author: Chief Justice SEERDEN.

text:
    Cecelia Ann WRIGHT, Appellant, v. Troy Don ECKHARDT, Appellee.
    No. 13-99-429-CV.
    Court of Appeals of Texas, Corpus Christi.
    Nov. 9, 2000.

      James M. Martin, Corpus Christi, for Appellant.
    John A. Rank III, Law Offices of John A. Rank, III, Corpus Christi, for Appellee.
    Before Chief Justice SEERDEN and Justices DORSEY and RODRIGUEZ.
   OPINION

Opinion by

Chief Justice SEERDEN.

Cecilia Ann Wright and Troy Don Eck-hardt were divorced in 1994. The divorce decree awarded Wright one-half of Eck-hardt’s employment retirement benefits, including those benefits derived from Eck-hardt’s service in the United States Navy. Eckhardt’s military retirement benefits were the subject of two subsequent clarification orders, the latter of which is the subject of this appeal. We reverse and render.

Factual and Procedural Background

The original divorce decree entered on March 3, 1994, awards Wright one-half of all of Eckhardt’s employment retirement benefits, including his military retirement pay. The decree provides as follows:

Cecilia Ann Eckhardt is awarded the following property, and Troy Don Eck-hardt is divested of all right, title and interest in and to such property:
6. One-half (½) of all IRAs, employment retirement benefits, pension plans, and the like accumulated during the employment of Troy Don Eckhardt during the time the parties were married, including the following as it is related to U.S. Navy retirement pay:

The Court finds, in accordance with the Uniformed Services Former Spouses’ Protection Act, 10 U.S.C. 1408, as follows:

a. Cecilia Ann Eckhardt is awarded one half (½) of Troy Don Eck-hardt’s military retirement pay accumulated with the U.S. Navy from the time of the marriage on February 17, 1983 until December 10,1993.
g. Troy Don Eckhardt is on active duty with the U.S. Navy at the time this case is tried.
h. The award of retirement pay made to Cecilia Ann Eckhardt in this decree is made in compliance with the Uniform Services Former Spouses’ Protection Act.
IT IS FURTHER ORDERED AJSÍD DECREED that the Secretary of the U.S. Navy or his designated agent shall pay to Cecilia Ann Wright directly, each month, Cecilia Ann Wright’s interest awarded in this decree ... on a monthly basis if, as, and when that retirement pay is due to be paid, such payments to begin when Troy Don Eckhardt’s name is officially added to the Navy retirement list.

The Defense Finance and Accounting Service subsequently notified Wright that it would be unable to make payments to her pursuant to this decree because the decree did not include a formula for calculating Wright’s percentage of Eckhardt’s benefits. Consequently, Wright filed a motion for clarification of the decree.

The court granted Wright’s motion for clarification on August 20, 1998. The court found that the original division of property was not specific enough to effect a division of Eckhardt’s military retirement pay, and to allow the Defense Finance and Accounting Service to make a determination of what portion of Eck-hardt’s retirement pay should be given to Wright. The clarifying order provides a formula for calculating Wright’s portion of Eckhardt’s retirement pay. This order specifically provides that it does not affect the language in the original divorce decree regarding when payments are to begin— “on a monthly basis if, as, and when that retirement pay is due to be paid, such payments to begin when Troy Don Eck-hardt’s name is officially added to the Navy retirement list.”

On September 30, 1997, Eckhardt left active duty status and became a member of the Fleet Reserve, where he was subject to recall by the Navy for a period of ten years. As a member of the Fleet Reserve, Eckhardt received retainer pay in an amount equal to his future retirement pay. The Defense Finance and Accounting Service determined that Wright was entitled to receive one-half of Eckhardt’s retainer pay as part of Eckhardt’s retirement pay, and began making payments to Wright despite the fact that Eckhardt’s name had not yet been added to the “official” Navy retirement list.

Eckhardt subsequently filed a motion for clarification of the divorce decree contesting the payments to Wright, and arguing that Wright would not be entitled to receive her share of his retirement benefits until October 1, 2007, when his name would be added to the “official” Navy retirement list.

After an evidentiary hearing, the trial court entered a second clarification order on June 3, 1999. This order provides that the date that Troy Don Eckhardt’s name will be officially added to the Navy retirement fist is October 1, 2007. The order further provides that Wright had received payments to which she was not entitled, thus the order postpones the date on which her benefits were to begin in order to compensate for monies previously received.

Wright attacks this clarification order in three issues. Wright first contends that the trial court erred in finding that the divorce decree was not specific enough to be enforceable by contempt. In her second issue, Wright argues that the trial court erred as a matter of law by entering an order that substantively modified provisions for the division of community property. In her final issue, Wright argues that the trial court did not have jurisdiction to enter the clarifying order, and that the order was barred by res judicata.

Applicable Law

A trial court lacks the authority to change the property division in a final divorce decree. McGehee v. Epley, 661 S.W.2d 924, 926 (Tex.1983). A court may not amend, modify, alter, or change the division of property made or approved in the decree of divorce. Tex. Fam.Code Ann. § 9.007(a) (Vernon 1998). An order that alters the substantive division of property in a final divorce decree is “beyond the power of the divorce court and is unenforceable.” Tex. Fam.Code Ann. § 9.007(b). However, the Texas Family Code provides at least two circumstances in which the trial court may issue orders clarifying the decree.

Under section 9.006 of the Texas Family Code, the court may render “further orders to enforce the division of property made in the decree of divorce ... to assist in the implementation of or to clarify the prior order." Tex. Fam.Code Ann. § 9.006(a) (Vernon 1998). The court may specify more precisely the manner of effecting the property division previously made if the substantive division of property is not altered or changed. Id. at § 9.006(b). The trial court may also clarify the decree on a finding by the court that the original form of the division of property is not specific enough to be enforceable by contempt. Tex. Fam.Code Ann. § 9.008(b) (Vernon 1998).

A proper clarification order is consistent with the prior judgment and “merely enforces by appropriate order the controlling settlement agreement.” Young v. Young, 810 S.W.2d 850, 851 (Tex.App.—Dallas 1991, writ denied). If the decree is ambiguous, the trial court may make clarifications, but it lacks the authority to change the property division. McGehee, 661 S.W.2d at 926.

Whether the decree is ambiguous and in need of clarification is a question of law that we review de novo. Radx Corp. v. Demy, 658 S.W.2d 298, 301 (Tex.App.—Houston [1st Dist.] 1983, no writ); see Nat’l Union Fire Ins. v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex.1995)(whether a contract is ambiguous is a question of law for the court to decide). We determine the legal force and meaning of a marital property settlement agreement as we would any contract. See McGoodwin v. McGoodwin, 671 S.W.2d 880, 882 (Tex.1984). The determination of whether a contract is ambiguous is made by looking at the contract as a whole in light of the circumstances present when the parties entered the agreement. Nat’l Union, 907 S.W.2d at 520. If the written agreement is worded so that it can be given a certain or definite legal meaning or interpretation, then it is not ambiguous, and the court will construe the contract as a matter of law. Id.; Coker v. Coker, 650 S.W.2d 391, 393 (Tex.1983).

Analysis

In her first issue, Wright alleges that the trial court erred by finding that the divorce decree’s division of property was not specific enough to be enforceable by contempt. We disagree with Wright that the trial court made such an implied finding, and we do not agree that such a finding is required under section 9.006 of the Texas Family Code. Compare Tex. Fam.Code Ann. § 9.006 (court may enter enforcement or clarification orders regarding property division) with Tex. Fam.Code § 9.008 (court may enter clarification order on finding that the original division of property is not specific enough to be enforceable by contempt). We overrule Wright’s first issue.

In Wright’s second issue, she argues that the trial court erred by entering an order that modified the substantive division of property in the original decree. We agree. After reviewing the record and applicable law, we conclude that Wright was entitled to begin receiving her portion of Eckhardt’s retirement benefits when he left active duty status.

The language of the original divorce decree encompasses retainer pay by broadly awarding Wright one half of “all IRAs, employment retirement benefits, pension plans, and the like,” including Eckhardt’s “military retirement pay.”

The record shows that the Department of Finance and Accounting Service made the determination that retainer pay was part of Eckhardt’s retirement pay, and thus began making payments to Wright. Ronald Lee Gates, Lieutenant Commander of the United States Navy, testified that when an individual goes on Fleet Reserve, they are no longer on active duty, and are not “technically” retired, but that the distinction was a matter of semantics. Gates testified that “For all but perhaps specialists, the term retirement and fleet reserve is synonymous,” and that “96 percent of the United States Navy would classify transferring to the fleet reserve as being retired.” Gates confirmed that the amount of retainer pay and the amount of retirement pay is the same.

The original divorce decree expressly stated that the award to Wright was made in “accordance” and “compliance” with the Uniform Services Former Spouses’ Protection Act, which specifically provides that “retired pay” includes retainer pay. See 10 U.S .C. § 1408(a)(7) (1988); Sutherland v. Cobern, 843 S.W.2d 127, 130 n. 5 (Tex.App.—Texarkana 1992, writ denied)(retainer pay is included in the term retired pay). At the hearing on the motion for clarification, Eckhardt stipulated that retainer pay and retirement pay are identical under federal law.

Given the foregoing, we conclude that Wright was entitled to one-half of Eck-hardt’s retainer pay under the original divorce decree. Nevertheless, Eckhardt argues that, under the original divorce decree and initial clarifying order, Wright is not entitled to receive any of his military retirement benefits until his name has been added to the official Navy retirement list. In this regard, Eckhardt specifically testified that his name had not yet been added to the official Navy retirement list.

We disagree with Eckhardt’s interpretation of the divorce decree. The phrase providing for the inception of payments when Eckhardt’s name is added to the Navy retirement list is in apparent conflict with other provisions in the decree governing payments to Wright and provisions governing the substantive division of property. Where provisions in the decree appear to conflict, they should be harmonized if possible to reflect the intentions of the parties. Ogden v. Dickinson State Bank, 662 S.W.2d 330, 332 (Tex.1983). Furthermore, no single provision taken alone will be given controlling effect; rather, all provisions must be considered with reference to the whole instrument. Coker v. Coker, 650 S.W.2d 391, 393 (Tex.1983).

Eckhardt’s referenced language must be construed with other language in the decree regarding when Wright’s benefits were to be paid. Ogden, 662 S.W.2d at 332. The phrase in its entirety provides that payments are to be made “on a monthly basis, if, as, and when that retirement pay is due to be paid, such payments to begin when Troy Don Eckhardt’s name is officially added to the Navy retirement list.” The use of the phrase “if, as, and when” contemplates that benefits are to be owed to Wright when Eckhardt receives benefits. See Baxter v. Ruddle, 794 S.W.2d 761, 763 (Tex.1990); Hurley v. Hurley, 960 S.W.2d 287, 289 (Tex.App.—Houston [1st Dist.] 1997, no writ). Moreover, the decree provides that:

IT IS FURTHER ORDERED AND DECREED that ... Troy Don Eck-hardt is ORDERED to pay to Cecilia Ann Wright Cecilia Ann Wright’s interest in that pay each month as it is received by Troy Don Eckhardt and in no event later than the 5th day of each month in which Troy Don Eckhardt receives that retirement pay, beginning the 5th day of the first month in which the retirement pay is paid ... This paragraph applies only to the extent that the Secretary of the U.S. Navy or his designee fails to pay directly to Cecilia Ann Wright the monthly entitlement as awarded in this decree, or any portion of that monthly entitlement.

(emphasis added). This language further indicates that benefits are owed to Wright as they are received by Eckhardt.

Although Gates stated that he would interpret the phrase “when Troy Don Eck-hardt’s name is added to the [N]avy retirement list” to mean that Wright’s entitlement to his benefits would not inure until 2007, we note that Gates was examining this phrase in isolation, and that Gates further stated that he would defer to the Defense Finance and Accounting Service’s determination regarding Wright’s entitlement to Eckhardt’s retirement benefits.

Construing the decree in its entirety, we conclude that Wright is entitled to receive her share of Eckhardt’s retainer pay as it is received by Eckhardt. The phrase “when Troy Don Eckhardt’s name is officially added to the Navy retirement list” is not rendered meaningless by this interpretation, but rather applies specifically to those retirement benefits that Eckhardt will receive when his name is added to the retirement list. To construe the decree as Eckhardt suggests would give a single provision of the decree controlling effect. See Coker, 650 S.W.2d at 393.

We conclude that the original divorce decree, while unambiguous on its face, contained a latent ambiguity because it provided for inconsistent inception dates for Wright’s payments. The decree awarded Wright one-half of Eckhardt’s retainer pay, yet failed to provide for the payment of retainer pay, which would necessarily accrue before Eckhardt’s name was added to the official Navy retirement list. Nat'l Union, 907 S.W.2d at 520; see also Friendswood Dev. Co. v. McDade, 926 S.W.2d 280 (Tex.1996). The trial court was thus authorized to enter a clarification order under section 9.006 of the Texas Family Code. See Tex. Fam.Code § 9.006(a).

However, we agree with Wright that the clarifying order entered on June 3, 1999, impermissibly changes the substantive division of property made in the divorce decree. Wright was originally awarded one-half of Eckhardt’s military retirement pay. The clarification order divests Wright of her share of Eckhardt’s retainer pay, which is part of Eckhardt’s retirement pay. The order is thus beyond the power of the trial court, and is unenforceable. See Tex. Fam.Code Ann. § 9.07(b).

We sustain Wright’s second issue. Because we have sustained this issue, we need not address her third issue. See Tex.R.App. P. 47.1. We reverse the trial court’s order of June 3, 1999 which attempted to clarify the original divorce decree, and render judgment that all relief sought by Eckhardt in his motion to clarify is hereby denied.

The judgment is reversed and rendered.

      . The divorce decree provides that Cecilia Ann Eckhardt's name will change to Cecilia Ann Wright; however, the decree uses the names interchangeably.


source: Caselaw Access Project

author: Justice HINOJOSA.

license: Public Domain

text:
    Marie Lisette Garcia VEGA, Appellant, v. The STATE of Texas, Appellee.
    No. 13-98-044-CR.
    Court of Appeals of Texas, Corpus Christi.
    Nov. 9, 2000.
    Rehearing Overruled Dec. 29, 2000.

      Reynaldo M. Merino, Richard B. Gould, McAllen, for Appellant.
    Rene Guerra, Dist. Atty., Edinburg, Rolando Garza, Asst. Dist. Atty., Edinburg, for Appellee.
    Before Justices HINOJOSA, YÁÑEZ, and RODRIGUEZ.
   OPINION

Opinion by

Justice HINOJOSA.

Appellant, Marie Lisette Garcia Vega, was tried as an adult in Hidalgo County. A jury found her guilty of the offenses of capital murder, aggravated kidnapping, and aggravated robbery. Because the State did not seek the death penalty for the capital murder, the trial court assessed her punishment at life imprisonment. The jury assessed her punishment at 20 years imprisonment for the aggravated kidnapping and 20 years imprisonment for the aggravated robbery.

By eighteen issues, appellant contends the trial court erred by; (1) overruling her motion to suppress the statement she made to Chicago police because it was not taken in compliance with the Texas Juvenile Justice Code and, therefore, should have been excluded under article 38.23 of the Texas Code of Criminal Procedure; (2) overruling her motion to suppress the statement she made to Chicago police because it was not taken in compliance with Illinois law and, therefore, should have been excluded under article 38.23; (3) overruling her motion to suppress the evidence because the arrest warrant was not introduced into evidence and the State failed to present facts otherwise justifying her detention, thus violating the federal and state constitutions and article 38.23; (4) admitting evidence of extraneous offenses; and (5) giving the jury an inappropriate limiting instruction regarding the extraneous offenses. We reverse the trial court’s three judgments and remand the case to the trial court for a new trial.

A. BACKGROUND

In late December 1994, Starr County Sheriffs deputies were investigating the murder of Eleanor Ginder, a 56-year-old Hidalgo County resident who had been bound, gagged, beaten, strangled and stabbed. Ginder’s body was found abandoned in her van at a Starr County park. The deputies developed information implicating 16-year-old appellant and Jaime Nonn in the crime. After learning from Norm's mother that appellant and Nonn had gone to Chicago, Illinois, the deputies sent a teletyped message to the Chicago Police Department, advising that arrest warrants had been issued for both suspects for aggravated kidnapping and murder, and listing the address of Nonn’s aunt in Chicago where they were staying. Chicago police officers arrested appellant and Nonn at that location without incident.

Appellant was then processed into the Illinois juvenile justice system. Upon questioning by Chicago police officers, appellant gave a written statement containing the following warnings:

STATEMENT OF
Marie Garcia
Taken December 28, 1994 at 7:40 p.m.
Present ASA Michael Falagario
Detective Gregory Baiocchi # 21082
Youth Officer Linda Paraday # 16806
This statement taken regarding the fatal stabbing of Eleanor Ginder which occurred on December 20, 1994 at approximately 3:00 p.m. at Rio Grande City, Texas.
I understand that I have the right to remain silent and that anything I say can be used against me in a court of law. I understand that I have the right to talk to a lawyer and have him present with me during questioning, and if I cannot afford to hire a lawyer one will be appointed by the court to represent me before any questioning. Understanding these rights, I wish to give a statement.
I understand that although I am 16 years [sic] I will be tried as an adult. After being advised of her constitutional rights and stated that she understood each of those rights and after being advised and stating that she understood that Mike Falagario was an Assistant State’s Attorney, a lawyer, a prosecutor and not her lawyer, Marie Garcia agreed to give the following statement in summary and not word for word.

In the body of the statement, appellant described her participation in the planning and commission of the abduction, robbery and murder of Ginder. Appellant stated that after helping Nonn abduct and bind Ginder, she forced a rag into Ginder’s mouth and helped Nonn tape Ginder’s mouth and nostrils shut. Nonn further attempted to kill Ginder by twisting her neck and by striking her in the head with a shotgun. When Ginder still did not die, appellant fatally stabbed her in the throat and chest. Appellant did not give another statement after being extradited to Texas.

B. Motion to SuppRess

1. Standard of Review

A trial court’s ruling on a motion to suppress is generally reviewed for abuse of discretion. Oles v. State, 993 S.W.2d 103, 106 (Tex.Crim.App.1999); Maddox v. State, 682 S.W.2d 563, 564 (Tex.Crim.App.1985). The trial court is the sole trier of fact and judge of the weight and credibility of the evidence. State v. Ballard, 987 S.W.2d 889, 891 (Tex.Crim.App.1999). We must afford almost total deference to a trial court’s determination of facts supported by the record and its rulings on application of law to fact, or “mixed” questions of law, when those fact findings involve an evaluation of the credibility and demeanor of witnesses. Maestas v. State, 987 S.W.2d 59, 62 (Tex.Crim.App.1999); Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). The reviewing court may not disturb supported findings of fact absent an abuse of discretion. Ballard, 987 S.W.2d at 891. However, we review de novo mixed questions of law and fact that do not turn on an evaluation of credibility and demeanor. Oles, 993 S.W.2d at 106; Maestas, 987 S.W.2d at 62; Guzman, 955 S.W.2d at 89.

In this case, there is no dispute concerning the facts and circumstances surrounding appellant’s statement to the Chicago police. Therefore, because the trial court’s ruling on these matters did not involve an assessment of the credibility and demeanor of the witnesses, we will conduct a de novo review of the denial of appellant’s motion to suppress.

2. The Texas Exclusionary Rule

The Texas exclusionary rule is very broad in nature. Article 38.23(a) provides that:

[n]o evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.

Tex.Code CRIm.Proc.Ann. art.- 38.23(a) (Vernon Supp.2000). Appellant argues that because the conditions required by Texas law for the processing of juvenile suspects were not followed by the Illinois law enforcement officers, the trial court should have excluded her written statement under article 38.23(a).

This appears to be a case of first impression in the state of Texas. This case presents the issue of whether a sister state’s law enforcement officers must adhere to Texas’s scheme of processing juvenile offenders for a statement taken by those officers to be admissible against the juvenile in a Texas court.

S, Texas Juvenile Justice Code

By thirteen issues, appellant contends the trial court erred by admitting into evidence the statement she gave to Illinois law enforcement officers because it was not taken in conformance with title 3 of the Texas Family Code, otherwise known as the Texas Juvenile Justice Code. Tex.Fam. Code tit. 3 (Vernon 1996 and Supp.2000). Appellant asserts the trial court should have excluded the statement under article 38.23(a) of the Texas Code of Criminal Procedure. Specifically, appellant complains that Chicago police did not comply with the following sections of the Texas Family Code in effect at the time of the offenses:

Issue No. 1: § 52.02 — appellant was not taken without unnecessary delay to a place designated in this section.
Issue No. 2: § 52.025 — Chicago police failed to interview her in an approved juvenile processing office.
Issue No. 3: §§ 51.09 & 52.04 — Chicago police failed to have an authorized officer of the Texas juvenile court decide whether appellant should be further detained.
Issue No. 4: § 51.09 — appellant’s written statement does not contain all of the warnings required.
Issue No. 5: § 51.09 — appellant’s written statement does not contain a certificate by a magistrate that appellant knowingly, intelligently and voluntarily waived her rights before making the statement.
Issue No. 6: § 51.09 — appellant was never advised of her rights by a magistrate before being interrogated.
Issue No. 7: § 51.09 — appellant was never presented before a magistrate at any time before giving her statement.
Issue No. 8: §§ 51.12 & 52.025 — appellant was not detained in a facility approved by Texas authorities.
Issue No. 9: § 52.025 — appellant was detained for more than six hours before the conclusion of her statement.
Issue No. 10: § 51.09 — appellant’s statement was not signed in the presence of a magistrate with no law enforcement officer present.
Issue No. 11: § 51.09 — appellant’s statement was signed in the presence of at least one law enforcement official who was armed.
Issue No. 12: § 51.12 — appellant was detained in an area where adults arrested for or charged with a crime are detained.
Issue No. 18: § 52.025 — appellant was improperly left unattended in the interview room.

4- Which State’s Juvenile Processing Law Should Apply?

Appellant contends that the admissibility of her Illinois statement should be evaluated under article 38.23(a) by determining whether her statement was taken under the conditions mandated by chapters 51 and 52 of the Texas Family Code, which specify how a Texas juvenile suspect must be processed. Appellant argues that because her written statement was not procured in conformance with the Texas Family Code, it should be excluded under article 38.23(a). Appellant does not allege that her statement was obtained in violation of any constitutional right, or that it was involuntary.

The State contends that exclusion of appellant’s statement is not required by article 38.23(a) because appellant was subject to Illinois law, not Texas law, when she was arrested and processed by Illinois law enforcement officers, and that appellant’s statement was taken in accordance with Illinois law.

Under which standard should the admissibility of appellant’s statement be evaluated? This is a classic conflicts-of-law question. For substantive questions of law, Texas has adopted the “most significant relationship” approach, using the factors set forth in Restatement (Second) of Conflict of Laws: Choice of Law PRINCIPLES § 6 (1988). This approach requires the weighing of public policy concerns and the conflicting interests of the different jurisdictions in the outcome of the matter in controversy. See Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 420-21 (Tex.1984); Gutierrez v. Collins, 583 S.W.2d 312, 318 (Tex.1979); Seth v. Seth, 694 S.W.2d 459, 462 (Tex.App.—Fort Worth 1985, no writ).

The rule is different, however, when the matter at issue is procedural in nature. “One of the basic tenets of conflict-of-law resolution ... is that the law of the forum in which the judicial proceeding is held determines the admissibility of evidence .” Davidson v. State, 25 S.W.3d 183, 185 (Tex.Crim.App.2000); see also Restatement (Second) of Conflict of Laws: Evidence § 138 (1988)(“The local law of the forum determines the admissibility of evidence ... ”). In Davidson, the defendant joined a traveling carnival and fled to Canada while he was being investigated in Texas for sexually abusing his two minor daughters. Davidson, 25 S.W.3d at 184. When Davidson attempted to re-enter the United States at a border crossing in Montana, a U.S. Customs officer performed a routine check and found that an arrest warrant for Davidson was pending in Tarrant County, Texas. Id. The Customs officer detained Davidson, warned him appropriately and interrogated him. Id. Davidson voluntarily made numerous statements implicating himself in the sexual abuse of his daughters. Id. The customs officer did not make a recording of the oral statement as required by article 38.22 of the Texas Code of Criminal Procedure, but in accordance with Montana and federal law, he wrote a report relating the contents of the statement. Id. This report was admitted into evidence at Davidson’s trial, and he was convicted of aggravated sexual assault and indecency with a child. Id. The convictions were upheld by the Fort Worth Court of Appeals, but the Texas Court of Criminal Appeals reversed the court of appeals. Id.

The court of criminal appeals held that the rule set forth in article 38.22 is proee-dural in nature, and must be strictly followed in a Texas judicial proceeding. Id. at 185-86. Because the requirements of article 38.22 were not followed, the statement was inadmissible in a Texas court, even though it was obtained by a federal agent in Montana in accordance with both Montana and federal law:

Considerations of efficiency and convenience require that questions relating to the admissibility of evidence, whether oral or otherwise, should usually be determined by the local law of the forum; the trial judge must make most eviden-tiary decisions with dispatch if the trial is to proceed with reasonable celerity, and should therefore generally apply the local evidentiary law of his own state.

Id. at 185-86 (citing Restatement (Second) of Conflict of Laws: Evidence § 188 cmt. a (1988)). The court of criminal appeals explicitly held that article 38.23(a) is substantive in nature, not procedural. Id. n. 4. The court stated:

While both [articles] 38.22 and 38.23 govern when certain evidence shall and shall not be admitted at trial, they do so in very different terms. [Article] 38.23 mandates exclusion of evidence when it has been obtained in contravention of legal or constitutional rights. As such, it is properly identified as substantive in nature, as it is an attempt to provide a remedy for a violation of those rights [citations omitted]. In contrast, [article] 38.22 merely prescribes the various requirements that must be satisfied before a statement made by an accused as a result of custodial interrogation will be admitted against him/her at trial. That such requirements are not met does not mean that the statement was necessarily obtained as a result of any legal or constitutional violation, and [article] 38.22 mandates exclusion of such statements by its own terms and without reference to [article] 38.23. As such, it more closely resembles our various rules of evidence which determine the admissibility of contents of writings, recordings, and photographs. See TexR.Evid. 1001-1009. Thus [article] 38.22 is more appropriately characterized as a procedural evidentiary rule.

Id.; see also Restatement (Second) of Conflict of Laws: Evidence § 138 cmt. c (1988) (“On occasion, a rule phrased in terms of evidence may in fact be a rule of substantive law. In such a case, the otherwise applicable law will be applied.”).

As a juvenile suspect, appellant was entitled to the procedural protection that the Texas Juvenile Justice Code provides. Section 51.09, which specifies the procedural conditions under which a statement made by a juvenile as a result of custodial interrogation will be admissible, is especially relevant in this case. The version of section 51.09 in effect at the time of these offenses provides:

§ 51.09. Waiver of Rights
(a) Unless a contrary intent clearly appears elsewhere in this title, any right granted to a child by this title or by the constitution or laws of this state or the United States may be waived in proceedings under this title if:
(1) the waiver is made by the child and the attorney for the child;
(2) the child and the attorney waiving the right are informed of and understand the right and the possible consequences of waiving it;
(3) the waiver is voluntary; and
(4) the waiver is made in writing or in court proceedings that are recorded.
(b) Notwithstanding any of the provisions of Subsection (a) of this section, the statement of a child is admissible in evidence in any future proceeding concerning the matter about which the statement was given if:
(1)when the child is in a detention facility or other place of confinement or in the custody of an officer, the statement is made in writing and the statement shows that the child has at some time prior to the making thereof received from a magistrate a warning that:
(A) the child may remain silent and not make any statement at all and that any statement the child makes may be used in evidence against the child;
(B) the child has the right to have an attorney present to advise the child either prior to any questioning or during the questioning;
(C) if the child is unable to employ an attorney, the child has the right to have an attorney to counsel with the child prior to or during any interviews with peace officers or attorneys representing the state;
(D) the child has the right to terminate the interview at any time;
(E) if the child is 15 years of age or older at the time of the violation of a penal law of the grade of felony the juvenile court may waive its jurisdiction and the child may be tried as an adult;
(F) the child may be sentenced to commitment in the Texas Youth Commission with a transfer to the institutional division of the Texas Department of Criminal Justice for a term not to exceed 30 years if the child is found to have engaged in delinquent conduct, alleged in a petition approved by a grand jury, that included:
(1) murder;
(2) capital murder;
(3) aggravated kidnapping;
(4) aggravated sexual assault;
(5) deadly assault on a law enforcement officer, corrections officer, court participant or probation personnel; or
(6) attempted capital murder; and
(G) the statement must be signed in the presence of a magistrate by the child with no law enforcement officer or prosecuting attorney present, except that a magistrate may require a bailiff or a law enforcement officer if a bailiff is not available to be present if the magistrate determines that the presence of the bailiff or law enforcement officer is necessary for the personal safety of the magistrate or other court personnel, provided that the bailiff or law enforcement officer may not carry a weapon in the presence of the child. The magistrate must be fully convinced that the child understands the nature and contents of the statement and that the child is signing the same voluntarily. If such a statement is taken, the magistrate shall sign a written statement verifying the foregoing requisites have been met.
The child must knowingly, intelligently and voluntarily waive these rights prior to and during the making of the statement and sign the statement in the presence of a magistrate who must certify that he has examined the child independent of any law enforcement officer or prosecuting attorney, except as required to ensure the personal safety of the magistrate or other court personnel, and has determined that the child understands the nature and contents of the statement and has knowingly, intelligently and voluntarily waived these rights.
(2) it be made orally and the child makes a statement of facts or circumstances that are found to be true, which conduct tends to establish his guilt, such as the finding of secreted or stolen property, or the instrument with which he states the offense was committed.
(3) the statement was res gestae of the delinquent conduct or the conduct indicating a need for supervision or of the arrest.
(c) A warning under Subsection (b)(1)(E) or Subsection (b)(1)(F) of this section is required only when applicable to the facts of the case. A failure to warn a child under Subsection (b)(1)(E) of this section does not render a statement made by the child inadmissible unless the child is transferred to a criminal district court under Section 54.02 of this code. A failure to warn a child under Subsection (b)(1)(F) of this section does not render a statement made by the child inadmissible unless the state proceeds against the child on a petition approved by a grand jury under Section 53.045 of this code.
(c) In addition to the warnings that a child must receive under Subsection (b)(1) of this section for the child’s statement to be admissible in evidence, the child must also receive a warning from the magistrate that the child may be sentenced to commitment in the Texas Youth Commission with a transfer to the institutional division of the Texas Department of Criminal Justice for a term not to exceed 40 years if the child is found to have engaged in delinquent conduct, alleged in a petition approved by a grand jury, that included:
(1) murder (Section 19.02, Penal Code);
(2) capital murder (Section 19.03, Penal Code);
(3) aggravated kidnapping (Section 20.04, Penal Code);
(4) aggravated sexual assault (Section 22.021, Penal Code);
(5) deadly assault on a law enforcement officer, corrections officer, or court participant (Section 22.03, Penal Code); or
(6) criminal attempt (Section 15.01, Penal Code) if the offense attempted was capital murder (Section 19.03, Penal Code).

Act of May 22, 1991, 72nd Leg., ch. 429, § 1; Act of May 24, 1991, 72nd Leg., ch. 557, § 1; Act of May 27, 1991, 72nd Leg., ch. 593, § 1 (current version at Tex.Code CeimProcAnn. §§ 51.09, 51.095 (Vernon Supp.2000)).

The court of criminal appeals has recently reaffirmed that law enforcement personnel must strictly follow the requirements of the family code when dealing with juvenile suspects. The court stated:

The Legislature has set forth very specific actions which a law enforcement officer must take when arresting a juvenile. We are aware of the disturbing increase in juvenile crime in our state, and we are sympathetic to law enforce-merit’s efforts to deal with violent juvenile offenders. Nevertheless, we must not ignore the Legislature’s mandatory provisions regarding the arrest of juveniles. We informed the citizenry, a decade ago in a unanimous opinion, of the Legislature’s clear intent to reduce an officer’s impact on a juvenile in custody. Today we remind police officers of the Family Code’s strict requirements.

Le v. State, 993 S.W.2d 650, 655 (Tex.Crim.App.1999) (holding a juvenile murder suspect’s confession inadmissible because of failure of police to process him in accordance with family code provisions); see In the Matter of R. R., 931 S.W.2d 11, 14 (Tex.App.—Corpus Christi 1996, no pet.) (police officers, courts and others involved with juveniles are bound to comply with the detailed and explicit procedures set out in the Family Code); accord In the Interest of D.Z., 869 S.W.2d 561, 564 (Tex.App.—Corpus Christi 1993, writ denied).

In her third, fourth, fifth, sixth, seventh, tenth, and eleventh issues, appellant contends the trial court erred in not excluding her Illinois statement because the Chicago police did not comply with section 51.09 of the Texas Family Code. Section 51.09 functions for juveniles in the same manner as article 38.22 functions for adults. Section 51.09 sets out the procedural requirements for the admissibility of statements given by juveniles during custodial interrogation. Because section 51.09 is the functional equivalent for juveniles of article 38.22, it should likewise be treated as procedural in nature. Thus, under the Davidson rationale, we conclude section 51.09 is a procedural rule that must be strictly applied by Texas courts in determining the admissibility of a juvenile’s statement.

In the instant case, the State concedes that the Chicago police did not follow the provisions of chapter 51 of the Texas Family Code. Therefore, in accordance with the Davidson rationale, we hold the trial court erred in admitting appellant’s statement into evidence.

C. HaRm Analysis

Appellant has not urged any constitutional error. She has merely asserted a statutory error based on the provisions of the Juvenile Justice Code. When non-constitutional error is found, the appellate court must disregard any error that does not affect substantial rights. Tex.R.App.P. 44.2. A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury’s verdict. King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997). A criminal conviction should not be overturned for non-constitutional error if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect. Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App.1998); Rios v. State, 982 S.W.2d 558, 561 (Tex.App.—San Antonio 1998, pet. ref'd). The United State Supreme Court has construed the nearly identical federal harmless error rule as follows:

If, when all is said and done, the [court’s] conviction is sure that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand.... But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.

O’Neal v. McAninch, 513 U.S. 432, 437-38, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995)(em-phasis in original); see Cavazos v. State, 969 S.W.2d 454, 457 (citing Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557). “Grave doubt” means “in the judge’s mind, the matter is so evenly balanced that he feels himself in virtual equipoise as to the harmlessness of the error.” O’Neal, 513 U.S. at 435, 115 5.Ct. 992.

The impact of a written confession is undeniably very strong; as the Austin Court of Appeals has noted in a recent case involving the erroneous admission of a juvenile’s written statement,

[bjecause of the potentially dramatic effect of a written confession on the decision-making process of a jury, this Court has grave doubts that the introduction of appellant’s written statement had no effect on the outcome of the proceeding.

In the Matter of C.R., 995 S.W.2d 778, 786-87 (Tex.App.—Austin 1999, pet. denied).

While error from the admission of a confession may be harmless in light of independent evidence of guilt in a case, Sterling v. State, 800 S.W.2d 513, 520 (Tex.Crim.App.1990), we cannot say with fair assurance, after examining the entire record, that the erroneous admission of appellant’s Illinois confession did not influence the jury, or had but a slight effect. Appellant gave a statement only to the Chicago police. She did not give another statement after she was returned to Texas. At trial, appellant testified that Nonn alone planned the robbery, abduction and murder, and that she did not willingly participate in the crimes. She testified she was too frightened of Nonn and too dependent on him to escape when she had the chance, and that she had agreed to take responsibility for Nonn’s crimes if they were caught.

The only forensic evidence tying appellant to the crime was one of her fingerprints on a plastic box found in the van. Her fingerprints were not found on the shotgun or the knife, nor were any bloodstains or any of the victim’s hairs found on appellant’s clothing or boots. Although there was eyewitness testimony as to appellant’s participation with Nonn in a shopping spree at two Starr County stores using the victim’s Discover credit card, and appellant’s participation in the pawning of new electronic items purchased with the card, there was little or no substantive evidence admitted at appellant’s trial linking her specifically to the crimes of which she was convicted, other than her Illinois statement. Given the acknowledged dramatic impact of a written confession, we cannot say with fair assurance that the erroneous admission of appellant’s statement had no influence on the jury, or but a slight effect.

We hold the trial court abused its discretion by admitting appellant’s Illinois statement into evidence. We sustain appellant’s third, fourth, fifth, sixth, seventh, tenth and eleventh issues. Because of our disposition of these issues, it is unnecessary to address appellant’s remaining issues. See Tex.R .App.P. 47.1.

We reverse all three judgments of the trial court and remand for a new trial.

      . The trial court signed three separate judgments in this case. The judgment in Cause No. CR-0561-95-A (Count One) is for the aggravated robbery; the judgment in Cause No. CR-0561-95-A (Count Two) is for the aggravated kidnapping; and the judgment in Cause No. CR-0561-95-A (Count Three) is for the capital murder.

      . Article 38.22, section 3(a) of the code of criminal procedure provides:
      Sec. 3. (a) No oral or sign language statement of an accused made as a result of custodial interrogation shall be admissible against the accused in a criminal proceeding unless:
      (1) an electronic recording, which may include motion picture, video tape, or other visual recording, is made of the statement;
      (2) prior to the statement but during the recording the accused is given the warning in Subsection (a) of Section 2 above and the accused knowingly, intelligently, and voluntarily waives any rights set out in the warning;
      (3) the recording device was capable of making an accurate recording, the operator was competent, and the recording is accurate and has not been altered;
      (4) all voices on the recording are identified; and
      (5) not later than the 20th day before the date of the proceeding, the attorney representing the defendant is provided with a true, complete, and accurate copy of all recordings of the defendant made under this article.
      Tex.Code Crim.Proc.Ann. art. 38.22, § 3(a) (Vernon Supp.2000).

      . The State never attempted to admit appellant's statement on this basis, choosing to rely solely on its admissibility under subsection (b)(1).

      . There were two versions of subsection (c) enacted by the Texas Legislature; both versions were in effect at the time of these offenses.

      . Comer v. State, 776 S.W.2d 191, 194-95 (Tex.Crim.App. 1989).

      . Appellant’s co-defendant, Nonn, did not testify at appellant’s trial, but defense counsel offered the statement Nonn gave to Chicago police into evidence. Nonn’s statement is nearly identical to appellant's statement. Nonn implicated appellant in the planning and commission of the crime and said that appellant administered the fatal stabbing.
      We note that appellant’s counsel offered Nonn's statement for the limited purpose of showing "what was said,” not for the truth of the statement. The statement was admitted on this limited basis without objection from the State, and the jury was so instructed. We conclude that Nonn’s statement is not substantive evidence. See Tex.R.Evid. 105.


author: Justice DORSEY.

text:
    In re Charles T. PATILLO.
    No. 13-00-575-CV.
    Court of Appeals of Texas, Corpus Christi.
    Nov. 9, 2000.

      William A. Dudley, Corpus Christi, for Relator.
    Ann E. Coover, Coover & Coover, Corpus Christi, Real Party.
    Stephanie McCullough, Corpus Christi, pro se.
    Before Chief Justice SEERDEN and Justices DORSEY and RODRIGUEZ.
   OPINION

Opinion by

Justice DORSEY.

Since his divorce from Stephanie McCullough in 1990, Charles Patillo has accumulated well over $43,000.00 in child support arrears for the support of their two daughters. He was ordered to pay the amount of $700.00 per month by the 117th District Court of Nueces County. Following a lengthy series of legal proceedings, Patillo was incarcerated for various violations of the court’s orders relating to payment of child support. His confinement commenced on July 6, 2000. He was sentenced to be confined for a period of ninety days and to remain confined thereafter until he paid certain amounts. Patillo seeks issuance of a writ of habeas corpus.

Although Patillo has provided this Court with numerous legal documents emanating from the lengthy legal history of his ex-wife’s attempts to collect child support from him, our discussion is limited to the two orders that directly bear upon the issues raised in this habeas corpus proceeding. Those are the Contempt Order, signed on June 11, 1999, and the Commitment Order, signed on September 7, 2000. The law is well settled that due process requires a court, before imprisoning a person for violating an earlier order, to sign both a written judgment or order of contempt and a written commitment order. Ex parte Shaklee, 939 S.W.2d 144, 145 (Tex.1997). The contempt order must clearly state in what respect the court’s earlier order has been violated and must clearly specify the punishment imposed by the court. Id. A commitment order is the warrant, process, or order by which a court directs a ministerial officer to take custody of a person. Ex parte Hernandez, 827 S.W.2d 858 (Tex.1992). The form of a commitment order is not important, but the substance of one is. Id.

This case has become convoluted due to the numerous times the parties appeared in court to resolve this matter, resulting in numerous motions for enforcement, contempt orders, contempt sentences and commitment orders. For the sake of clarity, we only mention the relevant portions of each order.

The Contempt ORDER

The Contempt Order was signed by the trial court on June 11, 1999. That Order was the result of a hearing held a few months before the Order was signed. At that hearing, both Charles and Stephanie appeared with counsel, and agreed to the terms contained in the Contempt Order. Charles was found to be in contempt for failing to make twenty-nine child support payments of $350.00 each. The court found that he was able to pay those amounts. The court also found that he failed to pay uninsured medical expenses totaling $1,021.78.

The Order also contained a confirmation of all child support arrears to date. The total amount was $44,081.29. The court also assessed attorney’s fees and costs against Patillo in that order.

The Order also contained a criminal contempt and a civil contempt sentence for the violations. The criminal sentence required Patillo to serve ninety days for each violation. The civil sentence required him to remain incarcerated until he made the following payments:

(1) $44,081.29 for the entire amount of child support arrearage;
(2) $1,021.78 for uninsured medical expenses;
(3) $298.58 for costs; and
(4)$3,000.00 for attorney’s fees.

Finally, the Order suspended execution of his jail sentences on the condition that he make timely child support payments, as previously ordered, for the next three months. The court scheduled a compliance hearing for three months later to determine whether he had, indeed, made those payments.

We find that certain portions of that Order are void. This Court will issue a writ of habeas corpus if the contempt order is void because it deprives the relator of liberty without due process of law or because it was beyond the power of the court to issue. Ex parte Swate, 922 S.W.2d 122, 124 (Tex.1996); Ex parte Barnett, 600 S.W.2d 252, 254 (Tex.1980). A judgment is void if it is apparent that the court rendering the judgment had no jurisdiction over the parties, no jurisdiction over the subject matter, no jurisdiction to render the judgment, or no capacity to act as a court. In re Wiese, 1 S.W.3d 246, 250 (Tex.App.—Corpus Christi 1999, orig. proceeding). However, the void provisions of that order do not make the entire order void because the sentences are listed separately and capable of being severed from the valid portions of the order. Where a trial court lists each failure to comply with an order separately and assesses a separate punishment for each failure to comply, only the invalid portion of the contempt order is void and the remainder of the contempt order is enforceable.

We find no infirmity in the provisions of the Order assessing ninety days incarceration for criminal contempt. Patil-lo was found in contempt for twenty-nine separate failures to pay child support and for faffing to pay uninsured medical expenses as required by the divorce decree. He was sentenced to ninety days for each separate violation, to be served concurrently. That sentence is valid.

However, the sentence contained in the Order for civil contempt contains some problems. First, the amount of child support arrearage is incorrect. Patillo may only be confined until he pays the amount of arrearage he was actually held in contempt for failing to pay, which totaled $10,150.00. Accordingly, we reform the Contempt Order to reflect that amount. Similarly, Patillo was not actually held in contempt for failing to pay costs and attorney’s fees, but was merely ordered to pay them in the Contempt Order. Thus, we strike the portions of the Order requiring him to remain incarcerated until he pays those amounts.

After striking the void provisions, the Contempt Order is reformed to hold Patil-lo in contempt for failing to pay twenty-nine child support payments, $10,150.00, and for failing to pay $1,021.78 in uninsured medical expenses. It sentences him to ninety days in jail, and to remain in jail until he pays $10,150.00 in child support arrears and $1,021.78 in uninsured medical expenses.

The Commitment ORder

Although his attorney appeared and stated to the court that Patillo received notice of the hearing, Patillo did not appear at the compliance hearing scheduled in the Contempt Order. Accordingly, after a capias was issued for his arrest, Patillo was again brought before the court. The court revoked the suspension of his sentence under the Contempt Order. The court issued a new order which committed Patillo to jail. We refer to this order as the Commitment Order.

The Commitment Order contained findings that Patillo failed to pay his child support payments due in May and June of 1999 although he had the ability to pay them. Those were the payments that suspension of his sentence was conditioned upon. The Commitment Order also committed Patillo to the custody of the sheriff and sentenced him to ninety days confinement and to remain confined until he pays:

(1) the child support payments that he failed to pay in May and June of 1999;
(2) $44,081.29 for child support arrears, reduced by certain payments made on his behalf by the IRS Intercept;
(3) $1,021.78, for uninsured medical expenses;
(4) $298.58 for costs; and
(5) $3,000.00 for attorney’s fees.

We have already held that the terms requiring Patillo to be confined until he pays costs and attorney’s fees are invalid because he has not been held in contempt for fading to pay those amounts. Accordingly, we strike that portion of the Commitment Order to conform with the Contempt Order.

Likewise, we reform the amount of ar-rearage to conform with the amount reflected in the modified Contempt Order. The proper amount of arrears is $10,-150.00. Additionally, we strike the portion of the Commitment Order relating to the credits for payments made by the IRS. Those credits should be applied to the entire amount of arrearage, and not to the amount that Patillo was held in contempt for failing to pay.

Finally, we strike the term of the Commitment Order requiring Patillo to remain incarcerated until he pays the payments that were due in May and June of 1999. Again, Patillo was not found in contempt for failing to pay those payments, but suspension of his prior contempt sentence was conditioned upon his making those payments. Therefore, that term of the Commitment Order impermissibly imposes a greater sentence than was imposed in the Contempt Order. Swate, 922 S.W.2d at 124. A contemnor’s post-contempt conduct cannot be used to subject him to additional punishment. Id.

After striking the appropriate portions, we are left with a Commitment Order that conforms exactly with the Contempt Order. Accordingly, the Commitment Order is reformed to read that Patillo should be held for ninety days, and thereafter until he pays $10,150.00 in child support arrears and $1,021.78 for uninsured medical expenses. We deny his request for habeas corpus relief, but reform the Contempt and Commitment Orders to reflect the appropriate amount of child support arrear-age and to strike the void provisions. See Balderas, 804 S.W.2d at 264 (where, in habeas corpus proceeding, court of appeals reformed commitment order to reflect a 10-day sentence in place of a 175-day sentence). We find no merit in Patillo’s remaining challenges to the validity of the orders.

      . See Ex parte Hudson, 917 S.W.2d 24, 26-27 (Tex.1996); Ex parte Carey, 704 S.W.2d 13, 14 (Tex.1986); Ex parte Ramzy, 424 S.W.2d 220, 225-26 (Tex.1968); In re Aarons, 10 S.W.3d 833, 834 (Tex.App.—Beaumont 2000, orig. proceeding); Ex parte Arnold, 926 S.W.2d 622, 625 (Tex.App.—Beaumont 1996, orig. proceeding); Ex parte Balderas, 804 S.W.2d 261, 264 (Tex.App.—Houston [1st Dist.] 1991, orig. proceeding); Ex parte Linder, 783 S.W.2d 754, 758 (Tex.App.—Dallas 1990, orig. proceeding); Ex parte Myrick, 474 S.W.2d 767, 771 (Tex.Civ.App.—Houston [1st Dist.] 1971, orig. proceeding).

      . Actually, the Commitment Order was clarified on Motion for New Trial. We read the two Orders together for purposes of this opinion.

      . Patillo has also asserted that he is unable to pay the amounts ordered and that he failed to receive notice of a critical hearing. However, we have found no evidence in the record to support either contention, and refuse to grant relief on either basis.


author: Justice GRANT.

text:
    TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant, v. Joseph Reil LaFLEUR, II, Appellee.
    No. 06-00-00011-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted July 13, 2000.
    Decided Nov. 15, 2000.

      Louis A. Beaty, Timothy K. Colvin, Texas Dept, of Public Safety, Austin, for appellant.
    Larry C. Hunter, Vidor, for appellee.
    Before CORNELIUS, C.J., GRANT and ROSS, JJ.
   OPINION

Opinion by

Justice GRANT.

The Texas Department of Public Safety (DPS) appeals from an adverse ruling by the County Court at Law of Orange County which ruled that the DPS did not have the authority to revoke the concealed handgun permit of Joseph Reil LaFleur, II.

Procedural History

1) LaFleur was granted a concealed handgun permit (No. CHL 01008105) by the DPS on March 21,1996;

2) on August 1, 1997, LaFleur appeared in the County Court at Law of Orange County on a charge of impersonating a public servant, which was, at that time, a Class A misdemeanor. He received a sentence of six months’ probation and paid $202 in court costs;

3) the DPS notified LaFleur by letter dated March 9, 1998, that his concealed handgun permit would be revoked;

4) as permitted by statute, LaFleur appealed to the Justice Court of Orange County. The justice court ruled in favor of LaFleur, ruling that the DPS could not revoke his concealed handgun permit;

5) the DPS appealed this ruling to the County Court at Law of Orange County, filing its original petition and commencing this case;

6) after a hearing, the County Court at Law denied the DPS appeal. The DPS requested Findings of Fact and Conclusions of Law, which were signed by the court on October 25,1999; and

7) the DPS timely filed its Notice of Appeal.

The Question of Mootness

Counsel for LaFleur filed a letter after oral argument, which we will treat as a motion to dismiss, contending that the issue before this court was moot because LaFleur’s concealed handgun permit had expired. In response the DPS does not contest the expiration of the handgun permit, but contends that the expiration of the permit does not make the issue moot because the revocation of his permit affects the time in which he would be eligible to reapply for a permit.

“A case becomes moot when it appears that one seeks to obtain relief upon some alleged controversy when in reality none exists, or upon some matter which, when granted, cannot have any practical legal effect upon a then existing controversy.” Pope v. City of Dallas, 636 S.W.2d 244, 247 (Tex.App.—El Paso 1982, no writ) (emphasis added); see also Kolsti v. Guest, 576 S.W.2d 892, 893 (Tex.Civ.App.—Tyler 1979, no writ); Parks v. Francis, 202 S.W.2d 683, 686 (Tex.Civ.App.—Fort Worth 1947, no writ).

LaFleur has not reapplied for a handgun permit. Thus, there is no existing justiciable controversy at this time. A justiciable controversy must involve a dispute of something more than a hypothetical or abstract character. LaFleur’s license has expired, and no application for a new license is pending. No actual controversy now existing between the parties; the issue is moot. See Nat’l Collegiate Athletic Ass’n v. Jones, 1 S.W.3d 83, 86 (Tex.1999).

There are, however, exceptions in which an appellate court may review a case after it becomes moot if the appeal challenges certain conduct that is of such short duration that the appellant cannot obtain review before the issue becomes moot. See Blum v. Lanier, 997 S.W.2d 259, 264 (Tex.1999). This exception to the mootness doctrine is referred to as “capable of repetition, yet evading review.” It additionally requires that there be a reasonable expectation that the same action will occur again if the issue is not considered. Some courts of appeals in Texas have required that such reasonable expectation be with respect to the same complaining party. See In re Cornyn, 27 S.W.3d 327 (Tex.App.—Houston [1st Dist.] 2000, no pet. h.). The United States Supreme Court required two elements for this exception: (1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration and (2) there should be a reasonable expectation that the same complaining party would be subjected to the same action again. Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975).

The Texas Supreme Court in the Blum decision did not refer to the second requirement set out by the United States Supreme Court in Weinstein. However, it did state, “Blum or any other signatory to the petition” could again be affected by the disputed conduct of the defendant. Blum, 997 S.W.2d at 264 (emphasis added). Because Blum was the only complaining party, the court’s language suggested a recognition that the complained-of conduct could occur again with respect to other individuals who had signed the petition but who were not parties to the suit.

In Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1971), the United States Supreme Court addressed the question of mootness. The court stated that the usual rule in federal cases is that an actual controversy must exist at stages of appellate or certiorari review, not simply at the date the action was initiated. However, the Court goes on to say that when a pregnancy is a significant fact in the litigation, the normal 266 day human gestational period is so short that the pregnancy will come to term before the usual appellate process is complete. Thus, an appellate process would be effectively denied. The Court stated, “Our law should not be that rigid.... Pregnancy provides a classic justification for a conclusion of nonmootness. It truly could be ‘capable of repetition, yet evading review.’ ” Roe, 410 U.S. at 125, 93 S.Ct. 705 (citations omitted). This doctrine might well be applied to the present case.

Another exception to the mootness doctrine has been addressed in Texas. This is called the “public interest” exception. This exception allows appellate review of a question of considerable public importance if that question is capable of repetition between either the same parties or other members of the public, but for some reason evades appellate review. See Univ. Interscholastic League v. Buchanan, 848 S.W.2d 298 (Tex.App.—Austin 1993, no writ); see also Nueces County v. Whitley Trucks, Inc., 865 S.W.2d 124 (Tex.App.—Corpus Christi 1993), overruled on other grounds, 886 S.W.2d 766 (Tex.1994).

We believe that the present case falls within both of these categories. It is possible that future parties could find themselves in the same position as the DPS and LaFleur due to the expiration of a license prior to the completion of an appeal. It is also probable that this ruling would be of considerable public interest because of the large number of people licensed to carry guns in Texas.

We conclude that in spite of the expiration of LaFleur’s license, we should proceed to examine the merits of this case.

Issue on Appeal

The sole issue raised by the DPS is whether the applicable statute permits the DPS to revoke a concealed handgun permit because of a conviction on a Class A misdemeanor which occurs subsequent to the granting of the permit.

The Texas concealed handgun licensing statute is now found in Tex.Gov’t Code Ann. §§ 411.171-411.205 (Vernon Supp.2000). Relevant to this appeal are the following sections:

TexGov’t Code Ann. § 411.186(a)(3):
(a) A license may be revoked under this section if the license holder:
(3) subsequently becomes ineligible for a license under Section 411.172.

Act of May 8, 1997, 75th Leg., R.S., ch. 165, § 10.01(a), 1997 Tex. Gen. Laws 404, amended by, Act of April 23, 1999, 76th Leg., R.S., ch. 62, § 9.09, 1999 Tex. Gen. Laws 317.

TexGov’t Code Ann. § 411.172(a)(8):
(a) A person is eligible for a license to carry a concealed handgun if the person:
(8) has not, in the five years “preceding the date of application, been convicted of a Class A or Class B misdemeanor or an offense under Section 42.01, Penal Code.

(Emphasis added).

LaFleur argues that both the justice court and the county court at law correctly ruled in his favor, because LaFleur’s conviction did not occur “in the five years preceding the date of application,” but rather occurred subsequent to his application for a handgun permit, and, therefore, may not constitute a basis to revoke his permit. Both of the courts below did apply the literal language of the act. The act strictly speaks to the ineligibility of an applicant to obtain a license if a misdemeanor conviction occurred during the five years preceding the date of the application. Thus, the language of the statute does not address such a conviction when it occurs after the application. However, we are required to ascertain the legislative intent of a statute.

Analysis

Matters of statutory interpretation are questions of law, over which the appellate court exercises de novo review. Texas Dep’t of Pub. Safety v. Thomas, 985 S.W.2d 567, 569 (Tex.App.—Waco 1998, no pet.). An appellate court’s task when construing a statute is to determine the intent of the Legislature. Nat'l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex.2000); Albertson’s, Inc. v. Sinclair, 984 S.W.2d 958, 960 (Tex.1999); Barshop v. Medina County Underground Water Conservation Dist., 925 S.W.2d 618, 629 (Tex.1996). This analysis begins with an examination of the plain and common meaning of the language itself. Albertson’s, Inc., 984 S.W.2d at 960; Ex parte Evans, 964 S.W.2d 643, 646 (Tex.Crim.App.1998). In the present case, there is no ambiguity. The language of the Act is clear. Where the application of such plain meaning would lead to an absurd result that the Legislature could not have possibly intended, however, the courts should not apply the statute literally and may consider other textual sources. Texas Dep’t of Pub. Safety, 985 S.W.2d at 570; see also Tex Gov’t Code Ann. § 311.023 (Vernon 1998). Although such a role by the court sometimes leads to the contention that the courts are usurping the authority of the Legislature, we are bound by statute and precedent to consider the absurd-result doctrine.

It would be an absurd result to find that the Legislature made an applicant ineligible for committing certain misdemeanors, but once the applicant became a license holder, the applicant could commit numerous misdemeanors without those crimes affecting his eligibility to continue as a license holder. From the overall statute, we conclude that the legislative intent was to make a conviction for designated misdemeanors a part of the eligibility requirements to obtain and hold a handgun license. The five-year period must have been intended as a type of limitation barring how long such an offense could be used against an applicant. Nevertheless, the Legislature’s overall intent could not have been to allow a person with a violation within the five-year period, or a violation committed while holding the permit, to be allowed to continue holding such a permit.

The judgment of the County Court at Law is reversed and rendered in favor of the Texas Department of Public Safety.

      . Tex.Pen.Code Ann. § 37.11(b), Act of May 29, 1993, 73rd Leg ., R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3664, which provided: "(b) An offense under this section is a felony of the third degree.” This section was amended in 1997, and now provides: "(b) An offense under this section' is a Class A misdemeanor unless the person impersonated a peace officer, in which event it is a felony of the third degree.” Tex.Pen.Code Ann. § 37.11(b) (Vernon Supp.2000). LaFleur was, apparently, convicted and sentenced under the former statute.

      . TexGov’t Code Ann. § § 411.180(a)-(d) (Vernon Supp.2000).

      . Tex.Gov’t Code Ann. § 411.180(e) (Vernon Supp.2000).

      . The court of appeals has jurisdiction over this appeal. See Tune v. Texas Dep't of Pub. Safety, 23 S.W.3d 358 (Tex.2000).

      . The court will take judicial notice of the statistics prepared by the Texas Department of Public Safety that as of October 2, 2000, there were 215,118 licenses currently active.

      . LaFleur's probated sentence constitutes a "conviction” for purposes of the relevant statute. Tex.Gov’t Code Ann. § 411.171(4) (Vernon Supp.2000). See Tune, 23 S.W.3d 358.

      . Although it is the author’s opinion that the best way to determine legislative intent is to look at the actual language of the statute, there are many other factors that affect interpretation. Legislative intent is, in a sense, a legal fiction because it requires the courts to ascertain the intent of all of the voting members of the legislative body. There is no way to know what all members of the Legislature believed any given bill might mean.

      .In Ex parte Copeland, 130 Tex.Crim. 59, 63, 91 S.W.2d 700 (1936), Judge Christian determined that even though the Legislature had repealed the section of the criminal laws relating to sexual offenses, the Legislature could not have intended such actions: "To impute to the Legislature the intent to repeal the statutes defining incest, bigamy, seduction, adultery, and fornication is to lay at its door the charge of ignoring the moral sense of the people of this state and striking down some of the strongest safeguards of the home. That such was not the legislative intent is apparent from the enrolled bill.”


text:
    Terry GEYE and Brandon Geye, Appellants, v. AMERICAN CYANAMID COMPANY, Appellee.
    No. 11-99-00034-CV.
    Court of Appeals of Texas, Eastland.
    Nov. 16, 2000.

      Kerwin B. Stephens, Stephens & Myers, Graham, for appellants.
    Russell B. Power, Marlene S. Thomson, Hart & Power, Dallas, for appellee.
    Panel consists of ARNOT, C.J., and McCALL, J„ and McCLOUD, S.J.

       Austin McCloud, Retired Chief Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.

   OPINION

AUSTIN McCLOUD, Senior Justice, Assigned.

The issue in this case is whether plaintiffs’ state law claims are preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). 7 U.S.C.A. § 136 et seq. (West 1999). We hold that they are not.

Terry Geye and Brandon Geye sued American Cyanamid Company contending that the mixed application of herbicides, Prowl and Pursuit, manufactured by defendant damaged plaintiffs’ peanut crop. Plaintiffs alleged theories of strict liability, breach of express and implied warranties, and violation of the Texas Deceptive Trade Practice-Consumer Protection Act (DTPA). The trial court granted defendant’s motion for summary judgment on the ground that plaintiffs’ claims were preempted by FIFRA.

The summary judgment proof shows that plaintiffs treated some of their land with a tank mix combination of Prowl and Pursuit. The peanuts in the treated fields did not develop properly. The roots were stunted, and the plants did not properly develop foliage. Before purchasing Prowl and Pursuit, plaintiffs relied upon off-label magazine and brochure advertisements made by defendant regarding Prowl and Pursuit. These advertisements stated that “PURSUIT can be tank mixed with other popular products such as PROWL herbicide.” The Pursuit labeling specifically stated that Pursuit and Prowl may be combined by tank mixing. There is summary judgment proof that plaintiffs sustained substantial loss in yield because of the combined application of Prowl and Pursuit.

All of plaintiffs’ state law claims relate directly or indirectly to the product label stating that the herbicides may be combined by tank mixing. Defendant relies upon many federal and state cases that have held that state law claims against manufacturers of Environmental Protection Agency (EPA) registered pesticides which relate directly or indirectly to labeling are preempted by FIFRA. See Hawkins v. Leslie’s Pool Mart, Inc., 184 F.3d 244 (3rd Cir.1999); Andrus v. AgrEvo USA Company, 178 F.3d 395 (5th Cir.1999); Kuiper v. American Cyanamid Company, 131 F.3d 656 (7th Cir.1997), cert. den’d, 523 U.S. 1137, 118 S.Ct. 1839, 140 L.Ed.2d 1090 (1998); Welchert v. American Cyanamid, Inc., 59 F.3d 69 (8th Cir.1995); Taylor AG Industries v. Pure-Gro, 54 F.3d 555 (9th Cir.1995); MacDonald v. Monsanto Co., 27 F.3d 1021 (5th Cir.1994); Worm v. American Cyanamid Company, 5 F.3d 744 (4th Cir.1993); King v. E.I. Dupont De Nemours and Company, 996 F.2d 1346 (1st Cir.), cert. dism’d, 510 U.S. 985, 114 S.Ct. 490, 126 L.Ed.2d 440 (1993); Etcheverry v. Tri-Ag Service, Inc., 22 Cal.4th 316, 93 Cal.Rptr.2d 36, 993 P.2d 366 (Cal.2000).

The Texas Supreme Court in Quest Chemical Corporation v. Elam, 898 S.W.2d 819, 820 (Tex.1995), when considering the alleged failure of the manufacture of a herbicide to provide adequate warnings and instructions on its product, stated:

FIFRA provides a detailed scheme for regulating the content and format of labeling for herbicides and other chemical substances. It requires, among other things, that all herbicides sold in this country be registered with the United States Environmental Protection Agency (“EPA”). See MacDonald v. Monsanto Co., 27 F.3d 1021, 1024 (5th Cir.1994) (discussing the details of FIFRA labeling requirements); Worm v. American Cyanamid Co., 5 F.3d 744, 747 (4th Cir.1993) (reviewing the preemptive scope of FIFRA). FIFRA preempts all common law tort suits against manufacturers of EPA-registered pesticides which are based solely upon claims relating directly or indirectly to labeling.

FIFRA expressly mandates that a “State shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under this subchapter.” 7 U.S.C.A. § 136v. The preemptive effect of FIFRA is dependent on agency regulations. Hawkins v. Leslie’s Pool Mart, Inc., supra. The court in Welchert v. American Cyanamid, Inc., supra at 71, described the role of the EPA as:

FIFRA creates a comprehensive scheme for the regulation of pesticide labeling and packaging. See Wisconsin Pub. Intervenor v. Mortier, 501 U.S. 597, 601, 111 S.Ct. 2476, 2479-80, 115 L.Ed.2d 532 (1991). Furthermore, all pesticides sold in the United States must be registered with the Environmental Protection Agency (EPA). See 7 U.S.C. § 136a(a). “The objectives and purposes of FIFRA include the strengthening of federal standards, increasing EPA authority for their enforcement, and providing a comprehensive and uniform regulation of the labeling, sale, and use of pesticides.” Worm v. American Cyanamid Company, 5 F.3d at 747. FIFRA establishes a complex process of EPA review that culminates in the approval of a label under which a product may be marketed. Manufacturers must submit draft label language addressing a number of different topics, including ingredients, directions for use, and adverse effects of the products, see 7 U.S.C. § 136a(c); 40 C.F.R. § 152.50 & pt. 156, and a final label must be submitted to the EPA prior to registration. 40 C.F.R. § 156.10(a)(6).

On June 3,1996, the EPA office of Pesticide Programs issued Pesticide Regulation (PR) Notice 96^4. Our decision is based upon the information contained in that official notice, and we conclude that we should quote extensively from the EPA regulation. (PR) Notice 96^4 provides in part:

EPA is issuing this notice at this time to correct a misunderstanding regarding the FIFRA label approval process and efficacy claims that is reflected in a series of court decisions concerning the preemptive effect of FIFRA.
II. LEGAL FRAMEWORK
A. Registration and the Label Approval Process
EPA approves pesticide labels in the process of registering a pesticide under FIFRA. FIFRA. specifies that EPA shall register a pesticide if:
(1) its composition is such as to warrant the proposed claims for it;
(2) its labeling and other material required to be submitted comply with the requirements of this Act;
(3) it will perform its intended function without unreasonable adverse effects on the environment; and
(4) when used in accordance with widespread and commonly recognized practice it will not generally cause unreasonable adverse effects on the environment.
7 U.S.C. § 136c(c)(5). Although the first registration requirement identified above mandates that EPA consider efficacy of label claims, Congress, in 1978, explicitly gave EPA the authority to waive that requirement. FIFRA states:
In considering an application for the registration of a pesticide, the Administrator may waive data requirements pertaining to efficacy, in which event the Administrator may register the pesticide without determining that the pesticide’s composition is such as to warrant proposed claims of efficacy.
EPA has acted under this authority to waive, by regulation, data requirements as to efficacy issues for all agricultural pesticides. 44 Fed.Reg. 27932, 27938 (col.3) (May 11, 1979); 40 CFR 158.640(b)(1); see also 47 Fed.Reg. 57624 (December 27, 1982). EPA concluded that agriculture pesticides are “effectively regulated by the marketplace.” 44 Fed.Reg. 27932, 27938 (col.3) (May 11, 1979), and that waiving review of the efficacy of agricultural pesticides in the registration process would enable the Agency to focus of its “primary mandate under FIFRA”: investigating “the health and safety aspects of pesticides.” 47 Fed.Reg. 53192 (November 24, 1982); 47 Fed.Reg. 40659, 40661 (coll) (September 15, 1982). EPA pointed to private legal actions for damages as one factor that would ensure that pesticide manufactures sold an efficacious product: “pesticide producers are aware that they are potentially subject to damage suits by the user community if their products prove ineffective in actual use.” 47 Fed.Reg. 40659, 40661 (col.2) (September 15,1982).
FIFRA permits states broad authority to regulate pesticides but makes it unlawful for states that undertake such regulation to “impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under this Act.” 7 U.S.C. § 136v(b). A number of federal court decisions have held that this preemption of state authority as to pesticide labels bars damage claims in state court by growers against pesticide manufacturers. The courts have reasoned that allowing such a claim by a grower would be, in effect, permitting the state to impose label requirements “in addition to or different from” the federally-approved label.
There have been several recent preemption decisions involving claims by growers concerning pesticidal efficacy or property damage caused by a pesticide. For example, in Taylor AG Industries v. Pure-Gro, 54 F.3d 555 (9th Cir.1995), several growers sued the manufacturers and distributor of a pesticide that the growers alleged had damaged their cotton crop even through they had applied the pesticide according to the label directions. The court denied the growers’ claims on the ground that allowing recovery of damages would interfere indirectly with EPA’s “rigorous label-approval process.” Id. at 560. In Welchert v. American Cyanamid, Inc., 59 F.3d 69 (8th Cir.1995), and Worm v. American Cyanamid, Inc., 5 F.3d 744 (4th Cir.1993), growers sued a pesticide manufacturer seeking recovery for harm to crops allegedly caused when the manufacturer’s herbicide remained in the soil and damaged rotated crops. Both courts dismissed the growers’ claims noting that EPA’s labeling regulations required instructions on rotational crop restrictions. The courts reasoned that to permit such lawsuits “would be to allow state courts to sit, in effect, as super-EPA review boards that could question the adequacy of the EPA’s determination of whether a pesticide registrant successfully complied with the specific labeling requirements of its own regulations.” Welchert, 59 F.3d at 73; Worm, 5 F.3d at 749.
These court decisions are based on the premise that, in approving labels for agricultural pesticides, EPA examines, or at least has the obligation to examine, the efficacy of the pesticide and related issues such as the potential for the pesticide to cause property damage. The courts, however, have not taken into account the plain language of the statute on this issue and have misinterpreted the thrust of EPA’s regulations. As noted above, in actual fact, EPA, with Congress’ approval, stopped evaluating pesticide efficacy for routine label approvals almost two decades ago. Further, as explained below, EPA’s regulations do not require a review of efficacy of property damage issues for agricultural pesticides.
Finally, as to pesticide users this Notice is intended to clarify that EPA’s approval of a pesticide label does not reflect any determination on the part of EPA that the pesticide will be efficacious or will not damage crops or cause other property damage.

The Supreme Court of California in Et-cheverry v. Tri-Ag Service, Inc., supra, recently discussed (PR) Notice 96^f. The claimants in Etcheverry -contended that their walnut crop was damaged because of inadequate labeling of certain pesticides. The trial court granted a summary judgment holding that claimants’ claims were preempted by FIFRA. The United States filed an amicus curiae brief on behalf of the claimants citing (PR) Notice 96-4 and argued that the case involved pesticide efficacy and that claimants’ state law claims were not preempted by FIFRA.

The Supreme Court of California first concluded that claimants were not claiming that the pesticides they used were “ineffi-cacious” but rather that they claimed that they should have been warned that the combined use of pesticides could be “phy-totoxic.” The court discussed the EPA’s guidelines regarding “phytotoxicity” as distinguished from “efficacy” and stated that “Phytotoxicity is not a matter of efficacy.” The court continued:

Because the EPA does not review efficacy claims, the United States asserts, “preemption of state damages actions challenging pesticide efficacy would leave such statements largely, or entirely, unregulated.”
Again, the short answer to this argument is that the EPA’s waiver of the submission of efficacy data is irrelevant, since plaintiffs complain of phytotoxicity, not inefficacy. However, even assuming arguendo that phytotoxicity is included within the concept of efficacy, there remain two fundamental flaws in the argument that pesticide efficacy will go “largely, or entirely, unregulated” if state failure-to-warn claims are preempted: (1) Although the EPA has waived the submission of efficacy data for agricultural pesticides at the time of their initial registration, the agency does require and review such data if efficacy-related problems develop later; and (2) California has a comprehensive registration and regulatory program for pesticides, and while the California Department of Pesticide Regulation may not impose its own requirements for labeling, it can restrict or prohibit the sale or use of products that it determines are inefficacious or phytotoxic.

The court concluded that FIFRA preempts state law claims for failure to warn of the risks of using a pesticide. We do not agree with the Etcheverry court that the court’s answers to the questions raised by the United States determine the issue of federal preemption.

The court in Nathan Kimmel, Inc. v. DowElanco, 64 F.Supp.2d 939 (C.D.Cal.1999), recognized that the EPA stated in (PR) Notice 96-4 that it has exercised its statutory option to waive certain data requirements under FIFRA. The court, however, concluded:

While these are valid arguments, the Court is bound by the currently-existing law of this circuit. Therefore, though the Court encourages Kimmel to raise these issues on appeal, the Court must find Kimmel’s claims preempted.

We do not believe that Congress intended to preempt state law efficacy claims after the EPA exercised its authority and, as noted in (PR) Notice 96-4, “stopped evaluating pesticide efficacy for routine label approvals almost two decades ago.” The purpose of Congress is the ultimate touchstone in every preemption case. Medtronic, Inc. v. Lohr, 518 U.S. 470, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996).

We point out that our decision is not in conflict with our supreme court’s opinion in Quest Chemical Corporation v. Elam, supra. That case involved personal injuries resulting from the use of a product. This case involves the efficacy of the tank mix combination of the products and property damage. (PR) Notice 96-4 expressly states that:

[W]aiving review of the efficacy of agricultural pesticides in the registration process would enable the Agency to focus of its “primary mandate under FI-FRA”: investigating “the health and safety aspects of pesticides.”

We hold that plaintiffs’ state law claims relating directly or indirectly to labeling are not preempted by FIFRA because such claims involve the efficacy of the products and not the risks to humans and the environment posed by the use of the product.

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

      . TEX. BUS. & COM. CODE ANN. § 17.41 et seq. (Vernon 1987 & Pamph Supp.2000).

      . The off-label statements merely repeated information on the labels. See Kuiper v. American Cyanamid Company, 131 F.3d 656 (7th Cir.1997).

      . (PR) Notice 96-4 has only recently been discussed by the courts. It was not urged in the trial court in this case.