author: TERRY JENNINGS, Justice.

text:
    BHP BILLITON PETROLEUM (AMERICAS) INC., Appellant, v. ATLANTIA OFFSHORE LIMITED, Appellee.
    Nos. 01-09-00509-CV, 01-09-00647-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Dec. 4, 2009.

      Glenn Richard Legge, Legge, Farrow, Kimmitt, McGrath & Brown L.L.P., Houston, TX, for Appellant.
    Adam P. Schiffer, Schiffer Odom Hicks & Johnson PLLC, Houston, TX, for Appel-lee.
    Panel consists of Justices JENNINGS, HIGLEY, and SHARP.
   OPINION

TERRY JENNINGS, Justice.

In this interlocutory appeal, appellant, BHP Billiton Petroleum (Americas) Inc., challenges the trial court’s temporary injunction enjoining it from pursuing a “second-filed arbitration” on its claim for breach of a construction contract against appellee, Atlantia Offshore Limited. Concluding that the arbitration involved “the same parties and same disputes” subject to an already pending arbitration proceeding, the trial court stayed and abated this “second-filed arbitration.” BHP also challenges the trial court’s order by petition for writ of mandamus. In three issues, BHP contends that the trial court abused its discretion in enjoining it “from pursuing its contractual right to arbitrate its $67 million construction defect claim before arbitrators selected pursuant to the arbitration agreement,” in staying the arbitration initiated by BHP and allowing the other “special purpose arbitration panel to extend its jurisdiction to matters not submitted” to it, and in “refusing to enjoin the limited purpose arbitration panel from arbitrating disputes not submitted” to it. In its petition for writ of mandamus, BHP also contends that it does not have an adequate remedy by appeal.

We dismiss the interlocutory appeal and deny the petition.

Factual and Procedural Background

In July 2005, Atlantia entered into an Engineering and Construction Services Agreement (the “Agreement”) with BHP to engineer and construct an offshore platform to be erected in the Gulf of Mexico. Schedule 1 of the Agreement, entitled “Dispute Resolution,” contains the following dispute resolution procedures:

1. SETTLEMENT OF DISPUTES
The Parties agree that any dispute, which arises hereunder, shall be resolved in accordance with the dispute resolution procedures (“Procedure”) set forth in this Schedule 1. This Procedure shall apply to any claim or dispute arising under or related to any of the Contract Documents (whether arising in contract, tort or otherwise, and whether arising at law or in equity), including (a) any dispute regarding the construction, interpretation, performance, validity or enforceability of any provision of the Contract Documents or whether either Party is in compliance with, or breach of, any provisions of the Contract Documents, and (b) the applicability of this Procedure to a particular dispute (a “Dispute”). The provisions of this Procedure shall be the exclusive method of resolving Disputes.

Section 1.1 of Schedule 1, entitled “Negotiation to Resolve Disputes,” provides that, “[i]f a Dispute arises, the Parties shall attempt to resolve such Dispute” through senior management negotiations conducted promptly and in good faith and, if unsuccessful, twenty days later, “then either Party may submit such Dispute to binding arbitration under this Procedure by giving written notice to the other Party (an “Arbitration Notice”).” Schedule 1 further provides,

1.2 Selection of Arbitrators

a. Any arbitration conducted under this Procedure shall be heard by three (3) arbitrators (the “Arbitrators”), each qualified by his or her education, experience and training to resolve the disputed matters, selected in accordance with Clause 1.2....
Each party shall appoint one (1) arbitrator within (30) days of the filing of the arbitration, and the two arbitrators so appointed shall select the presiding arbitrator within thirty (30) days after the latter of the two arbitrators has been appointed by the Parties to the Dispute. If a Party to the Dispute fails to appoint its Party-appointed arbitrator or the two Party-appointed arbitrators cannot reach an agreement on the presiding arbitrator ..., then the American Arbitration Association ... shall serve as the appointing authority and shall appoint the remaining of the three arbitrators not yet appointed in accordance with its then-current Commercial Arbitration Rules (“Rules”) ... ■ cr

1.3 Conduct of Arbitration

The Arbitrators shall expeditiously (if possible, within 90 days after its selection) hear and decide all matters concerning the Dispute.... The Arbitration shall be governed by the U.S. Federal Arbitration Act and conducted in accordance with the Rules (excluding rules governing the payment of arbitration, administrative or other fees or expenses to the Arbitrators or the AAA), to the extent that such Rules do not conflict with the terms of this Contract. The Arbitrators shall have the power ... (b) to grant injunctive relief and enforce specific performance.... The decision of the Arbitrators (which shall be rendered in writing) shall be final, not subject to appeal, binding upon the Parties, and may be enforced in any court of competent jurisdiction....

On March 18, 2008, BHP sent Atlantia a notice of breach of the Agreement based upon alleged defects in the platform, and BHP demanded that Atlantia perform remedial or warranty work. On October 14, 2008, BHP sent Atlantia another letter, referencing its prior notice of breach and asserting that it had incurred $28 million in costs for certain services associated with the warranty work performed by Atlantia as well as other damages attributable to the delays in the work, and BHP demanded that Atlantia reimburse it for its costs. BHP stated that its demand also triggered the parties’ obligations to commence senior management negotiations under the Agreement.

Pui'suant to BHP’s letter and the Agreement, the parties commenced senior management negotiations, but the negotiations were unsuccessful. On March 16, 2009, BHP sent a letter to Atlantia acknowledging that the parties had not been able to resolve their dispute, and BHP stated its intent to “instruct external counsel to proceed with drawing upon” a letter of credit (the “LOC”) and “to commence arbitration proceedings” under the Agreement.

On March 17, 2009, Atlantia filed an application for a temporary restraining order and temporary injunction in the trial court. In this application, Atlantia stated that it had been obligated by the Agreement to furnish a $9 million LOC to secure its performance. Atlantia acknowledged that a dispute had arisen between the parties over payment of expenses incurred by BHP during the course of Atlantia’s warranty work, but Atlantia contended that BHP’s threat to immediately draw on the LOC, prior to a decision on the merits of the contractual dispute, violated the Agreement or was based upon fraud. At-lantia further contended that, although the merits of this dispute were subject to arbitration under the rules of the AAA, it would take at least thirty days to constitute a tribunal, which Atlantia averred would be too late “to address the matter at hand.”

Atlantia stated that the “issues to be determined in the arbitration” would be to what extent Atlantia was responsible for BHP’s costs and whether BHP had the right to draw on the LOC before Atlantia’s liability for the costs had been established. Atlantia asserted that, to draw on the LOC, BHP would be required to certify Atlantia’s failure to perform its obligations, such a . certification would be false and fraudulent, and such action would cause Atlantia immediate and irreparable harm. Thus, Atlantia requested injunctive relief enjoining BHP from presenting the LOC “until 30 days after an arbitral tribunal capable of addressing this issue is further constituted.”

On the same day that Atlantia filed its application, the trial court conducted a hearing and entered an “Agreed Standstill Order” (the “ASO”), which was signed by both BHP and Atlantia. The trial court ordered the parties to use their “best efforts” through March 25, 2009 “to constitute an arbitral tribunal pursuant to the Agreement” to “determine the issue of whether [BHP] may draw on the LOC.” It also ordered Atlantia not to appeal “any decision by the arbitral tribunal on the issue of whether [BHP] may draw on the LOC.” The trial court further ordered that, if a tribunal could not be constituted or could not determine “the issue” before March 25, 2009, the trial court would rule on Atlantia’s application for a temporary restraining order on March 25, 2009 or would further extend the ASO. The trial court prohibited BHP from presenting the LOC to the bank until March 26, 2009 and both parties from filing any other proceeding, except arbitration, “with respect to the matters at issue” in Atlantia’s application for a temporary restraining order, “and, specifically [BHP’s] ability to draw down on the LOC,” prior to April 30, 2009. Finally, the trial court mandated that Atlan-tia would extend the LOC to a new expiration date of April 80, 2009.

On March 19, 2009, BHP sent Atlantia a letter designating, pursuant to section 1.2 of Schedule 1 of the Agreement and in accordance with the ASO, William Andrews as an arbitrator. In this letter, BHP cited Andrews’s “extensive experience in construction disputes, both onshore and offshore” as being “valuable in resolving the captioned matter,” which referred to Atlantia’s application for injunctive relief. Atlantia also designated its arbitrator, and he, along with Andrews, selected the presiding arbitrator.

On March 23, 2009, after appointing its arbitrator under the ASO, BHP filed a response to Atlantia’s application in the trial court, asserting that Atlantia’s discussion of the merits of the contractual dispute was irrelevant to the discrete issue of the enforcement of the LOC. On March 24, 2009, the arbitration panel, consisting of the arbitrators appointed by the parties and the presiding arbitrator (the “private arbitration” panel), conducted a hearing, and, on March 25, 2009, issued an order denying Atlantia’s application for a temporary restraining order. However, the private arbitration panel further stated in its order that it determined that it had “jurisdiction over the disputes arising out of and related to the [Agreement]” and that “a prompt hearing on the merits of the parties’ dispute should be arranged.” The panel set a scheduling hearing for March 30, 2009, and noted that it intended to provide an “expeditious arbitration.”

On March 27, 2009, BHP sent the panel a letter stating that it had not formally submitted the merits of its contractual dispute to arbitration and had not submitted its arbitration demand to the AAA. BHP further asserted that the private arbitration panel had been expeditiously convened only to handle the limited issue of the LOC and that, although the panel might ultimately be designated to arbitrate the merits of the contractual dispute, the parties had not designated the panel to handle the contractual dispute at that time. On March 30, 2009, at the scheduling hearing, BHP again objected to the private arbitration panel’s jurisdiction to rule on the contractual disputes or any other claims other than Atlantia’s application for a temporary restraining order regarding the LOC. The private arbitration panel denied BHP’s objection, and then set various deadlines for the arbitration. On April 13, 2009, BHP filed a formal objection to the private arbitration panel’s jurisdiction and, subject to its objection, its affirmative claims. The panel again denied BHP’s jurisdictional objection, stating that it had determined that it had jurisdiction to decide the current disputes between the parties, “including those for which Atlantia’s LOC was called following” its order denying Atlantia a temporary restraining order.

On April 8, 2009, BHP filed a separate demand for arbitration against Atlantia with the AAA (the “AAA arbitration”) for its affirmative claims concerning the alleged defective and negligent design of the platform, and BHP sought damages for reimbursement of costs and deferred production in the amount of $67 million. At-lantia filed an objection with the AAA to stop this separate arbitration proceeding, but, on April 21, 2009, the AAA issued a letter stating that BHP met the filing requirements and that, absent an agreement by the parties or a court order, the AAA arbitration would proceed.

On April 22, 2009, Atlantia filed another application for a temporary restraining order- and temporary injunction in the trial court, this time seeking an order enjoining BHP from pursuing the AAA arbitration and staying that arbitration “because the matters in controversy” were “already the subject of a previously filed” private arbitration and that the private arbitration panel had “already issued a binding decision that it has jurisdiction over such matters.” The trial court granted Atlantia a temporary restraining order. BHP then filed in the trial court an answer and “counterclaim for permanent injunctive relief’ in which it asked the trial court to find that the private arbitration panel did not have jurisdiction to hear the merits of the contractual dispute and that BHP may continue with the AAA arbitration. BHP also requested injunctive relief to enjoin the private arbitration on the basis that it was being deprived of its right to arbitrate the dispute under the procedures set forth in the Agreement. BHP cited the provisions in the Agreement that allowed a certain number of days to select an arbitrator qualified by education, experience, and training. BHP complained that it did not have the opportunity to evaluate and select an arbitrator based upon his knowledge of maritime law, vessel charter agreements, the remediation operation, and deferred production, all of which BHP contended were important parts of its $67 million claims.

After a hearing, the trial court issued a temporary injunction enjoining BHP from pursuing its AAA arbitration and staying the AAA arbitration. In the order, the trial court stated that the Agreement requires “all disputes (including disputes over whether the dispute resolution procedure applies to a particular dispute) be submitted to binding arbitration,” “[a]n ar-bitral panel has been constituted and has determined that it has jurisdiction to decide the merits of the disputes between the parties,” the panel’s decision is binding on the parties, BHP’s “second-filed” AAA arbitration involves the same parties and subjects of dispute as the private arbitration and is unauthorized, and that, without injunctive relief, Atlantia would be irreparably harmed by being forced to arbitrate in a manner inconsistent with the Agreement and being subjected to a significant risk of inconsistent outcomes.

Jurisdiction

BHP has filed both an interlocutory appeal and a petition for writ of mandamus. In its appeal, BHP asserts that we have jurisdiction to determine whether the trial court erred in enjoining BHP from pursuing the AAA arbitration, staying the AAA arbitration, and not enjoining the private arbitration. See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(4) (Vernon 2008) (providing for interlocutory appeal from order granting or refusing to grant temporary injunction). BHP also asserts that we have jurisdiction to consider its challenges to the trial court’s order, as well as the trial court’s “implicit” refusal to enjoin the private arbitration, through its petition for writ of mandamus.

Atlantia agrees that BHP’s interlocutory appeal of the temporary injunction is proper. Atlantia also agrees that BHP may seek mandamus relief to challenge the trial court’s order enjoining BHP from pursuing the AAA arbitration and staying that arbitration. However, Atlantia disputes that BHP can appeal the trial court’s implicit refusal to grant a temporary injunction because it argues that BHP only pleaded for permanent injunctive relief.

The Federal Arbitration Act (“FAA”) applies to the Agreement in this case. See W. Dow Hamm III Corp. v. Millennium Income Fund, L.L.C., 287 S.W.3d 745, 751 (Tex.App.-Houston [1st Dist.] 2007, no pet.) (noting that arbitration agreement provided that FAA would apply to dispute and stating that “[pjarties may validly agree to arbitrate under the FAA”). Although both parties agree that we have dual bases for jurisdiction to review the trial court’s express order enjoining BHP from pursuing the AAA arbitration and staying that arbitration, we conclude that the actual order issued by the trial court is one staying the AAA arbitration. Texas courts have held that a party, like BHP, seeking relief pursuant to the FAA from an order staying arbitration should pursue relief by way of petition for writ of mandamus. See Haddock v. Quinn, 287 S.W.3d 158, 168 (Tex.App.-Fort Worth 2009, pet. filed) (citing In re D. Wilson Constr. Co., 196 S.W.3d 774, 780 (Tex.2006) (orig. proceeding); In re Valero Energy Corp., 968 S.W.2d 916, 917 (Tex.1998) (orig. proceeding); Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 272 (Tex.1992) (orig. proceeding)). Our Court has also recently stated that generally “no interlocutory appeal lies from the order staying arbitration proceedings.” W. Dow Hamm III Corp., 237 S.W.3d at 752. Therefore, we dismiss for want of jurisdiction BHP’s interlocutory appeal of the trial court’s order prohibiting it from pursuing the AAA arbitration and staying that arbitration, and we proceed to determine whether BHP is entitled to mandamus relief from the trial court’s order staying the AAA arbitration. See Haddock, 287 S.W.3d at 168.

Mandamus is an extraordinary remedy, which will issue only to correct a clear abuse of discretion or a violation of a duty imposed by law when there is no adequate remedy by appeal. In re Ford Motor Co., 165 S.W.3d 315, 317 (Tex.2005) (citing In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex.2004)); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex.1992). A trial court abuses its discretion when it errs in determining what the law is or in applying the law to the facts. In re Bruce Terminix Co., 988 S.W.2d 702, 703 (Tex.1998).

Order Staying the AAA Arbitration

In its first two issues, BHP argues that the trial court abused its discretion in enjoining it “from pursuing its contractual right to arbitrate its $67 million construction defect claim before arbitrators selected pursuant to the arbitration agreement” and in staying the AAA arbitration, because the Agreement contains procedures requiring that disputes be presented to arbitrators with the necessary education, experience, and training, and the trial court has denied it the right to arbitrate its claims in accordance with the Agreement. BHP asserts that the trial court has allowed the private arbitration panel “to extend its jurisdiction to matters not submitted” to it.

The issues presented here are atypical of those present in most appeals and mandamus actions related to arbitration. First, both BHP and Atlantia agree that all the matters in contention, including the LOC and the merits of the contractual dispute, are subject to arbitration under the Agreement. Second, after Atlantia filed its first application for injunctive relief, both Atlantia and BHP entered into the ASO, which expressly referred to the Agreement and instructed the parties “to constitute an arbitral tribunal pursuant to the Agreement” on an expedited basis. We conduct our review of the trial court’s order staying the AAA arbitration with these unique procedural characteristics in mind.

The parties essentially ask us to consider whether the trial court was authorized to stay the AAA arbitration based upon its findings that the AAA arbitration was an unauthorized second-filed arbitration involving the same parties and subjects of dispute as the private arbitration and that the private arbitration panel made a binding decision that it had jurisdiction to hear the contractual merits dispute. The parties refer us to no Texas authority which would allow a trial court to enter an order staying an arbitration based upon the argument that it is duplicative of a previously filed, competing arbitration. However, other federal courts applying the FAA have concluded that a trial court possesses the power, in certain circumstances, to stay a competing arbitration. In L.F. Rothschild & Co. v. Katz, the plaintiff, citing 9 U.S.C. § 4 of the FAA, moved for an order compelling the defendants to proceed with an arbitration before the New York Stock Exchange (“NYSE”) and staying a competing arbitration that the defendants had commenced with the Chicago Board Options Exchange (“CBOE”). 702 F.Supp. 464, 465 (S.D.N.Y.1988). The parties agreed that the plaintiffs claims were subject to arbitration, and both the NYSE and the CBOE were authorized to arbitrate the dispute. Id. at 466. The.court stated,

Here, each party has commenced an arbitration proceeding that, standing alone, would be valid under the Arbitration Agreement. However, to permit both, proceedings to continue would require the parties to pursue the same claims or defenses in two separate forums, resulting in the duplication of the arbitrators’ efforts and risking inconsistent outcomes.
To avoid these problems, only one of these proceedings should go forward. As a general rule, the forum where an action is first filed takes priority over the forum where a subsequent action arising out of the same facts is filed.

Id. at 466-67.

Applying the “first-filed” principle, the court determined that the NYSE was the appropriate arbitrator because the plaintiff had commenced that proceeding first and the defendants had commenced the CBOE arbitration only after learning of the competing proceeding. Id.

After determining that the NYSE would be appropriate arbitrator, the court then examined its authority to stay the competing, second filed arbitration. Id. The court recognized that “[although the Federal Arbitration Act authorizes a district court to stay litigation, it remains silent regarding a court’s authority to stay arbitration.” Id. (citing 9 U.S.C. § 3). However, the court concluded that this “silence” did not leave district courts without such power. Id. The court, quoting persuasive authority, stated,

The Act expressly provides federal courts with the power to order parties to a dispute to proceed to arbitration where arbitration is called for by the contract. 9 U.S.C. § [4]. To allow a federal court to enjoin an arbitration proceeding which is not called for by the contract interferes with neither the letter nor the spirit of this law. Rather, to enjoin a party from arbitrating where an agreement to arbitrate is absent is the concomitant of the power to compel arbitration where it is present.... In fact, were the law read to prevent a court from enjoining an arbitration proceeding it might actually interfere with arbitration — in the unusual case, arguably present here, where one such arbitration proceeding may interfere with another.

Id. at 467 (quoting Societe Generate de Surveillance, S.A. v. Raytheon European Mgmt. & Sys. Co., 643 F.2d 863 (1st Cir. 1981)). Based upon this authority, the court concluded that when the parties contracted to arbitrate a dispute “surely they did not anticipate two-or perhaps more-rival arbitrations arising out of the same controversy” and that, after the first arbitration proceeding was already in place, the second-filed arbitration “was not authorized by the contract.” Id. at 468. The court stated that, in these circumstances, section 4 of the FAA empowered a court to stay the unauthorized arbitration. Id.

No Texas court has yet applied the first-filed principles articulated in Katz to stay competing arbitration proceedings, but Texas courts recognize the first-filed principles in the litigation context. See Perry v. Del Rio, 66 S.W.3d 239, 252 (Tex.2001) (“[Wjhen cases involving the same subject matter are brought in different courts, the court with the first-filed case has dominant jurisdiction and should proceed, and the other cases should abate.”). Here, it is undisputed that all of the matters in dispute between BHP and Atlantia are governed by the FAA and are subject to arbitration under the Agreement. The instant circumstances are comparable to those in Katz, and the analysis in Katz persuasive. Accordingly, we conclude that the trial court, under section 4 of the FAA, was authorized to enter an order staying the AAA arbitration.

We now turn to consider whether the trial court properly determined that the AAA arbitration was a competing, duplica-tive arbitration that involved the same subject matter and controversy as the private arbitration.

In its March 18, 2008 letter to Atlantia, BHP claimed that Atlantia had breached the Agreement, and BHP demanded that Atlantia perform warranty work. In its October 14, 2008 letter, BHP claimed $28 million in reimbursable costs that it had allegedly incurred, and it demanded that Atlantia reimburse it for these costs. It also indicated that there were additional damages associated with the resulting delay. Thus, BHP expressly triggered the parties’ obligations under the Agreement to commence senior management negotiations to resolve this Dispute. The record before us conclusively shows that the Dispute, as that term is used in the Agreement, that was being submitted for senior management negotiations prescribed for by the parties involved the merits of the parties’ entire contractual dispute; the LOC dispute had not yet arisen.

Following the parties’ unsuccessful senior management negotiations of this Dispute, which was conducted pursuant to the Agreement, BHP notified Atlantia of its intent “to commence arbitration proceedings” under the Agreement. Although the letter also expressed BHP’s intent to “instruct external counsel” to draw upon the LOC to recover at least some of its damages associated with this Dispute, the letter unequivocally indicated BHP’s intent to commence arbitration of the entire Dispute. In response, Atlantia filed its first application for injunctive relief, in which it specifically referenced not only the LOC but also the merits of the contractual dispute. It also specifically stated that the “issues to be determined in the arbitration” would be both the contractual dispute and the LOC dispute. Atlantia took the position that the LOC dispute and the contractual merits dispute could not be separated, and Atlantia requested injunc-tive relief enjoining BHP from presenting the LOC “until 30 days after an arbitral tribunal capable of addressing this issue is further constituted.” Because Atlantia contended that the LOC dispute and the contractual merits dispute could not be separated, Atlantia did not merely seek injunctive relief prior to any expedited ar-bitral consideration of the LOC issue, but also injunctive relief prior to any decision of the contractual merits dispute.

BHP was not obligated to enter into the ASO. However, in paragraph 2 of the ASO, both BHP and Atlantia agreed to, between March 17, 2009 and March 25, 2009, use their best efforts “to constitute an arbitral tribunal pursuant to the Agreement and to have the arbitration tribunal determine the issue of whether [BHP] may draw on the LOC.” (Emphasis added). Thus, paragraph 2 obligated BHP to make efforts to both constitute a panel under the Agreement and to have the panel make a determination on the LOC issue by March 25. Although most of the paragraphs of the ASO refer to the LOC, nothing in the ASO indicated that the private arbitration panel constituted thereunder, and pursuant to the Agreement, would be dissolved following the determination of the LOC dispute or that the private arbitration panel would be voided if the panel could not come to a determination of the LOC issue by March 25. Instead, the parties simply agreed that, in that instance, the trial court would rule on Atlantia’s application for a temporary restraining order or would further extend the ASO as necessary.

BHP’s March 19, 2009 letter designating William Andrews pursuant to section 1.2 of Schedule 1 of the Agreement and in accordance with the ASO belies BHP’s contention that it designated Andrews solely to consider the LOC issue. In its letter, BHP stated that Andrews was being appointed to resolve “the captioned matter,” which was Atlantia’s application for injunc-tive relief. By its plain terms, this application related both to the LOC and the contractual merits dispute. The bottom line is that, at the time the private arbitration panel was constituted by the parties pursuant to both the Agreement and the ASO, the parties had already conducted senior management negotiations under the Agreement regarding the contractual merits dispute, BHP had expressed its intent to instruct its counsel to commence arbitration of the contractual merits dispute, and Atlantia had filed an application for injunctive relief, which included its contention that the LOC could not be resolved without a determination of the merits of the contractual dispute. The Agreement does not contemplate the setting up of a special or limited purpose arbitration panel that would terminate upon March 25 or immediately after a determination of the LOC issue. Instead, it contemplates a panel constituted under the Agreement, which by the Agreement’s terms, is set up to consider and address the Dispute. At the time the panel was constituted, the Dispute was not limited to the LOC.

BHP’s demand in the AAA arbitration reflects that BHP seeks to arbitrate the same matters at issue in the private arbitration. This is, of course, why BHP sought injunctive relief to stay the private arbitration. But, we have concluded that trial court did not err in determining that the private arbitration panel had jurisdiction to hear the contractual merits dispute. Because the contractual merits dispute was already the subject of the pending private arbitration, we hold that the trial court did not abuse its discretion in entering an order staying the AAA arbitration.

In so holding, we note that BHP has not been denied its contractual right to arbitrate its $67 million construction defect claim before arbitrators selected pursuant to the Agreement. BHP complains that the trial court’s order has the effect of denying its contractual rights to have sufficient time to vet any potential arbitrators and ensure that they possess specialized knowledge regarding the types of claims it seeks to bring. Although Schedule 1 provides that the appointed arbitrators shall be qualified by education, experience, and training to resolve the disputed matters, nothing in the ASO affected this provision. As discussed above, at the time the parties signed the ASO and appointed their arbitrators on an expedited basis, the disputed matters were the LOC and the related contractual merits dispute. Furthermore, although Schedule 1 provides parties with thirty days to appoint their arbitrators, BHP signed the ASO and appointed its arbitrator on an expedited basis. BHP’s argument that it is being deprived of certain contractual rights is unavailing.

We overrule BHP’s first two issues.

Conclusion

We dismiss the interlocutory appeal and deny BHP’s petition for writ of mandamus.

      . See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(4) (Vernon 2008). Appellate cause number 01-09-00509-CV.

      . Appellate cause number 01-09-00647-CV.

      . Atlantia’s objection was filed directly with the AAA, and nothing in the record indicates that an arbitration panel considered the issue of whether the AAA arbitration and the private arbitration should proceed simultaneously-

      . Atlantia also filed an application with the panel, but it declined to enjoin BHP from pursuing the AAA arbitration, citing, among various reasons, a lack of an enforcement mechanism.

      . See 9 U.S.C. §§ 1-16 (West 2009).

      . Although the trial court’s order is titled as a temporary injunction, we see no substantive distinction between an order prohibiting a party who has filed an arbitration proceeding from further “pursuing” that arbitration and an order staying the same arbitration.

      .As explained below, our resolution of BHP’s challenge to the trial court’s order staying the AAA arbitration moots BHP’s challenge to the trial court’s implicit refusal to stay the private arbitration.

      . At oral argument, BHP, in support of its argument that the arbitration panel exceeded its scope in determining that it could consider the contractual merits dispute, relied upon Burlington Resources Oil & Gas Co. LP v. San Juan Basin Royalty Trust, 249 S.W.3d 34 (Tex.App.-Houston [1st Dist.] 2007, pet. denied). However, in Burlington Resources, we considered an arbitration agreement entered into by the parties to settle existing, specific audit disputes. Id. at 37. The agreement provided that the specific audit disputes "constitute[d] the only items” subject to arbitration, and the agreement detailed the specific amounts at issue for the audit disputes. Id. at 40. Despite the specifically identified and narrowly limited audit disputes set forth in the arbitration agreement, the arbitrator awarded to one of the parties, based upon on a “newly asserted claim,” an amount that "greatly exceeded, beyond any amount that could have reasonably been contemplated by the parties,” the amounts in dispute that were identified in the agreement. Id. at 45. We first determined that the parties had not agreed by clear and unmistakable language to submit questions regarding the scope of arbi-trable issues to the arbitrator. Id. at 42. Then, after concluding that our inquiry was controlled by "the unambiguous provisions of the Arbitration Agreement,” which set forth "detailed descriptions of the relevant audit disputes and the associated arbitrate amounts,” we held that the "newly asserted claim” and the awarded amounts for this claim were "clearly beyond the agreed scope of the arbitration.” Id. at 45-46. Here, although the parties dispute which panel should entertain the contractual merits dispute, it in undisputed that the parties agreed to arbitrate all of their disputes. It is also undisputed that, at the time the parties entered into the ASO, the parties had conducted, in accordance with the Agreement, senior management negotiations for the entire dispute. As we have noted, the ASO provided for a panel to be constituted pursuant to the Agreement, and the Agreement does not contemplate a special or limited purpose panel that would immediately dissolve following the LOC determination. The Agreement also contains a provision providing that the dispute resolution procedures apply to any disputes over the applicability of the procedures to a particular dispute.

      . Our holding that the trial did not abuse its discretion in staying the AAA arbitration moots BHP's third issue, in which it contends that the trial court erred in implicitly refusing to enjoin Atlantia from proceeding in the private arbitration. We also need not consider BHP's fourth issue in its mandamus action regarding the adequacy of its appellate remedy.


source: Caselaw Access Project

author: JANE BLAND, Justice.

license: Public Domain

text:
    In re Mark Cecil PROVINE, Relator Mark Cecil Provine, Appellant, v. Kelly Geis Provine, Appellee.
    Nos. 01-09-00769-CV, 01-09-00770-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Dec. 10, 2009.

      Adam Joel Morris, Houston, TX, Sallee S. Smyth, Richmond, TX, for Appellant.
    Walter P. Mahoney, The Mahoney Law Firm, Pasadena, TX, for Appellee.
    Panel consists of Chief Justice RADACK and Justices BLAND and MASSENGALE.
   OPINION

JANE BLAND, Justice.

In this dispute arising out of a divorce decree, Mark Cecil Provine seeks relief from the trial court’s denial of his motion to compel arbitration via an interlocutory appeal and a petition for writ of mandamus. Mark contends that the trial court abused its discretion by denying his motion. We conclude that the trial court erred by denying the motion to compel arbitration pursuant to the arbitration agreement in the final divorce decree. Accordingly, we reverse the trial court’s order. We dismiss the petition for writ of mandamus as moot.

Background

Mark and Kelly divorced on January 20, 2009. The divorce decree provides,

Division of Marital Estate

The Court finds that the parties have entered into a written agreement for the division of their community estate, which is set out in a Mediated Settlement Agreement which is attached hereto as Exhibit “A” and incorporated herein by reference. The Court finds that this agreement is a just and right division of the community estate.

The partial mediated settlement agreement establishes a procedure for the resolution of the parties’ disputes concerning the divorce decree. It states:

If one or more disputes arise with regard to the drafting of the decree, closing documents, the interpretation, omitted issues, and/or performance of this agreement or any of its provisions, the party’s attorneys agree to attempt to resolve same by phone conference with the Mediator who facilitated this settlement. If their differences cannot resolve by phone conference, then the disputed issues shall be resolved by arbitration as set forth below.
ANY DISPUTES ARISING FROM THE DRAFTING OF THE DECREE, CLOSING DOCUMENTS, THE INTERPRETATION, OMITTED ISSUES, AND/OR PERFORMANCE OF THIS AGREEMENT OR ANY OF ITS PROVISIONS, WHICH CANNOT BE RESOLVED BY PHONE CONFERENCE AS SET FORTH ABOVE, SHALL BE DECIDED BY BINDING ARBITRATION WITH WARREN COLE SERVING AS ARBITRATOR. Parties and/or counsel agree to notify Mr. Cole, in writing, of their request for his services at least seven days prior to a Court entry date and shall deposit an additional $450.00 per party toward the cost of said services before any arbitration services are rendered.
This agreement is made and performable in Harris County, Texas, and shall be construed in accordance with the laws of the State of Texas.

Thereafter, disputes arose over the division of property. On March 25, 2009, Kelly petitioned for enforcement of the agreement, contending that Mark had not properly performed his obligations pursuant to the property division set forth in the agreement.

Specifically, Kelly contended that,

[Mark] has failed to surrender assets owned by Kelly in the possession of [Mark]. While in possession of those assets, [Mark] has converted portions of same to his own use and benefit all to the damage of [Kelly] and for which [Kelly] requests this Court order restored and turned over to [her]....
[Kelly] requests this Court immediately order the turn over of all property in possession of [Mark] that rightfully belongs to [her] pursuant to all of the agreements of the parties and the Orders of this Court.
If the items belonging to [Kelly] are not immediately surrendered [Kelly] requests that this Court enter an order placing all of the assets the subject of this lawsuit placed within custodies legis and distributed to the rightful owner pursuant to the lawful order of this court.
[Mark] has failed to file an Inventory....
[Mark] has failed to pay Attorney and Expert fees....
[Mark] ... has failed to surrender to [Kelly] the proceeds from assets he has converted to his own use and benefit and he should be ordered to pay to [Kelly] all the proceeds from any assets, he has sold or disposed of, that form the basis of the security under the specific terms of the Mediated Settlement Agreement.
[Mark] has failed to pay community on going bills and expenses he was obligated to pay under the agreement of the parties.

On June 25, 2009, Mark moved to compel arbitration according to the arbitration clause in the agreement. At the hearing the trial court stated,

It would be my ruling that this is post divorce and post mediation and post arbitration. ... I am ruling that the mediation and the arbitration provisions are deemed merged into the decree of divorce and that post divorce matters will be determined by the Court, so the Court denies the motion to compel arbitration.

On September 3, 2009, the trial court signed an order denying Mark’s motion to compel arbitration. In the order, the trial court noted that “the Court finds that it has no plenary power to compel arbitration at this time.”

Appellate Jurisdiction

We have jurisdiction over this appeal under the Federal Arbitration Act (“FAA”) or the Texas Arbitration Act (“TAA”). Tex. Civ. Prac. & Rem.Code Ann. § 51.016 (Vernon Supp.2009); id. § 171.098 (Vernon 2005). The FAA preempts all otherwise applicable state laws, including the TAA, under the Supremacy Clause of the United States Constitution. U.S. Const. art. VI; see Allied-Bruce Terminix Co. v. Dobson, 513 U.S. 265, 272, 115 S.Ct. 834, 838, 130 L.Ed.2d 753 (1995). But the FAA preempts the TAA only if “(1) the agreement is in writing, (2) it involves interstate commerce, (3) it can withstand scrutiny under traditional contract defenses [under state law], and (4) state law affects the enforceability of the agreement.” In re D. Wilson Constr. Co., 196 S.W.3d 774, 780 (Tex.2006) (orig. proceeding) (quoting In re Nexion Health at Humble, Inc., 173 S.W.3d 67, 69 (Tex.2005)). “For the FAA to preempt the TAA, state law must refuse to enforce an arbitration agreement that the FAA would enforce.” Id.

Here, the arbitration agreement provides that it is governed by the laws of Texas. It does not specifically exclude the FAA, but nothing in the agreement involves interstate commerce, and the property at issue is within Texas. Moreover, the parties have asserted nothing in the TAA that would subvert enforcement of the agreement, where the FAA would otherwise enforce it. Therefore, the FAA does not preempt the TAA in this case. Id. Because we have jurisdiction to hear the case via an appeal, we dismiss Mark’s petition for writ of mandamus. Id.

The Interlocutory Appeal

In his sole issue, Mark contends that the trial court erred by denying the motion to compel arbitration.

A. Applicable Law

A party moving to compel arbitration must establish (1) the existence of a valid, enforceable arbitration agreement and (2) that the claims asserted fall within the scope of that agreement. Valero Energy Corp. v. Teco Pipeline Co., 2 S.W.3d 576, 581 (Tex.App.-Houston [14th Dist.] 1999, no pet.). If the movant establishes that an arbitration agreement governs the dispute, the burden then shifts to the party opposing arbitration to establish a defense to the arbitration agreement. See In re Oakwood Mobile Homes, Inc., 987 S.W.2d 571, 573 (Tex.1999) (orig. proceeding). A party may revoke the agreement only on a ground that exists at law or in equity for the revocation of a contract. Tex. Civ. Prac. & Rem.Code Ann. § 171.001 (Vernon 2005). “Once the trial court concludes that the arbitration agreement encompasses the claims, and that the party opposing arbitration has failed to prove its defenses, the trial court has no discretion but to compel arbitration and stay its own proceedings.” In re FirstMerit Bank, N.A., 52 S.W.3d 749, 753-54 (Tex.2001).

Whether an agreement imposes a duty to arbitrate is a question of law which the appellate court reviews de novo. In re C & H News Co., 133 S.W.3d 642, 645 (Tex.App.-Corpus Christi 2003, orig. proceeding). In determining whether a claim falls within the scope of an arbitration agreement, the court must focus on the factual allegations of the underlying suit and resolve any doubts in favor of coverage. In re FirstMerit Bank, N.A., 52 S.W.3d at 753, 754. “Texas law favors arbitration.” Kosty v. S. Shore Harbour Cmty. Ass’n, Inc., 226 S.W.3d 459, 463 (Tex.App.-Houston [1st Dist.] 2006, pet. denied).

In First Options of Chicago, Inc. v. Kaplan, the United States Supreme Court stated that “[w]hen deciding whether the parties agreed to arbitrate a certain matter (including arbitrability), courts generally ... should apply ordinary state-law principles that govern the formation of contracts,” with the qualification that, “when courts decide whether a party has agreed that arbitrators should decide arbi-trability,” courts “should not assume that the parties agreed to arbitrate arbitrability unless there is ‘clea[r] and unmistakable]’ evidence that they did so.” 514 U.S. 938, 944, 115 S.Ct. 1920, 1924, 131 L.Ed.2d 985 (1995); accord In re Weekley Homes, L.P., 180 S.W.3d 127, 130 (Tex.2005) (“[A]bsent unmistakable evidence that the parties intended to the contrary, it is the courts rather than the arbitrators that must decide ‘gateway matters’.... ”); Burlington Res. Oil & Gas Co., LP v. San Juan Basin Royalty Trust, 249 S.W.3d 34, 39-42 (Tex.App.-Houston [1st Dist.] 2007, pet. denied). A mediator may also serve as an arbitrator if the parties consent. See In re Cartwright, 104 S.W.3d 706, 714 (Tex.App.-Houston [1st Dist.] 2003, orig. proceeding) (noting mediator should not act as arbitrator in the same or a related dispute without the express consent of the parties).

A trial court’s power to modify its judgment is virtually absolute during the period of its plenary power. See Stallworth v. Stallworth, 201 S.W.3d 338, 349 (Tex.App.-Dallas 2006, no pet.). The trial court’s plenary power to grant a new trial or to vacate, modify, correct, or reform a judgment is limited to a maximum of one hundred and five days after the judgment is signed. In re Nguyen, 155 S.W.3d 191, 193 (Tex.App.-Tyler 2003, orig. proceeding). After the trial court’s plenary power expires, the trial court may not alter, amend, or modify the substantive division of the property in the divorce decree. See Tex. Fam.Code Ann. § 9.007 (Vernon 2006); In re Garza, 153 S.W.3d 97,102 (Tex.App.-San Antonio 2004, orig. proceeding). A court that rendered a divorce decree generally retains continuing subject-matter jurisdiction, however, to enforce and to clarify the divorce decree’s property division. See Tex. Fam. Code Ann. § 9.002 (Vernon Supp. 2009), § 9.008 (Vernon 2006); Gainous v. Gainous, 219 S.W.3d 97, 106 (Tex. App.-Houston [1st Dist.] 2006, pet. denied). The Family Code provides limited, post-judgment jurisdiction that may be invoked only in particular circumstances, rather than plenary, original jurisdiction. See generally Tex. Fam.Code Ann. §§ 9.002, 9.006, 9.008, 9.101, 9.103, and 9.104; Gainous, 219 S.W.3d at 108.

A party may seek clarification of a divorce decree through a suit for enforcement or a motion to clarify. See Tex. Fam.Code Ann. §§ 9.001, 9.006, 9.008. In a suit to enforce the decree, a court has continuing jurisdiction to render further orders to enforce the division of the property made in the decree of divorce to assist in the implementation of or to clarify the prior order. See id. § 9.006(a); Gainous, 219 S.W.3d at 106. However, a court may not amend, modify, alter, or change the division of property made or approved in the divorce decree. See Tex. Fam.Code Ann. § 9.007(a); Shanks v. Treadway, 110 S.W.3d 444, 449 (Tex.2003).

B. Analysis

1.Continuing Jurisdiction

Mark asserts that the trial court erred by denying the motion to compel arbitration, reasoning that the agreement “merged into the decree of divorce” and thus “post divorce matters [would] be determined by the court.” It is undisputed by the parties that the trial court lacks plenary power to alter, amend, or modify the substantive division of the property in the divorce decree. See Tex. Fam.Code Ann. § 9.007. The trial court possesses continuing jurisdiction, however, to “render further orders to enforce the division of property made in the decree of divorce or annulment to assist in the implementation of or to clarify the prior order.” Tex. Fam.Code Ann. § 9.006(a). Therein lies the basis for the trial court’s jurisdiction over this matter. The “division of property made in the decree of divorce” is contained in the mediated settlement agreement, which the trial court expressly incorporated within its divorce decree. Id. In her motion to enforce, Kelly did not ask the trial court to amend, modify, alter, or change the division of property, but sought enforcement of the decree. See Tex. Fam.Code Ann. § 9.007(a); Shanks, 110 S.W.3d at 449. Because the trial court possesses continuing jurisdiction to enforce the agreement, the trial court had jurisdiction to rule on the motion to compel arbitration, as it was the parties’ agreed mechanism for enforcement of the provisions of the decree.

2. Identical Mediator and Arbitrator

Before the trial court, Kelly asserted that the agreement was invalid because it specifically names the mediator, Warren Cole, to serve also as the arbitrator. Our court has held that a mediator can serve as an arbitrator in the same matter with the parties’ consent, because the parties know that information disclosed to the mediator during mediation can be used by the mediator in making an arbitration decision. In re Cartwright, 104 S.W.3d at 714. Kelly and Mark expressly consented to select Warren Cole as both mediator and arbitrator; thus, Kelly’s complaint is not a defense to the enforceability of the agreement’s arbitration provision. Id.; see also Mann v. Mann, No. 04-07-00154-CV, 2008 WL 577266, at *2 (Tex.App.-San Antonio Mar. 5, 2008, pet. denied) (mem. op.) (“In this case, the parties expressly consented [to appointing the same individual to the roles of mediator and arbitrator] by executing the MSA [Mediated Settlement Agreement].... Accordingly, Donald’s complaint is overruled.”).

3. Scope of Arbitration

Here, the parties do not dispute the existence of a valid arbitration agreement. See Valero Energy Corp., 2 S.W.3d at 581. However, Kelly contends that the issues she raises in her motion to enforce fall outside the scope of the agreement because they antedate the divorce, thus rendering it unenforceable. Id. Mark disagrees. Because the agreement does not confer power upon the arbitrator to determine whether issues fall within its scope, the courts decide this issue. See Kaplan, 514 U.S. at 944, 115 S.Ct. at 1924; In re Weekley Homes, L.P., 180 S.W.3d at 130; Burlington Res. Oil & Gas Co., 249 S.W.3d at 40-42. We review whether an agreement imposes a duty to arbitrate de novo. In re C & H News Co., 133 S.W.3d at 645.

Here, the agreement states that “Any disputes arising from the drafting of the decree ... the interpretation ... and/or performance ... shall be decided by binding arbitration.” Kelly’s motion to enforce asserts that Mark has failed to partition marital property in violation of the stipulations of the agreement. Specifically, Kelly contends that Mark has failed to record an inventory of his assets and has failed to surrender Kelly’s assets that are in his possession. She seeks performance and, to the extent necessitated, interpretation under the agreement. The agreement plainly contemplates post-divorce disputes, as it includes matters related to the “performance” of the agreement. Accordingly, we hold that Kelly’s claims in her motion to enforce fall within the scope of the agreement. See Valero Energy Corp., 2 S.W.3d at 581.

Conclusion

We hold that the trial court erred in refusing to compel arbitration of this dispute. Accordingly, we reverse the trial court’s order in cause number 01-09-00770-CV, and remand with an instruction to the trial court to grant the motion. We dismiss the petition for writ of mandamus in cause number 01-09-00769-CV as moot.

      . The petition for writ of mandamus is cause number 01-09-00769-CV. The interlocutory appeal is cause number 01-09-00770-CV. The underlying case is In the Matter of the Marriage of Kelly Geis Provine and Mark Cecil Provine and in the Interest of W.C. Provine and G.G. Provine, Minor Children, 2007-38854, in the 246th Judicial District Court of Harris County, Texas, the Hon. Jim York presiding.

      . 9 U.S.C.A. §§ 1-16 (West 1999 & Supp. 2007).

      . Tex. Civ. Prac. & Rem.Code Ann. §§ 171.001—.098 (Vernon 2005).

      . Effective September 1, 2009, the Texas Legislature permitted interlocutory review of a trial court's order denying arbitration under the FAA. Act of May 31, 2009, 81st Leg., R. S., ch. 820, §§ 1, 3, 2009 Tex. Sess. Law. Serv. 2059 (adding Tex. Civ. Prac. & Rem.Code Ann. § 51.016 (Vernon Supp. 2009)). Because this case was filed and submitted to this Court after that date, we consider it under the new law. Id. § 2(b) ("The change in law made by this Act does not apply to the appeal of an interlocutory order in an action pending on the effective date of this Act if the appeal of the order is initiated before the effective date of this Act.”).


author: TERRY JENNINGS, Justice. EVELYN V. KEYES, Justice,

text:
    Raymond Dominic BRACKENS, Appellant, v. The STATE of Texas, Appellee.
    No. 01-07-00827-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Dec. 17, 2009.
    Discretionary Review Refused April 28, 2010.

      Eric J. Davis, Jacquelyn Raeehelle Carpenter, Davis & Associates, PLLC, Houston, TX, for Appellant.
    Charles A. Rosenthal, Jr., District Attorney-Harris County, Donald W. Rogers Jr., Assistant District Attorney, Houston, TX, for Appellee.
    Panel consists of Justices JENNINGS, KEYES, and HIGLEY.
   OPINION

TERRY JENNINGS, Justice.

After the trial court denied his motion to suppress evidence, appellant, Raymond Dominic Brackens, pleaded guilty to the offense of possession of child pornography. Pursuant to appellant’s plea agreement with the State, the trial court deferred adjudication of appellant’s guilt, placed him on community supervision for five years, and imposed a fine of $500. In four issues, appellant contends that the trial court erred in concluding that he had “failed to manifest a reasonable expectation of privacy in his computer files,” the “warrantless search by law enforcement agents beyond the scope of a private search was not per se unreasonable,” the “computer technician had the authority to consent to the search of appellant’s computer,” and article 38.23 of the Texas Code of Criminal Procedure was “inapplicable.”

We affirm.

Factual and Procedural Background

In his motion to suppress evidence, appellant asserted that, on July 26, 2006, he took his laptop computer to a Circuit City store for “simple data migration” and provided an external hard drive to effectuate this request. Appellant instructed Circuit City to “backup all music, videos, and photos” under his profile “as well as folder desktop files located on the desktop” and explained that he did not need computer repairs because the computer was under warranty. He asserted that he “was not informed and did not consent to the opening of any files in order to effectuate the transfer of data from the computer hard drive to the external drive,” and, “with a data transfer, there is no need to open files to make the transfer.” Appellant alleged that, in violation of Circuit City’s policies, Mark Legg, a Circuit City computer technician, opened and viewed appellant’s computer files containing child pornography and then notified law enforcement authorities, who came to the Circuit City and examined and seized the computer. . Appellant contended that the evidence resulting from Legg’s illegal breach of appellant’s computer security should be suppressed.

At the hearing on the motion to suppress evidence, Legg testified that on July 30, 2006, he received a work order to perform a “data migration” on appellant’s laptop computer. The work order contained instructions to “back up all music, video, and photos” and desktop files from appellant’s laptop to an external hard drive. Legg, who had not personally spoken with appellant, explained that, to perform the requested data migration, he would have “normally hooked up the external hard drive to the laptop and just copied it over.” However, because “the USB ports on the laptop were non-functional,” he “had to copy it to a DVD” to ultimately load the files “into the store computer which had the external hard drive connected to it.” While performing the data migration as part of his “regular” job, Legg “came across the folder” entitled “My Shared Folder” to download onto the DVD. Legg explained that because the “My Shared Folder” was itself “too large to fit on a DVD,” he had to open the folder and copy every file “individually.” As he was “selecting the files” from the My Shared Folder and “dragging them to the DVD, [he] came across” a file or files with a title that contained references to a “14 year-old’ ” and “Pedo,” which Legg understood be short for pedophile or pedophilia. Legg’s concerns were also based on the fact that the questionable file or files were linked to a program well known for downloading pornography. Legg maintained that in order to carry out the customer’s instructions to back up the music, videos, and photos, he had to open up the My Shared Folder.

Legg further testified that because Circuit City store policy prohibited employees from backing up “anything that might be illegal,” he opened the “14-year old” or “Pedo” file to confirm that it was not illegal. When Legg double clicked on the file, which was not password protected or locked, he saw an image of an adult male having intercourse with an underage female child. Once Legg verified that this file contained illegal data, he stopped what he was doing and informed his manager, Israel Bautista. Legg noted that multiple other files in the My Shared Folder had titles indicating that they also likely contained child pornography.

Legg agreed that it was Circuit City’s standard operating procedure to open files during a data migration only if a file is of questionable content or “could have something illegal in it” and, generally, files are not opened in this process. When asked if Circuit City explained this policy to customers before it accepted their work, Legg noted that Circuit City’s own work orders stated that the customer agreed to “all policies.” Legg opined that although the specific policy described above was not on the work order, it was the customers’ responsibility to make themselves aware of the policies. Legg further agreed that appellant’s signature did not appear in the space for the customer’s signature on the work order form.

After Legg informed his manager of his discovery, someone at the Circuit City store notified the Houston Police Department (“HPD”), and a HPD patrol officer came to the store. The patrol officer first asked Legg to open the file that Legg had viewed and then asked Legg to “go through every video on the computer that could be underage children.” Legg estimated that he opened nine additional files containing child pornography for the police officer.

Bautista testified that after Legg had informed him that he had discovered a file containing child pornography on appellant’s laptop, he contacted his service manager and was instructed to notify law enforcement authorities and to quarantine the laptop. When the HPD patrol officer arrived, Bautista and Legg showed the patrol officer where the files were located, and then the patrol officer asked them to play one of the video files. Bautista recalled seeing an additional “two to three” of the video files containing child pornography in the officer’s presence. Bautista explained that he, Legg, and the patrol officer saw “quite a few” other file names indicating that they also contained child pornography, but they only viewed “the first few of them.”

When asked about Circuit City’s privacy policies, Bautista stated that Circuit City employees are not allowed to open a file or folder unless specifically instructed by the customer. However, Bautista explained that Legg had not violated the policy because Circuit City also had a policy prohibiting its employees from backing up anything illegal and a technician would have to open a suspect file to confirm that it was not illegal. If Legg had copied the suspect file without confirming that it was not illegal, Legg would have been in violation of Circuit City policy.

HPD Officer Barnes testified that he was assigned to investigate the case on July 31, 2006, the day after the HPD patrol officer had visited the Circuit City store. Barnes stated that, upon being assigned the case, he prepared a search warrant, which stated,

On July 26, 2006, defendant brought his computer to Circuit City. This was a laptop computer described as a Compaq Computer Model No: V203US; Serial No: CNF4461126. Circuit City has the computer. Defendant, Raymond Brack-ens, brought the computer in for Circuit City to be fixed. Circuit City found numerous videos labeled “PEDO.” The technician, Mark Leg [sic], stated that what he saw was at least 10 videos of female children ages ranging from 9-11 years old performing oral and vaginal sex with adult males. The file name where the pornographic images were observed were under the defendant’s name. The technician immediately called HPD to come view the computer. A patrol officer came to Circuit City and viewed the pornographic images. After viewing the images, the patrol officer took custody of the computer and put the computer in the HPD property room. The computer is currently in custody of HPD.

After obtaining the warrant, Barnes took appellant’s laptop from the HPD property room to another officer, a computer specialist, who conducted digital forensic analysis of the laptop. The analysis revealed that the laptop contained thirteen video files and two photo files containing child pornography. Eight of the files containing child pornography were accessed on July 30, 2006, the date the first HPD patrol officer visited the Circuit City store. An additional five files containing child pornography had not been accessed on or after that date. Based upon this analysis, Barnes concluded that, on July 30, 2006, the HPD officer who was first called to the Circuit City store had viewed only some of the files containing child pornography that were contained on appellant’s laptop.

Kevin Jordan, a computer forensic analyst and appellant’s expert witness, testified that he has never had to open files in performing data migrations. He also stated that Barnes’s testimony regarding the dates that the files in question had been accessed could be accurate “assuming that the file system’s time can be trusted and there is nothing been done to modify the times purposefully.”

At the conclusion of the motion to suppress evidence hearing, the trial court concluded that Legg “was not an agent of law enforcement, and that his viewing of the file he testified to was a regular part of copying the data with regard to the data migration.” It found that appellant consented to Legg performing “the data migration” and Legg had to open the files to perform appellant’s work request. The trial court denied appellant’s motion to suppress evidence on the ground that Legg had violated “Texas Penal Code section 33.02[] in opening the computer file.” After appellant asked whether the trial court was denying his motion to suppress evidence “on the basis of the warrantless search,” the trial court, citing Rogers v. State, 113 S.W.3d 452 (Tex.App.-San Antonio 2003, no pet.), responded, “I do.” The trial court did not provide any further oral or written findings or conclusions, and the parties did not ask for any additional findings or conclusions.

Standard of Review

We review a ruling on a motion to suppress for an abuse of discretion. Shepherd v. State, 273 S.W.3d 681, 684 (Tex.Crim.App.2008). We give almost total deference to a trial court’s determination of historical facts, especially if those determinations turn on witness credibility or demeanor, and review de novo the trial court’s application of the law to facts. Neal v. State, 256 S.W.3d 264, 281 (Tex.Crim.App.2008). At the suppression hearing, the trial court is the sole and exclusive trier of fact and judge of the witnesses’ credibility. Maxwell v. State, 73 S.W.3d 278, 281 (Tex.Crim.App.2002). Accordingly, the trial court may choose to believe or to disbelieve all or any part of the witnesses’ testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App.2000). Unless the trial court abuses its discretion by making a finding unsupported by the record, we defer to the trial court’s findings of fact and will not disturb them on appeal. Flores v. State, 177 S.W.3d 8, 13-14 (Tex.App.Houston [1st Dist.] 2005, pet. ref'd). When the trial court fails to make explicit findings of fact, we imply fact findings that support the trial court’s ruling so long as the evidence supports these implied findings. Gutierrez v. State, 221 S.W.3d 680, 687 (Tex.Crim.App.2007).

Motion to Suppress Evidence

In four issues, appellant argues that the trial court erred in denying his motion to suppress evidence because he “manifest[ed] a reasonable expectation of privacy in his computer files,” the “warrantless search by law enforcement agents” went beyond the scope of a private search and was “per se unreasonable,” Legg did not have authority to consent to “the search of appellant’s computer,” and Legg, by opening appellant’s computer file, committed the offense of breach of computer security. See Tex. Penal Code Ann. § 33.02 (Vernon 2003).

The Fourth Amendment of the United States Constitution and article I, section 9 of the Texas Constitution protect against unreasonable searches and seizures. U.S. Const. amend. IV; Tex. Const. art. I, § 19; Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App.1996). The well-established rule, subject to a few specifically established and delineated exceptions, is that “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment.” United States v. Ross, 456 U.S. 798, 825, 102 S.Ct. 2157, 2173, 72 L.Ed.2d 572 (1982) (citations omitted). The Fourth Amendment protection afforded to closed computer files and hard drives is similar to the protection afforded to a person’s closed containers and closed personal effects. United States v. Barth, 26 F.Supp.2d 929, 936 (W.D.Tex.1998).

In regard to appellant’s first issue, we note that one does not necessarily lose one’s reasonable expectation of privacy in one’s closed computer files by handing one’s computer over to a computer technician. See id. at 937. However, a private party search can destroy an individual’s reasonable expectation of privacy if the individual’s conduct or activity or the circumstances of the situation significantly lessen the defendant’s reasonable expectation of privacy by creating a reasonably foreseeable risk of intrusion by private parties. Id. In such a situation, any subsequent law enforcement search must be limited in scope to the private party’s legitimate search. Id.

Here, appellant took his laptop computer to a Circuit City store to have a technician back up his video and photographic files onto an external hard drive. Appellant did not place any limitation on his request to back up these files, and the USB ports on the laptop did not function. Legg. testified that in order to fulfill appellant’s request to migrate the data onto an external hard drive, he had to copy the files in appellant’s My Shared Folder onto a DVD to ultimately load the files “into the store computer which had the external hard drive connected to it.” Once he saw the suspect name “Pedo” on one of the files, Legg had to open the file to confirm that it was not illegal. We hold that, under these circumstances, appellant’s request to back up his video and photographs, without any limitation on how to effectuate the request, created a reasonably foreseeable risk of intrusion by Legg. See id. Moreover, because Legg was a private party not acting as a “government actor” at the time he opened the first file containing child pornography, the Fourth Amendment was not implicated. Id. at 935.

We overrule appellant’s first issue.

However, in regard to appellant’s second issue, the Fourth Amendment and article I, section 9 of the Texas Constitution were implicated when the HPD patrol officer first arrived at the Circuit City store and, without a search warrant, asked Legg to search further through appellant’s computer files and show him other images, conduct that exceeded the scope of Legg’s initial private-party search. Id. at 937 (noting that subsequent police search must be “limited in scope to the private party’s search”). Legg’s testimony reveals that, although he located and opened the first pornographic image while performing a data migration using Circuit City’s standard operating procedures, he immediately ceased the data migration upon confirming that the laptop contained child pornography. Legg’s subsequent viewing of the videos and images was done at the instruction of the HPD patrol officer. This war-rantless search was per se unreasonable under the Fourth Amendment and under article I, section 9 of the Texas Constitution. Id.; see also Brimage v. State, 918 S.W.2d 466, 500 (Tex.Crim.App.1994).

Nevertheless, even though the patrol officer’s search of the additional files was unreasonable, Officer Barnes subsequently obtained a search warrant based primarily upon Legg’s observations prior to the patrol officer’s instructions to search for additional pornographic files on the laptop. “When a search warrant is issued on the basis of an affidavit containing unlawfully obtained information, the evidence seized under the warrant is admissible only if the warrant clearly could have been issued on the basis of the untainted information in the affidavit.” Pitonyak v. State, 253 S.W.3d 834, 848 (Tex.App.-Austin 2008, pet. ref'd) (citing Brown v. State, 605 S.W.2d 572, 577 (Tex.Crim.App.1980)). “If the tainted information was clearly unnecessary to establish probable cause for the search warrant, then the defendant could not have been harmed by the inclusion of the tainted information in the affidavit.” Id. (citing Castillo v. State, 818 S.W.2d 803, 805 (Tex.Crim.App.1991), ovemtled on other grounds, Torres v. State, 182 S.W.3d 899, 901-02 (Tex.Crim.App.2005)); see also State v. Bridges, 977 S.W.2d 628, 632 (Tex.App.-Houston [14th Dist.] 1998, no pet.) (stating that “relevant inquiry into probable cause based upon a tainted affidavit is to put aside the tainted allegations and determine whether the independently acquired and lawful information clearly established probable cause” and that “[i]f the search warrant could have been issued based on the untainted information in the affidavit, then the search warrant is valid”).

Here, even appellant agreed in the trial court that Officer Barnes had probable cause to obtain a search warrant based upon Legg’s initial observations of his computer files. Setting aside the information in the affidavit related to the HPD patrol officer’s warrantless search, we hold that the remaining portion of the affidavit independently provided probable cause for the subsequent search of appellant’s laptop computer, during which all the video and photographic files containing child pornography were located. See id.

We overrule appellant’s second issue.

In his fourth issue, appellant specifically argues that because Legg violated Texas Penal Code section 33.02 in opening the “Pedo” file, all of the files should be excluded from evidence. See Tex.Code Crim. Proc. Ann. art. 38.32(a). Article 38.23(a) provides that “[n]o evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.” Id. (emphasis added). Section 33.02 of the Texas Penal Code prohibits a person from knowingly accessing a computer without the “effective consent” of the owner. See Tex. Penal Code Ann. § 33.02(a) (Vernon 2003). Appellant asserts that Legg was not authorized to view any files on his laptop.

However, as noted above, appellant did not place any limitations on his request to back up his computer files. In order to fulfill appellant’s request, Legg had to copy appellant’s files onto a DVD to ultimately load the files “into the store computer which had the external hard drive connected to it.” Once he saw the suspect “Pedo” file, Legg had to open it to confirm that it was not illegal. The testimony from Legg and Bautista supports an implied finding that appellant’s computer files were accessed in the course of carrying out appellant’s work order. Accordingly, we hold that the trial court did not err in concluding that Legg did not violate section 33.02.

We overrule appellant’s fourth issue.

We hold that the trial court did not err in denying appellant’s motion to suppress evidence.

Conclusion

We affirm the judgment of the trial court.

Justice KEYES, concurring.

EVELYN V. KEYES, Justice,

concurring.

I join the majority’s opinion except to the extent the majority holds that Legg’s opening, at the direction of police, files he had previously uncovered in the “My Shared Documents” folder on appellant’s computer was “per se unreasonable under the Fourth Amendment and under article I, section 9 of the Texas Constitution” and therefore constitutional error. See Op. at 838. I agree with the majority that Legg was not acting as a state actor and did not violate appellant’s expectation of privacy under the Fourth Amendment when he initially opened the “My Shared Documents” folder in the course of performing appellant’s requested computer data transfer, discovered a number of files with labels indicating they contained child pornography, and opened one of them. I also agree that he was acting under the direction of the police when he opened the additional pornographic files he had originally discovered in plain view in his initial search of the “My Shared Documents” folder. I further agree that a “subsequent police search must be ‘limited in scope to the private party’s search.’ ” Op. at 838. I disagree, however, with the majority’s conclusion that Legg’s search at the direction of police of files with pornographic titles in the “My Shared Documents” folder that were in plain view after Legg initially opened the folder exceeded the scope of the initial private search and violated appellant’s constitutional right to privacy.

Legg opened the file labeled “14-year old” to confirm that it contained child pornography because the file was “linked to a program that is very well known for downloading pornographic material.” He discovered the image of an adult male in sexual congress with an underage female. Legg immediately closed the image and alerted his supervisor, Israel Bautista. Bautista contacted his supervisor, who instructed Bautista to contact the Houston Police Department (“HPD”). Bautista called the police and quarantined the computer in the store’s cash office. An HPD police officer came to Circuit City within twenty minutes of Bautista’s call. After arriving on the scene, the officer requested that Legg retrieve the computer and open the file containing the child pornography that he had previously opened. After the police officer viewed the original image, he asked Legg to open additional files in the same folder with the titles (1) “16Y slut, reelkiddy, one word, prn kiddy.mgpe”; (2) “Izzy2.mp”; (3) “kiddy-baby.mpeg”; (4) “Kiddy Vanessa 12 years, 36.mpeg”; (5) “Pedo 10-YO pussy.mpg”; (6) “Pedo-Vieky-doudu.mpeg”; (7) “Pedo Mff — suck, mpg”; and (8) “vicky string bikini, p the., 11 year-old mpg.” Legg then left the room and Bautista and the officer viewed eight of the nine additional images. The police officer seized the computer and placed it in the HPD property room.

HPD officer John Barnes was assigned the investigation on July 30, 2006. He made out an affidavit to the magistrate judge as follows:

On July 26, 2006, defendant brought his computer to Circuit City. This was a laptop computer described as a Compaq Computer Model No: V203US; Serial No: CNF4461126. Circuity [sic ] City has the computer. Defendant, Raymond Brackens, brought the computer in for Circuity [sic ] City to be fixed. Circuit City found numerous videos labeled “PEDO.” The technician, Mark Leg [sic], stated that what he saw was at least 10 videos of female children ages ranging from 9-11 years old performing oral and vaginal sex with adult males. The file names where the pornographic images were observed were under the defendant’s name. The technician immediately called HPD to come view the computer. A patrol officer came to Circuit City and viewed the pornographic images. After viewing the images, the patrol officer took custody of the computer and put the computer in the HPD property room. The computer is currently in [the] custody of HPD.

The magistrate judge issued the search warrant on August 1, 2006. After receiving the search warrant, Barnes took the computer from the HPD property room and transferred the computer to the HPD digital forensic lab. Barnes testified that thirteen illegal pornographic files were discovered.

Both the United States and Texas Constitutions protect an individual’s legitimate expectation of privacy in the individual’s home and personal effects from unreasonable government intrusion. U.S. Const. amend. IV; Tex. Const. art. I, § 9; see also Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App.1996) (citing Richardson v. State, 865 S.W.2d 944, 948 (Tex.Crim.App.1993)). Both the United States and Texas Constitutions protect the same rights against unreasonable government intrusion to the same degree. Hulit v. State, 982 S.W.2d 431, 436 (Tex.Crim.App.1998); Johnson v. State, 912 S.W.2d 227, 232 (Tex.Crim.App.1995); Garza v. State, 137 S.W.3d 878, 884 (Tex.App.-Houston [1st Dist.] 2004, pet. ref'd).

Neither the Fourth Amendment nor the Texas Constitution, however, requires the exclusion of evidence obtained by a private party’s search. Cobb v. State, 85 S.W.3d 258, 270-71 (Tex.Crim.App.2002). Only the activity of government agents implicates a person’s Fourth Amendment rights. United States v. Paige, 136 F.3d 1012, 1017 (5th Cir.1998); United States v. Barth, 26 F.Supp.2d 929, 935 (W.D.Tex.1998). Thus, when a private party conducts a warrantless search, the constitutional guarantee against unreasonable government intrusion is not implicated unless the private party acts as an agent of government agents. Burdeau v. McDowell, 256 U.S. 465, 475, 41 S.Ct. 574, 576, 65 L.Ed. 1048 (1921); Cobb, 85 S.W.3d at 270-71; Hall v. State, 643 S.W.2d 738, 740 (Tex.Crim.App.1983).

However, even if a private party does act as a governmental agent, a defendant has standing to complain that evidence was obtained by unreasonable governmental intrusion in violation of the Fourth amendment and the Texas Constitution and is therefore inadmissible only if he has a legitimate expectation of privacy in the place invaded. Paige, 136 F.3d at 1017; Barth, 26 F.Supp.2d at 936; Villarreal, 935 S.W.2d at 138; Rogers v. State, 113 S.W.3d 452, 457 (Tex.App.-San Antonio 2003, no pet.). “If the inspection by the police does not intrude upon a legitimate expectation of privacy, there is no ‘search’ subject to the [Fourth Amendment].” Illinois v. Andreas, 463 U.S. 765, 771, 103 S.Ct. 3319, 3324, 77 L.Ed.2d 1003 (1983).

The protection afforded closed personal computer files and hard drives has been likened to the protection afforded by the Fourth Amendment to a person’s closed containers and closed personal effects. See Barth, 26 F.Supp.2d at 936-37; Zaratti v. State, No. 01-04-01019-CR, 2006 WL 2506899, at *8 (Tex.App.-Houston [1st Dist.] Aug. 31, 2006, pet. ref'd) (mem. op., not designated for publication). “[T]he Fourth Amendment provides protection to the owner of every container that conceals its contents from plain view.” United States v. Ross, 456 U.S. 798, 822-23, 102 S.Ct. 2157, 2172, 72 L.Ed.2d 572 (1982); Down v. State, 172 S.W.3d 753, 759 n. 5 (Tex.App.-Houston [14th Dist.) 2005, no. pet.). Thus, by placing data files in a storage device, such as a hard drive, a person manifests a reasonable expectation of privacy in the contents of those files. Barth, 26 F.Supp.2d at 936-37; Down, 172 S.W.3d at 759-60. However, “the protection afforded by the Amendment varies in different settings.” Ross, 456 U.S. at 823, 102 S.Ct. at 2172. An expectation of privacy in the contents of a container may not survive if government agents have probable cause to believe that the container contains contraband. See id. at 823, 102 S.Ct. at 2172 (expectation of privacy in automobile). In such a case, the scope of a warrantless search “is no narrower and no broader than the scope of search authorized by a warrant supported by probable cause.” Id. Only the magistrate’s prior approval is waived; otherwise, the search is “as the magistrate could authorize.” Id. In Andreas, the United States Supreme Court held that once a container has been lawfully opened and found to a certainty to contain contraband — the container being, in that case, a sealed shipping container found to contain illicit drugs — the contraband becomes like objects physically within plain view of the police and the claim to privacy in the contents of the container is lost. Andreas, 463 U.S. at 771-72, 103 S.Ct. at 3324. The subsequent reopening of a container that has been lawfully opened and found to contain contraband is thus not a “search” within the meaning of the Fourteenth Amendment absent a substantial likelihood that the contents of the container have been changed. Id. at 772-73, 103 S.Ct. at 3325.

The question here, therefore, is whether appellant had a reasonable expectation of privacy against a governmental search of the contents of the folder labeled “My Shared Documents” once Legg had lawfully opened the folder during the course of the data migration requested by appellant and discovered a number of files with names indicative of child pornography. I would hold that he did not.

The opening of the folder resulted in Legg’s discovery of illegal pornography in plain view in the form of numerous video files labeled “PEDO,” including the file labeled “14 year-old girl,” which he opened. See Andreas, 463 U.S. at 771-72, 103 S.Ct. at 3324. No additional files were opened, and the police were alerted without delay. See id., 103 S.Ct. at 3324. There is no indication that the contents of the folder were changed between the time Legg discovered the contraband and the time the police were called and directed his inspection of the contents of other files with similar names, and the evidence is to the contrary. See id. at 772-73, 103 S.Ct. at 3325. When Legg reopened the folder labeled “My Shared Folder” at the direction of police, the video files in the folder with names indicating they contained pornographic material were again in plain view. See id.

I would hold that once the police had Legg open the folder labeled “My Shared Documents” and the “14-year-old” file and saw the additional files with titles indicative of pornography in plain view in the opened folder, they had probable cause to believe the folder labeled “My Shared Folder” contained pornographic material and that they did not exceed the scope of the original lawful search by directing Legg to open the six additional files in the folder opened without a search warrant. Thus, I would hold that the police-directed warrantless search of the computer files in the folder labeled “My Shared Folder” was not a search of files in which appellant had a legitimate expectation of privacy and was not an illegal “search” under the Fourth Amendment or its Texas counterpart. See Andreas, 463 U.S. at 771, 103 S.Ct. at 3324 (once container has been opened and found to a certainty to contain contraband, contraband becomes like objects in plain view of police and claim to privacy is lost); Ross, 456 U.S. at 823, 102 S.Ct. at 2172 (expectation of privacy is lost if government agents have probable cause to believe container contains contraband). Because appellant had no legitimate expectation of privacy in the contents of the folder at the time police directed a warrantless search of the six additional files, I would hold that the pornographic files inspected by police in their warrantless search of appellant’s computer were not subject to exclusion under the Fourth Amendment of the United States Constitution or article I, section 9 of the Texas Constitution. Therefore, the trial court did not err in admitting them.

Like the majority, I would affirm the judgment of the trial court.

      . See Tex. Penal Code Ann § 43.26 (Vernon 2003).

      . Tex.Code Crim. Proc. Ann. art. 38.23 (Vernon 2005).

      . Testimony revealed that the files accessed on July 30, 2006 included those titled (1) “16Y slut, reelkiddy, one word, prn kiddy.mgpe”; (2) "Izzy2.mp”; (3) “kiddy-baby, mpeg”; (4) "Kiddy Vanessa 12 years, 36.-mpeg”; (5) "Pedo 10-YO pussy.mpg”; (6) “Pedo-Vicky-doudu.mpeg”; (7) "Pedo Mff— suck.mpg”; and (8) "vicky string bikini, p the., 11 year-old mpg.” The additional video files were titled (1) "Lolita sex 0002 little preteen”; (2) "Lolita Network Camille”; (3) "pedo underage 12.mpeg”; (4) "Porn — Japanese Lolita Rape”; and (5) "R ampersand Y gold preteen suck.”

      . Tex. Penal Code Ann. § 33.02 (Vernon Supp. 2008).

      . Appellant and the State do not directly address whether the trial court’s oral findings should be considered explicit findings. Both appear to ask us to consider the trial court’s implied findings.

      . See Zaratti v. State, No. 01-04-01019-CR, 2006 WL 2506899, at *8-9 (Tex.App.-Houston [1st Dist.] Aug. 31, 2006, pet. ref'd) (memo op., not designated for publication). In Zarat-ti, police officers, based upon information received from a computer technician, properly obtained a search warrant before searching for illegal content on the defendant's computer. Id. at *2.

      . The State, citing Rogers v. State, 113 S.W.3d 452 (Tex.App.-San Antonio 2003, no pet.), argues that the patrol officer's search did not implicate the Fourth Amendment and article I, section 9 of the Texas Constitution because appellant did not have a reasonable expectation of privacy in his computer files. However, the factual sequence as to when the police officer in Rogers obtained a search warrant is not clear. See id. at 455. Moreover, nothing in Rogers indicates that the police officer there conducted a warrantless search that exceeded the scope of the conduct of the computer technician. Id. In Rogers, as in our case, the police officers obtained a search warrant prior to conducting a forensic analysis of the computer. Id.

      . Appellant challenges Legg’s actual viewing of the original video on separate state grounds that we address below.

      . Having so held, we need not address appellant's third issue, in which he argues that the trial court abused its discretion in finding that the "computer technician had the authority to consent to the search of appellant's computer.”

      . Legg did not recall the exact name of the file he initially opened in the “My Shared Documents” folder at the time of the suppression hearing over a year later. The files he discovered during that initial search and was asked to open by the police before a search warrant was obtained included (1) ”16Y slut, reelkiddy, one word, prn kiddy.mgpe;” (2) “Izzy2.mp;” (3) "kiddy-baby.mpeg;” (4) "Kiddy Vanessa 12 years, 36.mpeg;” (5) "Pedo 10-YO pussy.mpg;” (6) "Pedo-Vicky-dou-du.mpeg;” (7) "Pedo Mff — suck.mpg;” and (8) "vicky string bikini, p the., 11 year-old mpg.” Additional video files opened by police after obtaining a search warrant included (1) "Lolita sex 0002 little preteen;" (2) "Lolita Nel-work Camille;” (3) "pedo underage 12.-mpeg;” (4) "Porn-Japanese Lolita Rape;” and (5) "R ampersand Y gold preteen suck.” I use the title "14 year-old” for the file Legg initially viewed.

      . The majority agrees that the police had probable cause to obtain a search warrant based on Legg's initial observations upon opening the "My Shared Documents" folder. However, the majority also holds that it was per se unreasonable for the officers to ask Legg to open additional flies with titles indicative of pornography in plain view in the same folder because this search exceeded the scope of Legg’s search. I find these positions inconsistent. That is the crux of our disagreement.