 81 S.W.3d 803, 805 (Tex.2002). We must presume that every word of the statute has been used for a purpose and that every word excluded from the statute has been excluded for a purpose. Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 659 (Tex.1995). We should not insert words into the statute except to give effect to clear legislative intent. Id. We presume that the legislature enacted the statute with complete knowledge of existing law and with reference to it. Acker v. Tex. Water Comm’n, 790 S.W.2d 299, 301 (Tex.1990). We also may consider the object sought to be obtained by the statute and the consequences of a particular construction. Tex. Govt Code Ann. § 311.023 (Vernon 2005).

Chapter 42 of the code of criminal procedure focuses on the judgment and sentence in criminal cases. Article 42.20 of that chapter is entitled Immunities. Article 42.20(a) provides immunity from certain acts or failures to act in connection with a community service program or work program, if the acts or failures to act were not performed with conscious indifference for the safety of others. See Tex.Code Crim. Proc. Ann. art. 42.20(a).

Article 42.20(b), however, has no such limiting language. See Tex.Code Crim. Proc. Ann. art. 42.20(b). It simply states that the Texas Tort Claims Act does not apply to a claim based on an act by a state employee related to a community service program. Therefore, the plain language of the statute supports TPWD’s assertion that the Texas Tort Claims Act is inapplicable to Garland’s claims.

Further, the object sought to be obtained by the statute is immunity. The consequence of construing article 42.20(b) so that the Texas Tort Claims Act is inapplicable to claims related to community service program actions is immunity for the governmental entity. To encourage state agencies to participate in community service programs, it certainly is conceivable that the legislature intended such a result. Finally, to arrive at either of Garland’s proposed constructions, we would need to insert words into the statute. Because there is no clear legislative intent for us to do so, we decline Garland’s invitation. See Laidlaw Waste, 904 S.W.2d at 659.

Garland relies heavily on Tarrant County v. Morales, 207 S.W.3d 870 (Tex.App.Fort Worth 2006, no pet.). However, the Morales court did not construe article 42.20(b). See id. at 876. Nor did it hold that the Texas Tort Claims Act applies to acts related to a community service program. See id.

[F]or the Legislature to waive sovereign immunity [by enacting a statute], it must do so by clear and unambiguous language. Univ. of Tex. Med. Branch at Galveston v. York, 871 S.W.2d 175, 177 (Tex.1994). In light of article 42.20(b), Garland cannot demonstrate a clear and unambiguous waiver of sovereign immunity. Therefore, a plea to the jurisdiction was proper.

Constitutionality of Article 42.20

Garland alleges on appeal that article 42.20(b) is unconstitutional. He argues that it constitutes the creation of a special law, or a special privilege, in violation of the Texas Constitution. He also argues that it violates the Due Process Clause and Equal Protection Clause of the United States Constitution

A special law is one limited to a particular class of persons distinguished by some characteristic other than geography. Ford Motor Co. v. Sheldon, 22 S.W.3d 444, 450 (Tex.2000). Nevertheless, the legislature maintains broad authority to make classifications for legislative purposes. Id. The constitutional limitation on this authority requires a broad enough classification to ensure a substantial class and a legitimate basis to distinguish the class from others with respect to the public purpose of the legislation. Id. The ultimate test is whether there is a reasonable basis for the classification and whether the law treats all within the class equally. Id. at 451. Garland also asserts that the statute creates a special privilege or emolument in violation of article I, section 3 of the Texas Constitution. So long as the classification does not distinguish between persons on a suspect basis or impinge on a fundamental right, a statute does not violate this constitutional provision if it is rationally related to a legitimate state purpose. Trinity River Auth. v. URS Consultants, Inc.-Tex., 889 S.W.2d 259, 264 (Tex.1994).

To demonstrate that the statute violates the Due Process Clause substantively, Garland must establish that he was deprived of a constitutionally protected right by an arbitrary use of the state’s power. Byers v. Patterson, 219 S.W.3d 514, 525 (Tex.App.-Tyler 2007, no pet.). If the statute is rationally related to furthering a legitimate state interest, the statute satisfies the Due Process Clause. Id. To demonstrate that the statute violates the Equal Protection Clause, Garland must establish that he was treated differently from other similarly situated parties and that he was treated differently without a reasonable basis. See Sanders v. Palunsky, 36 S.W.3d 222, 225 (Tex.App.-Houston [14th Dist.] 2001, no pet.). A statute that does not single out members of a suspect class or implicate a fundamental right need only be rationally related to a legitimate state interest to satisfy the Equal Protection Clause. See id.

To encourage state agencies to participate in these programs and to combat litigation abuse from the participants, the legislature deemed it necessary to make the Texas Tort Claims Act inapplicable to claims arising from actions related to a community service program. Here, article 42.20(b) serves a legitimate state interest in implementing a community service program. And article 42.20(b) is reasonably and rationally related to that interest. Further, Garland is not a member of a suspect class and no fundamental right is implicated by the operation of article 42.20(b). Therefore, Garland’s constitutional challenges fail.

Conclusion

Garland’s pleadings affirmatively negate the existence of subject matter jurisdiction. See Miranda, 133 S.W.3d at 227. Therefore, the trial court erred by denying TPWD’s plea to the jurisdiction. Accordingly, we sustain TPWD’s sole issue. Generally, the proper remedy when a court lacks subject matter jurisdiction is to dismiss the case without prejudice, but when a dispositive defect cannot be remedied, dismissal with prejudice is proper. Cf. Hickman v. Adams, 35 S.W.3d 120, 124 (Tex.App.-Houston [14th Dist.] 2000, no pet.). Therefore, the trial court should have granted the plea and dismissed these claims with prejudice. Accordingly, we reverse the order of the trial court denying TPWD’s plea to the jurisdiction and dis miss Garland’s action, with prejudice, for lack of subject matter jurisdiction. See Sykes, 136 S.W.3d at 639 (requiring dismissal with prejudice where plaintiff previously had opportunity to amend); see also Tex.R.App. P. 43.2 (authorizing court of appeals to reverse the trial court’s judgment and render the judgment the trial court should have rendered).

      . Section 101.021 states that
      [a] governmental unit ... is liable for (1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:
      (A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and
      (B) the employee would be personally liable to the claimant according to Texas law; and
      (2) personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.
      Tex. Civ. Prac. & Rem.Code Ann. § 101.021 (Vernon 2005).

        . Because we have sustained TPWD’s challenge to Garland’s pleadings, we do not reach TPWD’s arguments related to the existence of jurisdictional facts. See Tex.R.App. P. 47.1.


author: Justice LANG.

text:
    TEXAS ALCOHOLIC BEVERAGE COMMISSION, Appellant, v. Alfonso CABANAS d/b/a La Estrella Sports Bar, Appellee.
    No. 05-09-00126-CV.
    Court of Appeals of Texas, Dallas.
    June 3, 2010.

      Michael C. Crowley, Assistant Attorney General, Administrative Law Division, Austin, for appellant.
    Timothy E. Griffith, Plano, for appellee.
    Before Justices O’NEILL, LANG, and MYERS.
   OPINION ON REHEARING

Opinion By

Justice LANG.

Appellant Texas Alcoholic Beverage Commission filed an agreed motion for rehearing. The motion for rehearing is granted in part and denied in part. We withdraw our opinion issued April 28, 2010 and vacate our judgment of that date. The following is now the opinion of the Court.

The Texas Alcoholic Beverage Commission brings this appeal from the trial court’s judgment reversing the Commission’s order revoking the conduct surety bond of Alfonso Cabanas d/b/a La Estrella Sports (Cabanas). In two issues, the Commission argues that (1) the trial court’s judgment nunc pro tunc that reversed the Commission’s order was void, and (2) the Commission’s order was supported by substantial evidence. For the reasons set forth below, we reverse the trial court’s judgment, render a take nothing judgment on Cabanas’s claims, and affirm the Commission’s order.

I. FACTUAL AND PROCEDURAL BACKGROUND

On December 10, 2004, the Texas Alcoholic Beverage Commission granted Alfonso Cabanas a “Wine and Beer Retailer’s Permit” and a “Retail Dealer’s on Premise Late Hours License,” which permitted the sale of alcoholic beverages on the premises of La Estrella Sports Bar. Subsequently, Cabanas violated the Texas Alcoholic Beverage Code by “permitting consumption during prohibited hours” at La Estrella Sports Bar on three separate occasions: June 17, 2005, March 24, 2007, and July 28, 2007. As to each violation, Cabanas signed an “Agreement and Waiver of Hearing” by which he agreed to suspension for a period of time of La Estrella’s permit to sell alcoholic beverages or in the alternative, a civil monetary penalty. Then, as to each violation, the Commission signed an order that “found” respondent waived a hearing, accepted the penalty assessed, and “violated those sections of the code as stated in the agreement and waiver of hearing.”

On June 6, 2008, the Commission initiated a proceeding to revoke La Estrella’s conduct surety bond, and sent Cabanas a “Notice of Hearing,” alleging that “on or about October 9, 2007, Alfonso Cabanas, or his agent, servant, or employee, had three or more adjudicated violations of the Alcoholic Beverage Code or Rules ... for which [Cabanas] must forfeit [his] conduct surety bond, certificate of deposit, or letter of credit.” A hearing was held on July 31, 2008 before the State Office of Administrative Hearings. During this proceeding, the Commission argued that the violations on June 17, 2005, March 24, 2007, and June 28, 2007 supported revocation of Cabanas’s conduct surety bond. In response, Cabanas asserted that because he signed an “Agreement and Waiver of Hearing” for each violation, the violations were not “adjudicated” as required by section 33.24 of the Texas Alcoholic Beverage Code and did not support the revocation of the bond. Following the hearing, the Administrative Law Judge issued a “Proposal for Decision” in which he found that “the record was sufficient to establish that respondent had been finally adjudicated of three violations of the Code since September 1,1995” and recommended that “respondent’s surety bond be forfeited.” The Commission adopted the “Proposal for Decision” by final order on October 17, 2008. Cabanas challenged the order by filing a Petition for Judicial Review in the trial court on December 17, 2008. The petition asserted jurisdiction pursuant to Section 11.67 of the Texas Alcoholic Beverage Code and Section 2001.171 of the Texas Government Code. The Commission responded by filing a plea to jurisdiction, arguing that Cabanas did not exhaust his administrative remedies.

After a hearing, the trial court signed a “Final Judgment” dated December 24, 2008, in which it stated, “the State Office of Administrative Hearings is REVERSED.” Thereafter, on January 7, 2008, Cabanas filed a “Motion to Modify or Correct the Judgment,” requesting the trial court to “reference the Defendant’s order dated October 12, 2008” and “whether the reversal is based upon the fact the order is predicated upon error of law, is arbitrary or capricious, and/or is not supported by substantial evidence.” On January 16, 2009, the trial court signed a “Judgment Nunc Pro Tunc,” which concluded that the Commission’s October 17, 2008 order was (1) not supported by substantial evidence, (2) affected by an error of law, and (3) arbitrary and capricious. The January 16, 2009 judgment stated that “the Order of the Defendant, Texas Alcoholic Beverage Commission, dated October 17, 2008, forfeiting the Plaintiff’s conduct surety bond is hereby REVERSED” and also stated that the “judgment rendered on the 24th day of December 2008, is hereby corrected in conformity with this Corrected Final Judgment.” The Commission timely appealed.

II. FORFEITURE OF CONDUCT SURETY BOND

A. Standard of Review

Administrative decisions are reviewed under the substantial evidence rule. See Tex. Alco. Bev. Code Ann. § 11.67(b) (Vernon 2007). Under this standard, an administrative decision is reasonably supported by substantial evidence “if the evidence as a whole is such that a reasonable mind could have reached the same conclusion the judge reached in order to justify his decision.” Garza v. Tex. Alcoholic Beverage Comm’n, 138 S.W.3d 609, 613 (Tex.App.-Houston [14th Dist.] 2004, no pet.); See Tex. Alcoholic Beverage Comm’n v. Sierra, 784 S.W.2d 359, 360 (Tex.1990). Substantial evidence is more than a mere scintilla and less than a preponderance. Garza, 138 S.W.3d at 613. As such, the evidence may actually preponderate against the agency’s decision, but nonetheless amount to substantial evidence. Id. The reviewing court’s focus is on the reasonableness of the administrative decision, not on its correctness. Morgan v. Tex. Alcoholic Beverage Comm’n, 519 S.W.2d 250, 254 (Tex.Civ.App.-Texarkana 1975, no writ).

Whether substantial evidence exists in support of an administrative decision is a question of law. Tex. Dep’t of Pub. Safety v. Alford, 209 S.W.3d 101, 103 (Tex.2006). In determining whether substantial evidence exists, the reviewing court may not invade the fact finding authority of the agency. State Banking Bd. v. Allied Bank Marble Falls, 748 S.W.2d 447 (Tex.1988). Further, the court may not substitute its judgment for that of the administrative agency. Auto Convoy Co. v. Railroad Comm’n of Tex., 507 S.W.2d 718, 722 (Tex.1974). Administrative decisions are presumed to be reasonable, and the burden is on the party seeking to set aside the agency decision to prove the decision was not supported by substantial evidence. Four Stars Food Mart v. Tex. Alcoholic Beverage Comm’n, 923 S.W.2d 266, 269 (Tex.App.-Fort Worth 1996, no writ). Where there is substantial evidence that would support the administrative agency’s findings, the decision of the agency must be upheld. Id.

B. Applicable Law

Under the Texas Alcoholic Beverage Code, an applicant must file a conduct surety bond in order to obtain an alcohol licence or permit from the Commission. Tex. Algo. Bev.Code Ann. §§ 11.11, 61.13 (Vernon 2007). The Commission may seek forfeiture of the surety bond “when a license or permit is cancelled” or after “a final adjudication that the licensee or per-mittee has committed three violations of the Alcoholic Beverage Code since September 1, 1995.” 16 Tex. Admin. Code § 33.24(j)(l). The Commission “must notify the licensee or permittee, in writing of its intent to seek forfeiture of the bond.” Id. Within 30 days of the Commission’s notice to seek forfeiture, the licensee or permittee may “request a hearing on the question of whether the criteria for forfeiture of the bond, as established by the Alcoholic Beverage Code ... and this rule have been satisfied.” Id. at § 33.24(j)(2). Following the hearing or upon waiver of the hearing, the Commission may enter a final order revoking the surety bond. Id. at § 33.24(j)(3). A person aggrieved by an administrative decision has the statutory right to seek judicial review from the administrative order after exhausting all administrative remedies available. Tex. Gov’t Code Ann. § 2001.171 (Vernon 2008); See Lindsay v. Sterling, 690 S.W.2d 560, 562 (Tex.1985) (Texas Alcoholic Beverage Commission’s orders are subject to judicial review pursuant to Administrative Procedure Act.).

Failure to maintain a surety bond may serve as grounds for cancelling or suspending a permit or licence. Tex. Alco. Bev. Code Ann. §§ 11.61(8)(Vernon 2007). If the Commission issues an administrative order cancelling, suspending, or refusing a license or permit, the Texas Alcoholic Beverage Code provides for an appeal to the district court. See id. at § 11.67. Section 11.67 requires that district court to render judgment no later than ten days from the date the appeal is filed. Id. After the ten day period, the district court loses its plenary jurisdiction and has the ministerial duty to sign a judgment affirming the administrative decision. Garza v. Texas Alcoholic Beverage Comm’n, 89 S.W.3d 1, 2 (Tex.2002).

C. Application of Law to Facts

1. Timely Rendition of Judgment

In its first issue, the Commission argues that the trial court’s January 16, 2009 judgment, described as a “Judgment Nunc Pro Tunc,” is void because judgment was not timely rendered within 10 days after the lawsuit was filed, as required by section 11.67 of the Alcoholic Beverage Code. Accordingly, the Commission asserts the trial court lost its subject matter jurisdiction to render judgment. In support of its argument, the Commission states, “the Supreme Court in holding that Tex. Alco. Bev. Code § 11.67 creates an absolute deadline that judgment be rendered within ten days, also held that after the ten days had passed, the trial court only retained the ministerial power and duty to sign a judgment affirming the Commission’s order.” Garza, 89 S.W.3d at

2. We cannot agree with the Commission because Section 11.67, including its ten day limitation, is inapplicable to the order appealed to the district court.

In his petition for judicial review, Cabanas cited Section 11.67 of the Texas Alcoholic Beverage Code and the Administrative Procedure Act as the basis for the trial court’s jurisdiction. Section 11.67, by its specific language, applies to appeals from administrative orders cancelling, suspending or refusing a permit or license. See Tex. Alco. Bev. Code Ann. § 11.67 (Vernon 2007); Garza, 89 S.W.3d at 2 (Section 11.67 provides that an appeal of a liquor license denial must be tried to a district court within ten days after it is filed.). The case before us is an appeal of an administrative, order declaring forfeiture of a conduct surety bond pursuant to Section 33.24(j) of the Texas Administrative Code. See Tex. Admin. Code § 33.24(j)(l). The administrative order does not address in any respect a liquor license. Although the Commission contends Section 11.67 applies to the facts before us, the Commission has not cited us to any authority demonstrating how Section 11.67 applies to the appeal of this administrative order revoking a conduct surety bond. Neither the plain language of Section 11.67 nor the record support the application of the ten day deadline in this case.

Cabanas invoked the district court’s jurisdiction under the Administrative Procedure Act. Specifically, in his petition for judicial review, Cabanas cited Section 2001.171 of the Government Code and stated, “the Plaintiff files this petition seeking redress from this Court for the actions and order of the Defendant.” Final orders of the Commission are subject to judicial review under the Administrative Procedure Act. See Lindsay, 690 S.W.2d at 562; See also Tex. Alcoholic Beverage Comm’n v. Rodriguez, 2007 WL 1559815 (Tex.App.-Houston [1st. Dist.] May 31, 2007, no pet.) (mem.op) (Orders of the Texas Alcoholic Beverage Commission are subject to judicial review under section 2001.171 of the Administrative Procedure Act.). The Commission has not asserted any defect in the trial court’s jurisdiction under the Administrative Procedure Act and we perceive none. We cannot agree with the Commission’s contention that the nunc pro tunc judgment was void for lack of jurisdiction. Accordingly, we decide the Commission’s first issue against it.

2. Substantial Evidence

In its second issue, the Commission argues the trial court erred by reversing the Commission’s October 17, 2008 order revoking the conduct surety bond because that order was supported by substantial evidence. In response, Cabanas argues the order was not supported by substantial evidence because the “agreements” in which Cabanas agreed to pay a penalty or experience a licence suspension for violations of the code were not “adjudicated.” Citing to Big D Bamboo, Inc. v. State, 567 S.W.2d 915, 918 (Tex.Civ.App.-Beaumont 1978, no writ.). Cabanas contends adjudication requires a hearing in which the agency decides the “legal rights, duties and privileges.” He asserts that the agency “could not adjudicate the cases as there was no dispute between the parties.”

Contrary to Cabanas’s assertion, Big D Bamboo does not stand for the proposition that a hearing is required for a final adjudication. See Big D Bamboo, 567 S.W.3d at 918 (concluding that the Commission’s order must be “final and determinative” in order to be entitled to an “adjudicative hearing.”). Rather, an adjudication requires the agency to determine “by final and determinative order ... the legal rights, duties, or privileges or the appellant, and in the absence of an appeal therefrom will be a final and binding decree .... ” Id.; See Foster v. Teacher Retirement Sys., 273 S.W.3d 883, 887 (Tex.App.-Austin 2008, no pet.); Best & Co. v. Tex. State Bd. of Plumbing Exam’rs, 927 S.W.2d 306, 308 (Tex.App.-Austin 1996, writ denied).

In the case before us, the record reflects Cabanas signed an “Agreement and Waiver of Hearing” form for each of the three ■violations in question. Each “Agreement and Waiver of Hearing” set out the violation alleged, the proposed sanction, and a waiver of hearing. Included within each “Agreement and Waiver of Hearing” was a statement acknowledging that Cabanas’s signature may lead to the forfeiture of the conduct surety bond. The Commission signed an order adopting the “Agreement and Waiver of Hearing” for each of the violations. Each order found that the respondent: (1) waived the hearing, (2) “violated those sections of the code as stated in the agreement and waiver of hearing,” and (3) accepted the penalty assessed. Nothing in the record indicates that Cabanas contested any of the orders.

On this record, we conclude the orders for June 17, 2005, March 24, 2007, and July 28, 2007 violations were “final and determinative orders that set out the legal rights, duties, or privileges.” See Foster, 273 S.W.3d at 887; Best & Co., 927 S.W.2d at 308. Accordingly, the trial court erred in reversing the Commission order revoking the conduct surety bond because there was substantial evidence of a “final adjudication that the licensee or permittee has committed three violations of the Alcoholic Beverage Code since September 1, 1995.” See Tex. Admin. Code § 33.24(j)(l). We decide in favor of the Commission on its second issue.

III. CONCLUSION

We conclude the record contains substantial evidence supporting the Commission’s “Order Adopting Proposal for Decision” that required Cabanas’s conduct surety bond to be forfeited. Accordingly, the trial court erred by reversing the Commission’s order. We reverse the trial court’s judgment, render a take nothing judgment on the claims of Cabanas, and affirm the Commission’s October 17, 2008 “Order Adopting Proposal for Decision.”

      . Section 2001.171 provides that "a person who has exhausted all administrative remedies available within a state agency and who is aggrieved by a final decision in a contested cases is entitled to judicial review under this chapter.” Tex. Gov’t Code Ann § 2001.171 (Vernon 2008).

      . Section 2001.176 of the Administrative Procedure Act provides that a petition initiating judicial review from an administrative decision must be filed no later than 30 days after the final administrative decision and must be filed in a Travis County District Court. Tex Gov’t Code Ann § 2001.176 (Vernon 2008); Combined Specialty Ins. Co. v. Deese, 266 S.W.3d 653, 665 (Tex.App.-Dallas 2008, no pet.). Although Cabanas filed suit in Dallas County, the Commission did not contest venue. Consequently, the Commission waived any contention that venue was mandatory in Travis County. See Combined Specialty Ins., 266 S.W.3d at 666 (concluding that the 2001.176 requirement that the petition be filed in Travis County is a matter of venue rather than subject matter jurisdiction and can be waived).

      . When we conclude the claims of the party seeking to set aside the administrative order are not meritorious and the administrative order is supported by substantial evidence, we "uphold” the administrative order and affirm it. See Tex. Dep't of Pub. Safety v. Lavender, 935 S.W.2d 925, 929 (Tex.App.-Waco 1996, writ denied); Tex. Water Comm’n v. Lake-shore, 877 S.W.2d 814, 818 (Tex.App.-Austin 1994, writ denied).