author: RICK STRANGE, Justice.

text:
    Steven Frank GALVAN, Appellant, v. STATE of Texas, Appellees.
    No. 11-08-00281-CR.
    Court of Appeals of Texas, Eastland.
    June 17, 2010.
    Rehearing Overruled July 15, 2010.
    Discretionary Review Refused Oct. 13, 2010.

      Stan Brown, Abilene, for appellant.
    Michael E. Fouts, District Attorney, Haskell, Patricia Dyer, Assistant Criminal District Attorney’s Office, Abilene, for ap-pellees.
    Panel consists of WRIGHT, C.J., McCALL, J., and STRANGE, J.
   OPINION

RICK STRANGE, Justice.

The jury convicted Steven Frank Galvan of aggravated assault with a deadly weapon. The offense was enhanced to a first degree felony, and the jury assessed punishment at twenty-five years. We affirm.

I. Background Facts

Galvan lived in a trailer behind Sheriff Bill Mullen’s house. Galvan had been drinking on the day of the assault. This upset Sheriff Mullen and his wife because alcohol conflicted with Galvan’s medicine. Sherriff Mullen’s wife found a bottle of whiskey and cans of beer inside Galvan’s pickup, and she told him that Galvan had to move. Sheriff Mullen found Galvan at Willie Turner’s house; handed him the whiskey bottle, the beer, and $300; and told him not to come back home. Galvan took the items and then struck Sheriff Mullen on the head with the full whiskey bottle. A struggle ensued, and Galvan hit Sheriff Mullen two more times before the bottle broke. Turner came out of his house and helped Sheriff Mullen restrain Galvan.

Galvan’s attorney filed a motion suggesting incompetency and requested a competency examination. The trial court appointed Dr. Samuel Brinkman to examine and observe Galvan. Dr. Brinkman examined Galvan and reported that he was incompetent to stand trial and that he did not believe Galvan could attain competence to stand trial in the foreseeable future. Galvan requested a jury trial on his competency. The jury found that Galvan was competent. A second jury was selected to hear Galvan’s criminal case, and it found him guilty of aggravated assault with a deadly weapon and assessed his punishment at twenty-five years confinement.

II.Issues

Galvan challenges his conviction on two grounds. First, he argues that the jury did not have factually sufficient evidence to conclude that he was competent to stand trial and, second, that the trial court abused its discretion when it denied his motion for mistrial.

III. Competency to Stand Trial

Galvan argues that the evidence is factually insufficient to support the jury’s competency finding because Dr. Brinkman’s expert opinion was not effectively refuted. Because an accused is presumed competent, a defendant must prove by a preponderance of the evidence that he does not have the present ability to consult with his attorney or that he does not have a rational or factual understanding of the proceedings against him. Manning v. State, 730 S.W.2d 744, 748 (Tex.Crim.App.1987); see also Tex.Code CRiM Proc. Ann. art. 46B.003(a) (Vernon 2006).

We review the entire record of the competency hearing to determine whether the finding of competence is so against the great weight and preponderance of the evidence that it is manifestly unjust. See Meraz v. State, 785 S.W.2d 146, 155 (Tex.Crim.App.1990) (adopting civil standard for reviewing factual challenges when the defendant has the burden of proof and the standard is proof by a preponderance of the evidence); Williams v. State, 191 S.W.3d 242, 248-51 (Tex.App.-Austin 2006, no pet.) (appellate court reviews the evidence offered at the competency hearing when performing a factual sufficiency review). The jury is the judge of the credibility of the witnesses and the weight to be given to the testimony. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App.2000). The jury may accept or reject all or any of a witness’s testimony. Id.

Galvan called Dr. Brinkman as an expert witness. Dr. Brinkman is a neuropsychol-ogist. He spent an hour with Galvan taking a history and performing a subjective evaluation. Galvan then took several hours of standardized psychological tests. This testing revealed a verbal IQ of fifty-seven, a performance IQ of fifty-nine, and a full-scale IQ of fifty-four. Galvan’s scores indicated mental retardation, although Dr. Brinkman testified that additional testing would be necessary to make that determination. Dr. Brinkman acknowledged that Galvan was being manipulative and that he wanted to appear more impaired than he actually was, but in his opinion, Galvan’s best IQ scores would still be in a borderline mental retardation category. He testified that Galvan’s verbal interaction was not good and that he had to push Galvan to answer questions. Dr. Brinkman determined that Galvan was not competent to stand trial because he did not have an efficient present ability to consult with his attorney with a reasonable degree of rational understanding. Because of this conclusion, he did not reach an opinion on whether Galvan understood the proceedings against him.

Dr. Brinkman agreed that his opinion was a subjective determination and that it was impossible to know definitively if Gal-van had been honest. Dr. Brinkman agreed that there was evidence Galvan was malingering, but he testified that he did not administer any specialized malingering tests because Galvan’s pattern of performance on different test types did not suggest that it was necessary.

The State called several lay witnesses. Deputy Rusty Harris testified that he had known Galvan for about nine years, had frequent interaction with him during that time, and never had any problems communicating with him. Dr. Brinkman had testified that when he saw Galvan his head was down, he made little eye contact, and he appeared very sad and irritable. Conversely, Deputy Harris testified that when he transported Galvan to Dr. Brinkman’s office that Galvan’s demeanor was normal, that he did not have to pry any conversation out of him, and that Galvan carried himself normally with his head upright. Although Dr. Brinkman believed Galvan had difficulty communicating, he agreed that if Galvan had communicated with others on the ride to his office, this would indicate that Galvan had successfully manipulated him. Deputy Harris testified that he and Galvan talked and laughed the entire trip to and from Dr. Brinkman’s office.

Essie Ann Brazee, a former employee of the Stonewall County Sheriffs office, testified similarly. Brazee had known Galvan for approximately fifteen to twenty years and never had any trouble communicating with him. She testified that she was working at the jail the night Galvan was arrested and remembered conversing with Gal-van without difficulty. That night he said to her, “I screwed up, didn’t I?”

Sherry Taylor testified that she had known Galvan for twelve years and that she worked at Rolling Plains Detention Center where Galvan was housed. She conversed with Galvan a few times, all without problems. She also testified that Galvan arrived at the detention center clean cut and well groomed. Sometime later, when she asked him why he did not get a haircut, he responded that he was waiting to be released.

Galvan has directed us to additional testimony elicited at trial, including his own testimony, to support his argument. This evidence is outside the scope of our review because we are concerned with the sufficiency of the evidence presented to the competency jury and because Galvan does not contend that his competency was presented to the trial court for further ruling during the regular trial. Moreover, even were we to consider Galvan’s trial testimony, it indicates rather clearly that he was able to consult with his attorney. Galvan testified that he and his counsel had an agreement that he would remain calm; he described his family, work, educational, and medical history without any apparent difficulty; and he described in considerable detail the events leading up to the confrontation with Sheriff Mullen and the confrontation itself.

After considering all of the evidence presented during the competency hearing, we hold that the jury’s finding is not so against the great weight and preponderance of the evidence as to be manifestly unjust. Dr. Brinkman’s opinion was not binding upon the jury. See City of Keller v. Wilson, 168 S.W.3d 802, 820 (Tex.2005) (even uncontroverted expert testimony does not bind jurors unless the subject matter is one for experts alone). Dr. Brinkman’s determination is necessarily subjective and, to some extent, dependent upon the information provided him by Galvan. The jury was free to reject Dr. Brinkman’s opinion if, for example, they believed that this opinion was undermined by Galvan’s intentional misconduct. Dr. Brinkman believed that Galvan had intentionally exaggerated the degree of his impairment but did not believe this had impacted his assessment. There was evidence that Galvan was more successful than Dr. Brinkman realized. For example, Galvan had no difficulty communicating with Deputy Harris immediately before and after Dr. Brink-man’s examination, and he modified his behavior and appearance for his competency examination. The jury’s verdict did not go against the great weight of the evidence nor was it manifestly unjust. Galvan’s first issue is overruled.

IV. Motion for Mistrial

In his second issue, Galvan asserts that the trial court abused its discretion by denying his motion for a mistrial following the State’s comment on his right to remain silent. Galvan testified in his own defense and claimed that Sheriff Mullen was the aggressor and that Sheriff Mullen choked him and put dirt in his mouth. The prosecutor asked Galvan on cross-examination why he did not relate his version of the events to Texas Ranger Dwayne Williams when he came to see him. Galvan’s counsel objected, alleging that this was an improper comment on Galvan’s post-Miranda silence. Although the trial court initially denied the objection, Galvan never answered the question and the trial court reconsidered its ruling and sustained the objection. It then gave the jury an instruction to disregard.

A mistrial is an extreme remedy for prejudicial effects occurring during the trial process. Archie v. State, 221 S.W.3d 695, 699 (Tex.Crim.App.2007). A trial court’s denial of a motion for mistrial is upheld in the absence of an abuse of discretion. Id.

A comment on a defendant’s post-arrest silence violates the Fifth Amendment prohibition against self-incrimination. Dinkins v. State, 894 S.W.2d 330, 356 (Tex.Crim.App.1995). However, an improper comment does not lead to automatic reversal and an effective instruction to disregard will ordinarily cure the prejudicial effect. Perez v. State, 187 S.W.3d 110, 113 (Tex.App.-Waco 2006, no pet.). An instruction to disregard will be presumed effective unless the facts of the case suggest the impossibility of removing the impression produced on the minds of the jury. Waldo v. State, 746 S.W.2d 750, 754 (Tex.Crim.App.1988). The effectiveness of a curative instruction is determined on a case-by-case basis. Johnson v. State, 83 S.W.3d 229, 232 (Tex.App.-Waco 2002, pet. ref'd). Although not specifically adopted as definitive or exhaustive, the courts have looked to several factors to determine whether an instruction to disregard cured the prejudicial effect: (1) the nature of the error; (2) the persistence of the prosecution in committing the error; (3) the flagrancy of the violation; (4) the particular instruction given; (5) the weight of the incriminating evidence; and (6) the harm to the accused as measured by the severity of sentence. Id.

Although the nature of the constitutional right affected was serious, its prejudicial effect is limited for several reasons. Gal-van never answered the question. The State did not persist in questioning Galvan about his silence or mention it during closing argument. The trial court timely instructed the jury “to disregard [counsel’s] last question.” Finally, the improper question did not change the outcome of the case in light of all the evidence supporting Galvan’s conviction.

We cannot say that the trial court abused its discretion in denying the mistrial motion, and we overrule Galvan’s second issue.

V. Conclusion

The judgment of the trial court is affirmed.

      . See also Graham v. State, 566 S.W.2d 941, 950 (Tex.Crim.App.1978) (it is not necessary for the State to present expert medical testimony that a defendant is sane in order to counter the defense experts).

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Courts have held similar instructions adequately cured any error. See Waldo, 746 S.W.2d at 755-56 ("Jury is instructed to disregard the last comment of the witness.”); Mendoza v. State, 959 S.W.2d 321, 324 (Tex. App.-Waco 1997, pet. ref'd) ("I again instruct the jury that they will not consider the last statement made by the State's attorney for any purpose whatsoever.”); Johnson, 83 S.W.3d at 232 ("Ladies and gentlemen, please disregard the last question by the prosecutor.”).


source: Caselaw Access Project

author: DAVID WELLINGTON CHEW, Chief Justice.

license: Public Domain

text:
    Rene NEVAREZ, Appellant, v. INVESTMENT RETRIEVERS, INC., a California Corporation, Assignee of Chase/Bank One, Appellee.
    No. 08-09-00083-CV.
    Court of Appeals of Texas, El Paso.
    July 14, 2010.
    Rene Nevarez, El Paso, TX, pro se.
    LaJuan E. Wood, Law Office of La Juan E. Wood, Dallas, TX, for Appellee.
    Before CHEW, C.J., McCLURE, and RIVERA, JJ.
   OPINION

DAVID WELLINGTON CHEW, Chief Justice.

Appellant appeals the trial court’s judgment in favor of Appellee. On appeal, Appellant argues the trial court erred in allowing certain business records to be admitted into evidence when they failed to comply with the Texas Rules of Evidence, in accepting a credit card agreement submitted by Appellee as a valid contract, and in entering a judgment in favor of Appellee. We affirm.

After Chase/Bank One and Appellant entered into a credit card member contractual agreement, the company issued a credit card to Appellant, and Appellant made purchases and/or cash advances using the credit card account. In July 2007, Appellee brought an action against Appellant for debts Appellant incurred and owed on the credit card account. In its original petition, Appellee asserted that Chase/ Bank One assigned all of its rights, title, and interest in monies owed under Appellant’s credit card to Appellee, and that Appellee was the holder and owner of the disputed credit card account and thus entitled to receive all money due under the credit card agreement’s terms. Appellee claimed Appellant defaulted on the payment obligations under the credit card agreement’s terms and conditions to pay the account, and despite the company’s demand for payment, Appellant refused to pay the debt owed or any part of it. According to Appellee, due to Appellant’s default on the credit card account, Appellant owed a “principal amount of $7,610.43, plus interest accrued and accruing at the highest contractual rate allowed by state law of eighteen percent (18 %) per annum from the date of charge off of 02/28/05.” In Appellant’s answer, Appellant asserted the defenses of improper service and mistaken identity. Appellant also claimed that Appellee lacked standing to bring the instant suit, and that the statute of limitations barred this suit.

At the conclusion of a hearing, the trial court entered a final judgment in favor of Appellee in February 2009. The court determined the company may recover $7,610.43 for the principal amount due, $5,336.89 as interest, $2,000 for attorney’s fees, $350 for costs of court and service of process, and “[ijnterest at the legal rate per year on the total judgment from the date of judgment until paid” from Appellant. In March 2009, Appellant filed notice of appeal.

Initially, we note that we must construe Appellant’s brief liberally as Appellant is appearing pro se. See Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989). However, pro se litigants still must comply with all applicable procedural rules. Valadez v. Avitia, 238 S.W.3d 843, 845 (Tex.App.-El Paso 2007, no pet.); Martinez v. El Paso County, 218 S.W.3d 841, 844 (Tex.App.-El Paso 2007, pet. struck); Sweed v. City of El Paso, 195 S.W.3d 784, 786 (Tex.App.-El Paso 2006, no pet.).

Under the Texas Rules of Appellate Procedure, an appellant’s brief is required to contain “a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.” Tex.R.App.P. 38.1(i). Rule 38 requires the appellant to provide us with such discussion of the facts and the authorities relied upon as may be requisite to maintain the point at issue. See Tesoro Petroleum Corp. v. Nabors Drilling USA Inc., 106 S.W.3d 118, 128 (Tex.App.-Houston [1st Dist.] 2002, pet. denied); Franklin v. Enserch, Inc., 961 S.W.2d 704, 711 (Tex.App.-Amarillo 1998, no pet.). When the appellate issue is unsupported by argument or lacks citation to the record or legal authority, nothing is presented for review. Republic Underwriters Ins. Co. v. Mex-Tex, Inc., 150 S.W.3d 423, 427 (Tex.2004); Valadez, 238 S.W.3d at 843; Martinez, 218 S.W.3d at 844; Nguyen v. Kosnoski, 93 S.W.3d 186, 188 (Tex.App.-Houston [14th Dist.] 2002, no pet.). As we noted in Valadez:

It is the Appellant’s burden to discuss her assertions of error. An appellate court has no duty — or even right — to perform an independent review of the record and applicable law to determine whether there was error. Were we to do so, even on behalf of a pro se appellant, we would be abandoning our role as neutral adjudicators and become an advocate for that party. [Citations omitted].

Valadez, 238 S.W.3d at 845.

Appellant’s brief consists of nine pages. Those pages include a cover sheet, a table of authorities, a jurisdictional statement, issues presented for review, a statement of the case, a summary of the argument, and a certificate of service. The brief does not contain a statement of facts or a prayer. Moreover, Appellant provided no record references, citations to certain authorities, or clear and concise arguments for all of the issues. See Tex.R.App.P. 38.1(i). Appellant also failed to explain how the cases Appellant mentioned in the brief support specific contentions in each issue. We therefore overrule Appellant’s issues as inadequately briefed. See Tex.R.App.P. 38.1; Velasquez v. Waste Connections, Inc., 169 S.W.3d 432, 436 (Tex.App.-El Paso 2005, no pet.)(issue inadequately briefed when argument did not contain any references to relevant cases or legal principles); Kupchynsky v. Nardiello, 230 S.W.3d 685, 692 (Tex.App.-Dallas 2007, pet. denied)(issue inadequately briefed when party gave general cite to one case stating elements of cause of action); Sterling v. Alexander, 99 S.W.3d 793, 799 (Tex.App.-Houston [14th Dist.] 2003, pet. denied)(issue inadequately briefed when party failed to make proper citations to authority or the record and in failing to make a cogent argument); Wheeler v. Methodist Hosp., 95 S.W.3d 628, 646 (Tex.App.-Houston [1st Dist.] 2002, no pet.)(issue inadequately briefed when party did little more than summarily state her point of error, without citations to legal authority or substantive analysis). Accordingly, Issues One, Two, and Three are overruled.

Having overruled Appellant’s issues presented for review, we affirm the trial court’s judgment.


author: FELIPE REYNA, Justice. TOM GRAY, Chief Justice,

text:
    In re Louis F. BOUSE.
    No. 10-10-00263-CV.
    Court of Appeals of Texas, Waco.
    Aug. 17, 2010.

      Alan J. Bojorquez, Bojorquez Law Firm, Austin, TX, for Appellant/Relator.
    Marshall H. Cargill, Office of the Attorney General, Carla Robinson, Adam Falco, Asst. City Attorneys, College Station, TX, for Appellee/Respondent.
    Scott N. Houston, Texas Municipal League, Austin TX, E.V. “Rusty” Adams III, Attorney at Law, Bryan, TX, for Ami-cus Curiae.
    Before Chief Justice GRAY, Justice REYNA, and Justice DAVIS.
   OPINION

FELIPE REYNA, Justice.

Relators Louis F. Bouse, Teri L. Gerst, Beth J. Becker, Marcy Halterman, and Brian K. Alg seek a writ of mandamus compelling Respondents, the City Secretary for the City of College Station and the City Council of College Station, to certify an initiative petition and either approve the proposed ordinance or submit the ordinance to the electorate. We deny the relief requested.

MANDAMUS REQUIREMENTS

“[A] court of appeals may issue a writ of mandamus to compel the performance of any duty imposed by law in connection with the holding of an election or a political party convention, regardless of whether the person responsible for performing the duty is a public officer.” Tex. Elec.Code Ann. § 273.061 (Vernon 2010); see In re Jackson, 14 S.W.3d 843, 846 (Tex.App.-Waco 2000, orig. proceeding). Because the question before us involves an election matter, mandamus is the appropriate remedy. See In re Bailey, 975 S.W.2d 430, 432 (Tex.App.-Waco 1998, orig. proceeding).

FACTUAL BACKGROUND

Wellborn is an unincorporated area that lies within the extraterritorial jurisdiction of College Station. The residents of Well-born requested the College Station City Council’s consent to incorporate. The record does not indicate that consent was received. Relators submitted an initiative petition and a proposed ordinance “granting consent to the citizens of Wellborn, Texas, for an election on the proposition of the incorporation of the Wellborn area as a municipality under the laws of Texas ...”

Connie Hooks, the City Secretary, determined that the petition was insufficient. In a memorandum, the City Attorney explained that: (1) each petition paper was not accompanied by the affidavit of the circulator and did not contain the full text of the proposed ordinance; (2) no plat was attached to the ordinance; (3) if a plat was shown to the voters and was the same plat that had previously been submitted to the City Council, the area fails to “meet the legal requirements for incorporation;” and (4) to incorporate, Wellborn must follow the procedures outlined in section 42.041 of the Local Government Code, which do not include an initiative petition.

Relators submitted an amended petition. Hooks again concluded that the petition was insufficient: (1) it is “[n]ot clear in all sworn affidavits that a complete initiative ordinance was presented to voters;” (2) “[i]f an incomplete ordinance was presented to the voters it is vague, ambiguous and invalid;” and (3) the concerns of the City Attorney were not resolved. Hooks opined that no action was required by the City Council.

ANALYSIS

“ ‘[T]he power of initiative and referendum ... is the exercise by the people of a power reserved to them, and not the exercise of a right granted,’ and [ ] ‘in order to protect the people of the city in the exercise of this reserved legislative power, such charter provisions should be liberally construed in favor of the power reserved.’” Glass v. Smith, 150 Tex. 632, 244 S.W.2d 645, 648-49 (1951) (quoting Taxpayers Assn. of Harris County v. City of Houston, 129 Tex. 627, 105 S.W.2d 655, 657 (1937)).

The College Station City Charter allows for the filing of an initiative petition, except with regard to “zoning or rezoning property, appropriating money, authorizing the issuance of bonds, or authorizing the levy of taxes.” College Station, Tex., City Charter art. X, § 83. The City Secretary must “determine whether each paper of the petition has a proper statement of the circulator and ... is signed by a sufficient number of qualified electors.” Id. § 86. If the petition is insufficient, an amended petition may be filed. Id. § 87. If an amended petition is insufficient, the secretary “shall file his certificate to that effect.” Id. No further action is required if the amended petition is insufficient. Id. Once a petition is certified, the council must consider the petition. Id. § 89. If the proposed ordinance is not passed by the council, it must be submitted to the electorate at either a regular or special election. Id. § 90.

Bouse contends that the amended petition cured the alleged defects, requiring Hooks to certify the petition and requiring the City Council to either approve the ordinance or submit the ordinance to the electorate. The City responds that incorporation is not a proper subject for an initiative petition. In an amicus brief, the Texas Municipal League and Texas City Attorneys Association support the City’s position. According to Relators, the issue is whether the City failed to execute a ministerial duty by improperly rejecting the petition and refusing to process the initiative ordinance, not whether the initiative process is appropriate.

A governing body cannot defeat the right to an initiative election by refusing to “perform purely ministerial duties on the ground that in [its] opinion the ordinance would be invalid if adopted.” Glass, 244 S.W.2d at 648. However, mandamus may issue only where the “subject matter of the proposed ordinance [is] legislative in character” and has not been “withdrawn from the field in which the initiatory process is operative.” Id. The subject matter of the proposed ordinance may be “withdrawn, expressly or by necessary implication, by either the general laws or the city charter.” Id. at 650. “Any rights conferred by or claimed under the provisions of a city charter, including the right to an initiative election, are subordinate to the provisions of the general law.” Id. at 649.

In this case, the City argues that section 42.041 of the Local Government Code has withdrawn the subject matter of the proposed ordinance, incorporation, from the field in which the initiatory process is operative.

Under section 42.041(a), “[a] municipality may not be incorporated in the extraterritorial jurisdiction of an existing municipality unless the governing body of the existing municipality gives its written consent by ordinance or resolution.” Tex. Local Gov’t Code Ann. § 42.041(a) (Vernon 2008). If consent is refused, “a majority of the qualified voters of the area of the proposed municipality and the owners of at least 50 percent of the land in the proposed municipality may petition the governing body to annex the area.” Id. at § 42.041(b). The governing body’s failure to act within six months constitutes consent to incorporation. See id. Consent is merely “authorization to initiate incorporation proceedings.” Id. at § 42.041(c).

Relators argue that section 42.041(a) “only require[s] that consent come from the governing body through an ordinance or resolution” and does not limit the “method for providing that ordinance or resolution ... to the sole discretion of the governing body without input from its resident voters.” He maintains that, because the City refused to acknowledge requests for consent to incorporate, Wellborn residents petitioned the City for consent. In an amicus curiae brief supporting Rela-tors’ position, the Law Offices of Rusty Adams, PLLC argues that the City charter provides the initiative process as a means for Wellborn to incorporate pursuant to section 42.041.

The First and Fourteenth Courts have addressed this issue in the context of annexation and disannexation. In Hitchcock v. Longmire, 572 S.W.2d 122 (Tex.Civ.App.-Houston [1st Dist.] 1978, writ ref'd n.r.e), the trial court issued a writ of mandamus directing the City of Hitchcock to repeal an annexation ordinance or call, conduct, and canvass a referendum election. Hitchcock, 572 S.W.2d at 124. The First Court held, “[T]he governing body of the city does not have the right to repeal an annexation ordinance or to adopt a disannexation ordinance without following the specific procedural requirements established in Art. 970a [the Municipal Annexation Act]; a popular referendum would be subject to the same limitation.” Id. at 127.

In Vara v. Houston, 583 S.W.2d 935 (Tex.Civ.App.-Houston [14th Dist.] 1979, writ ref'd n.r.e.), Houston residents filed a petition to initiate a city ordinance to disannex the Clear Lake City area. See Vara, 583 S.W.2d at 936. Although procedural requirements had been met, the City refused to either pass the ordinance or submit the proposed ordinance to the electorate. Id. at 937. The Fourteenth Court explained that the Municipal Annexation Act provides procedural requirements for disannexation. Id. at 938. Thus, the subject matter of the ordinance, disannexation, had been withdrawn from the “field in which the initiatory process is operative.” Id.

Relators contend that the initiative ordinance does not involve annexation, but merely seeks the City’s consent for an incorporation election or presentation of the consent issue to the electorate. However, like annexation and disannexation, incorporation involves boundary issues that Chapter 42 has withdrawn from the field in which the initiatory process is operative. See Hitchcock, 572 S.W.2d at 127; see also Vara, 583 S.W.2d at 938. Rela-tors are required to follow Chapter 42’s procedures for incorporation of Wellborn. Thus, even assuming that Relators met all procedural requirements for the initiative process, an initiative petition is not a procedure for incorporation outlined in section 42.041. See Tex. Local Gov’t Code Ann. § 42.041.

Accordingly, we conclude that Respondents did not fail to perform a purely ministerial duty by refusing to certify the initiative petition and approve the proposed ordinance or submit the ordinance to the electorate. Because Relators have not established their right to mandamus relief, we deny their petition.

Chief Justice GRAY dissenting.

TOM GRAY, Chief Justice,

dissenting.

Election contests, unfortunately, frequently come with short external deadlines which make thoughtful appellate legal analysis and research much more difficult. That is the situation in which this mandamus proceeding has been processed. It is my opinion, based upon the issues as presented and argued, and based upon my own research and analysis, that the Court has failed to heed the most important admonition of election law as it relates to an initiative election: In order to protect the people of the city in the exercise of this reserved legislative power, the right to proceed by an initiative election should be liberally construed in favor of the power reserved.

INITIATIVE ELECTIONS

The authority to compel a city council to adopt a resolution consistent with an initiative election is a legislative act that the citizens have retained. It can, however, be given up by the people. Thus, like the United States Constitution defines those rights that have been given up by the people to the federal government and the Tenth Amendment expressly provides that those powers/rights not expressly described in the constitution are retained by the people/states, unless we can find an express surrender of the right to pursue the initiative election process, the people retain that right.

The Court has decided that the City of College Station and the two amicus organizations, Texas Municipal League and Texas City Attorney’s Association, are correct in their position that the Texas Legislature has removed the right of the people to compel the governing body of a city, the city council, to consent to an ordinance regarding incorporation of an area that lies within the extraterritorial jurisdiction of a city. I, however, agree with the Citizens for Wellborn, the Committee of Circula-tors, Louis Bouse, Teri Gerst, Beth Becker, Marcy Halterman, and Brian Alg, and an individual amicus, Rusty Adams, that the right to proceed by an initiative election to obtain the consent of the governing body is not inconsistent with or contrary to the statute relied upon by College Station and the Court. To fully appreciate the need to liberally construe the right to proceed by an initiative election in this situation, it is necessary to step back and review the alternatives and some of the broader issues that impact the advisability and operation of the interpretation of the relevant statute.

ISSUES PRESENTED

There are essentially two issues around which this mandamus proceeding has been briefed and decided. The Citizens, apparently due to the time pressure, have, I believe inadvertently, opened the door to College Station’s ability to argue the second issue, but which I believe is not ripe for review. It is, nevertheless, the issue upon which the Court decides to deny the mandamus and therefore I, too, will address it.

1. Did the College Station City Secretary, Connie Hooks, fail to perform a ministerial duty by refusing to certify the sufficiency of the initiative petition calling for a city council ordinance consenting to Wellborn’s request to hold an incorporation election? (Alternatively worded: Did the amended initiative petition meet the technical requirements of College Station’s Charter?) Answer: Yes.
2. Can the initiative petition/election process in College Station’s charter be used to compel the city council’s consent to hold an incorporation election for Wellborn? (Alternatively worded: Is compelling the city council’s consent by an initiative election consistent with Texas Local Government Code Section 42.041?) Answer: Yes.

BACKGROUND

College Station is a home-rule city. As a home-rule city it has all the powers of governing itself which the citizens have delegated to it in the city’s charter so long as the power delegated does not conflict with any statute or constitutional provision. See Tex. Loo. Gov’t Code Ann. Ch. 9 (Vernon 2008), Tex. Const, art. XI, § 5. College Station’s charter defines the procedure the voters must follow to utilize the initiative process.

The relevant provisions in the city’s charter are contained in Article X thereof. Because of the importance of compliance with those provisions in answering the first question above stated, I will set out the relevant charter provisions in their entirety. The only portions omitted will be those related solely to referendum petitions and recall elections. In the quoted documents set out in this opinion, I have italicized those portions of greater importance to the issues addressed in this dissenting opinion.

COLLEGE STATION CHARTER PROVISIONS
ARTICLE X
Power of Initiative
Section 83. The electors shall have power to propose any ordinance, except an ordinance zoning or rezoning property, appropriating money, authorizing the issuance of bonds, or authorizing the levy of taxes, and to adopt or reject the same at the polls, such power being known as the initiative. Any initiative ordinance may be submitted to the City Council by a petition signed by qualified electors of the City equal in number to at least twenty-five (25) percent of the number of votes cast at the last regular municipal election.
Form of Petitions: Committee of Petitioners
Section 85. Initiative petition papers shall contain the full text of the proposed ordinance. The signatures to initiative or referendum petitions need not all be appended to one paper, but to each separate petition there shall be attached a statement of the circulator thereof as provided by this section. Each signer of any petition paper shall sign his name in ink or indelible pencil and shall indicate after his name his place of residence by street and number, or other description sufficient to identify the place. There shall appear on each petition the names and addresses of five electors, who, as a committee of the petitioners, shall be regarded as responsible for the circulation and filing on the petition. Attached to each separate petition paper there shall be an affidavit of the circulator thereof that he, and he only, personally circulated the foregoing paper, that it bears a stated number of signatures, that all signatures appended thereto were made in his presence, and that he believes them to be the genuine signatures of the persons whose names they purport to be.
Filing; Examination and Certification of Petitions
Section 86. All petition papers comprising an initiative or referendum petition shall be assembled and filed with the City Secretary as one instrument. Within ten (10) days after the petition is filed, the City Secretary shall determine whether each paper of the petition has a proper statement of the circulator and whether the petition is signed by a sufficient number of qualified electors. The City Secretary shall declare any petition paper entirely invalid which does not have attached thereto an affidavit signed by the circulator thereof. If a petition paper is found to be signed by more persons than the number of signatures certified by the circulator, the last signatures in excess of the number certified shall be disregarded. If a petition paper is found to be signed by fewer persons than the number certified, the signatures shall be accepted unless void on other grounds. After completing his examination of the petition, the City Secretary shall certify the result thereof to the city council at its next regular meeting. If he shall certify that the petition is insufficient, he shall set forth in his certificate the particulars in which it is defective and shall at once notify the committee of the petitioners of his findings.
Amendment of Petitions Section 87. An initiative or referendum petition may be amended at any time within ten (10) days after the notification of insufficiency has been sent by the City Secretary, by filing a supplementary petition upon additional papers signed and filed as provided in case of an original petition. The City Secretary shall, within five (5) days after such an amendment is filed, make examination of the amended petition and, if the petition he still insufficient, he shall file his certificate to that effect in his office and notify the committee of petitioners of his findings, and no further action shall be had on such insufficient petition. The finding of the insufficiency of a petition shall not prejudice the filing of a new petition for the same purpose.
Consideration by City Council
Section 89. Whenever the City Council receives a certified initiative or referendum petition from the City Secretary, it shall proceed at once to consider such petition. A proposed initiative ordinance shall be read and provision shall be made for a public hearing upon the proposed ordinance. The City Council shall take final action on the ordinance not later than sixty (60) days after the date on which such ordinance was submitted by the City Secretary. A referred ordinance shall be reconsidered by the City Council and its final vote upon such reconsideration shall be upon the question. “Shall the ordinance specified in the referendum petition be repealed?”

As relevant to this proceeding, and what I believe is the only issue ripe for our consideration herein, I will first focus upon whether the city secretary, Connie Hooks, has failed to perform a purely ministerial duty. I believe the record shows that she has.

There is no factual dispute that the Citizens filed an initiative petition on May 4, 2010. Hooks timely undertook to perform her duties to review the petition. And on May 18, 2010 she sent an email to Janet Cohen with a subject of “Verification of Initiative Petition.” The text of the email is as follows:

Good morning Mrs. Cohen,
I presented the results of my examination of the initiative petition to the College Station City Council during its workshop meeting on Monday May 17. This process is outlined in Section 86 of the City Charter.
The petition was determined insufficient per Charter requirements. You are being notified of the particulars in which the petition is defective and may within ten days amend the original petition. I will mail a copy of the attachments to your home today.
If additional information is needed, please feel free to contact me.
Thank you, Connie

The city attorney, Harvey Cargill, Jr., provided a Memorandum dated May 13, 2010 to the city secretary, in which he purported to concur in her assessment of various particulars in which the petition was deficient. He went on to elaborate on other reasons he believed the Citizens were not entitled to proceed by the initiative process and why Wellborn was not entitled to incorporate. The text of the memorandum is as follows:

MEMORANDUM
TO: Connie Hooks, City Secretary
FROM: Harvey Cargill, Jr., City Attorney
DATE: May 13, 2010
RE: Wellborn
1. As we discussed, I agree with your conclusion that the Petition submitted for an Initiative Ordinance is invalid because it does not have attached to each petition paper an affidavit signed by the circulator and does not contain the full text of the proposed ordinance. Section 86 of the Charter specifically requires that the City Secretary “shall” declare the petition invalid if the circulator requirement is not net.
2. Additionally, the ordinance attached to the Initiative petition proposing that consent be granted provides it is for the area delineated on the attached plat. There is no plat attached to the ordinance. By the Charter, the full text of the proposed ordinance must be contained in the petition papers.
If this petition with the ordinance was shown to the voters signing the Petition without the plat attached, the voters were given no idea of what area was to be incorporated, and the ordinance is vague and invalid. If a plat was shown to each voter and represented to the voters as being the area to be incorporated, the voters would know what area is to be incorporated and the plat can be added to the Petition documents. However, the circulators would have to swear the plat was attached and represented to each voter as being the area to be incorporated. At this point the City does not know what area is to be incorporated by Wellborn, and the Charter requirements have not been met.
3. Further, as was stated in the letter of March 29, 2010, if a plat was shown to the voters, and it was the same plat or map that Wellborn previously submitted to the City Council, the area does not constitute a city/town as provided by Section 6.001, 7.001 and 8.001 of the Texas Local Government Code.
As provided in the 2003 edition of the Municipal Law & Procedure Manual, “Before incorporation under any statute, there must be an unincorporated community in existence with a compact center or nucleus of population around which a city or town or village has developed.” State ex rel. Needham v. Wil-bank [Wilbanks], 595 S.W.2d 849 (Tex. 1980). If the incorporation is challenged, the Court will look at whether there is a community in a fairly compact area. There should be a nucleus or center which can be shown by such things as businesses, a community hall, a post office or school in fairly close proximity. The area proposed for incorporation must be capable of receiving municipal services on a reasonable basis. This is the language that appeared before Mr. Bojorquez took over editing the Manual, and it is the current law.
If the area proposed in the Initiative Petition ordinance to be incorporated is the previously set out area, it does not meet the legal requirement for incorporation.
4.In order to incorporate Wellborn must comply with Section 4-2.04.1 of the Texas Local Government Code. The first step is to request consent to incorporate from the City Council. If consent is not given, the statute provides for a specific second step, to request the area be annexed, after getting 50% of the landowners to request annexation. If the City of College Station fails to annex within 6 months, by operation of law, consent to incorporate is given.
There is no step for circulating an Initiative petition instead of following § 42.041. Texas courts have held that a city can no more add a step to the process than it can omit one. Annexation issues are not subject to direct democracy voting through referendum, but are reserved to representative de- mocraey (City Council). The State has set up how and when an area can be incorporated, and the process needs to be followed.
In conclusion, you have determined that as presented the Initiative Petition lacks the affidavits as required by the Charter, and the Petition must be declared invalid. If the Petition is corrected to include the affidavits, the ordinance remains invalid unless the plat is attached to the proposed ordinance and the circulators can swear that the plat was shown to each voter. If the plat shows the same area to be incorporated as was presented earlier, the area does not meet the legal requirements for incorporation. The purpose of incorporation is to recognize that an area has become an urban, compact, contiguous area of homes, not to incorporate a rural area then have folks come. Simply put, Wellborn is not an existing town. Finally, state law provides a process to be followed for incorporation, and an Initiative Petition is not part of that statutory process.
If consent is given by College Station, it can’t be taken back. The result is growth in College Station in the southern direction tuill be cut off by Well-bom’s string of properties. Wellborn is already talking about filling in gaps to areas to be incorporated. The decision the City Council makes will be a decision that will decide present and future needs and growth patterns for College Station.
Ultimately, the decision should be what is in the best interests of the citizens of College Station.

The referenced email, if the city attorney’s memorandum was attached, is fairly characterized as substantial compliance with the requirement for a certification by the city secretary that sets forth “the particulars in which” the petition was insufficient. But that certification was certainly not in strict conformity with the procedure specified in the city’s charter. The certification was addressed to only one person who is not one of the circulator’s committee of petitioners, but who is president of the Citizen’s committee, Janet Cohen, it was presented to the city council in a work session rather than in a regular meeting of the city council, and it does not appear to have been timely performed and communicated. Further, it is unclear whether the city attorney’s memo was attached to the email or whether it was part of the “attachments” that were going to be mailed to Cohen’s home. The most fundamental problem regarding compliance with the charter provisions is that the attachment failed to delineate the petition’s defects that the city secretary was responsible for determining and certifying to the city council as distinguished from what the city attorney believed to be other impediments to Wellborn’s ability to incorporate. And although the consequence of the city secretary’s failure to perform her certification duties properly is not specified in the charter, it is noted that the city wants to demand strict compliance with its charter provision but nevertheless is satisfied with only substantial compliance with the charter in regard to their own conduct.

The Citizens, rather than complain about the city’s non-compliance with their charter provisions, simply proceeded to address the technical complaints they could identify in the certification of insufficiency of their initiative petition. Specifically, the certification and the city attorney’s memorandum made it clear that the circulator’s affidavit had to be attached to every petition page and that every petition page had to have a complete copy of the proposed ordinance attached, including the attachment of a copy of the plat referenced in the proposed ordinance. According to the letter transmitting the supplemental initiative petition, compliance with these formal requirements required the addition of almost 600 pages, but nevertheless was still based on the petitions originally submitted, which contained the signatures of 1500 registered voters. The supplementation required the addition of the two-page ordinance, a copy of the plat, and the individual certification page by the circulator to each page of petition signatures, which could contain a maximum of 11 signatures. This supplementation was clearly intended to bring the petition into technical compliance with the city’s charter requirements for an initiative election and meet the deficiencies identified in items one and two of the city attorney’s memorandum.

The city secretary acknowledged that the supplementation was timely received on May 27, 2010. On the following day the city attorney sent the following letter to the Citizen’s attorney:

The City Secretary has not completed her review of the supplemental petition. At the completion of her review she will set out her findings.
The first point I will make is that this is not a red-light camera initiative/petition situation. The current case law provides that annexation issues are controlled by the statutes dictating your next step. Wellborn’s next step is to request annexation by College Station.
By letter of March 29, 2010,1 told you that I would recommend that no initiative election be called because the precedent, as established by case law, is that zoning and annexation are not subject to initiative petition. I sent that letter in March so that Wellborn and you would know what my recommendation would be and not be surprised or expend energy circulating the petition, and then complain the City never told Wellborn that the law might bar Wellborn’s request.
In spite of the letter, Wellborn has proceeded. My recommendation stands as before. I believe for Wellborn to prevail, it will have to change the law as it currently exists.

Notwithstanding the requirements of the city’s charter, specifically the deadline to certify the initiative petition as sufficient or insufficient and the need to notify the Committee of that certification, it appears the city secretary never actually notified the Committee of the petition insufficiency. After the supplemental petition was filed, it appears that the city secretary’s next official action with regard to the petition was on June 10, 2010 when she provided a report to the city manager, Glenn Brown. Within the context of the report, she first summarizes the previous events and then declares that the petition as supplemented is insufficient. The report states, in part, as follows:

On May 27, 2010, Mrs. Cohen and members of the Citizens for Wellborn committee submitted supplemental documents to the original petition within the time frame required by the City Charter Section 87.
The City Secretary reviewed the amended petition and concluded it is insufficient based on the following issues:
1. Not clear in all sworn affidavits that a complete initiative ordinance was presented to voters.
If an incomplete ordinance was presented to the voters, it is vague, ambiguous and invalid.
2. The concerns stated by the City Attorney in his letter to City Secretary are not resolved.

Based on this report, the city secretary does not state any particular defect that I can identify in the report. I have reviewed the petitions and have not been able to identify any insufficiency between the supplement as filed and the requirements of the city charter. And if I have overlooked some small aspect that the city secretary focused upon in her report item 1, surely it is beyond dispute that there is substantial compliance with the charter provisions. As to the issues identified by the city attorney other than compliance with the city charter for the form and content of the initiative petition, which I will address those more fully below, those cannot be a basis for the city secretary to certify the petition as insufficient.

Accordingly, the supplemental filing corrected the procedural deficiencies in the originally filed initiative petition. Therefore, the city secretary had no discretion other than to certify the initiative petition as sufficient, in essence that the form and content of the petition complied with the requirements of the city charter. Instead, it appears that the city secretary relied upon the city attorney’s opinion regarding other legal objections to using the initiative process to reject the Citizen’s petition. Accordingly, I would conditionally issue a writ of mandamus against the city secretary, Connie Hooks, but only if she failed to certify the petition as sufficient and provide the Court with confirmation of her having done so within the next business day after the issuance of the Court’s opinion. Because the majority does not, I respectfully dissent from that portion of the Court’s opinion and judgment.

Further, it is my belief that the forgoing is the only portion of this mandamus proceeding that is ripe for our consideration. The city council has not been called upon to vote on the initiative ordinance. It is not clear on the record before this Court that a majority of the city council would now vote against the consent ordinance, although that might be an entirely reasonable supposition given that the city council did not voluntarily agree to Wellborn’s request to incorporate. Further, and more importantly, I cannot issue a mandamus against the city council without the issue being voted upon because, notwithstanding that they may not vote to adopt the ordinance, they may, nevertheless, reject the legal analysis and recommendation of the city attorney and vote to put the issue on the ballot and let the citizens decide whether they want Wellborn to be able to control its own fate through incorporation, or at least by letting Wellborn try to meet the incorporation requirements. Because even if the city attorney is correct in his opinion that Wellborn does not meet the other statutory requirements for incorporation, an issue not before us in this proceeding, the city council may opt for the public vote to get the sense of the community so that they can consent, or withhold consent, accordingly. Nevertheless, the initiative petition has never been put to a vote by the city council and accordingly is not ripe for this Court to compel by mandamus. Thus, to the extent that the petition for writ of mandamus seeks to compel the mayor and members of the city council, Nancy Berry, John Crompton, Jess Fields, Dennis Maloney, Katy-Marie Lyles, Lawrence Stewart and Dave Rues-ink, I would dismiss it. Because the Court addresses the merits and denies the petition for writ of mandamus, I respectfully dissent from that portion of the Court’s opinion and judgment.

THE AVAILABILITY OF AN INITIATIVE ELECTION TO OBTAIN THE GOVERNING BODY’S CONSENT TO INCORPORATION

The second issue in this mandamus proceeding is whether the initiative process is even available to compel the city counsel to approve an ordinance that consents to Wellborn’s request to incorporate. I do not believe this issue is properly before us because the city council has not yet refused to consider the initiative petition, nor have they voted against the proposed ordinance and then refused to put it on the ballot for an initiative election. Because the city secretary refused to certify the initiative petition as sufficient, the issue has simply not been brought before the city council for consideration or vote of any type. Nevertheless, because College Station has defended its actions by asserting that the initiative process is not applicable, and the Court has determined to deny the petition for writ of mandamus on that basis, I must express my disagreement with their legal reasoning and result.

THE CHARTER

As provided in the city’s charter, the initiative process may be used “to propose any ordinance, except an ordinance zoning or rezoning property, appropriating money, authorizing the issuance of bonds, or authorizing the levy of taxes.” The initiative election in this instance is to compel the city council to give their consent by a city ordinance for the community of Well-born to incorporate. The incorporation ordinance is clearly not one of the types of ordinances for which the citizens of College Station have given up their right to proceed by an initiative petition in the city charter. Therefore, if the right to proceed by the initiative process has been taken from the people, as argued by College Station, it must have been taken by a statute of the State of Texas.

THE STATUTE

College Station, Texas Municipal League, and Texas City Attorneys Association have all concluded that the Local Government Code has a provision that has taken away the people’s right to obtain the city’s consent by an initiative election. This position is not terribly surprising since it is in their own interest of self-preservation that they have the maximum power to protect the city’s existence, expansion of the available tax base of the city, and the sphere of their control and power to regulate through the city’s governing board; the city council. The statute they rely upon is as follows:

(a) A municipality may not be incorporated in the extraterritorial jurisdiction of an existing municipality unless the governing body of the existing municipality gives its written consent by ordinance or resolution.
(b) If the governing body of the existing municipality refuses to give its consent, a majority of the qualified voters of the area of the proposed municipality and the owners of at least 50 percent of the land in the proposed municipality may petition the governing body to annex the area. If the governing body fails or refuses to annex the area within six months after the date it receives the petition, that failure or refusal constitutes the governing body’s consent to the incorporation of the proposed municipality.
(c) The consent to the incorporation of the proposed municipality is only an authorization to initiate incorporation proceedings as provided by law.
(d) If the consent to initiate incorporation proceedings is obtained, the incorporation must be initiated within six months after the date of the consent and must be finally completed within 18 months after the date of the consent. Failure to comply with either time requirement terminates the consent.
(e) This section applies only to the proposed municipality’s area located in the extraterritorial jurisdiction of the existing municipality.

Tex. Loc. Gov’t Code Ann. § 42.041 (Vernon 2008).

Thus, because Wellborn is within the extraterritorial jurisdiction of College Station, Wellborn must obtain the consent of the governing body of College Station, the city council, to proceed with incorporation. It appears that College Station may not want to voluntarily give its consent. Well-born has made the request. College Station has not given it. But it has never actually been placed before the city council for a vote.

The Court has determined that allowing consent to be compelled by an initiative election would be adding another step to the annexation process.

The reason College Station does not want to voluntarily consent, at least the city attorney’s reason as expressed in the memo to the city secretary, has to do with city growth. The city attorney expressed his view of why consent should not be given as follows:

If consent is given by College Station, it can’t be taken back. The result is growth in College Station in the southern direction will be cut off by Well-born’s string of properties. Wellborn is already talking about filling in gaps to areas to incorporate. The decision the City Council makes will be a decision that will decide present and future needs and growth patterns for College Station.
Ultimately, the decision should be what is in the best interest of the citizens of College Station.

It appears from their brief in reply to the Citizens response that College Station shares this view when it states that the Citizens are “now trying to obtain a hurried decision that ignores the impact that an additional step will have on cities who attempt to control growth within their ETJ’s.” And College Station’s brief to this Court makes it clear that they view this as a question of annexation to College Station, not consent to allow the Citizens to proceed by initiative election to let the voters decide if the city council must consent to allow Wellborn to move forward with its effort to incorporate. College Station’s brief states the prospect for allowing Wellborn to go forward as:

Should this Court issue the writ of mandamus as petitioned by Relators to compel the City to hold an initiative election to allow Wellborn to incorporate, the Court would, in effect, add a procedural step to annexation that is not now permitted by statute. It is therefore, the Respondent’s position that this is an annexation process not subject to initiative petition.

Maybe I am reading too much into the legal position taken by College Station. But by refusing to consent to the incorporation election, and thus, under their argument, compelling Wellborn to take the next step they contend is required by the statute, College Station will be in a better position to annex Wellborn, thus avoiding giving Wellborn independent incorporation status. Tex. Loc. Gov’t Code Ann. § 42.041(b) (Vernon 2008).

At this point it may be helpful to recall that while the citizens of Wellborn are currently largely regulated by College Station because Wellborn is within the extraterritorial jurisdiction of College Station, the citizens of Wellborn have no voice in who is elected to the College Station city council or the passage of ordinances by College Station that have a regulatory impact on Wellborn because they live in the extraterritorial jurisdiction of College Station. Further, the initiative can only go forward if the required number of registered voters in College Station agrees to it. The residents of Wellborn do not even get to participate in the initiative. Thus, Well-born must look to the citizens of College Station for help to secure the right to control their own municipal destiny.

And even if College Station’s city secretary certifies the initiative petition as sufficient under the city’s charter, and presuming the city council does not voluntarily give their consent and, thus, College Station is required to proceed with the initiative election, the result is still up to the voters of College Station, not Well-born. Further, even if the voters of College Station vote to compel the city council to consent to Wellborn’s incorporation, incorporation is certainly not a certainty. As discussed above, the city attorney has already expressed his view that the map of Wellborn for the initiative election does not comply with state law regarding an area that can be incorporated. Of course, this is not a proper basis for the city secretary to not certify the initiative petition but it would nevertheless thwart Wellborn’s ultimate effort to incorporate. The statute quoted above also makes it clear that “consent” is “only an authorization to initiate incorporation proceedings as provided by law” and thus is no guarantee that the community will ultimately be allowed to incorporate. Thus, College Station can continue to assert its legal position, even after the initiation of the incorporation process, that Wellborn, as identified on the plat attached to the ordinance, is not a proper area for incorporation under the relevant laws of the State of Texas.

Also by stepping back and taking a look at what it is that College Station wants to compel Wellborn to do by refusing to give its consent to incorporate, we may begin to understand why College Station is mounting this defense at this juncture. If the Court rejects Wellborn’s authority to obtain College Station’s consent to incorporation by way of the initiative election, Wellborn must ask to become part of College Station! See Tex. Loc. Gov’t Code ANN. § 42.041(b) (Vernon 2008). It seems pretty clear that is the very result that Wellborn wants to avoid.

No Inconsistency; Not an Additional Step; Just a Way to Get Consent

I now turn to what I believe is the most substantive flaw in the legal reasoning put forward by College Station and adopted by the Court: That by allowing consent to be obtained by using the initiative process set out in College Station’s charter, an additional step would be added to the annexation process, an act prohibited by prior cases interpreting annexation statutes. This legal position works only if you accept the city’s premise that this entire process, and specifically the statute it relies upon to defeat the ability to use the initiative process, is about annexation and not about regulating activity in a city’s extraterritorial jurisdiction. Further, this legal position is based upon cases that have held that the comprehensive scheme that regulates annexation of areas by cities cannot be altered. I have no quarrel with those cases; but I believe the city and the Court’s reliance on them is misplaced.

If we examine the statute that is relevant to this proceeding, the one both parties agree does apply, Texas Local Government Code 42.041, it becomes evident that the statute is dependant upon several other bodies of law. The statute is not intended to be a comprehensive statute dealing with any of the issues College Station and the Court have tried to squeeze into it. First, the provision is in Chapter 42, the Chapter of the Local Government Code related to Extraterritorial Jurisdiction, not Chapter 43 which is the comprehensive provisions of the Local Government Code that deal with Municipal Annexation. Second, even a cursory review of section 42.041 reveals that there are two significant bodies of law mentioned, but which the section does not even begin to address the details and implementation thereof; (1) incorporation of cities; and (2) annexation of areas to existing cities.

Incorporation

College Station has gone through great lengths to explain why Wellborn does not meet the criteria to incorporate as a city. But to make these arguments, College Station goes well outside section 42.041 and makes a cogent argument about the impediments to Wellborn’s incorporation. By referencing other statutes regarding incorporation of cities, College Station has impliedly recognized that the section is not self-contained and is not intended to address every issue related to the subject matter referenced in section 42.041. In effect, College Station recognizes that you have to refer to additional laws to understand and be able to determine if Wellborn can incorporate. But we are not yet to the incorporation stage for Wellborn because that stage does not start until Wellborn obtains College Station’s consent to incorporate. And the statute makes it clear that just because Wellborn obtains College Station’s consent, it does not mean that Wellborn will ultimately be approved by Texas for incorporation. “The consent to the incorporation of the proposed municipality is only an authorization to initiate incorporation proceedings as provided by law.” Tex. Loc. Gov’t Code Ann. § 42.041(e) (Vernon 2008).

Annexation

Further, College Station must concede that if its argument is accepted, it does not mean that Wellborn is automatically annexed simply because they comply with the provision in section 42.041(b) referencing annexation. To the contrary, before College Station could annex Wellborn, they would have to comply with the comprehensive steps for annexation contained in Chapter 43 of the Local Government Code. And as an indicator of how comprehensive Chapter 43 on Annexation is when compared to Chapter 42 on Extraterritorial Jurisdiction, Chapter 43 has 11 sub-chapters consisting of 102 sections whereas Chapter 42 has only four sub-chapters and 23 sections. It is this comprehensive set of laws once you get to the issue of annexation that College Station would have to comply with if they decided to annex Well-born. But quite simply, they are not there yet. College Station has not initiated annexation procedures, yet, nor has Wellborn asked to be annexed.

Thus it is evident that there are two rather large bodies of law that are referenced in the specific statute that even College Station recognizes it must go elsewhere to determine what that law is and how it may apply to this statute. Subsection (b) deals with annexation which is fully addressed by Chapter 43 of the Local Government Code. Subsection (c) deals with incorporation of municipalities which is fully addressed by Chapters 6, 7, 8, and 9 of the Local Government Code depending upon what type municipality is attempting to be incorporated.

Consent

This brings me back to subsection (a) of 42.041. This subsection of the statute is about obtaining a city’s governing body’s consent. And this is where College Station wants to keep Wellborn from going to any other provision of law to determine how College Station’s city council’s consent can be obtained. We all agree there is no comprehensive body of state statutes that regulates or determines how to obtain a home-rule city council’s consent for some action. Of course, voluntary consent is easy. If the members of the city council wanted to do this, it would have been done a long time ago. But the city founders, in their wisdom, recognized that the city council’s interest and views may not always be consistent with the voters of the city. Therefore, the founders specified in College Station’s charter the procedures to be used by the voters to initiate an election to compel the city council to consent to an ordinance. In this instance the required number of voters has taken the steps necessary to compel the city counsel to either pass an ordinance consenting to Wellborn initiating incorporation proceedings, or to compel the city counsel to put the ordinance to a vote of the electorate to compel their consent to such an ordinance.

Thus it is the College Station charter that we look to for the purpose of determining how the governing body of College Station may “give its written consent by ordinance or resolution” for Wellborn to initiate incorporation proceedings.

Case Authority

I do not find the cases cited by College Station, Texas Municipal League and Texas City Attorneys Association that analyze the steps necessary to annexation relevant to our inquiry. Neither College Station nor Wellborn are in the annexation phase, yet. Likewise, Wellborn has not been authorized to initiate incorporation proceedings. The issue, if it is ripe for decision and I believe it is not, is whether the statute or College Station’s charter, the equivalent of the city’s constitution, has removed the right otherwise retained by the voters to obtain the city council’s consent though, the initiative process. I believe the Citizens still have that right. And if there is any doubt that the right is retained, it should be resolved in favor of the Citizens having retained the right.

CONCLUSION

Based on the forgoing analysis I do not find that the statute, Texas Local Government Code Section 42.041 has withdrawn the initiative election process from being used to compel the governing body of College Station to consent to Wellborn’s application to incorporate. Because the statute does not expressly remove the initiative process from being used to obtain the consent of College Station’s governing body, and further because College Station’s procedural objections to the initiative process were corrected in the supplemental filing, and finally because College Station’s growth plan and legal objections to the incorporation of Wellborn are not proper grounds upon which the city secretary can refuse to certify the petition as sufficient under the city charter, I would conditionally issue the writ of mandamus compelling the College Station City Secretary, Connie Hooks, to act in her official capacity and certify the petition as sufficient so that the city council must take action on it as specified in College Station’s charter. I would issue the writ only if the city secretary failed to act in accordance with this opinion and provide certification of compliance within the next business day after the issuance of this opinion. As noted above, I do not believe the petition for writ of mandamus to compel the members of the city council, Nancy Berry, John Crompton, Jess Fields, Dennis Maloney, Katy-Marie Lyles, Lawrence Stewart, and Dave Rues-ink, to order the submission of the ordinance to a vote by the electorate is ripe for our mandamus jurisdiction and would dismiss that portion of it. Because the Court denies the petition for writ of mandamus in its entirety, I respectfully dissent from the Court’s opinion and judgment.

      . The Legislature repealed Article 970a and codified the statute in Chapter 42 of the Local Government Code. See Act of May 1, 1987, 70th Leg., R.S., ch. 149, §§ 1, 49(1), 1987 Tex. Gen. Laws 707, 741, 1306 (current version at Tex. Local Gov’t Code Ann. §§ 42.001 et seq. (Vernon 2008)). Like section 42.021, Article 970a provided that incorporation required the "written consent of the governing body.” See Act of April 29, 1963, 58th Leg., R.S., ch. 160, 1963 Tex. Gen. Laws 447, 450-51, repealed by Act of May 1, 1987, 70th Leg., R.S., ch. 149, §§ 1, 49(1), 1987 Tex. Gen. Laws 707, 741, 1306 (current version at Tex. Local Gov’t Code Ann. § 42.001 et seq. (Vernon 2008)). If consent were not granted, "a majority of the resident voters, if any, in the territory of such proposed city and the owners of fifty percent (50%) or more of the land in such proposed city” could petition the governing body and request annexation. Id. The governing body’s failure to act within six months resulted in ''authorization for the incorporation.” Id. Written consent or authorization only meant "authorization to initiate incorporation proceedings.” Id.

      . "The powers not delegated to the United States by Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” U.S. Const, amend. X.'

      . For purposes of this opinion I will use the short hand references to College Station and Wellborn, even though the later is not yet an incorporated entity.

      . It appears that the belief is that the city council is better able to make that determination than the voters of College Station.


text:
    In the Matter of The ESTATE OF Antonio PEREZ, Deceased.
    No. 08-08-00167-CV.
    Court of Appeals of Texas, El Paso.
    Aug. 25, 2010.

      Stancy Stribling, Hobson, Stribling & Carson, LLP, El Paso, TX, for Appellants.
    Rosa Perez, El Paso, TX, pro se.
    Daniel Reyes, El Paso, TX, for Appellee.

      Before CHEW, C.J., RIVERA, J., and GOMEZ, Judge.
   OPINION

DAVID WELLINGTON CHEW, Chief Justice.

Romelia Beard, Bertha Ybarra, Graciela Ibarra, and Rosa Elena Mier (“the Daughters”) appeal the trial court’s judgment in favor of Rosa Perez (“Mrs. Perez”) with respect to her application for probate of a will as a muniment of title. The Daughters challenge the trial court’s judgment based on legal and factual insufficiency. We affirm.

Mr. Antonio Perez died on March 10, 1995. He had made two wills in his lifetime: a 1975 will and a 1993 will. Romelia Beard, Bertha Ybarra, Graciela Ibarra, and Rosa Elena Mier are Mr. Perez’s adult children from his first marriage, and they were beneficiaries under the 1975 will. Mrs. Perez, the widow of Mr. Perez, was the sole beneficiary of the 1993 will.

Mrs. Perez retained attorney Fred Morton in June 2004 to probate the will in order to transfer title of a home on Grant Avenue in El Paso, Texas to her. The attorney recommended transferring the property through an affidavit of heirship and a special warranty deed. The affidavit was recorded with the County Clerk in October 2004. The attorney sent Ms. Bertha Ybarra, Mr. Perez’s oldest child, a copy of the affidavit of heirship and special warranty deed for her signature, but she did not respond. Mrs. Perez did not pursue the matter as she was unable to afford additional attorney fees.

In February 2007, the Daughters filed an application to declare heirship. Mrs. Perez responded by filing her own application to probate the 1993 will as a muniment of title. The probate court held a hearing in October 2007. Although Mrs. Perez was unable to produce the 1993 will in court, the court signed a judgment admitting that will to probate as a muniment of title in February 2008. In this order, the court determined: (1) Mr. Perez executed the 1993 will properly; (2) Mr. Perez was of sound mind and at least 18 years of age when he executed the will; (3) Mr. Perez never revoked the will; (4) the court has resolved the Daughters’ contest of the will’s probate; (5) all proof required for the will not produced in court has been made; (6) the photographic copy of the will was entitled to probate; (7) at the time of Mr. Perez’s death, Mr. Perez owned real property on Grant Avenue and another on San Diego Avenue, both in El Paso, Texas, as well as various personal property; and (8) Mrs. Perez was not in default in failing to file a copy of the will within four years of Mr. Perez’s death, and the will was admissible to probate as a muniment of title. As a result of the court’s judgment, the title to both real property on Grant Avenue and San Diego Avenue rested in Mrs. Perez. On February 14, 2008, the trial court entered its order admitting the 1993 will to probate as a muniment of title after four years. On March 18, 2008, the Daughters moved for a new trial, but the court denied it on April 24, 2008. The Daughters filed a request for findings of fact and conclusions of law on May 1, 2008, and at this point, more than twenty days have passed since the court’s judgment. Under the Texas Rules of Civil Procedure, the Daughters failed to timely file the request, and as such, it is deemed that no such request was made. See Tex.R.Civ.P. 296.

On appeal, the Daughters contend the trial court erred because: (1) the evidence was legally and factually insufficient to overcome the presumption that Mr. Perez revoked the will; and (2) the evidence was legally and factually insufficient to support the trial court admitting the will to probate as a muniment of title more than four years after Mr. Perez’s death.

In both issues, the Daughters challenge the legal and factual sufficiency of the evidence. However, as a preliminary matter, the Daughters contend the trial court made findings of fact in a letter ruling and order, and they urge us to review them for legal and factual sufficiency under the same standards used to review a jury’s verdict on jury questions on appeal. Letter rulings, however, do not constitute formal findings of fact. Cherokee Water Co. v. Gregg County Appraisal Dist., 801 S.W.2d 872, 878 (Tex.1990); Castillo v. August, 248 S.W.3d 874, 880 (Tex.App.-El Paso 2008, no pet.). Here, the court sent letters to the parties on November 5 and November 7, 2007, in which it explained its rationale for its ruling. Because these letter rulings do not constitute formal findings of fact, we determine the court below did not enter any findings of fact in the instant case. See Cherokee Water Co., 801 S.W.2d at 878; Castillo, 248 S.W.3d at 880.

Because the trial court did not make findings of fact or conclusions of law, we must assume it made all findings in support of its judgment. Pharo v. Chambers County, Tex., 922 S.W.2d 945, 948 (Tex.1996); Alford v. Johnston, 224 S.W.3d 291, 296 (Tex.App.-El Paso 2005, pet. denied). When a reporter’s record is brought forward, these 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)(per curiam); Alford, 224 S.W.3d at 296. In determining if some evidence supports the judgment and the implied findings of fact, we consider only that evidence most favorable to the issue and disregard entirely that which is opposed to it or contradictory in its nature. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990). The judgment must be affirmed if it can be upheld on any legal theory that finds support in the evidence. Id.

Because the Daughters’ challenge of the 1993 will on legal sufficiency grounds is based on adverse findings with respect to issues on which they did not have the burden of proof, they must demonstrate on appeal that no evidence supports each adverse finding. See Croucher v. Croucher, 660 S.W.2d 55, 57 (Tex.1983). We view the evidence in the light most favorable to the trial court’s findings, crediting favorable evidence if a reasonable fact finder could, and disregarding contrary evidence unless a reasonable fact finder could not. See City of Keller v. Wilson, 168 S.W.3d 802, 807 (Tex.2005). We sustain a no evidence issue only if there is no more than a mere scintilla of evidence proving the element of the claim. St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 520 (Tex.2002).

Similarly, because the Daughters did not bear the burden of proof, in their challenge of the 1993 will based on factual sufficiency, they must show there was insufficient evidence to support the relevant adverse findings. See Westech Eng’g, Inc. v. Clearwater Constructors, Inc., 835 S.W.2d 190, 196 (Tex.App.-Austin 1992, no writ). We consider and weigh all of the evidence and set aside the verdict only if the evidence that supports the finding is so weak as to be clearly wrong and manifestly unjust. Long v. Long, 196 S.W.3d 460, 464 (Tex.App.-Dallas 2006, no pet.). In making this review, we are not a fact finder and will not pass upon the credibility of the witnesses or substitute our judgment for that of the trier of fact, even if a different answer could be reached. Id.; Bright v. Addison, 171 S.W.3d 588, 595 (Tex.App.-Dallas 2005, pet. dism’d, (2) pets, denied). The amount of evidence necessary to affirm a judgment is far less than that necessary to reverse. Bright, 171 S.W.3d at 595-96.

Section 85 of the Texas Probate Code provides the requirements for proving a “written will which cannot be produced in court-” Tex.Prob.Code Ann. § 85 (Vernon Supp.2009). Such a will shall be proved in the same manner, as a written will produced in court, but the proponent must show the cause of its nonproduction as well. See id.

A presumption of revocation arises when the will proponent does not produce the will in court, and it was last seen in the testator’s possession or in a place to which he had ready access. See Matter of Estate of Glover, 744 S.W.2d 939, 940 (Tex.1988). However, this presumption may be overcome by proof showing circumstances contrary to revocation, or proof that some other person fraudulently destroyed the will. In re Estate of Capps, 154 S.W.3d 242, 245 (Tex.App.-Texarkana 2005, no pet.). The will proponent must establish the will’s nonrevocation by a preponderance of the evidence. See Tex. Prob.Code Ann. § 88(b)(3) (Vernon 2003); Huckaby v. Huckaby, 436 S.W.2d 601, 605 (Tex.Civ.App.-Houston [1st Dist.] 1968, writ refused n.r.e.). A witness’s testimony that he knew of no act of revocation by the testator may discharge the will proponent’s duty to prove nonrevoeation. See Bryant v. Hamlin, 373 S.W.2d 837, 840 (Tex.Civ.App.-Dallas 1963, writ refused n.r.e.).

At trial, Mr. Morton testified he had prepared the 1993 will for Mr. Perez, and that Mr. Perez never asked him to revoke that or to make a new will. Mrs. Perez testified that Mr. Perez put the 1993 will in a cedar chest with a lock on it in their home, and he kept the keys to the chest. She believed that the will was in the chest up until Mr. Perez died. She testified that before his death, the keys to the chest hung in a place where anybody could access them, but after his death, the keys were put in a jewelry box, which nobody could access. She testified the Daughters visited her home a few times after Mr. Perez’s death, but to her knowledge, the Daughters only took some photos from the chest before Mr. Perez’s death.

Ms. Marisela Chavez Polk, Mrs. Perez’s daughter and Mr. Perez’s stepdaughter, testified the Daughters gathered at Mrs. Perez’s home for certain holidays after Mr. Perez’s death, where the cedar chest was located. She testified the Daughters opened the chest when they came to Mrs. Perez’s home after Mr. Perez’s death, and took some items out.

Mr. Perez’s daughter, Graciela Ibarra, testified that Mr. Perez filed the 1975 will with the County Clerk because he perceived it to be an important document. She testified that the 1975 will provided Mrs. Perez could have the house on Grant Avenue or San Diego Avenue, but not both properties. The Daughters denied knowing about the 1993 will until Mr. Morton sent them a letter regarding it. The Daughters testified they only took some photos from the cedar chest, and although they visited Mrs. Perez’s home a few times after Mr. Perez’s death, they never entered the chest again after he died.

The Daughters argue the instant case is similar to Mingo v. Mingo, where the San Antonio court of appeals affirmed the trial court’s denial of a will’s probate based on a finding that the proponent failed to overcome the presumption that the decedent revoked the contested will. See Mingo v. Mingo, 507 S.W.2d 310 (Tex.Civ.App.-San Antonio 1974, writ ref'd n.r.e.).

We find Mingo is distinguishable to the instant case. There, the will was kept in a bank safety deposit box with strict and recorded access. Mingo, 507 S.W.2d at 313. Further, evidence at trial showed that an inventory of the safety deposit box after decedent’s death did not reveal any will. Id. In contrast, Mr. Perez’s will was kept in cedar chest at home, and his family had the ability to enter this chest, and that his daughters had, in fact, taken some of Mr. Perez’s personal property from the chest before and after his death. Additionally, while the decedent in Mingo made her will nineteen years before her death, Mr. Perez made the contested will in November 1993, less than two years before his death in March 1995. Id.

Viewing the evidence in the light most favorable to the trial court’s findings, we find that there was more than a scintilla of evidence to support the court’s determination that Mrs. Perez met her burden to overcome the presumption that Mr. Perez revoked his 1975 will. See Wolff, 94 S.W.3d at 520. The trial court, as the fact finder, was free to find credibility in Mrs. Perez’s version of the evidence, and conclude that she met her burden. See Long, 196 S.W.3d at 464; Bright, 171 S.W.3d at 595-96. Taking all of the evidence into account, we cannot conclude the evidence supporting the trial court’s determination that Mrs. Perez satisfied her burden to overcome the presumption of revocation was so weak as to be clearly wrong and manifestly unjust. See id. As such, the evidence was legally and factually sufficient to support the court’s determination that Mr. Perez did not revoke the 1993 will. Issue One is overruled.

In Issue Two, the Daughters contend the evidence was legally and factually insufficient to support the finding that Mrs. Perez was not in default by failing to present the 1993 will within four years of Mr. Perez’s death. They argue Mrs. Perez should have offered the 1993 will for probate after her initial consultation with Mr. Morton because the consultation should have put her on notice of the problems associated with the will. The Daughters contend Mrs. Perez’s testimony that she lacked funds to pay Mr. Morton was unfounded because she did not offer any evidence regarding her specific assets, liabilities, and income. They also argue Mrs. Perez did not attempt to resolve this matter directly with the Daughters, and that her purpose in probating the will was merely to ensure Mr. Perez’s property would pass on to her.

The Texas Probate Code provides: “No will shall be admitted to probate after the lapse of four years from the death of the testator unless it be shown by proof that the party applying for such probate was not in default in failing to present the same for probate within the four years aforesaid_” Tex.Prob.Code Ann. § 73(a)(Vernon 2003).

“Default” means the failure to probate a will because of the absence of reasonable diligence on the part of the party offering the instrument. Schindler v. Schindler, 119 S.W.3d 923, 929 (Tex.App.-Dallas 2003, pet. denied). Whether the proponent of a will is in default in not presenting the will within four years of the testator’s death is ordinarily a fact question for the trial court. Id. The proponent has the burden to show she is not in default in presenting the will for probate within the proper time. Id. The proponent would not be considered in default if she did not know of the existence of the will, provided she was not negligent in failing to discover whether there was a will. Id.

In Kamoos v. Woodward, the court affirmed the trial court’s judgment, which concluded the testator’s wife, the will proponent, was not in default for failing to offer the will for probate as a muniment of title within four years of the testator’s death. 570 S.W.2d 6, 8-9 (Tex.Civ.App.-San Antonio 1978, writ ref'd n.r.e.). The will proponent in Kamoos had limited financial resources and did not think it was necessary to probate the will due to the nature of the property and her resources. Id. Only after an oil company advised her to probate the will, did she become aware that the decedent was heir to a royalty interest, she offered the will for probate. Id. The court determined this evidence was sufficient to support the trial court’s finding that the will proponent was not in default and probated the will as a muniment of title. Id.

Similar to the will proponent in Kamoos, Mrs. Perez had limited financial resources: she testified that she could not afford to pay her former counsel, Mr. Morton, and she had to apply for a loan to fix some doors that were falling apart. Moreover, Mrs. Perez' testified that her educational background was limited to grade school. Like the will proponent in Kamoos, Mrs. Perez believed it was unnecessary to probate the will; she did not know there was a time limit to probate a will. The Daughters never asked for a share of Mr. Perez’s estate prior to this action. She also believed the Mr. Morton had taken care of the matter regarding the will. Similar to Kamoos, it was not until a third party, the Daughters, filed the petition for determination of heirship that Mrs. Perez became aware of the need to probate the 1993 will, and she did so within thirty days of the Daughters’ petition. As such, the record shows there was no absence of reasonable diligence on Mrs. Perez’s part in probating the 1993 will, and so she was not in default. See Schindler, 119 S.W.3d at 929.

Viewing the evidence in the light most favorable to the trial court’s findings, there was more than a scintilla of evidence to support the court’s determination that Mrs. Perez was not in default for failing to present the 1993 will for probate within four years after Mr. Perez’s death. See Wolff, 94 S.W.3d at 520. The trial court, as the fact finder, was free to find credibility in Mrs. Perez’s version of the evidence, and conclude that she was not in default for failing to probate the will within the statutory time limit. See Long, 196 S.W.3d at 464; Bright, 171 S.W.3d at 595-96. Taking all of the evidence into account, we cannot conclude the evidence supporting the trial court’s determination that Mrs. Perez was not in default for failing to offer the will for probate within four years after Mr. Perez’s death was so weak as to be clearly wrong and manifestly unjust. See Long, 196 S.W.3d at 464. As such, the evidence was legally and factually sufficient to support the trial court’s determination that Mrs. Perez was not in default and its admission of the will to probate as a muniment of title. We overrule Issue Two.

The trial court’s judgment is affirmed.

GOMEZ, Judge (Sitting by Assignment).

      . Although the Daughters denied knowing about the 1993 will until Mr. Morton sent them a letter regarding it, there is no dispute between the parties as to the existence of the will.