author: JOHN T. BOYD, Chief Justice.

text:
    George Milton HUDSPETH, Appellant, v. The STATE of Texas, Appellee.
    No. 07-99-0308-CR.
    Court of Appeals of Texas, Amarillo.
    Oct. 19, 2000.

      Tom Brown, Livingston, for appellant.
    George Milton Hudspeth, Gatesville, pro se.
    William Lee Hon, Asst. Dist. Atty., Livingston, for appellee.
    Before BOYD, C.J., and QUINN and REAVIS, JJ.
   JOHN T. BOYD, Chief Justice.

After a jury found him guilty of the felony offense of retaliation on April 21, 1999, appellant George Milton Hudspeth was sentenced by the trial court to 25 years confinement in the Institutional Division of the Texas Department of Criminal Justice. Appellant filed a motion for new trial before sentence was pronounced and a hearing was held on the motion June 22, 1999. After the hearing concluded on July 6, 1999, the trial court rendered its judgment and appellant filed his notice of appeal the same day.

Appellant’s appointed counsel on appeal has filed a brief in which he certifies that, after diligently searching the record, he is convinced that no reversible error exists and the appeal is without merit. See Anders v. California, 386 U.S. 738, 744-45, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Gainous v. State, 436 S.W.2d 137 (Tex.Crim.App.1969). Along with his brief, he has filed a motion to withdraw and attached a copy of a letter sent to appellant, informing him of his intent to withdraw and of appellant’s right to file a brief in his own behalf. In considering such requests from counsel, we face two interrelated tasks. We must first satisfy ourselves that the attorney has provided the client with a diligent and thorough search of the record for any arguable claim that might support the client’s appeal and then we must determine whether counsel has correctly concluded the appeal is frivolous. See McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 442, 108 S.Ct. 1895, 100 L.Ed.2d 440 (1988); High v. State, 573 S.W.2d 807, 813 (Tex.Crim.App.1978).

In the Anders brief filed by counsel, he discusses three issues which might have formed the basis of an appeal: the sufficiency of the evidence, whether trial counsel rendered reasonably effective assistance, and whether any of the trial court’s rulings adverse to appellant could form the basis of reversible error. Counsel’s discussion of these issues evidences thorough review of the record and sound basis for his conclusion the record does not show reversible error. As is his right, appellant has filed a pro se brief in which he repeats the issues addressed by counsel and additionally argues there was error in the judgment because 1) his intoxication rendered him incapable of having the mens rea necessary for the offense, 2) the statement made was not a threat of violence, 3) the complainant was not a “witness” within the meaning of the statute, and 4) the enhancement of his sentence by prior convictions was improper.

Consideration of appellant’s pro se issues requires a recitation of the facts. Appellant is the former spouse of the complainant, Mary Hudspeth (Mary). At trial, Mary testified that during and after their marriage, appellant was abusive to her when he had been drinking. She stated he “is a very good person when he does not drink” but when he did “it was total chaos” and that he had held a gun on her and fired shots into the house. She had called the sheriffs office on several occasions to have appellant removed from her house. Appellant was arrested in May 1998 for assaulting Mary and again on September 24,1998, for trespassing.

On September 27, 1998, appellant returned to the residence after he had been drinking alcohol and began arguing with Mary who, according to her testimony, either called the sheriffs office or told her neighbor to call. When deputies arrived and arrested appellant again, Mary testified he made the following statements: “when I get out, you have had it,” “I will take care of you and that damn bitch across the street when I get out of jail,” and “for calling the law you will pay.” It was her opinion these statements meant appellant “intended to come back and do bodily harm to me or to get even with me for calling the law [on] him again .” The defense did not present any evidence at trial.

We agree with appellant’s counsel’s conclusion that, under the applicable standards of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App.1996), this evidence is legally and factually sufficient to support the conviction. We also agree that trial counsel’s failure to object to evidence of appellant’s prior convictions was consistent with a trial strategy showing the jury that the conduct alleged could not justify the enhanced punishment to which appellant would be subject under the habitual offender provisions of section 12.42(d) of the Penal Code. We next consider the arguments advanced in appellant’s pro se brief.

Appellant’s first pro se argument arises from section 8.04 of the Penal Code. That statute provides:

(a) Voluntary intoxication does not constitute a defense to the commission of crime.
(b) Evidence of temporary insanity caused by intoxication may be introduced by the actor in mitigation of the penalty attached to the offense for which he is being tried.

Tex.Penal Code Ann. § 8.04 (Vernon 1994). It is unclear how this statute could show any error in the trial court’s judgment. Subsection (b) is a rule of evidence on the issue of punishment only. The record affirmatively shows evidence of the effect of alcohol on appellant was well developed through Mary’s testimony. This testimony included recitation of prior occasions when sheriffs deputies were called to the home because of appellant’s conduct after drinking. Elsewhere in appellant’s brief, however, he complains of his counsel’s failure to object to introduction of this evidence as an example of ineffective assistance. Moreover, even if such evidence had been excluded, appellant cannot show any harm because he received the minimum sentence permitted under the enhancement provisions of section 12.42(d). We overrule this issue.

Appellant next argues the evidence was insufficient because the statements attributed to him “in no way gives reference to a threat of violence.” Penal Code section 36.06(a) only requires a threat to “harm another by an unlawful act.” There is no requirement the harm be physical harm. The charge given to the jury correctly set out the meaning of “harm” under this statute as “anything reasonably regarded as loss, disadvantage or injury.” Tex.Penal Code Ann. § 1.07(a)(25) (Vernon 1994). The jury, as exclusive trier of fact, could reasonably conclude appellant’s statements conveyed an intent to harm Mary through an unlawful act. We overrule appellant’s second issue.

In his third issue, appellant argues Mary was not a “witness” within the meaning of section 36.06 because she had not yet testified at an official proceeding. Section 36.06(a) not only protects witnesses but potential witnesses and those who have reported the occurrence of a crime. Under the evidence presented at trial, at the time appellant made the statements at issue, Mary was both a potential witness and a person who had reported a crime. It is irrelevant that she had not yet testified. We overrule appellant’s third issue.

Appellant’s fourth issue alleges error in the enhancement of his sentence with prior convictions, when those convictions were more than ten years old. Appellant appears to rely on the 10-year limitation for use of prior convictions to impeach a witness contained in Rule 609(b) of the Texas Rules of Evidence. The prior convictions here were not used to impeach appellant but for enhancement of his sentence under section 12.42(d) of the Penal Code. The plain language of section 12.42(d) imposes no limit on how long a prior conviction may be used for enhancement purposes. In Hicks v. State, 545 S.W.2d 805 (Tex.Crim.App.1977), the Court of Criminal Appeals held that, unlike the limitation on use of prior convictions for impeachment, no such limitation existed for the enhancement provisions of section 12.42(d). Id. at 810. We overrule appellant’s fourth issue.

Finding no reversible error in the judgment of the trial court, we affirm that judgment. We must also rule on the motion of appellant’s counsel to withdraw filed in conformity with the dictates of Anders, 386 U.S. at 744, 87 S.Ct. 1396. Upon reviewing appeals where Anders briefs have been filed and we found no arguable grounds for appeal, we have routinely granted motions to withdraw. However, we note the recent opinion of the 1st Court of Appeals in Guzman v. State, 23 S.W.3d 381 (Tex.App.—Houston [1st Dist.] 1999, no pet.), holding it has no authority to grant the motion and such motion must be directed to the trial court. Id. at 382. In support, that court relied exclusively on article 26.04(a) of the Code of Criminal Procedure, which provides:

Whenever the court determines that a defendant charged with a felony or a misdemeanor punishable by imprisonment is indigent or that the interests of justice require representation of a defendant in a criminal proceeding, the court shall appoint one or more practicing attorneys to defend him. An attorney appointed under this subsection shall represent the defendant until charges are dismissed, the defendant is acquitted, appeals are exhausted, or the attorney is relieved of his duties by the court or replaced by other counsel (emphasis added).

The court interpreted the phrase “by the court” to mean the court which appointed the attorney. We do not agree with this conclusion.

In Moore v. State, 466 S.W.2d 289 (Tex.Crim.App.1971), the Court of Criminal Appeals addressed the issue directly, stating in a footnote that only the appellate court can grant counsel’s motion to withdraw filed in connection with an Anders brief. Id. at 291 n. 1. See also Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App.1991) (noting an Anders brief should be filed with a request for withdrawal from the case). The issue was directly addressed by the Waco Court of Appeals in Johnson v. State, 885 S.W.2d 641 (Tex.App.—Waco 1994, pet. ref'd), which contained a thorough discussion of the obligations of counsel and appellate courts and the procedures to be utilized in fulfilling those obligations. Citing Moore, the Johnson court also held a motion to withdraw is to be directed to the court of appeals and “a motion in the trial court is neither appropriate nor sufficient.” Id. at 645. We find the holdings in Moore and Johnson dispositive. We also hold appellate counsel has met his obligations under Anders and High and grant his motion to withdraw.


source: Caselaw Access Project

author: NELDA V. RODRIGUEZ, Justice.

license: Public Domain

text:
    In re VAN WATERS & ROGERS, INC., et al.
    No. 13-99-646-CV.
    Court of Appeals of Texas, Corpus Christi.
    Oct. 26, 2000.

      Adrian Rafael Martinez, Houston, for Copolyer Rubber & Chemical.
    Ben L. Reynolds, Bradley A. Jackson, Royston, Rayzor, Vickery & Williams, Houston, for C.P. Hall Company.
    David G. Oliveira, Roerig, Oliveira & Fisher, Brownsville, for R.T. Vandervilt Co.
    Joseph A. Garnett, McFall & Sartwelle, Houston, for Akroehem Corp.
    Robert E. Morse, III, Crain, Catón & James, Houston, for Schenectady International.
    Robert G. Newman, Fulbright & Jawor-ski, Houston, Lisa Horvath Shub, San Antonio, Marcy Hogan Greer, Fulbright & Jaworski, Austin, W. Wendell Hall, Fulbright & Jaworski, San Antonio, for Van Waters.
    William A. Abernethy, M.W. Meredith, Jr., Meredith, Donnell & Abernethy, Corpus Christi, for Copolymer Rubber & Chemical.

      Andrew C. Schirrmeister, III, Schirrm-eister Ajamie, L.L.P., Houston, for E.I. Dupont De Nemours & Co.
    Lansford 0. Ireson, Margot A. Merek, Ireson & Weizel, Houston, for Akzo Che-mie America and Akzo.
    Joyce B. Margarce, Baker & Hostetler, LLP, Houston, for Bayer Corp. and Rhein Chemie.
    Norton A. Colvin, Jr., Eduardo R. Rodriguez, Rodriguez, Colvin & Chaney, Brownsville, for E.I. Dupont De Nemours.
    Vic Fields, Vic Fields & Assoc., Austin, for Zeon Chemical.
    Cindy A. Garcia, Garcia <& Romero, L.L.P., Harlingen, for Sartomer Co., Inc.
    G. Don Schauer, Schauer, Simank & Ledbetter, Corpus Christi, for Kenrich Petrochemical Inc.
    Robert Philip Scott, Valerie Ruth Vance, Houston, for Shell Oil.
    Ezequiel Tovar, Hector E. Garcia, McAl-len, Keith C. Livesay, Livesay & Cowen, Pharr, E. James Rausch, Rausch Law Office, Granbury, David Calvillo, Francisco J. Rodriguez, Rodriguez, Pruneda, Tovar, Enriquez & Calvillo, McAllen, Karen Kay Maston, Baker & Botts, Houston, Arnulfo Medina Acosta, Law Offices of Arnulfo Acosta, PC, Pharr, James Larry Moore, Baker & Hosteteler, Houston, Karen Patterson Freeman, Arthur Ray Almquist, Houston, for Real Parties in Interest.
    Before Justices DORSEY, CHAVEZ, and RODRIGUEZ.
   OPINION ON MOTION FOR REHEARING

NELDA V. RODRIGUEZ, Justice.

We grant in part plaintiffs’/real party in interests’ motion for rehearing. We withdraw our opinion of July 13, 2000, and substitute this opinion in its place, requiring the trial court to determine the date by which plaintiffs must supplement interrogatory Number 3 propounded by Allied Chemical Corporation. In all other respects, the motion for rehearing is denied.

In this toxic tort suit involving over four hundred plaintiffs and more than fifty defendants, relators, who constitute more than twenty of the defendants, seek mandamus relief from several pretrial orders in which the 370th Judicial District Court of Hidalgo County, Texas: (1) allowed the plaintiffs to select twenty plaintiffs to appear first in trial, (2) abated discovery as to all plaintiffs except the initial twenty designated for trial, (3) allowed discovery as to an additional twenty-five plaintiffs, and (4) ostensibly refused to compel plaintiffs to supplement them answers to an interrogatory relating to causation of plaintiffs’ injuries. We deny the petition for writ of mandamus in part and conditionally grant the petition in part.

Over four hundred individuals who were employed at the Parker-Hannifin Corporation’s processing plant in McAllen, Texas, brought suit in 1994 against numerous defendants alleging personal injuries from exposure to various chemicals manufactured, marketed, sold and/or distributed by the defendants. The plaintiffs claim to have suffered injuries from a combination of chemicals used to manufacture O-Rings at the plant.

As part of discovery, several defendants propounded interrogatories on all plaintiffs. Most plaintiffs answered the interrogatories, and, considering the answers inadequate, the defendants filed a motion to compel. The trial court granted the motion to compel on May 10, 1996 and ordered the plaintiffs to respond more fully to the discovery by July 1, 1996. Prior to this deadline, plaintiffs and defendants entered into a Rule 11 agreement that provided a schedule for all supplemental responses.

After supplementation by some plaintiffs, the defendants again filed a motion to compel on February 3, 1997, asserting the plaintiffs’ responses were inadequate. Among the interrogatories at issue was Interrogatory 3 propounded by Allied Chemical Corporation relating to the medical conditions of plaintiffs and the names of the physicians who attributed their conditions to any of the defendants’ products. The trial court held a hearing on the motion on July 27, 1997, but the hearing was adjourned without a ruling.

In October of 1997, the plaintiffs filed a motion to select trial plaintiffs, and the defendants objected to the motion on the basis that it was premature in light of plaintiffs’ failure to respond to discovery requests and refusal to be present for depositions. Defendants also objected to the motion on the ground that the plaintiffs would control the selection process without objective standards from the court or input from the defendants.

On November 20, 1997, the court heard defendants’ motion to compel along with the plaintiffs motion to select trial plaintiffs. The court granted the motion to select trial plaintiffs and signed an order on November 20, 1997, permitting selection of twenty plaintiffs who would go to trial before the remaining plaintiffs. The court abated discovery as to the remaining plaintiffs. However, the order permitted discovery from any plaintiff designated by the plaintiffs as a person with knowledge. It also permitted discovery of any plaintiff if the defendants could show a particularized need. However, the court refused to rule on the defendants’ motion to compel or on the sufficiency of the plaintiffs’ answers.

Subsequently, after the defendants sought discovery from third parties as to all plaintiffs, the plaintiffs moved for sanctions, to quash, and for a protective order on the ground that the discovery was sought in contravention of the trial court’s order abating discovery as to all plaintiffs save the designated twenty trial plaintiffs. On December 23, 1997, the court signed an order denying the motion for sanctions but granting the motion to quash and protective order, stating, “As previously ordered by the Court on November 20, 1997, Defendants are ORDERED to cease all discovery from, regarding or pertaining to Plaintiffs, including deposition by written questions and by authorization forms from third parties, except as to the selected twenty Plaintiffs, pursuant to the terms of the Court’s Order of November 20, 1997.”

Defendants filed a petition for writ of mandamus in this Court, seeking relief from, inter alia, the aforementioned pretrial orders. We denied the petition. Defendants pursued mandamus relief with the Texas Supreme Court, which denied the petition on October 15, 1998 “without prejudice to [defendants] again requesting relief from the court of appeals and this Court after the trial court has had an opportunity to reconsider its rulings.” In re Van Waters & Rogers, Inc., 988 S.W.2d 740, 741 (Tex.1998). The supreme court directed the trial court to reconsider its rulings in light of its intervening decision in In re Colonial Pipeline Co., 968 S.W.2d 938 (Tex.1998), in which it conditionally granted a writ of mandamus after a trial court abated discovery as to over three thousand plaintiffs in order to resolve the claims of ten designated trial plaintiffs.

On October 23, 1998, defendants filed a motion for the trial court to reconsider its previous rulings in light of the supreme court’s opinion. The plaintiffs filed a motion to re-designate trial plaintiffs on April 12, 1999, asking the court to replace the twenty designated trial plaintiffs with twenty-five different plaintiffs. The court held a hearing on May 11, 1999 on the motion for reconsideration and the motion to redesignate trial plaintiffs. During the hearing, the court verbally ordered all of the plaintiffs to answer the interrogatory in accordance with the supreme court’s opinion in Able Supply. However, the court then informed the plaintiffs that they could provide the same answer that they had previously provided with an explanation as to why they could not be more specific. The court did not require the plaintiffs to do so by a specific date. The court did not rule on the plaintiffs request to re-designate trial plaintiffs, but ordered discovery permitted as to the twenty-five newly designated trial plaintiffs, in addition to the original twenty trial plaintiffs. Discovery continued abated as to the remaining plaintiffs. The court denied the motion for reconsideration in a written opinion on November 4, 1999, over one year after the defendants filed the motion.

In this proceeding, the defendants ask this Court to grant their petition for writ of mandamus and order the trial court to vacate the November 20, 1997 and December 23, 1997 orders concerning discovery and the designation of trial plaintiffs. In addition, the defendants ask this Court to order each plaintiff to respond adequately to Interrogatory Number 3 propounded by Allied Chemical Corporation, which relates to causation of plaintiffs’ injuries, no less than ninety days after the date of this Court’s order.

“Mandamus will lie only to correct a trial court’s clear abuse of discretion when no adequate remedy by appeal exists.” In re Alford Chevrolet-Geo, et al., 997 S.W.2d 173, 176 (Tex.1999) (citation omitted). A trial court abuses its discretion when it acts in an arbitrary or unreasonable manner or when it acts without reference to guiding rules and principles. See Colonial Pipeline, 968 S.W.2d at 941 (citation omitted). Relators contend the court abused its discretion by abating discovery for all but forty-four plaintiffs.

Because the supreme court directed the trial court to reconsider its abatement order in light of Colonial Pipeline Co., 968 S.W.2d 938 (Tex.1998), we will examine the trial court’s orders looking to that opinion. In Colonial Pipeline, 3,275 plaintiffs sued the owners of four pipelines that ruptured and spilled various substances into flood waters along the San Jacinto River. See id. at 940. Each pipeline was owned by a different defendant and contained a different substance. See id. In response to discovery requests from the defendants, the plaintiffs failed to provide any information or documents. See id. at 940-41. Approximately two years after the litigation commenced, and without discovery responses from the plaintiffs, the trial court ordered that plaintiffs were not required to answer or supplement discovery previously propounded by the defendants. See id. The court ordered that the defendants could only conduct discovery on a group of ten initial trial plaintiffs. See id. at 941. Thus, the defendants were precluded from obtaining discovery from 3,265 plaintiffs. See id.

In an original mandamus proceeding, the supreme court found the trial court abused its discretion and conditionally granted the writ of mandamus. See id. at 940. The court noted that three and a half years had passed since the plaintiffs filed suit, and that years could pass before any discovery on the vast majority of plaintiffs would be available. See id. at 941. Such a delay in discovery could result in faded memories and lost or corrupted evidence. See id. More importantly, because the plaintiffs had not provided the defendants with the most basic medical information including descriptions of their alleged injuries, names of treating physicians, or the names of substances that caused the injuries, “each defendant [was] put in the position of preparing to defend itself against claims that [might] not involve the substance that was contained in its pipeline.” Id. at 942.

In the present case, although the defendants have not had unfettered discovery, they have received some basic medical information from virtually all plaintiffs. Prior to the abatement order, and in response to defendants’ interrogatories, the plaintiffs provided a list of medical health providers whom they had visited. When asked to describe their medical conditions, the plaintiffs referred to their initial disclosures filed in federal court. These disclosures provide the defendants with the positions individual plaintiffs held at the plant, the duration of their employment, and general health problems that occurred while they were employed at the plant. Plaintiffs also attributed their medical conditions to a list of sixty-four chemicals used at the plant in their answers to interrogatories. The plaintiffs provided authorizations for the defendants to obtain, inter alia, medical records. Finally, the plaintiffs supplied the defendants with expert reports.

In addition to the defendants’ discovery of basic medical information as to virtually all plaintiffs prior to the abatement order, the trial court in this case, unlike the court in Colonial Pipeline, provided some avenues for the defendants to pursue additional discovery on non-trial plaintiffs after entry of the order. First, the court permitted defendants to depose any person plaintiffs listed as a person with knowledge of relevant facts in supplemental responses. Moreover, the defendants were allowed to depose any plaintiff not listed as a person with knowledge of relevant facts so long as they could show “a particularized need.” Thus, discovery of all plaintiffs, though limited, was not foreclosed.

We do not believe the supreme court in Colonial Pipeline intended to prohibit trial courts from selecting small groups of trial plaintiffs to serve as test cases while abating discovery as to the remaining plaintiffs in order to manage mass tort cases. Indeed, the supreme court has previously recognized the importance of allowing trial courts to manage their own dockets in such a manner. See Polaris Inv. Management Corp. v. Abascal, 892 S.W.2d 860, 861 (Tex.1995) (granting mandamus in such situations “would severely impair the ability of trial judges to manage their dockets, and would require this Court to micromanage trials”). On more than one occasion, the trial court in this case observed that it was necessary for purposes of time and space to allow an initial group of plaintiffs to go to trial first and to abate discovery as to the remainder.

Considering the need to manage mass tort litigation, the basic discovery provided to the defendants, and the trial court’s providing defendants with a means of attaining discovery from non-trial plaintiffs, we conclude the court did not abuse its discretion by allowing selection of a small group of plaintiffs and abating additional discovery as to all but the forty-four trial plaintiffs.

Defendants additionally contend that the trial court abused its discretion by allowing plaintiffs’ counsel unilaterally to select twenty plaintiffs to appear as the first plaintiffs at trial. In fact, the court allowed the defendants to challenge the selected trial plaintiffs by showing that the plaintiffs “should not be tried together, and that a smaller set of Plaintiffs should be tried together.” We conclude the trial court did not abuse its discretion in allowing the plaintiffs to select, and the defendants to challenge, the initial trial plaintiffs.

Defendants further complain the trial court abused its discretion in failing to compel all plaintiffs to supplement their response to Interrogatory Number 3 propounded by Allied Chemical Corporation. We agree.

The contested interrogatory and response stated:

INTERROGATORY NO. 3:
Please state the name and address of each and every doctor, physician or other medical practitioner who has attributed your alleged injury made the basis of this lawsuit to exposure to the defendants’ products, including the dates of treatment or examination of each such doctor, physician or other medical practitioner, and the name or identify [sic] of the product to which your alleged injury is attributed.
SUPPLEMENTAL RESPONSE:
Plaintiff ... does not recall the names of any of the medical health care providers attributing the injuries to exposure to Defendants’ chemicals nor the dates of treatment. Plaintiff will later supplement if Plaintiff later recalls this information. To the best of Plaintiffs recollection, Plaintiff did not [ask] a medical health care provider if the chemicals at the Parker-Hannifin Corporation plant caused the medical conditions. Plaintiff’s] ... medical conditions are currently attributed to the chemicals used at the Parker-Hannifin Corporation plant in McAl-len, Texas, including those listed in EXHIBIT “A” in Interrogatory No. 2A of Plaintiff Elias Acevedo’s First Supplemental Answers to Allied Chemical Corporation’s First Set of Interrogatories. In addition, it is Plaintiffs understanding that there are experts that have or will attribute Plaintiffs injuries to the chemicals. Their names will be provided to Defendants in accordance with the Docket Control order and/or the Texas Rules of Civil Procedure. Plaintiff, however, has seen the medical health providers listed in Interrogatory No. 2(D) above.

As the defendants observe, this is the same interrogatory at issue in Able Supply Co. v. Moye, 898 S.W.2d 766, 768 (Tex.1995). In that case, the supreme court held that a trial court abused its discretion in denying the defendants’ motion to compel a supplemental answer to the response, “The answer to this interrogatory has not been determined at this time, but will be supplemented at a later date.” Id. Because the case had been on file for several years and many of the defendants had not discovered whether their products were responsible for any of the plaintiffs’ injuries, the court found this response inadequate, and held that “[e]ach defendant is entitled to discover whether there has been a medical determination that an illness has been caused by that defendant’s product.” Id. at 770. The defendants in this case contend that the plaintiffs’ responses are inadequate because they neither provided the names of any physicians who attributed their injuries to the defendants’ chemicals, nor denied that a physician had, in fact, made such a determination.

A party must respond to written discovery with a complete response, based on all the information reasonably available to the party or its attorney at the time the response is made. See Tex. R. Crv. P. 193.1. The sufficiency of answers to any given set of interrogatories must be decided on a case by case basis. See De Prins v. Van Damme, 958 S.W.2d 7, 18 (Tex.App.—Tyler 1997, writ, denied); Jamail v. Anchor Mortg. Services, Inc., 797 S.W.2d 369, 374 (Tex.App.—Austin 1990), writ denied per curiam, 809 S.W.2d 221 (Tex. 1991). Few general rules exist regarding the sufficiency of answers to interrogatories due to the unique nature of interrogatories and the answers. See Jamail, 797 S.W.2d at 374.

In the present case, the defendants asked for the name and address of each and every doctor, physician, or medical practitioner who attributed their injury to exposure to the defendants’ products. Apparently, all plaintiffs who responded answered that they did not recall the names of any such physicians or medical practitioners, and that, to the best of their knowledge, they did not ask a medical health care provider if the chemicals at the plant caused their medical condition. In accordance with Able Supply, we conclude that the uniform response by all plaintiffs that they did not recall the names of any physicians who had linked their injuries to the defendants’ chemicals and that they did not ask a medical health care provider if the chemicals at the plant caused their medical condition is insufficient and must be supplemented to answer whether a medical determination has been made that an illness was caused by the defendants’ products.

Plaintiffs argue that the defendants are asking them to answer questions which they cannot answer; that is, they are asking them to remember facts which they are unable to remember, or make up an answer. However, if no physician or medical practitioner has diagnosed a plaintiff as having an injury caused by a specific product, then the plaintiff must respond accordingly.

Plaintiffs further contend they have provided this information through medical authorizations and other discovery. In Able Supply, the plaintiffs noted that they were “in the process of ‘providing medical authorizations to Defendants’ and that each answered set of master interrogatories provide[d] defendants with information on that plaintiffs illness and the doctors who have treated him.” Able Supply, 898 S.W.2d at 770. In response to this argument, the court expressed that such information “is not a substitute for discovery on the issue of causation.” Id. Likewise, the medical authorizations, lists of doctors who have treated the plaintiffs, and the injuries described in the plaintiffs’ initial disclosures do not provide the defendants with discovery on the issue of causation. Neither do the expert reports provided by the plaintiffs linking some of the products at the plant to various injuries constitute a response to the interrogatory, as none of the reports explain whether a physician has made a medical determination that an illness was caused by a defendant’s product.

Plaintiffs additionally contend that they are unable to provide an answer naming a physician who has linked an injury to a specific chemical of the defendants because the plaintiffs’ theory of liability is that a combination of chemicals, rather than a single chemical, caused their injuries. Accordingly, no doctor would have attributed their injuries to a single chemical. As plaintiffs note, their expert reports detail their “toxic soup” theory of liability. The defendants respond that plaintiffs must prove that specific chemicals are defective to attribute liability to any defendant. We do not take this occasion to comment on the viability of such a claim, and we would be inclined to agree that such an issue would be better resolved on summary judgment. Regardless of whether plaintiffs are entitled to rely on such a theory, however, they must answer whether there has been a medical determination attributing their injuries to the defendants’ chemicals. If no physician has made such a determination, regardless of plaintiffs’ theory of liability, they should answer accordingly.

The supreme court in both Able Supply and Colonial Pipeline has made clear that “[e]ach defendant is entitled to discover whether there has been a medical determination that an illness has been caused by that defendant’s product.” Colonial Pipeline, 968 S.W.2d at 942 (quoting Able Supply, 898 S.W.2d at 770). Because the plaintiffs’ supplemental response, as it stands, fails to answer whether there has been such a determination, we find that the trial court clearly abused its discretion in failing to compel all plaintiffs to supplement the answer by a date certain.

We additionally conclude defendants are without an adequate remedy at law. The suit has been on file for more than six years, without the defendants having knowledge of whether there has been a medical determination linking the plaintiffs’ injuries to the defendants’ products. The “denial of discovery going to the heart of a party’s case may render an appellate remedy inadequate.” Able Supply, 898 S.W.2d at 772. Whether the defendants’ products caused the plaintiffs’ injuries goes to the heart of the litigation. See id. Therefore, we conditionally grant the petition for writ of mandamus and order the trial court to compel all plaintiffs to supplement their response to interrogatory Number 3 propounded by Allied Chemical Corporation by a date to be determined by the trial court. Except for this supplementation by all plaintiffs, discovery shall remain abated to the non-trial plaintiffs.

Finally, defendants assert the cumulative effect of the trial court’s orders constitutes an abuse of discretion. We have concluded the trial court did not abuse its discretion in designating a small group of trial plaintiffs and abating discovery, notwithstanding supplementation of interrogatory Number 3, as to the non-trial plaintiffs, and we have conditionally granted the writ of mandamus with respect to the plaintiffs’ response to interrogatory Number 3. Therefore, any error has been remedied.

We conditionally grant the petition for writ of mandamus and order the trial court to enter an order granting defendant’s motion to compel of February 3, 1997, under which all plaintiffs are to supplement their answers to interrogatory Number 3 propounded by Allied Chemical Corporation by a date certain. However, the writ will not issue unless the trial court fails to comply with this opinion. We deny the petition for writ of mandamus as it relates to all other requests for relief.

      . The defendants also seek relief from the trial court’s failure to rule on their motion for reconsideration filed in October of 1998. This complaint is moot, as the court overruled the motion on November 4, 1999. See James v. City of Round Rock, 630 S.W.2d 466, 468 (Tex.App.—Austin 1982, no writ) (a complaint becomes moot when it does not rest, or ceases to rest, on existing facts).

      . One plaintiff, Rosaura Rodriguez, was originally designated as one of the twenty trial plaintiffs, and was also named as one of the twenty-five redesignated trial plaintiffs. As such, the trial court abated to discovery as to all but forty-four plaintiffs

      . Able Supply Co. v. Moye, 898 S.W.2d 766, 768 (Tex.1995)

      . We note that the record does not contain the response of every plaintiff to defendants’ interrogatories. The record does, however, include the interrogatory responses of Elias Acevedo and Antonio Cordova; and the defendants characterize the plaintiffs’ responses as “uniformly” inadequate. The defendants note that all plaintiffs identified the same chemicals in their supplemental interrogatory answers. Furthermore, the record does contain the initial disclosures of every plaintiff listing a description of each plaintiff’s injuries.

      . We are cognizant of the language in Able Supply indicating that medical records are "not a substitute for discovery on the issue of causation.” Able Supply, 898 S.W.2d at 770. In this case, however, the medical authorizations comprise only a portion of the discovery obtained by the defendants.

      .Defendants complain that the requirement that they show a particularized need for discovery from non-trial plaintiffs improperly shifted the burden to the party seeking discovery to show why it is necessary. Moreover, they assert such a requirement on the party seeking discovery will result in loss of attorney work product privilege because they will be required to reveal why they seek discovery from particular individuals. While the court’s requirement arguably shifts the burden to the defendants, we do not consider it an abuse of discretion. As the trial court acted within its discretion in ordering discovery abated as to all plaintiffs save the designated trial plaintiffs, it further acted within its discretion by providing the defendants with a vehicle for attaining discovery on non-trial plaintiffs notwithstanding the abatement order.

      . Plaintiffs contend defendants are not entitled to mandamus relief because they come before this Court with unclean hands. Specifically, plaintiffs maintain that defendants intentionally delayed litigation by, inter alia, frivolously removing the case to federal court, objecting to discovery, and refusing to identify experts and produce expert reports. Plaintiffs have failed to include any record references in support of their assertion that defendants refused to identify experts and produce expert reports. Moreover, plaintiffs have failed to make a showing that any of these actions were frivolous or intended to delay the litigation. We refuse to deny defendants equitable relief based on the bald allegations of plaintiffs. In short, we conclude plaintiffs unclean hands argument is entirely devoid of merit.

      . We note that defendants have asked that we order the trial court to require plaintiffs to supplement their responses no less than ninety days after the date of this Court’s order. We believe the trial court is in a better position to schedule a deadline for this discovery, and that the more pragmatic approach is to leave the precise date to the discretion of the trial court.


author: DIXON W. HOLMAN, Justice.

text:
    Larry Austin THOMAS, Sr., Appellant, v. The STATE of Texas, State.
    Nos. 2-99-162-CR to 2-99-164-CR.
    Court of Appeals of Texas, Fort Worth.
    Nov. 2, 2000.

      Tim Curry, Crim. Dist. Atty., Charles M. Mallín, Asst. Crim. Dist. Atty., Chief of the Appellate Section, Danielle A. LeGault, Charles Brandenberg, Ann Wright, Asst. Crim. Dist. Attys., Fort Worth, for Appellant.
    John D. Nation, Dallas, for Appellee.
    Panel A: CAYCE, C.J.; RICHARDS and HOLMAN, JJ.
   OPINION

DIXON W. HOLMAN, Justice.

Appellant Larry Austin Thomas, Sr. appeals his convictions for solicitation of capital murder, theft of property of the value of more than $200,000, and money laundering. In his first three points, Appellant argues that the evidence is legally insufficient to support his convictions. In point four, he claims the trial court abused its discretion by denying his motion for new trial. Finding no reversible error, we affirm the trial court’s judgments.

I. Legal Insufficiency

In reviewing the legal sufficiency of the evidence to support a conviction, we view the evidence in the light most favorable to the verdict. Narvaiz v. State, 840 S.W.2d 415, 423 (Tex.Crim.App.1992), cert. denied, 507 U.S. 975, 113 S.Ct. 1422, 122 L.Ed.2d 791 (1993). The critical inquiry is whether, after so viewing the evidence, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. McDuff v. State, 939 S.W.2d 607, 614 (Tex.Crim.App.), cert. denied, 522 U.S. 844, 118 S.Ct. 125, 139 L.Ed.2d 75 (1997). This standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).

The legal sufficiency of the evidence is a question of law. The issue on appeal is not whether we believe the State’s evidence or believe that the defense’s evidence outweighs the State’s evidence. Wicker v. State, 667 S.W.2d 137, 143 (Tex.Crim.App.), cert. denied, 469 U.S. 892, 105 S.Ct. 268, 83 L.Ed.2d 204 (1984); see also Matson v. State, 819 S.W.2d 839, 846 (Tex.Crim.App.1991). Our duty is not to reweigh the evidence from reading a cold record but to act as a due process safeguard ensuring only the rationality of the fact finder. Williams v. State, 937 S.W.2d 479, 483 (Tex.Crim.App.1996). The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson, 819 S.W.2d at 846.

In Appellant’s first point, he challenges the legal sufficiency of the evidence to sustain his conviction for solicitation of capital murder. Appellant argues that the evidence was insufficient because the State’s witnesses were accomplice witnesses and there was no evidence to corroborate their testimony as required by TexPenal Code Ann. § 15.03(b) (Vernon 1994) and Tex.Code Crim .PROcAnn. art. 38.14 (Vernon 1979).

In order to support a conviction for criminal solicitation pursuant to section 15.03(a), the evidence must establish that the defendant acted with the specific intent that capital murder be committed. Richardson v. State, 681 S.W.2d 683, 687 (Tex.App.—Houston [14th Dist.] 1984), aff'd, 700 S.W.2d 591 (Tex.Crim.App.1985). The statute does not allow a conviction based solely on the uncorroborated testimony of the person allegedly solicited. The circumstances surrounding the solicitation must strongly corroborate the solicitation itself and the actor’s intent that the other person act on the solicitation. Tex.Penal Code Ann. § 15.03(b); Saunders v. State, 572 S.W.2d 944, 954-55 (Tex.Crim.App.1978); Sheffield v. State, 847 S.W.2d 251, 258 (Tex.App.—Tyler 1992, pet. ref d). To determine if the corroboration is sufficient the accomplice testimony must be eliminated from consideration and it must be determined whether there is other incriminating evidence tending to connect the defendant with the crime. Adams v. State, 685 S.W.2d 661, 665 (Tex.Crim.App.1985); Richardson, 700 S.W.2d at 594. It is not necessary that the corroboration directly link the defendant with the crime or that it be sufficient evidence in itself to establish guilt. Richardson, 700 S.W.2d at 594. The court should consider all of the non-accomplice evidence even if it is entirely circumstantial. Id.

The State’s evidence regarding the criminal solicitation charge was elicited from, among others, five witnesses that Appellant had approached while in custody at the Tarrant County Jail: (1) Kenneth Harrell; (2) Kevin H. Longenecker; (3) Charles Mayberry; (4) Michael Jones; and (5) Ricky Owens. Appellant was charged with soliciting Harrell and Longe-necker to murder Carol Condello.

Harrell testified that Appellant asked him for help in making Condello disappear. Harrell stated that Appellant told him that Condello often carried as much as $20,000 with her and that Appellant would pay another $20,000 for her murder. Harrell also stated that Appellant showed him documents that demonstrated that he had a nice house and several cars. Harrell testified that he thought that Appellant had the funds to pay for the murder and that he was serious about killing Condello. Harrell further testified that he never agreed to murder Condello and that he told a Tarrant County Jail officer about Appellant’s solicitation.

Longenecker testified that Appellant approached him in the Tarrant County Jail and told him about Appellant’s problems with a woman over fraud charges. Longe-necker stated that Appellant told him that he would pay between $50,000 and $100,000 to have her “knocked off.” Lon-genecker testified that he believed Appellant was asking him if he would kill Con-dello or if he knew someone who would. Longenecker stated that he ended the conversation and later that evening told a Tarrant County Jail officer about the conversation and she insisted that he contact the district attorney’s office.

Mayberry testified that Appellant told him that he wanted to get rid of Condello and that Appellant asked him if he knew anyone who would kill her. Mayberry testified that Appellant told him that he would pay $50,000 for Condello to be killed and then raised the amount to $75,000. Mayberry also stated that Appellant showed him documents that demonstrated that the police had taken currency and cars from Appellant. Mayberry testified that Appellant told him that he would get his money and property back if Condello was taken care of. Mayberry stated that he believed Appellant was serious about wanting Condello killed so he told an officer in the Tarrant County Jail about the conversation. Mayberry testified that he never agreed to help Appellant kill Condel-lo.

Jones testified that Appellant told him that the reason he was in jail was because of a woman named Carol (Condello). Jones stated that Appellant told him that “it would be nice if she was out of the way or if she could just be gotten out of the way.” Jones testified that Appellant never directly discussed payment for the murder. He also testified that Appellant never directly asked him to kill or cause Condello to be killed.

The State also called Owens to testify about the conversations that he had with Appellant about Condello. Owens stated that Appellant told him that he “would like something done” to the person who got him thrown in jail, but he was not specific about what he wanted done and he never mentioned the name Carol Condello. Owens also acknowledged there was a mention of money with regard to the statement that Appellant made to him.

Section 15.03(a) and (b) of the penal code provides:

(a) A person commits an offense if, with intent that a capital felony or felony of the first degree be committed, he requests, commands, or attempts to induce another to engage in specific conduct that, under the circumstances surrounding his conduct as the actor believes them to be, would constitute the felony or make the other a party to its commission.
(b) A person may not be convicted under this section on the uncorroborated testimony of the person allegedly solicited and unless the solicitation is made under circumstances strongly corroborative of both the solicitation itself and the actor’s intent that the other person act on the solicitation.

TexJPenal Code Ann. § 15.03(a), (b).

Appellant relies on section 15.03(b) in support of his argument that the evidence that was presented was insufficient to support his conviction. Appellant argues that each person that testified regarding the solicitation charges must be treated as an accomplice witness and as such there was no evidence presented that would corroborate the accomplice testimony as is required by the statute. Corroboration is required regardless of whether the “person allegedly solicited to commit the crime” is an accomplice witness. Varvaro v. State, 772 S.W.2d 140, 143 (Tex.App.—Tyler 1988, pet. ref'd). .

The evidence presented demonstrated that Appellant had allegedly solicited Harrell, Longenecker, and Mayberry for the murder of Condello. The testimony of Jones and Owens was that Appellant talked about wanting something to happen to the witness in his case (Condello), but he did not directly ask them to kill Condello or find someone who would. If a State’s witness has no complicity in the offense for which an accused is on trial, his testimony is not that of an accomplice witness. Gamez v. State, 737 S.W.2d 315, 322 (Tex.Crim.App.1987). Even if Harrell, Longe-necker, and Mayberry could be viewed as accomplice witnesses, the testimony of Jones and Owens could have been viewed by the jury as strongly corroborative of both the solicitation itself and Appellant’s intent that one of the persons solicited act on the solicitation. This testimony need not directly link the defendant to the crime or be sufficient in itself to establish his guilt. Richardson, 700 S.W.2d at 594. Viewing the testimony in the light most favorable to the verdict, we cannot say that the evidence was legally insufficient. The testimony of the State’s witnesses was sufficient to satisfy the corroboration requirement. We overrule point one.

In Appellant’s second and third points, he argues that the evidence is legally insufficient to support his conviction for theft over $200,000 and money laundering.

Evidence presented at trial demonstrated that Appellant was introduced to the victim Carol Condello through his wife who was employed by her. Condello had recently inherited approximately $210,000 and Appellant offered to let her invest in AAA Cleaning, a carpet cleaning business. Condello testified that she thought this would be a good investment because she was planning on purchasing rental properties for income and this would aid her venture. Therefore, she gave Appellant $175,000 over a three month period. Each time Condello gave Appellant money he gave her a “contract” allegedly signed by Appellant’s son, the company’s owner, purporting to give her an incrementally increasing ownership in the business.

Appellant’s son later stated that Appellant was an officer of the business, had a hand in its day-to-day management, and frequently contributed money. He denied that Condello had ever contributed money to the business or that she had any interest in the business. He also denied ever seeing or signing the “contracts” given to Condello by the Appellant.

Testimony was also presented that Appellant told Condello that her phones were being tapped and offered to monitor the phones to determine who was doing the tapping in return for payment between $800 and $1,000 a month. Condello paid that amount and was given two phones with green lights on them. She testified that she was told by Appellant that she would know when the line was “safe” because the light would be green. The light was always green. A State expert testified that the phone was worthless for the stated purpose.

Appellant, knowing Condello made frequent trips to Pennsylvania for family business purposes, offered her an opportunity to purchase a plane and split the cost with him. Appellant told Condello that the plane would cost $200,000 so she gave him $100,000. Appellant purchased the plane for $103,500 in the name of Starglow Investments, in which Appellant was vice-president and his wife was president. Condello never received an interest in the ownership of the plane.

When Condello asked to use the plane, Appellant told her that her ex-husband had taken out a contract on her life. Appellant offered to “cancel” the contract for $97,500, which was fifty percent more than what her ex-husband had allegedly paid for the contract. Condello feared her ex-husband because they had gone through a bitter divorce during the pendency of which her husband left almost daily threats on her answering machine, so she immediately paid Appellant. Condello’s ex-husband testified that he had never hired anyone to kill her.

Appellant was prosecuted for theft by unlawfully appropriating property belonging to Condello in the value of over $200,-000, with the intent to deprive her of said property, under section 31.03 of the penal code. TexPenal Code Ann. § 31.03(a) (Vernon Supp.2000). Appropriation is unlawful if it is without the owner’s effective consent. Id. § 31.03(b)(1). Consent is not effective if it is induced by deception. Id. § 31.01(3)(A). He was also prosecuted for:

INTENTIONALLY OR KNOWINGLY POSSESSING] AND CONCEALING] THE PROCEEDS, TO WIT: MONEY, OF CRIMINAL ACTIVITY, TO WIT: THEFT OF PROPERTY OF THE VALUE OF OVER $100,000, KNOWING THAT SAID MONEY WAS THE PROCEEDS OF CRIMINAL ACTIVITY, AND THE VALUE OF THE FUNDS IS $100,000 OR MORE, [AND] ... INTENTIONALLY OR KNOWINGLY CONDUCTING] AND FACILITATING] A TRANSACTION INVOLVING THE PROCEEDS, TO WIT: MONEY, OF A CRIMINAL ACTIVITY, TO WIT: THEFT OF PROPERTY OF OVER $100,000, KNOWING SAID MONEY WAS THE PROCEEDS OF CRIMINAL ACTIVITY AND THE VALUE OF THE FUNDS IS $100,000 OR MORE, AND THE TRANSACTION INVOLVED THE PURCHASE OF AN AIRPLANE....

See TexPenal Code Ann. § 34.02(a)(1), (2) (Vernon 1994). Both 34.02(a)(1) and (2) require that the defendant knowingly do something involving the proceeds of criminal activity. See id.

A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.

Id. § 6.03(b).

Appellant’s testimony during the trial consisted of claiming that Condello gave him $440,000, over eleven months, to act as a consultant regarding the purchase of rental properties. Appellant claimed that the police seized and never returned the records that would prove this agreement existed. Appellant also stated: that he never told Condello she would have an interest in AAA Cleaning; that he never took money from her to cancel the contract on her life; that he never had any conversations with her or took money from her for the airplane; and that although he did give her the telephones, he never told her that they would monitor her phone calls or took any money from her for this purpose.

Because Condello and Appellant told different stories, it was within the province of the jury to judge the credibility of the witnesses and determine the weight to be given their testimony. See Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App.1996), cert. denied, 522 U.S. 832, 118 S.Ct. 100, 139 L.Ed.2d 54 (1997); Barnes v. State, 876 S.W.2d 316, 321 (Tex.Crim.App.), cert. denied, 513 U.S. 861, 115 S.Ct. 174, 130 L.Ed.2d 110 (1994). After carefully reviewing the evidence, we cannot say that the evidence is legally insufficient because a rational jury could have found beyond a reasonable doubt that Appellant committed the theft and money laundering offenses. We overrule points two and three.

II. Denial of Motion for New Trial

In his final point, Appellant argues that the trial court erred in denying Ms motion for new trial based on newly discovered evidence. The decision to grant or deny a motion for new trial is left to the sound discretion of the trial court and in the absence of abuse of discretion an appellate court should not reverse. Lewis v. State, 911 S.W.2d 1, 7 (Tex.Crim.App.1995); State v. Gonzalez, 855 S.W.2d 692, 696 (Tex.Crim.App.1993). Additionally, motions for new trial based on newly discovered evidence are not favored by the courts and are viewed with great caution. Drew v. State, 743 S.W.2d 207, 225 (Tex.Crim.App.1987); In re R.V., Jr., 8 S.W.3d 692, 693 (Tex.App.—Fort Worth 1999, pet. denied).

There are four requirements that Appellant must meet in order to qualify for a new trial based upon newly discovered evidence:

(1) the newly discovered evidence must have been unknown to the movant at the time of his trial; (2) the movant’s failure to discover the evidence was not due to his want of diligence; (3) the materiality of the evidence is such as would probably bring about a different result in another trial; and (4) the evidence is admissible and not merely cumulative, corroborative, collateral, or impeaching.

Etter v. State, 679 S.W.2d 511, 514 (Tex.Crim.App.1984).

The newly discovered evidence in question is a statement Appellant made to law enforcement officers that Toney, another inmate, was soliciting inmates at the Tar-rant County Jail to murder Condello. Appellant urges that this is newly discovered evidence because he did not realize that this could be related to his case and as such he did not inform his trial counsel of this statement. Appellant further alleges that it was the State’s obligation to inform his trial counsel of tMs statement and they failed to do so. Accordingly, Appellant contends he should be granted a new trial.

It has been held that a trial court does not err in overruling defendant’s motion for new trial based on newly discovered evidence when the defendant knows about evidence before trial, but chooses not to inform his attorney about it. See Sawyer v. State, 778 S.W.2d 541, 545 (Tex.App—Corpus Christi 1989, pet. ref'd); Zamora v. State, 647 S.W.2d 90, 95 (Tex.App.—San Antonio 1983, no pet.). Appellant has failed to meet the first prong of the test because he has failed to show that this evidence was unknown to him before trial. Rather, the evidence presented by Appellant in his motion for new trial established that he did in fact know of the existence of the evidence in question. Appellant has failed to meet the fundamental requirement that the newly discovered evidence be unknown to him at the time of trial. See Drew, 743 S.W.2d at 226; Sawyer, 778 S.W.2d at 545. We overrule Appellant’s fourth point.

III. Conclusion

Having carefully considered all of Appellant’s points, we have overruled each. We affirm the trial court’s judgments.


author: LEE YEAKEL, Justice.

text:
    SECURE COMM, INC., Appellant, v. Ronina ANDERSON, Appellee.
    No. 03-99-00008-CV.
    Court of Appeals of Texas, Austin.
    Nov. 9, 2000.
    Rehearing Overruled Dec. 7, 2000.

      Harvey F. Cohen, Austin, for appellant.
    J. Luke Dow, Austin, for appellee.
    Before Chief Justice ABOUSSIE, Justices B.A. SMITH and YEAKEL.
   LEE YEAKEL, Justice.

We withdraw our opinion and judgment of April 27, 2000, and substitute the following opinion.

Appellee Ronina Anderson filed suit against her former employer, appellant Secure Comm, Inc., for breach of contract, wrongful termination, detrimental reliance, and common-law fraud. After a bench trial, the county court at law rendered judgment for Anderson in the amount of $21,403.82 plus pre- and post-judgment interest and attorney’s fees. The trial court did not file findings of fact or conclusions of law, and the judgment does not indicate on which of Anderson’s theories of recovery she prevailed. Secure Comm appeals arguing that the judgment must be reversed because (1) Secure Comm had the right to terminate Anderson’s employment because Anderson was an at-will employee, or (2) in the alternative, the written agreement between Anderson and Secure Comm does not constitute an enforceable contract because there was no meeting of the minds. Secure Comm also complains that the trial court’s damage calculation was incorrect. We will affirm.

Because the trial court did not file findings of fact and conclusions of law, “we must assume it made all findings in support of its judgment.” Pharo v. Chambers County, 922 S.W.2d 945, 948 (Tex.1996). We necessarily imply findings of fact in favor of Anderson on “every issue [she] was obligated to establish by a preponderance of evidence as a predicate for the desired recovery.” Roever v. Delaney, 589 S.W.2d 180, 181 (Tex.Civ.App.—Fort Worth 1979, no writ). Anderson pleaded four causes of action. The trial court did not specify in the judgment his basis for ruling in favor of Anderson. Thus, the court impliedly found that Secure Comm is liable under every theory — breach of contract, wrongful termination, common-law fraud, and promissory estoppel. See Johnson v. Coggeshall, 578 S.W.2d 556, 560 (Tex.Civ.App.—Austin 1979, no writ) (where trial court did not file findings or conclusions, trial court impliedly found for plaintiff on both grounds pleaded).

On appeal, Secure Comm attacks only two of the possible bases of recovery — breach of contract and wrongful termination. Secure Comm does not complain of the two other possible grounds of recovery — common-law fraud or promissory estoppel. “Where a judgment may rest upon more than one ground, the party aggrieved by the judgment must assign error to each ground or the judgment will be affirmed on the ground to which no complaint is made. In such situations it is said that the appellant has waived his right to complain of the ruling to which no error was assigned.” Johnson, 578 S.W.2d at 560.

In Johnson, the plaintiffs pleaded two possible grounds for venue. See id. at 559. The trial court denied the defendants’ objections to venue. See id. at 558. On appeal, however, the defendants attacked only one of the two possible venue grounds. See id. at 560. This Court affirmed, holding that unless an appellant complains about each possible ground upon which appellee could have prevailed, the judgment would be affirmed. See id.

The court in Roever affirmed a trial-court judgment for similar reasons. See 589 S.W.2d at 182. Because the trial court did not file findings of fact and conclusions of law, the court of appeals presumed all findings were made in favor of the prevailing party, the defendant. See id. And although the record affirmatively showed that the plaintiff was injured and had suffered damages, because the plaintiff did not complain on appeal that the trial court erred in finding that he was not injured, the plaintiff waived any error, and the judgment was affirmed. See id.

Secure Comm does not attack the trial court’s implied findings in favor of Anderson on common-law fraud and promissory estoppel. Where, as here, a reporter’s record is brought forward, the trial court’s implied findings “may be challenged by factual sufficiency and legal sufficiency points the same as jury findings or a trial court’s findings of fact.” Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex.1989). Secure Comm has not presented issues challenging the factual and legal sufficiency of the trial court’s implied findings supporting Anderson’s common-law-fraud and promissory-estoppel causes of action. Thus, Secure Comm has waived any possible error the trial court may have made in ruling for Anderson on those grounds. See Johnson, 578 S.W.2d at 560; Roever, 589 S.W.2d at 182. Because Secure Comm does not complain on appeal about all possible bases for the judgment, the trial court’s determination of liability is affirmed. See Johnson, 578 S.W.2d at 560; Roever, 589 S.W.2d at 182; see also 6 McDonald & Carlson Texas Civil Practice § 18.13, at 527 (Elaine Grafton Carlson ed., 1998 ed.) (if trial court fails to file findings and conclusions, appellant should look to pleadings and “assume that the trial court found in favor of each element of all affirmative claims ... and should attack those presumed findings accordingly”). Because the trial court’s judgment will be affirmed on Anderson’s promissory-estoppel and common-law-fraud causes of action, we need not address Secure Comm’s first two issues that attack the judgment only with regard to Anderson’s breach-of-contract and wrongful-termination claims. See Tex.R.App.P. 47.1.

In its third issue, Secure Comm argues that the “proper measure of damages for wrongful termination is the present cash value of the contract less any amounts that the employee should ... have been able to earn through other employment.” Secure Comm asserts that Anderson’s recovery is limited to $9000. The position from which she was terminated paid $2500 per month. Anderson alleged that Secure Comm guaranteed her employment for one year at a guaranteed salary of $2500 per month; she was fired with about nine months left on the alleged contract. Secure Comm argues that there was evidence that Anderson was offered employment with Secure Comm for $1500 per month after she was terminated; thus she is entitled to only nine times $1000, the difference between $2500 and $1500. However, Anderson testified that after informing her that she was no longer going to be paid $2500 per month, Secure Comm offered her a position with no guaranteed salary, only the possibility of commissions. Under Anderson’s version of events, which we take as true, see Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792, 797 (1951), the trial court did not err in his calculation of damages even if the court based his judgment on Anderson’s wrongful-termination allegations. Secure Comm’s third issue is overruled.

The trial court’s judgment is affirmed.

      . Secure Comm properly requested findings of fact and conclusions of law and gave timely notice that they were past due. See Tex. R.Civ.P. 296, 297. However, it does not complain on appeal of the trial court’s failure to file findings and conclusions.

      . In the trial court, appellee pleaded “detrimental reliance.” This Court will interpret such pleading as asserting a cause of action for promissory estoppel. Courts have broad discretion when interpreting pleadings so long as the interpretation is "reasonable and consistent with the nature and character of the pleading at issue.” In re Bokeloh, 21 S.W.3d 784, 790 (Tex.Civ.App.—Houston [14th Dist.] 2000, no pet. h.). Detrimental reliance is one element of promissory estop-pel. See English v. Fischer, 660 S.W.2d 521, 524 (Tex.1983).

      . This Court recognizes that promissory es-toppel and breach of contract may be mutually exclusive causes of action. See Boy Scouts of America v. Responsive Terminal Sys., Inc., 790 S.W.2d 738, 742 n. 1 (Tex.App.—Dallas 1990, writ denied) (citing Fretz Constr. Co. v. Southern Nat'l Bank, 600 S.W.2d 878, 880 (Tex.Civ.App.—Houston [1st Dist.] 1980), rev’d. on other grounds, 626 S.W.2d 478 (Tex.1981)). However, because there are no findings of fact and conclusions of law, the record is not clear under which of Anderson’s four claims the trial court rendered judgment. See Wheeler v. White, 398 S.W.2d 93, 97 (Tex.1965) (plaintiff could recover on promissory-estoppel theory when pleaded as alternative to breach of contract).

      . We note that the damage award could have been based on any one of the four causes of action pleaded by Anderson.


author: /s/ Joseph E. Lambert Chief Justice.

text:
    KENTUCKY BAR ASSOCIATION, Movant, v. Patrick C. HICKEY, Respondent.
    No. 2000-SC-0648-KB.
    Supreme Court of Kentucky.
    Nov. 22, 2000.
   OPINION AND ORDER

On March 8, 1999, Respondent, Patrick Hickey, pled guilty to one felony count of income tax evasion in the United States District Court, Eastern District of Kentucky. On that same day, Hickey filed a motion to withdraw from membership in the Kentucky Bar Association (KBA) and for an order suspending him for 180 days, effective March 9, 1999, with a two-year suspension probated for five years to follow. This Court entered an order dated April 22, 1999, temporarily suspending Hickey pursuant to SCR 3.166(1), but denying his requested length of suspension. Hickey v. KBA, Ky., 988 S.W.2d 33 (1999). Thereafter, on June 9, 1999, the Inquiry, Commission issued a charge against Hickey for violations of SCR 3.130-8.3(b) and SCR 3.130-8.3(e). Hickey admitted the violations and the matter proceeded to an evidentiary hearing so that the record could be developed regarding Hickey’s alleged mitigation evidence. On June 23, 1999, a Trial Commissioner was appointed.

In the interim, Hickey was sentenced in federal court in October 1999. He received eight months imprisonment, followed by eight months of home incarceration, and finally three years of supervised release. The KBA informs this Court that Hickey was incarcerated in November 1999, and released in May 2000. He will be home incarcerated until approximately March 2001, and under supervised release until 2003.

In March 2000, the Trial Commissioner issued his report concluding that Hickey was guilty as charged, and recommending a suspension of four years, two years conditionally discharged upon monitoring by Lawyers Helping Lawyers. In a subsequent order, the Trial Commissioner ruled that the period of suspension was retroactive from the date of temporary suspension, namely March 9, 1999. In making his recommendation, the Trial Commissioner was greatly influenced by the following mitigating factors: that Hickey admitted alcohol and drug dependency, as well as family problems; that he has successfully been in treatment since 1995; that his personal problems did not affect his professional fife as he has practiced law for fifteen years with no major infractions; that the criminal charges did not affect any clients; that all taxes have been paid in full; and that he received pro bono awards in 1995-1998.

The KBA appealed the Trial Commissioner’s decision to the Board of Governors, requesting that Hickey be suspended for five years, consistent with prior KBA cases imposing such suspension for the commission of a felony. The Board of Governors subsequently issued a report recommending Hickey be suspended for a period of four years. However, the Board’s report was silent as to conditional discharge of any part of the suspension, or retroactive credit for the period of temporary suspension. Hickey thereafter filed the instant notice of review in this Court pursuant to SCR 3.870(8).

Hickey contends that pursuant to SCR 3.370, the Board of Governors must uphold the decision of the Trial Commissioner unless it lacks substantial evidence or is clearly erroneous. Hickey argues that the discipline imposed by the Trial Commissioner was clearly supported by the record and made only after a full evidentiary process. He points out that none of the mitigating evidence he introduced was challenged by Bar Counsel. In support of his position, Hickey cites to recent KBA decisions involving the use of the Lawyers Helping Lawyers Committee in overseeing conditions of discipline under SCR 3.380. KBA v. Rankin, Ky., 862 S.W.2d 894 (1993); KBA v. Dunn, Ky., 965 S.W.2d 158 (1998). In both cases, the attorneys were convicted of committing felonies and received suspensions that were at least, in part, conditionally discharged.

With respect to the issue of retroactivity, Bar Counsel argued before the Trial Commissioner and Board of Governors that Futrell v. KBA, Ky., 950 S.W.2d 480 (1997), prohibits retroactive application of discipline. Hickey defends that his case is distinguishable from Futrell since not only did Futrell’s offenses involve the theft of clients’ money, but this Court found that Futrell had failed to demonstrate any mitigating circumstances or that he had taken any steps toward rehabilitation.

We are of the opinion that the Trial Commissioner erred in recommending a partially probated period of suspension. Pursuant to the Trial Commissioner’s recommendation of a four year suspension from the date of his temporary suspension in March 1999, with two years conditionally discharged, Hickey would be eligible to apply for reinstatement in March 2001.

However, we take issue with the Board’s implicit denial of retroactive credit for the period of temporary suspension. In Futrell v. KBA, Ky., 950 S.W.2d 480 (1997), we denied a motion for retroactive application of the commencement of a period of disbarment on the grounds that the movant had failed to demonstrate that he had taken steps toward rehabilitation. Futrell’s actions did “not justify forgiveness for his criminal and unprofessional conduct and a pattern of such conduct involving duplicity and deceit over a period of years toward the public and his clients in particular.” Id. at 480.

This case presents a much different situation. Hickey was convicted of one count of tax evasion. While Hickey’s conduct was unquestionably criminal and unprofessional, it in no manner affected his clients or his professional practice. Moreover, Hickey admitted that his criminal conduct was the result of years of dependency, for which he has now sought treatment and has evidently been successful in such. Hickey’s criminal activity may be attributed to what health care professionals characterize as a sickness. Futrell’s criminal activity may be characterized as the result of a character defect.

Contrary to the KBA’s interpretation, Futrell was not intended to be a bright line prohibition of retroactive credit for a period of suspension. In fact, upon reexamination of the issue, we perceive distinct unfairness and prejudice in denying retroactive credit. The situation is analogous to denying credit for jail time served in a criminal case. The defendant would ultimately serve a greater period of imprisonment than the judgment imposed. Similarly, an attorney who is suspended from the practice of law, and denied credit for any period of temporary suspension previously ordered, is subjected to a period of suspension in excess of that contemplated by the order. In this case, to deny Hickey credit for the period of temporary suspension, which was effective in March 1999, would result in the imposition of a five and one half year suspension rather than the four years recommended by the Board of Governors. Thus, we reiterate that Futrell does not proscribe retroactive credit for a period of temporary suspension. Rather, the entitlement or denial of credit should be considered on a case by case basis, taking into account, as was done in Futrell, mitigating evidence and the attorney’s progress toward rehabilitation.

Therefore, it is ordered that:

1. Respondent, Patrick Hickey, is hereby suspended from the practice of law in the Commonwealth of Kentucky for a period of four (4) years. The suspension shall commence on March 9, 1999, the effective date of this Court’s order of temporary suspension. The suspension shall continue until such time as he is reinstated to the practice of law by order of this Court pursuant to SCR 3.510.

2. In accordance with SCR 3.450, Hickey is directed to pay all costs associated with the disciplinary proceedings against him, said sum being $713.78, and for which execution may issue from this Court upon finality of this Opinion and Order.

3. Pursuant to SCR 3.390, Hickey shall within ten (10) days of the entry of this order notify all clients of his inability to represent them and furnish copies of said letters of notice to the Director of the Kentucky Bar Association. He shall also provide such notification to all courts in which he has matters pending.

All concur.

WINTERSHEIMER, J., not sitting.

ENTERED: November 22, 2000.

/s/ Joseph E. Lambert Chief Justice.


author: BUCKINGHAM, Judge. EMBERTON, Judge,

text:
    BOARD OF CLAIMS OF KENTUCKY, Appellant, v. Raymond BANKS and Powell County Fiscal Court, Appellees.
    No. 1999-CA-001001-MR.
    Court of Appeals of Kentucky.
    Oct. 20, 2000.
    Trevor A. Smith, Louisville, Joseph W. O’Reilly, Frankfort, KY, for Appellant.

      Robert G. King, Stanton, KY, brief for Appellee, Raymond Banks.
    Wayne F. Collier, Lexington, KY, brief for Appellee, Powell County Fiscal Court.
    Before BUCKINGHAM, EMBERTON, and SCHRODER, Judges.
   OPINION

BUCKINGHAM, Judge.

The Board of Claims of Kentucky (Board) appeals from an order of the Powell Circuit Court remanding a claim by Raymond Banks to the Board for a trial on the merits. We conclude that the Board properly dismissed Banks’s claim against the Powell County Fiscal Court for lack of jurisdiction and that the trial court erred in remanding the claim to the Board. We therefore reverse and remand.

Banks, a state prison inmate serving a prison sentence in the Powell County Jail, was injured on May 26,1995, while operating a front end loader for the Powell County Road Department. Banks filed suit in the Powell Circuit Court against Powell County (not the Powell County Fiscal Court) for damages allegedly resulting from the negligent maintenance of the front end loader. The Powell Circuit Court granted Powell County’s motion for summary judgment on the ground that the county was protected from tort liability due to sovereign immunity. The court’s order stated that “[t]he only recourse for those who believe they are injured or damaged by the activities of the government or its agents is a resort to a proper claim before the Board of Claims.”

In July 1998, Banks filed an action in the Board against the Powell County Fiscal Court for damages due to the alleged injuries he sustained in the 1995 accident. Based on a blanket order the Board had entered on May 21, 1998, holding that it did not have jurisdiction over claims against counties, the Board dismissed Banks’s claim. Banks then petitioned the Powell Circuit Court to review the Board’s order dismissing his claim, and the court reversed the Board and remanded the claim for a trial on the merits. In doing so, the court held that the Board had jurisdiction over the claim. This appeal by the Board followed.

The Board argues that the trial court erred when it concluded that the Board had jurisdiction of Banks’s claim against the Powell County Fiscal Court. It argues that counties have sovereign immunity and that the statutes relative to the Board of Claims, KRS 44.070-160, do not constitute a waiver of sovereign immunity with respect to county governments. It asserts, therefore, that it had no jurisdiction of Banks’s claim.

KRS 44.070(1) provides in pertinent part as follows:

A Board of Claims ... is created and vested with full power and authority to investigate, hear proof, and to compensate persons for damages sustained to either person or property as a proximate result of negligence on the part of the Commonwealth, any of its cabinets, departments, bureaus, or agencies, or any of its officers, agents, or employees while acting within the scope of their employment by the Commonwealth or any of its cabinets, departments, bureaus, or agencies....

KRS 44.072 provides in part that

[i]t is the intention of the General Assembly to provide the means to enable a person negligently injured by the Commonwealth, any of its cabinets, departments, bureaus or agencies, or any of its officers, agents or employees while acting within the scope of their employment by the Commonwealth or any of its cabinets, departments, bureaus or agencies to be able to assert their just claims as herein provided. The Commonwealth thereby waives the sovereign immunity defense only in the limited situations as herein set forth. It is further the intention of the General Assembly to otherwise expressly preserve the sovereign immunity of the Commonwealth, any of its cabinets, departments, bureaus or agencies or any of its officers, agents or employees while acting in the scope of their employment by the Commonwealth or any of its cabinets, departments, bureaus or agencies in all other situations except where sovereign immunity is specifically and expressly waived as set forth by statute.

KRS 44.073(11) states that “[ejxcept as otherwise provided by this chapter, nothing contained herein shall be construed to be a waiver of sovereign immunity or any other immunity or privilege maintained by the Commonwealth, its cabinets, departments, bureaus, and agencies and its officers, agents, and employees.”

In Franklin County v. Malone, Ky., 957 S.W.2d 195 (1997), the Kentucky Supreme Court stated, in dicta, that “[t]he Court of Appeals erroneously held that KRS 44.070 et seq. has no application to counties.” Id. at 203-204. Following the supreme court’s opinion in Malone, the Board began receiving numerous claims against various Kentucky counties. When the Board entered its blanket order on May 21, 1998, stating that it had no jurisdiction over counties, the Board noted that it had received forty-three separate claims against various Kentucky counties since Malone. In its blanket order resolving the issue, the Board stated that it was aware of the aforementioned language in Malone but that it could not infer from the language that the supreme court had overruled its holdings to the contrary in Gnau v. Louisville & Jefferson County Metropolitan Sewer District, Ky., 346 S.W.2d 754, 755 (1961), and Board of Education of Rockcastle County v. Kirby, Ky., 926 S.W.2d 455, 456 (1996). We agree with the Board that claims against counties may not be brought in the Board of Claims and that the supreme court has not overruled these decisions.

In Ginter v. Montgomery County, Ky., 327 S.W.2d 98 (1959), the appellant was the administratrix of a deceased person’s estate who brought an action against a county and fiscal court to recover damages for wrongful death due to negligence. The appellant argued that the Board of Claims Act should be construed as having expressly waived the immunity of counties. In rejecting the appellant’s argument, the court held that “our Board of Claims statute does not completely abrogate the doctrine of immunity even as to the state government, and as to local governments it does not purport to waive any immunity.” Id. at 100 (emphasis added). Thereafter, in Cullinan v. Jefferson County, Ky., 418 S.W.2d 407 (1967), the court held that “[w]hen the people of this Commonwealth want sovereign immunity waived as to counties or county boards of education, their elected legislative representatives will be charged with this responsibility.” Id. at 409.

In the Gnau case, the court was faced with the issue of whether the Board had jurisdiction over the Louisville and Jefferson County Metropolitan Sewer District. While the court noted that the sewer district was an agency of the state, it refused to hold that it was a state agency as that term is used in KRS 44.070. In determining what was meant by a state agency which could be subject to the jurisdiction of the Board of Claims, the court held:

As is apparent from the above-quoted sections of the statute the waiver of immunity attaches only to those agencies which are under the direction and control of the central State government and are supported by monies which are disbursed by authority of the Commissioner of Finance out of the State treasury.

346 S.W.2d at 755. This two-pronged test in Gnau was reiterated by the Kentucky Supreme Court in Kentucky Center for the Arts Corporation v. Berns, Ky., 801 S.W.2d 327, 331 (1990). Then, in the Kirby case, the Kentucky Supreme Court held that “[t]he act [Board of Claims Act] is limited to subdivisions of the central state government. There is no statement that the act applies to local government.... ” 926 S.W.2d at 456.

Finally, the Kentucky Supreme Court stated in Malone that “[i]n any event it is well settled that in the absence of waiver, the county is immune from tort liability. The legislature has not expressly waived the immunity of the county from suit in tort.” 957 S.W.2d at 203 (emphasis added). While that statement from the Malone opinion would appear to hold that the legislature has not waived sovereign immunity for counties, the court thereafter stated in dicta that this court had erred in holding that the Board of Claims Act has no application to counties. Id. We believe that we are neither bound by the dicta in the Malone opinion nor do we believe that the Kentucky Supreme Court intended to overrule prior precedent with that statement.

It is clear that the Board of Claims Act allows claims for damages due to negligence against the Commonwealth or any of its cabinets, departments, bureaus, or agencies, or any of its officers, agents, or employees. KRS 44.070(1). In order for there to be a further waiver of immunity, an express waiver is required. Withers v. University of Kentucky, Ky., 939 S.W.2d 340, 345 (1997); Malone, 957 S.W.2d at 203. Therefore, as stated in Malone, “in the absence of waiver, the county is immune from tort liability.” Id. The fact that the Board of Claims Act does not vest jurisdiction in the Board of Claims over counties is clearly supported by the precedents set forth in Ginter, Cullinan, Gnau, and Kirby. Because the Board of Claims Act does not expressly waive sovereign immunity for counties, the Board was correct in finding that it had no jurisdiction of Banks’s claim against the Powell County Fiscal Court.

The order of the Powell Circuit Court is reversed, and this matter is remanded for the entry of an order affirming the Board’s dismissal of Banks’s claim. .

SCHRODER, Judge, concurs.

EMBERTON, Judge, dissents by separate opinion.

EMBERTON, Judge,

dissenting.

I respectfully dissent. Although the majority adequately supports its opinion with precedent, I believe the premise upon which its authority is based is illogical and wrong. Moreover, the holding in such cases is unfair to those who are injured as the result of the negligence of a county government, rather than by the negligence of the state, in that the opportunity to seek relief is granted to one while being arbitrarily and unreasonably denied to the other. More important however, is that Withers v. University of Kentucky compels a result contrary to the majority holding.

The General Assembly, through enactment of the Board of Claims Act, has provided a means by which those persons negligently injured at the hands of the Commonwealth, any of its cabinets, departments, bureaus or agencies may seek limited relief. The enumeration of these sub-entities, set out in KRS 44.072, does not necessarily suggest a legislative intent to exclude counties. To contend that it does is no different from arguing that since “counties” is not specifically set out in Section 231 of the Kentucky Constitution, sovereign immunity is not granted to counties. Just as we find the grant of sovereign immunity to the Commonwealth and the county to be coextensive, I know of no reason that the waiver of immunity for the Commonwealth and for the county should not likewise be coextensive. For such purpose they should be considered inseparable unless expressly said by the General Assembly to be otherwise. However, until Withers, our courts have consistently held to 'the contrary as the majority correctly points out.

Since Ginter v. Montgomery County, our courts have universally held that KRS 44.072 does not waive the sovereign immunity of counties, resulting, of course, in a denial of jurisdiction to the Board to hear claims against counties. In Ginter, the estate of a fatally injured grader operator sued Montgomery County, arguing that the Board of Claims Act has the effect of waiving the county’s immunity. Without any supporting discussion the court held simply that, “as to local governments it (the Act) does not purport to waive any immunity.”

But in neither Ginter nor its progeny does the court offer a plausible rationale for excluding counties from the Act’s waiver of immunity. The courts do, however, establish a criterion for determining which of the several immune entities are excluded from waiver. In Gnau v. Louisville & Jefferson County Metropolitan Sewer District, the appellant’s suit against the Sewer District in the Board of Claims was dismissed on the ground that the Board had no jurisdiction. The Court of Appeals affirmed the dismissal citing Fawbush v. Louisville & Jefferson County Metropolitan Sewer District, which held that although the Sewer District is an agency of the state, “the waiver of immunity attaches only to those agencies which are under the direction and control of the central State government and are supported by monies which are disbursed by authority of the Commissioner of Finance out of the State treasury.”

Although I would find that Withers overrules the test of waiver in Gnau, I am also of the opinion that a distinction should be drawn between an “agency” and its relationship with the Commonwealth and a “sub-division” and its relationship with the Commonwealth. By definition a sub-division is an integral part of a whole — as here, it is a necessary component to make the state whole, while an agency is simply a delegated representative of the state created to perform services.

Of the cases cited by the majority only Ginter and Malone addi-ess the issue of the jurisdiction of the Board of Claims to hear claims against counties. All other cases cited relate to the question of immunity and the waiver of immunity of agencies in state government such as sewer districts, boards of education and entertainment entities. I do not find the same precedential guidance for questions relating to counties as I would for agencies.

Precedent clearly supports the proposition that sovereign immunity, as enjoyed by the Commonwealth under Section 231, extends to and includes counties by virtue of their being subdivisions of the Commonwealth.

The principle is emphatically and succinctly phrased in Kenton County Public Parks Corp. v. Modlin:

Since 1792 nothing could be clearer in Kentucky law than the principle that counties enjoy sovereign immunity from ordinary tort liability, the same immunity as the Commonwealth.

While our courts broadly define Section 281 as granting sovereign immunity to the Commonwealth’s sub-divisions, cabinets, departments, bureaus and agencies, they have consistently interpreted the Board of Claims Act as waiving the immunity only of those entities that meet the test set out by the Gnau court. Counties, obviously, remain in a category unto themselves, enjoying sovereign immunity without inclusion by express terms in any legislative act of waiver. Yet, it seems totally inconsistent to hold that Section 281 grants sovereign immunity to the Commonwealth, and thereby to counties by virtue of their being subdivisions of the Commonwealth, while on the other hand declare that the waiver of immunity granted by the Act refers to the Commonwealth, but not to its counties.

Since Malone we have variously held both, that Malone is authority for finding waiver of immunity of counties, and, that it is not (and the dicta of Clark v. June, which discusses the ambiguity of the present status). However, if we look at the stated premise in Withers, that through time various efforts to resolve persistent questions regarding sovereign immunity we find those attempts often resulted only in greater uncertainty. Writing for the court, now Chief Justice Lambert, set forth guidelines in Withers, by which courts can reach more consistent results, holding specifically that claims against all immune entities are within the jurisdiction of the Board of Claims:

All claims against immune entities fall squarely within the purview of the Board of Claims Act where resides exclusive jurisdiction for claims against the entity. The Board of Claims Act and sovereign immunity are co-extensive. Berns, 801 S.W.2d at 331, and Gnau v. Louisville & Jefferson County Metropolitan Sewer District, Ky., 346 S.W.2d 754 (1961). It follows that a plea of sovereign immunity is an admission of Board of Claims jurisdiction.

Since the enactment of the Board of Claims Act we have invariably defied a sense of fairness by creating a distinction between the Commonwealth and its counties in our application of the Act. It seems unambiguously stated in Withers that that part of Gnau setting out the test of waiver under the Act is overruled and waiver must now be applied to all sovereign entities whose immunities are derived from Section 231.

I would affirm.

      . The Powell County Fiscal Court asserts that Banks’s claim against it is barred by the one-year statute of limitation set forth in KRS 44.110(1). Because the Board dismissed the claim for lack of jurisdiction, it did not address this issue in its order.

      . Kentucky Revised Statutes.

      .Dicta in an opinion is not authoritative or binding on a reviewing court. See Stone v. City of Providence, 236 Ky. 775, 778, 34 S.W.2d 244, 245 (1930); Cawood v. Hensley, Ky., 247 S.W.2d 27, 29 (1952).

      . Ky., 939 S.W.2d 340 (1997).

      . Kentucky Revised Statutes (KRS) 44.070.

      . Ky., 327 S.W.2d 98 (1959).

      . Id. at 100.

      . Ky., 346 S.W.2d 754 (1961).

      . Now the Supreme Court.

      . Ky., 240 S.W.2d 622 (1951).

      . Gnau, 346 S.W.2d at 755.

      . Ky.App., 901 S.W.2d 876, 879 (1995).

      . Whitney v. Jefferson Co. Fiscal Court (1997-CA-002654); Dye v. Clark Co. Board of Education (1998-CA-000013); Bell Co. Fiscal Court v. Thompson (1998-CA-001532) (all opinions designated not to be published).

      . Williams v. Kentucky Dept. of Education (1999-CA-000914) (designated not to be published).

      . Estate of Anthony Ray Clark v. June (1998-CA-002755) (designated not to be published).

      . Withers, 939 S.W.2d at 346.