text:
    The STATE of Texas, Appellant, v. Venice REYES, Appellee.
    No. 08-08-00165-CR.
    Court of Appeals of Texas, El Paso.
    Feb. 24, 2010.
    Rehearings Overruled March 17, 2010.

      Jaime E. Esparza, District Attorney, El Paso, TX, for State.
    M. Clara Hernandez, El Paso County Public Defender, El Paso, TX, for Appel-lee.
    Before CHEW, C.J, McCLURE, and RIVERA, JJ.
   OPINION

GUADALUPE RIVERA, Justice.

Venice Reyes was indicted for felony theft. After the trial court granted Reyes’ motion to quash, the State appealed. We will reverse.

BACKGROUND

Reyes was indicted for theft of property valued at less than $1,500. The indictment further alleged that Reyes was twice before convicted of theft, which elevated the Class A misdemeanor offense to a state-jail felony. See Tex. Penal Code Ann. § 31.03(e)(3), (e)(4)(D) (Vernon 2003). Because one of the prior convictions alleged resulted in a probated sentence, and because that probated sentence was never revoked, Reyes filed a motion to quash alleging the State failed to charge a final conviction to elevate the offense to a felony. After a hearing on the motion, the district court granted the motion to quash on grounds that he lacked felony jurisdiction since the State could not prove that prior conviction was final at the hearing. On appeal, the State contends, in a single issue, that the trial court erred by requiring it to prove the prior theft offense at the motion-to-quash hearing. We agree.

DISCUSSION

The sufficiency of an indictment is a question of law. State v. Moff, 154 S.W.3d 599, 601 (Tex.Crim.App.2004). When the resolution of a question of law does not turn on an evaluation of witness credibility and demeanor, the trial court is not in an appreciably better position to make the determination than an appellate court. Moff, 154 S.W.3d at 601; see also Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). Thus, we review the sufficiency of an indictment de novo. Moff, 154 S.W.3d at 601.

The presentment of an indictment vests a district court with jurisdiction. See State v. Meadows, 170 S.W.3d 617, 619 (Tex.App.-El Paso 2005, no pet.). Further, jurisdiction over a felony offense vests with the district court when the indictment alleges the requisite number of previous convictions. Tamez v. State, 11 S.W.3d 198, 201 (Tex.Crim.App.2000). Therefore, when a defendant challenges the indictment at a pretrial hearing, the .only inquiry may be into whether the indictment, on its face, met the pleading requirements. State v. Rosenbaum, 910 S.W.2d 934, 948 (Tex.Crim.App.1994) (dissenting op. adopted on reh’g); Meadows, 170 S.W.3d at 620. A trial court may not determine the sufficiency of evidence to support or defeat any of the elements of the charged crime alleged in the indictment at a pretrial hearing. Rosenbaum, 910 S.W.2d at 948; Meadows, 170 S.W.3d at 620; State v. Habern, 945 S.W.2d 225, 226 (Tex.App.-Houston [1st Dist.] 1997, no pet.).

Here, the indictment alleged all of the elements of a state-jail felony theft, that is, that Appellant, with the intent to deprive the owner, unlawfully appropriated property valued at less than $1,500, having two previous convictions for theft. See Tex. Penal Code Ann. § 31.03(e)(3), (e)(4)(D). Therefore, the indictment, on its face, vested the district court with jurisdiction over a felony offense. The only question before us is whether the prior theft convictions alleged were elements of the charged felony offense such that the State was excused from proving those elements at the pretrial hearing for purposes of surviving a motion to quash.

It has been uniformly held that prior theft convictions alleged to elevate a misdemeanor theft to a felony-level offense are jurisdictional elements of a new, felony offense, rather than simply punishment enhancements. See Gant v. State, 606 S.W.2d 867, 869 n. 2, 871 n. 9 (Tex.Crim.App.1980); Diamond v. State, 530 S.W.2d 586, 587 (Tex.Crim.App.1975); Gollihar v. State, 56 S.W.3d 606, 608 (Tex.App.-Texarkana 2001), pet. dism’d improvidently granted, 84 S.W.3d 674 (Tex.Crim.App.2002); Bruns v. State, 22 S.W.3d 540, 542-43 (Tex.App.-El Paso 2000, no pet.); Moore v. State, 916 S.W.2d 537, 539 (Tex.App.-Dallas 1995, no pet.); Carter v. State, 804 S.W.2d 326, 327 (Tex.App.-Waco 1991, no pet.). As an element of the offense, the prior theft conviction could not be subject to sufficient proof at the motion-to-quash hearing. In other words, it was improper for the trial court to delve into the sufficiency of evidence to support the elements of the charged felony offense at the pretrial hearing. Meadows, 170 S.W.3d at 620; Habern, 945 S.W.2d at 226. Accordingly, the trial court erred in ruling that it lacked jurisdiction until that prior conviction was proven. The first sub-issue presented by the State is sustained.

CONCLUSION

Because the trial court was prohibited from forcing the State to prove certain elements of the charged offense, i.e., the prior theft conviction, at the motion-to-quash hearing, the trial court’s order granting the motion to quash is reversed. The proceedings are remanded to the trial court below.

      . The State's issue is divided into two parts:
      (1) whether the trial court erred by requiring the State to prove the prior conviction in a pretrial hearing; and (2) whether the alleged prior conviction that resulted in a probated sentence could be used to elevate the offense to a felony. Because we determine that the trial court erred by requiring the State to prove the prior conviction at the motion-to-quash hearing, we do not reach the State’s second sub-issue.

      . For the State to prove whether a prior conviction was final at a pretrial hearing, the State would be forced to introduce a judgment and, if the prior conviction resulted in a probated sentence, a revocation order. Intro-during either document would, in essence, be delving into the sufficiency of the conviction to support the element of the elevated offense. This, the trial court may not require at a pretrial hearing.


source: Caselaw Access Project

author: GUADALUPE RIVERA, Justice.

license: Public Domain

text:
    The STATE of Texas, Appellant, v. Venice REYES, Appellee.
    No. 08-08-00164-CR.
    Court of Appeals of Texas, El Paso.
    Feb. 24, 2010.
    Rehearings Overruled March 17, 2010.

      Jaime E. Esparza, District Attorney, El Paso, TX, for State.
    M. Clara Hernandez, El Paso County Public Defender, El Paso, TX, for Appel-lee.
    Before CHEW, C.J., McCLURE, and RIVERA, JJ.
   OPINION

GUADALUPE RIVERA, Justice.

Venice Reyes was indicted for felony theft. After the trial court granted Reyes’ motion to quash, the State appealed. We will reverse.

BACKGROUND

Reyes was indicted for theft of property valued at $50 or more, but less than $500. The indictment further alleged that Reyes was twice before convicted of theft, which elevated the Class B misdemeanor offense to a state-jail felony. See Tex. Penal Code Ann. § 31.03(e)(2)(A)(i), (e)(4)(D) (Vernon 2003). Because one of the prior convictions alleged resulted in a probated sentence, and because that probated sentence was never revoked, Reyes filed a motion to quash alleging the State failed to charge a final conviction to elevate the offense to a felony. After a hearing on the motion, the district court granted the motion to quash on grounds that he lacked felony jurisdiction since the State could not prove that prior conviction was final at the hearing. On appeal, the State contends, in a single issue, that the trial court erred by requiring it to prove the prior theft offense at the motion-to-quash hearing. We agree.

DISCUSSION

The sufficiency of an indictment is a question of law. State v. Moff, 154 S.W.3d 599, 601 (Tex.Crim.App.2004). When the resolution of a question of law does not turn on an evaluation of witness credibility and demeanor, the trial court is not in an appreciably better position to make the determination than an appellate court. Moff, 154 S.W.3d at 601; see also Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). Thus, we review the sufficiency of an indictment de novo. Moff, 154 S.W.3d at 601.

The presentment of an indictment vests a district court with jurisdiction. See State v. Meadows, 170 S.W.3d 617, 619 (Tex.App.-El Paso 2005, no pet.). Further, jurisdiction over a felony offense vests with the district court when the indictment alleges the requisite number of previous convictions. Tamez v. State, 11 S.W.3d 198, 201 (Tex.Crim.App.2000). Therefore, when a defendant challenges the indictment at a pretrial hearing, the only inquiry may be into whether the indictment, on its face, met the pleading requirements. State v. Rosenbaum, 910 S.W.2d 934, 948 (Tex.Crim.App.1994) (dissenting op. adopted on reh’g); Meadows, 170 S.W.3d at 620. A trial court may not determine the sufficiency of evidence to support or defeat any of the elements of the charged crime alleged in the indictment at a pretrial hearing. Rosenbaum, 910 S.W.2d at 948; Meadows, 170 S.W.3d at 620; State v. Habern, 945 S.W.2d 225, 226 (Tex.App.-Houston [1st Dist.] 1997, no pet.).

Here, the indictment alleged all of the elements of a state-jail felony theft, that is, that Appellant, with the intent to deprive the owner, unlawfully appropriated property valued at $50 or more but less than $500, having two previous convictions for theft. See Tex. Penal Code Ann. § 31.03(e)(2)(A)®, (e)(4)(D). Therefore, the indictment, on its face, vested the district court with jurisdiction over a felony offense. The only question before us is whether the prior theft convictions alleged were elements of the charged felony offense such that the State was excused from proving those elements at the pretrial hearing for purposes of surviving a motion to quash.

It has been uniformly held that prior theft convictions alleged to elevate a misdemeanor theft to a felony-level offense are jurisdictional elements of a new, felony offense, rather than simply punishment enhancements. See Gant v. State, 606 S.W.2d 867, 869 n. 2, 871 n. 9 (Tex.Crim.App.1980); Diamond v. State, 530 S.W.2d 586, 587 (Tex.Crim.App.1975); Gollihar v. State, 56 S.W.3d 606, 608 (Tex.App.-Texarkana 2001), pet. dism’d improvidently granted, 84 S.W.3d 674 (Tex.Crim.App.2002); Bruns v. State, 22 S.W.3d 540, 542-43 (Tex.App.-El Paso 2000, no pet.); Moore v. State, 916 S.W.2d 537, 539 (Tex.App.-Dallas 1995, no pet.); Carter v. State, 804 S.W.2d 326, 327 (Tex.App.-Waco 1991, no pet.). As an element of the offense, the prior theft conviction could not be subject to sufficient proof at the motion-to-quash hearing. In other words, it was improper for the trial court to delve into the sufficiency of evidence to support the elements of the charged felony offense at the pretrial hearing. Meadows, 170 S.W.3d at 620; Habem, 945 S.W.2d at 226. Accordingly, the trial court erred in ruling that it lacked jurisdiction until that prior conviction was proven. The first sub-issue presented by the State is sustained.

CONCLUSION

Because the trial court was prohibited from forcing the State to prove certain elements of the charged offense, i.e., the prior theft conviction, at the motion-to-quash hearing, the trial court’s order granting the motion to quash is reversed. The proceedings are remanded to the trial court below.

      . The State’s issue is divided into two parts: (1) whether the trial court erred by requiring the State to prove the prior conviction in a pretrial hearing; and (2) whether the alleged prior conviction that resulted in a probated sentence could be used to elevate the offense to a felony. Because we determine that the trial court erred by requiring the State to prove the prior conviction at the motion-to-quash hearing, we do not reach the State’s second sub-issue.

      . For the State to prove whether a prior conviction was final at a pretrial hearing, the State would be forced to introduce a judgment and, if the prior conviction resulted in a probated sentence, a revocation order. Introducing either document would, in essence, be delving into the sufficiency of the conviction to support the element of the elevated offense. This, the trial court may not require at a pretrial hearing.


author: Opinion by Justice BENAVIDES.

text:
    John Scott FLEMING, Appellant, v. Jerry PATTERSON, Land Commissioner of the State of Texas and City of Corpus Christi, Appellees.
    No. 13-08-00199-CV.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    Feb. 25, 2010.
    Rehearing Overruled March 25, 2010.

      David A. Sibley, Gregory, for Appellant.
    Jeffee Martinez-Vargas, Jeffee L. Palmer, Office of Atty. Gen., Austin, Ken Fields, Hermansen, McKibben, Woolsey, Corpus Christi, for Appellees.
    Before Chief Justice VALDEZ and Justices YÁÑEZ and BENAVIDES.
   OPINION

Opinion by Justice BENAVIDES.

John Scott Fleming, appellant, appeals from the trial court’s order granting pleas to the jurisdiction in favor of appellees, Jerry Patterson, Land Commissioner of the State of Texas (“Patterson”), and the City of Corpus Christi (the “City”). We affirm.

I. Background

Fleming initially sued the State of Texas and the City asserting ownership of certain lots on Mustang Island near Corpus Christi, Texas. The lots were included in land the State leased to the City. Fleming claimed that the State and the City, as the State’s lessee, had no rights to the property at issue and asked the trial court to issue a declaratory judgment clarifying the parties’ rights to the property. Additionally, Fleming asked the trial court to both try and quiet title “as appropriate.” Both the State and the City filed pleas to the jurisdiction asserting sovereign immunity and governmental immunity, respectively.

On April 4, 2007, the trial court held a hearing on the State’s plea to the jurisdiction. The same day, Fleming filed a “Supplemental Petition” adding as defendants in their official capacities: (1) the “State Land Commissioner;” and (2) “all Officials through which the State of Texas acts.” At the April 4, 2007 hearing, the State presented evidence, including the testimony of its surveyor, asserting its title and right of possession to the property. The testimony confirmed that Fleming’s asserted title conflicts with the State’s. The hearing exclusively involved evidence presented on behalf of the State, and no evidence was presented on behalf of any state officials. During Fleming’s cross-examination of the State’s surveyor, counsel for the State reiterated that, at the time of the hearing, Fleming “has sued the State of Texas, and we’re here on behalf of the State of Texas ... and no state official is really a party....” Fleming later stated that “as soon as we add the names of [the State officials], the court will clearly have additional jurisdiction under [Lain ].” See State v. Lain, 162 Tex. 549, 349 S.W.2d 579, 581-82 (1961).

On September 20, 2007, Fleming filed his “Second Supplemental Petition and Partial Nonsuit,” in which he nonsuited all parties except for the City and specifically named as the defendant “Jerry Patterson as Chairman of the School Land Board and as Commissioner of the General Land Office.” That same day, the trial court held a hearing on Patterson’s plea to the jurisdiction. Patterson offered the same evidence admitted on the State’s behalf during the April 4, 2007 hearing. That evidence was admitted into the record of the September 20, 2007 hearing. Fleming did not introduce any evidence at this hearing.

On November 5, 2007, the trial court granted Patterson’s plea to the jurisdiction. On January 30, 2008, the trial court granted the City’s plea to the jurisdiction. Fleming appealed.

II. Jerry Patterson

A. Standard of Review

A plea to the jurisdiction challenges the court’s subject-matter jurisdiction and comprises a question of law which we review de novo. See Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.2002); Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000). A court lacks subject-matter jurisdiction over a governmental defendant when that defendant is immune from suit. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex.1993).

To determine subject-matter jurisdiction, we begin with the pleadings. Tex. Dep’t of Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004). The plaintiff must plead facts affirmatively demonstrating the court’s subject-matter jurisdiction. Tex. Air Control Bd., 852 S.W.2d at 446. We are to construe the pleadings liberally, look to the pleader’s intent, and accept the pleader’s factual assertions as true. See Miranda, 133 S.W.3d at 226, 228. When the plea to the jurisdiction challenges the existence of jurisdictional facts, we resolve the jurisdictional facts by considering the evidence presented by the parties. Bland, 34 S.W.3d at 555.

When the evidence presented creates a fact issue, the plea to the jurisdiction must be denied and the fact question answered by the fact finder. Miranda, 133 S.W.3d at 227-28. “[I]f the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of law.” Id. at 228. This standard is similar to that of a traditional motion for summary judgment. Id. “[A]fter the state asserts and supports with evidence that the trial court lacks subject[-]matter jurisdiction, we simply require the plaintiffs, when the facts underlying the merits and subject[-]matter jurisdiction are intertwined, to show that there is a disputed material fact regarding the jurisdictional issue.” Id.

B. Analysis

In his plea to the jurisdiction, Patterson argued that a suit against him as a government official is a suit against the State, and that, absent a waiver of sovereign immunity, the State, and therefore Patterson, is immune from Fleming’s lawsuit. While we affirm the order of the trial court dismissing Patterson, due to the nature of the underlying lawsuit, we do not agree with Patterson’s assertion.

1. Nature of the Suit

The parties disagree as to the nature of Fleming’s lawsuit: Fleming asserts that he is merely seeking a declaration that “the State of Texas and its lessee have no rights in the property ...,” and Patterson claims that the action is one of trespass to try title. We conclude that the action is a trespass to try title action under section 22.001(a) of the property code. See Tex. Prop.Code Ann. § 22.001(a) (Vernon 2000).

In his original petition, Fleming sought declaratory relief and asked the trial court “to both try title and quiet title as appropriate to establish title to these lots.... ” Fleming then concluded that the court “should grant all requested relief.” Fleming continued to seek this relief through his first and second supplemental petitions. The Texas Legislature has mandated that “[a] trespass to try title action is the method of determining title to lands, tenements, or other real property.” Id.; see Martin v. Amerman, 133 S.W.3d 262, 264-65 (Tex.2004). Therefore, we conclude that Fleming’s action is one of trespass to try title and not one merely seeking a declaratory judgment. See State v. BP Am. Prod. Co., 290 S.W.3d 345, 352, 361, 363 (Tex.App.-Austin 2009, pet. filed) (holding that sovereign immunity bars a declaratory judgment claim wherein the plaintiff sought a declaration establishing title to property also claimed by the State) (citing Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 839-40 (Tex.2007)).

2. Effect of Sovereign Immunity on Trespass to Try Title Suit

Patterson argues that Fleming failed to demonstrate that sovereign immunity has been waived in trespass to try title suits brought against State officials acting in their official capacity. Fleming, however, asserts that under Lain, among other cases, sovereign immunity does not bar his claim against Patterson in his official capacity. See 349 S.W.2d at 581-82. Patterson attempts to rebut this argument by citing cases, including IT-Davy, which hold that a suit against a government official acting within the scope of his authority is a suit against the State. See 74 S.W.3d at 855-56. Patterson states that “if a State official asserts the State’s title to such property, in the exercise of his discretion, then immunity bars the lawsuit and the plaintiff must go to the legislature for permission to have the suit tried in court.” We disagree with Patterson’s interpretation of how the law applies in this specific case.

Our sister court, the Austin Court of Appeals, dealt with this same issue in BP Am. Prod. Co., 290 S.W.3d at 352, 354. In determining that sovereign immunity does not bar a trespass to try title claim against a governmental official acting in his official capacity, the Austin Court stated that “[s]ome of the conceptual underpinnings of Lain are not easily reconciled with contemporary Texas sovereign immunity jurisprudence. Nonetheless, the Texas Supreme Court has never overruled Lain, and it remains squarely controlling precedent that we are bound to apply here unless and until the high court tells us otherwise.” Id. at 356-57 (internal citations omitted). We agree that Lain is still controlling precedent, and we must follow it here. See Peteo Animal Supplies, Inc. v. Schuster, 144 S.W.3d 554, 565 (Tex.App.-Austin 2004, no pet.) (“As an intermediate appellate court, we are not free to mold Texas law as we see fit but must instead follow the precedents of the Texas Supreme Court unless and until the high court overrules them or the Texas Legislature supersedes them by statute.”).

The supreme court noted in Lain that “[w]hen suit for recovery of title to and possession of land, filed without legislative consent, is not against the state itself, but is against individuals only, the mere assertion by pleading that the defendants claim title or right of possession as officials of the state and on behalf of the state, will not bar prosecution of the suit.” Lain, 349 S.W.2d at 582. This is so because:

[o]ne who takes possession of another’s land without legal right is no less a trespasser because he is a state official or employee, and the owner should not be required to obtain legislative consent to institute a suit to oust him simply because he asserts a good faith but overzealous claim that title or right of possession is in the state and that he is acting on behalf of the state.

Id. at 581; see BP Am. Prod. Co., 290 S.W.3d at 357-58 (noting that “[t]he central holding of Lain ... is that sovereign immunity does not bar a plaintiff from suing a state official in possession of property that plaintiff claims to determine, as between those parties, which party has the superior title or right of possession” and to recover possession if plaintiff prevails); see also State v. Beeson, 232 S.W.3d 265, 271 n. 5 (Tex.App.-Eastland 2007, pet. abated) (stating that, in a trespass to try title action, “state officials named as defendants are not entitled to defeat the court’s subject[-]matter jurisdiction by asserting sovereign immunity”).

3. Duties of the Trial Court

For cases such as the one before us, the supreme court laid out the duties of the trial court:

When in this state the sovereign is made a party to a suit for land without legislative consent, its plea to the jurisdiction of the court based on sovereign immunity should be sustained in limine. But the cited cases clearly recognize that when officials of the state are the only defendants, or the only remaining defendants, and they file a plea to the jurisdiction based on sovereign immunity, it is the duty of the court to hear evidence on the issue of title and right of possession and to delay action on the plea until the evidence is in. If the plaintiff fails to establish his title and right of possession, a take nothing judgment should be entered against him as in other trespass to try title cases.[] If the evidence establishes superior title and right of possession in the sovereign, the officials are rightfully in possession of the sovereign’s land as agents of the sovereign and their plea to the jurisdiction based on sovereign immunity should be sustained. If, on the other hand, the evidence establishes superior title and right of possession in the plaintiff, possession by officials of the sovereign is wrongful and the plaintiff is entitled to relief. In that event the plea to the jurisdiction based on sovereign immunity should be overruled and appropriate relief should be awarded against those in possession.

Lain, 349 S.W.2d at 582. In cases such as this one, the trial court must take evidence on the issue of title and right of possession. Id. Thus, “Lain requires the trial court to hold an evidentiary hearing before ruling on an official’s plea to the jurisdiction .... ” Porretto v. Patterson, 251 S.W.3d 701, 711 (Tex.App.-Houston [1st Dist.] 2008, no pet.). In fact, the trial court has a “ ‘duty’ to decide the merits of the plaintiffs trespass-to-try-title claim in order to determine whether sovereign immunity applies.” BP Am. Prod. Co., 290 S.W.3d at 354 (citing Lain, 349 S.W.2d at 582).

4. Review of the Trial Court’s Actions

At the September 20, 2007 hearing, the trial court admitted Patterson’s evidence consisting of a judgment and a warranty deed purporting to represent Patterson’s title and right to possession of the property. Fleming did not object to the admission of this evidence. On November 5, 2007, without filing findings of fact or conclusions of law, the trial court granted Patterson’s plea to the jurisdiction.

“ ‘In a nonjury trial, where no findings of fact or conclusions of law are filed or requested, it will be implied that the trial court made all the necessary findings to support its judgment.’ ” Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 84-85 (Tex.1992) (quoting Burnett v. Motyka, 610 S.W.2d 735, 736 (Tex.1980)); see Stallworth v. Stallworth, 201 S.W.3d 338, 343-45 (Tex.App.-Dallas 2006, no pet.). In concluding that it did not have subject-matter jurisdiction, the trial court must have concluded that the State had superior title and right of possession and impliedly made all findings necessary to support that conclusion. See Holt Atherton Indus., 835 S.W.2d at 84-85.

“When the appellate record includes the reporter’s and clerk’s records, these implied findings are not conclusive and may be challenged for legal and factual sufficiency in the appropriate appellate court.” BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex.2002). However, “[w]hile implied findings may be challenged for legal and factual sufficiency, we do not determine the sufficiency of the evidence supporting the finding without such a challenge.” In re W.J.B., 294 S.W.3d 873, 880 (Tex.App.-Beaumont 2009, no pet.) (citing BMC Software, 83 S.W.3d at 795; Pat Baker Co. v. Wilson, 971 S.W.2d 447, 450 (Tex.1998) (“It is axiomatic that an appellate court cannot reverse a trial court’s judgment absent properly assigned error.”)); see Tex.R.App. P. 38.1(f); Sonat Exploration Co. v. Cudd Pressure Control, Inc., 271 S.W.3d 228, 236 (Tex.2008). Nonetheless, we must construe appellate briefs “reasonably, yet liberally, so that the right to appellate review is not lost by waiver,” and we “should reach the merits of an appeal whenever reasonably possible.” Perry v. Cohen, 272 S.W.3d 585, 587 (Tex.2008).

Fleming contends that his claim of title is based on a chain of title dating back at least 100 years and on adverse possession, referring us to his arguments presented in his response to the City’s no-evidence motion for summary judgment. In the “Statement of Facts” section of his appellate brief, Fleming states that “the trial court did not address the merits of the chain of title or adverse possession claims so these issues should not now be before this Court.” He also asserts that “[t]he only issue now before this Court should be whether the [tjrial [cjourt had jurisdiction. This is a legal issues [sic] unmixed by facts.... The [t]rial [c]ourt made no factual findings. This is simply a question of law.”

The remainder of Fleming’s brief presents his arguments regarding sovereign immunity and the propriety of bringing a lawsuit directly against Patterson. Other than stating that there are title issues remaining for resolution by the trial court, he does not mention the evidence presented by Patterson. He does not discuss or even allude to the sufficiency of that evidence. Thus, we find that Fleming has waived any complaint about the implied findings of the trial court. See In re W.J.B., 294 S.W.3d at 880; see also Alenia Spazio, S.p.A. v. Reid, 130 S.W.3d 201, 209 (Tex.App.-Houston [14th Dist.] 2003, no pet.) (finding that while appellants did not explicitly challenge the implied findings, they presented specific record citations to evidence directly contradicting the trial court’s implied findings and- therefore adequately challenged the sufficiency of the evidence underlying the implied findings); Berg v. AMF Inc., 29 S.W.3d 212, 216 n. 1 (Tex.App.-Houston [14th Dist.] 2000, no pet.) (holding that appellants’ failure to cite any authority or to the record to support their attempted challenge of the implied findings resulted in a waiver of their challenge). We overrule Fleming’s issue as it relates to Patterson.

III. City of Corpus Christi

The City asserts that Fleming’s lawsuit against it is barred by governmental immunity. Fleming sued only the “City of Corpus Christi”; he did not sue any City officials. Thus, the City reasons that under Lain, the outcome of the City’s plea to the jurisdiction must be different than that of Patterson. See Lain, 349 S.W.2d at 582; see also Bell v. State Dep’t of Highways & Pub. Transp., 945 S.W.2d 292, 294-95 (Tex.App.-Houston [1st Dist.] 1997, writ denied), abrogated in part by Harris County v. Sykes, 136 S.W.3d 635, 639-640 (Tex.2004).

As discussed previously, Lain requires that, in order to be able to present evidence regarding title rights, the plaintiff must sue the governmental officials, not merely the governmental unit. See BP Am. Prod. Co., 290 S.W.3d at 357-58. While we disagree with the City’s assertion that governmental immunity precludes a determination of title issues arising between govérnmental entities and individuals, we agree with it insofar as it argues that governmental immunity bars suit against the entity itself. Therefore, by failing to sue any City officials, Fleming failed to invoke the trial court’s jurisdiction to resolve his trespass to try title suit against the City. See Lain, 349 S.W.2d at 582; BP Am. Prod. Co., 290 S.W.3d at 357-58. We overrule Fleming’s issue as it relates to the City.

IV. Conclusion

Having overruled Fleming’s sole appellate issue, we affirm the trial court’s granting of the pleas to the jurisdiction.

      . The City also filed a no evidence motion for summary judgment to which Fleming filed a response. However, the trial court never ruled on the City’s motion.

      . There is some uncertainty in the record regarding the date of the hearing. The reporter's record for the hearing declares the date to be April 4, 2006, yet Fleming did not file his lawsuit until November 2006. Fleming asserted that, on April 4, 2007, in open court, he served on the defendants his "Supplemental Petition,” in which he named the "State Land Commissioner,” among other officials, as defendants. In response to the supplemental petition, Patterson filed his original answer and plea to the jurisdiction stating that a hearing had been held on April 4, 2007 to discuss the State’s plea to the jurisdiction. We believe that the date on the reporter’s record is a typographical error and that the hearing was on April 4, 2007.

      . In his original petition, Fleming stated:
      [t]he Court should enter declaratory judgment that the State of Texas and its lessee have no rights in the property at issue described in the attached deed. The State of Texas and its lessee purport to derive title from sources without title who fraudulently claim to have title. A judgment exists confirming the fraud with respect to most of the lots but not these lots....

        . This statement reflects the burden of proof in a trespass to try title case wherein the plaintiff has the burden to prove his own title and right of possession in the subject property and cannot prevail based entirely on inadequacies in the defendant's title. See State v. BP Am. Prod. Co., 290 S.W.3d 345, 353 n. 16 (Tex.App.-Austin 2009, pet. filed) (citing Stradt v. First United Methodist Church of Huntington, 573 S.W.2d 186, 189 (Tex.1978)).

      . In support of its argument, the City cites Gordon v. San Antonio Water Sys. Nos. 04-06-00699-CV, 04-06-00700-CV, 04-06-00701-CV, 04-06-00702-CV, 2007 WL 748692, at *2 (Tex.App.-San Antonio Mar. 14, 2007, pet. denied) (mem. op.). We conclude that Gordon is inapposite because, as the San Antonio Court of Appeals stated, "because [Gordon’s] claims seek to enforce rights Ihe] allege[s] to exist under the deeds, the trial court properly granted” the plea to the jurisdiction. Id. at *2. Thus, the San Antonio Court of Appeals characterized Gordon’s lawsuit as one based in contract, not in trespass to try title. Though we agree with the City that governmental immunity generally bars suit against the governmental entity, we disagree that Gordon mandates the conclusion that governmental immunity bars a trespass to try title action against governmental officials.


text:
    Eduardo SANDOVAL, Appellant, v. The STATE of Texas, Appellee.
    No. 08-08-00189-CR.
    Court of Appeals of Texas, El Paso.
    Feb. 26, 2010.
    Discretionary Review Refused June 9, 2010.
    Louis Elias Lopez, El Paso, for appellant.
    Jaime E. Esparza, District Attorney, El Paso, for State.
    Before CHEW, C.J., RIVERA, J., and MOODY, Judge.
   OPINION

GUADALUPE RIVERA, Justice.

The State indicted Eduardo Sandoval, Appellant, for two counts of felony murder, with both counts alleging driving while intoxicated third or more as the underlying felony, and for two counts of failure to stop and comply in an accident involving personal injury or death. The jury found Appellant guilty on all counts and assessed sentence at forty years’ confinement for each count of felony murder, and five years’ confinement for each count of failure to stop and comply. In his sole issue on appeal, Appellant challenges the trial court’s denial of his motion to quash the indictment. We affirm.

BACKGROUND

The facts are well known to the parties, and we do not recite them here in detail. An abbreviated recitation shows that in the early morning hours on March 14, 2007, Appellant, traveling at about 65 miles per hour in his truck, ran a red light at the intersection of Cincinnati Street and Mesa Street, struck two pedestrians, and sped off. When the police located Appellant shortly thereafter, they detected a strong odor of alcohol emitting from his person. At 4:35 a.m., a blood sample was taken, and subsequent analysis revealed that Appellant’s blood-alcohol content was 0.23. Appellant later provided a written statement, admitting to drinking and to striking the two victims.

ANALYSIS

Appellant’s sole issue contends that the trial court abused its discretion by denying his motion to quash the felony-murder counts in the indictment. According to Appellant, all driving-while-intoxicated offenses are misdemeanors at the time they are committed, and therefore, he concludes that driving while intoxicated at the time he struck the victims could not support the underlying felony for felony murder. See Tex. Penal Code Ann. § 19.02(b)(3) (Vernon 2003) (stating a person commits murder if he commits or attempts to commit a felony, “and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual”). To support his argument, Appellant seizes on language in Section 49.09 of the Texas Penal Code, to argue that a driving-while-intoxicated offense is not a felony at the time of its commission unless it is proved at trial that he was convicted twice before of an intoxication offense involving the operation of a motor vehicle, aircraft, watercraft, or amusement ride. See Tex. Penal Code Ann. § 49.09(b)(2) (Vernon 2003) (stating that a driving-while-intoxicated offense is a felony of the third degree if it is shown “on the trial of the offense” that the person was previously convicted twice before of any other offense relating to the operating of a motor vehicle, aircraft, or a watercraft while intoxicated, or operating or assembling an amusement ride while intoxicated). We disagree.

In Mendoza, we concluded that a felony driving-while-intoxicated offense may serve as the requisite underlying felony in a felony-murder prosecution. See Mendoza v. State, No. 08-04-00369-CR, 2006 WL 2328508, at *4 (Tex.App.-El Paso Aug. 10, 2006, pet. ref'd) (op., not designated for publication) (holding that felony driving while intoxicated is not a Iesser-included offense of manslaughter, nor does it require a culpable mental state; therefore, felony driving while intoxicated may be the underlying felony for the offense of felony murder, which also dispenses with a culpable mental state). The Court of Criminal Appeals recently reached the same conclusion. See Lomax v. State, 233 S.W.3d 302, 311 (Tex.Crim.App.2007) (holding that because the felony-murder statute does not require a culpable mental state, a felony driving-while-intoxicated offense, which also does not require proof of a culpable mental state, may serve as the underlying felony). However, Judge Johnson, in a dissenting opinion, argued that a person, upon causing a death resulting from driving while intoxicated, should not be prosecuted under the felony-murder statute because it is not known at the time of the offense whether the driving-while-intoxicated offense is a felony or a misdemeanor. Id. at 313 (Johnson, J., dissenting).

We respectfully disagree with Judge Johnson. Although Section 49.09 provides that a driving-while-intoxicated offense is a felony “if it is shown on the trial of the offense” that the offender was convicted twice before of driving while intoxicated, we do not believe the plain language of the statute labels the offense a misdemeanor at the time of its commission. See Tex. Penal Code Ann. § 49.09(b)(2). Rather, the statute provides that the offense is a felony, and the fact that the prior convictions are not proven until the trial does not alter the nature of the offense. Id.; see also Jones v. State, No. 14-06-00879-CR, 2008 WL 2579897, at *3 (Tex.App.-Houston [14th Dist.] July 1, 2008, pet. refd) (mem. op., not designated for publication) (rejecting similar complaint).

As noted in Stri.ckla.nd, a driving-while-intoxicated offense third or more is not merely a misdemeanor with an enhanced punishment. See Strickland v. State, 193 S.W.3d 662, 665 (Tex.App.-Fort Worth 2006, pet. ref'd). Instead, the offense is a felony, and the prior intoxication offenses are simply necessary elements to prove the charged offense. Accord Gibson v. State, 995 S.W.2d 693, 696 (Tex.Crim.App.1999); see also Luedke v. State, 711 S.W.2d 657, 659 (Tex.Crim.App.1986) (recognizing that felony and misdemeanor DWI are separate offenses because “[a] prior conviction is an essential element of felony driving while intoxicated,” but “[i]t is not an element of the misdemeanor offense”). In Jones, the court determined that the felony offense of driving while intoxicated is committed and completed when the offender drives while intoxicated, while having two prior convictions for driving while intoxicated; “[i]t is not completed months later at trial when those prior DWI convictions are actually proven.” Jones, 2008 WL 2579897, at *3.

We agree with our sister courts. Accordingly, we hold that the felony offense of driving while intoxicated was completed at the time Appellant, having two previous convictions for driving while intoxicated, drove while intoxicated. Therefore, Appellant’s felony driving-while-intoxicated offense properly satisfied the requisite felony for felony murder. The trial court did not err by denying Appellant’s motion to quash, and Appellant’s sole complaint is overruled.

CONCLUSION

Having overruled Appellant’s sole issue, the trial court’s judgment is affirmed.

MOODY, Judge, sitting by assignment.


text:
    OLIPHANT FINANCIAL L.L.C., Appellant, v. Stephen L. HILL, Appellee.
    No. 08-08-00145-CV.
    Court of Appeals of Texas, El Paso.
    March 10, 2010.
    Andrew E. Lemanski, Houston, TX, for Appellant.
    Stephen L. Hill, Dallas, TX, pro se.
    Before McCLURE, J., RIVERA, J., and CHEW, Judge.
   OPINION

GUADALUPE RIVERA, Justice.

This is an appeal from the court’s order dismissing Oliphant Financial L.L.C.’s suit to recover on amounts due for failure to pay on a revolving credit account for want of prosecution.

BACKGROUND

On August 15, 2007, Appellant (Oli-phant) filed its suit against Stephen L. Hill to recover an amount due for failure to pay on a revolving credit account. Pursuant to Rule 165a of the Texas Rules of Civil Procedure and the court’s procedures, in a letter dated August 17, 2007, the court set the case for dismissal hearing for November 16, 2007. On November 16, 2007, a second letter notice of a 165a dismissal hearing set for December 7, 2007 was sent to Appellant. On November 17, 2007, Appellant made substituted service. The record shows that Hill neither answered nor appeared. On December 7, 2007, the court gave letter notice of a third dismissal hearing pursuant to Rule 165a set for December 28, 2007. The record does not indicate nor does Appellant state it appeared at these hearings. On December 27, 2007, Appellant filed its motion for .default judgment. On December 28, 2007, a fourth notice for dismissal hearing under Rule 165a issued setting a date of January 25, 2008. Again the record does not indicate nor does Appellant argue that it appeared on January 25, 2008. On January 4, 2008, the court returned the proposed default judgment indicating deficiencies in the pleadings. On January 22, 2008, Appellant filed a second motion for default judgment. On February 18, 2008, the court dismissed the cause without prejudice for two reasons: (1) failure to take action after notice of intent to dismiss for want of prosecution in accordance with a Rule 165a letter; and (2) dismissal for want of prosecution. On February 21, 2008, Appellant filed a third motion for default judgment. Appellant filed a motion to reinstate on March 17, 2008, and the court’s docket sheet indicates that this motion was denied on April 16, 2008.

DISCUSSION

In its sole issue, Oliphant maintains that it is entitled to a default judgment on liquidated damages because its pleadings support the judgment, damages were readily ascertainable, and deemed admissions supported the entry of default judgment. Oliphant maintains it is entitled to a default judgment on liquidated damages, and attorney’s fees. Further, it contends that it should not have its case dismissed for want of prosecution because the trial court has additional requirements for granting default judgments beyond what is required by law.

Rule 165a allows a trial court to dismiss a case sua sponte when a party seeking affirmative relief fails to appear for a hearing of which it has notice or when the case is not disposed of within the time standards promulgated by the Supreme Court. Tex.R. Civ. P. 165a(l), (2); Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex.1999); Oliphant Financial LLC v. Angiano, 295 S.W.3d 422, 424 (Tex.App.-Dallas 2009, no pet. h.). “In addition, the common law vests the trial court with the inherent power to dismiss independently of the rules of procedure when a plaintiff fails to prosecute his or her case with due diligence.” Villarreal, 994 S.W.2d at 630.

As a general proposition, an appellant must attack all independent bases or grounds that fully support a complained-of ruling or judgment. Britton v. Tex. Dept. of Criminal Justice, 95 S.W.3d 676, 681 (Tex.App.-Houston [1st Dist.] 2002, no pet.); see also Old Republic Ins. Co. v. Sisavath, No. 05-07-01391-CV, 2008 WL 4695491, at *2 (Tex.App.-Dallas Oct. 27, 2008, no pet.) (mem. op.). If an appellant fails to do so, then we must affirm the ruling or judgment. Britton, 95 S.W.3d at 681. This proposition is predicated upon the understanding that if an independent ground fully supports the complained-of ruling or judgment, but the appellant assigns no error to that independent ground, then we must accept the validity of that unchallenged independent ground; thus, any error in the grounds challenged on appeal is harmless because the unchallenged independent ground fully supports the complained-of ruling or judgment. Id.

In its supplemental brief, Oliphant states that “certain opinions have seemed to indicate that parties must secure a hearing before they are entitled to challenge the denial of a default judgment on appeal.” Appellant then argues that a hearing is unnecessary because the trial court does not allow hearings on default judgments unless specified by the court.

Appellant does not address the trial court’s two reasons for dismissal: (1) it failed to take action after notice of intent to dismiss for want of prosecution in accordance with a Rule 165a letter and; (2) for want of prosecution. Even if we liberally construe Oliphant’s statement that the court has additional requirements for granting default judgments beyond what is required by law as somehow contesting the court’s two reasons for dismissal, it is (1) unsupported by record references and (2) not supported by an explanation of how legal authorities apply to these facts. As a result, Oliphant has waived the issue through inadequate briefing. See Tex. R.App. P. 38.1(h)(i); Town of Flower Mound v. Teague, 111 S.W.3d 742, 766 (Tex.App.-Fort Worth 2003, pet. denied). Further, by inadequately briefing the two grounds for dismissal, Oliphant has effectively failed to challenge independent grounds in support of the trial court’s ruling. Crown Asset Mgmt. L.L.C. v. Savage, No. 05-07-01475-CV, 2009 WL 2414482, at *1 (Tex.App.-Dallas Aug. 7, 2009, no pet. h.). Accordingly, we overrule Oliphant’s sole issue on appeal.

CONCLUSION

We affirm the court’s order dismissing the motion for default judgment.

CHEW, Judge, sitting by assignment.

      . Hill did not file a brief.

      . Appellant has attached the court's procedures to its supplemental brief. We have taken judicial notice of the court's procedures set out in the court’s website www.judged. metriabenson.com. The court’s procedures require all newly filed cases be given a dismissal date 120 days after the filing date. Prior to the dismissal hearing date, the responsible party must have moved for and proved up a default judgment. Failure to do so results in a dismissal. This language is also set out in the court’s letter notice.

      . The court’s procedures require the responsible party appear at the dismissal hearing if process of service is not complete or if a default judgment has not been granted prior to the dismissal hearing date. A motion to retain with an affidavit of due diligence must be filed and set for hearing prior to the dismissal hearing.

      . Under the heading "Substantive Issues,” the court indicated that: (1) Petition does not give fair notice of claim against Defendant; (2) Judgment relied on causes of action that are not adequately pleaded; (3) Damages cannot be accurately calculated, no written instrument attached to petition; (4) No evidence of sale and delivery of merchandise or performance of services; (5) No evidence that the amount of the account or price charged is in accordance with an express contract or is usual, customary and reasonable; (6) No evidence of a systematic record kept and supported by an affidavit; (7) Other: RFA's (Request for Admissions) defective.


author: Opinion by Chief Justice VALDEZ.

text:
    PADRE BEHAVIORAL HEALTH SYSTEM, LLC, et al., Appellants, v. Lecia L. CHANEY, et al., Appellees.
    No. 13-09-00495-CV.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    March 11, 2010.

      Donald M. Hudgins, Nicole J. Petrelli, The Hudgins Law Firm, Houston, Carlos Villarreal, Richard C. Woolsey, Herman-sen, McKibben, Woolsey & Villarreal, William J. Granberry, Brin & Brin, P.C., Corpus Christi, Diana L. Faust, Cooper & Scully, Dallas, for Appellants.
    Curtis L. Cukjati, Martin, Cukjati & Richman, LLP, Laura R. Pazin Porter, Elizabeth Conry Davidson, Mark D. Wolfe, J. Thomas Rhodes, III, Rhodes & Vela, San Antonio, for Appellees.
    Before Chief Justice VALDEZ and Justices GARZA and BENAVIDES.
   OPINION

Opinion by Chief Justice VALDEZ.

Appellants, Padre Behavioral Health System, LLC; Padre Behavioral Hospital, in its assumed and common name; Continuum Padre, LLC; Samuel Ganz, D.O.; and James M. May, M.D., appeal from the trial court’s denial of motions to dismiss the lawsuit brought by, Lecia L. Chaney, individually and as independent executrix of the estate of Stuart A. Chaney, deceased, and as next friend of Elizabeth Chaney and Elliott Chaney, minors; and Ernie J. Chaney, M.D., individually. By one issue, appellants argue that the trial court erred in denying them motions to dismiss because appellees failed to serve on appellants an expert report within 120 days of filing suit. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a) (Vernon Supp. 2009). We affirm.

I. Background

This appeal arises from the death of Stuart as a result of allegedly negligent care for Stuart’s opioid dependence and the dispensing of excessive prescriptions for treatment of a painful foot condition. Appellees filed their original petition on May 27, 2008, asserting health care liability claims against Los Ebanos Pharmacy, LLC; Los Ebanos Pharmacy, in its assumed or common name; Robert J. De La Chica, R. Ph.; Richard J. Stachowiak, R. Ph.; Price Village Pharmacy, in its assumed or common name; Juan Humberto Cavazos, R. Ph.; Jesus A. Caquias, M.D.; and Price Village Family Medical Clinic, Inc. Appellants were not joined as parties to the suit until appellees filed their third amended petition on January 8, 2009.

The crux of this appeal pertains to the timeliness of appellees’ service of expert reports on appellants. The record reflects that appellees served appellants with the expert reports of Cheryé C. Callegan, M.D., and Paul W. Diabel, M.D., on April 16, 2009. Appellants filed numerous objections and motions to dismiss appellees’ claims, alleging, among other things, that appellees did not timely serve the expert reports of Drs. Callegan and Diabel within the 120-day period provided by law. See id. § 74.351(b). Specifically, appellants asserted that the 120-day period began to run from the date appellees filed their original petition, May 27, 2008, not from the date of appellees’ third amended petition. See id. § 74.351(a). Therefore, based on appellants’ contention, appellees were required to serve their expert reports on or about September 24, 2008, a date which preceded appellants’ addition as a party in the case. The trial court denied appellants’ objections and motions to dismiss, and this accelerated interlocutory appeal ensued. See Tex.R.App. P. 28.1; see also Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(9) (Vernon 2008) (providing for interlocutory appeal of an order denying all or part of relief sought by a motion brought under section 74.351(b) of the civil practice and remedies code).

II. Standard of Review

We review a trial court’s decision to deny a motion to dismiss a health care liability claim under an abuse of discretion standard. See Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex.2006); see also Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex.2001). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner or without reference to any guiding rules or principles. Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex.2008); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985). To the extent resolution of this issue requires interpretation of the statute, we apply a de novo standard of review. See Pallares v. Magic Valley Elec. Coop., 267 S.W.3d 67, 69-70 (Tex.App.-Corpus Christi 2008, pet. denied) (citing Buck v. Blum., 130 S.W.3d 285, 290 (Tex.App.-Houston [14th Dist.] 2004, no pet.); Ponce v. El Paso Healthcare Sys., Ltd., 55 S.W.3d 34, 36 (Tex.App.-El Paso 2001, pet. denied)).

III. Analysis

By their sole issue, appellants argue that appellees did not timely serve their expert reports with the 120-day period prescribed by section 74.351(a); thus, the trial court abused its discretion in denying appellants’ motions to dismiss. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a). Specifically, appellants argue that the 120-day period began when appellees filed their original petition, even though appellants were not named as parties at that time. See id. According to appellees, the 120-day period began to run when appellants were first named as parties to the suit in appellees’ third amended petition filed on January 8, 2009, and therefore, the appellees’ service of their expert reports on April 16, 2009, was well within the 120-day period. See id.

A. Applicable Law

1. Statutory Construction

The legislature has directed that “[i]n interpreting a statute, a court shall diligently attempt to ascertain legislative intent and shall consider at all times the old law, the evil, and the remedy.” Tex. Gov’t Code Ann. § 312.005 (Vernon 2005). Statutes must be construed as written, and legislative intent determined, if possible, from their express terms. Simonson v. Keppard, 225 S.W.3d 868, 879 (Tex.App.Dallas 2007, no pet.) (citing Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex.2001)). Chapter 74, in its entirety, rather than provisions in isolation, must be considered, and meaning given to each provision consistent with all others. Id.

Courts presume that the entire statute is to be effective and a just and reasonable result is intended. Id. “Even if a statute is unambiguous, courts may consider the statute’s objective; circumstances of its enactment; its legislative history; ... [and] consequences of a particular construction....” Univ. of Tex. Health Sci. Ctr. at Houston v. Gutierrez, 237 S.W.3d 869, 873 (Tex.App.-Houston [1st Dist.] 2007, pet. denied) (citing Simonson, 225 S.W.3d at 880). Any words used or omitted are presumed used and omitted purposefully. Id. (citing Simonson, 225 S.W.3d at 880; Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 540 (Tex.1981)). When the legislature enacted chapter 74, it made several findings. See Tex. Civ. Prac. & Rem.Code Ann. § 74.001 historical note (Vernon 2005) [Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.11, 2003 Tex. Gen. Laws 847, 884], The legislature’s findings included: (1) the number of health care liability claims had increased inordinately since 1995; (2) a medical malpractice crisis existed in Texas; and (3) the crisis had caused a material adverse effect on the delivery of medical and health care in Texas. Id. Thus, the legislature enacted chapter 74 to reduce the excessive frequency, severity, and costs of health care liability claims. Id,.; see Gutierrez, 237 S.W.3d at 873 (citing In re Raya, 216 S.W.3d 404, 406 (Tex.App.-Eastland 2006, pet. denied)).

2. Chapter 74 of the Texas Civil Practice and Remedies Code

The parties do not dispute that appellants are health care providers and that appellees’ claims are health care liability claims within the context of chapter 74 of the civil practice and remedies code. See Tex. Civ. Prag & Rem.Code ANN. § 74.001(a)(ll)-(13) (Vernon 2005). A plaintiff asserting a health care liability claim must provide each defendant physician and health care provider an expert report containing the expert’s curriculum vitae and

a fair summary of the expert’s opinions as of the date of the report regarding the applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed.

Id. § 74.351(a), (r)(6); see Palacios, 46 S.W.3d at 877. Specifically, section 74.351(a) provides that:

In a health care liability claim, a claimant shall, not later than the 120th day after the date the original petition was filed, serve on each party or the party’s attorney one or more expert reports, with a curriculum vitae of each expert listed in the report for each physician or health care provider against whom a liability claim is asserted.

Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a) (emphasis added); see Fulp v. Miller, 286 S.W.3d 501, 506-07 (Tex.App.-Corpus Christi 2009, no pet.). If claimant fails to serve an expert report on the defendant physician or health care provider within the period specified by subsection (a) of section 74.351, then, on the motion of the affected physician or health care provider, the trial court shall dismiss claimant’s claim with prejudice and award reasonable attorney’s fees and costs of court to the affected physician or health care provider. See Tex. Civ. PRAC. & Rem.Code Ann. § 74.351(b). On appeal, appellants do not challenge the sufficiency of appellees’ expert reports; instead, appellants challenge the timeliness of appellees’ service of then-expert reports under the language of section 74.351(a) governing when such reports should be filed.

B. Methodist Charlton Medical Center v. Steele

In arguing that the 120-day period began to run when appellees filed them original petition, appellants rely heavily on the Dallas Court of Appeals’s reasoning in Methodist Charlton Medical Center v. Steele, 274 S.W.3d 47, 50-51 (Tex.App.Dallas 2008, pet. denied). In Steele, plaintiffs filed suit against several parties on September 21, 2006, alleging that defendants “failed to promptly assess, triage, and treat” Felicia Steele in the emergency room, which resulted in Felicia “having permanent neurologic deficits from a stroke.... ” Id. at 48. Plaintiffs timely served their expert reports on the parties named in the original petition. Id. Plaintiffs later amended their petition to add Methodist Dallas Medical Center (“Methodist”) as a defendant and served expert reports on Methodist on February 14, 2007. Id. Plaintiffs amended their petition a second time, on June 11, 2007, to add direct claims against all of the defendants for negligent hiring, supervision, training, and retention. Id. at 49. However, plaintiffs failed to serve expert reports regarding the newly-added direct claims. Id. Defendants filed motions to dismiss the newly-added direct claims, alleging that “the trial court was required to dismiss those claims because appellees failed to serve expert reports addressing the additional causes of action within 120 days after the original petition was filed.” Id. The trial court denied the motions to dismiss, and defendants filed an interlocutory appeal. Id.

In analyzing whether the trial court abused its discretion in denying defendants’ motions to dismiss for failing to timely file expert reports on the newly added direct claims, the Dallas Court of Appeals engaged in a discussion about the construction of section 74.351(a) and the legislature’s intent in promulgating that section. The Steele court noted that “[t]he plain language of the statute [section 74.351(a) ] requires appellees to serve an expert report on each physician or health care provider against whom a liability claim is asserted within 120 days of filing their original petition. The plain language of the statute also requires such a report for each health care liability claim.” Id. at 50 (emphasis in original.) The court went on to hold that the trial court was required to dismiss the newly added direct claims because plaintiffs failed to file an expert report addressing those claims. Id. In dicta, the court further noted the following in rejecting appellees’ argument that this interpretation of the statute was contrary to the intent of the legislature:

The purpose behind section 74.351(a)’s adoption was, among other things, to remove unwarranted delay and expense, to accelerate the disposition of non-meritorious cases, and to give hard-and-fast deadlines for the serving of expert reports. The 2003 amendments created a statute-of-limitations-type deadline within which expert reports must be served. This strict 120-day deadline can lead to seemingly harsh results. Nonetheless, the legislature imposed the deadline as part of its effort to reduce excessive frequency ... of health care liability claims.
The purpose behind the 2005 amendment to section 74.351(a), requiring expert reports to be served within 120 days of filing the original petition rather than within 120 days of filing a health care liability claim, was to clarify the timing of when an expert report is due. The legislative intent is that the timing for expert reports be triggered by the filing of the lawsuit. The effect of the 2005 amendment not only clarifies the timing of when an expert report is due, it also necessarily limits the time for a party to add claims without the possibility of dismissal for failing to serve an expert report 120 days from filing the original petition. Thus, this amendment leads to even harsher results than the 2003 amendments. Nevertheless, the deadline again serves the legislature’s effort to reduce excessive frequency ... of health care liability claims.
The goals of accelerating the disposition of non-meritorious cases and having hard-and-fast deadlines for service of expert reports, as well as the purpose of requiring service of an expert report at all, would be completely undermined if, as appellees suggest, a party had only to wait more than 120 days after filing their petition, amend the petition adding new claims, and then avoid having to serve an expert report regarding the amended claims. Neither the plain language of section 74.351(a) nor the legislative purpose behind it supports such a reading, and we reject appellees’ argument to the contrary.

Id. at 50-51 (internal citations and quotations omitted).

We do not believe the Steele case is persuasive in this matter. First, in Steele, the court of appeals addressed a situation where plaintiff added new claims against pre-existing defendants after the 120-day period had passed against those pre-exist-ing defendants. Thus, the focus of the inquiry in Steele was on the newly added claims, not on any newly-added parties, as here. In fact, the Steele court noted that plaintiffs amended their petition to add the new claims against Methodist, a party that had been added previously as a party to the suit, 236 days after plaintiffs’ original petition had been filed. Id. at 49. In the present case, appellees amended their petition to add new claims against appellants, making them new parties to the suit, and timely served the reports within 120 days of filing their “original petition” specifically asserting liability against appellants. Further, plaintiffs in Steele failed to serve any expert reports regarding their newly added claims, and the court of appeals analyzed whether plaintiffs were required to submit expert reports on the newly added claims and when such reports would be due; whereas appellees, in the instant case, filed, expert reports within 120 days of appellants being joined as parties to the suit. Id. at 49-51.

C. Osonma v. Smith

Appellees, on the other hand, direct us to a case from the San Antonio Court of Appeals, which recently addressed a situation virtually identical to the case at bar. See Osonma v. Smith, No. 04-08-00841-CV, 2009 WL 1900404, at *1-3, 2009 Tex.App. LEXIS 4959, at *3-6 (Tex.App.-San Antonio July 1, 2009, pet. denied) (mem. op.). In Osonma, plaintiff “filed her original petition naming as defendants Methodist Hospital, The Hand Center, P.A. d/b/a The Hand Center of San Antonio, and David W. Person, M.D.” on January 22, 2008. Id. at *1, 2009 Tex.App. LEXIS 4959, at *3. However, plaintiff amended her petition on April 3, 2008, adding Timothy Osonma, M.D., and his employer, IPC, as defendants. Id. Plaintiff subsequently served her expert reports on Dr. Osonma and IPC on June 2, 2008. Id. On appeal, Dr. Osonma and IPC argued that plaintiffs expert reports were untimely served because the 120-day period was triggered by plaintiffs filing of her original petition on January 22, 2008. Id. at *1-2, 2009 Tex.App. LEXIS 4959, at *3-4. In concluding that plaintiffs expert reports were timely served, the Osonma court noted the following:

Section 74.351(a)’s requirement that a plaintiff serve an expert report explaining each defendant physician or health care provider’s liability within 120 days from the filing of the original petition does not necessarily refer to the first-filed petition in the lawsuit; it refers to the first-filed petition naming that defendant physician or health care provider as a party to the lawsuit.
Further, we note that adopting Dr. Osonma and IPC’s interpretation of the statute would lead to absurd results: after more than 120 days after filing a lawsuit even if the statute of limitations period had not expired, a plaintiff could never add another physician or health care provider as a defendant because she would never be able to timely serve an expert report on such a defendant.

Id. at *2, 2009 Tex.App. LEXIS 4959, at *4. The Osonma court further examined the legislature’s intent in amending section 74.351(a) to substitute the language “the original petition was filed” for “the claim was filed” by referencing the following bill analysis written by the Civil Practices Committee regarding the bill amending section 74.351(a):

Since the passage of H.B. [House Bill] 4 in the 78th Session, there has been some confusion regarding the timing of when an expert report is due on a medical malpractice case. Some have argued that the report is due 120 days from the date of the statutory notice letter, instead of 120 days from the date of the filing of the original petition. It was the intent of H.B. 4 that the report be triggered by the filing of the lawsuit.

Id. at *2, 2009 Tex.App. LEXIS 4959, at *5 (quoting House Comm, on Civil Practices, Bill Analysis, Tex. H.B. 2645, 79th Leg., R.S. (2005)). In reconciling the language contained in section 74.351(a) and the bill analysis written by the Civil Practices Committee, the Osonma court noted that:

It appears that the legislature was concerned about arguments that the report would be due 120 days from the date of the statutory notice letter; we find no support for Dr. Osonma and IPC’s argument that in amending section 74.351(a), the legislature sought to clarify that the 120-day period was triggered by the first-filed petition, even if the defendant physician or health care provider was not named as a party in that first-filed petition.

Id. at *2, 2009 Tex.App. LEXIS 4959, at ⅜5-6. As a result, the Osonma court concluded that the 120-day period began to run when defendants were first named as parties to the suit, and therefore, plaintiff timely served defendants with her expert reports. See id. at *3, 2009 Tex.App. LEXIS 4959, at *6.

D. Discussion

We agree with the San Antonio Court of Appeals’ reasoning in Osonma that the 120-day period is triggered by the first-filed petition naming the defendant physician or health care provider. Accordingly, we hold that the 120-day period in the case at bar began to run when appellants were first named as defendants on January 8, 2009; therefore, appellees’ April 16, 2009 service of their expert reports on appellants was timely.

To hold otherwise, as stated by the Osonma court, “would lead to absurd results: after more than 120 days after filing a lawsuit, even if the statute of limitations period had not expired, a plaintiff could never add another physician or health care provider as a defendant because she would never be able to timely serve an expert report on such a defendant.” Id. at *2, 2009 Tex.App. LEXIS 4959, at *4. In fact, if we were to conclude, in this case, that the 120-day period as applied to appellants was triggered by appellees’ original petition filed May 27, 2008, which was within the applicable two-year limitations period, see Tex. Civ. Prac. & Rem.Code Ann. § 74.251(a) (Vernon 2005), then appellees would have been precluded from joining other responsible parties to the litigation and asserting potentially meritorious claims that were uncovered later in the discovery process. We do not believe such an interpretation was intended by the legislature, and appellants have not directed us to any relevant authority that the legislature intended as such. See Palacios, 46 S.W.3d at 879 (stating that the purpose of the expert report is to: (1) inform the defendant of the specific conduct the plaintiff has called into question; and (2) provide a basis for the trial court to conclude whether the claims have merit); see also Schmidt v. Dubose, 259 S.W.3d 213, 218 (Tex.App.-Beaumont 2008, no pet.) (recognizing the trial court serves as a gatekeeper with respect to section 74.351(a)’s expert-report requirement and noting that subsequent expert reports and opinions are governed by the rules of discovery set forth generally in the rules of civil procedure); Gutierrez, 237 S.W.3d at 873.

Furthermore, contrary to appellants’ assertions, we do not believe that the impact of our holding frustrates the legislature’s purpose to “remove unwarranted delay and expense, to accelerate the disposition of non-meritorious cases, and to give hard- and-fast deadlines for the serving of expert reports” so long as each affected physician or health care provider, in a health care liability claim, is provided an expert report, delineating the applicable standard of care, how that standard of care was breached, and how the breach of the standard of care proximately caused the injuries sustained, within 120 days of the claimant’s lawsuit against the particular defendant. See Tex. Civ. Prag. & Rem.Code ANN. § 74.351(a), (r)(6); Steele, 274 S.W.3d at 50 (citing Intracare Hasp. N. v. Campbell, 222 S.W.3d 790, 797 (Tex.App.-Houston [1st Dist.] 2007, no pet.)); see also Osonma, 2009 WL 1900404, at *2-3, 2009 Tex.App. LEXIS 4959, at *4-6. We therefore conclude that the trial court did not abuse its discretion in denying appellants’ motions to dismiss. See Jernigan, 195 S.W.3d at 93; see also Palacios, 46 S.W.3d at 878. We overrule appellants’ sole issue on appeal.

IV. CONCLUSION

Having overruled appellants’ sole issue on appeal, we affirm the judgments of the trial court denying appellants’ motions to dismiss.

      . In appellees' third amended petition and in an expert report provided by Cheryé C. Calle-gan, M.D., it was alleged that Padre Behavioral Hospital was negligent in refusing to treat Stuart when he first presented himself on October 29, 2006. Stuart was later admitted to the hospital at 8:45 a.m. on October 30, 2006, with an admitting diagnosis of opioid dependence. While at the hospital and under the care of Drs. Ganz and May, Stuart was evaluated, and it was observed that Stuart had blue lips, was mumbling, had slurred speech, and had labored breathing. Stuart was quickly assessed by nurses, who determined that Stuart was simply going through withdrawals, and was placed in a room at the hospital. Later, at 5:25 p.m. on October 30, 2006, Stuart was discovered unresponsive on the bathroom floor in his room. At 6:10 p.m. on the same day, Stuart was pronounced dead of congestive heart failure.

      . None of the defendants listed in appellees' original petition are parties to this appeal.


text:
    Walter HOLCOMBE, Sharon Holcombe, Yvonna Johnson, Scott Johnson, and Lyla Beth Collier, Appellants, v. REEVES COUNTY APPRAISAL DISTRICT, Appellee.
    No. 08-08-00321-CV.
    Court of Appeals of Texas, El Paso.
    March 17, 2010.

      Scott Johnson, Pecos, for appellants.
    Kirk Swinney, Round Rock, for appellee.
    Before CHEW, C.J., McCLURE, and RIVERA, JJ.
   OPINION

GUADALUPE RIVERA, Justice.

Appellants, Walter Holcombe, Sharon Holcombe, Scott Johnson, Yvonna Johnson, and Lyla Beth Collier, appeal the trial comb’s verdict in favor of Reeves County Appraisal District (RCAD), following their suit protesting increased property values. We affirm.

BACKGROUND

Complaining of RCAD’s decision to increase their property values by 80 percent for ad valorem tax purposes in the 2007 and 2008 tax years, Appellants filed suit contending the increases were arbitrary and capricious, and without just cause. RCAD denied the allegations and moved for a no-evidence summary judgment, claiming Appellants failed to produce any experts or other competent evidence concerning the market value of its properties for the tax years at issue. Appellants responded that expert testimony was not required to establish market value, but they nonetheless designated themselves as experts to testify as to the market value of their properties. The trial court did not rule on the motion, and thus, the case proceeded to a bench trial.

At trial, Carol Markham, the Chief Appraiser for RCAD for the past 27 years, testified that the real estate market was booming in 2007 and 2008. Although she tried to keep the appraised property values low for tax purposes, the market kept rising and the Comptroller told her to raise the values or the county would lose school funding. Accordingly, despite any increases for 2006, for 2007, Markham gathered comparable sales for the past three years in determining each property’s value and raised all property values by 30 percent, except those in the “very poor areas.” Unfortunately, the increases were not sufficient to retain school funding.

Turning to Appellants’ properties, Markham assessed the value of each property by gathering three years of comparable sales based on age, class, and depreciation. For the 2007 and 2008 tax years, Markham determined that Scott and Yvonna Johnson’s property value was at least $90,320, that Lyla Collier’s properties were valued at $41,790 and $27,690, and that Walter and Sharon Holcombe’s property value was $96,140. Appellants disputed the property values, testifying, without any reference to specific sales of other similar homes, that they could not sell their houses for the appraised values. However, Valera Gatewood, a veteran real-estate broker, disagreed and testified that each property was appraised below market value, presenting evidence of several comparable homes that sold for much more than what Markham valued Appellants’ properties at.

The trial court rendered final judgment for RCAD. On Appellants’ request, the trial court issued findings of fact and conclusions of law. The trial court found that the property values were at least the values assessed by RCAD on January 1, 2007, and January 1, 2008, and concluded that Appellants failed to present legally sufficient evidence to show their properties were appraised unequally under Section 42.26 of the Texas Tax Code. In passing, the court noted that market value “is the price at which a property would transfer for cash or its equivalent under prevailing market conditions if exposed for sale in the open market with a reasonable time for the seller to find a purchaser; both the seller and the purchaser know of all the uses for which it is capable of being used and of the enforceable restrictions on its use; and both the seller and the purchaser seek to maximize their gains and neither is in a position to take advantage of the exigencies of the other.”

ANALYSIS

Appellants’ first issue alleges that RCAD’s increased assessments were dis-criminately imposed on certain classes of property to the exclusion of others, and their second issue contends that the increases were unlawful when they, being over 65 years of age, froze their school taxes. Finding Appellants’ former assertion was never made to the trial court and that Appellants’ second complaint is inadequately briefed, we do not reach the merits of either argument but rather overrule them on procedural grounds.

DISCRIMINATION

In their first issue, Appellants assert that they are entitled to relief based on a “discriminatory assessment,” arguing that RCAD cannot “lawfully discriminate in favor of one group of property owners and against another group.” Appellants note that the Chief Appraiser only increased valuations as to certain classes of property — Class C to AAA — while the “ ‘poorer’ houses were not increased in value.” Thus, Appellants conclude that the “increase in a class of properties while refusing to reassess other classes of properties is clearly discriminatory and ... void.”

Applicable Facts

During the trial, Appellants’ focused on four arguments: (1) whether RCAD’s reason for increasing property values was valid; (2) whether RCAD considered comparable sales in assessing property values; (3) whether their properties were worth the values RCAD assessed; and (4) whether RCAD could increase property values, and ergo, their taxes, despite filed exemptions claiming they were over 65 and had frozen their school taxes. Indeed, Appellants’ questioning concerned RCAD’s reason for increasing the value of their properties, that is, that the State Comptroller threatened loss of school funding if property values stayed the same, complaining that was not a valid basis for increasing their property values. Appellants also focused on RCAD’s alleged improper assessment of their property values by increasing the same before considering any comparables. Additionally, Appellants’ testimonies challenged the assessed values of their properties, noting the dilapidated conditions of their homes and their inability to sell their homes for the values assessed. And finally, Appellants questioned the homestead cap, that is, whether RCAD could raise property values by 30 percent when the law only allows homesteads to be raised by 10 percent each year, and whether RCAD could increase their market values for county and city tax purposes when they filed exemptions to freeze their school taxes.

In response, RCAD presented evidence that the assessed values of Appellants’ properties were still below market value. The closing arguments then focused on RCAD’s ability to increase the value of their homes by 30 percent for the applicable tax years when they not only believed that RCAD’s basis for doing so, i.e., the loss of school funding, was inadequate, but also that their homes could not be sold for as much, and RCAD’s failure to consider other properties comparable to their own before implementing the increase. Appellants also asserted that them values should never-have been raised since they were over 65 and froze their school taxes. Recognizing that the comparable market values of Appellants’ properties were the issues, the trial court found that the market values of each of the complained-of properties were at least the values assessed by RCAD, concluding that Appellants failed to present sufficient evidence to show that their properties were appraised unequally.

Applicable Law

The Texas Constitution requires taxation to be equal and uniform. See Tex. Const, art. VIII, § 1(a). Here, however, the trial court based its decision on Section 42.26 of the Tax Code, not Article VIII, Section 1(a) of the Texas Constitution. That statutory provisions provides:

(a) The district court shall grant relief on the ground that a property is appraised unequally if:
(1)the appraisal ratio of the property exceeds by at least 10 percent the median level of appraisal of a reasonable and representative sample of other properties in the appraisal district;
(2) the appraisal ratio of the property exceeds by at least 10 percent the median level of appraisal of a sample of properties in the appraisal district consisting of a reasonable number of other properties similarly situated to, or of the same general kind or character as, the property subject to the appeal; or
(3) the appraised value of the property exceeds the median appraised value of a reasonable number of comparable properties appropriately adjusted.
(b) If a property owner is entitled to relief under Subsection (a)(1), the court shall order the property’s appraised value changed to the value as calculated on the basis of the median level of appraisal according to Subsection (a)(1). If a property owner is entitled to relief under Subsection (a)(2), the court shall order the property’s appraised value changed to the value calculated on the basis of the median level of appraisal according to Subsection (a)(2). If a property owner is entitled to relief under Subsection (a)(3), the court shall order the property’s appraised value changed to the válue calculated on the basis of the median appraised value according to Subsection (a)(3). If a property owner is entitled to relief under more than one subdivision of Subsection (a), the court shall order the property’s appraised value changed to the value that results in the lowest appraised value. The court shall determine each applicable median level of appraisal or median appraised value according to law, and is not required to adopt the median level of appraisal or median appraised value proposed by a party to the appeal. The court may not limit or deny relief to the property owner entitled to relief under a subdivision of Subsection (a) because the appraised value determined according to another subdivision of Subsection (a) results in a higher appraised value.
(c) For purposes of establishing the median level of appraisal under Subsection (a)(1), the median level of appraisal in the appraisal district as determined by the comptroller under Section 5.10 is admissible as evidence of the median level of appraisal of a reasonable and representative sample of properties in the appraisal district for the year of the comptroller’s determination, subject to the Texas Rules of Evidence and the Texas Rules of Civil Procedure.
(d) For purposes of this section, the value of the property subject to the suit and the value of a comparable property or sample property that is used for comparison must be the market value determined by the appraisal district when the property is a residence homestead subject to the limitation on appraised value imposed by Section 23.23.

Tex. Tax Code Ann, § 42.26 (Vernon 2008). Section 42.26 does not appear to expressly contemplate a remedy for property class discriminations. See id. at § 42.26(a). Although a broad and liberal reading of subsection (a)(1) may support such a cause of action, we need not address this matter as we find that Appellants’ discrimination complaint was never presented to the trial court.

It is well settled that a party will not be permitted to take a position on appeal that is not presented in the trial court. Mandell v. Hammam Oil & Refining Co., 822 S.W.2d 153, 162-63 (Tex.App.Houston [1st Dist.] 1991, writ denied), abrogated by Coastal Oil & Gas Corp. v. Garza Energy Trust, 268 S.W.3d 1 (Tex.2008); McDuffie v. Blassingame, 883 S.W.2d 329, 335 (Tex.App.-Amarillo 1994, writ denied). Indeed, an issue not expressly presented to the trial court cannot be considered on appeal as grounds for reversal. Millhouse v. Wiesenthal, 757 S.W.2d 103, 107 (Tex.App.-Houston [1st Dist.] 1988), aff'd, 775 S.W.2d 626 (Tex.1989). Even constitutional issues must be properly raised in the trial court or they are waived on appeal. See In the Matter of W.A.B., 979 S.W.2d 804, 808 (Tex.App.-Houston [14th Dist.] 1998, pet. denied), disapproved of on other grounds by In re J.F.C., 96 S.W.3d 256, 267 n. 39 (Tex.2002); Segovia v. Texas Dep’t of Protective and Regulator Servs., 979 S.W.2d 785, 788 (Tex.App.-Houston [14th Dist.] 1998, pet. denied).

Application

We have carefully reviewed the record and have been unable to locate any argument based on property class discrimination that was presented to the trial court. Although Markham fleetingly testified that property values were increased only for certain classes, Appellants never complained to the trial court that her testimony supported a property class discrimination complaint. Rather, Appellants focused on RCAD’s reason for increasing their property values, i.e., the loss of school funding, and whether their property values could be increased despite their filed exemptions. Assuming RCAD’s reason for increasing the values was valid, it is clear that Appellants’ issues before the trial court became whether their properties were worth the values assessed by RCAD, which would at most fall under subsection (a)(2) or (a)(3) of Section 42.26, not subsection (a)(1) or Article VIII, Section 1(a) of the Texas Constitution. Compare Tex. Tax Code Ann. § 42.26(a)(2), (a)(3) (providing that appraisals should be based on comparable properties or “other properties similarly situated to, or of the same general kind or character as, the property subject to the appeal”); with Tex. Const. art. VIII, § 1(a) (requiring taxation to be equal and uniform); Tex. Tax Code Ann. § 42.26(a)(1) (providing that “the appraisal ratio of the property [should not] exceed! ] by at least 10 percent the median level of appraisal of a reasonable and representative sample of other properties in the appraisal district”). Even the trial court recognized the issue as one of market value, not class discrimination, and Appellants never complained that the trial court failed to consider the class discrimination issue. Simply, the discriminatory class argument now raised on appeal was never asserted to the trial court below.

Because Appellants never expressly presented their discriminatory class complaint to the trial court, we find Appellants failed to preserve the issue for our review. See In re 31 S.W.3d 347, 353 (Tex.App.-San Antonio 2000, pet. denied) (noting error not preserved where issue on appeal was different from one urged at trial); Alamo Fireworks, Inc. v. Truckload Fireworks, Inc., No. 08-01-00229-CV, 2002 WL 313191, at *7 (Tex.App.-El Paso Feb. 28, 2002, no pet.) (op., not designated for publication) (noting error not preserved where trial argument was very different from one complained of on appeal). Accordingly, Appellants’ first issue is overruled.

EXEMPTION

We now turn to Appellants’ second issue, which contends that because they were over 65 years of age, the increase in value, and thus, the increase in taxes, violated the Constitution and the Tax Code. Again, we need not reach the merits of this issue.

Applicable Law

Rule 38 of the Texas Rules of Appellate Procedure requires a party’s brief to contain a “succinct, clear, and accurate statement of the arguments made in the body of the brief’ and a “clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.” Tex.R.App. P. 38.1(h), (i). Briefing that is wholly conclusory and provides no substantive analysis, discussion, or legal authority to support the contentions raised fails to preserve any issue for review. See Velasquez v. Waste Connections, Inc., 169 S.W.3d 432, 439 (Tex.App. El Paso 2005, no pet.); Robert L. Crill, Inc. v. Bond, 76 S.W.3d 411, 425 (Tex.App.-Dallas 2001, pet. denied).

Application

Here, Appellant’s entire argument for Issue Two is contained in one paragraph (or four conclusory sentences) and cites no authority other than a general cite to Article VIII, Section 1 of the Texas Constitution and Section 11.26 of the Texas Tax Code. Although they state the trial court erred by “completely ignoring]” these provisions, that the tax increase violated these provisions, and that the “same [was] proven to the trial judge,” Appellants wholly fail to explain or analyze these constitutional and statutory provisions, state how the provisions were violated, show what evidence proved the same to the trial court, or provide any analogous cases supporting their position. In light of these inadequacies, we hold Appellants inadequately briefed the issue, preserving nothing for our review. See Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex.1994) (appellate court has discretion to waive points of error which are inadequately briefed); see also, e.g., Thompson v. Harco Nat. Ins. Co., 120 S.W.3d 511, 516 (Tex.App.-Dallas 2003, pet. denied) (holding issue inadequately briefed when appellant’s argument, made up of two sentences and a cite to a federal statute, provided no substantive legal analysis or argument with supporting case law), cert. denied, 543 U.S. 876, 125 S.Ct. 100, 160 L.Ed.2d 127 (2004); Meachum v. Comm’n for Lawyer Discipline, 36 S.W.3d 612, 616 (Tex.App.-Dallas 2000, pet. denied) (holding issue inadequately briefed when appellant’s argument consisted of three sentences, two record cites, and a single citation to a disciplinary rule; there was no substantive analysis, discussion, or legal authorities supporting his contention); Bradt v. West, 892 S.W.2d 56, 68-69 (Tex.App.-Houston [1st Dist.] 1994, writ denied) (holding issue inadequately briefed when appellants provided some authority but failed to discuss relevant facts and only made fleeting, eonclusory statements); Eaves v. Unifund OCR Partners, 301 S.W.3d 402, 409 (Tex.App.-El Paso 2009, no pet.) (holding issue inadequately briefed when argument consisted of only three eonclusory sentences); In re C.L., No. 04-03-00638-CV, 2004 WL 86136, at *3 (Tex. App.-San Antonio Jan. 21, 2004, no pet.) (mem. op.) (holding issue inadequately briefed when brief only contained four sentences on the issue complained of and failed to offer any substantive analysis or substantive discussion of the evidence in support of the contention raised). Accordingly, Issue Two is overruled.

CONCLUSION

Having overruled Appellants’ issues, we affirm the trial court’s judgment.

      . There were no sales for the lower-income housing areas and those areas were barely liveable.