author: LEE YEAKEL, Justice.

text:
    SPORTSCOACH CORPORATION OF AMERICA, INC. and Coachmen Industries, Inc., Appellants, v. EASTEX CAMPER SALES, INC. and the Motor Vehicle Board and Motor Vehicle Division of the Texas Department of Transportation, Appellees.
    No. 03-00-00103-CV.
    Court of Appeals of Texas, Austin.
    Oct. 19, 2000.

      Maurice Bresenham, Jr., Zukowski & Bresenham, L.L.P., Houston, for Wastex.
    Joe Foy, Jr., Asst. Atty. Gen., Natural Resources Division, Austin, for M.V.B.
    J. Bruce Bennett, Baskin, Bennett <⅞ Komkov, L.L.P., Austin, for appellants.
    Before Justices JONES, KIDD and YEAKEL.
   LEE YEAKEL, Justice.

Appellants Sportscoach Corporation of America, Inc. and Coachmen Industries, Inc. (together “Sportscoach”) appeal from a district-court judgment affirming a final order of appellees the Motor Vehicle Board and Motor Vehicle Division of the Texas Department of Transportation (together the “Board”), which found that Sportscoach violated the Motor Vehicle Commission Code (the “Code”) and ordered Sportscoach to pay appellee Eastex Camper Sales, Inc. (“Eastex”) $29,239.71 in damages. We will reverse the judgment in part and remand the cause to the district court.

FACTUAL AND PROCEDURAL BACKGROUND

This dispute arises out of a franchise relationship between Sportscoach and Eas-tex. Sportscoach manufactures recreational vehicles. In 1990, Eastex entered into several franchise agreements to sell Sportscoach vehicles at its Humble motor-vehicle dealership. In the spring of 1991, Eastex terminated the franchise agreements. Pursuant to a 30-day notice provision, the termination became final on June 15, 1991. At the time of termination, Eas-tex had four 1990 model-year vehicles manufactured by Sportscoach in its inventory.

Eastex demanded that Sportscoach repurchase the four vehicles in accordance with section 5.02(b)(16) of the Code, which requires a manufacturer to repurchase, from a terminated dealer, all current model-year vehicles and all immediately prior model-year vehicles in the dealer’s inventory at the time of franchise termination. Sportscoach refused, claiming that the 1992 model year began before the June 15, 1991 termination date. According to Sportscoach, the 1990 vehicles were not immediately prior model-year vehicles and therefore not covered by the Code’s repurchase obligation. Eastex sought to mitigate its damages by selling all four vehicles. Three were sold for a profit; one, a Pathfinder model, was sold for a loss of $7,847.60.

Eastex filed a complaint with the Board seeking all damages stemming from Sport-scoach’s alleged violation of section 5.02(b)(16) of the Code. See Tex.Rev.Civ. Stat.Ann. art. 4413(36) §§ 2.12, 3.05(a) (West Supp.2000). The complaint was heard by an administrative law judge (“ALJ”) who issued a proposal for decision. See id. § 3.08(a), (g). The Board rejected the ALJ’s proposal on grounds unrelated to this appeal. See id. § 3.08(g). After a second hearing, the ALJ issued a new proposal for decision recommending that the Board award Eastex actual damages, attorney’s fees, costs, and interest. On July 9,1998, the Board rendered a final order adopting the ALJ’s second proposal for decision with minor modifications. See id. § 3.08(g). The Board ordered Sport-scoach to pay Eastex (1) $7,847.60 in dealer costs; (2) $12,192 .11 in attorney’s fees; (3) $200 in filing fees; and (4) interest.

Sportscoach then sought judicial review in district court. See id. § 7.01 (“Any party to a proceeding before the [B]oard that is affected by a final order ... of the [Bjoard is entitled to judicial review of any such final [Bjoard action, under the substantial evidence rule.... ”). Eastex counterclaimed asking the district court to “confirm” the Board’s order and “render judgment awarding Eastex all relief granted under [the order].” Eastex further asserted that the Board’s findings and conclusions established that Sportscoach had violated the Deceptive Trade Practices Act (the “DTPA”), Tex.Bus. & Com.Code Ann. §§ 17.41-.63 (West 1987 & Supp.2000), and sought damages against Sportscoach for such violations. Finally, Eastex’s counterclaim requested attorney’s fees and interest. The district court severed Eastex’s DTPA counterclaim and affirmed the order of the Board, resulting in a final ap-pealable judgment with regard to Sport-scoach’s administrative appeal. By three issues, Sportscoach appeals the district court’s judgment.

DISCUSSION

Substantial-Evidence Review

We will first address Sport-scoach’s third point of error. Sportscoach challenges the Board’s conclusion that it violated section 5.02(b)(16) of the Code on the ground the conclusion is not supported by substantial evidence. The district court reviews a final order of the Board under the substantial-evidence rule. See Tex.Rev.Civ.Stat.Ann. art. 4413(36) § 7.01(a) (West Supp.2000). The district court presumes that the Board’s order is supported by substantial evidence, and the appealing party, here Sportscoach, has the burden of overcoming this presumption. See Meier Infiniti Co. v. Motor Vehicle Bd., 918 S.W.2d 95, 98 (Tex.App.—Austin 1996, writ denied). The district court determines whether the Board’s findings were supported by substantial, probative, reliable evidence found in the whole record such that reasonable minds could have reached the conclusion that the Board must have reached to justify its action. See Suburban Util. Corp. v. Public Util. Comm’n, 652 S.W.2d 358, 364 (Tex.1983); Clear Creek ISD v. Commissioner of Educ., 775 S.W.2d 490, 493 (Tex.App.—Austin 1989, no writ). The true test is not whether the agency reached the correct conclusion but “whether some reasonable basis exists in the record for the action taken by the [Board].” State v. Public Util. Comm’n, 883 S.W.2d 190, 203-04 (Tex.1994); accord Meier, 918 S.W.2d at 98.

Eastex posits that the 1992 Pathfinder model year did not begin until after June 15, 1991, and thus, 1991 Pathfinders were current model-year vehicles, and the 1990 Pathfinder was an immediately prior model-year vehicle. Sportscoach argues that because a different Sportscoach model, the 1992 Cross Country, was manufactured before June 15,1991, the 1992 model year for all Sportscoach models, including the Pathfinder, began before June 15, 1991; therefore, the 1990 Pathfinder is not subject to the statutory buyback requirement. See Tex.Rev.Civ.Stat.Ann. art. 4413(36) § 5.02(b)(16) (West Supp.2000). However, the record reflects that Sportscoach was unclear about its own model-year policy and when the policy took effect. Sport-scoach did not produce evidence at the administrative hearing definitively indicating when the policy was implemented.

The policy that Sportscoach claims to have been in effect in 1991 does not clearly dictate that the model year changed for all types of vehicles when the first 1992 model of any vehicle was manufactured by Sport-scoach. The Board applied a reasonable interpretation of that policy. The Board ruled that a change in model year is unique to each model of vehicle and begins when the first vehicle of that model is manufactured. Thus, the 1992 Pathfinder model year could not start until the first 1992 Pathfinder was manufactured. Sportscoach does not dispute that manufacture of 1992 Pathfinders did not commence before June 15, 1991. The record reflects reliable evidence to support the Board’s conclusion that the Pathfinder’s 1992 model year had not begun by June 15, 1991. Sportscoach’s third point of error is accordingly overruled.

Agency Adjudication of Private Claims

By its first point of error, Sport-scoach contends that the district court erred in failing to determine that the Board acted “in excess of [its] statutory authority” when it adjudicated Eastex’s claims under section 5.02(b)(16). See Tex. Rev.Civ.Stat .Ann. art. 4413(36) § 5.02(b)(16) (West Supp.2000). Sport-scoach asserts that the Board had no power to assume “the role of a court and proceed to adjudicate Eastex’s claim against [Sportscoach] for damages.”

Section 5.02(b)(16) provides that it is unlawful for a manufacturer to fail to pay a dealer, upon termination of the dealer’s franchise, for unsold new motor vehicles of the current model year or of the immediately prior model year in the dealer’s inventory. See id. A manufacturer that fails to make such payments within sixty days of termination is liable for “the greatest of dealer costs, fair market value, or current price of the inventory,” interest, attorney’s fees, and costs. Id. § 5.02(b)(16)(F). Sportscoach argues that neither this section nor other Code provisions grant the Board authority to order payment to the dealer. We agree.

An agency may exercise only those specific powers that the legislature confers upon it in clear and express language. Kawasaki Motors Corp. U.S.A. v. Texas Motor Vehicle Comm’n, 855 S.W.2d 792, 797 (Tex.App.—Austin 1993, no writ). As a general rule, one may imply that the legislature intends that an agency should have whatever power is reasonably necessary to fulfill a function or perform a duty that the legislature has expressly placed in the agency. Id.; see also Texas Dep’t of Human Servs. v. Christian Care Ctrs., Inc., 826 S.W.2d 715, 719 (Tex.App.—Austin 1992, writ denied); Sexton v. Mount Olivet Cemetery Ass’n, 720 S.W.2d 129, 137-38 (Tex.App.—Austin 1986, writ ref'd n.r.e.).

In support of its position that the remedy ordered by the Board is not within the agency’s authority, Sportscoach directs us to our decision in Kawasaki Motors, 855 S.W.2d at 792. Kawasaki Motors involved a similar challenge to the power of the predecessor of the Board, the Motor Vehicle Commission. This Court held that the language at issue did not grant the Motor Vehicle Commission authority to order payments to a private party. See Kawasaki Motors, 855 S.W.2d at 797. However, the legislature amended the Code in 1989 to provide the language we now analyze. See Act of May 18, 1989, 71st Leg., R.S., ch. 1130, §§ 9, 11, 24, 1989 Tex.Gen. Laws 4653, 4657, 4658, 4665 (Tex.Rev.Civ.Stat. Ann. art. 4413(36), since amended).

The Board and Eastex argue that the amended sections of the Code confer on the Board the authority to adjudicate third-party claims. See Tex.Rev.Civ.Stat. Ann. art. 4413(36) §§ 3.01, 3.03 (West Supp.2000). They assert that the grant of powers contained in sections 3.01 and 3.03 constitutes specific statutory authority to adjudicate section 5.02(b)(16) claims. We disagree.

Although the legislature amended sections 3.01 and 3.03, it did not give the Board the power to adjudicate private claims or grant the Board authority to order a manufacturer to pay a dealer amounts owed for violations of the Code:

The [Board] shall have and may, in its discretion and notwithstanding any other provision of law that is inconsistent with this Act, exercise the powers set forth in this Act, and shall have all other powers necessary, incidental, or convenient to carry out its duties and effectuate its express powers and duties. These powers and duties include the power to initiate and conduct proceedings, investigations, and hearings, administer oaths, receive evidence and pleadings, issue subpoenas to compel the attendance of any person, order the production of any tangible property, including papers, records, and documents, make findings of fact on all factual issues arising out of any proceeding initiated under this Act, specify, govern, and control appearance, practice, and procedure before the [Board], issue rules, conclusions of law, decisions, including declaratory decisions or orders, enter into contracts or execute instruments, retain counsel, utilize the services of the Attorney General of the State of Texas and thereafter institute and direct the conduct of legal proceedings in any forum or obtain other professional services as may be necessary and convenient, sanction for contempt, assess and collect fees and costs including attorney’s fees, issue, suspend, and revoke licenses, prohibit and regulate acts and practices in connection with the distribution and sale of motor vehicles and warranty performance obligations, issue cease and desist orders in the nature of temporary and permanent injunctions, and levy civil penalties.

Id. § 3.03 (emphasis added). Indeed, although the legislature expanded the powers of the Board in 1989, it did not grant the Board power to assess damages on behalf of, and order such damages paid to, a private party.

We contrast the absence of authority to order payments in section 5.02(b)(16) with the specific authority to order reimbursement in section 6.07(g) of the Code. See id. § 6.07(g); Kawasaki Motors, 855 S.W.2d at 798 n. 10. In Kawasaki Motors, we noted that the legislature has expressly provided, in other sections of the Code, by what means the Board may enforce Code violations. See Kawasaki Motors, 855 S.W.2d at 798. The Code’s enforcement sections specifically grant the Board the power to assess a civil penalty, issue a cease and desist order, and issue an injunction; the enforcement sections, however, do not empower the Board to order that damages be paid to a private party.

Eastex and the Board argue that the Board’s statutory authorization to assess and collect costs gives it the power to assess a “cost” in the form of Eastex’s damages resulting from Sportscoach’s violation of the Code and to award that “cost” to Eastex. See Tex.Rev.Civ.Stat.Ann. art. 4413(36) § 3.03 (West Supp.2000). However, such an application would ignore the logical meaning of that language — that the power to assess costs means the power to assess and collect costs for the Board itself, not on a private entity’s behalf. This interpretation is supported by section 6.01(a), which directs that civil penalties collected by the Board are payable into the state’s highway fund. See id. § 6.01(a). Here the Board did not collect any costs or penalties to be deposited to any state fund. Instead it overstepped its authority and ordered Sportscoach to make direct payment to Eastex for damages resulting from a Code violation.

Having determined that the legislature did not grant the Board the authority urged by the Board and Eastex, we sustain Sportscoach’s first point of error.

CONCLUSION

We affirm the district court’s judgment insofar as it holds that there is substantial evidence to support the Board’s conclusion that Sportscoach violated the Code. We reverse the remainder of the judgment and remand that portion of the cause to the district court for further proceedings consistent with this opinion.

      . Tex.Rev.Civ.Stat.Ann. art. 4413(36) (West Supp.2000).

      . Section 5.02(b) provides:
      It is unlawful for any manufacturer, distributor, or representative to:
      (16) Notwithstanding the terms of any franchise agreement, fail to pay to a dealer or any lienholder in accordance with their respective interest after the termination of a franchise:
      (A) the dealer cost of each new motor vehicle in the dealer's inventory with mileage of 6,000 miles or less, reduced by the net discount value of each, where "net discount value” is determined according to the following formula: net cost multiplied by total mileage divided by 100,000, and where "net cost” equals the dealer cost plus any charges by the manufacturer, distributor, or representative for distribution, delivery, and taxes, less all allowances paid to the dealer by the manufacturer, distributor, or representative for new, unsold, undamaged, and complete motor vehicles of current model year or one year prior model year in the dealer’s inventory, except that if a vehicle cannot be reduced by the net discount value, the manufacturer or distributor shall pay the dealer the net cost of the vehicle;
      (F) except as provided by this subdivision, any sums due as provided by Paragraph (A) of this subdivision within 60 days after termination of a franchise.... A manufacturer, distributor, or representative who fails to pay those sums within the prescribed time or at such time as the dealer and lienholder, if any, proffer good title prior to the prescribed time for payment, is liable to the dealer for:
      (i) the greatest of dealer cost, fair market value, or current price of the inventory;
      (ii) interest on the amount due calculated at the rate applicable to a judgment of a court; and
      (iii) reasonable attorney's fees and costs. Tex.Rev.Civ.Stat.Ann. art. 4413(36) § 5.02(b)(16)(A), (F) (West Supp.2000).

      . Conclusion number three states, “Sport-scoach ... [was] required to repurchase the motorhomes within 60 days of the date of termination as required by Texas Motor Vehicle Commission Code § 5.02[ (b) ](16)."

      . Sportscoach’s second point of error draws attention to the failure of the district court to hold that the 1989 legislative changes to the Code did not overrule Kawasaki Motors Corp. U.S.A. v. Texas Motor Vehicle Commission, 855 S.W.2d 792 (Tex.App.—Austin 1993, no writ). Because Sporlscoach’s second point of error is closely related to its first point of error and is not dispositive, we need not separately address it. See Tex.R.App.P. 47.1.

      . See Act of August 10, 1991, 72d Leg., C.S., ch. 7, § 1A.03, 1991 Tex. Gen. Laws 226, 238 (Tex.Rev.Civ.Stat.Ann. art. 4413(36), since amended).

      . The relevant statute at issue in Kawasaki Motors was article 4413(36) of the revised civil statutes. Rev.Civ.Stat.Ann. art. 4413(36), amended by Act of May 18, 1989, 71st Leg., R.S., ch. 1130, § 24, 1989 Tex. Gen. Laws 4653, 4665.

      .Compare the 1987 version of the Code, applied in Kawasaki Motors:

      The Commission is authorized to issue orders and make determinations as may be necessary to carry out this Act. The orders shall set forth the findings on which the order is based and the reason for the particular action taken. All orders shall be signed by the chairman or vice-chairman and attested by the executive director and have the seal affixed.
      Act of March 25, 1971, 62d Leg., R.S., ch. 51, § 1, 1971 Tex. Gen. Laws 92 (current version at Tex.Rev.Civ.Stat.Ann. art. 4413(36) (West Supp.2000)).

      . Tex.Rev.Civ.Stat.Ann. art. 4413(36) § 6.01(a) (West Supp.2000).

      . Id. § 6.01A(a).

      . Id. § 6.02.


source: Caselaw Access Project

author: MURRY B. COHEN, Justice.

license: Public Domain

text:
    Juan Flores RODRIGUEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 01-97-01342-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Oct. 19, 2000.
    Dominique P. Gerard, Houston, for Appellant.

      Carmen Castillo Mitchell, John B. Holmes, Houston, for State.
    Panel consists of Justices COHEN, NUCHIA, and SMITH.

      . The Honorable Jackson B. Smith, Jr., retired Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.

   OPINION ON REMAND FROM THE COURT OF CRIMINAL APPEALS

MURRY B. COHEN, Justice.

A jury convicted appellant of driving while intoxicated (DWI) and found two enhancement paragraphs true, and the trial judge assessed punishment at eight years in prison. We reverse and remand.

On original submission, appellant contended in his first issue that the trial judge erred by submitting an alternative theory of guilt in the jury charge. This Court disagreed, relying on Sutton v. State, 899 S.W.2d 682 (Tex.Crim.App.1995). See Rodriguez v. State, No. 01-97-01342-CR, slip op. at 3, 1998 WL 959813 (Tex.App.—Houston [1st Dist.] Dec. 23, 1998) (not designated for publication), rev’d, 18 S.W.3d 228, 232 (Tex.Crim.App.2000). The Texas Court of Criminal Appeals reversed, holding that the charge authorized a conviction not set forth in the charging instrument, and remanded for a harm analysis under Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App.1984). See Rodriguez, 18 S.W.3d at 232.

Facts

While on patrol, two police officers arrested appellant for driving erratically and exhibiting signs of intoxication. They testified at trial that appellant smelled of alcohol and had symptoms of alcohol intoxication. Appellant testified he had the flu and had consumed tablets of “non-drowsy” formula “Contac,” a cold medication, before driving that night. He also testified he had not been drinking, but the medication made him drowsy. Two defense witnesses testified appellant had consumed no alcohol. In rebuttal, the State’s chemist testified to the intoxicating effect of Contac and alcohol.

The indictment alleged that appellant was intoxicated because he introduced alcohol into his body. The application paragraph of the charge, however, allowed conviction if appellant was intoxicated either by alcohol or by a combination of unknown drugs and alcohol. Moreover, the charge defined “intoxicated” as the loss of normal faculties “by reason of the introduction of alcohol, a drug, or a combination of both those substances into the body” (emphasis added), and it then defined the term “drug” extensively, ie., in three different ways, occupying approximately half a page in the charge. Thus, the definitions told the jury it could convict even if appellant was intoxicated only from a drug and not from alcohol, which was the opposite of what the indictment alleged.

The appellant objected because the charge authorized conviction on a theory not alleged in the indictment — intoxication by “a combination of unknown drugs and alcohol.” The trial judge overruled the objection.

Harm Analysis

In reviewing charge error, we apply the usual standard of review. See Almanza, 686 S.W.2d at 171. The State first contends that appellant’s trial objection did not suffice because he should have further objected to omission in the charge of the “additional susceptibility” effect of drugs on alcohol. See Sutton, 899 S.W.2d at 684. Therefore, the State argues that we need to review only for egregious harm. See Almanza, 686 S.W.2d at 171. We disagree.

Appellant objected to the instruction that intoxication could result from a combination of drugs and alcohol. This was all he needed to preserve error. The State does not cite any authority requiting appellant to request instructions that would increase his chances of conviction. If the State wanted this instruction, it should have asked for it. We hold the objection was sufficient. Consequently, appellant needs to show only some harm. See Almanza, 686 S.W.2d at 171.

In deciding whether appellant suffered “some” harm, we consider 1) the entire jury charge, 2) the state of evidence, including the contested issues and weight of probative evidence, 3) counsel’s argument, and 4) the whole record. See Abdnor v. State, 871 S.W.2d 726, 739-40 (Tex.Crim.App.1994); Almanza, 686 S.W.2d at 171.

The State contends appellant suffered no harm because the charge required the jury to find that he was intoxicated from alcohol. We disagree. The jury charge did require the jury to find that appellant consumed alcohol, but it did not require the jury to find that he was intoxicated from alcohol. It did the opposite. The charge allowed the jury to convict if either (1) appellant was intoxicated from alcohol alone or (2) appellant was not intoxicated from alcohol alone, but from a combination of drugs and alcohol. That is the very error that caused the Court of Criminal Appeals to reverse our judgment on original submission.

The State argues that no harm resulted because (1) evidence supported appellant’s guilt under the indictment, i.e., from alcohol intoxication alone; (2) the jury’s verdict was likely based on the indictment; (3) the jury found appellant guilty “as charged in the indictment”; and (4) the additional instruction did not affect appellant’s theory that he was not drinking alcohol. Again, we disagree.

With a proper charge, the jury could have weighed the witnesses’ credibility and determined if appellant was intoxicated on alcohol alone, as the State alleged. Instead, the application paragraph of the charge told the jury to convict appellant if he was intoxicated not on alcohol alone, but on a combination of drugs and alcohol. In addition, the definitions told the jury that appellant could be “intoxicated” on drugs alone. This also was contrary to the allegation of intoxication by alcohol alone, and it magnified the error in the application paragraph. We cannot assume the jury disregarded both the judge’s specific instruction to consider intoxication from drugs and the prosecutor’s argument to convict for intoxication from drugs solely because of the boilerplate language, “guilty as charged in the indictment.” That language was not even part of the trial judge’s instructions. It was part of the verdict form, separate from the judge’s specific instructions and definitions that governed the case.

Given that 1) the evidence supported the conclusion that defendant was intoxicated on drugs and alcohol, 2) the charge authorized the jury to convict appellant for being intoxicated on drugs alone and on drugs and alcohol, and 3) the prosecutor asked the jury to convict appellant for being intoxicated on drugs and alcohol, there is reason to believe that appellant was harmed by the erroneous charge.

We sustain the point of error.

We reverse the judgment and remand the cause.


author: SAM NUCHIA, Justice.

text:
    Isaac STEADMAN, Appellant, v. The STATE of Texas, Appellee.
    No. 01-99-01080-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Oct. 19, 2000.

      Wayne T. Hill, Houston, for Appellant.
    John B. Holmes, Peyton Z. Peebles, III, Houston, for State.
    Panel consists of Justices COHEN, NUCHIA, and SMITH.

       The Honorable Jackson B. Smith, Jr., retired Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.

   OPINION

SAM NUCHIA, Justice.

Appellant was a juvenile certified to stand trial as an adult. Appellant pleaded guilty to aggravated robbery, and the court placed him on 10 years deferred adjudication. On June 16, 1998, the State filed a motion to adjudicate guilt alleging the appellant violated the terms and conditions of his probation. The court overruled the State’s motion to adjudicate guilt. On April 1, 1999, the State filed a second motion to adjudicate guilt alleging that appellant violated terms and conditions of his probation by committing a new felony violation. Appellant pleaded “not true” to the allegations. The court found the allegations true, adjudicated appellant’s guilt, and sentenced him to 40 years confinement. We affirm.

ANALYSIS

Due Process

In his first point of error, appellant contends he was denied due process of law at his motion to adjudicate hearing because he was deprived of the right to a neutral and detached hearing body in both receiving evidence and ruling on his punishment. Specifically, appellant contends the judge’s comments evidence her lack of neutrality. The judge made the following comments at the adjudication hearing:

Stand, Mr. Steadman. You know Mr. Steadman, I am not going to mask my disappointment given the fact that it is my reputation that is at stake whenever I let someone who goes into any place, sticks a gun in someone’s face and robs them from money and gives them a chance at deferred adjudication. And I am not hesitant to do that if I believe that is the right thing to do.
Even in the face of your past, which if I am not mistaken, included the charge of aggravated robbery, another aggravated robbery in Harris County and another aggravated robbery in Fort Bend County that was pending at the time of all of this little group out of Katy High School, students who thought it was a jolly good time to go around and rob fast food restaurants. In fact, I can’t remember at any time giving someone a chance other than your co-defendants who had this kind of little aggravated rampage.
And I specifically remember and so do you telling you: “Do you want this deferred adjudication? Will I see you back here. If you do not intend to be a model probationer, do not take this because if I see your face again in my courtroom, you are going to really get hit.”
Mr. Steadman, you pushed me once which is more than anyone has ever done. You were back here a second time with Mr. Hill begging me to keep you on probation, that you could complete boot camp successfully. Now, let me tell you something: I send lots and lots of people to boot camp. I get very few back that they can’t handle and I could have adjudicated you guilty right then and there. And you got a chance that, quite frankly, I was amazed I gave you. But you are back again. And now it comes time for punishing for your original offense.
The Court having found the allegations in the motion to adjudicate guilt to be true having considered the gravity and seriousness of the crime for which you were found guilty and the evidence submitted in the presentence investigation report at the punishment hearing at which the Court gave you deferred adjudication probation, the Court hereby finds you guilty of aggravated robbery and assesses your punishment, Mr. Steadman, at forty (40) years confinement in the institutional division.

A criminal defendant placed on deferred adjudication pursuant to article 42.12(5)(a) of the Texas Code of Criminal Procedure is entitled to a hearing on his adjudication of guilt. Tex.Crim. PROc.Code Ann. art. 42.12(21)(b) (Vernon Supp.2000). At a probation revocation hearing, appellant has the right to a “neutral and detached” hearing body as one of the minimum requirements of due process. See Ruedas v. State, 586 S.W.2d 520, 528 (Tex.Crim.App.1979).

It is a denial of due process for the court to arbitrarily refuse to consider the entire range of punishment for an offense or refuse to consider the evidence and impose a predetermined punishment. See McClenan v. State, 661 S.W.2d 108, 109 (Tex.Crim.App.1988). However, in the absence of a clear showing to the contrary, it is presumed that the trial court’s actions were correct. See Thompson v. State, 641 S.W.2d 920, 921 (Tex.Crim.App.1982).

The State contends appellant waived his complaint by failing to make due process objections to the procedures used by the trial court at any point in the proceedings from the time he was placed on probation through his subsequent adjudication and sentence.

To preserve error for appellate review, the complaining party must make a timely, specific objection, at the earliest opportunity, and obtain an adverse ruling. See Tex.R.App. P. 33.1; Turner v. State, 805 S.W.2d 423, 431 (Tex.Crim.App.1991); Trahan v. State, 991 S.W.2d 936, 939 (Tex.App.—Houston [1st Dist.] 1999, pet. filed). Recently, however, this court held that the contemporaneous objection rule does not apply in similar circumstances during a probation revocation hearing.

In Hull v. State, 29 S.W.3d 602 (TexApp.—Houston [1st Dist.] 2000, no pet. h.), we held that the appellant did not waive his complaint by failing to object when probation was imposed. Id. at 606. The judge in Hull had apparently warned him orally, while sentencing him to probation, that no violations would be tolerated. Yet the written conditions the judge signed failed to mention “no tolerance.” Id. at 606. Therefore, Hull, we concluded, could not have objected to the probation condition because it was never listed among the “conditions of community supervision” in the judge’s order. Rather, the “no tolerance” admonishment seems to have reflected the attitude of the court towards Hull. That is, the judge’s remarks in Hull “show[ed] that the judge had committed himself to revoke probation for any violation whatsoever....” Id. at 605-606. This we found unacceptable.

Unlike the circumstances in Hull, however, the facts in the case at bar suggest no indication of harm to appellant. The present case is different from Hull because this judge exercised her discretion repeatedly in favor of the defendant despite her threat not to do so, which she stated when imposing deferred adjudication. When the State first moved to adjudicate guilt for “technical violations,” she denied the motion and continued the defendant on probation. When she heard the second motion, she ruled against the State on its allegations of technical violations, but for the State on its allegations that appellant committed a new felony. In addition, she exercised discretion in appellant’s favor in assessing a sentence far below the maximum allowed, unlike the judge in Hull . Thus, there is convincing evidence in the record that, again unlike the judge in Hull, this judge did not have “no tolerance” for appellant, she did consider the evidence, and she repeatedly made significant rulings in appellant’s favor, despite her statement to the contrary. To that end, while we believe the record is clear that the judge made some ill advised statements, it is not clear that she abandoned discretion and refused to consider either the evidence or the full range of punishment.

We overrule appellant’s first point of error.

Equal Protection

In his second and third points of error, appellant contends he was denied equal protection of the law under both the United States and Texas Constitutions. Specifically, appellant contends that if he had been placed on regular or traditional probation under article 42.12(4) of the Texas Code of Criminal Procedure, rather than deferred adjudication under article 42.12(5) of the Texas Code of Criminal Procedure, upon revocation of his probation, he would have faced a maximum punishment of 10 years instead of the full range of punishment that was available to the judge in his case. Appellant argues the classification scheme that provides different possible punishments upon violation of probation is not rationally related to a legitimate state interest.

In the present case, appellant did not challenge the classification scheme that provides different possible punishments upon violation of probation at the revocation hearing. He has, therefore, not preserved this issue for our review. See Tex. R.App. P. 33.1. We overrule appellant’s second and third points of error.

Imposition of Sentence

In his fourth point of error, appellant contends the trial court abused its discretion and violated the “cruel or unusual punishment” provision of the Texas Constitution, see Tex. Const, art. I, § 13, by sentencing appellant to 40 years confinement because the trial court had previously found that he was deserving of deferred adjudication. Specifically, appellant contends the court assessed 40 years confinement because she was offended by his failure to appreciate the trial court’s kindness in giving him numerous chances.

As noted above, to preserve error for appellate review, the appellant must make a timely, specific objection, at the earliest opportunity, and obtain an adverse ruling. See Tex.R.App. P. 33.1; Turner, 805 S.W.2d at 431; Trahan, 991 S.W.2d at 939. Appellant did not object at the sentencing hearing to his 40 year sentence on the basis of cruel or unusual punishment or abuse of discretion. He has waived this point of error.

We overrule appellant’s fourth point of error.

We affirm the judgment.

      . One additional fact brings this case within the purview of Hull. In this case, appellant was represented by different counsel at the deferred adjudication hearing and, 18 months later, the revocation hearing. Given that no record of the deferred adjudication hearing was available to the second counsel, too heavy a burden would be placed on the second counsel, or the appellant himself, to make a proper objection to the judge’s comments during the first hearing.


author: Opinion by Justice CHAVEZ.

text:
    FRANK A. SMITH SALES, INC., d/b/a Frank Smith Toyota, Appellant, v. ATLANTIC AERO, INC., Appellee.
    No. 13-99-792-CV.
    Court of Appeals of Texas, Corpus Christi.
    Oct. 19, 2000.

      Christiana Dijkman, Phillips & Akers, Houston, for Appellant.
    Roger W. Hughes, Adams & Graham, Harlingen, Julian Rodriguez, Jr., McAllen, Susan Renee Sullivan, Griffith, Saenz & Hill, McAllen, Lisa D. Powell, Atlas & Hall, L.L.P., McAllen, for Appellee.
    Before Justices HINOJOSA, YÁÑEZ, and CHAVEZ.
   OPINION

Opinion by Justice CHAVEZ.

Frank Smith Sales, Inc. (Frank Smith) appeals from the granting of a special appearance filed by Atlantic Aero. We hold that, because Frank Smith failed to plead sufficient facts to show Texas jurisdiction over Atlantic Aero, the trial court acted correctly in granting the special appearance.

Frank Smith operates an automobile dealership in McAllen, Texas. David Pena filed suit against Frank Smith alleging that his credit information was appropriated by Frank Smith’s employee, Todd Johnson, when Pena applied for credit to purchase a vehicle at the dealership. Pena alleged that Todd Johnson used Pena’s personal information to obtain credit in Pena’s name and then incurred charges exceeding $40,000, thereby damaging Pena’s credit reputation. Among the fraudulent charges allegedly incurred by Johnson were $6450 for charter flight services provided by Atlantic Aero. Atlantic Aero is based in North Carolina.

Frank Smith’s third-party petition alleged that “acts on the part of Third Party Defendants ... Atlantic Aero, Inc. constituted negligence and are the proximate cause of any injuries and damages alleged by Plaintiff (Pena).” Frank Smith’s third-party pleadings did not specify Atlantic Aero’s acts of negligence, nor where those allegedly negligent acts occurred. Atlantic Aero filed a verified special appearance stating that it is not a resident of Texas, has no place of business in Texas, has no employees or agents in Texas, and does not advertise in Texas.

A court may assert personal jurisdiction over a nonresident defendant only if the requirements of the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution and the Texas long-arm statute are satisfied. CSR, Ltd. v. Link, 925 S.W.2d 591, 594 (Tex.1996); see Tex.Civ.Prac. & Rem.Code Ann. § 17.042 (Vernon 1997); Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 413-14, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984). The Texas long-arm statute allows a court to exercise personal jurisdiction over a nonresident defendant “as far as the federal constitutional requirements of due process will allow.” CSR, 925 S.W.2d at 594.

Due process permits a state court to exercise personal jurisdiction over a defendant only if the defendant has some minimum, purposeful contacts with the state, and the exercise of jurisdiction will not offend traditional notions of fair play and substantial justice. Dawson-Austin v. Austin, 968 S.W.2d 319, 326 (Tex.1998); International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). A nonresident who purposefully avails himself of the privileges and benefits of conducting business in Texas must answer to a suit in Texas. CSR, 925 S.W.2d at 594; see Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475-76, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). However, a nonresident will not be subject to Texas jurisdiction based upon mere random, fortuitous, or attenuated contacts. CSR, 925 S.W.2d at 595; Burger King, 471 U.S. at 475-76, 105 S.Ct. 2174.

A nonresident’s contacts with a state can give rise to either general or specific jurisdiction. In this case, appellant claims specific jurisdiction applies. Specific jurisdiction is established if the defendant’s alleged liability arises from or is related to an activity conducted within the state. CSR, 925 S.W.2d at 595. The activity must be purposefully directed at Texas so the defendant could foresee being haled into court here. Id. Single or even occasional acts are not sufficient to support jurisdiction if their nature and quality create only an attenuated affiliation with Texas. Id. Even when minimum contacts with the forum state are established, the state court cannot exercise personal jurisdiction over the defendant if to do so would offend traditional notions of fairness. Id.

In Texas, a party may contest personal jurisdiction by filing a special appearance. Tex.R.Civ.P. 120a(l). A special appearance is determined by reference to the pleadings, any stipulations made by and between the parties, any affidavits and attachments filed by the parties, discovery, and any oral testimony. Tex.R.Civ.P. 120a(3).

The existence of personal jurisdiction is a question of law, but proper exercise of that jurisdiction must sometimes be preceded by the resolution of underlying factual disputes. The standard of review to determine the appropriateness of the trial court’s resolution of those facts is an ordinary “sufficiency of the evidence” review. Happy Indus. Corp. v. American Specialties, Inc., 983 S.W.2d 844, 847 (Tex.App.—Corpus Christi 1998, pet. dism’d w.o.j.). The scope of that review includes all evidence in the record. Id. If a special appearance is based on undisputed or otherwise established facts, an appellate court shall conduct a de novo review of the trial court’s order granting a special appearance. Id. The appellate court reviews the trial court’s application of law de novo. Id.

The plaintiff has the initial burden to plead sufficient allegations to show jurisdiction in Texas. McKanna v. Edgar, 388 S.W.2d 927, 930 (Tex.1965); M.G.M. Grand Hotel, Inc. v. Castro, 8 S.W.3d 403, 408 n. 2 (Tex.App.—Corpus Christi 1999, no pet.). Where the plaintiff fails to make such jurisdictional allegations, the defendant can carry its burden to defeat all bases of personal jurisdiction simply by presenting evidence that it is a nonresident. M.G.M. Grand, 8 S.W.3d at 408 n. 2. Once the defendant has produced credible evidence negating all bases of jurisdiction, the plaintiff bears the ultimate burden to establish that the Texas court has personal jurisdiction over the defendant as a matter of law. Id.

This case presents an issue regarding the scope of our review that does not appear to be answered by existing case law: when determining whether the plaintiff has met its “initial burden to plead sufficient allegations to show jurisdiction in Texas,” do we look only at the third-party plaintiffs petition, or do we also consider other documents on file, such as a response to the special appearance? The cases we are aware of focus only on the allegations in the petition, but do not mention whether the plaintiff filed any response to the special appearance that may have expanded the allegations in the petition. See Siskind v. Villa Found. For Educ ., Inc., 642 S.W.2d 434, 437 (Tex.1982); see also Mort Keshin & Co., Inc. v. Houston Chronicle Publ’g Co., 992 S.W.2d 642, 647 (Tex.App.—Hous. [14th Dist.] 1999, no pet.); see also Steve Tyrell Prods., Inc. v. Ray, 674 S.W.2d 430, 433 (Tex.App.—Austin 1984, no writ). We need not resolve this issue in this case because, even considering both the petition and the response to the special appearance, Frank Smith failed to plead sufficient allegations to show jurisdiction in Texas.

Frank Smith’s third-party petition stated only that Atlantic Aero had committed acts of negligence, without specifying what those negligent acts were, or where they occurred. Therefore, Frank Smith’s petition fell well short of pleading sufficient allegations to show jurisdiction in Texas.

In its response to the special appearance, Frank Smith argued that “Atlantic Aero committed a tort by ... negligently charging David Pena’s account $6450 without determining whether it was in fact David Pena who was chartering this jet from North (sic) Carolina to McAllen.” Frank Smith attached excerpts from David Pena’s deposition, wherein he describes verifying with Atlantic Aero that the charges on his credit card were for a chartered flight arranged by a “David Pena,” and a copy of an itinerary showing Atlantic Aero flying “Beth Pena” and “Kim Pena” from Charleston, South Carolina to McAl-len, Texas at an expense of $6450. Even if we consider the response as “pleadings,” it fails to allege that Atlantic Aero committed a tort in Texas. The tort identified in the response is “negligently charging” Pena “without determining whether it was in fact David Pena.” Frank Smith does not allege that this tort was committed in Texas. Indeed, Atlantic Aero charged Pena’s account from its office in North, Carolina, and anything Atlantic Aero could have done to “determine whether it was in fact David Pena” prior to charging the account would have had to be done from North Carolina.

Frank Smith argued at the hearing on the special appearance, and on appeal, that Atlantic Aero should have checked the identification of the man claiming to be David Pena when it landed in McAllen, Texas. However, these arguments cannot be considered “pleadings.” The meaning of the term “pleadings” must be limited at least so as to exclude matters not filed prior to the special appearance hearing. These arguments cannot meet Frank Smith’s “initial burden” to plead sufficient allegations to show jurisdiction in Texas.

Because Frank Smith failed to meet this “initial burden,” Atlantic Aero was entitled to be excused from answering Frank Smith’s lawsuit in Texas on the basis of its verified special appearance stating that it is not a Texas resident. We sustain the order of the trial court granting Atlantic Aero’s special appearance.

      . Atlantic Aero contends that these evidentia-ry materials should not be considered because they were not timely filed. We hold that, even if these materials are available for consideration, Frank Smith has failed to meet its burden.


author: JOHN E. POWERS, Justice (Retired).

text:
    Lin GRIGSBY, Appellant, v. Mike MOSES, Commissioner of Education of the State of Texas; The Texas Education Agency, by and through the Commissioner of Education; and Granbury Independent School District, a Public Body Corporate, Appellees.
    No. 03-00-00099-CV.
    Court of Appeals of Texas, Austin.
    Oct. 26, 2000.

      Daniel A. Ortiz, Ortiz & Robinson, L.L.P., Arlington, for appellant.
    Frank J. Knapp, Jr., Asst. Atty. Gen., Administrative Law Section, Austin, for Moses & Texas Educ.
    Eric W. Schulze, Walsh, Anderson, Brown, Schulze & Aldridge, P.C., Austin, for Granbury.
    Before Chief Justice ABOUSSIE, Justices KIDD and POWERS.

       Before John E. Powers, Senior Justice (retired), Third Court of Appeals, sitting by assignment. See Tex.Gov’t Code Ann. § 74.003(b) (West 1998).

   JOHN E. POWERS, Justice (Retired).

Lin Grigsby appeals from a district-court judgment affirming a decision of Mike Moses, Commissioner of Education, in a suit brought by Grigsby against the Commissioner and her employer, the Granbury Independent School District (the “District”). We will affirm the judgment.

THE CONTROVERSY

The District has established written “policies” or rules governing employee complaints regarding conditions of their employment. So far as they apply here, the rules provide as follows:

1. “Complaints shall be heard in informal administrative conferences” and “an informal presentation of the complaint to the” District board of trustees, as set out below, “unless the board grants a hearing.”

2. “[Ujnless extended by mutual consent,” all time limits fixed in the rules must “be strictly complied with.”

3. A complaining employee must “meet with [her] principal or immediate supervisor within 15 days of the time [she] first knew ... of the event or series of events causing the complaint.”

4. If dissatisfied with the “outcome” of such meeting, the employee may request a meeting with the District superintendent to “discuss” the complaint.

5. If dissatisfied with the “outcome” of her meeting with the superintendent, the employee may request in writing that the “matter” be placed on the agenda at a meeting of the District board of trustees. After requiring that the superintendent inform the employee of the date, time, and place of the board meeting, the rules state as follows:

The Board President may set reasonable time limits on complaint presentations. The Board shall listen to the complaint, but is not required to respond or take any action on the matter. The lack of official action by the Board upholds the administrative decision [of the superintendent].
Employees who are granted a hearing shall be afforded that hearing with the Board in a meeting that includes the hearing as an item in the posted agenda or with the Board’s designee. If the Board conducts the hearing, it shall make and communicate its decision at any time up to and including the next regularly scheduled Board meeting.

In addition to her classroom-teaching duties at Granbury High School, Grigsby coaches tennis, a sport that extends over both the spring and fall semesters of the school year. For coaching tennis, she receives a single stipend. Other sports at the school typically begin and end within a single semester. This enables other employees to coach different sports in different semesters and thereby earn two stipends in the school year. Believing this to be inequitable and claiming an entitlement to a second stipend, Grigsby initiated the series of “informal administrative conferences” contemplated by the rules outlined above. She did not, however, request the initial meeting with her principal until well after the expiration of fifteen days from the date she first knew of the events giving rise to her complaint.

The principal resolved Grigsby’s complaint on the ground that he could “not grant [Grigsby] relief because the complaint was not filed in a timely manner according to” the rules. The superintendent resolved her complaint on the same ground, stating he supported the principal’s action in not granting her relief “due to the complaint ... not being filed in a timely manner according to” the rules. An uncontradicted affidavit in the administrative record, made by the president of the board of trustees of the District, states “the Board after due deliberation took no action on” Grigsby’s complaint following her presentation to that body. The Commissioner “denied” Grigsby’s “appeal” to him on the same ground. The district court affirmed the Commissioner’s decision.

In her appeal to this Court, Grigsby contends the district court erred because, as a matter of law, the District waived the fifteen-day requirement “by allowing a grievance presentation” at the meeting of the board of trustees. Consequently, the Commissioner’s decision was arbitrary and capricious. See Tex.Govt.Code Ann. § 2001.174(2) (2000).

HOLDINGS AND DISCUSSION

Grigsby endeavors to bring her case within the scope of our holdings in Havner v. Meno, 867 S.W.2d 130 (Tex.App.—Austin 1993, no writ), and Hernandez v. Meno, 828 S.W.2d 491 (Tex.App.—Austin 1992, writ denied). In Havner, we held a school district waived its right to insist upon a hearing before its board of trustees, as required by a rule of the Texas Education Agency, by the board’s making a decision on the merits of an employee’s complaint without the requisite hearing. Havner, 867 S.W.2d at 134. In Hernandez, we held a school district waived a ten-day time limitation, within which an employee was required to request a hearing, by the board’s affirmatively granting and conducting a three-day evidentiary hearing on the merits of the employee’s complaint, after which the board purported to deny relief on the ground that the hearing had not been requested within the ten days required. Hernandez, 828 S.W.2d at 494. In each case, our holding rested on the well-settled common-law rule that the waiver of a known right occurs when the person possessing the right (1) expressly relinquishes the right, (2) acts in a manner inconsistent with an intent to claim the right, or (3) fails to act in a manner consistent with an intent to claim the right. See, e.g., PGP Gas Prods. Inc. v. Reserve Equip., 667 S.W.2d 604, 609 (Tex.App.—Austin 1984, writ ref'd n.r.e.); see also Havner, 867 S.W.2d at 134; Hernandez, 828 S.W.2d at 494.

The Commissioner found the District “did not consent to waive” the fifteen-day requirement; he also found the “merits” of Grigsby’s complaint were never “addressed” at any stage of the school-district proceedings. Grigsby does not assail these findings on any basis. She does not contend the board expressly relinquished its right to insist upon compliance with the time limitation. She argues instead that the board’s mere act of “listenfing] to her complaint,” as the board was required by its rules to do, were sufficient in and of itself to constitute waiver as a matter of law because in her presentation to the board she stated her “complete case” and gave to the board without objection a packet of supporting documents. We disagree with the argument.

The administrative record contains a transcript of the board proceeding. It demonstrates only that the board listened to Grigsby’s argument in support of her complaint, without asking questions, and perhaps accepted “a packet of material” that she would be referring to in her argument. The transcript does not suggest that any documents were authenticated or offered and received in evidence; nor does it suggest that any person was called to give sworn testimony subject to cross-examination. The sole evidence of what that board did following Grigsby’s unilateral presentation is found in the uncontradicted affidavit made by the president of the board. The affiant declares therein that the board, after listening to Grigsby’s presentation, “took no action [on her complaint], thereby upholding the [superintendent’s] decision on the basis of [the] untimely filing.’’These undisputed facts cannot reasonably be viewed as amounting to an act or failure to act that is inconsistent with an intent on the board’s part to enforce the time limitation. The manner of proceeding shown by the transcript and the board’s express refusal to act on the merits of Grigsby’s complaint manifest the opposite — an intent to “listen to the complaint,” in the words of the rule, but to enforce nevertheless the fifteen-day time limitation applicable to the course of “informal administrative conferences” invoked by Grigsby’s complaint. The record does not show the waiver for which Grigsby contends in her sole assignment of error.

It is not contended that any constitutional provision, statute, or administrative practice, rule, or policy required an eviden-tiary hearing on complaints of the kind made by Grigsby.

We hold the Commissioner’s action denying Grigsby’s “appeal” to him is not shown to be arbitrary and capricious. We therefore affirm the district-court judgment.


author: KIDD, Justice.

text:
    TEXAS STATE BOARD OF PLUMBING EXAMINERS, Appellant, v. ASSOCIATED PLUMBING-HEATING-COOLING CONTRACTORS OF TEXAS, INC., Appellee.
    No. 03-00-00328-CV.
    Court of Appeals of Texas, Austin.
    Oct. 26, 2000.

      Kurt H. Kuhn, Office of the Solicitor General, Austin, for Appellant.
    Hector Deleon, Deleon, Boggins & Ice-nogle, P.C., Austin, for Appellee.
    Before Justices JONES, KIDD and YEAKEL.
   KIDD, Justice.

Associated Plumbing Heating Cooling Contractors of Texas, Inc. sued the Texas State Board of Plumbing Examiners. Following a non-jury trial, the district court rendered judgment in favor of Associated Plumbing. On appeal, the Board complains about only one aspect of the judgment — that the Board pay Associated Plumbing’s attorney’s fees. The Board contends that attorney’s fees are not recoverable as a matter of law because the underlying proceeding was substantively only an administrative rule challenge governed exclusively by the Administrative Procedure Act (APA), which does not provide for recovery of attorney’s fees. We will affirm the district court’s judgment.

Background

Associated Plumbing is a non-profit Texas association that has been approved by the Board as a provider for mandatory continuing professional education (MCPE) for licensed plumbers in the state. On September 13, 1999, acting pursuant to provisions in the Plumbing License Law, the Board adopted a revision to its rule regarding MCPE to be effective October 5, 1999. The revision provided that the Board would be the sole provider of the textbook for MCPE in Texas. See 22 Tex.Admin.Code § 365.14 (2000). Additionally, the revision prohibited any entity other than the Board from developing, producing, or distributing the MCPE textbook. Id. Finally, the revision would allow the Board to enter into an interagency contract with another state agency to develop, produce, and distribute the MCPE textbook. Id. At the same meeting, the Board voted to enter into an interagency contract with the Texas Engineering Extension Service, a division of Texas A & M University, to act as the sole provider to develop, produce, and distribute the MCPE textbook. The Board approved the Engineering Extension Service as a provider of MCPE materials and on November 11, the Board and the Engineering Extension Service executed their inter-agency contract.

Associated Plumbing commenced the underlying proceeding pursuant to provisions in the Texas Constitution, the APA and the Uniform Declaratory Judgments Act (UDJA). See Tex. Const, art. 5, § 8; Tex.Gov’t Code Ann. § 2001.038 (West 2000); Tex.Civ.Prac. & Rem.Code Ann. § 37.004 (West 1997). In the proceeding, Associated Plumbing: (1) asked the district court to construe the statute governing the Board and resolve conflicts, if any, between sections 5(d) and 12B ; (2) challenged the revision to the Board’s rules at section 365.14, sought to have the revision declared invalid, and asked the court to enjoin its promulgation; (3) asked the district court to declare the interagency contract executed by the Board and the Engineering Extension Service void; and (4) asked the district court to enjoin the Engineering Extension Service from serving as a provider for the MCPE programs for licensed plumbers. Additionally, Associated Plumbing sought recovery of its attorney’s fees from the Board pursuant to the UDJA. See Tex.Civ.Prac. & Rem.Code Ann. § 37.009 (West 1997).

In the judgment, the district court made several declarations: (1) no conflicts exist between sections 5(d) and 12B of article 6243-101; (2) the MCPE program must be provided by an individual, business, or association approved by the Board; (3) the Board was without statutory authority to adopt the revision; (4) the revision was invalid; (5) the Engineering Extension Service was not a proper entity to serve as a MCPE provider under section 12B of article 6243-101; and (6) the Engineering Extension Service may not serve as a provider for the MCPE programs for licensed plumbers. Additionally, the district court enjoined the Board from: (1) instituting the revision; (2) implementing the inter-agency agreement with the Engineering Extension Service that would grant it the exclusive right to develop, publish, and distribute material for the MCPE program; and (3) prohibiting Associated Plumbing from developing, publishing, and distributing materials conforming to the criteria to be adopted by the Board for the MCPE program for plumbers. Finally, the district court ordered the Board to pay Associated Plumbing’s attorney’s fees.

Discussion

The Board appeals only the award of attorney’s fees and contends that the entire proceeding was governed by the APA; therefore, it argues attorney’s fees were not recoverable as a matter of law. The Board argues that Associated Plumbing included a claim under the UDJA only to recover attorney’s fees and that Associated Plumbing was not “entitled to attach a redundant declaratory judgment action” solely to recover attorney’s fees. The Board argues that the substantive issue in the proceeding was a challenge to the validity of an administrative rule, and as a matter of law, the district court abused its discretion by ordering the Board to pay Associated Plumbing’s attorney’s fees.

Associated Plumbing does not dispute the fact that attorney’s fees are not recoverable in an APA declaratory judgment action. See Tex.Gov’t Code Ann. § 2001.038. Associated Plumbing’s response to the Board’s argument is that the proceeding involved more than simply a rule challenge regarding the Board’s revision to section 865.14. Associated Plumbing contends that in addition to determining the validity of the rule, it also sought a declaration under the UDJA that the Board had no authority to designate the Engineering Extension Service as the exclusive developer for MCPE materials and, further, the Board’s contract with the Engineering Extension System was invalid.

Attorney’s fees are recoverable only when provided for by statute or by the parties’ agreement. Dallas Cent. Appraisal Dist. v. Seven Inv. Co., 835 S.W.2d 75, 77 (Tex.1992). A party proceeding under the UDJA may recover its attorney’s fees. Tex.Civ.Prac. & Rem .Code Ann. § 37.009. The grant or denial of attorney’s fees under the UDJA is within the district court’s discretion and its order will not be reversed on appeal absent a showing that the court abused its discretion. Oake v. Collin County, 692 S.W.2d 454, 455 (Tex.1985); Del Valle Indep. Sch. Dist. v. Lopez, 863 S.W.2d 507, 513 (Tex.App.—Austin 1993, writ denied). The legal principle encompassed in the term “abuse of discretion” concerns a legal error committed by the district court in its award of attorney’s fees that injured or prejudiced appellants. Lopez, 863 S.W.2d at 513. A question of legal error is reviewed de novo. State v. Heal, 917 S.W.2d 6, 9 (Tex.1996); Mayberry v. Texas Dep’t of Agric., 948 S.W.2d 312, 314 (Tex.App.—Austin 1997, pet. denied).

When a plaintiff files a proceeding that only challenges the validity of an administrative rule, the parties are bound by the APA and may not seek relief under the UDJA because such relief would be redundant. Texas Educ. Agency v. Leeper, 893 S.W.2d 432, 443-44 (Tex.1994) (plaintiff not only challenging administrative order, therefore, proceeding not governed solely by APA); Young Chevrolet, Inc. v. Texas Motor Vehicle Bd., 974 S.W.2d 906, 911 (Tex.App.—Austin 1998, pet. denied). This proposition is consistent with appellate-court holdings that have concluded it is an abuse of discretion to award attorney’s fees under the UDJA when the relief sought is no greater than relief that otherwise exists by agreement or statute. See Boatman v. Lites, 970 S.W.2d 41, 43 (Tex.App.—Tyler 1998, no pet.); University of Texas v. Ables, 914 S.W.2d 712, 717 (Tex.App.—Austin 1996, no writ). It is an abuse of discretion, therefore, to award attorney’s fees under the UDJA when the statute is relied upon solely as a vehicle to recover attorney’s fees. Southwest Guar. Trust Co. v. Hardy Road 134 Joint Venture, 981 S.W.2d 951, 956 (Tex.App.—Houston [1st Dist.] 1998, pet. denied); Whiteside v. Griffis & Griffis, P.C., 902 S.W.2d 739, 747 (Tex.App.—Austin 1995, writ denied).

We agree with the Board that the district court’s construction of sections 5(d) and 12B of article 6243-101 was central to determining the validity of the revision under the APA. See Texas Alcoholic Beverage Comm’n v. Amusement & Music Operators of Tex., Inc., 997 S.W.2d 651, 658 (Tex.App.—Austin 1999 pet. dism’d w.o.j.). The district court, however, not only construed the statute to determine that there were no conflicts and that the rule was invalid, but also construed the statute to determine and declare the contract between the Board and the Engineering Extension Service void. Further, the district court enjoined the Engineering Extension Service from serving as a provider of materials for MCPE programs. We hold that these acts went beyond merely challenging an administrative rule. Because the proceeding was not solely a challenge to the Board’s revision of its rules, we hold that the district court did not abuse its discretion in ordering the Board to pay Associated Plumbing’s attorney’s fees.

The Board’s issue is overruled and the district court’s judgment is affirmed.

      . See Tex.Rev.Civ.Stat.Ann. art. 6243-101 §§ 5(d), 12B (West Supp.2000).

      . These sections address voluntary and mandatory continuing education programs for plumbers and also delineate the Board’s powers regarding these programs.


author: TIM TAFT, Justice.

text:
    Ex parte Tara Y. HULIN, Appellant.
    No. 01-00-00963-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Oct. 26, 2000.

      Tony Aninao, Houston, for appellant.
    John B. Holmes, Calvin Hartmann, Houston, for State.
    Panel consists of Justices MIRABAL, TAFT, and DUGGAN.

       The Honorable Lee Duggan, Jr., retired Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.

   OPINION

TIM TAFT, Justice.

Appellant, Tara Y. Hulin, challenges the trial court’s refusal to grant her the full habeas corpus relief she requested by lowering her combined bail for two criminal charges from $200,000 to $30,000. We address whether the trial court abused its discretion by lowering bail in one case from $100,000 to $50,000, but refusing to lower $100,000 bad in a second case. We affirm.

Facts

Appellant stands charged with two criminal offenses: criminal solicitation of a 15-year-old minor, case number 849956, and sexual assault of him, case number 849957, both alleged to have occurred on May 19, 2000. On July 17, 2000, appellant was arrested in North Carolina on these two charges, and she waived extradition. Initially, bail was set at $50,000 for each charge, but the trial court raised the bail to $100,000 each. Appellant filed a petition for writ of habeas corpus, requesting reduction of the combined bail for the two offenses to $30,000.

On August 17, 2000, the trial court heard appellant’s application. At the State’s request, the trial judge took judicial notice of complaints, attached probable cause statements, and indictments in case files 849956 and 849957. By agreement of the parties, other evidence was introduced by way of affidavits. Appellant introduced her affidavit and that of her husband, Tony Hulin. The State introduced the affidavit of Officer Gary A. Spurger, an investigator assigned to appellant’s case, and the affidavit of complainant’s mother. No live testimony was taken.

Based on its evidence, the State asserts that, over the course of several months, despite complainant’s mother’s admonitions to her not to, the 31-year-old appellant, aggressively pursued and consummated a sexual relationship with complainant. Complainant and appellant met, corresponded, and exchanged pictures of one another over the internet. During this time, appellant sent complainant numerous gifts, including a pair of her underwear, watches, jewelry, and a cordless telephone so they could communicate without being overheard.

Officer Spurger had examined appellant’s computer files, which revealed appellant had corresponded with other teenage boys in addition to complainant, including a 13-year-old in Tennessee and a 16-year-old in Massachusetts. In a November 29, 1999 conversation with complainant’s mother, appellant told her, “I’ve also had many young guys (including a Í5-YO thirty minutes away) that live close by IMing [instant messaging] me and wanting me to meet them.”

The computer files also revealed appellant had sought information to circumvent marriage laws in the United States. She e-mailed complainant that if his mom did not allow them to meet when he turned 16, “then we’ll just go to Mexico and get married. I love you!” A few days later, she e-mailed the Scottish government, inquiring if a person could marry there at age 16.

Information on appellant’s computer files also showed appellant had an interest in the case of Mary Kay LeTourneau, a Washington school teacher who had an affair with a teenage boy, was sentenced to probation, violated the court’s order to stay away from the boy, had sex with him, and became pregnant. About this, appellant said,

Mary Kay did not ‘rape’ a child. She loved, not too wisely, but too well.... Had she but known beforehand [that the age of consent in Spain is 12], Mary could have simply divorced, remarried her young man in Spain, and returned to Seattle with a fully valid ‘full faith and credit’ marriage, protected under United States law. Her ‘crime’ is to have made a procedural error, not to have damaged anyone. She just didn’t do the paperwork right.

Appellant sent complainant a videotape movie of the LeTourneau story.

Officer Spurger attested as follows to other communications from appellant to complainant or made by appellant about complainant:

On March 21, 2000, the Defendant told the complainant, T don’t want to have these fat ugly thighs when I make love to my baby.’ On March 24, 2000, the Defendant sent him an email greeting card part of which said T can’t do a damn thing today but think about making love with you.’ In her internet profile, the Defendant listed the following: ‘FULL NAME: Tara Dawn Younts Hu-lin ( [complainant’s last name] ) SEX: Right now, unfortunately, only phone sex with my baby, [complainant]. It’ll have to do for now until we are able to make mad, passionate love someday soon. IF YOU COULD MEET ONE PERSON, DEAD OR ALIVE, WHO WOULD IT BE? [Complainant!] And I will meet him soon!’ On April 2, 2000 the Defendant told the complainant, T think you’re the sexiest guy alive! Everything you say and do turns me on! I can only imagine what it’s going to be like to actually be with you in the flesh! I cannot wait.’ On April 20, 2000, the Defendant told the complainant that she had ordered an HIV test for him. ‘PLEASE make sure that you go ahead and do the test and send it in as soon as possible. I know that you love me and you want to protect me ... right? It’s just something that I need to know. I would still be with you if you were HIV positive but you’d just have to use protection for now.’ On May 5, 2000, the Defendant told him, T want to see and touch you so badly.’
On May 17, 2000 the Defendant told the complainant T don’t want to jeopardize my plans with you this weekend by pissing Tony off or looking suspicious.’ In reference to the boy’s parents, she said, T know they despise me but they love you and so do 1.1 want them to see that I’m not a whacko, despite the fact that I’m in love with their 15 year old son.... I just hope that this weekend doesn’t screw things up. We need to be extremely careful! Your mom would be so pissed if she found out that I didn’t respect her wishes to stay away from you.’

Officer Spurger spoke to complainant, who stated that on May 19, 2000, appellant flew from her home in North Carolina, and picked him up at a friend’s house. Later that day, she drove them to her room at the Intercontinental Airport Mariott where they had sexual intercourse numerous times. Complainant also stated he had sexual intercourse with appellant at the Intercontinental Airport Mariott several more times on May 20 and May 21.

Officer Spurger also spoke with a friend of complainant who stated he had met appellant when she came to Houston in May. The friend stated that on July 12, 2000, he received a phone call from appellant in which she told him that the police had taken her computer, and not to tell the police anything except that they went to a concert in Houston.

Officer Spurger obtained records from the Greenspoint Mariott that showed appellant had reserved a room there for four nights beginning August 28, 2000.

In her affidavit, complainant’s mother stated that if appellant’s bond were reduced, she would be a threat to complainant because, even after the police seized appellant’s computer, she called to ask if that meant she could not talk to complainant anymore. When complainant’s mother told appellant, yes, that was the case, appellant asked complainant’s mother twice to tell complainant that she loves him. During the time appellant was communicating with complainant, she asked complainant to have his mother view the tape regarding Mary Kay LeTourneau so she could better understand her relationship with complainant.

Complainant’s mother stated that appellant seems to be obsessed with her son. She sternly warned appellant several times not to meet her son in person, and that, if she did, she would be arrested. She said that appellant told her that she would respect her wishes, yet despite this, she flew to Houston and met with her son. Her son told her that, when appellant came to Houston, she drove by their home, so she knows where they live.

Complainant’s mother stated that her son suffers from bipolar disorder and depression; that he has come a long way in realizing appellant’s feelings for him were not normal, but she felt that one phone call to her son from complainant would put him back at square one emotionally. At one point in complainant’s and appellant’s correspondence, he told appellant he was feeling depressed, to which appellant responded that, if he needed to leave this world, she would understand. Complainant’s mother expressed concern that, if appellant contacted her son again, she might again encourage suicide, and that, if appellant were released on bond, she would have to babysit her telephone and watch her son 24 hours a day. She stated that, because complainant suffers from panic attacks, he is a homebound student, making him more vulnerable to contact. She stated that, between the time appellant was questioned and arrested, they were living a nightmare, making sure that appellant and her son had no contact and that her son did not commit suicide.

In his affidavit, Tony Hulin swore to the following. He and appellant have been married 10 years, living their last seven years in their Davidson County, North Carolina home, which they own and for which they are paying off a mortgage. Living with them are his 13-year-old son, by a prior marriage, and their eight-year-old daughter. Appellant has been a good mother to these children, active at their schools and in the community. There has never been inappropriate conduct between her and the children, and she has always assisted him in providing them a safe and healthy environment.

Appellant has lived her entire 31 years in Davidson County, North Carolina, where her mother, father, and brother also reside in close proximity to the Hulin home. Appellant has no relatives living outside the country. Upon her arrest at their home, appellant agreed to be extradited to Texas to answer the charges against her.

Appellant worked for the United States Postal Service for six years, but has been off work for the last year and one-half because of a back injury. During this time they have had to get by without her income.

Appellant has never displayed any signs of violence, nor been arrested before this incident. If appellant were released on bond, she would not pose a flight risk, and he would assist in insuring that she make all of her court appearances in Houston.

If appellant were released on bond, her husband would disconnect all internet services, and remove the family computer from their home. He is willing to disconnect the long distance telephone service and block the complainant’s phone number from their incoming service.

Appellant was unable financially to make bond when it was set at $200,000. However, she could borrow $3,000 from her grandmother to pay the 10 per cent premium for a $30,000 bond.

In her affidavit, appellant swore to the following. Although she suffers from mental illness, she believes she is competent to make the affidavit. She does not personally have the funds to make the bail set at $200,000, nor the 10 percent premium required by a bondsman. She does not have sufficient property to post as security for a bond in the amount of the bail. She has been unable to borrow sufficient funds from friends and relatives to make the $200,000 bail.

She has no prior arrests or convictions. If released on bond, she will pose no flight risk, but will report to the court as instructed. Since her arrest, she has made no attempts to contact the complainant, despite the fact that, since she has been in custody, she has had access to the telephone and United States mail. If she is released on bond, she assures the court she will continue not to have contact with complainant, and will follow any other conditions the court places on the bond.

At the conclusion of the hearing, the trial judge lowered the bail on the criminal solicitation of the minor charge to $50,000, but refused to lower the bail on the sexual assault charge. Appellant gave timely notice of appeal.

Propriety of Bail

In her sole point of error, appellant asserts the trial court erred by refusing to lower the pretrial bail on the sexual assault charge and refusing to lower the bail on the criminal solicitation of a minor charge any more than $50,000.

There is no precise standard for reviewing bond settings on appeal. Ex parte Pemberton, 577 S.W.2d 266, 267 (Tex.Crim.App.1979); Wright v. State, 976 S.W.2d 815, 819 (Tex.App.—Houston [1st Dist.] 1998, no pet.). A reviewing court is guided by article 17.15 of the Texas Code of Criminal Procedure. Wnght, 976 S.W.2d at 819. Article 17.15 provides:

The amount of bail to be required in any case is to be regulated by the court, judge, magistrate or officer taking the bail; they are to be governed in the exercise of this discretion by the Constitution and by the following rules:
(1) The bail shall be sufficiently high to give reasonable assurance that the undertaking will be complied with.
(2) The power to require bail is not to be so used as to make it an instrument of oppression.
(3) The nature of the offense and the circumstances under which it was committed are to be considered.
(4) The ability to make bail is to be regarded, and proof may be taken upon this point.
(5) The future safety of a victim of the alleged offense and the community shall be considered.

Tex.Code Crim.P.Ann. art. 17.15 (Vernon Supp.2000).

It is the defendant’s burden to show that bail is excessive. Ex parte Rubac, 611 S.W.2d 848, 849 (Tex.Crim.App.1981); Ex parte Willman, 695 S.W.2d 752, 754 (Tex.App.—Houston [1st Dist.] 1985, no pet.). The primary factors to be considered in determining what constitutes reasonable bail are the punishment that can be imposed and the nature of the offense. Rubac, 611 S.W.2d at 849; Hughes v. State, 843 S.W.2d 236, 237 (Tex.App.—Houston [14th Dist.] 1992, no pet.). Other circumstances and factors to be considered in determining the amount of bail include: family ties, residency, ability to make bond, aggravating factors involved in the offense, the defendant’s work history, prior criminal record, and previous outstanding bonds. Rubac, 611 S.W.2d at 849-50; Willman, 695 S.W.2d at 754. The ability to make bail does not alone control the amount of bail. Ex parte Charlesworth, 600 S.W.2d 316, 317 (Tex.Crim.App.1980). The future safety of a victim of the alleged offense and the community shall be considered. See Ex parte Prelow, 929 S.W.2d 54, 56 (Tex.App.—San Antonio 1996, no pet.).

A. Nature of the Offense and Circumstances of Its Commission

The nature of the offense necessarily involves the punishment authorized by law. Ex parte Ivey, 594 S.W.2d 98, 99 (Tex.Crim.App.1980). Here the offenses charged are criminal solicitation of a minor, a felony of the third degree, and sexual assault of a child, a felony of the second degree. Because appellant has no prior criminal history, the range of punishment she faces for criminal solicitation of a minor is five years deferred adjudication community supervision to 10 years imprisonment and up to a $10,000 fine, if punishment is tried to a judge, and two years regular community supervision to 10 years imprisonment and up to a $10,000 fine, if punishment is tried to a jury. The range of punishment appellant faces for sexual assault of a child is five years deferred adjudication community supervision to 20 years imprisonment and up to a $10,000 fine, if punishment is tried to a judge, and two years community supervision to 20 years imprisonment and up to a $10,000 fine, if punishment is tried to a jury.

The trial judge had before her uncontro-verted evidence of a 31-year-old woman who pursued, and accomplished the sexual molestation of, a 15-year-old boy, a crime in which an adult preys upon and exploits the vulnerability and immaturity of a child. Sexual assault of a child is a serious offense. See Compian v. State, 7 S.W.3d 199, 200 (Tex.App. — Houston [14th Dist.] 1999, no pet.). Moreover, the evidence of the circumstances surrounding commission of the offense supported a conclusion that it was more than a single, isolated event, but occurred multiple times over a period of three days. There was additional evidence that appellant reserved a room for four nights in Houston in August, raising the question whether she intended to repeat the charged conduct. Further, there was evidence that appellant corresponded by internet with other young boys in other states.

B. Aggravating Factors Involved in the Offense

In considering what constitutes reasonable bail, aggravating factors involved in the offense should be considered. Rubac, 611 S.W.2d at 850. Where the nature of the offense is serious and involves aggravating factors, the likelihood of a lengthy prison sentence following trial is great. Compian, 7 S.W.3d at 201 (citing Ex Parte Sandoval, 576 S.W.2d 634, 636 (Tex.Crim.App.1978)).

To prove the essential elements of sexual assault, the State simply has to prove (1) a person, (2) intentionally or knowingly, (3) caused the sexual organ of a child, (4) to contact the sexual organ of another person. See Tex.Pen.Code Ann. § 22.011(a)(2)(C). To prove the essential elements of criminal solicitation of a minor to sexual assault, the State simply has to prove: (1) a person, (2) with an intent that sexual assault of a child be committed, (3) requests, commands, or attempts to induce a minor to engage in specific conduct, that under the circumstances surrounding the actor’s conduct, as the actor believes them to be, would make the minor a party to the commission of sexual assault of a child. See Tex.Pen.Code Ann. § 15.031(a).

Here, the trial judge was presented with prima facie evidence tending to establish the essential elements of both offenses. However, beyond the evidence tending to establish the facts necessary for an essential-elements conviction, the trial judge was also presented with prima facie evidence tending to establish both mitigating and aggravating factors. Mitigating factors that tended to be established by the prima facie evidence were that: (1) appellant has no prior criminal history; and (2) appellant is mentally ill.

The prima facie evidence tended to establish a number of aggravating factors: (1) appellant gave solace, if not tacit encouragement, to complainant’s self-destructive, suicidal notions, yet was anxious to protect herself from any harm that might befall her from a sexually transmitted disease from the illicit relationship she was pursuing; (2) while professing love for complainant, she gave solace to complainant’s self-destructive, suicidal notions; (3) the complainant is fragile mentally and emotionally, suffering from bipolar disorder and depression; (4) by molesting complainant, appellant disregarded and disrespected her role as a wife and mother and the maternal wishes of a fellow mother, complainant’s, that her child not be violated; (5) appellant engaged in the illicit conduct in the face of complainant’s mother’s warning that she would be arrested if she did so; (6) appellant lied to complainant’s mother, telling her she would not meet with complainant, yet she did so surreptitiously; (7) appellant acted deceitfully toward her husband when she left North Carolina to come to Houston; (8) appellant pursued complainant not in just a chance encounter, but over a period of months; (9) appellant involved one of complainant’s friends in arranging the surreptitious, illicit liaison between herself and complainant; and (10) after her computer was seized, appellant sought to obstruct justice by encouraging complainant’s friend to lie about what appellant and complainant did on the weekend in question.

In weighing the evidence supporting the mitigating and aggravating factors, the trial judge could have reasonably given greater weight to the evidence supporting the aggravating factors so as to conclude that, at trial, appellant would receive punishment toward the high end of the range of punishment for the charged offenses. Pretrial bond in these kind of cases should be set sufficiently high to secure the presence of the accused at trial because the accused’s reaction to the prospect of a lengthy prison sentence might be not to appear. Convpian, 7 S.W.3d at 201.

C. Sufficiency of the Bail Amount to Assure Court Appearances

The facts paramount to setting bail sufficiently high to assure appellant’s court appearances are: (1) her residence out of state; and (2) the aggravated nature of her alleged crimes, which could produce lengthy prison sentences. Appellant’s willingness to be extradited should also be considered, along with her husband’s assurances he would be sure she would appear. If assuring appellant’s presence were the only consideration, appellant’s request for $80,000 total bail might not be unreasonable.

D. Appellant’s Ability to Make Bail

Appellant testified she could make a bond in the amount of $30,000, which is considerably below the $150,000 bail. Ability to make bail is a factor to be considered, but ability alone, even indigen-cy, does not control the amount of bail. Ex parte Penagos, 810 S.W.2d 796, 798 (Tex.App.—Houston [1st Dist.] 1991, no pet.). Although appellant testified she could not make bail of $200,000, or even 10 percent of it, she did not address her ability to make bail at $150,000, or 10 percent of that. This is normally fatal to a claim that lowered bail is too high. See Roy v. State, 854 S.W.2d 931, 931 (Tex.App.—Houston [14th Dist.] 1993, pet. ref'd) (holding, in absence of some evidence that appellant has unsuccessfully attempted to secure a bond in the lowered amount set by the court, no issue was presented for review).

E. Future Safety of the Victim

The trial judge considered affidavit evidence from complainant’s mother that: if appellant were released, she would have to babysit her telephone and watch her son 24 hours a day; appellant knew where they lived; and one phone call from appellant to her son could put him back at square one emotionally. On the other side of this issue was appellant’s affidavit testimony that, despite her access to phones and mail while in jail, she had not attempted to contact complainant. Further, appellant gave the court her assurance that, if released on bail, she would continue to avoid contact with complainant and abide by whatever conditions the court placed on her bond. Also weighing in appellant’s favor on this issue were her husband’s assurances that, if appellant were granted bail, he would eliminate the internet and long distance service to their home.

In weighing this issue, the trial judge could reasonably have heavily weighted the evidence tending to show appellant’s deceitfulness discussed above under “Aggravating Factors Involved in the Offense,” as well as the evidence tending to support a proclivity to look for ways to circumvent the law, as in her interest in going to other countries where the age of consent to marry is lower than in Texas. Under the unusual circumstances of this case, it is likely the trial court gave more weight to protecting the victim than any other factor, and we do not find this to be unreasonable.

F. Flight Risk Considerations

Considerations such as family ties, residency, work history, prior criminal record, and adherence to prior bonds are all designed to gauge a defendant’s flight risk potential. Here, the trial judge could have reasonably decided that appellant’s lack of a criminal history, waiver of extradition when arrested, and assurances of compliance with the bond were outweighed by her lack of family or residential ties to Harris County, her unemployment, and the evidence of her deceitfulness and disrespect for the law.

G. Not an Instrument of Oppression

Generally, setting bail above that necessary to assure compliance with court appearances has been considered oppressive. See Ex parte Harris, 733 S.W.2d 712, 714 (Tex.App.—Austin 1987, no pet.). With the addition of consideration of future danger to the victim to article 17.15 in 1985, however, high bail takes on another function. Naturally, the trial court may condition granting a high bond upon having no contact with the victim. Nevertheless, considering both the mental instability of appellant and the victim, as well as the life-threatening vulnerability of the victim, we cannot say bail set at $150,000 is an instrument of oppression under the facts of this case.

Conclusion

Based on the evidence before the trial judge and the foregoing considerations, we cannot say that the bah set by the trial judge was unreasonable or constituted error. We overrule appellant’s sole point of error. We affirm the judgment.

      . Tex.Pen.Code Ann. 15.031(a) (Vernon Supp. 2000).

      . Tex.Pen.Code Ann. 22.011(a)(2)(C) (Vernon Supp.2000).

      . Tex.Pen.Code Ann. 15.031(e) (Vernon Supp. 2000); Tex.Pen.Code Ann. 22.011(f) (Vernon Supp.2000).

      . Tex.Pen.Code Ann. 22.011(f) (Vernon Supp. 2000).

      . Tex.Code Crim.P.Ann. art. 42.12 § 5 (Vernon Supp.2000); Tex.Pen.Code Ann. 12.34(a),(b) (Vernon 1994).

      . Tex.Code Crim.P.Ann. art. 42.12 § 4(b)(c), § 3(b) (Vernon Supp.2000); Tex.Pen.Code Ann. § 15.031(a) (Vernon Supp.2000); Tex.Pen. Code Ann. § 22.011(f) (Vernon Supp.2000); Tex.Pen.Code Ann. § 12.34(a),(b).

      . Tex.Code Crim.P.Ann. art. 42.12 § 5 (Vernon Supp.2000); Tex.Pen.Code Ann. 12.33(a),(b) (Vernon 1994).

      . TexCode Crim.P.Ann. art. 42.12 § 4(b)(c), § 3(b) (Vernon Supp.2000); Tex.Pen.Code Ann. § 12.33 (Vernon 1994).

      . Rights of Crime Victims Act, 69th Leg. R.S, ch.235, § 2, 1985 Tex.Gen.Laws 2217, 2219.


author: MARGARET GARNER MIRABAL, Justice.

text:
    Arnold RAMOS, Appellant, v. The STATE of Texas, Appellee.
    No. 01-99-00188-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Oct. 26, 2000.

      William C. Hodge, Houston, for Appellant.
    John B. Holmes, Luther A. Dulevitz, Houston, for State.
    Panel consists of Justices MIRABAL, TAFT, and DUGGAN.

       The Honorable Lee Duggan, Jr., retired Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.

   OPINION

MARGARET GARNER MIRABAL, Justice.

Appellant, Arnold Ramos, filed a pretrial motion to suppress evidence seized pursuant to a search warrant. After the trial court denied the motion, and subject to being allowed to pursue this appeal, appellant pled guilty to the offense of possession of marihuana in a useable quantity of more than 50 pounds and less than 2000 pounds. The trial court assessed punishment at seven years confinement.

In a single issue, appellant asserts the trial court erred in denying his motion to suppress the evidence seized under the search warrant, arguing that the information in the affidavit underlying the search warrant was insufficient to establish probable cause. We affirm.

The Affidavit

On July 9, 1998, Houston Police Officer J. Fondon obtained a narcotics search warrant for a Harris County residence. Officer Fondon’s affidavit in support of the search warrant states in relevant part:

It is the belief of the affiant, and the affiant hereby charges and accuses that [an unnamed, but described, Hispanic male at the residence] is in possession of the [cocaine and/or marihuana], having the intent to deliver said controlled substance to person or persons unknown. My belief of the aforesaid statement is based on the following facts: Your affi-ant received information that the listed location was being used by a Hispanic male to store numerous pounds of marijuana and possibly cocaine with the intent to distribute that marijuana and cocaine to other individuals throughout the area. Surveillance was conducted on July 8, 1998 at the location for several hours to establish that there were two individuals in the residence. One being the Hispanic male who lives there and a Black male who spent the night and is driving a white Chevrolet pick up truck. Texas plate RT8360. Surveillance was conducted last night until 6 am this morning. Around 2:30 am a black vehicle arrived at the residence and a few minutes later a white Explorer arrived along with the previous white truck. All occupants went inside around 3:30 am the black vehicle left with an unknown occupant. Surveillance was again conducted around 8:30 am the white truck was still in the driveway were [sic] it was at 6 am. Around 11 am July 9,1998 a Black male got into the white pick up and left the location, officers were unsure if he put anything into the vehicle. The Black male made several heat runs through the neighborhood and then left north on Cook road. The suspect then went east on Bellaire to the Beltway. The suspect then went south on the Beltway service road. Officer Craig observed a dark green trash bag in the bed of the pick up truck. Officer Gregory (marked unit) ran the plate and found that it came back with city traffic warrants. After the vehicle passed Beechnut Officer Gregory attempted to stop the vehicle and the suspect refused to stop and continued south on the Beltway service road. When the suspect got to the next intersection he began to drive at a high rate of speed and Officer Gregory put out the chase over the police radio. The suspect turned down Boone Loop and jumped out of the truck and fled on foot into the woods and was arrested by Officer Gregory. Your affi-ant went to the pick up truck and checked the plastic trash bag and noticed a distinct odor of marijuana, the bag weighing approximately 20 pounds. Based on the fact that your affiant has received information about this location storing a great amount of marijuana and cocaine for sell [sic], and that the pick up truck was parked at the location over night and after it left the location it made no other stops that would allow the plastic bag to be placed in the truck except from the listed residence. And that the plastic bag contains a green leafy substance that smells like marijuana and looks like marijuana weighing approximately 20 pounds. With the information obtained, your affiant believes there is a greater amount of marijuana and possibly an unknown amount of powder cocaine being stored in [the described residence].

At a suppression hearing, held January 13, 1999, Officer Fondon was the only witness. Officer Fondon confirmed his statements in the affidavit; he did not offer any information that was not already included in the affidavit. He also confirmed that the magistrate granted the warrant based on his affidavit, rather than any supplemental testimony or other evidence.

Appellant does not dispute the accuracy of the statements in the affidavit, nor does he dispute the officer’s testimony confirming the statements; rather, he argues that the facts alleged in the affidavit are not sufficient to establish probable cause.

Standard of Review

Because the facts of this case do not involve an evaluation of credibility of any witness by the trial court and probable cause is a question of law, we conduct a de novo review of the trial court’s determination. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997); see also, Maestas v. State, 987 S.W.2d 59, 60 (Tex.Crim.App.1999); Wynn v. State, 996 S.W.2d 324, 326-27 (Tex.App.—Fort Worth 1999, no pet.). This standard includes a de novo review of the affidavit. Id.

Analysis

Applying this de novo standard, we consider appellant’s issue. Appellant asserts the affidavit is insufficient because: (1) it fails to describe the informant, specifically in terms of reliability and credibility; (2) there was a gap in the surveillance (between 6:00-8:30 a.m.); and (3) no one saw the trash bag being loaded into the truck.

Whether the facts alleged in a probable cause affidavit sufficiently support a search warrant is determined by examining the totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 228-30, 103 S.Ct. 2317, 2326-28, 76 L.Ed.2d 527 (1983); Ramos v. State, 934 S.W.2d 358, 362-63 (Tex.Crim.App.1996); see also Tex.Code CrimPAnn. art. 18.01(b) (Vernon Supp.2000). The allegations are sufficient if they justify a conclusion that the object of the search is probably on the premises. Ramos, 934 S.W.2d at 363.

Only the facts found within the four corners of the affidavit may be considered. Jones v. State, 833 S.W.2d 118, 123 (Tex.Crim.App.1992). However, reasonable inferences may be drawn from the affidavit. Gibbs v. State, 819 S.W.2d 821, 830 (Tex.Crim.App.1991). We interpret an affidavit in a common sense and realistic manner. Id.

Appellant complains that the affidavit contains insufficient information about the informant. We agree that the statements pertaining to the informant, standing alone, are inadequate to establish probable cause. See Powell v. State, 505 S.W.2d 585, 586 (Tex.Crim.App.1974). However, the affidavit does not rely solely on the informant’s statement to the officer. Rather, it also relies on the observations of the officers during their surveillance of the house, and the connection between the house and the truck that contained the marihuana.

During the surveillance the police observed appellant, whose description was consistent with the information received from the informant. In the morning, a man who had spent the night in the house exited the house and got into a white pickup truck that appeared to have been in the driveway all night. Although there was a gap in surveillance during the early morning hours, the affidavit states the truck was in the same place, indicating it had not been moved during the time the surveillance team was gone. Once the truck left the house, the affidavit shows that it made no stops such as to permit it to pick up a 20-pound bag. The presence of the large, dark bag in the white bed of the truck and the “heat runs” through the neighborhood indicate that the driver knew that there was a bag in the truck that contained contraband. Because 20 pounds of marihuana has substantial value, it is reasonable to infer that it was not left overnight in the truck, but rather was placed in the bed of the truck when the driver exited the house and entered the truck. The informant had said there were numerous pounds of marihuana at the house.

We conclude that the allegations in the affidavit justify a reasonable conclusion that marihuana was at the residence. Accordingly, we overrule the issue.

We affirm the trial court’s judgment.

      . We are aware that there is disagreement about the correct standard of review in a case such as this. See Daniels v. State, 999 S.W.2d 52, 54 (Tex.App.—Houston [14th Disl.] 1999, no pet.); State v. Bradley, 966 S.W.2d 871, 873-74 (Tex.App.—Austin 1998, no pet.).

      . "Heat runs” is a term used to describe a driver’s efforts to determine whether or not he is under surveillance.