author: FELIPE REYNA, Justice.

text:
    The STATE of Texas, Appellant, v. Paula S. HOLLIS, Appellee.
    No. 10-09-00330-CR.
    Court of Appeals of Texas, Waco.
    Oct. 6, 2010.

      John T. Quinn, Bryan, for Appellant.
    Rodney W. Anderson, County Atty. for Brazos County, Bryan, for Appellee.
    Before Chief Justice GRAY, Justice REYNA, and Justice DAVIS.
   OPINION

FELIPE REYNA, Justice.

In a de novo appeal from justice court, Paula S. Hollis pleaded guilty to driving 72 miles per hour in a 55-mile-per-hour zone. The court deferred a finding of guilt and ordered Hollis to complete a driving safety course upon the successful completion of which the court would dismiss the case. The State contends in its sole issue that this is an illegal sentence under article 42.111 of the Code of Criminal Procedure because this statute prohibits a county court from granting such relief for a “case disposed of under Subchapter B, Chapter 543, Transportation Code, or a serious traffic violation as defined by Section 522.003, Transportation Code.” We will affirm.

Article 42.111

Article 42.111 provides:

If a defendant convicted of a misdemeanor punishable by fine only appeals the conviction to a county court, on the trial in county court the defendant may enter a plea of guilty or nolo contendere to the offense. If the defendant enters a plea of guilty or nolo contendere, the court may defer further proceedings without entering an adjudication of guilt in the same manner as provided for the deferral of proceedings in justice court or municipal court under Article 45.051 of this code. This article does not apply to a misdemeanor case disposed of under Subchapter B, Chapter 543, Transportation Code, or a serious traffic violation as defined by Section 522.003, Transportation Code.

Tex.Code Crim. PROC. Ann. art. 42.111 (Vernon 2006).

The State’s primary contention is that article 42.111 does not apply because Hollis committed “a serious traffic violation as defined by Section 522.003, Transportation Code.” Hollis responds that this exclusion applies only to commercial driver’s license (CDL) holders because Chapter 522 of the Transportation Code applies only to CDL’s.

The State essentially contends that the first exclusion for “a misdemeanor case disposed of under Subchapter B, Chapter 543” applies to any traffic offense for which a defendant could have received deferred adjudication in justice court under article 45.0511 of the Code of Criminal Procedure (the successor statute to Sub-chapter B, Chapter 543 of the Transportation Code). As the State argued in the trial court, article 45.0511, which provides for dismissal of a speeding ticket after completion of a driving safety course, “does not apply when a case is appealed from justice court.” Hollis responds with a two-part argument. First, she contends that this exclusion is meaningless because Subchapter B was repealed in 1999. In the alternative, she argues that the exclusion applies only if the defendant appeals after being permitted to take a driving safety course by the justice court under article 45.0511, thereby preventing “two ‘bites’ at the proverbial punishment apple.”

We will apply the principles of statutory construction to determine the meaning of the statute.

Statutory Construction
If the plain language of a statute would lead to absurd results, or if the language is not plain but rather ambiguous, then and only then, out of absolute necessity, is it constitutionally permissible for a court to consider, in arriving at a sensible interpretation, such extratex-tual factors as executive or administrative interpretations of the statute or legislative history.

State v. Neesley, 239 S.W.3d 780, 783 (Tex.Crim.App.2007) (quoting Boykin v. State, 818 S.W.2d 782, 785-86 (Tex.Crim.App.1991)). “In the context of statutory construction, ‘ambiguity exists when a statute is capable of being understood by reasonably well-informed persons in two or more different senses.’ In contrast, a statute is unambiguous where it ‘admits of no more than one meaning.’ ” Id. (quoting 2A Nor-MAN J. SlNGER, STATUTES AND STATUTORY Construction § 45.02 (5th Ed.1992)).

Article 42.111 is “capable of being understood by reasonably well-informed persons in two or more different senses.” See id. Thus, we will consider relevant extra-textual factors to arrive at a “sensible interpretation” of the statute. Id.; Boykin, 818 S.W.2d at 785-86. We will do so by tracing the history of this and related statutes. See Tex. Gov’t Code Ann. § 311.023(3), (4) (Vernon 2005).

Hutner v. Russell

To understand the meaning of the relevant statutes, we begin with the 1983 decision of the Court of Criminal Appeals in Kutner v. Russell, 658 S.W.2d 585 (Tex.Crim.App.1983) (orig. proceeding), then examine amendments to the relevant statutes enacted before article 42.111 was enacted in 1989.

Kutner was convicted of a traffic offense in municipal court and appealed to a statutory county court. On appeal, he sought to take a driving safety course under article 6701d, section 143A which authorized the municipal court to defer proceedings in traffic cases for 90 days to permit the defendant to take a driving safety course and to dismiss the charge when furnished with written evidence of successful completion of the course. The county court refused Kutner’s request, and he sought a writ of mandamus from the Court of Criminal Appeals. Id. at 585-86.

The Court denied mandamus relief, holding:

The caption [to section 143A] describes the statute as' “[a]n Act relating to a driving safety course as an alternative to prosecution for certain traffic offenses .... ” When a person stands “charged” with an offense he may, under circumstances prescribed by the Act, choose between going to trial or taking a driving course. After foregoing the “alternative to prosecution,” choosing to go to trial, and after having been convicted, he may not invoke the statute on appeal to the county court at law.

Id. at 586 (citation to session law omitted) (citing Op. Tex. Att’y Gen. No. MW-428 (1982)).

When Kutner was decided, section 143A read in pertinent part as follows:

(a) When a person is charged with a misdemeanor offense under this Act, other than a violation of Section 50 or 51, committed while operating a motor vehicle, the court:
(1) in its discretion may defer proceedings and allow the person 90 days to present evidence that, subsequent to the alleged act, the person has successfully completed a defensive driver’s course approved by the Texas Department of Public Safety or other driving safety course approved by the court; or
(2) shall defer proceedings and allow the person 90 days to present written evidence that, subsequent to the alleged act, the person has successfully completed a driving safety course approved by the court, if [three additional requirements are satisfied].

Act of May 26, 1979, 66th Leg., R.S., ch. 610, § 1, 1979 Tex. Gen. Laws 1359, 1359 (footnotes added).

The 68th Legislature amended section 143A in pertinent part by deleting the reference to “Section 50” as part of a comprehensive amendment to the then-existing statutes governing driving while intoxicated. See Act of May 27, 1988, 68th Leg., R.S., ch. 303, § 22, 1983 Tex. Gen. Laws 1568,1601-02.

In 1986, the Attorney General was asked to construe article 45.54 to determine, among other things, whether this statute authorized a county judge to grant deferred adjudication on appeal for a traffic offense. See Op. Tex. Att’y Gen. No. JM-526 (1986). At that time, article 45.54(1) provided in pertinent part:

Upon conviction of the defendant of a misdemeanor punishable by fine only, other than a misdemeanor described by Section 143A, Uniform Act Regulating Traffic on Highways, as amended (Article 6701d, Vernon’s Texas Civil Statutes), the justice may suspend the imposition of the fine and defer final disposition of the case for a period not to exceed 180 days.

Act of May 29, 1981, 67th Leg., R.S., ch. 318, § 1, 1981 Tex. Gen. Laws 894, 894.

After reviewing Kutner, the Attorney General concluded that a county court was not authorized to grant deferred adjudication in this situation.

[W]e believe that the Texas Court of Criminal Appeals will take a similar position in the construction of article 45.54. Kutner, supports the conclusion that the county court has no statutory power to invoke article 45.54 when a defendant has been originally charged and convicted in a municipal or justice court because, like section 143A of article 6701d, the legislature did not expressly provide for this purpose or construction. Accordingly, we conclude that only a municipal judge and a justice of the peace may take action under article 45.54 of the Code of Criminal Procedure.

Op. Tex. Att’y Gen. No. JM-526.

The legislature amended article 45.54(1) in 1987 as follows:

Upon conviction of the defendant of a misdemeanor punishable by fine only, other than a misdemeanor disposed of [described] by Section 143A, Uniform Act Regulating Traffic on HighwaysG-as amended] (Article 6701d, Vernon’s Texas Civil Statutes), the justice may suspend the imposition of the fine and defer final disposition of the case for a period not to exceed 180 days.

Act of May 18, 1987, 70th Leg., R.S., ch. 226, § 1, 1987 Tex. Gen. Laws 1523, 1523. The House Committee on Criminal Jurisprudence explained the reasoning behind this amendment in its bill analysis.

The Committee observed that, under the prior law which excluded traffic offenses “described by Section 143A,” “Misdemean- or traffic charges which, for one reason or another, are not disposed of through the Defensive Driving Program, may not receive deferral action and dismissal under Article 45.54.” House Comm, on CmM. Jur-is., Bill Analysis, S.B. 1422, 70th Leg., R.S. (1987). Thus, the statute was amended “to provide that only those misdemeanor traffic violations which are disposed of through the Defensive Driving Program are excluded from the provisions of the Article.” Id.

The effect of the 1987 amendment to article 45.54 was to permit a justice court to grant deferred adjudication to a defendant charged with a traffic offense who failed, “for one reason or another,” to invoke the provisions of section 143A.

The 70th Legislature also amended section 143A in 1987 by:

• adding a requirement that a defendant invoke the provisions of section 143A “on or before the answer date on the citation”; and
• prohibiting a defendant from invoking the provisions of section 143A if the charge was for “speeding 25 miles per hour or more over the posted speed limit.” Id.

Act of June 1, 1987, 70th Leg., R.S., ch. 1059, § 1, 1987 Tex. Gen. Laws 3591, 3591-92.

With this background in mind, we move forward to 1989 when the legislature enacted article 42.111.

1989 Amendments

As originally enacted, article 42.111 provided:

If a defendant convicted of a misdemeanor punishable by fine only, other than a misdemeanor disposed of by Section 143A, Uniform Act Regulating Traffic on Highways (Article 6701d, Vernon’s Texas Civil Statutes), appeals the conviction to a county court, on the trial in county court the defendant may enter a plea of guilty or nolo contendere to the offense. If the defendant enters a plea of guilty or nolo contendere, the court may defer further proceedings without entering an adjudication of guilt in the same manner as provided for the deferral of proceedings in justice court or municipal court under Article 45.54 of this code.

Act of May 28, 1989, 71st Leg., R.S., ch. 399, § 2, 1989 Tex. Gen. Laws 1540, 1540-41.

The legislature amended article 45.54(1) in 1989 as follows:

On a plea of guilty or nolo contendere by a [Upon conviction of the] defendant or on a finding of guilt in [of] a misdemeanor case punishable by fine only, other than a misdemeanor case disposed of by Section 143A, Uniform Act Regulating Traffic on Highways (Article 6701d, Vernon’s Texas Civil Statutes), and payment of all court costs, the justice may defer further proceedings without entering an adjudication of guilt and place the defendant on probation [suspend the-imposition of the-fine and defer final disposition of the case] for a period not to exceed 180 days.

Act of May 28, 1989, 71st Leg., R.S., ch. 399, § 1, 1989 Tex. Gen. Laws 1540, 1540.

So in 1989, a defendant who committed a misdemeanor traffic offense other than reckless driving could have the proceedings deferred in justice court under section 143A, take a driving safety course, and have the charge dismissed. See Act of May 9, 1989, 71st Leg., R.S., ch. 156, § 1, 1989 Tex. Gen. Laws 535, 535-36. And if this defendant failed, “for one reason or another,” to invoke the provisions of section 143A, he could seek deferred adjudication under article 45.54.

If a defendant chose to appeal a fine-only misdemeanor conviction to county court, then he or she could obtain deferred adjudication in county court “in the same manner as provided” by article 45.54, unless the conviction was for “a misdemeanor disposed of by Section 143A.”

As originally enacted, article 42.111 provided for deferred adjudication in an appeal from only a conviction and excluded from its coverage an appeal from a misdemeanor disposed, of by section 143A. See Tapps v. State, 294 S.W.3d 175, 177 (Tex.Crim.App.2009) (in construing a statute, “[w]e assume that every word has been used for a purpose and that each word, phrase, clause, and sentence should be given effect if reasonably possible.”) (quoting Campbell v. State, 49 S.W.3d 874, 876 (Tex.Crim.App.2001)). At first glance, it would seem that a misdemeanor disposed of under section 143A would have been dismissed rather than resulting in a conviction. If such a case were dismissed, then there would be no appeal.

Conversely, if the defendant failed to complete the driving safety course, the justice court would have presumably “revoked” his or her deferred adjudication, adjudicated guilt, and imposed a fíne, resulting in an appealable “conviction.” Under this scenario, article 42.111 could be construed to mean that if a defendant attempted but failed to obtain dismissal of a traffic ticket under section 143A because of the defendant’s non-compliance with the requirements of the statute, then the defendant could not seek a deferral of proceedings on appeal to the county court.

A third possibility involves construing article 42.111 in the same manner as article 45.54, which had identical language regarding “a misdemeanor disposed of by Section 143A.” This construction has support in the language of article 42.111 because the statute expressly authorized the deferral of proceedings without an adjudication of guilt “in .the same manner as provided for the deferral of proceedings in justice court or municipal court under Article 45.54.” Following this interpretation, a defendant who appealed a fine-only misdemeanor conviction (other than “a misdemeanor disposed of by Section 143A”) from justice court to county court could receive deferred adjudication in county court just as the defendant could have in justice court.

Because of the similarities in the language of article 42.111 and article 45.54, this third alternative seems the most appropriate interpretation. Under article 45.54, a justice court was authorized to grant deferred adjudication to a defendant charged with a traffic offense who failed, “for one reason or another,” to invoke the procedures of section 143A. In the same manner, we conclude that, as originally enacted, article 42.111 authorized a county court to grant deferred adjudication to a defendant who failed, “for one reason or another,” to invoke the procedures of section 143A in justice court. We will now trace the subsequent amendments to article 42.111 and related statutes to determine whether a different construction now applies.

1991 Amendments

Article 42.111 was amended in 1991 as follows:

If a defendant convicted of a misdemeanor punishable by fíne only[v other than-a-misdemeanor-disposed of by Section 143A, Uniform Act Regulating Traffic-on-H-ighways-(Ar-ticle-6701-d¡-Vernon’s Texas Civil Statutes),] appeals the conviction to a county court, on the trial in county court the defendant may enter a plea of guilty or nolo contendere to the offense. If the defendant enters a plea of guilty or nolo contendere, the court may defer further proceedings without entering an adjudication of guilt in the same manner as provided for the deferral of proceedings in justice court or municipal court under Article 45.54 of this code. This article does not apply to a misdemeanor case disposed of by Section USA, Uniform Act Regulating Traffic on Highways (Article 6701d, Vernon’s Texas Civil Statutes), or a serious traffic violation as defined in Section 3(26), Texas Commercial Driver’s License Act (Article 6687b — 2, Revised Statutes).

Act of May 21, 1991, 72d Leg., R.S., ch. 775, § 18,1991 Tex. Gen. Laws 2761, 2766. The 72nd Legislature amended article 45.54(1) in similar fashion, deleting the phrase in the first sentence referring to section 148A and adding a second sentence identical to the one added to article 42.111. See Act of May 21, 1991, 72d Leg., R.S., ch. 775, § 19, 1991 Tex. Gen. Laws 2761, 2766-67.

The 72nd Legislature also amended section 143A in similar fashion so that subsection (a) read as follows:

When a person is charged with a misdemeanor offense under this Act, other than a violation of Section 51 or a serious traffic violation as defined in Section 3(26), Texas Commercial Driver’s License Act (Article 6687b — 2, Revised Statutes), committed while operating a motor vehicle, the defendant shall be advised by the court of his right to successfully complete a driving safety course....

Act of May 21, 1991, 72d Leg., R.S., ch. 775, § 17, 1991 Tex. Gen. Laws 2761, 2766.

Section 3(26) of the Texas Commercial Driver’s License Act then provided in pertinent part:

“Serious traffic violation” means a conviction arising from the driving of a commercial motor vehicle for:
(A) excessive speeding, involving a single charge of any speed 15 miles per hour or more above the posted speed limit.

Act of May 29, 1989, 71st Leg., R.S., ch. 236, § 1, 1989 Tex. Gen. Laws 1086, 1089.

As amended in 1991, a defendant could not obtain deferred adjudication in justice court under section 143A for reckless driving, failure to stop and give information following an accident, failure to stop and render aid, fleeing, speeding 25 mph or more above the posted limit, or a “serious traffic violation” committed while driving a commercial motor vehicle.

It is conceivable that as a result of the 1991 amendments a defendant could receive deferred adjudication in justice court under article 45.54 for reckless driving, failure to stop and give information following an accident, failure to stop and render aid, fleeing, or speeding 25 mph or more above the posted limit (even though the defendant could not under section 143A), but we need not decide whether that was so. Regardless, the 72nd Legislature made it clear that deferred adjudication was not available under article 45.54 to a defendant who committed a “serious traffic violation” while driving a commercial motor vehicle.

Insofar as article 42.111 was amended with regard to cases “disposed of by Section 143A,” the 1991 amendment does not indicate any change in legislative intent. Thus, we hold that, as amended in 1991, article 42.111 authorized a county court to grant deferred adjudication to a defendant who failed, “for one reason or another,” to invoke the procedures of section 143A in justice court. And consistent -with the amendments to section 143A and article 45.54, the 72nd Legislature prohibited the granting of deferred adjudication on appeal in county court to a defendant who committed a “serious traffic violation” while driving a commercial motor vehicle.

The House Committee on Public Safety’s bill analysis bears out this interpretation.

This change would make Driving Safety Courses unavailable to drivers of commercial motor vehicles who are “convicted” of serious traffic violations. The term “serious traffic violations” is a term of art specifically defined in 49 C.F.R. § 383.5. It includes five violations only: speeding 15 miles per hour [or] more above the posted speed limit, reckless driving, unsafe lane change, following too closely, and violations arising in connection with a fatal accident. The driving safety course alternative would still be available to drivers of commercial motor vehicles for other traffic tickets, such as running red lights or stop signs, and speeding as long as it was not 15 miles or more over the speed limit. Also, CDL licensees could still take advantage of the Driving Safety Course provisions if they received the traffic citations in vehicles other than commercial motor vehicles. For example, if a Class A CDL holder receives a citation for following too closely in his personal car, he can still take a Driving Safety Course to have that ticket dismissed, if otherwise eligible. The exclusion would only refer to serious traffic violations committed in commercial motor vehicles. .... The changes in the Code of Criminal Procedure would make this type of deferred disposition unavailable to drivers of commercial motor vehicles who commit serious traffic violations.

House Comm, on Pub. Safety, Bill Analysis, Tex. H.B. 1342, 72d Leg., R.S. (1991).

1995 Amendments

The legislature enacted the Texas Transportation Code in 1995. Section 143A was codified as Subchapter B, Chapter 543 of the Transportation Code. See Act of May 1, 1995, 74th Leg., R.S., ch. 165, § 1, secs. 543.102-.104,1995 Tex. Gen. Laws 1025, 1614-15; see also Act of May 1, 1995, 74th Leg., R.S., ch. 165, § 24(a), 1995 Tex. Gen. Laws 1025, 1870-71 (repealing article 6701d). Section 543.102 of the Transportation Code then provided:

The court shall advise a person charged with a misdemeanor under this subtitle, committed while operating a motor vehicle, of the person’s right to successfully complete a driving safety course. The right to complete a course does not apply to a person charged with a violation of Section 545.066, 545.401, 545.421, 550.022, or 550.023 or a serious traffic violation as defined by Section 522.003.

Act of May 1, 1995, 74th Leg., R.S., ch. 165, § 1, sec. 543.102,1995 Tex. Gen. Laws 1025, 1614. Section 543.103(a)(6) continued the prohibition against deferred adjudication for speeding 25 mph or more above the posted limit. See Act of May 1, 1995, 74th Leg., R.S., ch. 165, § 1, sec. 543.103(a)(6), 1995 Tex. Gen. Laws 1025, 1614-15. And section 522.003 defined a serious traffic violation consistent with its predecessor statute as one committed while driving a commercial motor vehicle. Act of May 1, 1995, 74th Leg., R.S., ch. 165, § 1, sec. 522.003(25), 1995 Tex. Gen. Laws 1025,1580-81.

Neither article 45.54 nor article 42.111 were amended in 1995. Thus, these statutes continued to provide exclusions for “a misdemeanor case disposed of by Section 143A” and for “a serious traffic violation as defined in Section 3(26), Texas Commercial Driver’s License Act (Article 6687b — 2, Revised Statutes).” Despite these references to statutes which were repealed, the meaning of articles 45.54 and 42.111 did not change. See Tex. Gov’t Code Ann. § 311.027 (Vernon 2005) (“Unless expressly provided otherwise, a reference to any portion of a statute or rule applies to all reenactments, revisions, or amendments of the statute or rule.”); In re R.J.J., 959 S.W.2d 185, 186 (Tex.1998) (per curiam) (“When the referenced statute is repealed, the meaning and scope of the referencing statute do not change, absent clear legislative intent to the contrary.”); Ex parte Thompson, 178 S.W.3d 458, 462-63 (Tex.Crim.App.2005) (Keller, P.J., concurring) (citing R.J.J.).

1999 Amendments

In 1999, Subchapter B, Chapter 543 of the Transportation Code was recodified as article 45.0511 of the Code of Criminal Procedure. See Act of May 30, 1999, 76th Leg., R.S., ch. 1545, § 51, 1999 Tex. Gen. Laws 5314, 5325-26; see also Act of May 30, 1999, 76th Leg., R.S., ch. 1545, § 75(b), 1999 Tex. Gen. Laws 5314, 5331 (repealing- Subchapter B). Article 45.0511(p) provided:

The court shall advise a person charged with a misdemeanor under Subtitle C, Title 7, Transportation Code, committed while operating a motor vehicle of the person’s right under this article to successfully complete a driving safety course or, if the offense was committed while operating a motorcycle, a motorcycle operator training course. The right to complete a course does not apply to a person charged with a violation of Section 545.066, 545.401, 545.421, 550.022, or 550.023, Transportation Code, or serious traffic violation as defined by Section 522.003, Transportation Code.

Act of May 30, 1999, 76th Leg., R.S., ch. 1545, § 51, 1999 Tex. Gen. Laws 5314, 5325-26. Article 45.0511(c)(4) continued the prohibition against deferred adjudication for speeding 25 mph or more above the posted limit. Act of May 30, 1999, 76th Leg., R.S., ch. 1545, § 51, 1999 Tex. Gen. Laws 5314, 5325-26.

The 76th Legislature recodified article 45.54 as article 45.051 and amended the statute by deleting the second sentence of subsection (a), which had previously provided the exclusions for “a' misdemeanor case disposed of by Section 143A” and for “a serious traffic violation as defined in Section 3(26), Texas Commercial Driver’s License Act (Article 6687b — 2, Revised Statutes).” Act of May 30, 1999, 76th Leg., R.S., ch. 1545, § 50, 1999 Tex. Gen. Laws 5314, 5325-26. The 1999 amendments removed from article 45.051 any references to traffic offenses or driving safety courses. See id.

Finally, the 76th Legislature amended article 42.111 to read as it currently does:

If a defendant convicted of a misdemeanor punishable by fine only appeals the conviction to a county court, on the trial in county court the defendant may enter a plea of guilty or nolo contendere to. the offense. If the defendant enters a plea of guilty or nolo contendere, the court may defer further proceedings without entering an adjudication of guilt in the same manner as provided for the deferral of proceedings in justice court or municipal court under Article 4-5.051 [45.54] of this code. This article does not apply to a misdemeanor case disposed of under Subchapter B, Chapter 543, Transportation Code [by Section 143Ar-U-niform Act Regulating Traffic on Highways (Article 6701d,-Vernon’s Texas Civil-Statutes)], or a serious traffic violation as defined by Section 522.003, Transportation Code [in Section 3(26), Texas Commercial Driver’s License Act (Article 6687b — 2, Revised Statutes)].

Act of May 30, 1999, 76th Leg., R.S., eh. 1545, § 62, 1999 Tex. Gen. Laws 5314, 5329.

Thus, after the 1999 amendments, a defendant could obtain deferred adjudication in justice court for a traffic offense only under article 45.0511 unless the defendant was charged with passing a school bus, reckless driving, fleeing, failure to stop and give information following an accident, failure to stop and render aid, speeding 25 mph or more above the posted limit, or a serious traffic violation committed while driving a commercial motor vehicle. A defendant could no longer obtain deferred adjudication for a traffic offense under article 45.051 because the more specific provisions of article 45.0511 would have controlled. See Juarez v. State, 308 S.W.3d 398, 405 (Tex.Crim.App.2010) (“When interpreting statutes that are in pari mate-ria and construed together, both are given effect with the special governing over the general in the event of a conflict.”); see also House Comm, on Judicial AffaiRS, Bill Analysis, Tex. H.B. 1603, 76th Leg., R.S. (1999) (noting that legislation transferred “all requirements that a defendant successfully complete a driving safety course” to article 45.0511).

Although the 76th Legislature amended article 45.54 and recodified it as article 45.051, there is nothing in the legislative history to indicate that any change was intended in the construction or application of article 42.111 which was updated only to reflect amendments to the statutes referenced in article 42.111. See House Comm, on Crim. Juris., Bill Analysis, Tex. S.B. 1230, 76th Leg., R.S. (1999) (noting that proposed legislation “[ajmends Article 42.111, Code of Criminal Procedure, to make conforming and nonsubstantive changes”). Thus, after the 1999 amendments, article 42.111 continued to authorize a county court to grant deferred adjudication on appeal to a defendant who failed, “for one reason or another,” to invoke the procedures of article 45.0511 (former section 143A) in justice court but prohibited the granting of deferred adjudication on appeal to a defendant who committed a “serious traffic violation” while driving a commercial motor vehicle.

2003 Amendments

The legislature made numerous amendments to article 45.0511 in 2003. In particular, subsection (p) was amended as follows:

(p) The court shall advise a defendant [person] charged with a misdemeanor under Section 1.72.022, Transportation Code, Subtitle C, Title 7, Transportation Code, or Section 729.001(a)(3), Transportation Code, committed while operating a motor vehicle of the defendant’s [person’s] right under this article to successfully complete a driving safety course or, if the offense was committed while operating a motorcycle, a motorcycle operator training course. The right to complete a course does not apply to a defendant [person] charged with:
(1) a violation of Section 545.066, [545.401, 545.421,] 550.022, or 550.023, Transportation Code;
(2) a [, or] serious traffic violation; or
(3) an offense to which [as defined by] Section 512401 or 729.00Mb) [522.003], Transportation Code, applies.

Act of June 1, 2003, 78th Leg., R.S., ch. 1182, § 2, 2008 Tex. Gen. Laws 8380, 3384. (footnote added). Subsections (b) and (c) were amended so that the prohibition against deferred adjudication for speeding 25 mph or more above the posted limit was reflected in subsection (b)(5). Act of June 1, 2003, 78th Leg., R.S., ch. 1182, § 2, 2003 Tex. Gen. Laws 3380, 3381-82. The legislature also added subsection (s) which read, “This article does not apply to an offense committed by a person who holds a commercial driver’s license.” Act of June 1, 2003, 78th Leg., R.S., ch. 1182, § 2, 2003 Tex. Gen. Laws 3380, 3384.

The 78th Legislature amended section 522.003’s definition of a “serious traffic violation” in pertinent part as follows:

(25) “Serious traffic violation” means:
(A) a conviction arising from the driving of a [commercial] motor vehicle, other than a parking, vehicle weight, or vehicle defect violation, for:
(i) [(Aj] excessive speeding, involving a single charge of driving 15 miles per hour or more above the posted speed limit.

Act of May 30, 2003, 78th Leg., R.S., ch. 991, § 6, 2003 Tex. Gen. Laws 2888, 2889.

The 78th Legislature restored language authorizing driving safety courses in article 45.051 as follows:

(b) During the deferral period, the judge [justice] may, at the judge’s discretion, require the defendant to:
(8) complete a driving safety course approved under the Texas Driver and Traffic Safety Education Act (Article 4413(29c), Vernon’s Texas Civil Statutes) or another course as directed by the judge.

Act of May 30, 2003, 78th Leg., R.S., ch. 991, § 12, 2003 Tex. Gen. Laws 2888, 2892. The legislature also amended article 45.051 by providing a list of traffic offenses for which a defendant could not receive deferred adjudication under article 45.051:

(f) This article does not apply to:
(1) an offense to which Section 542.404 or 729.004(b), Transportation Code, applies; or
(2) a traffic offense committed by a person who holds a commercial driver’s license.

Id.

Article 4.5.0511

As amended in 2003 (and presently), a defendant can obtain deferred adjudication in justice court under article 45.0511 for: (A) disobeying a warning sign or barricade (Section 472.022, Transportation Code); (B) a traffic offense not otherwise excluded (Subtitle C, Title 7, Transportation Code); and (C) a traffic offense not otherwise excluded and committed by a minor (Section 729.001(a)(3), Transportation Code).

As of 2003, a defendant could not obtain deferred adjudication in justice court under article 45.0511 for:

(A) speeding 25 mph or more over the posted limit;
(B) passing a school bus;
(C) failure to stop and give information following an accident;
(D) failure to stop and render aid;
(E) a traffic offense committed in a construction or maintenance work zone; or
(F) a traffic offense committed by a person who holds a commercial driver’s license.

Finally, according to the 2003 amendments, a defendant could not obtain deferred adjudication in justice court under article 45.0511 for a “serious traffic violation,” but that term was no longer defined by reference to the CDL statute, section 522.003. If we construe this amendment as the State suggests, then the exclusion of current article 45.0511(b)(5), which denies deferred adjudication to persons speeding 25 mph or more over the posted speed limit, would be rendered meaningless because section 522.003 defines a “serious traffic violation” in part as speeding 15 mph or more over the posted speed limit. See Tex. Gov’t Code Ann. § 311.021(2) (Vernon 2005) (court must presume that “the entire statute is intended to be effective”); Tapps, 294 S.W.3d at 177 (“each word, phrase, clause, and sentence should be given effect if reasonably possible”). Therefore, we construe the 2003 amendment to article 45.0511 to have retained the statute’s prior meaning that a person is not eligible for deferred adjudication in justice court under article 45.0511 if the person committed a “serious traffic violation” while driving a commercial motor vehicle.

This interpretation is consistent with the legislative history. As noted in the bill analysis of the Senate Committee on Infrastructure Development and Security, the amendments to the CDL statutes were made to allow “certain traffic violations committed by a person who holds a CDL in a non-commercial vehicle to adversely affect the status of his or her CDL.” Sen. Comm, on INFRASTRUCTURE Dev. & Sec., Bill Analysis, Tex. S.B.1904, 78th Leg., R.S. (2003). Thus, this legislation removed the reference in section 522.003(25) to a “serious traffic violation” as one committed in a commercial motor vehicle so that appropriate sanctions would apply to a CDL holder who committed such a violation in a noncommercial vehicle. And in this same legislation, the Committee observed that article 45.051l(p) was being amended by “[m]odif[ying] statutory references to conform to changes made by this Act.” Id.

Article Í5.051

The 78th Legislature restored the authority of a justice court to grant deferred adjudication in traffic offenses under arti-ele 45.051 with a narrow list of exceptions. As amended, a justice court could grant deferred adjudication for a traffic offense under article 45.051, unless the defendant was charged with a traffic offense: • (a) committed in a construction or maintenance work zone; or (b) committed by a person who holds a commercial driver’s license.

The legislative history does not indicate why this general authority was restored for justice courts under article 45.051 after being taken away in 1999. We presume that it was restored for those instances when a defendant, “for one reason or another,” failed to invoke the deferred adjudication procedures available under article 45.0511. Cf. House Comm, on Crim. JuRis., Bill Analysis, S.B. 1422, 70th Leg., R.S. (1987).

Article Jp2.111

Although section 522.003’s definition of a “serious traffic violation” was amended in 2008, article 42.111 was not amended. We hold that the exclusion in article 42.111 for a serious traffic violation should be construed in the same manner as the similar exclusion found in article 45.0511. See Tex. Gov’t Code Ann. § 311.023(4) (in construing statute, court may consider “laws on the same or similar subjects”). Thus, we conclude that the 2003 amendments did not change the meaning or application of article 42.111.

As of 2003, then, article 42.111 continued to authorize a county court to grant deferred adjudication on appeal to a defendant who failed, “for one reason or another,” to invoke the procedures of article 45.0511 in justice court but prohibited the granting of deferred adjudication on appeal to a defendant who committed a “serious traffic violation” while driving a commercial motor vehicle.

Recent Amendments

There are three recent amendments of note that have been enacted with regard to articles 45.0511 and 45.051.

First, the article 45.0511(s) exclusion for CDL holders was expanded to include not only defendants who hold a CDL at the time they appear in justice court but also defendants who “held a commercial driver’s license when the offense was committed.” Act of May 23, 2005, 79th Leg., R.S., ch. 357, § 7, 2005 Tex. Gen. Laws 1030, 1032 (codified at TexCode Crim. Proc. Ann. art. 45.0511(s)(2)). And second, the article 45.0511(b)(5) exception for defendants charged with driving 25 mph or more over the posted speed limit was amended to include an additional exception for defendants charged with driving 95 mph or more, regardless of the posted limit. Act of May 25, 2007, 80th Leg., R.S., ch. 829, § 1, 2007 Tex. Gen. Laws 1713, 1713-14 (codified at Tex.Code Crim. Proc. Ann. art. 45.0511(b)(5)(A) (Vernon Supp.2009)). However, neither of these amendments affects our construction of article 45.0511.

Article 45.051(f)(2) was similarly amended in 2005 to expand the exclusion for CDL holders to include not only defendants who hold a CDL at the time they appear in justice court but also defendants who “held a commercial driver’s license when the offense was committed.” Act of May 28, 2005, 79th Leg., R.S., ch. 357, § 6, 2005 Tex. Gen. Laws 1080, 1031-82 (codified at Tex.Code Crim. Proc. Ann. art. 45.051(f)(2)(B)). This amendment likewise does not affect our construction of article 45.051.

Conclusion

Article 42.111 authorizes a county court to grant deferred adjudication on appeal to a defendant who failed, “for one reason or another,” to invoke the procedures of article 45.0511 in justice court but prohibits the granting of deferred adjudication on appeal to a defendant who committed a “serious traffic violation” while driving a commercial motor vehicle.

Hollis failed to invoke the procedures of article 45.0511 in justice court. She did not commit a “serious traffic violation” while driving a commercial motor vehicle. Therefore, the trial court was authorized by article 42.111 to defer an adjudication of guilt in Hollis’s case, permit her to complete a driving safety course, and dismiss the case upon the successful completion of the course (and any other, reasonable conditions imposed by the court).

We overrule the State’s sole issue and affirm the judgment.

Chief Justice GRAY concurs only in the judgment and only to the extent it affirms the trial court’s judgment. He joins no part of the Court’s opinion. A separate opinion will not issue.

      . Unless otherwise indicated, we use the term "deferred adjudication” hereinafter to refer to the process used primarily for traffic offenses by which a court defers a finding of guilt, permits the defendant to take a driving safety course, then dismisses the charge upon successful completion of the course.

      . Although the same principles generally apply to both justice court and municipal court, we refer to both hereinafter as "justice court” except where quoting a statute or discussing a particular decision involving a municipal court.

      . This opinion will focus primarily on three interrelated statutes: (1) article 42.111 of the Code of Criminal Procedure; (2) article 45.051 of the Code of Criminal Procedure (former article 45.54); and (3) article 45.0511 (former article 6701d, section 143A of the Revised Civil Statutes). The legislative history for these three statutes indicates that they have frequently been amended in concomitant fashion.

      . Under section 311.023(3) and (4) of the Code Construction Act, a court may consider "legislative history” and "common law or former statutory provisions, including laws on the same or similar subjects.” Tex. Gov't Code Ann. § 311.023(3), (4) (Vernon 2005); see Routier v. State, 273 S.W.3d 241, 247 n. 18 (Tex.Crim.App.2008) ("The Code Construction Act applies to amendments to the Code of Criminal Procedure ... enacted after the 60th Legislature.”).

      . In Opinion No. MW-428, the Attorney General concluded that an otherwise eligible defendant cannot exercise the option to take a driving safety course under section 143A after the commencement of his trial on the merits in justice court. See Op. Tex. Att’y Gen. No. MW-428 (1982).

      . Article 6701d, section 50 defined the offense of driving under the influence of drugs. See Act of Apr. 19, 1971, 62d Leg., R.S., ch. 83, § 18, 1971 Tex. Gen. Laws 722, 730 (repealed 1983) (current version at Tex. Pen.Code Ann. § 49.04 (Vernon 2003)). Section 51 defined the offense of reckless driving. Id. Act of Apr. 19, 1971, 62d Leg., R.S., ch. 83, § 20, 1971 Tex. Gen. Laws 722; 731 (repealed 1995) (current version at Tex. Transp. Code Ann. § 545.401 (Vernon 1999)).

      . The three additional requirements under subsection (a)(2) were that the person must: (A) present to the court an oral request or written motion to take the course; (B) have a valid Texas driver's license or permit; and (C) not have taken a driving safety course within the two years immediately preceding the date of the alleged offense. Act of May 26, 1979, 66th Leg., R.S., ch. 610, § 1, 1979 Tex. Gen. Laws 1359, 1359.

      . This opinion addresses more than 25 years of legislative history with regard to the pertinent statutes. The various legislatures have enacted countless, sometimes repetitive, amendments to these statutes. In this opinion, we focus on amendments relating to offenses expressly excluded from eligibility for deferred adjudication and those relating to the timing for the defendant’s request for deferred adjudication.

      . The 68th Legislature also repealed Section 50 and amended article 67017 — 1 (the DWI statute) to include loss of faculties due to the use of a controlled substance or drug within the statutory definition of "intoxicated.” See Act of Act of May 27, 1983, 68th Legislature, R.S., ch. 303, §§ 3, 27, 1983 Tex. Gen. Laws 1568, 1574-77, 1606-07.

      . This deadline was apparently added in response to Attorney General Opinion No. MW-428. See note 5, supra.

      . A formal "revocation” provision was not included in this statute until 2003 when the Legislature amended section 45.051 l(j) of the Code of Criminal Procedure to read:
      If the defendant fails to appear at the time and place stated in the notice under Subsection (i), or appears at the time and place stated in the notice but does not show good cause for the defendant’s failure to comply with Subsection (c), the court shall enter an adjudication of guilt and impose sentence.
      Act of June 1, 2003, 78th Leg., R.S., ch. 1182, § 2, 2003 Tex. Gen. Laws 3380, 3383.
      Conversely, article 45.54(3), as originally enacted, provided that, if the defendant failed to satisfy the conditions of deferred adjudication, the justice-court could "reduce the fine assessed” or "impose the fine assessed.” Act of May 29, 1981, 67th Leg., R.S., ch. 318, § 1, 1981 Tex. Gen. Laws 894, 894. The statute was amended in 1989 to expressly authorize the justice court to "proceed with an adjudication of guilt” and impose the original or a lesser fine if the defendant failed to satisfy the conditions of deferred adjudication. Act of May 28, 1989, 71st Leg., R.S., ch. 399, § 1, 1989 Tex. Gen. Laws 1540, 1540.

      . The 72nd Legislature also amended section 143A by adding violations of sections 39, 40, or 186 as traffic offenses for which a defendant could not obtain deferred adjudication. Act of May 25, 1991, 72d Leg., R.S., ch. 835, § 2, 1991 Téx. Gen. Laws 2875, 2888-89. Article 6701d, § 39 defined the offense of failure to stop and give information following an accident. See Uniform Act Regulating Traffic on Highways, 50th Leg., R.S., ch. 421, § 39, 1947 Tex. Gen. Laws 967, 974 (repealed 1995) (current version at Tex. Transp. Code Ann. § 550.022 (Vernon Supp.2009)). Article 6701d, § 40 defined the offense of failure to stop and render aid. See Uniform Act Regulating Traffic on Highways, 50th Leg., R.S., ch. 421, § 40, 1947 Tex. Gen. Laws 967, 974 (repealed 1995) (current version at Tex. Transp. Code Ann. § 550.023 (Vernon 1999)). And article 6701d, § 186 defined the offense of fleeing. See Act of Apr. 19, 1971, 62d Leg., R.S., ch. 83, § 95, 1971 Tex. Gen. Laws 722, 771 (repealed 1995) (current version at Tex. Transp. Code Ann. § 545.421 (Vernon Supp. 2009)).

      . According to the principle expressio unius est exclusius alterius, the fact that the legislature chose to identify a specific category of traffic offenses for which deferred adjudication was not available under article 45.54 lends further credence to a construction that deferred adjudication was available under article 45.54 for traffic offenses not otherwise excluded. See Dallas v. State, 983 S.W.2d 276, 278 (Tex.Crim.App.1998) ("if a statute specifies one exception to a general rule or assumes to specify the effects of a certain provision, other exceptions or effects are ex-eluded”) (quoting Black’s Law Dictionary 692 (4th ed. 1951)).

      . And as with article 45.54, the fact that the legislature chose to identify a specific category of traffic offenses for which deferred adjudication was not available under article 42.111 lends further credence to a construction that deferred adjudication was available under article 42.111 for traffic offenses not otherwise excluded. Id.

      . For the sake of completeness, we note that section 143A was amended in 1993 by adding a violation of article 6701d, § 104, as an offense for which a defendant could not receive deferred adjudication. See Act of Apr. 26, 1993, 73d Leg., R.S., ch. 88, § 2, 1993 Tex. Gen. Laws 174, 175. Article 6701d, § 104 defined the offense of passing a school bus. See Act of May 27, 1985, 69th Leg., R.S., ch. 534, § 1, 1985 Tex. Gen. Laws 2137, 2137 (repealed 1995) (current version at Tex. Transp. Code Ann. § 545.066 (Vernon Supp. 2009)).

      . The offenses listed in section 543.102 (sections 545.066, 545.401, 545.421, 550.022, and 550.023) were identical to those in former section 143A: passing a school bus; reckless driving; fleeing; failure to stop and give information following an accident; and failure to stop and render aid. See Tex. Transp. Code Ann. §§ 545.066, 545.401, 545.421, 550.022, 550.023. Although these statutes have been amended since 1995, the amendments have no bearing on Hollis’s case.

      . The 76th Legislature also recodified Sub-chapter B as article 45.541 of the Code of Criminal Procedure. See Act of May 30, 1999, 76th Leg., R.S., ch. 1387, § 2, 1999 Tex. Gen. Laws 4689, 4690-92; see also Act of May 30, 1999, 76th Leg., R.S., ch. 1387, § 3, 1999 Tex. Gen. Laws 4689, 4692 (repealing Subchapter B). Article 45.541 was repealed two years later. See Act of May 22, 2001, 77th Leg., R.S., ch. 1420, § 3.0021(b), 2001 Tex. Gen. Laws 4210, 4214-15.

      . The 76th Legislature enacted similar amendments in Act of Apr. 23, 1999, 76th Leg., R.S., ch. 62, § 3.03, 1999 Tex. Gen. Laws 127, 128-29.

      . Sections 542.404 and 729.004(b) of the Transportation Code applied to offenses committed in a construction or maintenance work zone. See Tex. Transp. Code Ann. § 542.404 (Vernon Supp.2009); Act of May 26, 1997, 75th Leg., R.S., ch. 674, § 3, 1997 Tex. Gen. Laws 2287, 2288 (repealed 2003).

      . The 78th Legislature enacted similar amendments in Act of May 30, 2003, 78th Leg., R.S., ch. 991, § 13, 2003 Tex. Gen. Laws 2888, 2892-95.

      . The 78th Legislature enacted similar amendments in Act of May 30, 2003, 78th Leg., R.S., ch. 991, § 6, 2003 Tex. Gen. Laws 2888, 2889, and in Act of June 2, 2003, 78th Leg., R.S., ch. 1325, § 8.01, 2003 Tex. Gen. Laws 4884, 4938.

      . The 78th Legislature enacted similar amendments in Act of June 1, 2003, 78th Leg., R.S., ch. 1182, § 1, 2003 Tex. Gen. Laws 3380, 3380-81.

      . The legislature has since amended article 45.0511 to make specific provisions for a person younger than 25 who commits a traffic offense. See Act of May 9, 2005, 79th Leg., R.S., ch. 90, § 2, 2005 Tex. Gen. Laws 148, 149-50 (codified as Tex.Code Crim. Proc. Ann. art. 45.05ll(a-l) (Vernon Supp.2009)).

      . The term "serious traffic violation” appears in only six statutes: articles 42.111 and 45.0511 of the Code of Criminal Procedure and sections 522.003, 522.064, 522.081 and 543.202 of the Transportation Code. See Tex. Code Crim. Proc. Ann. art. 42.111 (Vernon 2006), art. 45.0511 (Vernon Supp.2009); Tex Transp. Code Ann. § 522.003(25) (Vernon Supp.2009), § 522.064 (Vernon 2007), § 522.081 (Vernon Supp.2009), § 543.202 (Vernon Supp.2009).

      . This interpretation does not render meaningless the general exclusion under article 45.051 l(s) for CDL holders because the general exclusion would still be effective for CDL holders who commit "non-serious" traffic violations.

      . For the sake of completeness, we note that the legislature amended article 45.051(f)(1) in 2007 with regard to the exclusion for offenses committed in a construction or maintenance work zone by deleting the statutory reference to section 729.004(b) of the Transportation Code (but retaining the reference to section 542.404 of that code). See Act of May 21, 2007, 80th Leg., R.S., ch. 508, § 1, 2007 Tex. Gen. Laws 899,.899; see also Act of May 15, 2007, 80th Leg., R.S., ch. 921, § 3.001, 2007 Tex. Gen. Laws 3027, 3028. However, the legislature did not enact a similar amendment with regard to the identical exclusion in article 45.05 ll(p)(3). Nevertheless, section 729.004 of the Transportation Code was repealed in 2003. See Act of June 2, 2003, 78th Leg., R.S., ch. 283, § 61(2), 2003 Tex. Gen. Laws 1221, 1245.


source: Caselaw Access Project

author: TERRIE LIVINGSTON, Chief Justice.

license: Public Domain

text:
    Kevin CLARK, Appellant, v. COTTEN SCHMIDT, L.L.P. f/k/a Kirkley Schmidt & Cotten, L.L.P., Appellee.
    No. 2-09-400-CV.
    Court of Appeals of Texas, Fort Worth.
    Oct. 7, 2010.

      Geffrey W. Anderson, Anderson, Riddle & Kuehler, L.L.P., Fort Worth, TX, for Appellant.
    Andrews D. Sims & Russell R. Barton, Harris, Finley & Bogle, P.C., Fort Worth, TX, for Appellee.
    PANEL: LIVINGSTON, C.J.; McCOY, J.; and DIXON W. HOLMAN (Senior Justice, Retired, Sitting by Assignment).
   OPINION

TERRIE LIVINGSTON, Chief Justice.

In two issues, appellant Kevin Clark appeals the trial court’s decision to deny his motion for summary judgment and grant the motion for summary judgment of ap-pellee Cotten Schmidt, L.L.P. f/k/a Kirkley Schmidt & Cotten, L.L.P. (Cotten Schmidt). We affirm in part and reverse and remand in part.

Background Facts

This appeal concerns the amount of money that Clark was entitled to receive as a repayment of his capital investment under Cotten Schmidt’s partnership agreement upon his leaving the law firm. Clark joined the firm in the fall of 2001 as a non-equity partner. In 2003, Clark became an equity partner, and he contributed $25,000 to the firm as capital.

The partnership agreement contains the following relevant provisions:

1.04. Classes of Partners. There shall be four (4) classes of partners.
a.“Equity Partners” are those partners who (i) have contributed to the capital of the partnership, (ii) own an interest in the capital and in the profits and losses of the partnership, (in) have a vote in partnership matters, and (iv) participate in the distribution of partnership profits as defined in Article VIII.
3.02. Assets. The assets of the partnership are:
a. Cash balances in partnership accounts other than any trust accounts maintained by the partnership;
b. The physical assets and personal property as reflected on the partnership’s books, records, and financial statements;
c. The notes and accounts receivable of the partnership; and
d. Work in process and contingent-fee interests.
5.01. Books. The partnership shall maintain books and records to reflect all business and financial transactions using the cash basis of accounting unless otherwise agreed.
6.01. Equity Partners. All Equity-Partners ... shall have an equal ownership interest in the assets of the partnership ....
6.04. Capital Contributions By New Equity Partners. All Equity Partners to be admitted to the partnership shall be required to make a capital contribution to the partnership as determined by the partnership. The amount of capital contribution credited to the capital account of the new Equity Partner shall be designated by the partnership with the prior concurrence of the new Equity Partner.
6.07. Capital Accounts on Termination. ... [A]n Equity Partner’s interest in the partnership on termination of the partnership shall not be determined by his or her capital account. All Equity Partners shall have an equal interest in the value of partnership assets ....
12.03. Withdrawal of Equity (including Senior) Partner. An Equity Partner who withdraws from the partnership, and who is not then in substantial breach of his or her duties to the partnership, shall be entitled to the following:
a. To payment ... of his or her percentage of fees collected for non-contingent work performed by the partnership prior to the effective date of withdrawal and collected by the partnership within twenty-four (24) months after the effective date of withdrawal;
b. To payment ... of his or her percentage of fees collected for work performed by the partnership prior to the effective date of withdrawal on contingent-fee or bonus-fee cases, regardless of how long after the date of withdrawal those fees are collected by the partnership ....;[] and
c. To repayment of his or her capital investment in the partnership calculated as an equal interest in the depreciated book value of all partnership assets less an equal proportion of the partnership long term and capital debt. If negative, this liability will offset amounts under subsections (a) or (b).[ ] [Emphasis added.]

Clark voluntarily left the firm in May 2005⅛ at which time it had eleven equity partners. After consulting with accountants, the firm paid $4,640.36 to Clark as his capital investment repayment under section 12.03(c) of the partnership agreement; the firm said that this amount reflected “one-eleventh of the Total Partners’ Equity reflected on the May 31, 2005 balance sheet.” Clark contended that the firm incorrectly valued his capital investment repayment. He relied on an opinion from an accountant who reviewed the partnership agreement and concluded that the firm wrongly excluded the following items from the definition of “partnership assets” under section 12.03(c): notes, accounts receivable, work in process, and contingent fee interests.

Clark filed a lawsuit against Cotten Schmidt, asserting that it breached section 12.03(c) of the partnership agreement by incorrectly calculating and paying him the $4,640.36 and also breached a fiduciary duty to him. Cotten Schmidt answered Clark’s allegations and filed a motion for summary judgment in which it argued that quasi-estoppel precludes Clark’s breach of contract claim and that, as a matter of law, the firm did not owe a fiduciary duty to him.

Clark filed a motion for summary judgment on his breach of contract claim; he asserted that notes, accounts receivable, work in process, and contingent fee interests are unambiguously included under section 12.03(c)’s capital-investment-repayment calculation, which uses the phrase “all partnership assets,” because those items are included in section 3.02’s definition of “assets.” Cotten Schmidt contended, “When the language of section 12.03(c), and Mr. Clark’s current interpretation, are considered in context ..., it becomes apparent that the firm’s interpretation ... is correct, and that Mr. Clark’s current interpretation is wrong.”

The trial court denied Clark’s summary judgment motion and granted Cotten Schmidt’s motion against Clark’s contractual claim based on its quasi-estoppel defense, concluding that Cotten Schmidt established all elements of the defense as a matter of law. Clark filed notice of this appeal.

Summary Judgment Standards

In a summary judgment case, the issue on appeal is whether the movant met the summary judgment burden by establishing that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex.2009). We review a summary judgment de novo. Mann Frankfort, 289 S.W.3d at 848. 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). A defendant is entitled to summary judgment on an affirmative defense if the defendant conclusively proves all the elements of the affirmative defense. Chau v. Riddle, 254 S.W.3d 453, 455 (Tex.2008); see Tex.R. Civ. P. 166a(b), (c). When both parties move for summary judgment and the trial court grants one motion and denies the other, the reviewing court should review both parties’ summary judgment evidence and determine all questions presented. Mann Frankfort, 289 S.W.3d at 848.

Quasi-Estoppel

In his second issue, Clark argues that the trial court erred by granting Cotten Schmidt’s motion for summary judgment. Cotten Schmidt’s sole argument in its motion was that Clark’s breach of contract claim is barred by quasi-estoppel; Cotten Schmidt did not seek summary judgment on the correctness of its interpretation of the partnership agreement.

The law on quasi-estoppel

Quasi-estoppel is an affirmative defense that “precludes a party from asserting, to another’s disadvantage, a right inconsistent with a position previously taken. The doctrine applies when it would be unconscionable to allow a person to maintain a position inconsistent with one to which he acquiesced, or from which he accepted a benefit.” Lopez v. Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 864 (Tex.2000) (citation omitted); see Brooks v. Brooks, 257 S.W.3d 418, 423 (Tex.App.-Fort Worth 2008, pet. denied) (explaining that “unlike equitable estoppel, quasi-estoppel requires no showing of misrepresentation or detrimental reliance”). “Thus, quasi estoppel forbids a party from accepting the benefits of a transaction ... and then subsequently taking an inconsistent position to avoid corresponding obligations or effects.” Atkinson Gas Co. v. Albrecht, 878 S.W.2d 236, 240 (Tex.App.Corpus Christi 1994, writ denied).

For example, in Cimarron Country Property Owners Association v. Keen, the Beaumont Court of Appeals held that quasi-estoppel precluded the owners association from contending in a lawsuit that a deed restriction prohibited a daycare when the association previously opined that the daycare could operate. 117 S.W.3d 509, 512-14 (Tex.App.-Beaumont 2003, no pet.). Similarly, in Eckland Consultants, Inc. v. Ryder, Stilwell Inc., the Houston (First District) Court of Appeals held that quasi-estoppel prevented a property inspection company from claiming that a plaintiff did not have standing to sue for a breach of the inspection contract when the inspection company accepted the benefits of the contract and stated in a report that noncon-tracting entities could rely on the report. 176 S.W.3d 80, 81-83, 87-88 (Tex.App.Houston [1st Dist.] 2004, no pet.). However, there “can be no ratification or estoppel from acceptance of the benefits by a person who did not have knowledge of all material facts.” Frazier v. Wynn, 472 S.W.2d 750, 753 (Tex.1971); Sun Operating Ltd. P’ship v. Holt, 984 S.W.2d 277, 292 (Tex.App.-Amarillo 1998, pet. denied) (op. on reh’g).

Analysis

In 2003, when Clark was an equity partner with Cotten Schmidt, J. Lyn-dell Kirkley left the firm. Like Clark’s later dispute, Kirkley contested the amount of his capital investment repayment under section 12.03(c) of the partnership agreement, claiming that work in process, accounts receivable, and contingent fee interests were payable assets of the partnership under that section. According to Cotten Schmidt, Clark and Dennis M. Conrad served on a committee formed to communicate with Kirkley about his claim. Conrad stated in an affidavit, “Mr. Clark agreed with the firm’s position that the method of calculation of Mr. Kirkley’s payment was correct under the firm’s partnership agreement, and Mr. Clark signed letters on behalf of the firm to Mr. Kirkley communicating the firm’s position.”

Specifically, on September 19, 2003, Clark signed a letter to Kirkley stating, “We believe that the ... check tendered to you is the correct amount owed to you under the ... partnership agreement.” On November 4, 2003, Clark signed another letter to Kirkley that detailed the firm’s reasons that it disagreed with Kirkley’s position. The November 4, 2003 letter described Kirkley’s claim as “simply wrong.” In its last paragraph, the letter stated,

We have differing views of what the Partnership Agreement provides a withdrawing partner is entitled to.... In any event, we are willing to sit down with you in a spirit of compromise and engage in a professional discussion of the outstanding differences between us in an attempt to resolve them amicably. ... Please call me if you are interested in having such a discussion.

Days later, Clark signed another letter that was addressed to Kirkley and that expressed disagreement with Kirkley’s position. After the firm sent Clark’s last letter to Kirkley, Kirkley did not pursue any claim against the firm related to the repayment of his capital investment.

In his response to Cotten Schmidt’s summary judgment motion, Clark said that during the Kirkley dispute, he was “simply acting as a point person” and was not a real participant. His affidavit contained the following facts supporting that position:

• three other attorneys in the firm “took the lead in attempting to resolve the dispute” with Kirkley, but those attorneys eventually stopped communicating with Kirkley, and Clark agreed to relay Cotten Schmidt’s position to him;
• the letters that Clark signed were prepared by other partners in the firm;
• Clark “did not participate in formulating Cotten Schmidt’s position against Mr. Kirkley,” nor did he “conduct any inquiry as to whether the position was correct” or even “provide any input as to Cotten Schmidt’s position or the correctness thereof’; instead, his role “was simply to communicate Cotten Schmidt’s position to Mr. Kirkley and receive his responses”; and
• in his communication with Kirkley, Clark was not “representing [his] own interest!,] and [he] took no position as to [his] view individually as to the interpretation of the Partnership Agreement.”

Clark contends that his affidavit creates fact issues that preclude summary judgment for Cotten Schmidt. We agree. While Cotten Schmidt provided evidence (through Conrad’s affidavit) that Clark served on a committee during the Kirkley dispute and “agreed with the firm’s position that the method of calculation of Mr. KirMey’s payment was correct,” Clark countered that evidence by averring that he did not participate in forming the firm’s position and took no position as to the interpretation of the agreement. Clark’s affidavit, viewed in the light most favorable to him (as the nonmovant), indicates that he served as a conduit of Cotten Schmidt’s position to Kirkley rather than as a creator or endorser of that position and that he therefore did not have knowledge of all material facts about the position. See Frazier, 472 S.W.2d at 753.

Cotten Schmidt alleges that Clark’s assertion that he acted as a conduit for the other equity partners is false because Clark had the privilege and legal responsibility to vote on the Kirkley matter. But the evidence does not conclusively establish that Clark actually voted on the matter or was asked for his opinion about it. While Conrad’s affidavit indicates that the dispute was handled by a committee with input and approval from “other” (although not explicitly “all”) partners, Clark’s affidavit states only that three partners “took the lead” in attempting to resolve the dispute with Kirkley and explains that he was never “asked to provide input” on the matter.

For these reasons, resolving all doubts in Clark’s favor on the quasi-estoppel issue, we hold that Cotten Schmidt did not conclusively establish that it is unconscionable to allow him to maintain a position inconsistent with one to which he previously acquiesced on behalf of Cotten Schmidt even if Clark, as an equity partner, received a benefit in 2003 by Cotten Schmidt’s retaining money that it might have otherwise paid to Kirkley. See Lopez, 22 S.W.3d at 864. Therefore, we sustain Clark’s second issue, and we reverse the portion of the trial court’s order that grants summary judgment for Cotten Schmidt against Clark’s breach of contract claim based on Cotten Schmidt’s quasi-estoppel defense. See Haire v. Nathan Watson Co., 221 S.W.3d 293, 301 (Tex.App.-Fort Worth 2007, no pet.) (explaining that when “reviewing a summary judgment granted on specific grounds, the summary judgment can only be affirmed if the ground on which the trial court granted relief is meritorious”); GuideOne Ins. Co. v. Cupps, 207 S.W.3d 900, 903 (Tex.App.-Fort Worth 2006, pet. denied) (same).

Interpretation of the Partnership Agreement

In his first issue, Clark contends that the trial court erred by denying his motion for summary judgment on his breach of contract claim because, as a matter of law, Cotten Schmidt misinterpreted section 12.03(c) of the partnership agreement and therefore undervalued his capital investment repayment. Cotten Schmidt asserts that its interpretation of section 12.03(c) is correct “when all of the words ... are properly construed in conjunction with the remainder of ... the Partnership Agreement.”

The principles of interpreting contracts

“The law applicable to construction of contracts has been applied to partnership agreements.” In re Waggoner Estate, 163 S.W.3d 161, 165 (Tex.App.-Amarillo 2005, no pet.). “We construe contracts ‘from a utilitarian standpoint bearing in mind the particular business activity sought to be served’ and ‘will avoid when possible and proper a construction which is unreasonable, inequitable, and oppressive.’ ” Frost Nat’l Bank v. L & F Dist., Ltd., 165 S.W.3d 310, 312 (Tex.2005) (quoting Reilly v. Rangers Mgmt., Inc., 727 S.W.2d 527, 530 (Tex.1987)).

When construing contracts, our primary concern is to ascertain the true intent of the parties as expressed in the contract. NP Anderson Cotton Exch., L.P. v. Potter, 230 S.W.3d 457, 463 (Tex.App.-Fort Worth 2007, no pet.). We must examine and consider the entire contract in an effort to harmonize and give effect to all provisions so that none are rendered meaningless. Id.; see J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex.2003). ‘We presume that the parties to the contract intend every clause to have some effect. We give terms their plain, ordinary, and generally accepted meaning unless the contract shows that the parties used them in a technical or different sense.” FWT, Inc. v. Haskin Wallace Mason Prop. Mgmt., L.L.P., 301 S.W.3d 787, 794 (Tex.App.-Fort Worth 2009, pet. denied) (op. on reh’g) (citations omitted). A specific contractual provision controls over a general provision. City of The Colony v. N. Tex. Mun. Water Dist., 272 S.W.3d 699, 722 (Tex.App.-Fort Worth 2008, pet. dism’d).

Lack of clarity or a disagreement among the parties does not necessarily create an ambiguity. Universal Health Servs., Inc. v. Renaissance Women’s Group, P.A., 121 S.W.3d 742, 746 (Tex.2003). Rather, whether “a contract is ambiguous is a question of law that must be decided by examining the contract as a whole in light of the circumstances present when the contract was entered.” Id. “If, after the pertinent rules of construction are applied, the contract can be given a definite or certain legal meaning, it is unambiguous and we construe it as a matter of law.” Frost Nat’l Bank, 165 S.W.3d at 312. But if a contract is ambiguous, then interpretation of the contract presents a fact issue for the jury. Transcon. Gas Pipeline Corp. v. Texaco, Inc., 35 S.W.3d 658, 665 (Tex.App.-Houston [1st Dist.] 2000, pet. denied). “When the [contract] is not ambiguous on its face, extrinsic evidence may not be used to create an ambiguity.” Balandran v. Safeco Ins. Co. of Am., 972 S.W.2d 738, 745 (Tex.1998); see CenterPoint Energy Houston Elec., L.L.P. v. Old TJC Co., 177 S.W.3d 425, 431 (Tex.App.-Houston [1st Dist.] 2005, pet. denied).

Analysis

The parties dispute the meaning of section 12.03(c) of the partnership agreement, which states that a withdrawing equity partner is entitled to “repayment of his or her capital investment in the partnership calculated as an equal interest in the depreciated book value of all partnership assets less an equal proportion of the partnership long term and capital debt.” Specifically, Clark contends that “all partnership assets” in section 12.03(c) unambiguously includes notes, accounts receivable, work in process, and contingent fee interests because those items are included in section 3.02’s definition of assets. Cotten Schmidt argues that section 12.03(c)’s “all partnership assets” phrase does not include those items for the following reasons:

• section 12.03(c) should not be interpreted to allow a withdrawing partner to obtain a share of accounts receivable and work in process for work performed by the partnership because sections 12.03(a) and (b) already give the partner a percentage of those items that are collected after the partner leaves (thus, 12.03(c), if interpreted in the way that Clark asserts, would allow for double recovery);
• section 5.01 of the partnership agreement says that the partnership uses the cash basis of accounting, which does not recognize accounts receivable, work in process, and contingent fee interests;
• because section 12.03(c) uses the words “capital” and “depreciated book value”, it refers only to capital assets that are “funded with capital investment or long term/capitalized debt”; it does not therefore refer to accounts receivable, work in process, and contingent fee interests, and the specific limiting language in section 12.03(c) controls over the general language in section 3.02;
• if “the capital investment repayment calculation were to include accounts receivable, but Cotten Schmidt never collected certain accounts, then the interest of the withdrawn Equity Partner would be elevated over the interests of the firm and the remaining Equity Partners, in violation of the ... principles underlying the Partnership Agreement”; and
• under Clark’s argument, shortly after making his $25,000 capital contribution in 2003, he would have been able to resign and be paid a substantially greater sum; thus, Clark’s construction of the agreement creates an incentive for equity partners to leave the firm.

For the following reasons, Cotten Schmidt has shown that section 12.03(c) could reasonably be interpreted to exclude notes, accounts receivable, work in process, and contingent fee interests; thus, Clark’s interpretation of the agreement is not conclusively correct. First, the phrase “depreciated book value” precedes “all partnership assets” in section 12.03(c), and the items described in section 3.02(c) and (d) of the agreement are not depreciable. Second, the phrase “equal interest in the depreciated book value of all partnership assets” in section 12.03(c) is followed by “less an equal proportion of the partnership long term and capital debt,” which may indicate that all of section 12.03(c) refers to capital assets and excludes non-capital assets. Third, sections 12.03(a) and (b) limit a withdrawing equity partner to receiving a portion of noncontingent and contingent fees when the firm actually collects those fees after the partner withdraws, while Clark’s interpretation of section 12.03(c) may entitle him to a portion of those fees regardless of whether they are ever collected or earned and may therefore render meaningless the limitations of sections 12.03(a) and (b). See Potter, 230 S.W.3d at 463. Finally, Clark’s interpretation of section 12.03(c) might allow him to be paid for his share of an account receivable upon withdrawal under section 12.03(c) and then be paid again when a fee from the account is collected under sections 12.03(a) or (b); this double recovery could be considered unreasonable or inequitable. See Frost Nat’l Bank, 165 S.W.3d at 312.

Therefore, resolving all doubts in Cotten Schmidt’s (the nonmovant’s) favor, we hold that Clark’s interpretation of section 12.03(c) is not conclusively correct and that the trial court did not err by denying his motion for summary judgment. See Parker, 249 S.W.3d at 399; MMP, Ltd., 710 S.W.2d at 60. We overrule Clark’s first issue.

Conclusion

Having overruled Clark’s first issue and having sustained his second issue, we affirm the trial court’s judgment to the extent that it (1) grants Cotten Schmidt’s motion for summary judgment on Clark’s breach of fiduciary duty claim (because he did not make a challenge regarding that claim in this court) and (2) denies Clark’s motion for summary judgment. But we reverse the judgment to the extent that it renders a take nothing judgment on Clark’s breach of contract claim, and we remand this case to the trial court for further proceedings related to that claim.

      . Clark does not claim that he has not received proper payments under sections 12.03(a) and (b) of the agreement. Randall Schmidt, a partner at Cotten Schmidt, stated in an affidavit,
      As the firm collected fees after the date of Mr. Clark's withdrawal on accounts receivable and work-in-process for work performed by the firm before the date of his withdrawal, the firm's administrator applied the applicable compensation formula to those fee collections ... and issued checks to Mr. Clark....

      . The partnership agreement also references a Partner Compensation Addendum. The addendum specifies how hourly, contingent, and bonus fees are distributed to individuals within the firm; it states, among other provisions, that "a portion of all fees earned be shared among the partners in recognition of the partnership effort required to maintain the firm.”

      . Clark described his contractual claims in his petition as "Breach of Contract,” "Neglecting to perform contractual duty,” and "Refusing to perform contractual obligations.” Our reference to Clark’s breach of contract cause of action includes each of these claims. We will detail the facts relevant to Cotten Schmidt’s quasi-estoppel defense in our discussion of Clark’s second issue.

      . The court also concluded that the firm did not have a fiduciary duty to Clark. Clark does not challenge the trial court's decision to grant summary judgment against his breach of fiduciary duty claim; therefore, we affirm the trial court’s judgment to the extent that it resolves that claim against Clark. See Jacobs v. Satterwhite, 65 S.W.3d 653, 655-56 (Tex.2001); Smith v. Tilton, 3 S.W.3d 77, 84 (Tex.App.-Dallas 1999, no pet.).

      . In a letter that Kirkley wrote to Randall Schmidt in September 2003, Kirkley said, “I am amazed that your attempted repayment to me under paragraph 12.03(c) disregards the plain language of the Agreement adopted by all partners.”

      . In its motion for summary judgment, Cotten Schmidt said that appellant’s letters to Kirk-ley were sent "on behalf of the firm.”

      . Cotten Schmidt does not dispute that a committee drafted the letters and that Clark signed them.

      . Cotten Schmidt submitted the affidavit of David J. Quick, a certified public accountant, which affirmed that the cash basis of accounting "does not recognize accounts receivable, work-in-process, and contingent fee interests” and opined that the cash basis of accounting is a "foundational reference point that should be used for all other ... terms in the partnership agreement.” Clark’s accountant believed that the "cash basis of accounting has nothing to do with valuing a partnership interest” because the "valuation method [was] described in the partnership agreement.”

      . Clark has not disputed Cotten Schmidt’s claim that notes, contingent fee interests, accounts receivable, and work in process are not depreciable.

      . Words in a contract may "not be plucked from their context and then construed.” King’s Court Racquetball v. Dawkins, 62 S.W.3d 229, 233 (Tex.App.-Amarillo 2001, no pet.).

      . Because we hold that Cotten Schmidt’s interpretation of the agreement is reasonable, which precludes summary judgment in Clark’s favor, causes us to overrule his first issue, and requires us to remand this case to the trial court, we will not address whether Clark’s interpretation of the agreement is also reasonable. In other words, we will not address whether Cotten Schmidt’s interpretation of the agreement is conclusively correct, or alternatively, whether the agreement is ambiguous, because Cotten Schmidt did not move for summary judgment based on its interpretation. See Gibson v. Park Cities Ford, Ltd., 174 S.W.3d 930, 931 (Tex.App.-Dallas 2005, no pet.) ("Because we conclude Park Cities Ford did not conclusively establish its entitlement to summary judgment, we reverse the trial court’s judgment and remand this case to the trial court for further proceedings."); see also S. Austin Mkt. Place, Inc. v. James F. Parker Interests, Inc., No. 03-99-00144-CV, 2000 WL 374064, at *4 (Tex.App.Austin Apr. 13, 2000, no pet.) (not designated for publication) ("Without deciding whether an ambiguity exists in the contract, we hold that South Austin has not conclusively proven that its interpretation of the agreement is the only reasonable interpretation”).


author: RICK STRANGE, Justice.

text:
    Melba SMITH, Appellant, v. TRAVELERS CASUALTY AND SURETY COMPANY, Appellee.
    No. 11-09-00227-CV.
    Court of Appeals of Texas, Eastland.
    Oct. 7, 2010.

      Kevin B. Miller, Royce V. Bicklein, Law Offices of Miller & Bicklein, P.C., Odessa, Mark A. Cevallos, Law Offices of Miller & Bicklein, P.C., San Antonio, for Appellant.
    Guadalupe Trevino, David Klosterboer & Associates, Richardson, Robert D. Stokes, Flahive, Ogden & Latson, Austin, for Appellee.
    Panel consists of: WRIGHT, C.J., MeCALL, J„ and STRANGE, J.
   OPINION

RICK STRANGE, Justice.

This is a workers’ compensation dispute. Melba Smith filed suit against Travelers Casualty and Surety Company challenging her impairment rating for an on-the-job injury. Smith subsequently filed an amended petition challenging the date she was determined to have reached maximum medical improvement (MMI). Travelers responded to the amended petition with a plea to the jurisdiction. The trial court granted Travelers’ plea and abated Smith’s MMI issue. We reverse.

I. Background Facts

Smith was injured while in the course and scope of her employment, and she ultimately underwent two cervical fusion surgeries. A Texas Department of Insurance, Division of Workers’ Compensation designated doctor certified her date of MMI as February 15, 2007, and assessed an impairment rating of twenty-one percent. Travelers disputed Smith’s impairment rating. The Division requested clarification from the doctor. Their requests were ignored, and the Division selected a new designated doctor. The second doctor was asked to assess Smith’s impairment rating as of February 15, 2007. Smith requested that the doctor also be allowed to opine on the date of her MMI, but the Division denied this request. The designated doctor assessed Smith’s impairment rating at eleven percent.

The Division conducted a benefit review conference and a contested case hearing. The parties agreed that the sole disputed issue was Smith’s impairment rating. The Division found that her impairment rating was eleven percent. This finding became final after an appeals panel decision on September 11, 2008. On October 2, Smith filed suit against Travelers in Midland County, arguing that the Division acted improperly by replacing the first designated doctor and by setting her impairment rating at eleven percent.

Smith initiated a second administrative proceeding to complain of the date of her MMI. Travelers contended that Smith was barred from contesting the MMI determination by operation of collateral es-toppel. The hearing officer determined that collateral estoppel did not apply but ratified the original February 15, 2007 MMI determination. On November 3, 2008, an appeals panel affirmed the hearing officer’s MMI determination, but it also found that collateral estoppel barred Smith from litigating this issue. Smith appealed this decision by filing an amended petition on December 3, 2008. Travelers responded with a plea to the jurisdiction concerning the issues raised by Smith’s amended petition. Travelers argued that Smith failed to file an original petition within the statutory deadline and that the trial court lacked jurisdiction to determine whether collateral estoppel barred Smith from litigating the date of MMI because that issue did not regard compensability under Tex. Lab.Code Ann. § 410.301(a) (Vernon 2006). The trial court granted the plea and abated consideration of Smith’s date of MMI.

II. Issues

Smith presents a single issue, arguing that the trial court erred by granting the plea to the jurisdiction.

III. Discussion

A. Judicial Review of Workers’ Compensation Appeals.

The Texas Workers’ Compensation Act provides the exclusive remedy of an em--ployee covered by workers’ compensation insurance against the employer for work-related injuries. Tex. Lab.Code Ann. § 408.001(a) (Vernon 2006). At the administrative level, disputed benefits claims proceed through a three-step process: a benefit review conference, a contested case hearing, and an administrative appeal. Tex. Lab.Code Ann. §§ 410.021-.034, 410.151-.169, 410.201-.209 (Vernon 2006 & Supp. 2010); Tex. Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d 504, 514 (Tex.1995).

The Act provides two mechanisms for judicial review of workers’ compensation appeals. Section 410.301(a) covers “[j]udi-cial review of a final decision of the appeals panel regarding compensability or eligibility for or the amount of income or death benefits.” To appeal such’ a decision, the plaintiff generally must file a petition in the county where the employee resided at the time of injury or death within forty days after the appeals panel decision becomes final. Former Tex. Lab. Code § 410.252(a), (b)(1) (2003). Compensability and eligibility issues are subject to modified de novo review. Garcia, 893 S.W.2d at 515.

Judicial review of appeals panel decisions that do not regard compensability or eligibility are governed by Subchapter G, Chapter 2001 of the Texas Government Code. Tex. Lab.Code Ann. §§ 410.255(a), 410.301(a) (Vernon 2006). To appeal these decisions, the plaintiff must file a petition in Travis County within thirty days after the decision becomes final. Tex. Gov’t Code Ann. § 2001.176(a), (b) (Vernon 2008). These appeals are subject to a substantial evidence review. Section 410.255(b).

B. Was Smith Required to File an Original Petition?

The second appeals panel decision became final on November 3, 2008. Smith filed her amended petition on December 3, 2008. This is within the forty days allowed by the Act, but Travelers asserts that Smith was required to file an original petition and, therefore, that her amended petition was insufficient. The Act does not specify the use of an original petition to appeal a final appeals panel decision. Section 410.252 requires only that a party “file a petition with the appropriate court.” Id. Smith’s amended petition, therefore, satisfies all statutory requirements.

C. Was Smith Required to File Suit in Travis County?

Smith argues that the date of MMI is an issue regarding compensability and, therefore, that her amended petition was properly filed in Midland. Travelers maintains that collateral estoppel does not implicate compensability and, thus, that Smith was required to file suit in Travis County.

The Act does not define “compensability” or list those issues that the concept encompasses, but the Texas Supreme Court has held that an issue regards com-pensability if its determination will affect the workers’ compensation benefits that a claimant will receive. Morales v. Liberty Mut. Ins. Co., 241 S.W.3d 514, 518-19 (Tex.2007); Rodriguez v. Serv. Lloyds Ins. Co., 997 S.W.2d 248, 254 (Tex.1999).

In Morales, a claimant filed suit in El Paso County to review an appeals panel decision regarding the employment status of her deceased husband. 241 S.W.3d at 515. The insurance carrier filed a plea to the jurisdiction and framed the issue of employment status as one of coverage rather than compensability. The trial court granted the plea but the Supreme Court reversed, observing that “the concepts of coverage and compensability are not mutually exclusive.” Id. at 518. The court noted that, while the Act does not define “compensability,” it does define other related terms. Id. The Act’s definition of “benefit” requires a “compensable injury,” which in turn requires a determination of whether the injury was in the “course and scope of employment.” Id. (citing Tex. Lab.Code Ann. § 401.011(5), (10) (Vernon Supp. 2010)). The definition of “[cjourse and scope of employment,” requires a determination of employment status and workers’ compensation coverage. Id. (citing Section 401.011(12), (18) and Tex. Lab.Code Ann. § 401.012(a) (Vernon 2006)). Employment status, therefore, determines whether a compensable injury was suffered and whether a claimant is eligible for workers’ compensation benefits. Id. at 518-19. Because the determination of the claimant’s employment status affected whether the claimant would receive workers’ compensation benefits, it was an issue regarding compensability. Id. at 519.

Similarly, Rodriguez dealt with the standard of review to be applied to an appeal on the finality of an impairment rating. 997 S.W.2d at 252. The claimant argued that modified de novo review should be applied because the issue concerned com-pensability. Id. at 253. The carrier contended that the finality of an impairment rating was a procedural matter and did not concern compensability. Id. The supreme court disregarded the proposed distinction between procedure and compensa-bility. Id. Any dispute about the finality of an impairment rating necessarily implicates the date of MMI, which may affect temporary income benefits, eligibility for and calculation of impairment income benefits, and supplemental income benefits. Id. at 254. Because a determination of the finality of an impairment rating would affect workers’ compensation benefits, it was an issue that concerned compensability. Id.

A determination of whether collateral estoppel bars Smith from litigating the date of MMI would affect the benefits that she ultimately receives. See Tex. Lab. Code Ann. § 408.123 (Vernon 2006) (impairment rating may not be set until MMI reached); Tex. Lab.Code Ann. § 408.121(a) (Vernon 2006) (impairment income benefits are to be paid beginning the day after employee reaches MMI at the rate of three weeks for each percentage point of impairment). Therefore, whether collateral estoppel bars Smith from litigating the date of MMI is an issue regarding com-pensability. Smith’s amended petition was properly filed in Midland County. Consequently, the trial court erred by granting Travelers’ plea to the jurisdiction. Issue One is sustained. Our holding is limited to a determination of the trial court’s jurisdiction over the issues raised by Smith’s amended petition. We express no opinion on the merits of Smith’s claims.

IV. Conclusion

The order of the trial court is reversed, and the cause is remanded.

      . This section was subsequently amended to allow forty-five days to file the petition. Tex. Lab.Code Ann. § 410.252(a) (Vernon Supp. 2010).