text:
    W.W. WEBBER, L.L.C., Appellant, v. HARRIS COUNTY TOLL ROAD AUTHORITY, Appellee.
    No. 14-09-00513-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Oct. 14, 2010.

      William M. Coats, Patricia M. Rosen-dahl, Houston, for appellant.
    Michael R. Hull, Houston, for appellee.
    Panel consists of Justices BROWN, SULLIVAN, and CHRISTOPHER.
   OPINION

KENT C. SULLIVAN, Justice.

The trial court dismissed, for want of jurisdiction, a lawsuit filed by appellant, W.W. Webber, L.L.C. (“Webber”), against a governmental entity, appellee Harris County Toll Road Authority (“HCTRA”), for breach of contract and quantum meru-it. On appeal, Webber contends HCTRA waived its governmental immunity by conduct. Because the Texas Supreme Court has already rejected waiver by conduct under similar facts, we affirm.

I.

BACKGROUND

This lawsuit arises from a contract dispute relative to the construction of two sections of the Westpark Tollway, a limited-access toll road serving portions of western Harris County and northeastern Fort Bend County. Construction on the tollway began in 2001.

That year, HCTRA, on behalf of Harris County, solicited and accepted bids for the construction of certain portions of the tollway. Two of the bids HCTRA accepted were submitted by Webber, a construction contractor that agreed to build two sections of the tollway, covering a total of roughly 1.17 miles of road. Accordingly, Webber and HCTRA entered into two contracts, each addressing a different section of the tollway.

At the time, HCTRA intended to open the tollway no more than two years later, in May 2003. Therefore, the parties agreed to a strict deadline for completion of Webber’s portions of the project. Under both contracts, Webber was obligated to complete both sections within 365 calendar days, plus six holidays. Both contracts specified that “time is of the essence,” and therefore authorized Webber to work for twenty-four hours a day, and seven days per week — except for the six designated holidays — to enable Webber to complete the project on time.

In addition, both contracts imposed liquidated damages of $2,500 per day should Webber fail to complete the project within the time allotted. Those clauses generally provided:

Time is of the essence of this Contract. If the Contractor fails to complete his undertaking acceptably to the Authority within the time specified in his bid and Contract, the Authority will be damaged. The exact amount of damage is and will be difficult of exact ascertainment. Such damages shall be at the rate or the amount hereinafter fixed. The Contractor specifically binds and obligates himself to pay such damages to the Authority on demand; or, at its option, the Authority may withhold the amount thereof from any sums due the Contractor under this or any other Contract, or from any other obligation of any kind owing the Contractor by the Authority.

As of the date of the contracts, Harris County had not fully secured all necessary rights of way from the surrounding landowners, and also had not reached agreement to relocate all utilities that might stand in the way of construction. While those events were expected to delay construction to some extent, Webber was strongly urged, in light of the strict deadline, to anticipate and work around these expected delays to complete the projects on time.

Webber did not complete either construction project within the deadline imposed by the contracts. Therefore, HCTRA invoked the liquidated-damages provisions and withheld a portion of the original contract price. Ultimately, HCTRA paid slightly more than ninety-seven percent of the original contract price to Webber.

However, Webber — which attributed its untimely performance to HCTRA’s delay in securing the rights of way and relocation of utilities — demanded full payment of the contract amount. After Harris County failed or refused to accede to Webber’s demands, Webber filed suit for breach of contract and quantum meruit. HCTRA, as a governmental entity, asserted immunity in a plea to the jurisdiction, and also filed a motion for summary judgment. The trial court sustained HCTRA’s plea and granted summary judgment, prompting this appeal.

II.

Analysis

Webber raises seven issues on appeal. The first five issues are devoted to the portion of the trial court’s order that dismissed Webber’s suit for want of jurisdiction. We will address each of those issues, albeit not in the same order in which they appear in appellant’s brief.

We conclude that Webber has failed to demonstrate the trial court’s subject-matter jurisdiction to hear this case. Therefore, we hold the trial court properly dismissed Webber’s lawsuit for want of jurisdiction. Accordingly, we need not reach appellant’s sixth and seventh issues, in which Webber complains about the propriety of the trial court’s order granting summary judgment to HCTRA. See Tex.R.App. P. 47.1.

A. Completion of Jurisdictional Discovery

In its fourth issue, which we address first, Webber argues that the trial court should have deferred any ruling on HCTRA’s jurisdictional plea until after the depositions of five Harris County employees. In response, HCTRA contends (1) Webber waived this complaint by failing to file a supporting affidavit or verified motion for continuance; and (2) Webber did not diligently pursue these depositions, which were not requested until (a) more than a year after suit was filed, (b) more than four months after HCTRA filed its plea, and (c) more than two weeks after the trial court’s hearing on the plea.

We review the denial of a motion for continuance for an abuse of the trial court’s discretion. See Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex.2004); Daugherty v. Jacobs, 187 S.W.3d 607, 618 (Tex.App.-Houston [14th Dist.] 2006, no pet.). In this context, a trial court abuses its discretion only if its ruling was arbitrary, unreasonable, and lacking in reference to any guiding rules or principles. See Daugherty, 187 S.W.3d at 618.

A motion for continuance is governed by Texas Rule of Civil Procedure 251 and, to the extent the request is prompted by a perceived need to obtain testimony, Rule 252. See Tex.R. Civ. P. 251, 252. Both of these rules generally require the moving party, here, Webber, to supply either an affidavit or a verified motion reasonably explaining the need for a continuance. See id.; Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 647 (Tex.1996). If the movant fails to comply with that requirement, we must presume the trial court did not abuse its discretion by denying the requested continuance. See Villegas v. Carter, 711 S.W.2d 624, 626 (Tex.1986); Waste Water, Inc. v. Alpha Finishing & Developing Corp., 874 S.W.2d 940, 942 (Tex.App.-Houston [14th Dist.] 1994, no writ).

Here, Webber failed to comply with Rules 251 and 252 because its continuance request was not verified or supported by an affidavit explaining the need for a continuance. See Tex.R. Civ. P. 251, 252; Tenneco, 925 S.W.2d at 647. Therefore, we cannot say the trial court abused its discretion by denying Webber’s request. See Daugherty, 187 S.W.3d at 618. Accordingly, we overrule appellant’s fourth issue.

B. Plea to the Jurisdiction

In its first issue, Webber contends the trial court erred by dismissing its lawsuit pursuant to HCTRA’s claim of governmental immunity. Specifically, Webber argues that HCTRA waived governmental immunity through its allegedly wrongful conduct. In response, HCTRA denies the existence of any waiver-by-conduct exception, and further argues that its actions would not warrant any such exception, anyway. We will address all of these arguments, after a brief discussion of the basics of governmental immunity.

1. Immunity, Generally

The doctrine of governmental immunity protects political subdivisions of the State, including counties, from lawsuits seeking damages. See Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n. 3 (Tex.2003); MBP Corp. v. Bd. of Trs. of Galveston Wharves, 297 S.W.3d 483, 487 (Tex.App.-Houston [14th Dist.] 2009, no pet.). Stated differently, governmental entities are usually immune from both liability and suit. See Tooke v. City of Mexia, 197 S.W.3d 325, 332 (Tex.2006).

The protections afforded by governmental immunity are not absolute, however. For example, immunity from liability — but not immunity from suit — may be waived when a governmental entity voluntarily enters into a contract. See id. Immunity from suit, by contrast, cannot be waived except by the Legislature. See id. The Legislature may consent to either a specific lawsuit, through the issuance of a legislative resolution, or a class of lawsuits, through clear and unambiguous statutory language. See Seureau v. Exxon-Mobil Corp., 274 S.W.3d 206, 215 (Tex.App.-Houston [14th Dist.] 2008, no pet.); see also, e.g., Tex. Civ. Prac. & Rem.Code Ann. §§ 101.001-.109 (Vernon 2005 & Supp. 2009) (permitting claimants to bring certain tort claims against government).

Webber acknowledges that this case does not fit within either of those recognized exceptions to governmental immunity. That is, Webber concedes that no statutory scheme authorizes its suit against HCTRA, and it did not ask for the Legislature’s express consent to sue. See Seureau, 274 S.W.3d at 215. Instead, Webber seeks refuge in the common-law concept of “waiver by conduct,” a possible exception to immunity once theorized — but never actually recognized — by the Texas Supreme Court. Before we address that argument, we pause to consider the pertinent standards by which we review the trial court’s order.

2. Standard of Review

A valid claim of governmental immunity, unless waived, deprives a trial court of subject-matter jurisdiction over a lawsuit seeking damages against a governmental entity. See MBP Corp., 297 S.W.3d at 487-88. Thus, a plaintiff bears the burden of alleging facts that affirmatively demonstrate the trial court’s subject-matter jurisdiction over a case. See id. at 488 (citing Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993)). A governmental entity may then challenge the court’s jurisdiction, as here, by filing a plea to the jurisdiction. See Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000).

On appeal, we review the trial court’s ruling on a plea to the jurisdiction de novo. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004). We consider both the plaintiffs pleadings and the evidence submitted by the parties, to the extent necessary to resolve the jurisdictional questions presented, in the light most favorable to the plaintiff, here, Webber. See MBP Corp., 297 S.W.3d at 488; Seureau, 274 S.W.3d at 215. If the plaintiffs pleadings demonstrate incurable defects in jurisdiction, or the evidence submitted by the parties fails to raise a fact question as to jurisdiction, we must affirm. See MBP Corp., 297 S.W.3d at 488; Seureau, 274 S.W.3d at 215.

3. Waiver by Conduct

Both this court and the First Court of Appeals have discussed, at length, the history of the waiver-by-conduct “exception.” See Seureau, 274 S.W.3d at 220-21; Tex. S. Univ. v. State St. Bank & Trust Co., 212 S.W.3d 893, 905-07 (Tex.App.-Houston [1st Dist.] 2007, pet. denied). In brief, the oft-debated notion that a governmental entity theoretically could waive its own immunity, absent the Legislature’s consent, first appeared in a footnote to a majority opinion from the Texas Supreme Court. There, Justice Baker, writing for the majority, suggested, “There may be ... circumstances where the State may waive its immunity by conduct other than simply executing a contract so that it is not always immune from suit when it contracts.” Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 408 n. 1 (Tex.1997), superseded by statute, Tex. Gov’t Code Ann. §§ 2260.001-.108 (Vernon 2008), as recognized in Gen. Servs. Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591, 595-97 (Tex.2001).

However, in 2001, the Texas Supreme Court retreated from that language, refusing to recognize any waiver-by-conduct exception in an action against the State:

[R]egardless of what we might have held ... in 1997, the situation has changed. After Federal Sign, the Legislature enacted a dispute-resolution procedure to resolve certain breach-of-contract cases against the State. Historically, we have left to the Legislature whether to waive sovereign immunity....
[W]e conclude that there is but one route to the courthouse for breach-of-contract claims against the State, and that route is through the Legislature .... Apart from a special statute conferring consent, a party simply cannot sue the State for breach of contract absent legislative consent.

Little-Tex Insulation Co., 39 S.W.3d at 595, 597.

Over the years, the Supreme Court has repeatedly refused to recognize a waiver-by-conduct exception, much less define the sort of conduct that might warrant its application. See Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex.2007); Catalina Dev., Inc. v. County of El Paso, 121 S.W.3d 704, 705-06 (Tex.2003); see also Tex. Natural Res. Consenation Comm’n v. IT-Davy, 74 S.W.3d 849, 857 (Tex.2002) (plurality op.) (“Creating a waiver-by-conduct exception would force the State to expend its resources to litigate the waiver-by-conduct issue before enjoying sovereign immunity’s protections — and this would defeat many of the doctrine’s underlying policies.”).

In the absence of such guidance from the Supreme Court, this court has likewise declined to craft some judicial exception to immunity. See MBP Corp., 297 S.W.3d at 493-94; Tara Partners, Ltd. v. City of S. Houston, 282 S.W.3d 564, 579-80 (Tex.App.-Houston [14th Dist.] 2009, pet. denied); Seureau, 274 S.W.3d at 220-21, 225; Breezy v. Anatomical Bd., No. 14-03-01321-CV, 2005 WL 1923854, at *1 n. 2 (Tex.App.-Houston [14th Dist.] Aug. 11, 2005, no pet.) (mem. op.); Robinson v. Univ. of Tex. Med. Branch at Galveston, 171 S.W.3d 365, 371 (Tex.App.-Houston [14th Dist.] 2005, no pet.); see also Univ. of Tex. Med. Branch at Galveston v. Harrison, No. 14-02-01276-CV, 2003 WL 21803314, at *2 n. 2 (Tex.App.-Houston [14th Dist.] Aug. 7, 2003, pet. denied) (mem. op.) (“As an intermediate appellate court, we defer to the Texas Supreme Court to decide when, if ever, and under what circumstances such'a [waiver-by-conduct] contention might become sustainable.”).

In 2007, the First Court of Appeals concluded that a governmental entity, Texas Southern University (“TSU”), had waived immunity through its conduct in a case featuring “extraordinary factual circumstances.” See State St., 212 S.W.3d at 900, 908. In State Street, unlike here, TSU— in response to a direct inquiry about the enforceability of the contract — intentionally relinquished its right to immunity by assuring its contract partner, in writing, that (1) their contract could be enforced in court, and (2) TSU would actually be liable to pay any money judgment arising from its breach of that contract. See id. at 898. Under those facts, the appellate court found “waiver by conduct.” See id. at 907-08; but see Seureau, 274 S.W.3d at 225 (explaining State Street, under traditional waiver principles, as an “intentional relinquishment of a known right or intentional conduct inconsistent with claiming that right”) (citing Jernigan v. Langley, 111 S.W.3d 153, 156 (Tex.2003)). However, the Texas Supreme Court denied TSU’s petition for review, thereby declining to confirm or deny the existence or scope of the waiver-by-conduct exception.

4. Application to Facts

However, even if a waiver-by-conduct exception does exist, the Texas Supreme Court has foreclosed its application under these facts. That is, the Court has ruled that a governmental entity does not waive its immunity from suit simply by adjusting a contract price pursuant to a liquidated-damages clause, even if the propriety of that adjustment is disputed. See Travis County v. Pelzel & Assocs., Inc., 77 S.W.3d 246, 252 (Tex.2002), superseded on other grounds by statute, Tex. Loc. Gov’t Code Ann. § 262.007 (Vernon 2005), as noted in Tooke v. City of Mexia, 197 S.W.3d 325, 342 (Tex.2006).

In Pelzel, Travis County withheld full payment on a construction contract, pursuant to a liquidated-damages clause, because the builder — Pelzel—failed to complete the project by the agreed — upon deadline. See id. at 247. In response, Pelzel sued the county, arguing that (1) it was entitled to full payment because the parties had agreed to extend the project-completion deadline, and (2) the county waived its immunity from suit by accepting Pelzel’s performance without making full payment. See id. at 247, 251.

The Texas Supreme Court disagreed with Pelzel and upheld Travis County’s claim of immunity, holding:

According to the contract’s liquidated-damages clause, Travis County could retain $250 for each calendar day Pelzel failed to substantially complete the building beyond the date set for completion and acceptance. The fact is undisputed that Travis County withheld, under the liquidated-damages clause, only $5,500.00 of the total contract price of $414,164.80. When a governmental unit adjusts a contract price according to the contract’s express terms, it does not, by its conduct, waive immunity from suit, even if the propriety of that adjustment is disputed. See IT-Davy, 74 S.W.3d at 252 [851]. Thus we conclude that Travis County did not waive immunity from suit by invoking the contract’s liquidated-damages clause.

Id. at 252 (emphasis added).

The facts in Pelzel are virtually on all fours with those presented here. Web-ber voluntarily signed two contracts containing “time is of the essence” language and liquidated-damages clauses that authorized HCTRA, in the event Webber failed to meet the one-year deadline, to withhold $2,500 per day until construction was complete. There is no dispute that, in fact, Webber missed the agreed-upon deadline, triggering the liquidated-damages clauses and leading HCTRA to adjust the contract prices accordingly. Relying on Pelzel, we hold that HCTRA did not waive its immunity from suit by invoking the contracts’ liquidated-damages clauses, notwithstanding Webber’s protests about the fairness of those adjustments. See id.

Thus, Webber has not demonstrated the trial court’s subject-matter jurisdiction to consider its suit against HCTRA. Therefore, we overrule appellant’s first issue. Having done so, we affirm the trial court’s dismissal of Webber’s suit for lack of subject-matter jurisdiction.

III.

Conclusion

We overrule appellant’s first through fifth issues and affirm the portion of the trial court’s judgment granting HCTRA’s plea to the jurisdiction. Having done so, we need not address the propriety of its summary-judgment order. See Tex. R.App. P. 47.1.

      .The record does not indicate that Webber expressly presented its continuance request — ■ which was contained within a pleading actually opposing HCTRA's motion for continuance of the trial setting — to the trial court. See Tex.R.App. P. 33.1(a). However, we will assume, without deciding, that the trial court, by granting HCTRA’s plea, implicitly denied Webber’s request for a deferral of that ruling. See Tex.R.App. P. 33.1(a)(2)(A); In re A.D.A., 287 S.W.3d 382, 387 (Tex.App.-Texarkana 2009, no pet.).

      . Rule 251 also contemplates a continuance "by consent of the parties," see Tex.R. Civ. P. 251, but the parties do not contend that provision applies here.

      . In this opinion, we will use the term "governmental immunity,” which extends to political subdivisions of the State, as opposed to "sovereign immunity,” which refers to the State’s immunity from suit, See Seureau v. ExxonMobil Corp., 274 S.W.3d 206, 214 n. 5 (Tex.App.-Houston [14th Dist.] 2008, no pet.).

      . See Tex. Civ. Prac. & Rem.Code Ann. §§ 107.001-.005 (Vernon 2005 & Supp. 2009).

      . In addition, Webber does not challenge HCTRA’s status as a governmental entity ordinarily entitled to immunity. See, e.g., Sw. Bell Tel., L.P. v. Harris County Toll Road Auth., 282 S.W.3d 59, 60, 70 (Tex.2009) (holding HCTRA was entitled to governmental immunity).

        . In 2003, the Legislature amended the Local Government Code to authorize suits against a county arising from construction contracts, among others. See Act of May 29, 2003, 78th Leg., R.S., ch. 1203, § 2, 2003 Tex. Gen. Laws 3418, 3418-19 (current version at Tex. Loc. Gov’t Code Ann. § 262.007 (Vernon 2005)). However, the Legislature expressly confined the scope of that limited waiver to contracts executed after September 1, 2003. See id. at § 4(b), 2003 Tex. Gen. Laws at 3419. Therefore, that amendment does not apply to Webber’s contracts with HCTRA, which were executed in 2001. See id.

        . Webber also raises a constitutional-takings claim in its brief, but it did not present that argument to the trial court in response to HCTRA's plea. Therefore, we may not consider that claim for the first time on appeal. See Tex.R.App. P. 33.1(a); Seals v. City of Dallas, 249 S.W.3d 750, 759 (Tex.App.-Dallas 2008, no pet.).

      . See discussion infra Part II.B.3.

      . In its second and third issues, Webber recites the relevant standard of review and alleges, in a conclusory fashion, that the trial court failed to follow it. However, under the de novo standard of review, we will affirm if the trial court reached the correct result and reverse if it did not, and its reasoning is not relevant to our de novo analysis. See Markel Ins. Co. v. Muzyka, 293 S.W.3d 380, 385 (Tex.App.-Fort Worth 2009, no pet.); Johnson v. City of Fort Worth, No. 2-08-369-CV, 2009 WL 806868, at * 1 n. 4 (Tex.App.-Fort Worth Mar. 26, 2009, no pet.) (mem. op.). Because we ultimately hold the trial court did not err by dismissing Webber’s suit for want of jurisdiction, we overrule appellant's second and third issues — which do not provide a separate basis for reversal of the trial court's judgment — as moot. See Markel, 293 S.W.3d at 385; Johnson, 2009 WL 806868, at *1 n. 4.

      . In its fifth issue, Webber complains that some of the documents attached to HCTRA's plea contain inadmissible evidence and should not have been considered by the trial court. Webber does not identify the specific evidence it finds objectionable. See Tex. R.App. P. 38.l(i). In any event, we overrule this complaint, for two reasons. First, Web-ber did not obtain a ruling on its objection to these unidentified documents and does not contend that the trial court refused to rule on its objection. See Tex.R.App. P. 33.1(a)(2). Second, Webber attached the same exhibits to its own response to the plea to the jurisdiction and has therefore waived any complaint to the trial court’s consideration of that evidence. See McInnes v. Yamaha Motor Corp., U.S.A., 673 S.W.2d 185, 188 (Tex.1984) (“A party on appeal should not be heard to complain of the admission of improper evidence offered by the other side, when he, himself, introduced the same evidence or evidence of a similar character."). Accordingly, we overrule appellant's fifth issue.

      . See Br. for Appellees CMS Viron Corp. & CMS Energy Res. Mgmt. Co., Tex. S. Univ. v. State St. Bank & Trust Co., 212 S.W.3d 893 (Tex.App.-Houston [1st Dist.] 2007, pet. denied) (Nos. 01 -05-0075 8-CV & 01 -06-00497-CV), available at 2005 WL 3675896, at *3_*4 ("virón insisted that TSU specifically represent and warrant that ... its 'obligation under this Master Lease constitutes an enforceable obligation.’ ... Additionally, Virón demanded an 'opinion of counsel' that TSU’s promises were valid.”).

      . Webber attempts to distinguish Pelzel by claiming that, in this case, there is no real dispute as to Webber’s entitlement to most of the funds withheld by Harris County. In support, Webber notes that the lead engineer has placed his initials next to a figure identified as the "[ajmount due for payment.” Webber interprets those initials as some sort of ac-knowledgement by the county that these figures are owing but remain unpaid.
      However, that argument lacks merit because these sums have not been approved by the county auditor or commissioner’s court.
        See Tex. Loc. Gov’t Code Ann. §§ 113.043 (Vernon 2008) (”[T]he county treasurer and the county depository may not pay a check or warrant unless it is countersigned by the county auditor to validate it as a proper and budgeted item of expenditure.”), 113.064(a) (Vernon 2008) ("A claim, bill, or account may not be allowed or paid until it has been examined and approved by the auditor.”). That responsibility may not be delegated to any other officer or county employee. See Crider v. Cox, 960 S.W.2d 703, 706 (Tex.App.-Tyler 1997, writ denied). Instead, the approval of both the auditor and commissioner’s court is a condition precedent to the payment of claims. See id.

      In this case, the invoices contained in the appellate record have not been approved by either the auditor or commissioner’s court. Accordingly, we cannot accept the premise of Webber’s argument that Harris County has actually agreed to pay these invoices.


source: Caselaw Access Project

author: DIANE M. HENSON, Justice.

license: Public Domain

text:
    In re L.R., B.S., and S.S. In re Marla C. Russell.
    Nos. 03-10-00606-CV, 03-10-00610-CV.
    Court of Appeals of Texas, Austin.
    Oct. 15, 2010.

      James B. Peplinski, San Antonio, for ad litem.
    Manuel C. Rodriguez, Laura Olveira Duran, San Antonio, for intervenor.
    Rachel Italiano Linn, Asst. Dist. Atty., New Braunfels, for District Attorney.

      Wayne Ted Wood, San Antonio, Marilee H. Brown, Hazel Brown Wright Reneau, PLLC, New Braunfels, for respondent.
    Before Chief Justice JONES, Justices PURYEAR and HENSON.
   OPINION

DIANE M. HENSON, Justice.

These original proceedings were filed in connection with a single underlying suit to terminate the parental rights of Marla Russell and Johnny Scott Jr. to their three children, L.R., B.S., and S.S. The children, represented by their attorney ad litem, filed a petition for writ of mandamus, cause number 03-10-00606-CV, seeking to vacate the trial court’s order setting this matter for a jury trial on October 25, 2010. Russell then filed her own petition for writ of mandamus, cause number 03-10-00610-CV, seeking to vacate the trial court’s order denying her motion to dismiss the suit for failure to comply with the statutory deadline for the resolution of termination proceedings. See Tex. Fam.Code Ann. § 263.401 (West 2008). For the reasons that follow, we deny both petitions for writ of mandamus.

DISCUSSION

The Texas Department of Family and Protective Services filed the underlying suit to terminate the parental rights of Russell and Scott on June 16, 2009. On June 24, 2009, the trial court issued a pretrial scheduling order, which provided that the suit was to be dismissed under section 263.401 of the family code if, by June 28, 2010, the trial court had not commenced trial on the merits or rendered an order retaining the suit on its docket. See id. (providing that court must commence trial on merits or render order to retain by first Monday after first anniversary of date Department was appointed temporary managing conservator). The scheduling order further provided that all jury demands were to be filed on or before the date of the initial permanency hearing on November 24, 2009. Russell and Scott, who were found indigent and appointed counsel for the first time at the November 24 hearing, did not file a jury demand by the November 24 deadline set forth in the scheduling order.

On April 27, 2010, a bench trial on the merits was held before an associate judge. See id. § 201.005 (West 2008) (governing referral of cases to associate judges). Neither parent filed a written jury demand at any time prior to the bench trial, nor did they specifically object at trial to proceeding without a jury. On June 22, 2010, the associate judge issued a proposed order terminating the parental rights of both Russell and Scott as to all three children. The order, titled, “Interlocutory Order of Termination,” included the following handwritten language: “This is not a final order because a hearing remains pending on intervenor’s request to be appointed [pos-sessory conservator].” The associate judge’s interlocutory order was signed and adopted by the referring court on June 24, 2010.

On July 1, 2010, both parents filed timely requests for a de novo hearing of the associate judge’s decision. See id. § 201.015(a) (West Supp.2010) (allowing parties to request de novo hearing before referring court by filing written request within seven working days of associate judge’s decision). The referring court held a hearing on July 27, 2010, but the parties disagree as to the nature of the hearing. Russell takes the position that the July 27 hearing constituted the de novo hearing authorized by section 201.015, while the State and the children’s attorney ad litem assert that the July 27 hearing was limited to the issue of whether Russell and Scott had knowingly and voluntarily waived a jury trial on the termination of their parental rights. The latter view is consistent with the trial court’s findings of fact and conclusions of law, which include a finding that “no witness was sworn, no testimony was heard[,] and no evidence was presents ed to or received by the referring court” at the July 27 hearing, and a conclusion of law that the “July 27th setting did not result in a de novo hearing.” In any event, it is undisputed that during the July 27 hearing, the parents made an oral request for a de novo hearing with a jury, which the trial court granted, setting the hearing to begin October 25, 2010.

The Children’s Petition for Writ of Mandamus

The children, through their attorney ad litem, assert that the trial court’s action in setting a de novo hearing with a jury for October 25 was void because it occurred after expiration of the trial court’s plenary power, which began to run when the district court adopted the associate judge’s order on June 24, 2010. Had the district court’s June 24 order been final, this position may have been meritorious, as neither parent sought to vacate the district court’s order, filed a post-judgment motion, or otherwise took action to extend the trial court’s plenary power in the 30 days after the order was signed. See Tex.R. Civ. P. 329b(d); State ex rel. Latty v. Owens, 907 S.W.2d 484, 485 (Tex.1995) (per curiam); In re A.J.F., 313 S.W.3d 475, 478 (Tex.App.-Dallas 2010, no pet.) (holding that plenary power begins to run from date district judge adopts associate judge’s order, even if party timely requested de novo hearing). However, the June 24 order expressly stated that it was not final, as a hearing on the intervenor’s request to be appointed possessory conservator remained pending. Because the June 24 order was not a final judgment disposing of all claims and parties, the trial court’s plenary power did not begin to run from the date the order was signed. See Unifund CCR Partners v. Villa, 299 S.W.3d 92, 97 (Tex.2009) (holding that deadline for expiration of plenary power does not begin to run absent final order disposing of all pending matters). Therefore, the trial court retained jurisdiction to take further judicial action, including holding a hearing on July 27 and setting a de novo hearing with a jury for October 25.

The children’s ad litem also argues that the trial court was statutorily prohibited from setting the de novo hearing more than 30 days after the date of the initial request. Family code section 201.015(f) provides that the referring court “shall hold a de novo hearing not later than the 30th day after the date on which the initial request for a de novo hearing was filed.” Tex. Fam.Code Ann. § 201.015(f). However, failure to comply with the 30-day requirement of section 201.015(f) does not deprive the trial court of jurisdiction. See Harrell v. Harrell, 986 S.W.2d 629, 631 (Tex.App.-El Paso 1998, no pet.); Rollins-El v. Texas Dep’t of Family & Protective Servs., No. 03-07-00010-CV, 2008 WL 1990299, at *3-4 n. 4, 2008 Tex.App. LEXIS 3382, at *10 n. 4 (Tex.App.-Austin May 9, 2008, no pet.) (mem.op.). The court in Harrell explained:

Because section 201.015(f) is not a jurisdictional prerequisite to a de novo hearing, the referring court is not statutorily precluded from conducting the de novo hearing outside the thirty day window. In this case, the trial court indicated its willingness and intention to hear the matter de novo outside of this window when it set the issue for trial on August 27, more than thirty days after the notice of appeal. While Appellant certainly had the ability to pursue mandamus relief with regard to the trial court’s failure to set the matter within thirty days, she was also entitled to acquiesce in a later trial setting.

986 S.W.2d at 631 (citations omitted).

Here, there is no indication that any of the parties objected to the October 25 setting for the de novo hearing, particularly given the trial court’s finding of fact that after the parents’ request for a de novo hearing was granted, the court “(after much consultation of calendars both on and off the record) set the matter on the first available jury setting at which counsel for all parties, including the [Department], announced to the court that each would be mutually available — October 25, 2010.” Because the trial court is “not statutorily precluded from conducting the de novo hearing outside the thirty day window,” id., and because no party sought to compel the trial court to set the de novo hearing within 30 days from the date of the request, we conclude that the trial court did not commit a clear abuse of discretion by setting the de novo hearing for October 25. See In re Texas Dep’t of Family & Protective Servs., 210 S.W.3d 609, 612 (Tex.2006) (stating that mandamus relief is proper only to correct clear abuse of discretion).

In the alternative, the children’s attorney ad litem contends that the trial court clearly abused its discretion in granting the de novo hearing before a jury because the parents did not make a timely jury demand under the pretrial scheduling order or request a jury and pay the necessary fee under the rules of civil procedure. See Tex.R. Civ. P. 216. However, as the supreme court observed in GMC v. Gayle, trial courts have discretion to allow a jury trial, even when a party fails to comply with Rule 216, “if it can be done without interfering with the court’s docket, delaying the trial, or injuring the opposing party.” 951 S.W.2d 469, 476 (Tex.1997) (citing Allen v. Plummer, 71 Tex. 546, 9 S.W. 672, 673 (1888) (holding that requirements of jury demand and fee “are not strictly mandatory,” so that party failing to comply does not forfeit right to jury if such failure does not prejudice opposing party); Dawson v. Jarvis, 627 S.W.2d 444, 446 (Tex.App.-Houston [1st Dist.] 1981, writ ref'd n.r.e.) (“[I]n spite of the mandatory language of Rule 216, the rule is construed as being discretionary with the judge.”); Aronoff v. Texas Turnpike Auth., 299 S.W.2d 342, 344 (Tex.Civ.App.-Dallas 1957, no writ) (stating that Rule 216 “is discretionary rather than mandatory!,] and that when the Rule has not been complied with, a trial court’s decision to grant or deny a jury trial will not be reversed on appeal except on a showing of abuse of discretion”)). Given that Russell and Scott are already entitled to a de novo hearing under the family code, there is no indication that the additional step of holding this hearing before a jury will unduly interfere with the court’s docket, delay the trial, or injure the opposing parties. As a result, we hold that the trial court did not clearly abuse its discretion in granting the par-exits’ oral request that the de novo hearing be held before a jury.

In light of the foregoing, the petition for writ of mandamus filed by the children’s attorney ad litem is denied.

Russell’s Petition for Writ of Mandamus

On July 30, 2010, after the hearing in which the trial court granted her request for a de novo hearing before a jury, Russell filed a motion to dismiss the termination proceeding for failure to comply with the statutory deadline set forth in family code section 263.401. See Tex. Fam.Code Ann. § 263.401 (providing for mandatory dismissal of termination proceeding after one year if trial on merits has not commenced or proper extension obtained). Russell asserted that because the trial court had granted her request for a de novo hearing, which was set to begin October 25, 2010, the trial court had failed to “commence[] the trial on the merits” before the statutory dismissal date of June 28, 2010. See id. The trial court denied this motion, prompting Russell to file a petition for writ of mandamus to compel the trial court to vacate its denial of her motion and dismiss this suit.

Russell’s argument fails, however, because trial on the merits commenced when this case was tried before the associate judge in April 2010, two months before the statutory dismissal date in June 2010. Russell, characterizing the trial court’s grant of her request for a de novo hearing as the granting of a new trial, argues that when the new trial was granted, the case was reinstated on the docket as if no trial had occurred. See In re Department of Family & Protective Servs., 273 S.W.3d 637, 644 (Tex.2009). However, Russell never filed a motion for new trial, and no new trial was granted. What Russell actually requested and received was a de novo hearing under family code section 201.015. See Tex. Fam.Code Ann. § 201.015 (allowing for de novo hearing of associate judge decision). A de novo hearing under section 201.015, unlike a new trial, is mandatory upon the filing of a request and is limited to the issues specified in the request. See id. § 201.015(c), (f). Furthermore, in conducting the de novo hearing under section 201.015, the referring court may “consider the record from the hearing before the associate judge.” Id. § 201.015(c). Thus, the granting of a de novo hearing under section 201.015 does not, like the granting of a motion for new trial, reinstate the case on the court’s docket as if no trial had occurred for purposes of the statutory deadline for commencement of trial on the merits. Cf. Department of Family & Protective Servs., 273 S.W.3d at 644.

This Court has previously held that the filing of a request for a de novo hearing does not negate the actions of the associate judge for purposes of the statutory dismissal date set forth in section 263.401. See Garza v. Texas Dep’t of Family & Protective Servs., 212 S.W.3d 373, 376-77 (Tex.App.-Austin 2006, no pet.) (holding that under prior version of section 263.401, which required final order to be issued prior to dismissal date, final order of associate judge was sufficient to avoid dismissal, despite fact that de novo hearing had been requested). The current version of section 263.401 does not require a final order, but only the commencement of trial on the merits by the statutory dismissal date. See Tex. Fam.Code Ann. § 263.401. The commencement of trial on the merits before the associate judge in this case is analogous to the issuance of a final order by the associate judge in Garza. Both are sufficient to satisfy the statutory deadline in section 263.401, despite the party’s request for a de novo hearing of the associate judge’s decision. Accordingly, we hold that because trial on the merits commenced prior to the statutory dismissal date in this case, the trial court did not clearly abuse its discretion in denying Russell’s motion to dismiss. Russell’s petition for writ of mandamus is denied.

We deny both petitions for writ of mandamus. Accordingly, all orders of the trial court remain in effect.

      . The attorney originally appointed to represent Russell and Scott withdrew in March 2010, at which time the trial court appointed separate counsel to represent Russell and Scott individually.

      . Both Russell and Scott sought a continuance of the April 27 trial setting, which the associate judge denied.

      . It appears from the record before us that the intervenor referenced here was the children’s maternal grandmother.

      . In this context, "notice of appeal” refers to the party’s request for a de novo hearing of the associate judge’s decision under section 201.015.

      . In its consolidated response to the petitions for writ of mandamus, the State argues that Russell waived her right to a jury by failing to raise the issue in her request for a de novo hearing. Under family code section 201.015, the de novo hearing before the referring court is limited to those issues raised in the hearing request. See Tex. Fam.Code Ann. § 201.015(b) (West Supp.2010); see also In re E.M., 54 S.W.3d 849, 852 (Tex.App.-Corpus Christi 2001, no pet.). In her request for a de novo hearing, Russell challenged “[e]ach and every finding entered by the Associate Judge,” and ”[e]ach and every order entered by the Associate Judge.” Presumably, this would include the express finding in the associate judge’s order that a "jury was waived” at the April 2010 trial setting. The trial court appears to have considered the language of Russell's request to sufficiently challenge the jury-waiver finding, and we cannot say that it clearly abused its discretion in doing so.

      . The trial court's findings of fact include a finding that after the order of termination was signed, "[n]o party filed any motions, pleadings or otherwise requested a new trial.” The trial court also clarified in its findings of fact that the October 25 setting represented the requested de novo hearing, as opposed to a new trial, stating that "no de novo hearing was held on July 27th and, rather, that said hearing with a jury was set for October 25th.”

      . We note also that the supreme court has held that in some circumstances, mandamus relief may be improper for failure to dismiss a termination proceeding after the statutory deadline because the parties have an adequate remedy by accelerated appeal. See Texas Dep’t of Family & Protective Servs., 210 S.W.3d 609, 614 (Tex.2006). The court limited its holding to the facts of that case, stating, “We do not hold that a party complaining of a trial court's failure to dismiss a [suit affecting the parent-child relationship] within the statutory deadline could never be entitled to mandamus relief, but under the facts of this case, we cannot conclude that an accelerated appeal was not an adequate remedy.” Id. Because we hold that the trial court did not clearly abuse its discretion in denying Russell’s motion to dismiss, we need not reach the issue of whether she had an adequate remedy on appeal.


author: KENT C. SULLIVAN, Justice.

text:
    In re Aker Kvaerner IHI, Relator.
    No. 14-10-00538-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Oct. 21, 2010.

      Richard W. Avery, Houston, for relator.
    Gregory M. Cokinos, Spencer G. Markle, Diane Guariglia, Houston, Stanley W. Curry, San Antonio, for real party in interest.

      Panel consists of Justices BROWN, SULLIVAN, and CHRISTOPHER.
   OPINION

KENT C. SULLIVAN, Justice.

On June 17, 2010, relator, Aker Kvaer-ner IHI, filed a petition for writ of mandamus in this Court. See Tex. Gov’t Code Ann. § 22.221 (Vernon 2004); Tex.RApp. P. 52. In the petition, relator asks this Court to compel the Honorable Dion Ramos, presiding judge of the 55th District Court of Harris County, to set aside the trial court’s May 13, 2010 order directing the parties to arbitrate in Houston, Texas. We conditionally grant the petition.

Background

Relator and real party in interest, Bay Ltd., entered into a subcontract (the “Agreement”) for the construction of a processing facility in Cameron Parish, Louisiana, in which relator was the contractor. The owner of the project was Cameron LNG, LLC (“Cameron”).

The Agreement provided for arbitration of any disputes between relator and Bay with the arbitration to take place in Houston, Texas. However, the Agreement also contemplated that such claims could be consolidated with any disputes also involving Cameron.

After a dispute arose between relator and Bay, Bay initiated arbitration with the American Arbitration Association against relator in Texas on June 26, 2007 (the “Texas arbitration”). Subsequently, in December 2007, relator initiated arbitration against Cameron in San Diego, California, pursuant to its contract with Cameron (the “California arbitration”). Relator added Bay to that arbitration proceeding, notwithstanding the pending Texas arbitration, pursuant to the consolidation provision in the Agreement. The AAA issued a consolidation order on April 13, 2009, directing that Bay be joined as a party to the California arbitration, and that Bay’s claims be consolidated in the California arbitration.

On June 2, 2009, Bay and relator settled part of their dispute and dismissed the Texas arbitration, but agreed to arbitrate the remaining claims in the California arbitration. Relator and Cameron subsequently settled their dispute in mediation and, on August 31, 2009, Cameron was dismissed from the California arbitration. Relator notified Bay that it intended to proceed with arbitration of Bay’s claims in San Diego.

Bay responded with a motion to dismiss the California arbitration, on September 18, 2009, and requested that the claims be transferred to the Dallas AAA office. Subsequently, on September 25, 2009, Bay filed an original petition for declaratory judgment in the trial court arguing that, with the dismissal of Cameron from the California arbitration, the arbitration of the claims should take place in Houston.

On February 12, 2010, Bay filed a motion to compel arbitration requesting that the trial court order the arbitration to take place in Houston. The trial court held a hearing on Bay’s motion to compel on March 1, 2010, and granted the motion by way of a March 2, 2010 order, but the order did not explicitly specify the location of the arbitration. Bay informed the AAA of the trial court’s March 2, 2010 order, and relator filed a motion for rehearing and/or motion to clarify the March 2, 2010 order.

The AAA requested on March 19, 2010, that the parties submit “locale contentions” so that it could make its locale determination. On April 16, 2010, the AAA issued its order that the arbitration “hearings will be held in San Diego, CA.”

After the AAA issued its locale order, Bay filed a motion to clarify the March 2, 2010 order. On May 13, 2010, the trial court signed a new order conflicting with the AAA’s locale order, directing that the arbitration take place in Houston.

On May 17, 2010, the AAA reversed itself and notified the parties, that the arbitration hearings would take place in Houston in accordance with the trial court’s May 13, 2010 order. Relator then filed this original proceeding seeking to set aside the trial court’s May 13, 2010 order.

Standard of Review

To be entitled to the extraordinary relief of a writ of mandamus, the relator must show that the trial court abused its discretion and there is no adequate remedy by appeal. In re Laibe Corp., 307 S.W.3d 314, 316 (Tex.2010) (orig. proceeding) (per curiam). A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to constitute a clear and prejudicial error of law, or if it clearly fails to correctly analyze or apply the law. In re Columbia Med. Ctr. of Las Colinas, 306 S.W.3d 246, 248 (Tex.2010) (orig. proceeding) (per curiam); In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex.2005) (orig. proceeding) (per curiam). In determining whether appeal is an adequate remedy, we consider whether the benefits outweigh the detriments of mandamus review. In re BP Prods. N. Am., Inc., 244 S.W.3d 840, 845 (Tex.2008) (orig. proceeding).

Analysis

Relator argues that the trial court does not have jurisdiction to change the locale of the arbitration of the claims as determined by the AAA. At oral argument, Bay conceded that the May 13, 2010 order is unenforceable. We agree.

The Federal Arbitration Act (“FAA”) is part of the substantive law of Texas. Capital Income Props.-LXXX v. Blackmon, 843 S.W.2d 22, 23 (Tex.1992) (orig. proceeding) (per curiam). If the FAA applies, as here, a trial court does not have the power to review any interlocutory ruling by an arbitration panel. Michaels v. Mariforum Shipping, S.A., 624 F.2d 411, 414 (2d Cir.1980). Instead, it is only after an award has been made by the arbitrators that a party can seek to attack any of the arbitrators’ determinations in court, by moving either to vacate the award, or to modify or correct it. Id. Accordingly, until an award has been made, a court is simply without authority to review the validity of arbitrators’ interlocutory rulings. Id.

This case had not yet progressed to the stage of a “final” award at the time of the trial court’s May 13, 2010 order. Before an arbitration order may be considered “final,” the arbitrators must have intended for the award to represent their complete determination of all claims submitted to them. Id. at 413. An interlocutory AAA ruling does not meet this standard; therefore, such a ruling, including a locale determination, is not subject to judicial review. Aerojet-Gen. Corp. v. Am. Arbitration Ass’n, 478 F.2d 248, 251 (9th Cir.1973); S.J. Groves & Sons Co. v. Am. Arbitration Ass’n, 452 F.Supp. 121, 124 (D.Minn.1978); Conestoga Title Ins. Co. v. Acoustic Home Loans, LLC, No. 1:06-CV-1636, 2007 WL 1058228, at *2 (S.D.Ind. Apr. 5, 2007).

Moreover, under the rules of the AAA by which the parties agreed to be bound, the arbitrators’ decision on locale is considered final and binding. Specifically, Rule R-ll of the Construction Industry Arbitration Rules — the rules applicable to the underlying arbitration proceeding — states with regard to “Fixing of Locale”:

The parties may mutually agree on the locale where the arbitration is to be held. If any party requests that the hearing be held in a specific locale and the other party files no objection thereto within fifteen calendar days after notice of the request has been sent to it by the AAA, the locale shall be the one requested. If a party objects to the locale requested by the other party, the AAA shall have the power to determine the locale, and its decision shall be final and binding.

(Emphasis added).

In light of the AAA’s decision to reverse its determination of the arbitration’s locale “[i]n accordance with the submitted revised Court order of May 13th,” it is appropriate for relator to seek to set aside that order. In that regard, relator points to, among other things, correspondence in which Bay threatens that a failure to comply with the trial court’s order as to the required venue for the arbitration could result in a request for contempt.

Having determined that the trial court abused its discretion by interfering with an interlocutory ruling by the AAA, we must determine whether relator has an adequate remedy by appeal. “[Mandamus] will issue when the failure to do so would vitiate and render illusory the subject matter of an appeal.” Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 272 (Tex.1992) (orig. proceeding).

Any appeal after the conclusion of the arbitration would vitiate relator’s right to have the AAA decide the locale issue. To allow judicial intervention prior to the final award would contravene the fundamental policy of deference to contractual dispute resolution, and would interfere with the purpose of arbitration: the speedy resolution of grievance without the time and expense of court proceedings. Millmen Local 550 v. Wells Exterior Trim, 828 F.2d 1373, 1375 (9th Cir.1987). Therefore, relator does not have an adequate remedy by appeal.

Conclusion

We conclude that the trial court abused its discretion by ordering the parties to arbitrate their dispute in Houston and otherwise usurping the decision-making authority of the AAA, and relators do not have an adequate remedy by appeal. Accordingly, we conditionally grant the petition for writ of mandamus and direct the trial court to vacate its May 13, 2010 order. The writ will issue only if the trial court fails to act in accordance with this opinion.

      . Bay does not dispute that the FAA is applicable to the underlying arbitration proceeding.

      . Bay stated in a letter to the AAA that "AK IHI’s admonishment to the AAA that it should not proceed with setting the locale or with appointment of arbitrators is equally misguided, and borders on encouraging inaction in contempt of a court order. If AK IHI intends to appeal the Court’s order, that does not justify further delays on this nearly three year old proceeding.... [Bay] asks that [the] AAA comply with the Court’s order and proceed with arbitrator selection for a panel to arbitrate this dispute in Texas.” (Emphasis added).

      . See also Michaels, 624 F.2d at 414 ("Most of the advantages inherent in arbitration are dissipated by interlocutory appeals to a district court.”); Collins v. Tex Mall, L.P., 297 S.W.3d 409, 417 (Tex.App.-Fort Worth 2009, no pet.) ("Subjecting partial awards to judicial review would require the trial courts to hold themselves open as appellate tribunals during ongoing arbitration proceedings, resulting in a waste of time, the interruption of the arbitration proceedings, and delaying tactics in a proceeding that is supposed to produce a speedy decision.”).


text:
    In the Interest of R.T.K., A Child.
    No. 14-08-00948-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Nov. 2, 2010.

      Janet M. Heppard, Barbara J. Stalder, Houston, for appellant.
    Sallee S. Smyth, Richmond, Sherill Lynn Dean, Carol Griffin, Houston, for appellee.
    Panel consists of Justices FROST, BOYCE, and SULLIVAN.
   SUBSTITUTE OPINION

KENT C. SULLIVAN, Justice.

We deny appellant’s motion for rehearing, withdraw the opinion issued in this case on August 31, 2010, and issue this substitute opinion in its place.

This appeal arises from a child-custody dispute. Appellant, Heidi Blunt, is the biological mother of R.T.K., a 12-year-old boy. She was briefly married to the boy’s father, Dean Kelly, but their volatile marriage ended in 1999, before the child’s second birthday. Under an agreed conser-vatorship order, Dean was appointed sole managing conservator of R.T.K. Heidi, by contrast, was named possessory conservator and granted only supervised visitation rights.

Over the next few years, Heidi frequently failed to exercise her visitation rights. In her absence, her son was brought up almost exclusively by Dean and his new wife, appellee Stacie Kelly, whom he married in 2001 when R.T.K. was three years old.

In 2006, Dean suddenly passed away while on a camping trip with Stacie and R.T.K. Following his death, Stacie and Heidi both sought to be named as the boy’s managing conservator. After a lengthy bench trial, the court appointed Stacie sole managing conservator but kept Heidi’s status as a possessory conservator. In support, the court expressly found that appointment of Heidi as managing conservator, solely or jointly, would significantly impair R.T.K.’s physical health and emotional development.

Heidi has appealed that ruling. In two issues, she contends the trial court abused its discretion, and violated her constitutional rights, by declining to appoint her sole managing conservator. We affirm.

I.

BACKGROUND

The appellate record is not very flattering to Heidi. However, because her appellate issues raise the question of her fitness as a parent, we are compelled to discuss details of her personal and criminal problems over the relevant time period. To the extent she testified to a different version of these events, we are required, under the pertinent standard of review, to consider the evidence in the light most favorable to the trial court’s findings of fact. See City of Keller v. Wilson, 168 S.W.3d 802, 822-23 (Tex.2005). The following facts are presented in that fashion.

R.T.K., the child subject to this custody dispute, was born on January 19, 1998. The volatile marriage between his parents, Dean and Heidi, did not last long. They separated only three months after he was born, at a time when Heidi was facing criminal charges because she had assaulted Dean on at least two occasions. Heidi responded to the separation by working as an “escort” to more than eighty different men. Sometime after learning of Heidi’s new occupation, Dean filed for divorce on-the grounds of cruelty by Heidi.

In October 1999, the trial court granted Dean’s request for a divorce and found Heidi had, in fact, engaged in cruel treatment of him. By agreement of the parties, Dean was appointed sole managing conservator of R.T.K., and Heidi was named a possessory conservator. However, Heidi was allowed only supervised visitation with her son, to be overseen by Heidi’s grandmother, Jane Bright.

For the next few years, Heidi did not take much of an active role in her son’s early life. She frequently failed to exercise her visitation rights and, when she did, she reportedly spent much of that time on the computer, leaving her grandmother to play with R.T.K. At one point, Heidi had not seen her son in more than two years.

Meanwhile, Dean had married Stacie in 2001. R.T.K. continued to live with them and, over the next several years, the boy bonded with Stacie and came to regard her as his “mom.”

In 2004, Heidi successfully lobbied the trial court to grant her unsupervised visitation rights. However, she did not request joint custody of R.T.K., who continued to reside with Stacie and Dean.

In 2006, Dean suddenly died of a heart attack while on a camping trip with Stacie and R.T.K., who was then in the third grade. On the date of Dean’s funeral, Heidi showed up unannounced at Stacie’s house, and then at the funeral home, angrily demanding that Stacie surrender R.T.K. to her. After several confrontations with family members at both locations, Heidi had to be escorted from the funeral home by police officers.

Stacie filed suit seeking to be appointed as her stepson’s managing conservator, either solely or jointly with Heidi. Heidi counterclaimed, seeking modification of the earlier custody order and asking to be named R.T.K’s sole managing conservator.

The case proceeded to a lengthy bench trial that spanned several months and featured numerous witnesses. At its conclusion, the trial court appointed Stacie sole managing conservator, and Heidi as pos-sessory conservator. In support, the court issued findings of fact and conclusions of law, in which it found, among other things, that appointment of Heidi as a managing conservator would significantly impair R.T.K’s physical health and emotional development.

Heidi has appealed the trial court’s refusal to appoint her as sole managing conservator. In two issues, Heidi contends the trial court abused its discretion because its ruling is not adequately supported by sufficient evidence in the record. Stacie contends that sufficient evidence supports the trial court’s determination.

The parties’ disagreement regarding sufficiency of the evidence reflects a deeper disagreement about the proper characterization of Stacie’s suit seeking appointment as R.T.K’s managing conservator following Dean’s death.

Heidi contends that the evidence is insufficient to support appointment of Stacie as sole managing conservator because Stacie failed to overcome a “parental presumption” contained in section 153.131(a) of the Texas Family Code. Heidi invokes section 153.131 and asserts that Stacie’s suit was an original conservatorship proceeding that is subject to the parental presumption. See In re V.L.K., 24 S.W.3d 338, 343 (Tex.2000).

Stacie, in contrast, contends that her suit sought to modify a prior conservator-ship determination and was not an original conservatorship proceeding. Stacie thus seeks to cast her suit as a modification action governed by chapter 156 of the Family Code, to which no parental presumption applies. See id.

II.

Standard of Review

Because the trial court is granted broad discretion to decide the best interests of a child in family-law matters, we review its custody order for an abuse of that discretion. See In re A.L.E., 279 S.W.3d 424, 427 (Tex.App.-Houston [14th Dist.] 2009, no pet.); In re Smith, 260 S.W.3d 568, 574 (Tex.App.-Houston [14th Dist.] 2008, orig. proceeding). Generally, a trial court abuses its discretion by acting arbitrarily, unreasonably, or without reference to any guiding rules or principles. See Swaab v. Swaab, 282 S.W.3d 519, 524 (Tex.App.-Houston [14th Dist.] 2008, pet dism’d w.o.j.).

Under this standard, a challenge to the legal or factual sufficiency of the evidence is not an independent ground of error but may be a relevant consideration in assessing whether the trial court abused its discretion. See Baltzer v. Medina, 240 S.W.3d 469, 475 (Tex.App.-Houston [14th Dist.] 2007, no pet). A trial court does not abuse its discretion if there is some evidence of a substantive and probative character to support its decision. See A.L.E., 279 S.W.3d at 428; Baltzer, 240 S.W.3d at 475.

III.

Analysis

Heidi presents two related arguments to challenge the trial court’s appointment of Stacie, instead of her, as sole managing conservator. In her first issue, she contends the trial court did not properly give effect to a “parental presumption” contained in section 153.131(a) of the Texas Family Code. That argument also underlies her second issue, in which she claims that, by failing to observe that statutory presumption, the trial court, in effect, violated her constitutional rights as a parent. Both of Heidi’s arguments turn on her claim that the trial court was required, but failed, to apply a rebuttable statutory presumption that a child’s interests would be best served by appointment of a parent as sole managing conservator. The differences between an original conservatorship suit and a modification action are “more than procedural or semantic.” See In re C.A.M.M., 243 S.W.3d 211, 215 (Tex.App.Houston [14th Dist.] 2007, pet. denied). Each proceeding is governed by a distinct statutory scheme designed to address different policy concerns. See V.L.K., 24 S.W.3d at 343.

The controlling provisions for original custody suits are found in chapter 153 of the Texas Family Code. See id. at 341. That chapter contains, among other things, a “parental presumption” codifying the common-law notion that a child’s best interest is usually served by awarding eusto-dy to a parent. See id.; Tex. Fam.Code Ann. § 153.131(a) (Vernon 2008). A “modification suit” is governed by a different chapter — 156—of the Family Code. See V.L.K., 24 S.W.3d at 342, 343.

Both chapters share one overriding concern: the best interest of the child. See Tex. Fam.Code Ann. § 153.002 (Vernon 2008) (“The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.”) (emphasis added). However, a modification suit introduces additional policy concerns not present in an original custody action, “such as stability for the child and the need to prevent constant litigation in child custody cases.” V.L.K., 24 S.W.3d at 343. Those concerns apparently prompted the Legislature to remove any statutory presumption that would favor a parent over a nonparent in a custody-modification proceeding:

By including the parental presumption in original suits affecting the parent-child relationship but not in suits for modification of conservatorship, the Legislature balanced the rights of the parent and the best interest of the child. On one hand, “the interest of parents in the care, custody, and control of their children” has been described as “perhaps the oldest of the fundamental liberty interests” recognized by the United States Supreme Court. On the other hand, it is the public policy of this State to resolve conservatorship disputes in a manner that provides a safe, stable, and nonviolent environment for the child.
The Legislature has determined that when these two interests compete ... the child’s interest in stability prevails over the parent’s right to primary possession. Thus, when statutory requirements are met, the parent’s right to primary possession must yield to the child’s right to a safe, stable home.

C.A.M.M., 243 S.W.3d at 216 (citations omitted); see V.L.K., 24 S.W.3d at 343 (expressing concern that “a change of custody disrupts the child’s living arrangements and the channels of a child’s affection”).

According to the record, the parties and the trial court agreed that the presumption applied to Stacie’s suit seeking her appointment as R.T.K’s managing conservator. The trial court stated: “I think there is a ... presumption in this particular case.... ” Counsel for Stacie and Heidi responded in unison: “Right.” On motion for rehearing, Heidi stresses that Stacie expressly consented to try the case under the parental presumption and argues that the evidence is insufficient to overcome this presumption.

We hold the trial court did not abuse its discretion by appointing Stacie as sole managing conservator on this record. This conclusion applies regardless of whether the evidence is assessed in light of section 153.131(a)’s parental presumption or under section 156.101, which imposes no parental presumption. Because both routes lead to the same destination on this record, we need not and do not decide whether (1) Stacie stipulated to an inapplicable standard; or (2) a party could hypothetically waive the child’s right to have his best interests decided under the correct legal standard.

Before addressing the evidence supporting that conclusion, however, we pause to note the rather unique deference afforded a trial court’s custody determinations, in light of its ability to sense “the forces, powers, and influences that cannot be discerned by merely reading the record”:

Custody disputes by their very nature are inherently fact-intensive. Concepts of psychological parenting, bonding, and the depth of attachments to parent-figures must be viewed in the context of the evidence presented. Appellate courts routinely defer to the fact finder at trial concerning matters of credibility and demeanor, but perhaps in no other type of litigation is it more critical. In most instances, the fact finder will not hear from the child the subject of the suit. The child’s behavior, experiences, fears, joys, and significant attachments will be conveyed through pictures and through the words of other witnesses, both lay and expert. The individuals vying for conservatorship may be scrutinized by the fact finder for such intangible signs as an animated smile when describing a child’s achievements, a furrowed brow when explaining typical affectionate concern, or even tears when anticipating the emotional impact the outcome of litigation will have on a child.

In re De La Pena, 999 S.W.2d 521, 526, 529 (Tex.App.-El Paso 1999, no pet). With those considerations in mind, we turn to the evidence addressing the statutory presumption.

A. The “Parental Presumption” Standard

The relevant portions of the “parental presumption,” as codified in the Family Code, provide:

Subject to the prohibition in Section 153.004, unless the court finds that appointment of the parent ... would not be in the best interest of the child because the appointment would significantly impair the child’s physical health or emotional development, a parent shall be appointed sole managing conservator ... of the child.

Tex. Fam.Code Ann. § 153.131(a). The rationale for this presumption, according to the Texas Supreme Court, is the natural affection that usually flows between parent and child. See V.L.K., 24 S.W.3d at 341.

In her first issue, Heidi contends this statutory presumption may be rebutted only by proof that she possesses some character flaw that currently renders her an “unfit” mother and, by extension, her home an unsuitable place for R.T.K. However, we disagree with her interpretation, which is not supported by the plain statutory language of section 153.131(a).

1. Interpretation of Section 153.131(a)

In construing a statute, our primary purpose is to determine and give effect to the Legislature’s intent. See V.L.K., 24 S.W.3d at 343. To the extent possible, we must ascertain that intent from the language used in the statute. See Smith, 260 S.W.3d at 572; Graves v. Mack, 246 S.W.3d 704, 708 (Tex.App.Houston [14th Dist.] 2007, no pet.). Therefore, if the statutory language is unambiguous, as here, we adopt the interpretation supported by the plain meaning of the words selected by the Legislature. See Smith, 260 S.W.3d at 572.

Section 153.131(a), on its face, does not necessarily require proof of a parent’s blameworthy conduct as a prerequisite to appointment of a nonparent as managing conservator. Tex. Fam.Code Ann. § 153.131(a). Instead, the statute plainly addresses only the effect of a parent’s appointment on the child, as opposed to the myriad of circumstances — such as the parent’s conduct — that might have produced that result. See id.

To that extent, section 153.131(a) may be contrasted with the Family Code provisions governing the termination of parental rights. See Tex. Fam.Code Ann. §§ 161.001-.007 (Vernon 2008 & Supp. 2009). Under chapter 161, a court may order involuntary termination of a parent-child relationship only if there is proof of one or more acts or omissions, most of which, in a general sense, reflect either neglect or inability to care for the child. See id. §§ 161.001(1) (Vernon Supp. 2009), 161.003(a) (Vernon 2008).

That evidentiary requirement, however, is conspicuously absent from section 153.131(a). See id. § 153.131(a). Therefore, we must presume the Legislature did not intend to always require proof of specific acts of wrongdoing by a parent simply to overcome the statutory presumption. See City of Rockwall v. Hughes, 246 S.W.3d 621, 628 (Tex.2008) (“[W]e believe every word excluded from a statute must also be presumed to have been excluded for a purpose.”) (citation omitted); Charette v. Fitzgerald, 213 S.W.3d 505, 511 (Tex.App.-Houston [14th Dist.] 2006, no pet.).

To be clear, evidence of a parent’s “blameworthy prior behavior,” by itself, may be sufficient to overcome the presumption in some cases. See, e.g., In re K.R.P., 80 S.W.3d 669, 677 (Tex.App.Houston [1st Dist.] 2002, pet. denied) (affirming appointment of nonparent as sole managing conservator, in part, because of evidence of parent’s abusive and criminal behavior). However, such proof may not be necessary in all cases if, as here, the record otherwise demonstrates that appointment of the parent would produce “the statutorily required negative effect on the child.” In re G.R.W., 191 S.W.3d 896, 900 (Tex.App.-Texarkana 2006, no pet.).

We note several other Texas courts have interpreted section 153.181(a) similarly. See id. Chavez v. Chavez, 148 S.W.3d 449, 458-59 (Tex.App.-El Paso 2004, no pet.); K.R.P., 80 S.W.3d at 677 (noting that “separation of the child from the only person who has consistently cared for her for the majority of her life would ‘significantly impair’ the child’s emotional development”); De La Pena, 999 S.W.2d at 529 (“[Bjecause safety, security, and stability are critical to child development, the danger of uprooting a child may in some instances rise to a level that significantly impairs the child’s emotional development.”); In re Rodriguez, 940 S.W.2d 265, 272-73 (Tex.App.-San Antonio 1997, writ denied) (upholding appointment of nonpar-ents despite absence of any evidence of father’s culpability).

In this case, the trial court specifically found, among other things, that appointment of Heidi as sole managing conservator would uproot R.T.K. “from the only home he has known for the last eight years” and significantly impair his emotional development. Because that finding is sufficiently supported by evidence in the record, as shown below, we may not disturb the trial court’s judgment. See A.L.E., 279 S.W.3d at 428; Baltzer, 240 S.W.3d at 475.

2. Application to Facts

In her appellate brief, Heidi challenges the sufficiency of all fifty-two Findings of Fact issued by the trial court, including such innocuous findings as, “Petitioner, STACIE KELLY, is the stepmother of the child.” As to most of these findings, however, Heidi does not actually suggest the evidence is lacking; instead, she contends these findings, taken as true, are not enough to overcome the statutory presumption. We disagree.

The record contains evidence of a substantive and probative nature supporting the trial court’s bottom-line conclusion that “Memoving [R.T.K.] from STACIE KELLY’s home would significantly impair his emotional development.” That was the very opinion offered by multiple witnesses who have spent significant time with R.T.K., including Stacie, Heidi’s grandmother, and R.T.K’s then-current schoolteacher, Melanie Bailey. All three witnesses confirmed that, as a result of the death of his father, R.T.K. has an increased need for stability in his home environment. Further, all of these witnesses testified that the child’s stability would be disrupted by removing him from his home and placing him with Heidi.

The record confirms their accounts. For much of R.T.K’s life, Heidi has been unable or unwilling to provide the stable home environment crucial to his emotional development. She was incarcerated during his very early life, and ceased to have joint custody of him when he was only one year old. She was absent from his life for more than two years, and repeatedly failed to exercise her rights to visit with, much less actively participate in the early life of, her son.

In Heidi’s absence, Stacie has provided a steady influence in R.T.K’s life since she came to live with him in 2001. Over the years, they have bonded. He now refers to Stacie as his “mom,” and has repeatedly expressed his desire to live with her, not Heidi. With her help, he has begun to cope with the loss of his father. She arranged for him to receive counseling, and he reportedly has begun to “open up” about his father’s death. He enjoys strong support from his community and, according to several witnesses, Stacie has provided a very safe and stable environment for him.

The record suggests Heidi, by contrast, can provide a “fun” environment for her son, but one lacking any real community or family support. Heidi has almost no interaction with several of her son’s family members, and has not encouraged him to maintain those relationships. For example, after Heidi’s grandmother sided with Stacie during a temporary-orders hearing, Heidi retaliated against her grandmother by denying access to R.T.K. She has not consistently paid child support since Dean’s passing and has likewise failed to maintain steady employment.

The record further reflects that, after his father’s death, R.T.K. has become reluctant to trust new people or to develop long-lasting relationships. That development prompted his teacher, Ms. Bailey, to express concerns about R.T.K’s ability to adapt to any new living situation. That concern was not unfounded; when R.T.K. was temporarily placed with Heidi following a habeas corpus hearing in this case, he reacted very badly to the change in living arrangements. He sobbed uncontrollably and was not consoled by Heidi’s orders to simply “get over it.” Ultimately, Heidi had to ask her grandmother to help settle him down. Heidi’s grandmother, however, is no longer allowed at Heidi’s house.

The trial court, presented with all of the foregoing evidence, could reasonably conclude that removal of R.T.K. from “the only home he has known” would significantly impair his emotional development. See Rodriguez, 940 S.W.2d at 274. Accordingly, we hold the record sufficiently supports the trial court’s conclusion that Stacie presented evidence to rebut the statutory presumption found in section 153.131(a).

B. Evidence Supporting Modification of Previous Custody Order

A review of the evidence under the modification standard leads to the same outcome. A party seeking modification of a previous custody order must prove, in relevant part, that (1) modification would be in the child’s best interest, and (2) “the circumstances of the child, a conservator, or other party affected by the order have materially and substantially changed” since the previous custody order. Tex. Fam.Code Ann. § 156.101(a) (Vernon Supp. 2009); In re Vogel, 261 S.W.3d 917, 923 (Tex.App.-Houston [14th Dist.] 2008, orig. proceeding); C.A.M.M., 243 S.W.3d at 216. Here, the evidence also sufficiently supports a judgment under this standard.

As to the first element, the evidence highlighted above adequately demonstrates that modification of the earlier custody order, so as to appoint Stacie as sole managing conservator, would be in the child’s best interests because it would help promote R.T.K’s need for stability. See Tex. Fam.Code Ann. § 156.101(a)(1); Vogel, 261 S.W.3d at 925 (upholding award of custody to nonparent, in light of concerns posed by uprooting child from stable environment and placing him with father with (1) a relative lack of stability, (2) an inconsistent history of exercising visitation rights, and (3) an inability to maintain steady employment).

Heidi does not challenge proof of the second modification element, that is, a material and substantial change in circumstances since the previous custody order. See Tex. Fam.Code Ann. § 156.101(a)(1). The trial court specifically found, and the uncontested evidence showed, that Dean, who was his son’s sole managing conservator, suddenly died on June 23, 2006. The death of a child’s parent — and sole managing conservator — represents a “material and substantial change” supporting modification of a custody order. See In re P.D.M., 117 S.W.3d 453, 456 n. 1 (Tex.App.-Fort Worth 2003, pet. denied), cited in Vogel, 261 S.W.3d at 923 n. 7.

Accordingly, under either legal standard, the record sufficiently supports the trial court’s decision to appoint Stacie, and not Heidi, as sole managing conservator. Therefore, we hold the trial court did not abuse its discretion, and we overrule appellant’s first and second issues.

IV.

Conclusion

Finding no merit in the issues presented, we affirm the trial court’s judgment.

      . Heidi does not raise a separate challenge to the constitutionality of section 153.131(a).

      . Otherwise, it could be argued that the evidence necessary simply to rebut the presumption might also be sufficient to justify a complete and total termination of the parent-child relationship. See Tex. Fam.Code Ann. § 161.001(1)(E) (authorizing termination of rights as to a parent that "engaged in conduct ... which endangers the physical or emotional well-being of the child”); see also In re Rodriguez, 940 S.W.2d 265, 273 (Tex.App.San Antonio 1997, writ denied) (declining to require proof of parent’s wrongdoing to overcome presumption because "[t]o do so, we believe, would improperly render [the child's] best interest coterminous with [the father’s] fitness to act as a parent and merge the standard for the termination of parental rights with the veiy different standard for custody determinations”).

      . Our conclusion that proof of Heidi’s wrongdoing was not necessary here should not be read as a suggestion that the record was somehow devoid of such evidence. To the contrary, the evidence at trial included several instances of "blameworthy” conduct by Heidi:
      • After R.T.K.’s birth, but during her marriage to Dean, Heidi worked as an "escort” for more than eighty men. While she denied sleeping with more than two of her "customers," the trial court could and did infer unfitness from the nature of the occupation and evidence that the vast majority of her appointments took place at motels. See In re G.R.W., 191 S.W.3d 896, 900 (Tex.App.-Texarkana 2006, no pet.) (confirming a parent’s "immoral behavior” can overcome the parental presumption); De La Pena, 999 S.W.2d at 528.
      • During their marriage, Heidi physically assaulted Dean on at least two occasions following the birth of their son. As a result, she pleaded "guilty” to spousal abuse and served a total of ninety days in jail. Under the Family Code, credible evidence of a history of physical abuse by one parent against the other may be sufficient, by itself, to rebut the parental presumption. See Tex. Fam.Code Ann. §§ 153.004(b) (Vernon Supp. 2009), 153.131(a). In fact, such evidence actually triggers a rebuttable presumption that the abusive parent should not be appointed sole managing conservator. See id. § 153.004(b); Alexander v. Rogers, 247 S.W.3d 757, 762 (Tex.App.-Dallas 2008, no pet.); see also In re R.T.H., 175 S.W.3d 519, 521 (Tex.App.-Fort Worth 2005, no pet.) ("A single act of violence or abuse can constitute a 'history' of physical abuse for purposes of section 153.004(b).”).
      • Heidi had also assaulted Dean’s first wife, Kim Kelly, in front of Kim’s children, and further threatened to “put [Kim] in the hospital.” Despite the remoteness of some of these offenses, appellant’s grandmother testified that Heidi still has a bad temper, occasionally loses control, and can be prone to violent outbursts. The record also confirms several recent outbursts by Heidi against her own grandmother, Stacie, and Dean’s mother. In addition, during the pendency of this suit, Heidi posted insults about the trial judge on a website and had to be admonished during trial not to mouth threats at her grandmother or flash obscene hand gestures at Stacie. Dean's first wife and Heidi's grandmother both voiced concerns, in light of Heidi’s apparently uncontrolled anger problem, about the child’s safety and well-being were he to be placed with Heidi.


author: TRACY CHRISTOPHER, Justice.

text:
    Dominic Deshawn GASTON, Appellant, v. The STATE of Texas, Appellee.
    No. 14-09-00426-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Nov. 2, 2010.

      Terence C. Norman, Pearland, for appellant.
    Jeri Yenne, David Bosserman, Angleton, for appellee.
    Panel consists of Justices SEYMORE, BOYCE, and CHRISTOPHER.
   OPINION

TRACY CHRISTOPHER, Justice.

In this appeal, we examine the sufficiency of corroborating evidence under the accomplice-witness rule. Because the evidence does not tend to connect the accused to the charged offense, we reverse and render judgment of acquittal.

BACKGROUND

Appellant Dominic Deshawn Gaston was charged in the robberies of two Angleton convenience stores in February 2008. The first robbery occurred on February 3 at the T & M Grocery; the second on February 17 at the E-Z Food Mart. Video surveillance from both stores depicts a single masked individual, fully dressed in black. Clerks from neither store were able to identify the offender. The only relevant information they could provide was that a small gun was used in the commission of the first robbery and that approximately two thousand dollars was taken in the second.

At trial, Steven Ray Hall testified against appellant as an accomplice witness. According to Hall, he and appellant coordinated both robberies together. Hall said that when he met appellant in an alleyway behind the T & M Grocery, appellant was carrying a .38-caliber black revolver and wearing a dark black wind suit, skull cap, and do-rag. The two agreed that appellant would rob the store alone while Hall waited in a car with another individual. Hall further testified that he assisted appellant two weeks later by driving him to the E-Z Food Mart in his sister’s car. Hall parked the car at an apartment complex down the road while appellant committed the robbery by himself, dressed entirely in black, just as before. When appellant returned, Hall claimed that appellant had stolen at least four hundred dollars in cash.

The jury was instructed that Hall was an accomplice witness, and therefore appellant could not be convicted on the basis of his testimony without further corroborating evidence. The State relied principally upon the testimony of two non-accomplice witnesses for that corroboration. Lavetta Williams testified that she purchased a small gun from appellant in February 2008. Though the gun was not available at trial for comparison, Williams testified that it resembled the revolver that was displayed in the surveillance footage of the T & M Grocery robbery.

Crystal Nelson testified that Hall and appellant attended her backyard barbecue on the day of the E-Z Food Mart robbery. Nelson is Hall’s sister, and appellant is a family friend they have known for years. Sometime in the late afternoon, Nelson claimed that Hall and appellant borrowed her car. She did not know where they went, nor could she recall how long they were gone. Nelson testified that she always charged for the loan of her car, and when the two men returned, appellant paid her $65 in five-dollar bills from a large “wad of cash.” She did not know if appellant had any money before he borrowed her car, and she could not confirm whether he was currently employed.

The jury convicted appellant for the robbery of the E-Z Food Mart, but acquitted him of the aggravated robbery of the T & M Grocery. Punishment was assessed at fifteen years’ confinement and a fine of five thousand dollars. In his first of five issues, appellant argues that the evidence does not sufficiently corroborate the testimony of the accomplice witness. We agree.

DISCUSSION

The accomplice-witness rule provides that a “conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.” Tex.Code Crim. Proc. art. 38.14 (Vernon 2005). The rule derives not from federal or state constitutional principles, but rather from the legislative determination that accomplice testimony must be taken with a degree of caution. Nolley v. State, 5 S.W.3d 850, 852-53 (Tex.App.-Houston [14th Dist.] 1999, no pet.). The underlying rationale is that the accomplice is a corrupt source who may well have improper incentives when testifying against the accused — e.g., to redirect blame or to gain favor with the state in exchange for a reduced punishment. Wincott v. State, 59 S.W.3d 691, 698 (Tex.App.Austin 2001, pet. refd). For these reasons, an accomplice witness is a “discredited witness,” and regardless of how completely the accomplice may outline the facts of a case, the jury may not convict the accused without additional corroborating evidence. Walker v. State, 615 S.W.2d 728, 731 (Tex.Crim.App.1981).

When determining the sufficiency of corroborating evidence, we eliminate the testimony of the accomplice and examine whether the remaining evidence tends to connect the accused to the charged offense. Knox v. State, 934 S.W.2d 678, 686 (Tex.Crim.App.1996). Corroboration may rest on direct or circumstantial evidence. Munoz v. State, 853 S.W.2d 558, 559 (Tex.Crim.App.1993). Standing alone, it need not establish the guilt of the accused. Cox v. State, 830 S.W.2d 609, 611 (Tex.Crim.App.1992). Nevertheless, the corroboration must “tend to connect” the accused to the commission of the offense; if it does no more than point the finger of suspicion at him, then we must reverse. Paulus v. State, 633 S.W.2d 827, 844 (Tex.Crim.App.1981).

We conclude that the evidence is insufficient to corroborate appellant’s involvement in the robbery. Crystal Nelson supplied the only non-accomplice evidence in support of appellant’s conviction, and the sum of her testimony is that (1) she witnessed the accomplice and appellant together on the afternoon of the robbery; (2) she loaned them her car; and (3) when they returned after an unspecified length of time, appellant had a “wad” of five-dollar bills, from which he paid her for the use of her car. We recognize that testimony placing appellant in the company of the accomplice near the time of the offense may be considered as corroborating evidence, but evidence of guilt by association will not satisfy article 38.14 by itself. Nolley, 5 S.W.3d at 854-55; see Coston v. State, 162 Tex.Crim. 548, 287 S.W.2d 671, 672 (1956). What remains of Nelson’s testimony is likewise insufficient because it merely creates a suspicion of guilt without tending to connect appellant to the actual robbery.

Nelson gave no indication as to the purpose, destination, or duration of appellant’s trip. Though she remembered lending her car in the late afternoon, she could not specify any window of time that might link appellant’s period of absence to the commission of the robbery. Her only remotely inculpatory testimony was that appellant paid her from a roll of five-dollar bills, but we fail to see how that provides sufficient corroboration. Nelson admitted that she did not know whether appellant had any money when he first arrived at her barbecue. Except for the thirteen five-dollar bills she personally received, Nelson could not quantify how much money remained in appellant’s “wad of cash.” Accordingly, the record does not reflect how much money appellant had overall, or whether it would substantiate the clerk’s claim of two thousand dollars stolen or Hall’s observation of at least four hundred dollars.

The State would have us believe that appellant’s sighting with a “wad of cash” still provides sufficient corroboration because, under Cockrum v. State, possession of a large amount of money after a robbery by one who is unemployed is proper corroborating evidence. 758 S.W.2d 577 (Tex.Crim.App.1988). Even if appellant were actually unemployed — and we note that Nelson’s testimony is less than clear on this point — we would have to disagree, as Cockrum was decided on strikingly different facts.

Cockrum was arrested on charges of murder and aggravated robbery with over one thousand dollars on his person, and the non-accomplice witness testified that she had personal knowledge that Cockrum “was unemployed and had not had any money a few days before.” Id. at 580. By contrast, the evidence against appellant never revealed the quantity of cash in his actual possession (except for a minimum of $65). Nor did it establish that appellant lacked money before Nelson’s barbecue, or, for that matter, whether he possessed it after the robbery’s commission. Accordingly, the evidence does not similarly suggest that appellant’s money was the fruit of an offense. Cf. id. at 582. Moreover, the court found that Cockrum’s cash was only one of several factors that tended to connect him to the charged offenses. For example, the evidence showed that Cock-rum listened intently to a police scanner after the commission of the crime; he buried a gun consistent with the type used in the murder; and finally, he fled to another state, checking into a motel under an assumed name. Id. at 581-82. Given this additional corroborating evidence, the State’s construction of Cockrum is incomplete. Indeed, we cannot accept, under the cited authority, that appellant’s possible unemployment and an indeterminate number of five-dollar bills are sufficient to corroborate his involvement in this robbery.

We emphasize that article 88.14 does not require the non-accomplice witness to specify in certain terms any amount of money that may have been seen in order to corroborate the testimony of a robbery accomplice. See, e.g., Killough v. State, 718 S.W.2d 708, 710 (Tex.Crim.App.1986). Instead, the facts and circumstances must tend to connect the accused to the offense, and the mere possession of a “wad of cash,” without more, will not suffice.

The meager evidence in this case stands in contrast, for example, to the corroborating evidence discussed in Killough. In that case, evidence regarding the defendant’s possession of a “wad of money” after a robbery was supplemented with additional evidence corroborating the accomplice’s testimony “at nearly every point except during the offense itself.” Id. at 711-12. The accomplice testified that he and Killough robbed a bar while a third man waited outside in a getaway truck. Id. at 709. A patron from the bar testified that he followed them in his pickup after the two robbers left. Id. at 710-11. The patron collided with the truck head-on in a cul-de-sac and saw three men flee thereafter. Id. at 711. The truck was eventually linked to a lease application signed by Killough’s wife. Id. at 710. After the accident, Killough told his wife that he was involved in a head-on collision. Id. at 711. He sustained injuries compatible with such an accident, and sought treatment for those injuries under a false name. Id. at 711-12. A day after the robbery, Killough was also seen displaying “ ‘a wad of money out of his pocket,’ but [the non-accomplice witness] didn’t know how much money it was.” Id. at 710. The court determined that it was a “rational inference that even if appellant was not one of the robbers inside the Z-Bar he was the third man waiting in the truck outside.” Id. at 712. The record before us lacks comparable corroborating evidence.

The State still offers two other grounds of corroboration, but each is unpersuasive. The State first contends that the surveillance footage sufficiently corroborates Hall’s testimony because the jury was able to compare the appellant’s physique to the figure in the video. As mentioned before, the video depicts a masked offender, fully concealed under black clothing. Except for the black skin on his neck, the video does not reveal any distinguishing marks or characteristics of the offender. Under the circumstances, a general silhouette in a video is insufficient to connect appellant to the robbery. See Fernandez v. State, 989 S.W.2d 781, 786 (Tex.App.-San Antonio 1998, pet. refd) (corroboration insufficient where vague description of body type could match “hundreds or thousands of other men in the area”).

The State finally contends that La-vetta Williams corroborated the accomplice witness through her testimony that she purchased a gun from appellant that resembled the same revolver used in the robbery of the T & M Grocery. But appellant stands convicted for robbing the E-Z Food Mart, not the T & M Grocery. The State insists, nonetheless, that an acquittal does not bar consideration of such corroborating evidence because article 38.14 requires a lower burden of proof than a finding of guilt. Cf. Moreno v. State, 22 S.W.3d 482, 488 (Tex.Crim.App.1999) (recognizing that because probation is revoked on just a preponderance of the evidence, a court could consider evidence of another crime for which the jury did not find the defendant guilty beyond a reasonable doubt).- The problem, however, is not the quantum of proof, but the direction of the evidence. Williams’s testimony may properly corroborate appellant’s involvement in the robbery of the T & M Grocery, but in no way does it “tend to connect” him to the conviction under appeal. The record shows that no weapon was used during the robbery of the E-Z Food Mart, and the State did not elicit any further testimony from Williams regarding that robbery. Accordingly, we do not factor her statements into our analysis.

The law is well-established that the “mere presence of the accused in company with the accomplice witness shortly before or after the time of the offense is not, in itself, sufficient corroboration.” Harris v. State, 738 S.W.2d 207, 218 (Tex.Crim.App.1986). However, with the testimony from Hall excluded, that is the extent of the record before us. Although appellant had a large number of five-dollar bills, there was no evidence as to whether he had the money before the robbery, after the robbery, or both. No physical evidence was collected, nor was Nelson’s car ever spotted near the scene of the crime. Even if appellant were also unemployed, the evidence, at most, raises a suspicion of guilt, and even “a strong suspicion or probability of appellant’s guilt” is insufficient where the corroborating evidence does not tend to connect the appellant to the charged offense. Umsted v. State, 435 S.W.2d 156, 158 (Tex.Crim.App.1968); e.g, Wincott, 59 S.W.3d at 699-703 (worried behavior of appellant after arrest of accomplice and written correspondence referencing “the crimes” insufficient to corroborate appellant’s involvement in series of armed robberies). Because we conclude that the evidence does not satisfy article 38.14, we must reverse the conviction and render judgment of acquittal.

      . The prosecutor mistakenly referred to this footage as Exhibit No. 8, which is instead the surveillance video for the E-Z Food Mart robbery. In its brief, the State concedes that Williams was actually viewing Exhibit No. 5, which is the video from the T & M Grocery.

      . The record is unclear as to whether Nelson knew appellant to be unemployed or whether she lacked personal knowledge of his employment:
      Prosecutor: And had you known him to be employed during that time period when—
      Counsel: Objection. Witness has no personal knowledge as to the Defendant's state of employment.
      The Court: Well, I don't know if she does or she doesn’t. She may answer if she has personal knowledge.
      Nelson: Not to my knowledge.
      The Court: There you go.
      Prosecutor: Not to your knowledge that he was employed or not?
      Nelson: Right.
      Prosecutor: Okay. So, in other words, as far as you knew, he didn’t have a job?
      Counsel: Objection. That's leading.
      The Court: Sustained.

      . The time of the offense was never elicited through witness testimony. The timestamp on the surveillance footage, if accurate, would show that the robbery of the E-Z Food Mart was committed just after 6:30 p.m.