author: TERRIE LIVINGSTON, Chief Justice.

text:
    Victor J. BURGESS, d/b/a Eydie’s Bail Bonds, and the Local Agent for Seneca Insurance Co., Inc., Appellant v. The STATE of Texas, Appellee.
    No. 2-09-239-CV.
    Court of Appeals of Texas, Fort Worth.
    May 13, 2010.

      Richard Gladden, Jackson & Hagen, Denton, TX, for Appellant.
    Paul Johnson, Criminal District Attorney, Charles E. Orbison, Assistant Criminal District Attorney, Chief of Appellate Section, Jennifer Rutherford McClure, Assistant Criminal District Attorney, Denton, TX, for Appellee.

      Panel: LIVINGSTON, C.J.; DAUPHINOT and McCOY, JJ.
   OPINION

TERRIE LIVINGSTON, Chief Justice.

Appellant Victor J. Burgess, d/b/a Ey-die’s Bail Bonds, and the Local Agent for Seneca Insurance Co., Inc. (Burgess) appeals the trial court’s bond forfeiture judgment. In three issues, Burgess contends that the trial court unlawfully assessed a court cost for service of citation by certified mail as part of the judgment. We affirm.

Background Facts

John G. Smith, who was charged with possessing a controlled substance, failed to appear at a court hearing. Therefore, the trial court signed a judgment nisi that forfeited his $5,000 bond, which Burgess had signed as surety. In June 2007, the Denton County District Clerk sent notiee of the judgment nisi to Smith by citation through first class mail at the address that he had provided on the bond and sent notice of the judgment nisi to Burgess by citation through certified mail.

Burgess filed an answer to the forfeiture action, and then the State filed a motion for summary judgment that included the State’s contention that Burgess was required to pay court costs for the service of citation upon him. The State asserted in part that the trial court did not have the “authority to decide what costs are assessed and whether such costs are reasonable” because such a decision “would require the proper parties to be before a court having proper jurisdiction in an action regarding the appropriateness of civil court costs, (some of) which are set by the Commissioners Court.”

Burgess’s response to the State’s summary judgment motion did not contest Burgess’s general liability on the forfeiture of Smith’s bond; instead, the response raised only the issue of whether the State was entitled to recover the cost that was charged by the district clerk for service of citation by certified mail. After the State filed a reply to Burgess’s response, the trial court signed a final judgment in favor of the State that awarded, among other relief, all of the court costs that the district clerk had assessed. According to a document titled “CIVIL BILL OF COST,” the court costs amounted to $251 and specifically included a $68 cost for citation by certified mail.

Burgess asked the trial court to enter findings of fact and conclusions of law, but the court never did so. Burgess filed a notice of appeal, stating that he is appealing as “Victor J. Burgess, d/b/a Eydie’s Bail Bonds, and the Local Agent for Seneca Insurance Co., Inc.”

Standing

Before the submission of this appeal, the State filed a motion to dismiss the appeal for lack of jurisdiction. Based on the contents of the motion to dismiss and on the State’s oral argument, we broadly construe the motion as challenging Burgess’s standing to bring the appeal because he (1) is allegedly not the surety on the bond and is therefore not liable to pay the trial court’s judgment and (2) does not have authority to bring an appeal as an agent of Seneca Insurance Co., Inc., which is allegedly the real surety on the bond.

The issue of a party’s standing may be raised for the first time on appeal. City of Arlington v. Centerfolds, Inc., 232 S.W.3d 238, 244 (Tex.App.-Fort Worth 2007, pet. denied). In order to maintain a suit, a plaintiff must have a justiciable interest in the subject matter of the litigation. Id. A party’s standing to maintain a suit, which is a component of subject matter jurisdiction, may be satisfied when the party has a personal stake in the outcome of the suit and the party has suffered a concrete and particularized injury. Brown v. Todd, 53 S.W.3d 297, 305 (Tex.2001) (citing Raines v. Byrd, 521 U.S. 811, 819, 117 S.Ct. 2312, 2317, 138 L.Ed.2d 849 (1997)); see City of Fort Worth v. D.T., 165 S.W.3d 425, 427 (Tex.App.-Fort Worth 2005, no pet.) (explaining that to establish standing, “one must show a justiciable interest by alleging actual or imminent threat of injury peculiar to one’s circumstances and not suffered by the public generally”).

An affidavit that Burgess filed on appeal explains,

[W]hen I commenced my business relationship with Seneca, I entered into a written, contractual indemnity agreement with Seneca. Specifically, under that indemnity agreement ... [,] wherein I am expressly identified as “Agent/Indemnitor,” when there is a bail bond forfeiture arising from a bond that I have executed as “agent” of Seneca, I am required to indemnify Seneca for any financial loss to [Seneca] arising out of such forfeiture. Under this agreement, my failure to pay Seneca the amount of any financial loss to [Seneca], arising out of a bail bond forfeiture for which I am responsible while doing business as Ey-die’s Bail Bonds, would result not only in my losing the support of Seneca as my collateral security, but would also result in the loss of my license to write bail bonds in Denton County, Texas.[]

Additionally, the particular wording of the judgment that the trial court signed in this case designates “VICTOR J. BURGESS, AGENT D/B/A EYDIE’S BAIL BONDS” as being responsible to pay the judgment. We conclude that these documents, which establish (1) Burgess’s general liability to pay bond forfeiture judgments against Seneca Insurance Co., Inc. when he has executed bonds as Seneca Insurance Co., Inc.’s agent and (2) his specific liability to pay the judgment in this case, comprise evidence that Burgess has a particularized, personal stake in the outcome of this appeal and therefore has standing on that basis. See Brown, 53 S.W.3d at 305; see also Torrington Co. v. Stutzman, 46 5.W.3d 829, 844 (Tex.2000) (“Torrington has a clear justiciable interest in appealing the judgment against Textron, which it would have to pay.”).

As to the State’s argument that Burgess does not have authority to pursue an appeal on behalf of Seneca Insurance Co., Inc., the record contains a document titled “POWER OF ATTORNEY” that relates specifically to the execution of Smith’s bond, names Burgess as an “Executing Agent,” and states,

Seneca Insurance Company, Inc. has constituted and appointed ... the named Executing Agent its true and lawful Attorney-In-Fact, with full power and authority to sign the company’s name and affix its corporate seal to ... any and all obligations as herein provided, and the execution of such obligations in pursuance of these presents shall be as binding upon the company as fully and to all intents and purposes as if done by the regularly elected officers of said company ...; and the said company hereby ratifies and confirms all and whatsoever its said attorney-in-fact may lawfully do and perform in the premises by virtue of these presents.

Another document, titled “QUALIFYING POWER OF ATTORNEY,” contains similar language generally related to Burgess’s relationship with Seneca Insurance Co., Inc.

The State argues, “Nowhere in these documents does [Seneca Insurance Co., Inc.] give to [Burgess] the authority to defend or appeal a bond forfeiture action.” However, Burgess’s affidavit that he filed in this court states that he is “authorized, in [his] capacity as agent for Seneca, to retain local counsel to litigate and, if necessary, to prosecute appeals for Seneca arising out of forfeiture actions concerning bail bonds executed by [him] d/b/a Eydie’s Bail Bonds.” [Emphasis added.] Burgess also presented this court with a letter from Seneca Insurance Co., Inc.’s chief operating officer to him that states, “Consider this letter as verification that you are authorized to employ the attorney of your choice to represent you as a Bail Agent for Seneca Insurance Company, Inc. in regards [sic] to outstanding forfeitures.... ” We conclude that the evidence submitted by Burgess defeats the State’s argument that Burgess does not have the authority to appeal as the agent for Seneca Insurance Co., Inc.

For these reasons, we conclude that Burgess has standing to maintain this appeal, and we deny the State’s motion to dismiss.

Summary Judgment Standard of Review

We review a summary judgment de novo. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex.2009). We consider the evidence presented in the light most favorable to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors could, and disregarding evidence contrary to the nonmovant unless reasonable jurors could not. Id. We indulge every reasonable inference and resolve any doubts in the nonmovant’s favor. 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex.2008). A plaintiff is entitled to summary judgment on a cause of action if it conclusively proves all essential elements of the claim. See Tex.R. Civ. P. 166a(a), (c); MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex.1986).

The Authorization of the Cost For Service of Citation by Certified Mail

In his first issue, Burgess argues that the $68 cost assessed by the district clerk is unlawful because the Denton County Commissioners Court has not authorized that cost. The government code provides that a district clerk “shall collect” a fee for “serving process by certified or registered mail.” Tex. Gov’t Code Ann. § 51.319(2) (Vernon 2005). The code explains that the fee to be collected by the district clerk for serving process by certified mail is “the same fee that sheriffs and constables are authorized to charge for the senice under Section 118.131, Local Government Code.” Id. (emphasis added).

Section 118.131 states in part,

(a) The commissioners court of a county may set reasonable fees to be charged for services by the offices of the sheriff and constables.
(b) The commissioners court may not set fees higher than is necessary to pay the expenses of providing the services.
(d) The commissioners court must set the fees before October 1 of each year to be effective January 1 of the following year.

Tex. Loc. Gov’t Code Ann. § 118.131 (Vernon 2008); see Camacho v. Samaniego, 831 S.W.2d 804, 812 (Tex.1992).

Burgess attached evidence to his summary judgment response that establishes that the Denton County Commissioners Court has set a $60 sheriff/constable fee for “Citation” and has set a fee in the same amount for “Citation by Publication,” “Citation by Posting,” “Citation by Scire Faci-as,” and “Citation — Forcible Detainer.” Burgess essentially contends that because the commissioners court has not specifically set a fee for “Citation by Certified Mail” as it did for other types of citation, the district clerk is not authorized to charge such a fee under the statutes above.

However, the rules of civil procedure specifically describe certified mailing as one of the two main methods of service of “citation,” and the commissioners court authorized a $60 fee for service of “citation.” See Tex.R. Civ. P. 106(a)(2); Taylor v. State, 293 S.W.3d 913, 915-16 & n. 1 (Tex.App.-Austin 2009, no pet.). Although Burgess contended during oral argument that the word “citation” in the commissioners court’s schedule of sherifficonstable fees refers only to service by personal delivery rather than by certified mail, nothing in the schedule of fees or in the remainder of the record indicates that the commissioners court intended to limit the meaning of the word “citation” in that way, and the rules of civil procedure and Texas courts signal that Texas sheriffs and constables may serve citation by certified mail, not only by personal delivery. See Tex.R. Civ. P. 107 (stating that an “officer or authorized person” may serve citation by certified mail); P & H Transp., Inc. v. Robinson, 930 S.W.2d 857, 859 (Tex.App.-Houston [1st Dist.] 1996, writ denied); see also Fellows v. Adams, No. 01-06-00924-CV, 2007 WL 3038090, at ⅝2 (Tex.App.-Houston [1st Dist.] Oct. 18, 2007, no pet.) (mem.op.) (holding that service of process through certified mail by a deputy constable was sufficient to support a default judgment). Therefore, we hold that the commissioners court’s authorization of a $60 fee for service of an unspecified manner of “citation” authorizes the charging of that fee when the citation is served by certified mail, and we overrule Burgess’s first issue to that extent.

As another part of his first issue, Burgess notes that while the commissioners court approved a $60 fee for “citation,” the district clerk charged $68 in this case for “CITATION BY CERTIFIED MAIL.” In its motion for summary judgment, the State generally asserted that Burgess was liable for all applicable civil court costs and then specifically relied on the commissioners court’s order under section 118.131 to establish the district clerk’s ability to collect $60, not $68; thus, Burgess’s statement in his summary judgment response that the State relied on section 118.131 to authorize the district clerk to recover a $68 cost is incorrect. Furthermore, section 51.317(b)(3) of the government code instructs a district clerk to collect an $8 fee for the district clerk’s “issuing” (as opposed to “serving”) a citation, and this justifies the collection of the additional $8 fee. See Tex. Gov’t Code Ann. § 51.317(b)(3) (Vernon Supp.2009). The district clerk “issued” two citations in this case (one for Burgess and one for Smith), and along with the $68 “CITATION BY CERTIFIED MAIL” fee in the clerk’s bill of costs, the bill also contains a separate $8 “CITATION” fee. Although we agree with Burgess’s statement during oral argument that nothing in the record directly shows that section 51.317(b)(3) is the specific reason that either of the two $8 fees were charged, Burgess does not dispute that these fees are authorized to be charged under that statute. Thus, we hold that the trial court’s inclusion of the two $8 fees did not cause the rendition of an improper overall calculation of $251 for costs of suit in the trial court’s judgment. See Tex.R.App. P. 44.1(a)(1); Farlow v. Harris Methodist Fort Worth Hasp., 284 S.W.3d 903, 928 (Tex.App.-Fort Worth 2009, pet. denied). Therefore, we also overrule the remaining portion of Burgess’s first issue.

The Reasonableness of the Cost for Service of Citation by Certified Mail

In his second and third issues, Burgess contends that even if the Denton County Commissioners Court authorized the cost for service of citation by certified mail, the cost is nonetheless unlawful under section 118.131 of the local government code because it is not reasonable and is higher than necessary to pay the expense of the service. See Tex. Loc. Gov’t Code Ann. § 118.131(a)-(b). Burgess relies on other statutes relating to serving documents by certified mail and on the postage expense of certified mail in 2007. See Tex. Civ. Prac. & Rem.Code Ann. § 12.005(b)(2) (Vernon 2002) (establishing the fee for notice of an action involving presentation or use of fraudulent documents at “the cost of postage if the service is by registered or certified mail”); Tex. Code Crim. Proc. Ann. art. 102.006(a)(2)-(8) (Vernon Supp.2009) (establishing the fee for serving notices by certified mail in expunction proceedings at the cost of postage plus $1 or $2). The State asserts, among other contentions, that this bond forfeiture action is not the proper suit to attack the validity of a fee that was authorized by the commissioners court.

For us to agree with Burgess’s contentions in his second and third issues and hold that the trial court erred by entering judgment in favor of the State that includes the cost for service of citation by certified mail, we would be required to invalidate the Denton County Commissioners Court’s schedule of sheriff/constable fees, at least as it applies to that method of service. See Harris County v. Proler, 29 S.W.3d 646, 649 (Tex.App.-Houston [14th Dist.] 2000, no pet.) (noting that the setting of fees under section 118.181 is the sole responsibility of the commissioners court). We would have to do so in a case that was not filed for the purpose of attacking the commissioners court’s order (as the case was filed by the State for the forfeiture of Smith’s bond) and in which none of Denton County, the commissioners court, any of the commissioners court’s members, nor the district clerk (who eol-lects the fee at issue) have been made parties to the suit.

District courts have appellate jurisdiction and general supervisory jurisdiction over the orders of commissioners courts. See Tex. Const, art. V, § 8; Wichita County v. Bonnin, 268 S.W.3d 811, 815 (Tex.App.-Fort Worth 2008, pet. denied) (op. on reh’g); Hooten v. Enriquez, 863 S.W.2d 522, 528 (Tex.App.-El Paso 1993, no writ). The legislature has not established the general manner by which such supervisory jurisdiction may be used. Wichita County, 268 S.W.3d at 815. However, courts, including our own court, have consistently held that unless a commissioners court’s order is wholly void, it may not be challenged through a collateral attack.

In Luck v. Welch, the appellant contended that a Tarrant County Commissioners Court’s order in 1931 that established a public access road across the appellant’s land was invalid because certain statutory procedures had not been followed. 243 S.W.2d 589, 591 (Tex.Civ.App.-Fort Worth 1951, writ refd n.r.e.). We overruled the appellant’s argument, explaining in part,

All of the cases cited by appellant in support of the foregoing points were those in which direct attacks were made on the judgment of the Commissioners’ Court.... ‘The power of the District Court to supervise the proceedings of the Commissioners’ Court here involved gave the injunction suit the character of a direct attack upon those proceedings rather than a collateral one. * * * Th[is] permitted a full inquiry for the purpose of seeing whether throughout the proceedings the Court had complied with the law, unhindered by any presumptions ordinarily indulged in a collateral attack upon a judgment of a court of general jurisdiction.’ The appellant is here making a collateral attack upon the 1931 judgment [of the commissioners court] twenty years after its rendition and this may not be done.

Id. (emphasis added) (citations omitted) (quoting Haverbekken v. Hale, 109 Tex. 106,114, 204 S.W. 1162,1165 (1918)).

Five years later, in reviewing a challenge made by a private citizen against the Nueces County Commissioners Court to an order of the commissioners court that authorized payment of $600 to an assistant district attorney, the Texas Supreme Court stated,

An order of the Commissioners Court acting judicially on a matter within its discretion is the judgment of a court of record which is not subject to collateral attack and which may be reviewed only on appeal or in a direct action for that purpose. And a suit to enjoin the enforcement of the judgment of a court other than the one in which the action is brought is generally regarded as a collateral attack on the judgment....
It is well settled that a direct equitable proceeding in district court, the purpose and effect of which is to review or set aside an order of the Commissioners Court, comes within the power granted by the constitutional and statutory provisions above referred to, and has the effect of a direct attack upon the order, at least where the Legislature has not prescribed the procedure for appealing from such order. The present suit invokes the equity powers of the district court to prevent by injunction the payment of county funds for a purpose alleged to be illegal. It is our opinion that the same should be treated as a direct, rather than a collateral, attack upon the order of the Commissioners Court authorizing such payment to be made.

Scott v. Graham, 156 Tex. 97, 102-03, 292 S.W.2d 324, 327-28 (1956) (citations omitted). A year later, the supreme court reiterated that an order adopted by a commissioners court is generally considered immune from collateral attack unless it is “wholly void” and an “absolute nullity” and that “every departure from a prescribed method does not render such [an order] void so as to subject [it] to collateral attack.” Henn v. City of Amarillo, 157 Tex. 129,133-35, 301 S.W.2d 71, 74-75 (1957); see also Mobil Oil Corp. v. Matagorda County Drainage Dist. No. 3, 597 S.W.2d 910, 911-12 (Tex.1980) (approving a challenge to an annexation order because suit was filed against the Matagorda County Commissioners Court as a direct challenge to the commissioners court’s exceeding its authority); In re El Paso County Comm’rs Court, 281 S.W.3d 16, 24 (Tex.App.-El Paso 2005, orig. proceeding) (stating that it has “long been the law in Texas that a direct equitable action must be filed in the district court in order to invoke that court’s jurisdiction to exercise supervisory control of the commissioners court”); Tar-rant County v. Denton County, 87 S.W.3d 159, 174 (Tex.App.-Fort Worth 2002, pet. denied) (explaining that commissioners courts’ orders may be collaterally attacked only when they are void), overruled on other grounds by Martin v. Amerman, 133 S.W.3d 262, 268 (Tex.2004); City of Katy v. Waterbury, 581 S.W.2d 757, 760 (Tex.CivApp.-Houston [14th Dist.] 1979, no writ); Atl. Richfield Co. v. Liberty-Danville Fresh Water Supply Dist. No. One of Gregg County, 506 S.W.2d 931, 934 (Tex.Civ.App.-1974, writ refd n.r.e.) (“[T]he District Court is authorized to exercise supervisory control over the Commissioners’ Court through its equitable powers in a plenary suit brought for the purpose of reviewing or setting aside an order of such court.”).

Courts have noted that a commissioners court’s order may be void when it is unconstitutional, the commissioners court does not have jurisdiction over the subject matter of the order, or a condition precedent to the order has not occurred. See Chenault v. Bexar County, 782 S.W.2d 206, 209 (Tex.1989); La.-Pac. Corp. v. Newton County, 149 S.W.3d 262, 265 (Tex.App-Eastland 2004, no pet.); Crider v. Cox, 960 S.W.2d 703, 706 (Tex.App.-Tyler 1997, writ denied). Burgess’s claim in his second and third issues rests on his contention that the Denton County Commissioners Court misapplied the authority granted to it by section 118.131; Burgess does not assert that the commissioners court did not have jurisdiction to set sheriff/eonstable fees, that there was an unperformed condition precedent, or that the commissioners court’s setting the “citation” service fee at $60 is unconstitutional.

Thus, under the authority above, we hold that Burgess’s challenge to the commissioners court’s order is not an assertion that the order is void, and, as the State asserts, the challenge may not be made in this collateral bond forfeiture proceeding but must instead be raised in a separate action. See Bowles v. Clipp, 920 S.W.2d 752, 754-55 (Tex.App.-Dallas 1996, writ denied) (concerning claims in which individuals who had paid improper criminal bond fees in Dallas County sued Dallas County and the sheriff). Therefore, we overrule Burgess’s second and third issues.

Conclusion

Having overruled all of Burgess’s issues, we affirm the trial court’s judgment.

      . A judgment nisi alone “does not authorize recovery of a bond amount by the State. A judgment nisi is a provisional judgment that is not final or absolute, but may become final. Nisi means ‘unless,’ so a judgment nisi is valid unless a party shows cause why it should be withdrawn.” Safety Nat'l Cas. Corp. v. State, 273 S.W.3d 157, 163 (Tex.Crim.App.2008) (citation omitted).

      . See Tex.Code Crim. Proc. Ann. arts. 22.03-.05 (Vernon 2009); Tex.R. Civ. P. 106(a)(2).

      . The State also contended, “It is the County and the District Clerk who assesses and collects civil court costs — not the State. Any court action regarding the reasonableness of court costs should include those parties.”

      .The trial court’s June 18, 2009 final judgment does not expressly refer to the parties' summary judgment documents but implies that the court granted the State's summary judgment motion. See Kendziorski v. Saunders, 191 S.W.3d 395, 402 (Tex.App.-Austin 2006, no pet.) (“[T]he court's final judgment indicated that Saunders’s motion for summary judgment had been granted.”). The trial court sent the parties’ counsel an e-mail on July 21, 2009 that said that the court was rescinding the final judgment so that it could be replaced with an "Order Granting Summary Judgment." The next day, the trial court wrote by hand on another document contained in the clerk’s record that it was rescinding the final judgment. The record does not contain an order granting summary judgment or a substitute final judgment, and the trial court's attempts to rescind its judgment occurred after its plenary power to do so had expired. See Tex.R. Civ. P. 329b(d); Wright v. Pino, 163 S.W.3d 259, 263 (Tex.App.-Fort Worth 2005, no pet.).

      . We may consider documents submitted by the parties that are outside of the trial court’s record for the purpose of determining our own civil jurisdiction. See Tex. Gov’t Code Ann. § 22.220(c) (Vernon Supp.2009); Sabine Offshore Serv., Inc. v. City of Port Arthur, 595 S.W.2d 840, 841 (Tex.1979); Kaufman v. Islamic Soc'y of Arlington, 291 S.W.3d 130, 139 n. 20 (Tex.App.-Fort Worth 2009, pet. denied). We will not consider the evidence that has been submitted by Burgess on appeal for any purpose other than determining our jurisdiction and resolving the State's motion to dismiss.

      . For instance, the qualifying power of attorney says that Burgess may affix the seal of Seneca Insurance Co., Inc. on “all documents necessary or incidental to the execution of bail bonds.”

      . Although Burgess’s exhibit shows that the commissioners court set these fees in September 2007, which was after citation was served upon Burgess, Burgess has not argued at trial or on appeal that the fees in effect when he was served with citation were different than the fees authorized by the commissioners court in September 2007. We may not reverse the trial court’s judgment on unassigned error. Pat Baker Co., Inc. v. Wilson, 971 S.W.2d 447, 450 (Tex.1998).

      . Issuance and service of citation are separate acts. The clerk of the court is responsible to issue a citation; the party requesting the citation is responsible to ensure that the citation is properly served. Tex.R. Civ. P. 99(a).

      . We note that the record does not contain any evidence of how or why the commissioners court arrived at the $60 figure for service of "citation,” nor does it contain evidence regarding the specific administrative procedures and duties of Denton County employees when they serve citation by certified or registered mail.

      . A collateral attack is an "attempt to avoid the effect of a judgment in a proceeding brought for some other purpose. A direct attack on a judgment, conversely, is an attempt to change that judgment in a proceeding brought for that specific purpose, such as an appeal or a bill of review.” Kortebein v. Am. Mut. Life Ins. Co., 49 S.W.3d 79, 88 (Tex.App.-Austin 2001, pet. denied) (citation omitted), cert, denied, 534 U.S. 1128, 122 S.Ct. 1065, 151 L.Ed.2d 968 (2002).

      . Before the Henn decision, the supreme court indicated that acts of a commissioners court could be challenged through a collateral attack if they comprised a "gross abuse of discretion.” Harrison v. Jay, 153 Tex. 460, 464, 271 S.W.2d 388, 390 (1954) (quoting Yoakum County v. Gaines County, 139 Tex. 442, 448, 163 S.W.2d 393, 396 (1942)). But the Henn opinion used the void/voidable distinction to establish whether a commissioners court's order is subject to collateral attack. Henn, 157 Tex. at 131, 133-36, 301 S.W.2d at 72-76. The supreme court has more recently implied that a commissioners court’s order that is arbitrary, capricious, or unsupported by substantial evidence is voidable and that whether the commissioners court abused its discretion is the relevant standard in a direct attack on the commissioners court's order. See Ector County v. Stringer, 843 S.W.2d 477, 479 n. 2 (Tex.1992); Pritchard & Abbott v. McKenna, 162 Tex. 617, 627, 350 S.W.2d 333, 339-40 (1961); see also In re Masonite Corp., 997 S.W.2d 194, 198 (Tex.1999) (orig.proceeding) ("That the trial court's venue transfer orders were a clear abuse of discretion does not mean that they were 'void.' "). We have not found any case decided after Henn in which the supreme court repeated its pre-Henn language that an abuse of discretion makes a commissioners court's order reviewable through a collateral attack.


source: Caselaw Access Project

author: G. ALAN WALDROP, Justice.

license: Public Domain

text:
    The STATE of Texas, Appellant v. Alfredo MONTANO, Jr. a/k/a Fred Montano, Jr., Appellee.
    No. 03-08-00669-CV.
    Court of Appeals of Texas, Austin.
    May 14, 2010.

      David Randell, Asst. Atty. Gen., Austin, for appellant.
    Alfredo Montano Jr., Fred Montano, Jr., Harlingen, pro se.

      Before Chief Justice JONES, Justices PEMBERTON and WALDROP.
   OPINION

G. ALAN WALDROP, Justice.

The Texas Ethics Commission (the “TEC”) assessed civil penalties against ap-pellee Alfredo Montano, Jr. for his failure to timely file certain financial disclosure and campaign finance reports required from candidates for political office. Mon-tano did not pay the assessed penalties. On January 5, 2007, the State filed suit against Montano to recover the penalties. See Tex. Gov’t Code Ann. § 571.171(a) (West 2004) (TEC “may initiate civil enforcement actions”); Tex. Elec.Code Ann. § 251.004(b) (West 2010) (venue in Travis County). The State alleged that Montano was liable for $21,000 in penalties as a result of his failure to timely file four required reports. Following a bench trial, on October 1, 2008, the district court entered a take-nothing judgment against the State. The State asserts four points on appeal. We affirm in part, reverse and render in part, and reverse and remand in part.

Late Reports

The district court concluded that the TEC had failed to comply with its statutory notice requirements with respect to three of the required reports and, therefore, the assessed penalties applicable to those reports could not be enforced. In its first point on appeal, the State argues that the evidence is legally insufficient to support the district court’s conclusion. In reviewing a legal sufficiency challenge, we review the evidence in the light most favorable to the judgment, crediting favorable evidence if reasonable jurors could and disregarding contrary evidence unless reasonable jurors could not. City of Keller v. Wilson, 168 S.W.Bd 802, 827 (Tex.2005). We will sustain the State’s point on appeal based on legal sufficiency only if the evidence conclusively establishes, as a matter of law, that the penalties could not be waived for failure to give notice. See Dow Chem. Co. v. Francis, 46 S.W.Bd 237, 241 (Tex.2001). The test is whether the evidence at trial would enable reasonable and fair-minded people to reach the judgment under review. Wilson, 168 S.W.3d at 827.

Montano had an opponent on the ballot in the primary election and, therefore, was required to file a particular report not later than the 30th day before election day (the “30-Day Report”). See Tex. Elec. Code Ann. § 254.064(b) (West 2010). Montano filed the 30-Day Report on February 28, 2006, which was after the February 6, 2006 deadline. Under the election code, if the 30-Day Report is late, “the person required to file the report is liable to the state for a civil penalty of $500.” Id. § 254.042(b) (West 2010).

The $500 penalty is not contingent on notice. Instead, under election code section 254.042, the TEC’s determination that the 30-Day Report is late has two independent consequences: (1) the TEC must “immediately” mail a notice of the determination to the person required to file the report, see id. § 254.042(a); and (2) the person required to file the report is liable to the State for a civil penalty of $500, see id. § 254.042(b). Provision of the notice of determination of penalty is not a prerequisite to a penalty for a late-filed 30-Day Report. The requirement to file a 30-Day Report is statutory, and the deadline for filing the report is statutory. The statute is the notice of both the requirement and the deadline. Missing the statutory deadline implicates a statutory penalty. The fact that the TEC is required to send notice of a determination that a penalty will be imposed does not affect the fact that filers are statutorily on notice of the requirement to file, the deadline for filing, and the penalties for late filing.

Under the government code, Montano was also required to file a personal financial statement not later than the 40th day after the date of the regular filing deadline for an application for a place on the ballot in the general primary election. See Tex. Gov’t Code Ann. § 572.021 (West Supp. 2009), § 572.027(a) (West 2004). Montano failed to file the personal financial statement by the February 13, 2006 deadline. As a result, Montano was “liable to the state for a civil penalty of $500.” Id. § 572.033(b) (West 2004); see also 1 Tex. Admin. Code § 18.13(a) (2010) (Tex. Ethics Comm’n, Fine for a Late Report).

As with the 30-Day Report, the $500 penalty with respect to the personal financial statement is not contingent on notice. Instead, under government code section 572.033, the TEC’s determination that the personal financial statement is late has two independent consequences: (1) the TEC must “immediately” mail a notice of the determination to the person responsible for filing the report and to the appropriate attorney for the State, see Tex. Gov’t Code Ann. § 572.033(a); and (2) the person responsible for filing the report is liable to the State for a civil penalty of $500, see id. § 572.033(b); 1 Tex. Admin. Code § 18.13(a). As with the 30-Day Report, provision of the notice of determination of penalty is not a prerequisite to a penalty for a late-filed personal financial statement.

As a candidate, Montano was also required to file two additional reports for each year (the “Semiannual Report”). See Tex. Elec.Code Ann. § 254.063(a) (West 2010). The Semiannual Report that was due on July 17, 2006, see id. § 254.063(b), was the first such report required to be filed following the primary election. Unlike with the 30-Day Report and the personal financial statement, the penalty for late filing of such Semiannual Report is not a flat $500 penalty. Instead, the applicable penalty is $500 for the first day the report is late and $100 for each day thereafter that the report is late, up to a maximum fine of $10,000. 1 Tex. Admin. Code § 18.13(c); see Tex. Elec.Code Ann. § 254.042(b). The Semiannual Report in this ease was due on July 17, 2006, and Montano had not filed the report by November 2006. Thus, the potential statutory penalty was $10,000.

The penalty with respect to the first Semiannual Report required to be filed following the primary election is not contingent on notice. Under election code section 254.042, the TEC’s determination that such a Semiannual Report is late has two independent consequences: (1) the TEC must “immediately” mail a notice of the determination to the person required to file the report, see Tex. Elec.Code Ann. § 254.042(a); and (2) the person required to file the report is liable to the State for a civil penalty of $500 for the first day the report is late and $100 for each day thereafter that the report is late, see id. § 254.042(b); 1 Tex. Admin. Code § 18.13(c). As with the other filings at issue, provision of the notice of determination of penalty is not a prerequisite to a penalty for a late-filed Semiannual Report.

We hold that the statutory penalties applicable to Montano’s late filing of the 30-Day Report, the personal financial statement, and the Semiannual Report were not contingent on the TEC’s provision of notice under election code section 254.042(a) or government code section 572.033(a). Therefore, even if the TEC failed to comply with those statutory notice requirements, the district court erred in declining to enforce the statutory penalties with respect to the 30-Day Report, the personal financial statement, and the Semiannual Report.

Coirected Report

The remaining report at issue in this case is the report Montano was required to file not later than the 8th day before election day (the “8-Day Report”). See Tex. Elec.Code Ann. § 254.064(c). In its third point on appeal, the State asserts that the evidence is legally insufficient to support the district court’s failure to enforce the penalty assessed with respect to the late filing of the 8-Day Report. We review the evidence in the light most favorable to the judgment, crediting favorable evidence if reasonable jurors could and disregarding contrary evidence unless reasonable jurors could not. Wilson, 168 S.W.3d at 827. The test is whether the evidence at trial would enable reasonable and fair-minded people to reach the judgment under review. Id. Where the appellant has the burden of proof on an issue, we will sustain the appellant’s point on appeal only if the evidence establishes, as a matter of law, all vital facts in support of the issue. See Dow Chem. Co., 46 S.W.3d at 241.

Unlike with the other three reports, Montano filed the 8-Day Report by its February 27, 2006 deadline. However, on January 2, 2007, an additional 8-Day Report was filed that, according to the TEC, “appeared” to be a correction to Montano’s original filing. For a corrected 8-Day Report not to be considered late, “an affidavit stating that the error or omission in the original report was made in good faith” must be filed. Tex. Gov’t Code Ann. § 571.0771(c)(3) (West Supp. 2009); 1 Tex. Admin. Code § 18.9(d) (2009) (Tex. Ethics Comm’n, Corrected Reports). Despite the TEC’s sending Montano a letter stating that the affidavit was required to avoid any late-filing penalties, Montano did not file a correction affidavit. Consequently, the TEC treated the 8-Day Report as if it had been originally filed on January 2, 2007, and imposed a late penalty of $10,000. See Tex. Elec.Code Ann. § 254.042(b); 1 Tex. Admin. Code § 18.13(b).

The State contends that the uncontro-verted evidence establishes that no affidavit of correction was filed with the TEC in connection with the January 2, 2007 filing. However, the requirement that a correction affidavit be filed does not apply unless “the report as originally filed is inaccurate or incomplete.” See Tex. Gov’t Code Ann. § 571.0771(c)(3). Montano testified that the 8-Day Report, as originally filed, was not inaccurate or incomplete. Instead, according to Montano, the January 2, 2007 filing was a mistake. Robbie Douglas, the senior analyst with the disclosure filings division at the TEC, testifying for the State, acknowledged that it was possible that the January 2, 2007 filing, which was done electronically, was “an inadvertent effort made to file another report or change something else.” There was no evidence that the originally filed 8-Day Report was inaccurate or that any change made to the 8-Day Report in the January 2, 2007 filing was something other than a mistake as Montano testified. We conclude that the evidence at trial would enable reasonable and fair-minded people to conclude that the 8-Day Report as originally filed was not inaccurate or incomplete and, therefore, that no penalty should be assessed with respect to the 8-Day Report. Therefore, the evidence was legally sufficient to support the district court’s ruling that the $10,000 penalty assessed in connection with Montano’s 8-Day Report not be enforced.

Attorneys’ Fees

In its fourth point on appeal, the State asserts that the district court erred in denying the State’s request for attorneys’ fees. Under government code section 2107.006, the attorney general in this type of case “may recover reasonable attorney fees, investigative costs, and court costs incurred on behalf of the state in the proceeding in the same manner as provided by general law for a private litigant.” Id. § 2107.006 (West 2008). The district court found that the State had “submitted uncontroverted evidence of attorney’s fees in the amount of $3,950.00,” but the district court did not award attorneys’ fees to the State.

Section 2107.006 provides only that the attorney general “may” recover its attorneys’ fees. See id. We believe an award of attorneys’ fees would fall within the district court’s discretion. The district court’s ruling on attorneys’ fees may have depended, at least in part, on its ruling that the State could not recover any penalties, and we have concluded the district court’s ruling was error as to three of the four penalties assessed. Therefore, the question of whether attorneys’ fees should be awarded should be reconsidered by the district court due to the change in the result. See Tex.R.App. P. 44.1(b); Kendziorski v. Saunders, 191 S.W.3d 395, 410-11 (Tex.App.-Austin 2006, no pet.); Texas Health Care Info. Council v. Seton Health Plan, 94 S.W.3d 841, 854 (Tex.App.-Austin 2002, pet. denied). Nonetheless, we note that whether any award of fees should be made will be in the discretion of the district court.

Conclusion

We affirm the judgment of the district court that the penalty assessed by the TEC against Montano based on his January 2, 2007 filing of an amended 8-Day Report not be enforced. We reverse the remainder of the judgment of the district court. We render judgment that the State recover from Montano the sum of $11,000, representing administrative penalties assessed by the TEC for Montano’s failure to timely file the 30-Day Report, the personal financial statement, and the Semiannual Report. We remand the case to the district court for reconsideration of the issue of whether there should be any award of attorneys’ fees to the State.

      . Montano unsuccessfully ran in 2006 for state representative of House District 38.

      . In its findings of fact and conclusions of law, the district court included other bases to support its judgment in addition to lack of statutorily required notice. First, the district court concluded that the State did not adequately provide Montano notice "as required by Due Process under the 14th Amendment.” However, Montano admitted to actual notice of the requirements to file reports (in some manner) and actual notice that at least certain reports were late. Montano testified regarding his attempts, in response, to file the three reports. Next, the district court concluded that it could apply a "reasonable compliance standard.” However, there is no legal authority — statutory or otherwise — for the application of such a standard. Finally, the district court concluded that it had discretion under title 1, section 18.23 of the Texas Administrative Code to waive late fines if the report was filed late due to a filer's medical emergency or condition. See 1 Tex. Admin. Code § 18.23(a)(1) (2010) (Tex. Ethics Comm'n, Administrative Waiver of Fine); see also Tex. Gov’t Code Ann. § 571.1731 (West 2004). However, even if section 18.23 could be construed to grant the court such discretion, see 1 Tex. Admin. Code § 18.23(b) ("in the executive director’s discretion”), the filer is required to first submit an affidavit, see id. § 18.23(a). There is nothing in the record to indicate that Montano filed any affidavit that might trigger the potential application of section 18.23.

      . We note that election code section 254.042(b) also provides that if a report is more than 30 days late, the TEC shall issue a "warning of liability” by registered mail, and that if the penalty is not paid before the 10th day after the date on which the warning is received, the person is liable for a civil penalty in an amount determined by commission rule not to exceed $10,000. Tex. Elec.Code Ann. § 254.042(b). However, the district court did not base its ruling on the absence of such a "warning of liability.” Moreover, the TEC has not issued any rules setting the amount of a penalty contingent on the issuance of such a warning. See generally 1 Tex. Admin. Code § 18.13 (2010) (Tex. Ethics Comm'n, Fine for a Late Report).

      . We note that, given the daily increase in the penalty amount until the report is filed or the $10,000 maximum is reached, the TEC's failure to provide the required notice could conceivably be a basis for the TEC to reduce the penalty assessed. See Tex. Gov't Code Ann. § 571.1731(b); 1 Tex. Admin. Code § 18.23(a).

      . Having so concluded, we do not address the State's argument that Montano was required to file a verified denial to contest the TEC’s provision of the statutory notices, or the State’s second point on appeal that the evidence was factually insufficient to support the district court’s judgment regarding the 30-Day Report, the personal financial statement, and the Semiannual Report.

      . The State contends that Montano’s position that the correction was a mistake constitutes an affirmative defense and, therefore, that Montano has the burden of proof on the issue. We do not decide this issue because even if Montano had the burden of proof, we would conclude that the evidence was legally sufficient to support the district court’s factual findings with respect to the 8-Day Report. See Merrell Dow Pharmis., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997) (legal sufficiency standard).

      . The district court stated in a finding of fact that the attorneys’ fees requested by the State "would cause Montano further financial hardship.”


author: ADELE HEDGES, Chief Justice.

text:
    Adrian ROBINSON, Appellant, v. Dwight BRANNON and Lynetta Freeman a/k/a Lenetta Freeman, Appellees.
    No. 14-09-00139-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    May 20, 2010.

      Larry Watts, Missouri City, for appellant.
    Jon Erik Nichols, Paul Andrew Lamp, Jonathan Griffin Brush, Houston, for ap-pellees.
    Panel consists of Chief Justice HEDGES and Justices ANDERSON and CHRISTOPHER.
   OPINION

ADELE HEDGES, Chief Justice.

In this employment dispute, appellant, Adrian Robinson, appeals from a summary judgment in favor of appellees, Dwight Brannon and Lynetta Freeman a/k/a Len-etta Freeman, on the grounds that: (1) appellees were not immune from suit under the doctrine of professional immunity; (2) Robinson was not required to exhaust administrative remedies; and (3) fact issues were raised on Robinson’s tort claims. Brannon and Freeman have also brought a cross-appeal, arguing that the trial court erred in denying their request for attorney’s fees — specifically under the Texas Education Code — after summary judgment had been granted in their favor. We affirm the trial court’s order granting summary judgment in favor of Brannon and Freeman, reverse the trial court’s order denying Brannon’s request for attorney’s fees, and remand on the sole issue of Bran-non’s reasonable and necessary attorney’s fees on his professional immunity defense in accordance with this opinion.

I. BACKGROUND

Robinson was employed by Alief Independent School District (“AISD”) as a teacher during the 2004-2005 school year. Robinson contends that in the fall of 2004, he had a brief romantic relationship with Freeman, a fellow AISD employee. Robinson claims that after he ended the relationship, Freeman and Brannon, an employee with AISD’s human resources department, began a campaign against Robinson to tarnish his reputation as an educator. Specifically, Robinson contends that Freeman made harassing phone calls and sent threatening text messages to him. According to Robinson, Freeman also conspired with his former girlfriend to make harassing phone calls to him at his workplace.

Robinson further claims that Brannon assisted in carrying out the scheme of harassment by conducting an improper personnel investigation and placing Robinson on administrative leave for allegedly receiving “preferential treatment” from his supervisor. Robinson claims that while he was on leave, an email was sent to other AISD employees indicating that Robinson suffered from the AIDS virus and was maliciously attempting to spread the disease. The email also allegedly detailed Robinson’s sexual preferences and habits. Robinson claims that Brannon and Freeman’s campaign to harass and embarrass him caused him to suffer a stress-related medical disorder and ultimately forced him to resign from AISD. Both Brannon and Freeman subsequently resigned from AISD as well.

In February 2007, Robinson filed a lawsuit against AISD, AISD’s superintendent Louis Stoerner, in his official capacity, and Brannon and Freeman in their individual capacities. Against AISD and Stoerner, Robinson alleged denial of equal rights, freedom of speech, and due process violations under article I, sections 3, 8, and 19 of the Texas Constitution. Against Bran-non and Freeman, Robinson asserted the following tort claims: (1) civil conspiracy; (2) intentional infliction of emotional distress; (3) tortious interference with prospective and existing business relationships; and (4) invasion of privacy — public disclosure of private facts and intrusion upon seclusion.

All the defendants filed dispositive motions: AISD and Stoerner filed a plea to the jurisdiction, and Brannon and Freeman filed a motion for summary judgment. AISD and Stoerner’s plea to the jurisdiction was granted, and this Court affirmed the trial court’s grant of the plea. In Brannon and Freeman’s summary judgment motion, they claimed that (1) they had professional immunity from suit, (2) the trial court lacked jurisdiction because Robinson had failed to exhaust his administrative remedies, and (3) Robinson failed to produce evidence on each element of his tort claims. The trial court granted the summary judgment motion, concluding that Brannon and Freeman had professional immunity and raised “other meritorious arguments” in their motion for summary judgment. After the motion for summary judgment was granted, Brannon and Freeman moved for attorney’s fees pursuant to section 22.0517 of the Education Code. The trial court denied the motion.

Robinson now appeals the trial court’s summary judgment in favor of Brannon and Freeman. In three issues, Robinson contends that: (1) Brannon and Freeman were not immune from suit under the doctrine of professional immunity; (2) Robinson was not required to exhaust administrative remedies; and (3) fact issues were raised on Robinson’s tort claims. Brannon and Freeman have filed a cross-appeal on the trial court’s order denying their request for attorney’s fees.

II. SUMMARY JUDGMENT STANDARDS OF REVIEW

Brannon and Freeman moved for summary judgment on both traditional and no-evidence grounds. We review a trial court’s summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005). A defendant who seeks a traditional summary judgment under rule 166a(c) must demonstrate that the plaintiff has no cause of action as a matter of law. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215-16 (Tex.2003); Cullins v. Foster, 171 S.W.3d 521, 530 (Tex.App.-Houston [14th Dist.] 2005, pet. denied). A traditional summary judgment is proper when the defendant either negates at least one element of each of the plaintiffs theories of recovery or pleads and conclusively establishes each element of an affirmative defense. Sci Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997); Cullins, 171 S.W.3d at 530. When the defendant has carried its summary judgment burden, the burden shifts to the nonmovant to raise a material fact issue precluding summary judgment. Virginia Indonesia Co. v. Harris County Appraisal Dist., 910 S.W.2d 905, 907 (Tex.1995). In reviewing a summary judgment, we take as true all evidence favorable to the non-movant, indulging every reasonable inference, and we resolve any doubts in the nonmovant’s favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 549 (Tex.1985).

Because a no-evidence summary judgment is essentially a pretrial directed verdict, we apply the same legal sufficiency standard in reviewing a no-evidence summary judgment as we apply in reviewing a directed verdict. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex.2003); Mathis v. Restoration Builders, Inc., 231 S.W.3d 47, 50 (Tex.App.-Houston [14th Dist.] 2007, no pet.). We sustain a no-evidence summary judgment when (1) there is a complete absence of proof of a vital fact; (2) rules of law or evidence bar the court from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a scintilla; or (4) the evidence conclusively establishes the opposite of a vital fact. Chapman, 118 S.W.3d at 751; Walker v. Thomasson Lumber Co., 203 S.W.3d 470, 474 (Tex.App.-Houston [14th Dist.] 2006, no pet.). Less than a scintilla of evidence exists when the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, and in legal effect is no evidence. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex.2004). More than a scintilla of evidence exists when the evidence rises to a level that would enable reasonable and fair-minded people to differ in their conclusions as to the existence of the vital fact. Id.

III. PROFESSIONAL IMMUNITY

In Robinson’s first issue, he contends that the trial court erroneously granted summary judgment in favor of Brannon and Freeman on the ground of professional immunity. Section 22.0511 of the Education Code provides in relevant part:

(a) A professional employee of a school district is not personally liable for any act that is incident to or within the scope of the duties of the employee’s position of employment and that involves the exercise of judgment or discretion on the part of the employee, except in circumstances in which a professional employee uses excessive force in the discipline of students or negligence resulting in bodily injury to students.

Tex. Educ.Code Ann. § 22.0511(a) (Vernon 2006). Accordingly, immunity afforded by this statute requires that the person asserting immunity establish that (1) he or she is a professional employee of a school district, (2) he or she is acting incident to or within the scope of duties, (3) the act involves the exercise of judgment or discretion, and (4) the act does not fall within the stated statutory exceptions. See Le-Leaux v. Hamshire-Fannett Indep. Sch. Dist., 835 S.W.2d 49, 52-53 (Tex.1992); Kobza v. Kutac, 109 S.W.3d 89, 93 (Tex.App.-Austin 2003, pet. denied); Enriquez v. Khouri, 13 S.W.3d 458, 461 (Tex.App.-El Paso 2000, no pet.); Williams v. Chatman, 17 S.W.3d 694, 697 (Tex.App.-Amarillo 1999, pet. denied). Here, Robinson bases his challenge on the second element: Brannon and Freeman’s acts were outside the scope of their employment and were done in bad faith.

Whether one is acting within the scope of his or her employment depends upon whether the general act from which the injury arose was in furtherance of the employer’s business and for the accomplishment of the object for which the employee was employed. Leadon v. Kimbrough Bros. Lumber Co., 484 S.W.2d 567, 569 (Tex.1972); Chesshir v. Sharp, 19 S.W.Bd 502, 504-05 (Tex.App.-Amarillo 2000, no pet.). Should this test be satisfied, then neither (1) the failure of the employer to expressly authorize the act, nor (2) the fact that it was performed negligently, strip the act of its protective shield. Kobza, 109 S.W.3d at 93; Chesshir, 19 S.W.3d at 505. In other words, whether an act occurs within the scope of employment is not conditioned upon whether the employer expressly approved it. Thus, the lack of prior approval does not alone remove the act from the scope of employment.

With respect to Brannon, Robinson contends that Brannon engaged in three acts outside the scope of his employment: conducting the personnel investigation, placing Robinson on administrative leave, and participating in the harassing email and phone calls. Robinson claims that the investigation and suspension were outside of Brannon’s duties because: (1) Bran-non’s human resources duties were limited to overseeing insurance benefits; (2) Brannon had never conducted an investigation involving an allegation of preferential treatment; (3) there was no evidence that Brannon was instructed to investigate Robinson; and (4) the administrative suspension was against AISD policy. Contrary to Robinson’s contentions, the summary judgment evidence conclusively establishes that Brannon’s acts of investigating and placing Robinson on administrative leave was incident to or within the scope of his duties as director of human resources and risk management.

The summary judgment evidence reflects that Brannon was the director of human resources and risk management at AISD when he investigated an allegation that Robinson was receiving preferential treatment from his supervisor. Brannon testified at his deposition that his human resources duties included conducting personnel investigations involving various employee issues. Brannon also participated in pre-termination hearings and testified that he had investigated Robinson and placed him on administrative leave in the capacity of director of human resources. We conclude that the summary judgment evidence conclusively establishes that the acts of investigating and administratively suspending Robinson were incident to or within the scope of Brannon’s duties as the director of human resources. Furthermore, because these acts were incident to Brannon duties, the fact that he may not have followed AISD policy does not affect the protective shield of professional immunity under the Education Code. See Kobza, 109 S.W.3d at 93; Chesshir, 19 S.W.3d at 505. Accordingly, Brannon established that he was entitled to professional immunity with respect to the acts of investigating Robinson for an allegation of employee preferential treatment and placing Robinson on leave.

Robinson also claims that Brannon and Freeman actively participated in the harassing phone calls, text messages, and defamatory email — acts not within the scope of their employment. While these particular acts of harassment were not within the scope of Brannon’s employment as the director of human resources and risk management and Freeman’s employment as a teacher, there is no evidence, as discussed below, that either Brannon or Freeman was the source of or conspired to send the email or make the harassing phone calls. We sustain Robinson’s first issue to the extent that Brannon and Freeman did not have professional immunity from the alleged acts of electronic harassment — harassing phone calls, threatening text messages, and defamatory email — but we overrule Robinson’s first issue to the extent that Brannon had professional immunity regarding the acts of investigating and suspending Robinson.

IV. NO SUMMARY JUDGMENT EVIDENCE TO SUPPORT TORT CLAIMS

In Robinson’s third issue, he contends that there were genuine issues of material fact on each of his tort claims— public disclosure of private facts, intrusion upon seclusion, civil conspiracy, and tor-tious interference with a contract. A plaintiff alleging public disclosure of private facts must show: that (1) publicity was given to matters concerning his private life; (2) the publication of such matter would be highly offensive to a reasonable person of ordinary sensibilities; and (3) the matter publicized is not of legitimate public concern. Indus. Found, of the S. v. Tex. Indus. Acc. Bd., 540 S.W.2d 668, 682-83 (Tex.1976). An unwarranted intrusion upon seclusion is proved by showing that (1) an intentional intrusion, physical or otherwise, upon another’s solitude, seclusion, or private affairs or concerns, (2) the intrusion would be highly offensive to a reasonable person, and (3) the person suffered an injury as a result of the intrusion. Valenzuela v. Aquino, 853 S.W.2d 512, 513 (Tex.1993).

The elements of civil conspiracy are that (1) two or more persons, (2) with an object to be accomplished, (3) with the meeting of minds on the object or course of action, (4) commit one or more unlawful or overt acts, (5) and causes damage or injury. Operation Rescue-Nat’l v. Planned Parenthood, 975 S.W.2d 546, 553 (Tex.1998). The elements of tortious interference with a contract are (1) existence of a contract subject to interference, (2) willful and intentional interference, (3) interference that proximately caused damage, and (4) actual damage or loss. Powell Indus., Inc. v. Allen, 985 S.W.2d 455, 456 (Tex.1998).

Robinson claims that summary judgment was not proper on his tort claims because he produced evidence that Bran-non and Freeman made or participated in the harassing phone calls, threatening text messages, and defamatory email, all of which support his tort causes of action. However, contrary to Robinson’s claims, there is less than a scintilla of evidence showing Brannon and Freeman had participated in the alleged tortious acts of harassment purporting to support Robinson’s tort claims. Robinson testified during his deposition that he had no evidence identifying the source of the defamatory email and believed that his former girlfriend had made the harassing phone calls. Robinson further testified that he had no evidence that Brannon had been involved in the dissemination of the email or making the harassing phone calls. Rather, Robinson testified he speculated that Brannon had participated. Moreover, Robinson testified that he believed Freeman had participated in making the harassing phone calls because he saw her making a phone call on the same day he received one of the harassing calls at his workplace.

There is no evidence — or less than a scintilla of evidence — that Brannon or Freeman made the harassing communications about which Robinson complains. Robinson’s pleadings merely make an unsupported allegation that Brannon and Freeman participated in the harassing email, phone calls, and text messages. Accordingly, the trial court properly granted summary judgment in favor of Brannon and Robinson on Robinson’s tort claims. We overrule Robinson’s third issue.

V. CROSS-APPEAL: ATTORNEY’S FEES

In Brannon and Freeman’s sole issue on cross-appeal, they challenge the trial court’s denial of their request for attorney’s fees under civil procedure rules 181 and 141 and section 22.0517 of the Education Code. See Tex.R. Civ. P. 131, 141; Tex. Educ.Code Ann. § 22.0517. Brannon and Freeman contend that once summary judgment was granted in their favor, they were entitled to attorney’s fees under these three particular provisions. In part, we agree.

Because Brannon and Freeman did not seek attorney’s fees under civil procedure rules 131 and 141 in the trial court, they have waived recovery on these bases. See Tex.R.App. P. 33.1(a). They did, however, seek attorney’s fees under section 22.0517 of the Education Code. The trial court denied their request for section 22.0517 attorney’s fees, indicating that they had “no pleadings.” Robinson’s argument on appeal replicates the trial court’s notation; he contends that Bran-non and Freeman had no pleadings on file affirmatively requesting attorney’s fees under section 22.0517.

Attorney’s fees are recoverable only when provided for by statute or by the parties’ agreement. Dallas Cent. Appraisal Dist. v. Seven Inv. Co., 835 S.W.2d 75, 77 (Tex.1992); Jackson v. Biotectronics, Inc., 937 S.W.2d 38, 44 (TexApp.-Houston [14th Dist.] 1996, no writ). We generally review a trial court’s decision to award attorney’s fees for an abuse of discretion. Bocquet v. Herring, 972 S.W.2d 19, 20. (Tex.1998). A trial court abuses its discretion if its decision is arbitrary, unreasonable, and without reference to guiding principles. Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex.1997). However, some statutes remove the discretion from the trial court. See Bocquet, 972 S.W.2d at 20-21. Statutes providing that a “court may award” attorney’s fees grant courts a measure of discretion in awarding attorney’s fees, but statutes providing that a “party may recover,” “a party shall be awarded,” or “party is entitled to” attorney’s fees mandate an award of reasonable and necessary fees. Id.; Aaron Rents, Inc. v. Travis Cent. Appraisal Dist., 212 S.W.3d 665, 672 (Tex.App.-Austin 2006, no pet.). The relevant attorney’s fee statute in this case provides:

In an action against a professional employee of a school district involving an act that is incidental to or within the scope of duties of the employee’s position of employment and brought against the employee in the employee’s individual capacity, the employee is entitled to recover attorney’s fees and court costs from the plaintiff if the employee is found immune from liability under this subchapter.

Tex. Educ.Code Ann. § 22.0517 (emphasis added). Section 22.0517 clearly provides that “the employee (party) is entitled to recover” if he or she is found to be immune from liability. See id. Accordingly, section 22.0517 mandates the issuance of attorney’s fees after a party has proven that it is immune under chapter 22. See Bocquet, 972 S.W.2d at 20 (indicating that statutes providing a party “is entitled to” recover attorney’s fees are not discretionary). Because the trial court found, and we agree, that Brannon was immune from liability under section 22.0511, it had no discretion in awarding attorney’s fees. Furthermore, assuming that the trial court denied the request for attorney’s fees, as noted in the record, because Brannon had no previous pleadings on file, such “pleading” was not necessary. See Alan Reuber Chevrolet, Inc. v. Grady Chevrolet, Ltd., 287 S.W.3d 877, 884 (Tex.App.-Dallas 2009, no pet.) (“Absent a mandatory statute, a trial court’s jurisdiction to render judgment for attorney’s fees must be invoked by pleadings.”); see also Campbell v. Stucki 220 S.W.3d 562, 567-68 (Tex.App.Tyler 2007, no pet.) (concluding that pleadings were required where there was no mandatory statute providing for recovery of attorney's fees). Because the award of attorneys’ fees was mandatory under section 22.0517, Brannon properly requested the fees following the trial court’s finding of professional immunity.

It is important to note that only Brannon invoked section 22.0517. As discussed above, Brannon showed that he was entitled to professional immunity on the individual acts of investigating and suspending Robinson. However, because Freeman was not protected by professional immunity on the alleged acts of harassment, she is not entitled to section 22.0517 attorney’s fees. Furthermore, Brannon’s entitlement to section 22.0517 attorney’s fees is limited to only those fees specific to his professional immunity defense. Any attorney’s fees associated with defending against Robinson’s suit outside Brannon’s professional immunity — his defenses of exhaustion of administrative remedies and no evidence on the acts of electronic harassment — are not recoverable under section 22.0517. Accordingly, we sustain Bran-non’s sole issue on cross-appeal with respect to those particular fees reasonable and necessary to defend on his professional immunity defense and reverse the trial court’s order denying attorney’s fees accordingly. We overrule Brannon’s issue on cross-appeal as to attorneys’ fees related to his defenses other than professional immunity. We overrule Freeman’s sole issue on cross-appeal.

VI. CONCLUSION

We affirm the trial court’s order granting summary judgment in favor of Bran-non and Freeman, reverse the trial court’s order denying Brannon’s request for attorney’s fees, and remand on the sole issue of Brannon’s reasonable and necessary attorney’s fees on his professional immunity defense in accordance with this opinion.

      . See Robinson v. Alief Indep. Sch. Dist., 298 S.W.3d 321, 323 (Tex.App.-Houston [14th Dist.] 2009, pet. denied).

      . See Tex. Educ.Code Ann. § 22.0517 (Vernon 2006).

      . Because there is no "good faith” element to section 22.0511, we also reject Robinson's argument that Brannon and Freeman acted in bad faith, thereby stripping them of professional immunity. See Kobza, 109 S.W.3d at 93; Enriquez, 13 S.W.3d at 464.

      . Having concluded that Brannon was entitled to summary judgment on the basis of professional immunity on the acts of investigating and suspending Robinson and both Brannon and Freeman were entitled to summary judgment on the other alleged acts of harassment for lack of summary judgment evidence, we need not address the alternate summary judgment grounds raised by Robinson in his second issue. See Tex.R.App. P. 47.1; see also Seureau v. ExxonMobil Corp., 274 S.W.3d 206, 231 (Tex.App.-Houston [14th Dist.] 2008, no pet.).


author: KEM THOMPSON FROST, Justice.

text:
    Roberto Yarit TREJO, Appellant, v. The STATE of Texas, Appellee.
    No. 14-06-00168-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    May 20, 2010.
    Kenneth E. Goode, Houston, for appellant.
    Eric Kugler, Houston, for state.
    Panel consists of Justices FROST, SEYMORE, and BOYCE.
   OPINION ON REMAND

KEM THOMPSON FROST, Justice.

Appellant was charged by indictment with the offense of aggravated sexual assault. The jury acquitted appellant of this offense and found him guilty of aggravated assault, which the trial court submitted to the jury as a lesser-included offense. On remand from the Court of Criminal Appeals, this court must determine whether appellant suffered egregious harm based on the trial court’s error in charging the jury on aggravated assault even though this offense was not a lesser-included offense of the indicted'offense. Concluding that appellant suffered egregious harm, we reverse the trial court’s judgment and remand with instructions to render a judgment of acquittal.

Factual and Procedural Background

Appellant was charged by indictment with the offense of aggravated sexual assault stemming from an incident involving appellant and a woman with whom he lived. At trial, the court’s jury charge authorized the jury to convict appellant for the offense of aggravated sexual assault, as charged in the indictment, or for one of the following offenses: sexual assault, aggravated assault by causing serious bodily injury, and assault by causing bodily injury. The record does not reflect that appellant requested that the jury be charged on aggravated assault by causing bodily injury. The jury found appellant guilty of aggravated assault by causing bodily injury and assessed punishment at five years’ confinement.

On original submission, a panel of this court concluded that aggravated assault by causing bodily injury was not a lesser-included offense of the aggravated sexual assault charged in the indictment and that therefore the trial court lacked jurisdiction to convict appellant of aggravated assault in this case. See Trejo v. State, 242 S.W.3d 48, 54 (Tex.App.-Houston [14th Dist.] 2007), vacated, 280 S.W.3d 258 (Tex.Crim.App.2009). On discretionary review, the Court of Criminal Appeals determined that the trial court’s error was charge error that did not deprive the trial court of jurisdiction. See Trejo v. State, 280 S.W.3d 258, 261 (Tex.Crim.App.2009). Therefore, the Court of Criminal Appeals vacated this court’s judgment and remanded for a determination as to whether the charge error resulted in egregious harm under the legal standard articulated in Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985) (op. on reh’g), superseded on other grounds by rule as stated in Rodriguez v. State, 758 S.W.2d 787, 788 (Tex.Crim.App.1988). See id.

Analysis

Egregious harm deprives appellant of a fair and impartial trial. See Almanza, 686 S.W.2d at 171. Egregious harm occurs when the error “affects ‘the very basis of the case,’ deprives the defendant of a ‘valuable right,’ or ‘vitally affect[s] a defensive theory.’ ” Olivas v. State, 202 S.W.3d 137, 144 (Tex.Crim.App.2006) (quoting Hutch v. State, 922 S.W.2d 166, 171 (Tex.Crim.App.1996) and Almanza, 686 S.W.2d at 172). In the egregious-harm analysis, we consider (1) the charge itself, (2) the state of the evidence, including contested issues and the weight of the probative evidence, (3) arguments of counsel; and, (4) any other relevant information revealed by the trial record as a whole. See Hutch, 922 S.W.2d at 171.

The Jury Charge

The language in the trial court’s jury charge fairly tracks the allegation of aggravated sexual assault as charged in the indictment, in which the State alleged appellant intentionally or knowingly penetrated the complainant’s sexual organ with his sexual organ without her consent by compelling her to submit and participate by (1) using physical force and violence, or (2) threatening to use force and violence against her and she believed appellant had the present ability to execute the threat, and by acts or words placed the complainant in fear that serious bodily injury would be imminently inflicted on her. See Tex. Penal Code Ann. §§ 22.021(a)(l)(A)(i), (a)(2)(A)(ii), 22.011(b)(1), (2) (Vernon Supp. 2009). In the charge, the trial court instructed the jury that, unless the jury found beyond a reasonable doubt that appellant was guilty of aggravated sexual assault as charged, the jury would acquit appellant of aggravated sexual assault and then consider whether appellant was guilty of sexual assault.

After charging the jury on sexual assault, the trial court instructed that, unless the jury found beyond a reasonable doubt that appellant was guilty of sexual assault as charged, the jury would acquit appellant of sexual assault and then consider whether appellant was guilty of aggravated assault. The trial court then charged the jury on an aggravated assault offense that was neither contained in the indictment nor a lesser-included offense of the crime charged in the indictment. See Trejo, 242 S.W.3d at 51-52. Under this charge, by finding appellant guilty of aggravated assault, the jury acquitted appellant of aggravated sexual assault and sexual assault. See Woodard v. State, 300 S.W.3d 404, 410-11 (Tex.App.-Houston [14th Dist.] 2009, pet. granted); Castillo v. State, 7 S.W.3d 253, 260 (Tex.App.-Austin 1999, pet. ref d). Consequently, the jury acquitted appellant of the indicted offense and a lesser-included offense of the indicted offense. Then, as a result of the charge error, the jury convicted appellant of an offense that was not charged in the indictment and that was not a lesser-included offense of the indicted offense. The charge improperly authorized the jury to convict appellant of an altogether different offense than the offense charged in the indictment. Though the remainder of the charge contains no other errors, the charge does not contain any language that would correct or mitigate the damage caused by this charge error. The first Almanza factor weighs in favor of finding egregious harm. See Woodard, 300 S.W.3d at 410-11.

The State of the Evidence

The trial evidence is legally sufficient to support appellant’s conviction for the offense of aggravated sexual assault, sexual assault, or aggravated assault. However, the jury acquitted appellant of the first two offenses, and the harm as to the third is the deprivation of appellant’s valuable right to notice, from the indictment, of the offense charged so that appellant may prepare, in advance of trial, an informed and effective defense. See Riney v. State, 28 S.W.3d 561, 565 (Tex.Crim.App.2000). Notice of the nature and cause of the accusation must come from the face of the indictment, and the accused is not required to look elsewhere. See id. It is not sufficient to say that the accused knew with what offense he was charged; rather, the written indictment must furnish that information in plain and intelligible language. See id.

The State asserts that, because the indictment alleged that appellant caused the penetration of the complainant’s sexual organ by the use of “physical force and violence” and by placing her in fear “that serious bodily injury would be imminently inflicted,” appellant was on notice that serious bodily injury would be a factual issue at trial. Although it is alleged in the indictment that appellant put the complainant in fear that serious bodily injury would be inflicted upon her, it is not alleged that appellant caused the complainant any bodily injury or that he committed aggravated assault. In the indictment, appellant was not furnished with notice that he was charged with intentionally or knowingly causing serious bodily injury to the complainant by striking her with his hands, which is the aggravated assault offense that was erroneously submitted in the jury charge. The state of the evidence weighs in favor of finding egregious harm based on the deprivation of appellant’s valuable right to notice, from the indictment, of the offense charged. See Riney, 28 S.W.3d at 565; Woodard, 300 S.W.3d at 411-12.

Arguments of Counsel

During closing argument, the State focused almost exclusively on its argument that appellant was guilty of aggravated sexual assault; however, the State did assert that, if the jury acquitted appellant of the first two offenses and if the jury believed that appellant caused serious bodily injury to the complainant, then the jury should find appellant guilty of aggravated assault. Appellant’s trial counsel argued that appellant did not penetrate the complainant’s sexual organ with his sexual organ and that the complainant did not suffer serious bodily injury. Therefore, appellant’s trial counsel argued that appellant was not guilty of aggravated sexual assault, sexual assault, or aggravated assault but that he was guilty only of assault. Because the State told the jury it could convict appellant based on aggravated assault, which was an unin-dicted offense, the arguments of counsel weigh in favor of finding egregious harm. See Woodard, 300 S.W.3d at 411-12.

Other Relevant Information Revealed by the Record

Appellant asserts that there is no other relevant information revealed by the record. As to the fourth Almanza factor, the State makes an argument based on the concurring opinion in Teal v. State. See 230 S.W.3d at 183-84 (Keller, P.J., concurring). In Teal, the indictment contained one of the two additional elements needed to allege the felony offense of hindering apprehension instead of misdemeanor hindering apprehension. See Teal, 230 S.W.3d at 174. The author of the concurring opinion stated that, by alleging one of the additional elements in an indictment filed in the district court, the indictment suggested the felony offense of hindering apprehension and was sufficient to confer subject matter jurisdiction on the trial court. See id. at 183-84 & n. 12.

In contrast, the Court of Criminal Appeals has held that the trial court below had subject matter jurisdiction, so subject matter jurisdiction is not an issue before this court on remand. See Trejo, 280 S.W.3d at 260-61. In addition, unlike the appellant in Teal, the appellant in this case does not assert a defect in the indictment. See Teal, 230 S.W.3d at 183-84. As pointed out by the author of the Teal concurring opinion, “even when an indictment is error-free, a defendant can raise a claim that he was convicted of an offense that was not authorized by the facially complete indictment. Under those circumstances, the defendant can argue persuasively that the indictment was not defective, and thus, there was nothing to object to prior to trial. In that situation, there is no indictment error; rather, there is error in charging the jury or in rendering judgment on an offense that the indictment does not authorize.” Id. The author pointed out that, if such error is considered to be in the jury charge, then even absent preservation of error in the trial court, the error is still reversible if it resulted in egregious harm under Alman-za. See id. at 184, n. 10.

The Court of Criminal Appeals in Trejo held that the error in this case is in the jury charge and remanded the case to this court for a determination as to whether this error resulted in egregious harm under Almanza. See Trejo, 280 S.W.Bd at 261. The author of the concurring opinion in Teal expressly distinguished the situation in the case at hand from the situation in Teal. See Teal, 230 S.W.3d at 183-84. Therefore, the concurring opinion in Teal does not support the State’s argument that the charge error in this case did not result in egregious harm. We do not find any other information revealed by the record relevant to the egregious-harm analysis.

Conclusion

Having considered the factors set forth in Almanza, we hold appellant was egregiously harmed by the trial court’s submission of a charge authorizing the jury to convict appellant for an unindicted offense. See Daniels v. State, 754 S.W.2d 214, 222-23 (Tex.Crim.App.1988) (holding that charge error that allowed jury to convict appellant for an unindicted offense caused egregious harm); Woodard, 300 S.W.3d at 410-12 (same as Daniels)-, Steward v. State, 830 S.W.2d 771, 774 (Tex.App.-Houston [14th Dist.] 1992, no pet.) (same as Daniels); Farrakhan v. State, 263 S.W.3d 124, 144-45 (Tex.App.-Houston [1st Dist.] 2006) (same as Daniels), aff'd, 247 S.W.3d 720 (Tex.Crim.App.2008); Castillo, 7 S.W.3d at 260-61 (same as Daniels). Accordingly, we reverse the trial court’s judgment and remand with instructions to render a judgment of acquittal. See Woodard, 300 S.W.3d at 412; Castillo, 7 S.W.3d at 262. Our disposition of this appeal does not preclude the State from seeking a new indictment for aggravated assault. See Woodard, 300 S.W.3d at 412; Castillo, 7 S.W.3d at 262.

      . The facts of this case are set forth in detail in Trejo v. State, 242 S.W.3d 48, 49-50 (Tex.App.-Houston [14th Dist.] 2007), vacated, 280 S.W.3d 258 (Tex.Crim.App.2009).

      . The State relies on Teal v. State. See 230 S.W.3d 172, 180-82 (Tex.Crim.App.2007). However, in that case the appellant complained that a defect in the indictment deprived the trial court of subject matter jurisdiction. See id. The Teal court held that the trial court had jurisdiction because, even though the indictment was defective, the district court and the defendant could determine from the face of the indictment that the grand jury intended to charge the defendant with a felony or other offense over which the district court had jurisdiction. See id. The Teal court did not address a complaint that the appellant was convicted for an offense not charged in the indictment, and the Teal court did not determine whether there was egregious harm under Almanza. See id. Therefore, the Teal case is not on point.