author: SARAH B. DUNCAN, Justice. PHIL HARDBERGER, Chief Justice,

text:
    J.C. PENNEY LIFE INSURANCE COMPANY, Appellant, v. Tracinda HEINRICH, Appellee.
    No. 04-99-00356-CV.
    Court of Appeals of Texas, San Antonio.
    Sept. 6, 2000.
    Rehearing Overruled Oct. 9, 2000.

      Andrew L. Kerr, Mark G. Sessions, Zachary B. Aoki, Jenkins & Gilchrist, P.C., San Antonio, for Appellant.
    Charles Estee, Shannon, Drake & Es-tee, L.L.P., Matthew Edward Sossi, The Whitley-Sossi Law Firm, P.C., Ray Leach, Law Offices of Ray Leach, Richard E. Langlois, Law Offices of Richard E. Lan-glois, Daniel 0. Kustoff, Lang & Kustoff, L.L.P., Paul D. Taylor, Law Office of Paul Taylor, San Antonio, for Appellee.
    Sitting: PHIL HARDBERGER, Chief Justice, CATHERINE STONE, Justice, SARAH B. DUNCAN, Justice.
   OPINION

Opinion by:

SARAH B. DUNCAN, Justice.

J.C. Penney Life Insurance Company appeals the trial court’s judgment awarding Tracinda Heinrich the proceeds of an insurance policy on the life of her common law husband, Elíseo John Hernandez. We modify the judgment to delete prejudgment interest on the damages awarded pursuant to article 21.55 of the Texas Insurance Code and to condition the award of appellate attorney’s fees on a successful appeal. As modified, the judgment is affirmed.

Factual and PROCEDURAL Background

Heinrich and Hernandez began living together in 1986. According to Heinrich, the couple agreed to be married after their first child was born in 1987. During the following six years, the couple had another child, introduced each other as husband and wife, and filed joint tax returns. In April 1993, Heinrich and Hernandez ceased cohabitating. Hernandez began living with another woman, Christy By-rom; and, on March 16, 1994, he filed for divorce from Heinrich. On April 18, Heinrich responded with her own counter-petition for divorce. In their petitions, Hernandez and Heinrich referred to the other as his or her “common law spouse.” While the divorce was pending, Hernandez and Byrom continued to five together and eventually had a child together.

In September of 1994, Hernandez purchased a $100,000 life insurance policy from J.C. Penney. The policy provided that the proceeds would be paid “to [Hernandez’] spouse if living; otherwise equally to [his] then living lawful children, if any, (including stepchildren and adopted children); otherwise equally to [his] then living parents or parent; otherwise to [his] estate” unless Hernandez specified otherwise. Hernandez did not specify otherwise.

On December 12, 1994, while the divorce proceeding was still pending, Hernandez died. On December 28, 1994, Heinrich commenced an administrative proceeding for Social Security benefits in which she was required to prove her informal marriage to Hernandez. On January 16, By-rom also filed an application for Social Security benefits as his wife. In her statement in the administrative proceeding, By-rom acknowledged that Hernandez and Heinrich were married, and their divorce action was still pending. Byrom also filed a claim with J.C. Penney to the proceeds of Hernandez’ life insurance policy.

In response to J.C. Penney’s request for documentation, Byrom sent notarized letters from six people, including Hernandez’ mother, brother, and friends. Hernandez’ mother wrote that Byrom and Hernandez “lived as husband and wife for a period of one year.” Hernandez’ brother and sister-in-law wrote that “Hernandez acknowledged Christy Byrom as his wife,” and Hernandez and Byrom had privately exchanged vows and rings. Two friends of Hernandez’ stated that Hernandez and By-rom “were always together as husband and wife” and they “were to be married on New Year [sic] Eve.” Another friend stated that when she was in San Antonio on November 13,1994, Hernandez and Byrom “were excited to inform several close friends that they were going to get married New Years Day — 1995.” Byrom also sent J.C. Penney a copy of Hernandez’ obituary, which referred to her as Hernandez’ wife. Finally, Byrom sent a copy of a school enrollment form for one of Hernandez’ and Heinrich’s children. This form was signed by Hernandez and listed By-rom as the child’s stepmother. Based on these documents, J.C. Penney paid Byrom the insurance proceeds on February 22, 1995.

On March 29, 1995, Heinrich’s attorney sent J.C. Penney a letter requesting information about a possible insurance policy on Hernandez’ life. J.C. Penney responded the next day, informing Heinrich’s attorney that Hernandez had purchased a life insurance policy, but the proceeds had already been paid to Byrom. On May 3, 1995, Heinrich filed a claim to the insurance proceeds. J.C. Penney responded by filing this declaratory judgment action asking the court to declare that Heinrich is not Hernandez’ surviving spouse. In the alternative, J.C. Penney asked the court to declare that it was discharged from liability pursuant to article 3.48 of the Texas Insurance Code. Finally, if the court found Heinrich was entitled to the insurance proceeds, J.C. Penney asked the court to render judgment against Byrom for the amount of benefits paid to her. Heinrich answered with a general denial and a counterclaim seeking a declaration that she is Hernandez’ surviving spouse and thus entitled to his life insurance benefits. Heinrich also alleged J.C. Penney breached its insurance contract and was liable to her for the $100,000 in insurance proceeds. Finally, Heinrich sought statutory penalties under article 21.55 of the Texas Insurance Code because J.C. Penney delayed processing her claim. In response, J.C. Penney argued that Heinrich was barred from asserting her claim that she was Hernandez’ surviving spouse by section 1.91 of the Texas Family Code because she did not seek to prove the marriage until after one year had elapsed since her relationship with Hernandez ended.

On August 26, 1996, Heinrich and Hernandez’s mother, acting as Hernandez’s personal representative in the divorce action, entered an Agreed Judgment Establishing Marital Relationship. Shortly thereafter, Heinrich moved for partial summary judgment on J.C. Penney’s claim that her claims were barred by section 1.91. The trial court granted Heinrich’s motion, and the parties went to trial before the court on their remaining claims. The trial court concluded Heinrich is Hernandez’s surviving spouse and thus the beneficiary of the life insurance policy; rejected J.C. Penney’s discharge and estoppel defenses; and rendered judgment requiring J.C. Penney to pay Heinrich the $100,000 policy proceeds, $69,041.10 in damages under article 21.55, $40,397.94 in prejudgment interest, $69,698.00 in attorney’s fees, and $2,445.63 in court costs. The court also rendered judgment against Byrom. Upon request by J.C. Penney, the trial court entered findings of fact and conclusions of law.

Discharge

J.C. Penney first argues the trial court erred in concluding that it did not discharge its liability to Heinrich under article 3.48 of the Texas Insurance Code when it paid the policy proceeds to Byrom. We disagree.

Standard of Review

J.C. Penney does not challenge the trial court’s finding that Heinrich and Hernandez were married on the date of his death. Instead, it challenges the trial court’s conclusion of law that payment of the policy proceeds to Byrom does not discharge it from liability to Heinrich under article 3.48 of the Texas Insurance Code. We review conclusions of law de novo. Hitzelberger v. Samedan Oil Corp., 948 S.W.2d 497, 503 (Tex.App.—Waco 1997, pet. denied); Piazza v. City of Granger, 909 S.W.2d 529, 532 (Tex.App. —Austin 1995, no writ).

Discussion

J.C. Penney argues its payment of the policy proceeds to Byrom, in a good faith belief she was the designated beneficiary, discharges it from liability to Heinrich under article 3.48 of the Texas Insurance Code. Article 3.48 provides in part:

Whenever any person shall procure the issuance of a policy of insurance on his or her life in any legal reserve life insur-anee company, and designate in writing filed with the company the beneficiary to receive the proceeds thereof, the company issuing such policy shall, in the absence of the receipt by it of notice of an adverse claim to the proceeds of the policy from one having a bona fide legal claim to such proceeds or a part thereof, pay such proceeds becoming due on the death of the insured to the person so designated as beneficiary, and such payment so made, in the absence of such notice received by the insurance company prior to the date of the payment of the proceeds, shall discharge the company from all liability under the policy.

Tex. Ins.Code Ann. art. 3.48 (Vernon Supp. 1999). We interpret this statute according to its literal wording unless there is an obvious error in the statute or “application of the literal language ... would produce an absurd result.” Fleming Foods of Texas, Inc. v. Rylander, 6 S.W.3d 278, 284 (Tex.1999). On its face, article 3.48 does not provide that a good faith payment to someone other than the designated beneficiary discharges an insurer’s liability. See Tex. Ins.Code Ann. art. 3.48. Only a payment “to the person so designated as beneficiary” operates as a discharge. Id. However, J.C. Penney argues a good faith exception should be read into the statute to effectuate its underlying purpose to promote prompt payment of claims and to protect insurers from multiple payments. This is an issue of first impression in Texas. In support of its argument, therefore, J.C. Penney cites case law from other jurisdictions. We are sympathetic to J.C. Penney’s argument. As the Fourth Circuit has stated in construing the West Virginia equivalent of article 3.48:

Ivy argues that since (according to his evidence) Unionmutual paid the wrong person under the contract, it is not entitled to the statutory protection. This construction of that language would render Section 33-6-2 a nullity. It would provide protection only to an insurer that already had a complete contractual defense.

Rogers v. Unionmutual Stock Life Ins. Co., 782 F.2d 1214, 1216 (4th Cir.1986). But we are also mindful of Heinrich’s contractual right to the policy proceeds. Under these circumstances, if a good faith exception is to be recognized, we believe it is the prerogative of the Texas Supreme Court. We therefore hold the trial court correctly concluded J.C. Penney’s good faith payment to Byrom does not discharge it from its contractual liability to Heinrich.

Estoppel

J.C. Penney next challenges the legal and factual sufficiency of the evidence to support the trial court’s findings underpinning its rejection of J.C. Penney’s es-toppel defense. According to J.C. Penney, the evidence establishes Heinrich was aware of the J.C. Penney policy (or knowledge should be imputed to her) in early February 1995 — before J.C. Penney paid the policy proceeds to Byrom; Heinrich knew Hernandez and Byrom had a child together; and Heinrich knew shortly after Hernandez’s death that Byrom claimed to be his surviving spouse. Under these circumstances, J.C. Penney argues, Heinrich is equitably estopped from claiming the policy proceeds. We disagree.

Standard of Review

Estoppel is an affirmative defense upon which J.C. Penney bore the burden of pleading and persuasion. Tex.R. Crv. P. 94; Barfield v. Howard M. Smith Co. of Amarillo, 426 S.W.2d 834, 838 (Tex.1968). Therefore, to resolve J.C. Penne/s legal sufficiency complaint, we must first review only the evidence supporting the adverse findings. Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989). If there is no evidence to support the adverse findings, we must then review the entire record to determine whether the contrary position is established as a matter of law. Id. To resolve J.C. Penney’s factual sufficiency complaint, we review the entire record to determine whether the finding is so against the great weight and preponderance of the evidence as to be manifestly unjust. Swate v. Medina Community Hosp., 966 S.W.2d 693, 697 (Tex.App.—San Antonio 1998, pet. denied).

Discussion

When asserting the affirmative defense of equitable estoppel, a defendant must prove: “(1) a false representation or concealment of material facts; (2) made with knowledge, actual or constructive, of those facts; (3) with the intention that it should be acted on; (4) to a party without knowledge or means of obtaining knowledge of the facts; (5) who detrimentally relies on the representations.” Johnson & Higgins of Texas, Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 515 (Tex.1998). Es-toppel may be based on a person’s silence only “where a person is under a duty to another to speak, but refrains from doing so and thereby leads the other to act in reliance on a mistaken understanding of the facts.” Storms v. Tuck, 579 S.W.2d 447, 452 (Tex.1979).

The trial court found that “[a]t no time prior to March 30, 1995, did Tracy Heinrich know that John Hernandez had purchased the J.C. Penney life insurance policy, No. 74AK237419, designating his surviving spouse as his beneficiary.” At best, the evidence as to Heinrich’s knowledge of the policy is conflicting. At trial, she testified she first knew there was a life insurance policy in late March. But she testified on deposition that Byrom may have told her of an insurance policy in February. Byrom testified she did not reveal the existence of the policy to Heinrich. There is thus some evidence Heinrich was not aware of the policy before J.C. Penney paid the policy proceeds to Byrom. And we cannot say, based on this record, the evidence is so contrary to the trial court’s finding as to render it manifestly unjust.

However, citing Champlin Oil & Refining Co. v. Chastain, 403 S.W.2d 376 (Tex.1965), J.C. Penney argues knowledge of the policy should be imputed to Heinrich. We disagree. Although “ ‘[mjeans of knowledge with the duty of using them are in equity equivalent to knowledge itself,’” id. at 388-89 (quoting Hexter v. Pratt, 10 S.W.2d 692, 693 (Tex. Comm’n App.1928, judgm’t adopted)), a successful invocation of this principle rests upon a showing of circumstances sufficient to generate inquiry. See id. And the only circumstance that might have caused Heinrich to inquire about a life insurance policy was knowledge of the policy itself. We therefore hold the trial court did not err in concluding Heinrich is not estopped to claim the policy proceeds.

Limitations

J.C. Penney next argues the trial court erred in granting a partial summary judgment against it on its claim that section 1.91 of the Texas Family Code bars Heinrich from asserting her common law marriage to Hernandez. We disagree.

Standard of Review

We review a summary judgment de novo. See Valores Corporativos, S.A. de C.V. v. McLane Co., Inc., 945 S.W.2d 160, 162 (Tex.App.—San Antonio 1997, writ denied). We will uphold a summary judgment only if the summary judgment record establishes there is no genuine issue of fact and the movant is entitled to judgment as a matter of law. Id.; Tex.R. Civ. P. 166a(c). In conducting this review, we view as true all evidence favorable to the non-movant and indulge every reasonable inference, and resolve all doubts, in its favor. Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985).

Discussion

As it existed at the time this suit was filed, section 1.91 of the Texas Family Code required “[a] proceeding in which a marriage is to be proved under this section must be commenced not later than one year after the date on which tfie relationship ended or not later than one year after September 1,1989, whichever is later.” Act of June 2, 1969, 61st Leg., R.S., ch. 888, § 1, sec. 1.91(b), 1969 Tex. Gen. Laws 2707, 2717, amended by Act of May 29, 1989, 71st Leg., R.S., ch. 369, § 9, 1989 Tex. Gen. Laws 1458, 1461. In construing this statute, our objective is to ascertain and give effect to the underlying legislative intent. Texas Water Comm’n v. Brushy Creek Mun. Util. Dist., 917 S.W.2d 19, 21 (Tex.1996). When the language is clear and unambiguous, legislative intent may be determined from the plain and ordinary meaning of the words used. Albertson’s, Inc. v. Sinclair, 984 S.W.2d 958, 960 (Tex.1999). But even if the statute is unambiguous, we may consider the legislature’s objective, the consequences of particular constructions of the statute, and any administrative constructions. Tex. Gov’t Code Ann. § 311.023 (Vernon 1998); see Atascosa County v. Atascosa County Appraisal Dist., 990 S.W.2d 255, 258-59 (Tex.1999).

It is undisputed Hernandez filed a divorce petition within one year of the month in which he and Heinrich ceased cohabiting. See Georgiades v. Di Ferrante, 871 S.W.2d 878, 881 (Tex.App. —Houston [14th Dist.] 1994, writ denied); Riley v. State, 849 S.W.2d 901, 902-03 (Tex.App.—Austin 1993, pet. ref'd); White v. State Farm Mut. Auto. Ins. Co., 907 F.Supp. 1012, 1017 (E.D.Tex.1995); Joseph W. McKnight, Annual Survey of Texas Law, Part 1: Private Law, Family Law: Husband and Wife, 44 Sw. L.J. 1, 3 (1990) (relationship ends when the parties cease cohabitating). However, J.C. Penney argues Hernandez’s divorce action does not satisfy section 1.91, because it did not attempt to establish a common law marriage. We disagree. An attempt to establish a common law marriage is implicit in filing a divorce action and referring to Heinrich as his “common law spouse.”

Because Hernandez’s divorce action sought to establish a common law marriage as a prerequisite to obtaining a divorce and was filed within one year of the end of the relationship, Hernandez’s action meets section 1.91’s plain and unambiguous terms. J.C. Penney argues, however, “merely instituting the proceeding does not satisfy the requirements of [section 1.91]”; “[a] determination of the marriage must result.” For this proposition, J.C. Penney cites Mossier v. Shields, 818 S.W.2d 752, 754 (Tex.1991) (per curiam).

In Mossier, Tammy Shields’ divorce petition seeking to establish a common law marriage was dismissed with prejudice. Id. at 753. Shields then relocated and, more than a year after the relationship ended, refiled her petition in her new county of residence. Id. The trial court entered summary judgment against Shields in her second divorce action. Id. The supreme court held the first dismissal was a determination on the merits and thus the summary judgment was not precluded by public policy. Id. at 754. As support for its holding, the court noted that the Texas Legislature’s amendment of section 1.91 indicated “its approval of barring such claims in certain situations.... ” Id. At no point did the court construe section 1.91 or otherwise indicate that merely filing a proceeding was insufficient to comply with the statute. Mossier thus does not support J.C. Penney’s argument. Nor are we aware of any other authority that does. We therefore hold that section I.91 requires only that a proceeding be commenced, as long as there has been no determination on the merits of the proceeding that no common law marriage existed, and further that the trial court did not err in concluding Heinrich’s action is not barred by section 1.91 of the Texas Family Code.

Texas Insurance Code Article 21.55 Damages and Fees

J.C. Penney argues the trial court erred in concluding that Heinrich was entitled to damages and fees under article 21.55 of the Texas Insurance Code. We again disagree.

Under article 21.55, an insurer is required to acknowledge the receipt of a claim, commence an investigation of the claim, and request all items required from the claimant not later than fifteen days after the receipt of notice of a claim. Tex. Ins.Code Ann. art. 21.55, § 2 (Vernon Supp.1999). If the insurer fails to meet this or any other requirement of article 21.55, it is hable for “18 percent per annum of the amount of such claim as damages, together with reasonable attorney fees.” Id. § 6.

The trial court found that J.C. Penney failed to respond to Heinrich’s May 3, 1995 claim and, as a result, concluded that Heinrich was entitled to article 21.55 damages and attorney’s fees. J.C. Penney does not challenge the sufficiency of the evidence to support this finding. Rather, J.C. Penney argues it should be excepted from application of article 21.55, section 6.

J.C. Penney first argues it is not liable under article 21.55, because Heinrich’s delay in claiming the pohcy proceeds deprived it of the opportunity to file an inter-pleader action. However, J.C. Penney cites no authority for its argument, and we are aware of none. J.C. Penney also argues it cannot be hable under article 21.55, because it never generally denied liability for the pohcy proceeds. For this proposition, J.C. Penney cites Whittet v. Reliance Life Ins. Co. of Pittsburgh, 213 S.W.2d 164 (Tex.Civ.App.—San Antonio 1948, no writ), and Life Ins. Co. of Virginia v. Oldham, 385 S.W.2d 403 (Tex.Civ.App.—Amarillo 1964, writ ref'd).

In Whittet, the proceeds of the life insurance pohcy were payable to the executors, administrators, or assigns of the insured, and neither an executor nor an administrator had been appointed when the insured’s heirs demanded payment of the proceeds. Id. at 164. The insurer thus promised to pay the proceeds to the executor or administrator as soon as one was appointed or when a court ordered payment to another person. Id. at 164-65. The court held the insurer was not hable for article 21.55 damages:

[I]n the absence of a general denial of liability, an insurance company is not liable for the payment of the penalties and attorney’s fees provided for by [the predecessor of article 21.55, section 6], because of its insistence that a proper court order be secured before payment of the proceeds of an insurance pohcy is made to the heirs of the insured, when the pohcy expressly provides for payment to the executor, administrator or assigns of the insured.

Id. at 166. The Whittet Court thus held an insurer who delayed payment to persons not designated until permitted to do so by a court order is not hable under article 21.55. Id. The Oldham court, faced with “uniquely similar” facts to Whittet, relied on the Whittet holding as controlling. Oldham, 385 S.W.2d at 405. But J.C. Penney paid the proceeds to a person not designated a beneficiary — Byrom— without obtaining a court order to do so and then denied liability to the designated beneficiary. Under these circumstances, we do not beheve Whittet and Oldham apply. Furthermore, we are unable to find any authority for the proposition that simply failing to generahy deny liability will reheve an insurer of its liabihty under article 21.55. See Cross v. John Hancock Mut. Life Ins. Co., 722 S.W.2d 759, 761 (Tex.App.—Houston [14th Dist.] 1986, no writ) (while insurer never denied liability, it was still liable for penalty when it failed to acknowledge liability, attempt to settle the claim, or file an interpleader); cf. Texas Life Ins. Co. v. Valley View Nat’l Bank, 44 S.W.2d 1045, 1049 (Tex.Civ. App.—Fort Worth 1931, no writ) (“To give rise to a cause of action against a life insurance company for the statutory penalty and attorneys’ fees under article 4736, Revised Civil Statutes, for failure to pay a loss within thirty days after demand, it must appear that the failure to pay the loss was a denial of the insurance company that it owed the amount of the policy to the claimant.”)

Prejudgment Interest on Article 21.55 Damages

J.C. Penney next argues the trial court erred in awarding prejudgment interest on the article 21.55 damages. We agree.

Standard of Review

We review a trial court’s award of prejudgment interest under the abuse of discretion standard. European Crossroads’ Shopping Center, Ltd. v. Criswell, 910 S.W.2d 45, 55 (Tex.App.—Dallas 1995, writ denied). Under this standard, we will not disturb a trial court’s findings on factual issues unless the court reasonably could have reached only one decision and it failed to do so. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex.1992). However, “a trial court has no discretion in determining what the law is or applying the law to the facts.” Id. at 840.

Discussion

Prejudgment interest may be awarded on actual damages, but it may not be assessed on an award of exemplary or punitive damages. Tex. Civ. Prac. & Rem. Code Ann. § 41.007 (Vernon 1997); Cavnar v. Quality Control Parking, Inc., 696 S.W.2d 549, 555-56 (Tex.1985); Texas Farmers Ins. Co. v. Cameron, 24 S.W.3d 386, 398 (Tex.App. —Dallas 2000, no pet. h.).

Heinrich argues the trial court properly awarded prejudgment interest because the penalty provided by article 21.55, section 6 of the Texas Insurance Code is classified “as damages.” Tex. Ins.Code Ann. art. 21.55, § 6; see Bekins Moving & Storage Co. v. Williams, 947 S.W.2d 568 (Tex. App.—Texarkana 1997, no writ). However, the purpose underlying article 21.55 damages is to ensure prompt payment of insurance claims by penalizing the insurer when the insurer fails to follow the steps required by the article. Tex. Ins.Code ANN. art. 21.55, § 8. Because the award is designed to penalize the insurer without reference to harm suffered by the insured or claimant, it is akin to exemplary damages, not actual damages. Cameron, 24 S.W.3d at 398; see Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 39-40 (Tex.1998); Box v. Flynn, 870 S.W.2d 585, 596 (Tex.App.—San Antonio 1993, no writ). We therefore hold the trial court erred in awarding prejudgment interest on the article 21.55, section 6 damages. See Cameron, 24 S.W.3d at 398; Dunn v. Southern Farm Bureau Cas. Ins. Co., 991 S.W.2d 467, 478-79 (Tex.App.— Tyler 1999, pet. denied); see also Teate v. The Mutual Life Ins. Co. of New York, 965 F.Supp. 891, 894-95 (E.D.Tex.1997); Marineau v. General American Life Ins. Co., 898 S.W.2d 397, 405 (Tex.App.—Fort Worth 1995, writ denied).

Appellate Attorney’s Fees

J.C. Penney also argues the trial court erred in failing to condition the award of appellate attorney’s fees on a successful appeal. We again agree.

Standard of Review

We review a trial court’s award of appellate attorney’s fees under the abuse of discretion standard. In re Ford Motor Co., 988 S.W.2d 714, 721 (Tex.1998).

Discussion

“[A]ny award of attorney’s fees on appeal must be conditioned on the receiving party’s success.” Westech Eng’g, Inc. v. Clearwater Constructors, Inc., 835 S.W.2d 190, 205 (Tex.App.—Austin 1992, no •writ); see Stable Energy, L.P. v. Newberry, 999 S.W.2d 538, 557 (Tex.App.—Austin 1999, pet. denied).

Here, the trial court awarded Heinrich “$10,000.00 as reasonable attorney’s fees if this case is appealed to the Court of Appeals and $6000.00 for reasonable attorney’s fees if this case is appealed to the Texas Supreme Court.” The court thus abused its discretion in failing to condition the award of appellate attorney’s fees on a successful appeal. However, contrary to J.C. Penney’s argument, this error does not require reversal. “Rather, we modify the trial court’s judgment to condition the award of attorney’s fees on appeal to [Heinrich’s] success on appeal.” Westech, 835 S.W.2d at 205; Stable Energy, 999 S.W.2d at 557.

Attorney Ad Litem Fees

Finally, J.C. Penney argues the trial court erred in assessing attorney ad litem fees against it, because Heinrich, as the successful plaintiff, should bear these fees. We disagree.

Standard of Review

We review a trial court’s award of attorney ad litem fees under the abuse of discretion standard. See Simon v. York Crane & Rigging Co., 739 S.W.2d 793, 794 (Tex.1987).

Discussion

Under section 37.009 of the Texas Civil Practice and Remedies Code, in any declaratory judgment proceeding, the trial court “may award costs and reasonable and necessary attorney’s fees as are equitable and just.” Tex. Crv. Prao. & Rem. Code Ann. § 37.009 (Vernon 1997). Thus, the trial court may award fees to a nonpre-vailing party as long as the award is equitable and just.

J.C. Penney does not argue the trial court’s award of attorney’s fees was not equitable or just. Moreover, at trial, J.C. Penney’s objected to the trial court’s award of the ad litem fees against it “because ... we’re asking the Court to award [ad litem fees] against Ms. Byrom. She would actually be the true non-prevailing party.” J.C. Penney’s trial objection thus does not comport with its argument on appeal. See Tex.R.App. P. 33.1(a); Samco Props., Inc. v. Cheatham, 977 S.W.2d 469, 478-79 (Tex.App.—Houston [14th Dist.] 1998, pet. denied). Therefore, we hold the trial court did not abuse its discretion in assessing the ad litem fees against J.C. Penney. District Judges of Collin County v. Commissioners Court of Collin County, 677 S.W.2d 743, 746 (Tex.App.—Dallas 1984, writ ref'd n.r.e.).

Conclusion

The trial court correctly rendered judgment against J.C. Penney for the policy proceeds, damages under article 21.55, and attorney ad litem fees. However, the trial court erred in assessing prejudgment interest on the article 21.55 damages and in failing to condition the award of appellate attorney’s fees on Heinrich’s success on appeal. We therefore modify the trial court’s judgment to delete the award of prejudgment interest on the article 21.55 damages and to condition the award of appellate attorney’s fees to Heinrich upon her success on appeal. As modified, the judgment is affirmed.

Concurring opinion by: PHIL HARDBERGER, Chief Justice.

PHIL HARDBERGER, Chief Justice,

concurring.

I concur with all of the majority’s opinion except the modification of the trial court’s judgment to condition the award of appellate attorneys’ fees to Heinrich being successful on appeal. The trial court did err in failing to condition the award of appellate attorney’s fees. But this appeal is decided with this opinion. Heinrich was successful; J.C. Penney was unsuccessful. The error is harmless. See Texas Farmers Ins. Co. v. Cameron, 24 S.W.3d 386, 400 (Tex.App.—Dallas Feb. 29, 2000, no pet. h.); Humble Nat'l Bank v. DCV, Inc., 933 S.W.2d 224, 236 (Tex. App.—Houston [14th Dist.] 1996, writ denied). Accordingly, I would find no reversible error in the trial court’s failure to condition the award of appellate attorney’s fees on Heinrich’s success in this court. See Cameron, 24 S.W.3d 386, 400; Humble Nat’l Bank, 933 S.W.2d at 236.

Heinrich ultimately will receive the award of $10,000 in attorney’s fees based on the appeal to this court as the majority’s opinion and judgment are written, provided that the majority’s opinion and judgment are not reversed on further appeal. Therefore, I concur in the majority’s opinion as it relates to those fees. I join the majority opinion in modifying the trial court’s judgment as it relates to the unconditional award of attorney’s fees on appeal to the Texas Supreme Court.

      . J.C. Penney cites Daniels v. Grand Lodge, 62 S.W.2d 548 (Tex.Civ.App.-Galveston 1933, writ dism’d). However, in Daniels, the insurer paid the designated beneficiary. Daniels, 62 S.W.2d at 548.

      . See Rogers v. Unionmutual Stock Life Ins. Co., 782 F.2d 1214, 1216 (4th Cir.1986); Crosby v. Crosby, 785 F.Supp. 1227, 1228-29 (D.Md.1992), aff'd, 986 F.2d 79, 83 (4th Cir.1993); Weed v. Equitable Life Assur. Soc. of the U.S., 288 F.2d 463, 464 (5th Cir.), cert. denied, 368 U.S. 821, 82 S.Ct. 40, 7 L.Ed.2d 27 (1961); Atkins v. Security Connecticut Life Ins. Co., 1998 WL 900057 (Tenn.Ct.App. 1998); Avondale v. Sovereign Camp W.O.W., 134 Neb. 717, 279 N.W. 355, 359-60 (1938).


source: Caselaw Access Project

author: PAUL W. GREEN, Justice.

license: Public Domain

text:
    CITY OF SAN ANTONIO, Appellant, v. RIVER CITY CABARET, LTD., NATCO, Inc., W.A.T., Inc., Alamo City Hospitality, Inc., Jose Perales, Stephen Andrade, Gary Jenkins, Edmund Beck, and Jutta Beck, Appellees.
    No. 04-00-00022-CV.
    Court of Appeals of Texas, San Antonio.
    Sept. 27, 2000.
    Rehearing Overruled Dec. 20, 2000.

      Dennis J. Drouillard, Asst. City Atty., Elsa Giron Nava, Asst. City Atty., San Antonio, for Appellant.
    Manuel G. Escobar, Jr., Law Office of Manuel G. Escobar, Jr., San Antonio, Jennifer S. Riggs, Randall D. Terrell, Hill Gilstrap Adams & Graham, L.L.P., Austin, Robert N. Ray, Law Offices of Robert N. Ray, Inc., San antonio, for Appellee.
    Sitting: CATHERINE STONE, Justice, PAUL W. GREEN, Justice, KAREN ANGELINI, Justice.
   OPINION

Opinion by

PAUL W. GREEN, Justice.

The trial court dismissed a nuisance suit filed by appellant, City of San Antonio (the City), against appellees, River City Cabaret, Inc., NATCO, Inc.,W.A.T., Inc., Alamo City Hospitality, Inc. (hereafter referred to collectively as the Cabaret), Jose Pe-rales, Stephen Andrade, Gary Jenkins, Edmund Beck and Jutta Beck. The trial court found the city attorney did not meet his burden under Tex.R. Crv. P. 12 to show he was authorized to file the lawsuit on behalf of the City. The City argues on appeal the city attorney was authorized to file suit by Tex. Civ. PRAC. & Rem.Code §§ 125.002 & 125.022, and the City Charter, section 54. In the alternative, the City contends the suit should not have been dismissed because the city attorney’s action was ratified by the city council in City Ordinance 90218, adopted in an open meeting on August 5, 1999. In a cross appeal, the appel-lees challenge the trial court’s refusal to award attorneys’ fees. We hold the trial court had no discretion to dismiss the lawsuit after the city attorney, properly authorized by City Ordinance 90218, appeared to prosecute the suit. We reverse the trial court’s judgment and remand the cause for further proceedings.

Background and procedural history

On June 16, 1999, the city attorney filed suit on behalf of the City of San Antonio, claiming River City Cabaret is a nuisance because it allows prostitution and drug dealing on the premises and seeking a temporary and permanent injunction of those activities under Tex. Civ. PRAC. & Rem.Code §§ 125.002 <⅞ 125.022 (Vernon 1987). The Cabaret and two individual defendants, Jenkins and Andrade, answered and moved to strike the City’s petition under Tex.R. Civ. P. 12, arguing the city attorney did not have authority to file this particular suit on behalf of the City.

On July 26, 1999, the trial court conducted a hearing and held the city attorney failed to show authority to file the lawsuit. However, no order of dismissal was signed at that time.

On August 5, 1999, the city council adopted Ordinance 90218, ratifying the city attorney’s action in filing the River City Cabaret lawsuit and generally authorizing the city attorney to file lawsuits under Tex. Civ. Prac. & Rem.Code § 125.001, et seq., and § 125.021, et seq. The City then filed a motion to reconsider, which the trial court denied.

On August 18, 1999, the Cabaret, Jenkins, and Andrade filed a motion to enter an order of dismissal. On August 28,1999, the trial court signed its first order dismissing the suit but reserving the issue of attorneys’ fees. On October 18, 1999, the trial court entered a Final Judgment, dismissing the lawsuit in its entirety without prejudice, and refusing to award attorneys’ fees to the appellees.

Standard and Scope of Review

We review the trial court’s grant of a Rule 12 motion for abuse of discretion. See Henry v. Gonzalez, 18 S.W.3d 684, 689 (Tex.App.-San Antonio 2000, no pet. h.). We defer to the trial court on factual findings and review legal conclusions de novo. See id.; Gulf Reg’l Educ. Television Affiliates v. University of Houston, 746 S.W.2d 803, 806 (Tex.App.-Houston [14th Dist.] 1988, writ denied). The facts are undisputed; therefore, the trial court’s ruling, based upon interpretation of Tex.R. Civ. P. 12, the City Charter, Tex. Crv. Prac. & Rem.Code §§ 125.002 & 125.022, and the applicable case law involves only a question of law.

Discussion

The City contends the suit is authorized because the city attorney’s authority was approved and the filing of the lawsuit ratified in Ordinance 90218, adopted after the suit was filed but before the trial court entered its judgment. The Cabaret argues the city council action is an invalid retroactive ratification of the lawsuit in violation of the Texas Open Meetings Act (TOMA).

We recognize a governmental body cannot give retroactive effect to an action taken in violation of TOMA. See Lower Colo. River Auth. v. City of San Marcos, 523 S.W.2d 641, 646-47 (Tex.1975). The invalid act may be ratified in an open meeting held in accordance with TOMA, but the ratification will only be effective from the date of the meeting in which the valid action is taken. See City of Bells v. Greater Texoma Util. Auth., 790 S.W.2d 6, 11 (Tex.App.-Dallas 1990, writ denied). Thus, in this case, the city attorney had authority from the date of the city council’s action, August 5, 1999, to prosecute a nuisance suit against River City Cabaret.

Rule 12 states the trial court “shall strike the pleadings if no person who is authorized to prosecute or defend appears.” (emphasis added). Although the trial court made an oral ruling, no order was signed before the city attorney, duly authorized by adoption of Ordinance 90218, appeared to prosecute the lawsuit through a motion to reconsider. Even if the ratification was effective only after the date of the city council meeting, it was sufficient to preserve the suit because an authorized person did, in fact, appear to prosecute the lawsuit. Rule 12 does not authorize the trial court to dismiss a lawsuit if an authorized person appears to prosecute or defend.

Conclusion

We hold the trial court had no discretion to dismiss the lawsuit under Tex.R. Civ. P. 12 after the duly authorized city attorney appeared to prosecute the action. Accordingly, we reverse the trial court’s judgment and remand the cause for further proceedings. We need not address the City’s remaining issues or the cross-appeal for attorneys’ fees.

      . Perales and the Becks filed general denials. Perales later filed a written Rule 12 motion to dismiss.

      . The trial court made a "Finding of Fact” that there is no "express language” in the City Charter authorizing the city attorney to file suit under the Texas Civil Practice & Remedies Code. The Cabaret and the individual defendants argue we must give deference to this factual finding. If this statement means there is no specific reference in the city charter to Tex Civ. Prac. & Rem.Code §§ 125.002 & 125.022, it is a correct statement of fact. If the "finding” is an interpretation of the City Charter to mean the language is not broad enough to encompass a grant of authority to the city attorney to file suit under §§ 125.002 & 125.022, it is a conclusion of law and we review de novo.


author: ALMA L. LÓPEZ, Justice.

text:
    Alton G. JOHNSON, Appellant, v. The STATE of Texas, Appellee.
    No. 04-99-00295-CR.
    Court of Appeals of Texas, San Antonio.
    Sept. 27, 2000.
    Rehearing Overruled Oct. 19, 2000.

      Cornelius N. Cox, Law Offices of Cornelius N. Cox, San Antonio, for Appellant.
    Mary Beth Welsh, Scott Roberts, Asst. Crim. Dist. Atty., San Antonio, for Appel-lee.
    Sitting: PHIL HARDBERGER, Chief Justice, ALMA L. LÓPEZ, Justice, PAUL W. GREEN, Justice.
   OPINION

Opinion by:

ALMA L. LÓPEZ, Justice.

The appellant, Alton G. Johnson, pleaded guilty to committing the offense of possession of cocaine, less than one gram. Pursuant to a plea agreement, the trial court sentenced Johnson to one year in jail, suspended the sentence, and placed Johnson on community supervision for a period of five years. On appeal, Johnson complains that the trial court erred in denying his motion to suppress. Because we find no error, we affirm the judgment of the trial court.

Motion to Suppress

In his first issue, Johnson complains that the trial court erred in denying his motion to suppress evidence. Specifically, Johnson contends that his detention, arrest, and subsequent search was without probable cause, and violates the Fourth Amendment to the U.S. Constitution and article 1, section 9 of the Texas Constitution. Johnson argues that the facts articulated by the State’s witness were insufficient to establish probable cause to initiate an investigative stop and his detention.

When reviewing a trial court’s ruling on a motion to suppress evidence, we apply a bifurcated standard of review, giving almost total deference to a trial court’s determination of historical facts and reviewing de novo the trial court’s application of the law of search and seizure. See Carmouche v. State, 10 S.W.3d 328, 327 (Tex.Crim.App.2000); Guzman v. State, 955 S.W.2d 85, 88-89 (Tex.Crim.App.1997). Because the trial court did not make explicit findings of historical fact in the instant case, we will review the evidence in a light most favorable to the trial court’s ruling. See Carmouche, 10 S.W.3d at 327-28. We will review de novo the trial court’s determinations of reasonable suspicion and probable cause. See Carmouche, 10 S.W.3d at 328; Guzman, 955 S.W.2d at 87.

1. Stop

In his motion to suppress, Johnson complains that the police officers had an insufficient basis for stopping him. Specifically, Johnson contends that the police officer did not have a warrant for the arrest, that Johnson had not committed any offense in view of the police, and that there was no probable cause for the stop.

A “stop and frisk” by a police officer amounts to a sufficient intrusion on an individual’s privacy to implicate the Fourth Amendment’s protections. See Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Carmouche, 10 S.W.3d at 328. Nevertheless, under an exception to the warrant requirement, an officer is generally justified in briefly detaining an individual on less than probable cause for the purposes of investigating possible criminal behavior where the officer can point to specific and articulable facts, which taken together with rational inferences from those facts, reasonably warrant the intrusion. See Terry, 392 U.S. at 21, 88 S.Ct. 1868; Carmouche, 10 S.W.3d at 328. Texas courts require reasonable suspicion before a seizure of the person or property can occur. See Davis v. State, 947 S.W.2d 240, 244 (Tex.Crim. App.1997). Reasonable suspicion requires that there be an occurrence of something out of the ordinary and some indication that the unusual activity is related to a crime. See id. The information provoking the officer’s suspicions need not be based on his own personal observations, but may be based on an informant’s tip which bears sufficient “indicia of reliability” to justify a stop. See Carmouche, 10 S.W.3d at 328. The same standards apply whether the person detained is a pedestrian or is the occupant of a vehicle. See id. To determine whether an informant’s anonymous tip supplied reasonable suspicion for the stop, we will review the totality of the circumstances. See Woods v. State, 956 S.W.2d 33, 38 (Tex.Crim.App.1997).

During the hearing on Johnson’s motion to suppress, Detective Breen, an undercover narcotics police officer, testified that at 7:30 p.m. on Friday, November 14, 1997, he received information from a confidential informant. Breen attested that the confidential informant was credible and rehable because the informant had provided true and correct information numerous times in the past. Breen stated that the informant told him that a black man named Gerald was driving a blue Chevrolet vehicle, license plate number NYF35P, in the area of Brownleaf and Military and delivering cocaine. The informant had seen Gerald in possession of cocaine and dealing cocaine out of his vehicle — specifically, receiving pages which he answered by delivering cocaine out of his car.

Breen testified that he relayed this information to other narcotics officers in the area as well as a marked patrol car, and told them to be on the lookout for the vehicle. The marked car and uniformed police officers initiated the stop of the vehicle. Breen arrived at the location as the uniformed officers were asking the occupants to exit the vehicle. Breen walked up to the driver, and identified himself, and asked the driver his name. The driver stated his name was “Alton.” Breen later determined that Alton’s full name was “Alton Gerald Johnson.” After identifying Johnson, Breen informed Johnson of who he was and that he had received information that Johnson was in possession of cocaine and delivering cocaine in the area. Breen asked Johnson if he had any cocaine in the vehicle, and Johnson replied “no.” Breen then asked Johnson if he could search Johnson’s vehicle and Johnson indicated that Breen could check it if he wanted. Again Breen asked Johnson, “You have no problem with me searching the car?” and Johnson replied, “No, sir.” During this time, Johnson appeared slightly nervous and was jumping around, moving, and saying that he had to “pee.”

Breen asked if he could search Johnson because he would have to conduct a search before allowing Johnson to go to the restroom. Johnson agreed to the search at which time Breen grabbed the front of Johnson’s pants and underwear and pulled them out. In doing so, Breen shined a flashlight down into Johnson’s pants where he observed a tied sandwich baggy, the contents of which were shown to be several rocks of crack cocaine. When Breen asked Johnson why he had lied about having the narcotics on him, Johnson replied “Oh man, I did not think you were going to find it, so that’s why I said no.” Accordingly, the trial court denied Johnson’s motion to suppress the evidence.

After reviewing the totality of the circumstances, we conclude that the war-rantless stop of the blue Chevrolet was constitutionally justified based upon the informant’s tip that a black male named Gerald was selling cocaine out of his vehicle, the informant’s previous history of providing rehable information to the authorities, and the events surrounding the stop which served to corroborate the informant’s information. See Carmouche, 10 S.W.3d at 328. The informant described the vehicle in detail, including the exact license plate number. Although no specific travel directions were provided, the informant stated that the individual, later identified as Johnson, was dealing drugs at a specific location. Officers went to the area and within several minutes from receiving the tip, located a vehicle matching the description given by the informant with the same license plate number. The fact that the informant provided reliable information in the past, that Johnson was at the time and place the informant had indicated, and that Johnson matched the description the informant had given the police, provided the officers with sufficient corroborating evidence to give rise to “reasonable suspicion” to stop and detain Johnson. See id.

2. Arrest

We next turn to the arrest and subsequent search of Johnson. Although the United States Constitution authorizes an arrest without warrant on probable cause, in a public place for a felony offense, see Florida v. White, 526 U.S. 559, 564, 119 S.Ct. 1555, 143 L.Ed.2d 748 (1999), in Texas, the authority to arrest a suspect without a warrant is governed by statute, see State v. Parson, 988 S.W.2d 264, 266 (Tex.App.—San Antonio 1998, no pet.). In Texas, a person may be arrested without a warrant only if (1) there is probable cause, and (2) the arrest falls within the provision of one of the statutes authorizing a warrantless arrest. See Anderson v. State, 932 S.W.2d 502, 506 (Tex.Crim. App.1996), cert. denied, 521 U.S. 1122, 117 S.Ct. 2517, 138 L.Ed.2d 1019 (1997).

Article 14.01 of the Code of Criminal Procedure provides that a peace officer may arrest ah offender without a warrant for any offense committed in his presence. See Tex.Code Crim. Proc. Ann. art 14.01 (Vernon 1977). The test for determining the existence of probable cause for a warrantless arrest is whether at that moment the facts and circumstances within the officer’s knowledge and of which he had sufficient trustworthy information were sufficient to warrant a prudent man in believing the arrested person had committed or was committing an offense. See Guzman, 955 S.W.2d at 90. Thus, a war-rantless arrest is authorized if the officer has probable cause to believe that the arrested person is committing an offense. See Beverly v. State, 792 S.W.2d 103, 105 (Tex.Crim.App.1990). An investigating officer’s mere suspicion, hunch or “good faith perception,” without more, is insufficient to constitute probable cause for an arrest. See Adkins v. State, 764 S.W.2d 782, 785 (Tex.Crim.App.1988). Moreover, the perceived events must be out of the ordinary, suspicious, and tie a subject with a criminal act. See id. The law is clear that probable cause for an arrest can exist based on the tip of a reliable informant if the informant’s information is highly detailed, and the details given by the informant are verified by the officers before making the arrest. See Whaley v. State, 686 S.W.2d 950, 951 (Tex.Crim.App.1985) (relying on Illinois v. Gates, 462 U.S. 213, 232-33, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) and Draper v. United States, 358 U.S. 307, 313-14, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959)); Curry v. State, 965 S.W.2d 32, 34 (Tex.App.—Houston [1st Dist.] 1998, no pet.). To determine whether probable cause exists, we must look to the totality of the circumstances. See Gates, 462 U.S. at 242-43, 103 S.Ct. 2317; Adkins, 764 S.W.2d at 785.

In the instant case, Detective Breen testified that he had used the informant in the past and found the informant to be very rehable and credible because his tips had resulted in the seizure of narcotics and arrests in numerous investigations. The details given by the informant were independently corroborated by the officers when Breen identified both Johnson and his vehicle at the designated time and place. Because the rehable informant provided detailed information that was verified by law enforcement officers, we conclude probable cause existed for the arrest in this case. See Curry, 965 S.W.2d at 34. We therefore hold that under the totahty of the circumstances, the officers had probable cause to justify a warrantless arrest of Johnson. See Guzman, 955 S.W.2d at 91.

3. Search

In finding there was probable cause for Johnson’s arrest, we will next determine whether there was probable cause for the officer’s search of Johnson. The Fourth Amendment of the U.S. Constitution and article 1, section 9 of the Texas Constitution does not forbid ah searches and seizures, but only unreasonable searches and seizures. See Terry, 392 U.S. at 20, 88 S.Ct. 1868; Davis, 947 S.W.2d at 242; Ortega v. State, 974 S.W.2d 361, 362 (Tex.App.—San Antonio 1998, pet. ref'd). A search or seizure conducted without a warrant is per se unreasonable, subject only to a few specifically established and well delineated exceptions. See Ortega, 974 S.W.2d at 362.

An exception to the warrant requirement is the existence of exigent circumstances, commonly referred to as the “emergency doctrine.” See Colburn v. State, 966 S.W.2d 511, 519 (Tex.Crim.App.1998). Exigent circumstances will justify a warrantless search for the purpose of preventing the imminent destruction, removal, or concealment of evidence or contraband. See Holmes v. State, 962 S.W.2d 663, 671 (Tex.App.—Waco 1998, pet. ref'd, untimely filed); Moss v. State, 878 S.W.2d 632, 641-12 (Tex.App.—San Antonio 1994, pet. ref.d). Probable cause exists when the facts are sufficient to justify the conclusion that the property which is the object of the search is probably in the area to be searched. See Rojas v. State, 797 S.W.2d 41, 43 (Tex.Crim.App.1990). We determine whether there was probable cause for a warrantless search using the totality of the circumstances test. See Amores v. State, 816 S.W.2d 407, 413 (Tex.Crim.App.1991). The State has the burden to prove the existence of probable cause to justify a warrantless arrest or search. See id.

In the instant case, not only had the informant proven reliable in the past, but Detective Breen corroborated every aspect of the informant’s tip; namely, the automobile’s description, that the automobile’s driver was a black male named Gerald, and the location of the vehicle. Due to the verification of the informant’s tip, the officers had reasonable grounds to believe that the remaining item of unverified information — whether Johnson possessed cocaine — was also true. See Rodriguez v. State, 838 S.W.2d 780, 782-83 (Tex.App.—Corpus Christi 1992, no pet.). In addition, before the police officer asked if he could search Johnson, Johnson appeared nervous, and was jumping around, and said he had to “pee.” After obtaining Johnson’s consent for the search, the officer was justified in searching Johnson to prevent the imminent destruction or removal of the cocaine. Under the totality of the circumstances, we therefore hold that the tip, coupled with the independent police corroboration and Johnson’s behavior, provided the officers involved with sufficient probable cause to perform a warrantless search of Johnson. See Gates, 462 U.S. at 242-43, 103 S.Ct. 2317; Rodriguez, 838 S.W.2d at 783.

Because there was sufficient probable cause for the arrest and search of Johnson, and because there was sufficient reasonable suspicion for the stop of Johnson, we overrule this issue.

In his second issue, Johnson complains that the consent to search was not freely and voluntarily given. Because Johnson did not raise involuntary consent at the trial level, this issue has not been preserved for review. See Tex.R.App. P. 33.1; State v. Mercado, 972 S.W.2d 75, 77 (Tex.Crim.App.1998). Accordingly, we overrule this issue.

Having overruled Johnson’s issues on appeal, we affirm the judgment of the trial court.


author: CATHERINE STONE, Justice.

text:
    Randy OLIVER, Sr., Appellant, v. The STATE of Texas, Appellee.
    No. 04-99-00203-CR.
    Court of Appeals of Texas, San Antonio.
    Sept. 27, 2000.
    Rehearing Overruled Oct. 24, 2000.

      Anne More Burnham, Van G. Hilley, Goldstein, Goldstein & Hilley, San Antonio, for Appellant.
    Frank Follis, Asst. Dist. Atty., Seguin, for Appellee.
    Sitting: CATHERINE STONE, Justice, SARAH B. DUNCAN, Justice, KAREN ANGELINI, Justice.
   OPINION

Opinion by:

CATHERINE STONE, Justice.

Randy Oliver, Sr. appeals his conviction of two counts of aggravated sexual assault and one count of sexual performance by a child. A jury convicted Oliver and assessed punishment at fifty years imprisonment for each count of aggravated sexual assault and twenty years imprisonment for sexual performance by a child. For the following reasons, we affirm the trial court’s judgment.

Factual & PROCEDURAL Background

On December 8, 1997, appellant’s son, Ryan Oliver, was arrested for possession of marijuana. At the time of the offense, Ryan was driving his father’s truck. During an inventory search of Oliver’s truck, the arresting officer discovered pornographic photos depicting Rose Oliver, his twelve-year old “sister” in sexual positions with a man. All that is depicted of the man is his penis.

When initially questioned by investigators about the photographs, Rose stated that the pictures were of her and an “unknown male,” approximately sixteen years old, whom she met while walking down the street from her house. The male, while driving a car, called out to her, “hey good looking.” According to Rose, this pedestrian comment led to an invitation to have sex. Rose stated that she and the stranger went to her house where they had sex and she posed for pictures. Rose signed a sworn statement to this effect. When further questioned by investigators, Rose modified her story, ultimately stating that Oliver was the man depicted in the photos. She also stated she and Oliver had sex after they took the photos. Rose signed a second sworn statement to this effect.

At trial, Rose explained that the pornographic photographs were taken over a weekend period while Oliver’s wife was on a camping trip. Rose testified that she and Oliver had sex approximately six or seven times over a period of several months. Rose further testified that Oliver had begun fondling her at age nine.

Dr. Nancy Kellogg examined Rose in December 1997, two months after the weekend during which the photos were taken. During this examination, she noticed a “healed tear” in Rose’s hymen, a wound consistent with vaginal penile penetration. Dr. Kellogg also found what she described as “suggestive” evidence of anal penetration.

Fantasy/Manipulation Testimony

In point of error number one, Oliver argues the trial court abused its discretion by allowing Sharon Willis, a psychotherapist at a therapeutic foster home agency, to testify that Rose’s testimony was not the résult of fantasy or manipulation. See Schütz v. State, 957 S.W.2d 52, 70 (Tex.Crim.App.1997) (holding that expert testimony that person’s allegations are result of manipulation or fantasy constitutes impermissible comment on person’s credibility). The State argues that Oliver has failed to preserve error on this issue because defense counsel failed to timely object to the testimony complained about on appeal. See Tex.R.Apf. P. 83.1. In a post-submission brief, Oliver argues that, despite defense counsel’s failure to object to the specific fantasy/manipulation evidence about which he now complains, counsel’s initial objections to Willis’ testimony sufficiently alerted the trial court to the nature of his complaint, thereby preserving this issue for appellate review. The following excerpt provides a backdrop for Oliver’s complaint:

Prosecutor: Now, there has been some evidence adduced that when first confronted with the pictures that were the start of this case.... [Rjose at first alleged that it was a stranger that was the male participant with her in the activities in the pictures and then gave a statement that said it was essentially a one time or one weekend event with this Defendant and then has gradually told of more events that have occurred the longer the case has gone on. Are you surprised by this? Is this unusual?
Willis: No, sir.
Defense counsel: I would object, Judge, before she answers, please. It is irrelevant to this case whether she is surprised ... I object. Certainly if there is any relevancy to it, its probative value or possible probative value is outweighed by the prejudicial effect it would have on this jury ...
State: I believe the law is clear that we are entitled to adduce from an expert, as Ms. Willis is, evidence regarding child sexual abuse syndrome and that is what I intend to do, Your Honor.
Court: You need to go ahead and develop that before you start asking questions concerning that syndrome.
Prosecutor: Let me ask you this, Ms. Willis, in another way. Have you previously in your practice or in the research or study that you have done that children are reluctant to tell the full extent of the abuse they have suffered?
Willis: Yes.
Prosecutor: Why is that?
Willis: Well, it is very frightening for them and, if they are dealing with — If they are talking about people that they have lived with, it is really eroding their whole sense of security.
Defense counsel: Judge, I want to make this clear. I am objecting to this line of testimony. I think it is irrelevant to this case and I[sic] it is designed to prejudice the jury. Any probative value it would have would clearly be outweighed by its prejudicial effect and I want to object to the entire line of testimony.
Court: The ruling is that the objection is overruled. Proceed.
Prosecutor: Is there a recognized condition called the child sexual abuse syndrome?
Willis: Yes, sir.
Prosecutor: What are some of the characteristics that you might see a child who has been sexually abused exhibit? Willis: Very fearful; a sense of guilt; a sense of responsibility.
Prosecutor: What other attributes would you expect to see in a child suffering from child sexual abuse syndrome?
Willis: Difficulty in trusting adults.
Prosecutor: Would a typical child suffering from child sexual abuse syndrome be forthcoming with the details of the abuse or would it be difficult for them to elaborate and tell what happened to them?
Willis: It would be very difficult because of their sense of guilt.
Prosecutor: Does Rose, to your understanding and interpretation, exhibit the characteristics of child sexual abuse syndrome?
Willis: Yes, sir.
Prosecutor: Now, in your treatment of Rose have you determined whether or not she suffers from any mental handicap or mental disorder or some other physical or mental impairment that would adversely affect her perception or memory?
Willis: No, sir.
Prosecutor: Does she exhibit any of the common symptoms or traits of a child who is fantasizing or being manipulated to give false testimony ? Willis: No, sir.
Prosecutor: What about Rose’s sister, Tammy who was 11 years old when this case arose?

Oliver’s argument fails in the instant case because the testimony to which defense counsel objected was admissible expert testimony. While an expert may not testify that a person’s recitation of events is or is not the product of fantasy or manipulation because such evidence is, in effect, particularized testimony concerning the person’s credibility, see Schutz, 957 S.W.2d at 69, an expert may, nevertheless, testify about both the common traits/symptoms of child sexual abuse syndrome and whether the victim exhibits these traits. See Vasquez v. State, 975 S.W.2d 415, 416-17 (Tex.App.-Austin 1998, pet. ref'd) (citing Yount v. State, 872 S.W.2d 706, 709 (Tex.Crim.App.1993) and Cohn v. State, 849 S.W.2d 817, 819-21 (Tex.Crim.App.1993)). The record demonstrates that defense counsel initially objected to a question designed to elicit an explanation regarding the evolving nature of Rose’s story. In response, the prosecutor explained he was attempting to develop evidence about the child sexual abuse syndrome which would then be applied to Rose. The trial court allowed the prosecutor to continue. Several questions later, defense counsel objected “to th[e] entire fine of testimony.” The record shows that the testimony to which defense counsel objected was admissible foundation evidence regarding child sexual abuse syndrome evidence. Later, when the prosecutor elicited the evidence concerning the truthfulness of Rose’s testimony, defense counsel did not object. Based on this record we find that defense counsel’s objections to admissible child sexual assault syndrome evidence failed to sufficiently alert the trial court to nature of his complaint, and thus failed to preserve error regarding seemingly inadmissible credibility evidence. See Tex.R.App. P. 33.1.

Point of error number one is overruled.

Evidence of Past Sexual Abuse

In points of error two, three, and four Oliver complains that trial court erred in excluding evidence regarding Rose’s past sexual abuse, which was admissible under Rule of Evidence 412 to rebut or explain scientific or medical evidence offered by the State. Under these points, Oliver complains that (1) he was denied the right to cross-examine Ms-. Willis about Rose’s past sexual abuse; (2) he was denied the right to cross-examine Rose about her past sexual abuse; and (3) he was denied the right to cross-examine Dr. Kellogg about Rose’s past history of sexual abuse. Oliver contends that the exclusion of this evidence prevented him from developing his defensive theory that someone other than him had sexually abused Rose. Oliver asserts that the evidence of Rose’s prior abuse was relevant to fully explain Willis’ testimony regarding the child sexual abuse syndrome. We take the complaints in the order presented.

We review a trial court’s evidentia-ry rulings under an abuse of discretion standard. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). Under that standard, we will not disturb a trial court’s decision unless it lies outside that zone within which reasonable persons might disagree. See Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.1991).

1.Willis

As noted, on direct examination Willis offered general testimony about the child sexual abuse syndrome and stated that in her opinion Rose suffered from it. On cross-examination, defense counsel sought to question Willis about Rose’s history of sexual abuse by persons other than Oliver. The State objected on the grounds of relevancy. Specifically, the prosecutor argued that such evidence should not be introduced because there was “no showing that molestation at two or any age has anything to do with this case.” The trial court did not allow the defense to pursue this line of questioning.

In a bill of exception, Willis specifically testified that she had no knowledge about Rose’s past sexual abuse. Thus, even if evidence regarding Rose’s prior sexual abuse was relevant, Willis had no knowledge regarding Rose’s prior sexual abuse; therefore, on this record, it cannot be said that the trial court abused its discretion in not allowing defense counsel to cross-examine Willis about Rose’s prior sexual history. See Tex.R. Evid. 602 (proffered witness must have personal knowledge of purported facts).

2. Rose

Oliver’s argument concerning Rose fails for the same reason. In a bill of exception, the trial court allowed defense counsel the opportunity to elicit testimony from Rose regarding prior sexual abuse from family members other than Oliver. Rose testified that she did not remember being sexually assaulted by anyone other than Oliver. She testified that family members had told her she was abused, but she denied having any memory of it. Because Rose denied any personal knowledge of abuse and the only allegations of abuse about which she could testify constituted inadmissible hearsay, we find that the trial court did not abuse its discretion in not allowing defense counsel to question Rose about her alleged prior abuse. See Tex.R. Evid. 602 (proffered witness must have personal knowledge of purported facts); Tex.R. Evid. 802 (hearsay statements generally inadmissible).

3. Dr. Kellogg

As noted, on direct examination, Dr. Kellogg testified that she examined Rose in December 1997. During her examination, Dr. Kellogg noticed a “healed tear” in Rose’s hymen, a wound which is consistent with vaginal penile penetration. Dr. Kellogg also found what she described as “suggestive” evidence of anal penetration; she could not state with certainty whether the anus wound was caused by penile penetration.

The issue of Rose’s sexual history was not explored during either Dr. Kellogg’s direct or cross-examination. It is true that Dr. Kellogg’s report indicated that Rose told her she had been sexually abused by her biological father. Defense counsel, however, never attempted to question Dr. Kellogg about Rose’s sexual history. If a defendant never sought to introduce evidence at trial, it cannot be said that the trial court excluded it therefrom. Fuller v. State, 827 S.W.2d 919, 929 (Tex.Crim.App.1992), cert. denied, 509 U.S. 940, 114 S.Ct. 13, 125 L.Ed.2d 765 (1993). The complaint regarding the exclusion of Dr. Kellogg’s testimony has not been preserved for review. See id.

Points of error two, three, and four are overruled.

Arrest of Character Witnesses

In points of error five and six, Oliver contends that he was denied his Sixth Amendment right to compulsory process because the trial court permitted his bailiff to arrest material defense witnesses in front of the jury immediately after these witnesses testified favorably for him.

Randy Oliver, Jr., appellant’s son, testified favorably for his father. Specifically, Randy stated that he loves his “sister,” but in his opinion Rose has a reputation in the community as being untruthful. After he testified, Randy was escorted into the hallway by the trial court’s bailiff, Jeff Gonzales, who placed Randy under arrest pursuant to a live warrant. Stella had an equally unpleasant experience after she testified favorably for appellant. Like Randy, Stella testified that Rose had a reputation in the community for dishonesty. Stella further testified that Rose originally told her that the man pictured in the incriminating photographs was not Oliver. After testifying, Stella was arrested because she was a runaway.

The issue of the arrests of Randy and Stella was presented in Oliver’s motion for new trial. Judge Peschel presided over both the trial and the hearing on the motion for new trial. We review the trial court’s decision under an abuse of discretion standard. Irizarry v. State, 916 S.W.2d 612, 615 (Tex.App.-San Antonio 1996, pet. ref'd). An abuse of discretion is found when the trial court’s decision was so clearly wrong as to lie outside that zone within which reasonable persons might disagree. Id. (citing Cantu v. State, 842 S.W.2d 667, 682 (Tex.Crim.App.1992), cert. denied, 509 U.S. 926, 113 S.Ct. 3046, 125 L.Ed.2d 731 (1993)). A trial court does not abuse its discretion in overruling a motion for new trial when presented with conflicting evidence. Id.

Acknowledging that Randy and Stella were arrested after they testified, the State argues that such arrests did not violate appellant’s constitutional rights or discredit the witnesses’ favorable testimony because the arrests occurred in the hallway, outside the presence of the jury. Oliver disputes this contention, insisting that the arrests occurred in the courtroom in front of the jury.

At the hearing on the motion for new trial, when asked where he was arrested, Randy stated:

I was behind — in the door whenever they put the handcuffs on me and everything, but I was coming down from the witness stand and they called me over. [Gonzales] was pointing and he called me over there and I said, “Sir?” He pulled me over there and I said, “Well, what’s — ” You know, I kind of wanted to ask him what was going on.
[When] I was coming off the witness stand I kind of caught a little movement off to the side when [the prosecutor] said, “No further questions.” So I was going to go out the door and [Gonzales] came walking over there and I just kind of caught his eye and he said, you know, “Come here, sir,” and he motioned to me
Q: Did you feel free to leave at that time?
A: Well, I wanted to leave but I had [Gonzales] tell me to, “Come here.”
Q: So you felt like you were in his custody and you had to go with him?
A: Yes, ma'am, I felt like it.

On cross-examination, Randy admitted that he was not handcuffed or otherwise physically restrained in the courtroom in the presence of the jury. Randy agreed that inside the courtroom Gonzales merely gestured to him, directing him to exit the courtroom with Gonzales. Gonzales did not verbally instruct Randy. Josh Gideon, a Mend of Randy’s who was present during the trial, opined that the jury would have been able to view Randy’s arrest in the hallway.

Stella stated that after she testified she was escorted out of the courtroom by Gonzales who was holding her hand behind her back. Gonzales did not say anything to her until they were in the hallway. Gideon recalled that while leading Stella out of the courtroom, Gonzales was removing his handcuffs from his belt.

In support of his motion, Oliver also attached an affidavit from James McKay, an investigator hired by the defense who interviewed jurors about the alleged arrest. McKay stated that he spoke with a Margaret Gregg who told him that she witnessed Randy “being arrested in the courtroom and led out in handcuffs.” This statement seemingly conflicts with Randy’s own testimony; he acknowledged that he was not physically restrained or handcuffed in the courtroom. McKay also stated that a Patricia Merritt told him “she heard [Randy] was arrested at the trial.” McKay stated that Merritt said she witnessed Stella being led out of the courtroom; she assumed Stella was being taken into custody. Finally, McKay stated that a third juror, A. Gene Dagel, told him that Oliver’s “family had a lot of problems.” Dagel recalled that Stella was taken into custody after she testified and that “[Randy] was arrested as well during the trial.” The interviewed jurors did not indicate whether the arrests influenced their decision.

In general, Gonzales testified that neither Randy nor Stella was restrained, handcuffed, or otherwise taken into custody in the presence of the jury. He remembered motioning to both witnesses and leading them out of one of the two common doors of the courtroom. On cross-examination, Gonzales stated that he routinely leads witnesses to and away from the witness stand.

On conflicting evidence, the trial judge, who had personal knowledge of the events that transpired in his courtroom, concluded that the arrests did not occur in the courtroom and/or did not impact the jury’s decision. The denial of the motion for new trial was thus within the trial court’s discretion. See Irizarry, 916 S.W.2d at 615.

Points of error five and six are overruled.

The judgment of the trial court is affirmed.

      . Rose is Randy Oliver, Sr.'s biological niece. She and her two sisters lived with appellant and his wife, Kathleen Oliver, and referred to them as “dad” and "mom.”


author: JOHN T. BOYD, Chief Justice.

text:
    In re Ernesto C. CHING, M.D.
    No. 07-00-0346-CV.
    Court of Appeals of Texas, Amarillo.
    Sept. 28, 2000.

      Monning & Wynne, Bruce Monning, Rebecca L. Price, Dallas, Richard, Lee, Cobb & Hall, Howell C. Cobb, III, El Paso, for relator.
    Gibson, Ochsner & Adkins, Thomas C. Riney, Christopher D. Wolek, Amarillo, Crenshaw, Dupree & Milam, William J. Wade, Lubbock, for appellee.
    Before BOYD, C.J., and QUINN and REAVIS, JJ.
   JOHN T. BOYD, Chief Justice.

In this original proceeding, relator Ernesto C. Ching, M.D., seeks a writ of mandamus directed to the Honorable Cecil Puryear, Judge of the 137th District Court of Lubbock County, directing him to order the real party in interest to permit the discovery of certain items we will later discuss. In the suit underlying this proceeding, Ching, who is a pediatric heart surgeon, asserted claims against the Methodist Hospital, Lubbock, and its subsidiary, Methodist Children’s Hospital (the Hospitals), for violations of the Texas Antitrust Act by suspending his privileges to perform pediatric heart surgery at the Hospitals.

In the course of pretrial preparation, Ching sought discovery of some 12 categories of evidence to which the Hospitals asserted objections. With the admission that they sometimes overlap, Ching characterizes the categories of evidence as relating to three issues: 1) how other pediatric heart surgeons were treated when they had unfavorable outcomes similar to Ching’s; 2) patient records in other mor-talities involving pediatric heart surgery; and 3) certain economic and demographic evidence relating to income the Hospitals derived from their association with other doctors Ching alleged to be co-eonspira-tors.

In pursuing his quest for mandamus relief, Ching suggests there are two issues presented for our decision. These are:

1. whether evidence in any of the following categories is relevant to Ching’s antitrust claims against the Hospitals:
a. records of how the Hospitals dealt with mortalities or questionable results involving pediatric heart surgery by surgeons other than Dr. Ching.
b. The content and timing of applications by other surgeons, affiliated with a co-conspirator, who sought privileges to perform pediatric heart surgery.
2. Whether routine and normal patient records of other mortalities in pediatric heart surgery cases, redacted to preserve patient identity, unprivileged business records as opposed to privileged medical peer review or hospital committee records.

However, the Hospitals suggest the issues necessary for our decision are, first, if a judge must make a preliminary finding that the required information is relevant to an anti-competitive action before defeating the peer reviews privilege, does the peer review privilege survive where:

(a) the party requesting the discovery fails to request the judge to make a preliminary finding of relevance; and
(b) the party seeking discovery fails to present any evidence to allow the judge to make a preliminary finding of relevance.

The Hospitals cast the second issue as consisting of the following two questions:

(a) Does a party seeking discovery of medical records compiled as a part of the peer review process admit that they are peer review privileged by failing to object to an affidavit and asserting that they are records kept in the ordinary course of business?
(b) Can a person discover medical records associated with a peer review process if the source of discovery is the peer review committee or any other entity or individual included within the peer review protections?

Although it might be questionable from a perusal of Ching’s suggested issues alone, when they are considered together with those suggested by the Hospitals, it becomes apparent that the parties have joined issue upon the extent of, and exceptions to, the Texas medical peer review privilege. This is particularly true, in view of the fact that, if not decided in this proceeding, the question will be again presented. Thus, in the interest of judicial economy, we will consider the question.

Mandamus is an extraordinary writ that should only be issued when the trial court clearly abused its discretion and there is no adequate remedy by appeal. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex.1992). A trial court clearly abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. Id. at 839. Even so, this standard has different applications in different circumstances. With respect to the resolution of factual issues or matters committed to the trial court’s discretion, the reviewing court may not substitute its judgment for that of the trial court. In that circumstance, the reviewing court may not disturb the trial court’s judgment unless it is shown to be arbitrary and unreasonable. Id.

On the other hand, the review of a trial court’s determination of the legal principles controlling its ruling is much less deferential. Id. A trial court has no “discretion” in determining what the law is or in applying the law to the facts. Id. Thus, a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion and may result in appellate reversal by extraordinary writ. Id. In this case, we must decide whether the trial court correctly applied the law concerning medical peer review privilege. Accordingly, we give the trial court order little deference. See Oyster Creek Fin. Corp. v. Richwood Invest II, 957 S.W.2d 640, 647 (Tex.App.—Amarillo 1997, pet. denied).

Medical peer review bodies, their reports and privileges are discussed in Chapter 160 of the Texas Occupations Code.Tex.Occ.Code §§ 160.001 et seq. (Vernon Pamph.2000) (the Code). Section 160.007 of the Code states the general rule that proceedings, records, and communications to a medical peer review committee are confidential and privileged (the peer review privilege). However, section 160.007(b) of the Code provides an exception to that general rule. That subsection reads:

If a judge makes a preliminary finding that a proceeding or record of a medical peer review committee or a communication made to the committee is relevant to an anticompetitive action, or to a civil rights proceeding brought under 42 U.S.C. Section 1983, the proceeding, record, or communication is not confidential to the extent it is considered relevant.

Parenthetically, as the parties know, Texas Rule of Evidence 401 defines “relevant evidence” as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Like the peer review privilege, the records and proceedings of a medical committee are confidential and not subject to subpoena (the hospital committee privilege). See Tex.Health <& Safety Code § 161.032(a) (Vernon Supp.2000). The Hospitals asserted both privileges in response to Ching’s discovery requests.

Ching argues that he is entitled to the evidence requested because he has alleged a cause of action under the Texas Antitrust Act for an unlawful “contract, combination or conspiracy” in restraint of trade in which the Hospitals are engaged with certain other doctors to reduce competition by ensuring that he could not perform his specialty in the hospitals best equipped to handle such surgery. For example, he says, he expects the evidence he seeks to show that there were other deaths of pediatric heart surgery patients at the Hos-pitáis involving less complicated cases than his, yet’nothing was done respecting the other surgeons’ privileges. He also says he believes the evidence will show that some of the deaths involved surgeons associated with “a very influential heart surgery firm whom he contends was a co-conspirator with Defendants.”

Rule of Civil Procedure 193.4 provides that in instances in which a party has asserted a privilege, any party at any reasonable time may request a hearing on the claim of privilege. The party asserting the privilege then must produce any evidence, which may be by testimony or affidavits, to support the claim. If the court determines that an in-camera review is necessary, the evidence is segregated and produced for inspection in a sealed wrapper. To the extent the court sustains the objection or claim, the objecting party has no further duty to produce. If the objection or claim is overruled, the objecting party must then produce the requested material. Tex. R.Civ.P. 193.4. See Chamberlain v. Cherry, 818 S.W.2d 201, 204 (Tex.App. — Amarillo 1991, orig. proceeding).

At the October 1999 hearing giving rise to this proceeding, the Hospitals presented the affidavit of Linda Russell, the Medical Staff Affairs Coordinator for the Lubbock Methodist Hospital System. In that affidavit, Russell averred that the discovery matters with which we are concerned fell within the purview of the peer review and hospital committee privileges. Ching made no objection to the receipt of the affidavit and tendered no evidence at the hearing.

In contending that Ching is not entitled to mandamus relief, the Hospitals assert that Ching failed to request, and obtain, a ruling from the trial judge on the preliminary question of relevance of the material to his anti-competitive claims. In support, the Hospitals note that in a October 9, 1998 hearing, counsel asked the trial court to “have a bona fide discovery hearing to which the parties present evidence to support various findings the Court has to make as to whether these specific kinds of discovery I’m asking for are relevant.” However, the Hospitals argue that in Ching’s second motion to compel, and during the October 27, 1999 hearing giving rise to this proceeding, Ching failed to ask the trial court to make a preliminary finding of relevance of the material to his anti-competitive claims. Emphasizing the proposition that a party seeking discovery who does not request and secure a ruling on the objections or assertions of privilege waives discovery, the Hospitals conclude that Ching has no ruling on which to predicate this mandamus proceeding.

Determination of this challenge requires us to examine the reporter’s record of the October 27, 1999 hearing included in Ching’s petition. Obviously, that record cannot be set out in detail and our references to it must be succinct. Examination of that record reveals that in Ching’s opening argument, he refers to his “very broad discovery motion” which, he reasons, presents two kinds of issues; namely, those in which the Hospitals asserted a privilege and the other “broader array of documents” to which the Hospitals have objected on the ground of relevance. He then proceeded into a rather extensive discussion of his two theories of antitrust violations, which he hopes the evidence he seeks will buttress. Those two theories are combination and restraint of trade to deprive Ching of his privileges and “monopolization.” He then goes on at some length to explain why he thinks the evidence sought is relevant to those questions.

The Hospitals responded that “they (Ching) come before you again today in connection with the statute that says that some peer review information is discoverable if the judge makes a preliminary finding that such proceedings, records, and communications are relevant to an anti-competitive action.” Counsel then went on to refer to the rather extensive pretrial discovery that had already taken place and referred to the response motion he filed asking for a ruling on objections to discovery and claims of privilege. The affidavit of Russell was tendered into evidence to show the material requested was “peer review documents.”

After additional argument and citation of authorities, the trial court announced its ruling as “Counsel, with regard to the request for motion to compel the peer review matters, the court is of the opinion that those matters are not discoverable and will not allow the requested motion to compel these matters.” This ruling in much the same language was later reduced to writing. Suffice it to say that although Ching may not have asked for a preliminary ruling on relevance in so many words, the record shows that the attorneys and the trial court understood that Ching was seeking a ruling as to the relevance of the peer review proceedings and, in making its ruling, the court was denying a request for a preliminary ruling that those proceedings were relevant. This ruling also implied a determination by the trial court that an in-camera review of the material pursuant to Rule 193.4 was not necessary.

The Hospitals also argue that even assuming that Ching made a sufficient request for a preliminary finding relevance, he had the burden of putting on evidence to support such a finding and, because he did not do so, was not entitled to a preliminary relevance ruling.

There is a paucity of relevant authority as to whether a party seeking a preliminary relevancy ruling is required to put on evidence to support such a preliminary finding. Observing that the statute gives no help in that regard, the gist of Ching’s argument is that the court must make its decision based on the allegations made in the pleadings of the party seeking the discovery. Supporting that position, he points out that it is impossible to make a preliminary showing of relevance without knowing what the evidence actually is and that he can only argue what he expects the evidence to show and its relevance in terms of the action pled.

In response, the Hospitals assert that if an applicant is not required to make a preliminary showing of necessity by the production of evidence, then trial judges would not need to make any preliminary findings at all, because a trial judge “would automatically allow the discovery upon a review of the pleadings, thus making the words ‘preliminary finding’ useless.” We disagree.

In Irving Healthcare System v. Brooks; 927 S.W.2d 12 (Tex.1996), our supreme court considered the peer review privilege and explained that:

The overarching purpose of the statute is to foster a free, frank exchange among medical professionals about the professional competence of their peers. The Legislature recognized the chilling effect that would be engendered by enfeebling confidentiality.
The Legislature has drawn a careful balance between the competing policy considerations of ensuring confidentiality for effective peer review and the scope of discovery in suits bringing legally cognizable claims.

Id. at 17. In balancing these factors, the legislature has recognized the importance of evidence which otherwise would be privileged in some anti-competitive and civil rights actions. However, by requiring the preliminary finding of relevance, the legislature sought to prevent “fishing” expeditions and the abuse, and eventual emasculation of, the limited exception to the peer review privilege. This is the danger of gauging the entitlement to a preliminary finding of relevance merely upon pleading and conclusory allegations. On the other hand, a blanket requirement that the party seeking the preliminary finding must bear the burden of presenting evidence to show how the material sought is relevant, without having any idea exactly what that material might be, would be extremely difficult. In many cases, such a showing would be virtually impossible, thereby negating the obvious intent of the legislature to restrict the privilege in limited instances.

Applying the procedure set out in Rule 193.4(a) to the standards set out in Section 160.007(b) of the Code establishes a framework for resolving disputes of this type while balancing the competing considerations discussed above. Where the objecting party establishes a privilege under the Code, a party seeking the benefit of the exception in Section 160.007(b) must make a preliminary showing that the information sought has some arguable relevance. If pertinent testimony on the relevance of the material sought is not available, this preliminary showing may be made by examination of the pleading allegations, an averment that the evidence is not available from any other source, and how it may be relevant.

Rule 193.4(a) grants a trial court discretion to conduct an in-camera review of some or all of the disputed material. It is the rule that a trial court abuses its discretion in refusing to conduct an in-camera inspection when such review is critical to evaluation of a privilege claim. See Arkla, Inc. v. Harris, 846 S.W.2d 623, 631 (Tex.App.—Houston [14th Dist.] 1993, no writ). Evaluation of an exception to a claim of privilege should be treated no differently. When a preliminary showing of relevance is made, a trial court abuses its discretion in failing to conduct an in-camera review. If, after that review, the judge determines the material is relevant, it would be furnished to the other party. If he determines it is not relevant, it should be sealed, not revealed to the other party, and preserved for later inspection by an appellate court in the event of an appeal.

The last issue which Ching presents, and which we must discuss, is whether patient records of other mortalities in pediatric heart surgery cases, redacted to preserve patient identity, are unprivileged business records or whether they are privileged medical peer review or hospital committee records. In Russell’s affidavit, she asserts that material requested falls within the peer review and hospital committee privileges. Ching, on the other hand, contends that they are “business” or “administrative” records of the Hospitals.

Without an examination of such material, we cannot make a definitive ruling upon this question. Even so, we point to the explication in Irving Healthcare as instructive. In that opinion, the court wrote: “routine business records of a health-care entity such as a patient’s medical records do not become privileged and are not shielded from discovery simply because a medical peer review committee reviewed or considered them.” Irving Healthcare, 927 S.W.2d at 18.

We grant Ching’s petition for mandamus to the extent that the trial court is directed to order the discovery material sought in Ching’s second motion to compel to be submitted to him at a time and place designated by him for an in-camera inspection to determine their relevance to Ching’s anti-competitive action. Any such material which the trial court determines is not relevant shall not be revealed to Ching, but will be sealed and preserved for inspection by an appellate court in the event of an appeal of the underlying suit.

      . Although references are made to the peer review privilege, as we later note, the Hospitals also assert the Hospital Committee privilege, which is similar in nature to the peer review privilege. The discussion is pertinent to both privileges.