author: KAREN ANGELINI, Justice.

text:
    J.M. RANKIN and the Estate of Doris Stacy Rankin, Appellants, v. UNION PACIFIC RAILROAD COMPANY, Appellee.
    No. 04-09-00454-CV.
    Court of Appeals of Texas, San Antonio.
    March 31, 2010.

      Elizabeth Conry Davidson, Attorney at Law, Bryan P. Cartall, The Cartall Law Firm, P.L.L.C., San Antonio, TX, for Appellant.
    Robert B. Burns, Jr., Burns Anderson Jury & Brenner, L.L.P., Austin, TX, for Appellee.
    Sitting: KAREN ANGELINI, Justice, SANDEE BRYAN MARION, Justice, and STEVEN C. HILBIG, Justice.
   OPINION

Opinion by:

KAREN ANGELINI, Justice.

J.M. Rankin and the estate of Doris Stacy Rankin (hereinafter referred to collectively as “Rankin”) sued Union Pacific Railroad Company for negligence after a pick-up truck driven by Rankin’s wife, Doris, was struck by a train. Mrs. Rankin was seriously injured in the collision and died. The trial court granted no-evidenee summary judgment against Rankin, dismissing his suit with prejudice. On appeal, Rankin argues the summary judgment must be reversed because (1) the summary judgment record contains more than a scintilla of evidence supporting the challenged element of his claims, and (2) the summary judgment was granted before an adequate time for discovery had passed. We affirm.

Factual and PROCEDURAL Background

Shortly before noon on May 19, 2006, a pick-up truck driven by Mrs. Rankin was traveling on a road that ran alongside railroad tracks in Pearsall, Texas. The truck turned onto a road that crossed the tracks, went over the tracks, made a u-turn, and attempted to re-cross the tracks from the opposite direction. At the time, a Union Pacific train was approaching the railroad crossing, which was marked on both sides with cross-arm warning signs. The train was traveling at fifty-nine miles per hour, a legal speed for this crossing. When the train engineer realized the truck would not clear the tracks before the train reached the crossing, he set the train’s emergency brakes, but was unable to stop the train before it collided with the truck. In the collision, Mrs. Rankin was ejected from the truck and sustained fatal injuries.

On May 16, 2008, Rankin filed suit against Union Pacific. In his petition, Rankin alleged three negligence theories. First, Rankin claimed Union Pacific breached its duty to provide Mrs. Rankin a reasonably safe and timely warning of the approaching train. Specifically, Rankin alleged the Union Pacific employees operating the train failed to activate the train’s whistle and bell in a timely manner as required by statute. Second, Rankin alleged the crossing was extra-hazardous because it was obstructed by vegetation and because of “the configuration of the public streets approaching the crossing.” According to this theory, because the crossing was extra-hazardous, Union Pacific had a duty to provide extraordinary warning devices, such as signal bells or lights on the crossing, lights on the train cars, or flagging at the crossing. Third, Rankin alleged Union Pacific breached its duty because, based on the extra-hazardous nature of the crossing, it should have instructed its train crews to pass the crossing at a reduced speed. Rankin alleged Union Pacific’s breaches of duty constituted negligence and were the legal cause of the incident made the basis of his suit.

Union Pacific responded to the suit by filing a verified answer in which it denied the estate had the legal capacity to sue.

On May 4, 2009, almost a year after this suit was filed, Union Pacific filed a motion for no-evidence summary judgment, arguing there was no evidence to support the breach of duty element of Rankin’s negligence claims. Although unnecessary, under no-evidence summary judgment procedure, Union Pacific attached evidence to its summary judgment motion. This evidence included the affidavit of the train engineer, the affidavit of the train conductor, the affidavit of a Union Pacific claims manager, and photographs of the crossing taken on the day of the collision.

Rankin filed a response, arguing the summary judgment motion should be denied because an adequate time for discovery had not passed and there,was a genuine issue of material fact as to whether Union Pacific breached its duties as alleged in the petition. Attached to Rankin’s response was the affidavit of Santiago “Jimmy” Rodriguez, a witness who was nearby when the collision occurred. Thereafter, Union Pacific filed a motion to strike Rodriguez’s affidavit because Rankin failed to identify Rodriguez as a witness during the discovery period.

On June 2, 2009, the trial court granted Union Pacific’s motion for summary judgment, dismissing all of the negligence claims made by Rankin. This appeal followed.

No-Evidence Summary Judgment Standards

A no-evidence summary judgment motion is essentially a motion for a pretrial directed verdict; it requires the nonmov-ing party to present evidence raising a genuine issue of material fact supporting each element contested in the motion. Timpte Industries, Inc. v. Gish, 286 S.W.3d 306, 310 (Tex.2009). Texas Rule of Civil Procedure 166a(i), which governs no-evidence summary judgment motions, provides,

After adequate time for discovery, a party without presenting summary judgment evidence may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. The motion must state the elements as to which there is no evidence. The court must grant the motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact.

Tex.R. Crv. P. 166a(i). According to Rule 166a(i), the moving party must specifically state the elements as to which there is no evidence. Id.; see Gish, 286 S.W.3d at 310-11 (emphasizing that no-evidence summary judgment must be specific in challenging the evidentiary support for an element of a claim or defense). The burden then shifts to the nonmovant to produce summary judgment evidence raising a genuine issue of material fact regarding each element challenged. Tex.R. Civ. P. 166a(i); Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex.2004). If the non-movant does not produce more than a scintilla of evidence to raise a genuine issue of material fact, the trial court must grant the motion. Tex.R. Civ. P. 166a(i); see Ridgway, 135 S.W.3d at 602 (holding summary judgment was properly granted when plaintiffs failed to produce more than a scintilla of evidence on an essential element of their claim).

A genuine issue of material fact exists if more than a scintilla of evidence establishing the existence of the challenged element is produced. Ridgway, 135 S.W.3d at 600. More than a scintilla of evidence exists if the evidence rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.2003). On the other hand, less than a scintilla of evidence exists when the evidence is so weak as to do no more than create a surmise or suspicion of a fact. Id.

A no-evidence summary judgment motion that attaches evidence should not be disregarded or treated as a traditional summary judgment motion. Binur v. Jacobo, 135 S.W.3d 646, 651 (Tex.2004). However, when a no-evidence summary judgment motion attaches evidence, that evidence should not be considered unless it creates a fact question. Id. A fact question is created when the summary judgment record contains inconsistent or conflicting summary judgment proof. Thompson v. City of Corsicana Hous. Auth., 57 S.W.3d 547, 557 (Tex.App.-Waco 2001, no pet.); see also Randall v. Dallas Power & Light Co., 752 S.W.2d 4, 5 (Tex.1988) (concluding that a fact issue was presented when conflicting inferences could be drawn from a deposition and an affidavit filed by the same party).

When reviewing a no-evidence summary judgment, the appellate court reviews the evidence presented in the motion and response in the light most favorable to the party against whom the summary judgment was rendered, crediting evidence favorable to that party if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. Gish, 286 S.W.3d at 310.

Applicable Law on Duties Owed By Railroads

Because every railroad crossing is hazardous, statutes set out the minimum standard of safe conduct for both drivers and train operators. Port Terminal R.R. Ass’n v. Richardson, 808 S.W.2d 501, 504 (Tex.App.-Houston [14th Dist.] 1991, writ denied); Missouri Pac. R.R. Co. v. Shaw, 620 S.W.2d 161, 163 (Tex.Civ.App.-Corpus Christi 1981, writ ref d n.r.e.). The Texas Transportation Code requires (1) a railway company to place warning signs where its railroad crosses a public road, and (2) the engineer in charge of a locomotive to ring the bell and blow the whistle or siren at least one-quarter mile from the place where the railroad crosses a public road or street until the locomotive has crossed the road or stopped. Tex. TRAnsp. Code. Ann. §§ 471.002(a), 471.006(b) (Vernon 2007). The railway company is liable for any damages sustained by a person because of violations of these statutes. Tex. Transp. Code. Ann. §§ 471.002(b), 471.006(c) (Vernon 2007).

“Every railroad crossing is dangerous, but it is only crossings which are found to be extra hazardous that place the higher duty upon the railroad to use extraordinary means to warn travelers along the road.” Missouri Pacific R.R. Co. v. Cooper, 563 S.W.2d 238, 235 (Tex.1978); see Osuna v. S. Pacific R.R., 641 S.W.2d 229, 230 (Tex.1982); Richardson, 808 S.W.2d at 504. A crossing is extra-hazardous if it is so dangerous that persons using ordinary care cannot pass over it in safety without some warning other than the cross-arm sign. Richardson, 808 S.W.2d at 505. A crossing may be classified as extra-hazardous if a temporary or permanent condition obstructs a driver’s view of an approaching train. Id. If a temporary condition is alleged, the condition must be due to some act or omission of the railway employees, because only under those circumstances could the defendant know or be fairly charged with knowledge that the crossing is temporarily extra-hazardous. Id. The burden is on the plaintiff to show that the railroad crossing is extra-hazardous. Cooper, 563 S.W.2d at 235. The plaintiff must establish the crossing was extra-hazardous on the day of the collision. S. Pacific Transp. Co. v. Castro, 473 S.W.2d 577, 583 (Tex.Civ.App.-Beaumont 1971), rev’d on other grounds, 493 S.W.2d 491 (Tex.1973). Extraordinary means of warning include signal bells or lights on the crossing, lights on the train cars, or flagging at the crossing. Richardson, 808 S.W.2d at 504-05.

Arguments Presented

On appeal, Rankin argues there is evidence in the summary judgment record that creates a genuine issue of material fact on the breach of duty element of his negligence claims. On the other hand, Union Pacific argues the record contains less than a scintilla of evidence to raise a material fact issue that the train crew failed to activate the train’s bell and whistle in a timely manner or that the crossing was extra-hazardous.

In his briefing before this court, Rankin takes an expansive view of his petition, asserting it contains claims for failure to keep a proper lookout and failure to properly maintain the crossing; however, these negligence allegations do not appear in Rankin’s petition. At oral argument, Rankin’s counsel conceded that in conducting our no-evidence review, we should consider only those negligence theories actually alleged in the petition. We, therefore, limit our discussion to the negligence theories alleged in Rankin’s petition.

According to his petition, Rankin alleged two categories of negligence claims against Union Pacific. First, Rankin alleged Union Pacific had a duty to provide Mrs. Rankin with a proper warning by failing to activate the train’s bell and whistle in a timely manner as required by statute, and Union Pacific breached this duty. Second, Rankin alleged the crossing was extra-hazardous in nature, and therefore, Union Pacific had a duty to provide extraordinary warning devices and to instruct its crew to travel through the crossing at a reduced speed. As to the extra-hazardous crossing theories, Rankin alleged that the crossing was extra-hazardous and that Union Pacific “knew or should have known that the crossing in question was partially obscured by vegetation and the configuration of the public streets approaching the crossing.” Thus, Rankin’s extra-hazardous negligence theory was that the vegetation obscured Mrs. Rankin’s view of the approaching train and thus rendered the crossing extra-hazardous.

With these arguments in mind, we review the summary judgment record to determine if it shows more than a scintilla of evidence raising a genuine issue of material fact as to whether (1) Union Pacific’s train crew failed to warn by sounding the train’s horn and whistle, or (2) the crossing was extra-hazardous.

Evidence of Failure to Warn by Sounding the Train’s Bell and Whistle

As a preliminary matter, Union Pacific argues we should not consider the affidavit of Rankin’s sole summary judgment witness, Rodriguez, because the trial court should have granted its motion to strike Rodriguez’s affidavit. We disagree. As a prerequisite for presenting a complaint for appellate review, the record must show that the complaint was made to the trial court by a timely motion and that the trial court ruled on the motion either expressly or implicitly. Tex.R.App. P. 38.1(a). Here, the record shows Union Pacific filed a motion to strike Rodriguez’s affidavit, but it does not show that Union Pacific obtained a timely ruling on its motion. The only ruling on the motion to strike appears in an order that was signed after the trial court’s plenary power expired. Because there is no timely ruling on the motion to strike, Rodriguez’s affidavit is part of the summary judgment record and we consider it in our review. See Doncaster v. Hernaiz, 161 S.W.3d 594, 602 (Tex.App.-San Antonio 2005, no pet.) (non-movant waived objections to summary judgment affidavit by failing to obtain a ruling on those objections); Well Solutions, Inc. v. Stafford, 32 S.W.3d 313, 316-17 (Tex.App.-San Antonio 2000, no pet.) (same).

As the nonmovant, Rankin had the burden to present some evidence the train crew failed to comply with Texas Transportation Code 471.006(b), which requires a railroad engineer to ring the bell and blow the whistle or siren at least one-quarter mile from the place where the raih’oad crosses a public road. See Tex. Transp. Code Ann. § 471.006(b) (Vernon 2007). The only evidence presented on this issue was Rodriguez’s affidavit which stated, “I do not remember hearing the train blow its horn before it hit the truck.” (emphasis added).

Based on the evidence and the law, Rodriguez’s statement is no evidence that Union Pacific’s train crew failed to sound the whistle or horn. The fact that a witness does not remember hearing the whistle or horn sounding is not probative evidence of any failure to sound the train’s whistle or horn. Gentry v. S. Pacific Co., 449 S.W.2d 527, 530 (Tex.Civ.App.-Corpus Christi 1969), aff'd, 457 S.W.2d 889 (Tex.1970) (holding that the witness’s statement that he had no recollection of having heard any audible signals by train in and of itself was not probative evidence that the bell and the horn on the engine were not sounded). By contrast, probative evidence exists when a witness states he was in a position to hear the audible engine signals, or that he would have heard the whistle or horn if it had been sounded, or that the whistle or horn was not sounded. Id. Here, as in Gentry, the witness did not testify that he was in a position to hear the audible engine signals, or that he would have heard the whistle or horn if it had been sounded, or that the whistle or horn was not sounded.

In arguing Rodriguez’s statement is some evidence the train crew failed to comply with section 471.006(b), Rankin relies on Atchison, Topeka, and Santa Fe Ry. Co. v. Cruz, 9 S.W.3d 173, 178 (Tex.App.-El Paso 1999, pet. granted, judgment vacated, remanded by agreement). In Cruz, the El Paso court held that evidence of two witnesses supported the plaintiffs’ allegation that the train crew failed to sound the whistle when approaching a crossing as required by statute. However, the present case is unlike Cruz, where the witnesses did not state merely that they did not remember hearing the whistle, but testified positively and directly that they did not hear the train blow its whistle when approaching the crossing. Id.

We follow Gentry ⅛ reasoning and analysis and hold Rodriguez’s affidavit is no evidence of the failure to sound the train’s bell and whistle as required by statute. Accordingly, the trial court properly granted no-evidence summary judgment as to Rankin’s claim that Union Pacific breached its duty to provide a reasonably safe and timely warning of the approaching train.

Evidence of Extra-Hazardous Crossing

As the non-movant, Rankin had the burden to present some evidence that the railroad crossing was extra-hazardous. Absent some evidence that the crossing in this case was extra-hazardous, Union Pacific would not have had a duty to provide extraordinary warning devices, nor would it have had a duty to instruct its crew to travel through the crossing at a reduced speed.

On appeal, Rankin relies exclusively on the photographs Union Pacific attached to the summary judgment motion to argue there was more than a scintilla of evidence of an extra-hazardous crossing. Thus, as a preliminary matter, we must determine if the photographs Union Pacific attached to the summary judgment motion create a fact question. If these photographs create a fact question as to the extra-hazardous nature of the crossing, then we consider them in our no-evidence review. If these photographs do not create a fact question as to the extra-hazardous nature of the crossing, then we do not consider them in our no-evidence review.

In his brief, Rankin argues the photographs “actually show that the vegetation along the railroad made it difficult to see a train coming from that crossing. There is heavy brush, vegetation and trees running alongside the track not far from the crossing, so that anyone looking up the track could only see up to the point where the trees and brush begin.” Rankin also argues “these photographs ... are some evidence that the crossing was extra-hazardous as a result of the trees, vegetation, and the absence of any warning devices save a cross-buck.” We disagree. The seventeen color photographs, which were taken on the day of collision, depict the crossing from various angles as well as the roadways intersecting with and adjacent to the crossing. There are trees, vegetation, trailers, and buildings in the photographs, but only at unknown distances from the crossing and the tracks. No train appears in the photographs. Some of the photographs provide a panoramic view of the railroad crossing and the surrounding area. Several of the photographs are taken from the perspective of a motorist at either side of the crossing. However, these photographs — in and of themselves — fail to create a fact question as to whether a motorist’s view of an approaching train would have been obstructed.

Rankin further argues, “It would not take long for a train moving [fifty-nine] miles per hour to traverse the ground between the beginning of the trees and vegetation and the beginning of the crossing, and clearly would not provide enough time for a person crossing the track to get out of the way before being hit.” Again, we disagree. Standing alone, the photographs do not establish that Mrs. Rankin would have been unable to get out of the way of a train traveling at fifty-nine miles per hour before being hit. Accordingly, the photographs do not create a fact question and we must disregard the photographs in our review.

As the nonmovant, Rankin had the burden to present more than a scintilla of evidence that the railroad crossing was extra-hazardous. Absent some evidence that the crossing in this case was extra-hazardous, Union Pacific had no duty to provide extraordinary warning devices, or to instruct its train crew to approach this crossing at a reduced speed.

Having determined the summary judgment record contains no evidence Union Pacific breached its duty to provide a reasonably safe and timely warning of the approaching train and no evidence that the crossing was extra-hazardous, we overrule Rankin’s contention that the record contains more than a scintilla of evidence to raise a material fact issue on the breach of duty element of his claims.

Adequate Time FOR Discovery

Rankin next argues the trial court should not have granted summary judgment because he was not afforded an adequate time for discovery. Rule 166a(i) provides a party may move for no-evidence summary judgment after an adequate time for discovery has passed. See Tex.R. Civ. P. 166a(i). In determining whether an adequate time for discovery has passed under Rule 166a(i), an appellate court examines (1) the nature of the case, (2) the nature of the evidence necessary to controvert the no-evidence motion, (3) the length of time the case was active, (4) the amount of time the no-evidence motion had been on file, (5) whether the movant had requested stricter deadlines for discovery, (6) the amount of discovery already taken place, and (7) whether the discovery deadlines were specific or vague. Martinez v. City of San Antonio, 40 S.W.3d 587, 591 (Tex.App.-San Antonio 2001, pet. denied). The rule does not require that discovery be completed, only that there was adequate time for discovery. Specialty Retailers, Inc. v. Fuqua, 29 S.W.3d 140, 145 (Tex.App.-Houston [14th Dist.] 2000, pet. denied). Finally, when a party contends it has not had an adequate opportunity for discovery before a summary judgment hearing, it must file either an affidavit explaining the need for further discovery or a verified motion for continuance. Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 647 (Tex.1996); Blake v. Intco Investments of Texas, Inc., 123 S.W.3d 521, 524 (Tex.App.-San Antonio 2003, no pet.).

Nothing in the record indicates Rankin filed in the trial court an affidavit explaining his need for further discovery or a verified motion for continuance. Additionally, this a negligence case in which Rankin needed to provide some evidence the train crew failed to sound the train horn or whistle or some evidence of the extra-hazardous nature of the crossing to defeat the summary judgment motion. On appeal, Rankin argues only that he needed additional time to locate other witnesses who might have testified about whether the train crew failed to sound the train’s whistle as it approached the crossing. As to Rankin’s assertion that he needed more time to find potential witnesses, we note this case was active for almost a year before the no-evidence summary judgment motion was filed. Furthermore, Rankin did not file his petition until almost two years after the incident. And, presumably Rankin duly investigated his case before filing suit. See Martinez, 40 S.W.3d at 591 (noting as part of adequate time for discovery analysis that appellants were presumed to have engaged in appropriate pre-suit investigation).

Moreover, the record shows the discovery period ended before the summary judgment motion was filed. This case was governed by a level two discovery control plan, which provides that the discovery period begins when suit is filed and continues until the earliest of (1) thirty days before trial; (2) nine months after the first oral deposition; or (3) nine months after the due date of the first response to written discovery. See Tex.R. Civ. P. 190.3(b)(1)(B). The record indicates the discovery period ended on April 15, 2009, nine months after the first written discovery responses in the case were due, and the earliest event to occur under Rule 190.3(b)(1)(B). Although Rankin argues the parties had an agreement to postpone discovery so Rankin could attempt to find other potential witnesses, there is nothing in the record indicating the parties had any such agreement.

Based on this record, we conclude Rankin had an adequate time for discovery before consideration of the summary judgment motion. See Martinez, 40 S.W.3d at 591 (concluding appellants had adequate time to conduct discovery during the five years case was pending, even though summary judgment was granted prior to the expiration of the discovery period). We, therefore, overrule Rankin’s contention that the summary judgment must be reversed because it was granted without affording him an adequate time for discovery.

Conclusion

Because an adequate time for discovery had passed and because the record contains no evidence raising a material fact issue as to the breach of duty element of the negligence claims presented, the trial court had no alternative but to grant the summary judgment motion. See Tex.R. Civ. P. 166a(i) (“The court must grant the motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact.”). The judgment of the trial court is therefore affirmed.

      . This account was provided by Rankin's sole summary judgment witness, Santiago “Jimmy” Rodriguez. According to a different account provided by the train crew, the truck initially went past the railroad crossing, then stopped and turned while backing up onto the crossing. As counsel for Rankin conceded at oral argument, any fact issue regarding the direction the truck was traveling immediately before the collision is not material to the claims presented in this case.

      . Union Pacific also requested no-evidence summary judgment as to the estate, arguing the estate was not a legal entity and there was no evidence rebutting its verified denial. Although briefed by the parties, we express no opinion on this issue because it is unnecessary to the disposition of this appeal. See Tex.R.App. P. 47.1 (requiring the court of appeals to hand down a written opinion that is as brief as practicable but that addresses every issue raised and necessary to the disposition of the appeal).

      . Union Pacific argues for the first time on appeal that Rankin’s reduced speed claim is preempted by federal law. Preemption, however, is an affirmative defense. Missouri Pacific R.R. Co. v. Limmer, 299 S.W.3d 78, 84 (Tex.2007); Kelly v. Brown, 260 S.W.3d 212, 217 (Tex.App.-Dallas 2008, pet. denied). Accordingly, any preemption defense should have been raised in the trial court by way of a traditional summary judgment motion.


source: Caselaw Access Project

license: Public Domain

text:
    Regino PALACIOS, Appellant, v. The STATE of Texas, Appellee.
    No. 04-09-00315-CR.
    Court of Appeals of Texas, San Antonio.
    April 14, 2010.

      Mary Kay Sicola, Texas RioGrande Legal Aid, Inc., Del Rio, TX, for Appellant.
    Edward F. Shaughnessy, III, Attorney At Law, San Antonio, TX, for Appellee.
    Sitting: KAREN ANGELINI, Justice, STEVEN C. HILBIG, Justice, MARIALYN BARNARD, Justice.
   OPINION

Opinion by:

KAREN ANGELINI, Justice.

Regino Palacios appeals the denial of his motion to suppress. We affirm.

Background

Palacios was charged with possession of marijuana in an amount greater than five pounds and less than fifty pounds. He filed a motion to suppress, arguing that because the officer did not have reasonable suspicion to stop the van Palacios was driving, Palacios was illegally stopped in violation of the Fourth Amendment to the Constitution. Palacios’s motion to suppress was not heard as a pretrial matter, but was instead heard at the same time as a trial on the merits before the bench.

At trial, Chief Deputy Sheriff William Ainsworth of the McMullen County Sheriffs Department testified about stopping Palacios’s van for a traffic violation. According to Deputy Ainsworth, on August 23, 2008, at 7:80 p.m., although it was not yet dark, it had been raining and was cloudy. Deputy Ainsworth testified that he was pulling onto Highway 16 when he saw a black and silver van pass. According to Deputy Ainsworth, when the vehicle passed, he “saw the lights were on [but] there was no license plate light.” So, he pulled the van over for not having a light illuminating the license plate. When the van stopped, Regino Palacios immediately got out of the van and approached Deputy Ainsworth’s patrol car. Deputy Ainsworth then showed Palacios that his license plate light was not working. Deputy Ainsworth began questioning Palacios and determined that Palacios did not have a driver’s license — only an expired identification card from Illinois — and that the van was registered in Laredo, Texas. Deputy Ains-worth asked Palacios where he was going. Palacios replied that he was going to San Antonio. Deputy Ainsworth asked why Palacios was on Highway 16 if he was traveling to San Antonio from Laredo. According to Deputy Ainsworth, Palacios claimed that he had first traveled to Ban-quete to visit a friend, and then decided to go to San Antonio. Deputy Ainsworth then asked the passenger of the van separately if Palacios had asked the passenger “to go riding with him.” The passenger replied that Palacios had asked him to accompany Palacios on a trip to Houston, but that when they got to Freer, they decided to go to San Antonio. Having received two different stories, Deputy Ainsworth became suspicious. He asked the passenger if he had a driver’s license. However, all the passenger could produce was a Texas identification card. At that point, because neither Palacios nor the passenger had a valid driver’s license, and neither could produce proof of insurance for the van, Deputy Ainsworth told them that the van was going to be impounded. Deputy Ainsworth testified that he regularly impounds vehicles when a driver does not have a valid driver’s license. Further, here, because the passenger did not have a valid driver’s license either, Deputy Ains-worth testified that he could not give control of the van to the passenger.

Deputy Ainsworth then called State Trooper Clint Walker for help:

I felt like there was something in the van. I had gone up, and I thought it was going to be full of illegals because it’s common practice coming through here. And when I visually looked in the van, I saw no one hiding in the back. So, there was only one other alternative. Due to the actions of the driver, I felt like there would be contraband in the van.

Deputy Ainsworth explained that the driver’s demeanor was not normal:

First off, when you get stopped on a traffic stop, very few people will immediately exit their vehicle because they know they are supposed to stay in it. And, you can see in the video ... where he immediately got out of his vehicle and met me as if he didn’t want me to look in his vehicle.

Deputy Ainsworth also questioned Palac-ios’s out-of-the-way route to San Antonio from Laredo and the differences between Palacios’s and his passenger’s stories.

When Trooper Walker arrived, he asked Deputy Ainsworth if he could talk to Pa-lacios. Deputy Ainsworth agreed. At trial, Trooper Walker testified that Palacios was acting very nervous:

[Palacios] was doing what we call grooming — grooming his hair, running his fingers through his hair repeatedly. He was pacing back and forth, was stuttering, and then several responses to [ ] questions just led me to believe that, you know, the manner in which he gave his responses indicated nervousness on his part.

Like Deputy Ainsworth, Trooper Walker asked Palacios and the passenger separately about their trip. And, as with Deputy Ainsworth, Palacios and the passenger gave different explanations. Trooper Walker asked Palacios if he had brought any clothes with him for his trip. Palacios said that the suitcase in the van contained his clothing. Trooper Walker thought it odd that there was only one suitcase — the passenger evidently did not bring any belongings for the trip. Indeed, the passenger told Trooper Walker that he had not brought any clothing, not even a toothbrush, for the trip.

Trooper Walker was then told by Deputy Ainsworth that because neither the driver nor the passenger had a valid driver’s license, he was going to impound the car and asked Trooper Walker to inventory the van’s contents. Trooper Walker testified that upon opening the driver’s door to the van, he smelled a strong odor of fabric softener. He picked up a large suitcase, which was sitting upright between the second row of seats. Because the suitcase was soft-sided, Trooper Walker could tell that it was not full. However, when he picked up the suitcase, it was much heavier than he expected a half-full suitcase full of clothes to be. In the suitcase, he found five bundles of marijuana wrapped in sheets of fabric softener, some clothes, and some probation papers belonging to Palacios. Palacios and the passenger were then arrested.

Palacios also testified at trial. He claimed that he did not realize the suitcase contained marijuana — he thought he was transporting “hemp for medical treatment” for an herbalist who was helping him with his arthritis. Palacios testified that he checked the van before leaving Laredo, and the license plate lights were working. According to Palacios, Deputy Ainsworth punched one of the light bulbs over the license plate causing it to break. When asked on cross examination whether his headlights were on at the time he was pulled over, Palacios claimed that “only the parking lights” were on.

At the end of trial, Palacios’s motion to suppress was denied, and he was found guilty. He was then sentenced to twenty-five years of imprisonment.

STANDARD OF REVIEW

In reviewing a trial court’s ruling on a motion to suppress, we apply a bifurcated standard of review. Wilson v. State, 311 S.W.3d 452, 457 (Tex.Crim.App.2010); Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App.2000). Although we give almost total deference to the trial court’s determination of historical facts, we conduct a de novo review of the trial court’s application of the law to those facts. Wilson, 311 S.W.3d at 457; Carmouche, 10 S.W.3d at 327. And, as the sole trier of fact during a suppression hearing, the trial court may believe or disbelieve all or any part of a witness’s testimony, even if that testimony is not controverted. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App.2000); see also Wilson, 311 S.W.3d at 457. Furthermore, we examine the evidence in the light most favorable to the trial court’s ruling. Wilson, 311 S.W.3d at 457; State v. Ballard, 987 S.W.2d 889, 891 (Tex.Crim.App.1999). However, a trial court necessarily abuses its discretion if it refuses to suppress evidence that is obtained in violation of the law and that is, therefore, inadmissible under article 38.23 of the Texas Code of Criminal Procedure. Wilson, 311 S.W.3d at 458; Erdman v. State, 861 S.W.2d 890, 893 (Tex.Crim.App.1993).

Discussion

In his first issue, Palacios argues that the trial court erred in denying his motion to suppress because Deputy Ains-worth did not have reasonable suspicion to pull over Palacios’s van based on an alleged defective license plate light. According to Palacios, because it was still daylight and one has no legal duty to have his license plate illuminated by a light during daylight, Deputy Ainsworth did not have reasonable suspicion to stop the van. The State responds that Palacios has failed to preserve this issue for appeal because, during trial, when the “fruits” of the alleged illegal search and seizure were admitted in evidence, Palacios stated that he had “no objection.” See Tex.R.App. P. 33.1(a).

Because the trial court did not rule on Palacios’s motion to suppress as a pretrial matter, but instead carried the motion along with the trial, in order to preserve error Palacios was required to object each time any refuted evidence was offered. See Ethington v. State, 819 S.W.2d 854, 858 (Tex.Crim.App.1991); Garza v. State, No. 04-01-00358-CR, 2002 WL 985460, at *1 (Tex.App.-San Antonio 2002, no pet.) (not designated for publication). Palacios not only failed to timely object to the admission of the suitcase and its contents, he affirmatively stated that he had no objection. See Swain v. State, 181 S.W.3d 359, 368 (Tex.Crim.App.2005); Jones v. State, 833 S.W.2d 118, 126 (Tex.Crim.App.1992). Palacios’s affirmative acceptance of this evidence waived any error in its admission. See Swain, 181 S.W.3d at 368; Jones, 833 S.W.2d at 126.

Moreover, even if Palacios had properly preserved this issue for review, we conclude Palacios’s first issue lacks merit. Subsection 547.322(f) of the Texas Transportation Code requires “[a] taillamp or a separate lamp” to be “constructed and mounted to emit a white light that: (1) illuminates the rear license plate; and (2) makes the plate clearly legible at a distance of 50 feet from the rear.” Tex. Transp. Code Ann. § 547.322(f) (Vernon 1999). Subsection 547.322(g) further states that “[a] taillamp, including a separate lamp used to illuminate a rear license plate, must emit a light when a headlamp or auxiliary driving lamp is lighted.” Id. § 547.322(g). Thus, if a vehicle’s headlamp or auxiliary driving lamp is lighted, then the rear license plate must also be illuminated. Here, because the van’s headlamps or auxiliary driving lamps were on at the time of the stop, subsection 547.322(g) required that its rear license plate be illuminated.

Palacios argues that section 547.302 of the Transportation Code should control. Pursuant to subsection 547.302(a), “[a] vehicle shall display each lighted lamp and illuminating device required by this chapter to be on the vehicle: (1) at nighttime; and (2) when light is insufficient or atmospheric conditions are unfavorable so that a person or vehicle on the highway is not clearly discernible at a distance of 1,000 feet ahead.” Tex. TRAnsp. Code Ann. § 547.302(a) (Vernon 1999). According to Palacios, pursuant to subsection 547.302(a), because it was still daylight at the time of the stop, he had no duty to have his lights on. And, because he did not have a duty to have his lights on, Palacios argues he did not violate subsection 547.322(g) by not having a functioning rear license plate light. We disagree.

While Palacios may not have had a duty to have the lights on his van turned on, because the lights on his van were in fact turned on, subsection 547.322(g) required that the van’s rear license plate also be illuminated. Subsection 547.322(g) clearly states that a “taillamp, including a separate lamp used to illuminate a rear license plate, must emit a light when a headlamp or auxiliary driving lamp is lighted.” Tex. Transp. Code Ann. § 547.322(g) (Vernon 1999) (emphasis added). Nowhere does subsection 547.322(g) state that a rear license plate need only be illuminated when the driver has a duty to display the lights on his vehicle.

Therefore, because the van’s rear license plate was not illuminated when the van’s lights were on, Palacios was violating subsection 547.322(g), and Deputy Ainsworth, seeing that the rear license plate was not illuminated, had probable cause to stop the van for a traffic violation. See Moreno v. State, 124 S.W.3d 339, 346 (Tex.App.-Corpus Christi 2003, no pet.) (“A peace officer’s decision to stop an automobile is reasonable under the Fourth Amendment when the officer has probable cause to believe the driver committed a traffic offense. An officer’s observation of an actual violation of the traffic laws gives probable cause for a traffic stop.”); United States v. Alexander, 589 F.Supp.2d 777, 783 (E.D.Tex.2008) (holding that the officer had probable cause to stop the driver when the officer observed the absence of a functional license plate light on the rear of the driver’s vehicle); see also United States v. Cole, 444 F.3d 688, 689 (5th Cir.2006) (“The rule established by the Supreme Court in Whren [v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996),] allows officers to justify a stop by the occurrence of a traffic violation even though this is not the real reason for the stop.”); see also TexCode Crim. Proc. Ann. art. 14.01(b) (Vernon 2005) (“A peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view.”); Tex. Transp. Code Ann. § 543.001 (Vernon 1999) (“Any peace officer may arrest without warrant a person found committing a violation of this subtitle.”). We, therefore, overrule Palacios’s first issue.

In his second and third issues, Pa-lacios argues that the officers violated his rights under the Fourth Amendment in conducting an inventory search. These issues, however, are not preserved for appellate review. As discussed previously, Palacios’s affirmative acceptance of the suitcase and its contents in evidence waived any error he may have with respect to their admission in evidence. See Swain, 181 S.W.3d at 368; Jones, 833 S.W.2d at 126. And, even if he had objected to this evidence during trial, Palacios failed to argue in his motion to suppress or during trial that the officers improperly impounded the vehicle or improperly conducted an inventory search. Therefore, Palacios has failed to preserve his second and third issues for appeal. See Swain, 181 S.W.3d at 365.

In his final issue, Palacios argues that if we hold his second and third issues were waived, then he received ineffective assistance of counsel because his counsel failed to move to suppress evidence obtained as a result of an unconstitutional inventory search. We disagree. Even if Palacios’s trial counsel had moved to suppress evidence as a result an allegedly improper impoundment and inventory search of the van, Palacios’s rights under the Fourth Amendment were not violated. The officers first had the right to enter the van due to a lawful impoundment and then upon entering the van, had probable cause to open the suitcase due to the intense odor of fabric softener, the nervous behavior of the driver, and the conflicting stories given by the driver and passenger. Thus, because Palacios’s rights under the Fourth Amendment were not violated, Palacios cannot prove that his counsel’s failure to object prejudiced him. See Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App.1999) (explaining that the second prong of the Strickland test requires an appellant to affirmatively prove prejudice — that is, the appellant must show a reasonable probability that, but for his attorney’s unprofessional errors, the result of the proceeding would have been different).

Impoundment of a car may be lawful under many circumstances. Lagaite v. State, 995 S.W.2d 860, 865 (Tex.App.Houston [1st Dist.] 1999, pet. refd). For example, reasonable cause for impoundment exists under the following scenarios: (1) when the vehicle has been used in the commission of a crime; (2) when an unattended vehicle is abandoned, illegally parked, or otherwise endangering other traffic; (3) when the driver is incapacitated and unable to remove the vehicle; and (4) when the driver is removed from his automobile, placed under custodial arrest, and his property cannot be protected by any means other than impoundment. Id. Likewise, here, the van was lawfully impounded. When Deputy Ainsworth determined that neither Palacios nor the passenger had a valid driver’s license and that neither could produce insurance for the vehicle, Deputy Ainsworth had the legal authority to impound the vehicle and direct Trooper Walker to inventory its contents. See Stephen v. State, 677 S.W.2d 42, 43-44 (Tex.Crim.App.1984) (holding that officer properly impounded car where driver had been arrested and “the only alternative available was to let appellant’s passenger take possession of the car,” but the passenger was unable to produce a driver’s license); Benavides v. State, 600 S.W.2d 809, 811 (Tex.Crim.App.1980) (explaining that an automobile may be impounded where driver is placed under arrest and “no other alternatives are available other than impoundment to insure the protection of the vehicle”); see also Garza v. State, 137 S.W.3d 878, 882 (Tex.App.-Houston [1st Dist.] 2004, pet. refd) (“We note that peace officers need not independently investigate possible alternatives to impoundment absent some objectively demonstrable evidence that alternatives did, in fact, exist”). Thus, because the van was lawfully impounded, Trooper Walker had the right to enter the van to begin conducting an inventory of its contents. See South Dakota v. Opperman, 428 U.S. 364, 375-76, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976).

However, upon entering the van to begin conducting an inventory of its contents, Trooper Walker immediately detected a “strong odor” of fabric softener, which he testified is a “known cover odor to mask odors of illegal drugs.” The Supreme Court has recently reiterated that “[i]f there is probable cause to believe a vehicle contains evidence of criminal activity,” officers may without a warrant search “any area of the vehicle in which the evidence might be found.” Arizona v. Gant, — U.S. -, -, 129 S.Ct. 1710, 1721, 173 L.Ed.2d 485 (2009) (citing United States v. Ross, 456 U.S. 798, 820-21, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982)). To prove the applicability of this exception to the warrant requirement, the State “must demonstrate that law enforcement officers had a belief, reasonably arising out of circumstances known to the seizing officer, that the vehicle contained that which by law is subject to seizure.” United States v. Bucci 582 F.3d 108, 117 (1st Cir.2009). “Whether a particular set of facts arises to the level of probable cause is a legal determination” that the appellate court reviews de novo. Id. Here, the strong odor of fabric softener that Trooper Walker detected upon entering the van, coupled with Palacios’s nervous demeanor, and the inconsistent stories from Palacios and the passenger, gave Trooper Walker probable cause to search the suitcase for illegal drugs. See United States v. Quiroz-Hernandez, 48 F.3d 858, 864 (5th Cir.1995). Therefore, Palacios’s suitcase was not searched in violation of his rights under the Fourth Amendment. Because his constitutional rights were not violated, Pa-lacios was not prejudiced by his trial court’s failure to preserve his second and third issues on appeal. See Thompson, 9 S.W.3d at 812.

Conclusion

We affirm the judgment of the trial court.

      . We note that Palacios makes much of Deputy Ainsworth's testimony that the van's "lights were on.” Palacios argues that because Deputy Ainsworth did not specifically testify that the van's headlights were on, we must take as true Palacios's testimony that only his "parking lights” were turned on at the time of the stop. However, a trial court may disbelieve a witness's testimony, even if that testimony is not controverted. Ross, 32 S.W.3d at 855. Further, whether the van’s headlights or "parking lights" were on is not determinative in this case as subsection 547.322(g) requires the rear license plate light to be illuminated whenever a headlamp or auxiliary driving lamp is lighted. Tex. Transp. Code Ann. § 547.322(g) (Vernon 1999) (emphasis added); see also 37 Tex. Admin. Code § 21.1(a)-(b) (2010) (Tex. Dep’t of Public Safety, Standards for Vehicle Equipment) (explaining that the standards of the Texas Department of Public Safety "duplicate those of the of the United States that apply to the same aspect of vehicle equipment" and that terms defined in the Federal Motor Vehicle Standards, as adopted in 49 C.F.R. Part 571, apply); see also 49 C.F.R. § 571.108, S5.5.7 (2010) (requiring that when the parking lamps are activated on passenger cars, motorcycles, or multipurpose passenger vehicles, trucks, and buses of less than 80 inches overall width, "the taillamps, license plate lamps, and side marker lamps shall also be activated”).

      . The use of fabric softener to mask the odor of illegal drugs is well-documented in decisions. See, e.g., United States v. $129,727.00, 129 F.3d 486, 491 (9th Cir.1997) ("The nexus between fabric softener and drug trafficking is recognized to be of great probative value.”); United States v. Davis, 107 F.3d 868, 1997 WL 100919, at *2 (4th Cir.1997) (explaining that it is common practice in drug trade to line a secret compartment with dryer sheets to confuse narcotics-sniffing dogs); United States v. Mendez, 102 F.3d 126, 127 (5th Cir.1996) (noting that cocaine was found packaged in fabric softener and coffee grounds); United States v. $39,873.00, 80 F.3d 317, 319 (8th Cir.1996) (discussing drug traffickers use of dryer sheets to mask scent of narcotics).

      . We note that because Trooper Walker had probable cause to search the suitcase, we need not reach Palacios’s argument that the officers did not conduct the inventory search pursuant to a policy or standardized procedures.


author: CATHERINE STONE, Chief Justice.

text:
    Jacqueline JACKSON, Appellant, v. Lugene JACKSON, Appellee.
    No. 04-09-00117-CV.
    Court of Appeals of Texas, San Antonio.
    April 14, 2010.
    James N. Higdon, Higdon, Hardy & Zu-flaeht, L.L.P., San Antonio, TX, for Appellant.
    Dawn M. Laubach, Laubach Law Office, San Antonio, TX, for Appellee.
    Sitting: CATHERINE STONE, Chief Justice SANDEE BRYAN MARION, Justice, REBECCA SIMMONS, Justice.
   OPINION

Opinion by:

CATHERINE STONE, Chief Justice.

Jacqueline Jackson appeals the trial court’s order denying her motion for enforcement of a provision in a divorce decree relating to the military retirement of her former spouse, Lugene Jackson. Jacqueline asserts the trial court erred in denying her motion because Lugene’s election to receive combat related special compensation (CRSC) breached his fiduciary duty to protect Jacqueline’s interest in Lu-gene’s disposable retired pay and violated his obligations as constructive trustee of Jacqueline’s interest. Constrained by federal legislation and binding court precedent, we are forced to affirm the trial court’s order.

Background

Lugene and Jacqueline were divorced in 1994. With regard to the division of Lu-gene’s military retirement benefits, the decree provided that Jacqueline was awarded the following as her sole and separate property:

As agreed between the parties, ... all right, title and interest in and to thirty-nine and fifty-eight hundredths (39.58%) percent of the United States Army disposable retired or retainer pay to be paid as a result of LUGENE JACKSON’S service in the United States Army, and thirty-nine and fifty-eight hundredths (39.58%) percent of all increases in the United States Army disposable retirement or retainer pay due to cost of living or other reasons, if, as, and when received, and commencing June 1,1994.

The decree further provided for the Secretary of the Army or his designated agent to pay to Jacqueline directly, each month, “her interest awarded in this decree in the United States Army disposable retired or retainer pay paid as a result of LUGENE JACKSON’S service in the United States Army ... if, as, and when that retirement pay is due to be paid.” Finally, the decree provided:

IT IS FURTHER ORDERED AND DECREED that LUGENE JACKSON is appointed trustee for the benefit of JACQUELINE JACKSON to the extent of JACQUELINE JACKSON’S interest in the United States Army disposable retired or retainer pay paid as a result of LUGENE JACKSON’S service in the United States Army, and LU-GENE JACKSON is ORDERED to pay to JACQUELINE JACKSON her interest in that pay each month as it is received by LUGENE JACKSON and in no event later than the fifth day of each month in which LUGENE JACKSON receives that retirement pay beginning the fifth day of June, 1994. This paragraph applies to the extent that the Secretary of the Army or his designee fails to pay directly to JACQUELINE JACKSON her monthly entitlement as awarded in this decree, or any portion of that monthly entitlement.

Pursuant to the decree, the Defense Finance and Accounting Service (DFAS) paid Jacqueline a monthly amount from May of 1995 until May of 1999, when Lu-gene received a 100% disability rating. At that time, military retirees were required to waive a portion of their gross retired pay, dollar for dollar, equal to the amount of their entitlement to Department of Veterans Affairs (DVA) compensation. When Lugene received a 100% disability rating, his DVA .compensation was greater than his military retired pay, resulting in the suspension of his retired pay from June 1, 1999 through December 1, 2003.

Effective January 1, 2004, a change in the law permitted the concurrent receipt of military retired pay and disability compensation from the DVA, commonly known as “Concurrent Retirement Disability Pay” (CRDP). Accordingly, Jacqueline again began receiving a monthly payment from DFAS. Another change in the law, however, permitted Lugene to elect to receive CRSC in lieu of CRDP. When Lugene elected to receive CRSC toward the end of 2004, Jacqueline was no longer entitled to receive any payments from DFAS because CRSC is not considered to be retired pay.

Jacqueline filed a motion for enforcement on January 7, 2005. Among other claims, Jacqueline asserted that Lugene was appointed as constructive trustee of the receipt and payment of Jacqueline’s share of his disposable retired pay. Jacqueline asserted that Lugene breached his fiduciary duty as trustee by waiving his entitlement to receive military retired pay in order to receive CRSC.

After a hearing, the trial court denied Jacqueline’s motion. In its order, the trial court made the following findings:

The party’s divorce decree provides that Petitioner is to receive 39.58% of Respondent’s “United States Army disposable retired or retainer pay” plus any COLAs commencing on June 1, 1994. Respondent was appointed trustee for the purpose of paying Petitioner her [interest in] the retirement pay if DFAS did not pay it directly to Petitioner.
Subsequently, Respondent made application for Combat Related Special Compensation (CRSC). 10 USCA 1413a specifically provides CRSC is not retired pay, but replaces retired pay to the extent permitted in Title 38, §§ 5304-5305. In Mansell v. Mansell, 490 U.S. 581 [109 S.Ct. 2023, 104 L.Ed.2d 675] (1989), the U.S. Supreme Court held that state courts are prevented from dividing veteran’s disability pay. The Court finds the CRSC has the same status.
The Court finds there was no provision in the decree requiring Respondent to pay a specific amount from retirement, prohibiting him from making application for benefits, or requiring him to indemnify Petitioner in the even[t] her share was reduced by an election. The decree does not contain a provision that it is enforceable as a contract, only that the parties agreed to “certain terms” and that the Court has approved and adopted the agreement.

Jacqueline appeals the trial court’s order.

Disposable Retired Pay

In McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), the United States Supreme Court held that federal statutes then governing military retirement pay prevented state courts from treating military retirement pay as community property. In direct response to McCarty, Congress enacted the Uniformed Services Former Spouses’ Protection Act (“FSPA”), which authorized state courts to treat “disposable retired or retainer pay” as community property. Mansell v. Mansell, 490 U.S. 581, 584, 109 S.Ct. 2023, 104 L.Ed.2d 675 (1989). The federal statutes expressly defined “disposable retired or retainer pay” and required any amounts waived in order to receive disability benefits to be excluded from “disposable retired or retainer pay.” Id. at 584-85, 109 S.Ct. 2023.

In Mansell, the United States Supreme Court addressed whether state courts, consistent with the FSPA, could treat military retirement pay waived by the retiree in order to receive veterans’ disability benefits as property divisible upon divorce. 490 U.S. at 583, 109 S.Ct. 2023. Although noting that domestic relations are preeminently matters of state law, the United States Supreme Court asserted that the case presented one of those rare instances where Congress had directly and specifically legislated in the area of domestic relations. Id. at 587, 109 S.Ct. 2023. The Court further noted that Congress enacted the FSPA to change the legal landscape created by the McCarty decision. Id. The Court asserted, “Because pre-existing federal law, as construed by [the] Court, completely pre-empted the application of state community property law to military retirement pay, Congress could overcome the McCarty decision only by enacting an affirmative grant of authority giving the States the power to treat military retirement pay as community property.” Id. at 588,109 S.Ct. 2023.

Although the Court noted that the FSPA affirmatively granted state courts the power to divide military retirement pay, the Court asserted that the language of the Act “is both precise and limited.” Id. “It provides that ‘a court may treat disposable retired or retainer pay ... either as property solely of the member or as property of the member and his spouse in accordance with the laws of the jurisdiction of such court.’” Id. at 588-589, 109 S.Ct. 2023. The Act’s definitional section, however, “specifically defines the term ‘disposable retired or retainer pay’ to exclude, inter alia, military retirement pay waived in order to receive veterans’ disability payments.” Id. at 589, 109 S.Ct. 2023. “Thus, under the Act’s plain and precise language, state courts have been granted the authority to treat disposable retired pay as community property; they have not been granted the authority to treat total retired pay as community property.” Id.

After reviewing the legislative history, the Court concluded that “Congress intended both to create new benefits for former spouses and to place limits on state courts designed to protect military retirees.” Id. at 594, 109 S.Ct. 2023. With regard to the effect its reading of the statute might have on the former spouse, the Court asserted:

We realize that reading the statute literally may inflict economic harm on many former spouses. But we decline to misread the statute in order to reach a sympathetic result when such a reading requires us to do violence to the plain language of the statute and to ignore much of the legislative history. Congress chose the language that requires us to decide as we do, and Congress is free to change it.

Id. Accordingly, the Court held that the FSPA “does not grant state courts the power to treat as property divisible upon divorce military retirement pay that has been waived to receive veterans’ disability benefits.” Id. at 594-95, 109 S.Ct. 2023.

From the foregoing authorities, it is apparent that the term “disposable retired and retainer pay” had been defined by federal law at the time the parties’ divorce decree was signed in 1994. At that time, it was also apparent that a state court would be precluded from dividing pay that was excluded from that definition. In Sharp v. Sharp, this court considered whether an ex-husband violated the terms of a divorce decree awarding the ex-wife a percentage of disposable retired pay if, as, and when it was received by not paying the spouse a percentage of his CRSC payments. 314 S.W.3d 22, 23-24 (Tex.App.-San Antonio 2009, no pet. h.). Because the federal statute authorizing the payment of CRSC expressly provided that such payments “are not retired pay,” we held the decree did not divide CRSC. Id. at 25.

Constructive Trust/Breach of Fiduciary Duty

In this court’s decision in Sharp, we primarily relied on the Texas Supreme Court’s decision in Hagen v. Hagen, 282 S.W.3d 899 (Tex.2009). In Hagen, the parties’ 1976 divorce decree awarded the ex-wife, Doris, right, title and interest to a percentage of the ex-husband’s, Raoul’s, retirement pay or military retirement pay if, as, and when received. 282 S.W.3d at 901. The decree also appointed Raoul as trustee of Doris’s percentage of “all Army Retirement Pay or Military Retirement Pay” for Doris’s use and benefit, and ordered Raoul to pay Doris her percentage of the retirement or military retirement pay immediately upon his receipt of the same. Id.

Raoul retired in 1992, and his retirement compensation consisted entirely of military retirement pay. Id. In 2003, however, Raoul was determined to have a 45% disability rating, and he elected to waive part of his retirement pay and be paid VA disability in its place since VA disability was not subject to federal income taxes. Id. Doris filed a motion for contempt, clarification of decree, and petition for damages, asserting she was entitled to her percent of the gross retirement pay. Id. Doris alleged that Raoul breached a fiduciary duty by electing to be paid disability pay and waiving part of his retirement pay. Id.

The Texas Supreme Court held that the decree awarded Doris a percentage of the military retirement pay Raoul received. Id. at 908. The decree did not provide Doris with any right to receive payments calculated on any other basis, or that she was to receive part of Raoul’s disability compensation. Id. Although the court noted that Doris asserted a claim against Raoul for breach of fiduciary duty, the court concluded Doris had not presented any issues regarding the denial of that claim on appeal. Id.

In a dissenting opinion, Justice Brister commented on the breach of fiduciary duty claim, asserting:

The decree here did not just award Doris part of Raoul’s retirement pay; it also appointed him trustee of those funds for her use and benefit. As a result, it is hard to see how his decision to waive those funds did not breach his fiduciary duty as her trustee.

Id. at 912 (Brister, J., dissenting).

In her brief, Jacqueline heavily relies on this comment by Justice Brister and a recent opinion from an Oregon appellate court. See In re Marriage of Hayes, 228 Or.App. 555, 208 P.3d 1046 (2009). In In re Marriage of Hayes, at the time of the parties’ divorce in 1998, the husband had served 15 years in the military. 208 P.3d at 1048. Although the husband was not entitled to retire, the prospective military retirement pension was the most valuable asset in the marriage, making it the “centerpiece” of the parties’ property division. Id.

The parties agreed to a property settlement in which the wife was to receive a percentage interest in the husband’s military retirement benefit plan. Id. The decree expressly provided, “The Court retains jurisdiction of the division of the retirement benefits described herein so it can make any modifications to this judgment which may be necessary to accomplish the goals stated herein relating to the division of said benefits.” Id. (emphasis added)'. The husband was to retain an attorney to prepare a domestic relations order to divide the benefits. Id. After the attorneys for the parties prepared competing domestic relations orders, the matter was set for a hearing. Id.

At the time of the hearing, the husband had served 23 years in the military. Id. Although he was eligible to retire, he had no immediate plans to do so. Id. The husband was not disabled at the time of the hearing; however, it was possible that he would become disabled and receive disability benefits after retirement. Id.

The trial court entered a domestic relations order awarding the wife 50% of the marital portion of the husband’s “disposable military retired pay.” Id. at 1049. The order contained numerous provisions designed to prevent the husband from reducing the amount of his “disposable military retired pay” through waivers, including waivers related to his receipt of disability benefits. Id. The husband appealed, asserting federal law limits the divisible portion of a service member’s military retired pay to “disposable retired pay;” therefore, the order conflicted with federal law. Id.

The Oregon court noted that the case presented an issue of first impression in Oregon, i.e., “Do federal military retired pay statutes, including the FSPA, preclude an Oregon court from enforcing a previously adjudicated property settlement as to military retired pay?” Id. at 1052. Holding that the trial court properly found, based on the evidence before it, that both parties intended that the property settlement would award the wife 50 percent of the husband’s total military retirement benefit, the court held the husband was bound by the terms of the settlement agreement. Id. at 1052-53. The court noted that its enforcement of the terms of the property settlement agreement was consistent with the United States Supreme Court’s conclusion in Mansell that state law determines whether the doctrine of res judicata prevents a property settlement from being reopened. Id. at 1053.

The decision in In re Marriage of Hayes is distinguishable from the instant case. First, in the Hayes decree, the wife was awarded an interest in the husband’s military retirement benefit plan as opposed to being awarded a percentage of his “disposable military retired pay,” and the trial court found the parties intended to award the wife 50% of the husband’s total military retirement benefits. See In re Marriage of Hayes, 208 P.3d at 1048,1052. In addition, the decree expressly gave the trial court continuing jurisdiction to modify the decree to accomplish the goals relating to the division of the retirement benefits, as opposed to the decree in the instant case in which the trial court was limited to clarifying the existing language. See id. at 1048.

Most interestingly, the theory underlying Jacqueline’s claim and her issue on appeal is that the election by Lugene to receive CRSC was a breach of his fiduciary duty. Such an obligation is never discussed in In re Marriage of Hayes which principally relies on enforcing the intent of the parties as expressed in the language of the decree.

The nature of the trust relationship created by the divorce decree in the instant case must be determined by the language used in the decree. In the decree, Lugene was appointed trustee to the extent of Jacqueline’s interest in the disposable retired pay paid as a result of Lugene’s service in the army. Accordingly, Lu-gene’s obligations as trustee arose only in the event disposable retired pay was paid as a result of Lugene’s service. The final paragraph in that section of the decree expressly stated that the trustee provisions applied only if the federal government failed to directly pay Jacqueline her monthly entitlement.

In view of the express language used in the divorce decree, we conclude Lugene never had any obligation as a trustee under the terms of the decree for two reasons. First, the evidence showed that Lugene never received any portion of Jacqueline’s interest in disposable retired pay. Instead, DFAS directly paid Jacqueline her interest in any disposable retired pay that was paid. In addition, CRSC is paid as a result of Lugene’s disability, not as a result of his service. See 10 U.S.C. § 1413a. Since Jacqueline had an interest only in disposable military pay paid as a result of Lugene’s service, Jacqueline had no interest in, and Lugene had no fiduciary obligation with regard to, Lugene’s CRSC, which was paid as a result of Lugene’s disability.

Moreover, it would appear that Jacqueline’s argument is contrary to the Texas Supreme Court’s holding in Ex parte Burson, 615 S.W.2d 192 (Tex.1981). In Burson, the husband was ordered to pay the wife $375.00 per month out of his Air Force disability retirement pay pursuant to the terms of a 1978 divorce decree. Id. at 193. In addition, the decree provided that the husband would hold the $375.00 out of his monthly disability retirement check in constructive trust for the wife. Id. After the date of the divorce, the husband waived his Air Force disability retirement pay in exchange for VA disability benefits. Id.

The Texas Supreme Court noted that military disability retirement pay and VA benefits were established by different statutory schemes. Id. at 195. “The statutes control the property characterization of each and the fact of, or lack of, federal preemption of each.” Id. Although the trial court had concluded that the husband could not defeat the force of the divorce decree by his voluntary act, the Texas Supreme Court concluded that federal law empowered the husband to make the election. Id. at 196. The court held that “a divorce decree cannot prohibit Burson from doing that which the federal law properly gave him a right to do so.” Id.; see also Ghrist v. Ghrist, No. 08-05-00769-CV, 2007 WL 1872690, at *3 (Tex.App.-Austin May 11, 2007, pet. denied) (holding res judicata did not bar ex-husband from raising defense that federal law preempts and bars enforcement of provision that prohibited ex-husband from waiving military retirement to obtain VA disability benefits) (mem. op.); Freeman v. Freeman, 133 S.W.3d 277, 280 (Tex.App.San Antonio 2003, no pet.) (limitation in divorce decree seeking to prevent ex-husband from reducing disposable retired pay in the future by waiving a portion of the pay for other types of benefits including Veteran’s benefits held contrary to Texas and federal law). Given that federal law allows a retiree to elect to receive CRSC, a finding that such an election by a former spouse could constitute a breach of a fiduciary duty or other obligation created by a divorce decree would appear to be contrary to the holding in Burson.

Conclusion

The divorce decree in the instant case awarded Jacqueline a percentage of Lu-gene’s “disposable retired military pay.” At the time the decree was signed, federal law had developed such that “disposable retired military pay” was defined by federal statute. Lugene was appointed trustee over Jacqueline’s interest in “disposable retired military pay” that was actually paid as a result of Lugene’s service. Since Lugene was never in receipt of any of Jacqueline’s interest in disposable retired pay that was paid, he did not breach any fiduciary duty. The decree contained no language pursuant to which Lugene agreed not to make any elections waiving disposable retired pay, and the enforceability of such language would be questionable based on the Texas Supreme Court’s holding in Burson and the federal statutes which empower Lugene to make such elections. “Congress chose the language that requires us to decide as we do, and Congress is free to change it.” Mansell, 490 U.S. at 584, 109 S.Ct. 2023; see also Sharp, 314 S.W.3d at 24-25 (Barnard, J., concurring) (noting federal statute can lead to grossly unfair results). Constrained by the applicable law, we reluctantly affirm the trial court’s order.