author:
PRICE, J., COCHRAN, J., KELLER, P.J.,
      KEASLER, J.,

text:
    Sheldon Keith CRAIN, Appellant, v. The STATE of Texas.
    Nos. PD-1262-09.
    Court of Criminal Appeals of Texas.
    June 30, 2010.

      Arnold L. Miller, Amarillo, for appellant.
    John L. Owen Asst. D.A., Amarillo, Jeffrey L. Van Horn, State’s Attorney, Austin, for State.
   OPINION

PRICE, J.,

delivered the opinion of the

Court

in which MEYERS, WOMACK, JOHNSON, HOLCOMB, and COCHRAN, JJ., joined.

In this case, there was substantial disagreement among the Justices of the Seventh Court of Appeals with regard to whether the interaction that took place between the appellant and a police officer was an encounter or a detention for Fourth Amendment purposes. We granted the appellant’s petition for discretionary review in order to resolve this important question. We will reverse.

Background

The appellant was indicted for unlawful possession of a firearm by a felon. The weapon was found on his person when two officers patted him down, suspecting possession of marihuana. The appellant filed a pre-trial motion to suppress the evidence and, at the conclusion of the suppression hearing, the judge overruled the appellant’s motion. Following a plea of guilty, the appellant was convicted of unlawful possession of a firearm by a felon. The appellant pled true to an enhancement paragraph and was sentenced to six years’ confinement and a $1,000 fine. The appellant preserved his right to appeal any adverse rulings resulting from his pre-trial motions.

In the Trial Court

The evidence presented at the suppression hearing showed the following. On July 23, 2006, at approximately 12:30 a.m., Officer Dewayne Griffin of the Amarillo Police Department, while on his way to respond to a theft call, observed the appellant walking in a residential area. Because the appellant “grabbled] at his waist” as Griffin drove by him in his marked patrol car, Griffin decided he would return after responding to the theft call to ask the appellant some questions. While at the theft-call scene, Griffin told back-up officer Cody Moore that he wanted to return to where he had observed a suspicious man — the appellant — walking.

After responding to the theft call, Griffin drove back to where he had seen the appellant approximately ten minutes earlier and found him walking across a yard. Griffin called out to the appellant through his rolled-down window “and asked him to come over and talk to me,” and shined his patrol car’s spotlight on the appellant. On cross-examination, Griffin reiterated that he had “asked” the appellant, even though he had indicated in his report that he “told him to come.” Asked, “How did you ask him?”, Griffin demonstrated: “Come over here and talk to me.” Griffin readily acknowledged that “[t]hat sounds like an order[.]” Griffin testified that, had the appellant refused to talk to him, he would have let the appellant go, as he had not observed the appellant do anything that could be construed as criminal activity. The appellant took a couple more steps forward and stopped. Griffin then exited his vehicle and walked up to the appellant and, as he did, the appellant asked what he was doing wrong. Griffin replied that he wanted to talk to him.

However, as soon as Griffin began to talk to the appellant at approximately an arm-and-a-halfs length away, Griffin smelled what he thought was the odor of recently smoked marihuana coming from the appellant’s clothes and breath. At the hearing, Griffin maintained that he detained the appellant when he began to suspect that the appellant, who showed signs of nervousness, was in possession of marihuana. As Griffin and the appellant walked toward the patrol car, without placing the appellant under arrest, Griffin held the appellant’s hands behind his back. It was then that back-up officer Moore arrived in another patrol car.

Both officers patted the appellant down. Noticing a bulge under the appellant’s shirt, Moore pushed on it and realized it was a pistol. Moore told Griffin that it was a gun and disarmed the appellant. The officers arrested the appellant, and a search incident to arrest revealed no additional contraband. Griffin transported the appellant to the county jail. Griffin testified that, at no time during their interaction did the appellant resist or threaten the officers in any manner that might have required them to threaten him with or make use of a taser or mace. Further, Griffin testified, he never had to tell the appellant to stop or not to run.

Ms. JoAnn Marez was an acquaintance of the appellant, and it was her yard in which Griffin found the appellant. Marez, who had been expecting the appellant that evening, testified that she saw flashing lights through her living room window and walked to the front of the house to see what was happening outside. She briefly moved the sheer curtain and observed the appellant and an officer in her front yard. Marez maintained (contrary to Griffin’s testimony) that, while listening to what was happening outside her house, she heard “stop and don’t you run” and then “something about, a thousand volts or something.” She then decided to sit on the couch by the door and listen, rather than continue to watch. Marez added that it was clear to her that the appellant “knew he had to stop right then. He knew don’t go nowheref,]” and that what she heard was “definitely an order ... a command.”

At the conclusion of the evidence, the trial court found that Griffin had made no display of authority until after he smelled marihuana on the appellant, and therefore, the initial interaction was a mere encounter that did not implicate the Fourth Amendment. The use of the spotlight during the initial interaction, the court held, was “a matter of practical necessity due to the time of night.” The trial court also concluded that Griffin’s testimony was credible and resolved the conflict between what Marez testified she had heard and what Griffin stated he told the appellant, in Griffin’s favor — i. e., the trial court found that Griffin neither threatened the appellant with a taser nor told him to stop and not run.

On Appeal

The appellant appealed that decision to the Seventh Court of Appeals; a majority of that court affirmed, holding that Griffin’s conduct would not have communicated to a reasonable person that the appellant was not free to decline Griffin’s request and terminate the encounter. The court of appeals thus concluded that the subsequent seizure of the handgun, once the encounter progressed into an investigative detention' — prompted by the officer smelling marihuana on the appellant — was lawful. Chief Justice Quinn dissented. In his dissent, Chief Justice Quinn explained that a reasonable person in the appellant’s shoes would have regarded Griffin’s words to the appellant as a command rather than a request to speak. Further, explained Justice Quinn, the spotlight was the equivalent of a patrol car’s emergency lights. He noted that, combined, the two actions amounted to an announcement of authority carrying an implicit command. Justice Quinn thus concluded that, under the circumstances, the stop was a detention rather than a mere encounter. And because there was no reasonable suspicion at the time of the initial interaction between the officer and the appellant, the stop was illegal, and the evidence obtained as a consequence of it should have been suppressed.

We granted the appellant’s petition for discretionary review to decide whether Officer Griffin detained the appellant. We hold that the meeting amounted to a detention and reverse the judgment of the court of appeals.

LAW AND ANALYSIS

Standard of Review on Motion to Suppress

A trial court’s ruling on a motion to suppress is reviewed on appeal for abuse of discretion. The trial court is given almost complete deference in its determination of historical facts, especially if those are based on an assessment of credibility and demeanor. The same deference is afforded the trial court with respect to its rulings on application of the law to questions of fact and to mixed questions of law and fact, if resolution of those questions depends on an evaluation of credibility and demeanor. However, for mixed questions of law and fact that do not fall within that category, a reviewing court may conduct a de novo review.

When the trial court does not make express findings of fact, an appellate court must view the evidence in the light most favorable to the trial court’s ruling, assuming that it made any implicit findings of fact that are supported by the record. An appellate court will sustain the trial court’s decision if it concludes that the decision is correct on any theory of law applicable to the case. The trial judge is the exclusive fact-finder at the suppression hearing. We review de novo whether the totality of circumstances is sufficient to support an officer’s reasonable suspicion of criminal activity.

Detention or Encounter?

There are three distinct categories of interactions between police officers and citizens: (1) encounters, (2) investigative detentions, and (3) arrests. In determining which category an interaction falls into, courts look at the totality of the circumstances. An encounter is a consensual interaction which the citizen is free to terminate at any time. Unlike an investigative detention and an arrest, an encounter is not considered a seizure that would trigger Fourth Amendment protection. An encounter takes place when an officer approaches a citizen in a public place to ask questions, and the citizen is willing to listen and voluntarily answers.

On the other hand, an investigative detention occurs when a person yields to the police officer’s show of authority under a reasonable belief that he is not free to leave. When the court is conducting its determination of whether the interaction constituted an encounter or a detention, the court focuses on whether the officer conveyed a message that compliance with the officer’s request was required. The question is whether a reasonable person in the citizen’s position would have felt free to decline the officer’s requests or otherwise terminate the encounter. In determining what factors may contribute to what a reasonable person might have perceived during a given interaction with an officer, the United States Supreme Court opinion in Menden-hall is instructive.

Examples of circumstances that might indicate a seizure ... would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.

The State contends that the facts of this case are analogous to those in Stewart v. State, in which we held that there was no “seizure” and, therefore, no Fourth Amendment implications. In Stewart, an officer shined his light into a parked van and walked toward the van upon seeing four people sitting inside it. As the officer approached, the driver got out of the van and when he did, the officer smelled burned marihuana. The driver consented to a search of the van and marihuana was found inside. This Court held that “there was no intrusion on Stewart’s expectation of privacy” because Stewart exited the van without being ordered to do so, and the officer had not exercised his authority until after he smelled the marihuana. We do not see how Stewart is factually similar to this case.

The State asserts that a reasonable person in the appellant’s position would have felt free to leave because Griffin’s actions did not amount to anything other than mere questioning, the interaction was only an encounter, not requiring reasonable suspicion of criminal activity. The State insists that merely shining the “patrol car spotlight on [the] appellant did not amount to a police show of authority transforming contact into a ■ detention.” Looking at the totality of the circumstances, we disagree.

The appellant argues that the facts of this case are akin to those in Hudson v. State. Hudson held that a pedestrian is entitled to Fourth Amendment protection as he walks down the street. There, a police officer activated the patrol ear’s emergency lights while in close proximity to the defendant and called out to the defendant. A search of the defendant yielded drugs. The court of appeals held that the defendant had yielded to the officer’s show of authority — rather than stopping on his own accord — and the interaction was thus a detention rather than an encounter. Finding no reasonable suspicion of criminal activity, the court of appeals held that the detention was illegal.

In State v. García-Cantú, this Court distinguished the use of a patrol car spotlight from use of its emergency lights. In considering numerous cases throughout the nation, we noted that, while emergency lights are often involved in detention scenarios, spotlight use is often classified as necessary during police-citizen encounters and its use will not necessarily convert an encounter into an investigatory detention. Despite this observation, we said in Gar-cíar-Cantú, “[e]ach citizen-police encounter must be factually evaluated on its own terms; there are no per se rules.” Citing Michigan v. Chestemut, we continued, “The test is necessarily imprecise, because it is designed to assess the coercive effect of police conduct, taken as a whole, rather than to focus on particular details of that conduct in isolation.” We then noted that, in determining whether a reasonable person would have felt free to leave, we look at the officer’s conduct as well as the setting in which the police-citizen interaction takes place. We also explained that, although using the spotlight alone is not enough to lead a reasonable person to think he is not free to go, use of the spotlight is a factor to be considered in the totality-of-the-circumstances assessment and, “combined with other circumstances, may well establish a Fourth Amendment detention.”

Griffin testified that, when he returned to the area where he had first seen the appellant and found him walking across someone’s yard, he activated his headlights and, through his rolled-down window, called out to the appellant, “Come over here and talk to me.” The appellant took a few more steps, stopped, and turned. It was then that Griffin exited his patrol car and approached the appellant to talk to him. As Griffin approached the appellant, the appellant asked if he was doing something wrong, and Griffin replied that he just wanted to talk to him.

As stated in Justice Quinn’s dissent, “[massing from the phrase ‘come over here and talk to me’ are words of contingency or option. That is, they are not a mere solicitation of cooperation. Nor do they extend any choice, explicit or implicit. Rather they are mandatory[.]” Justice Quinn then provided the analogy of a parent using the same phrase with a child; such a parent would hardly expect the child to believe that he is free to ignore his parent’s command. Here, however, Chief Justice Quinn emphasized that

we do not have a mere parent ... but rather a police officer in his marked car shining his spotlight ... in the middle of the night. Together, those indicia fall short of suggesting that a reasonable person under the same circumstances would find it permissible to ignore the officer and leave.

Justice Quinn further explained that he could see no difference between the facts of this case and an officer’s act of turning on his emergency lights when trying to get a driver to pull his car over. “Both serve to announce the officer’s presence and carry with them an implicit command.” And as explained by the Amarillo Court of Appeals in Hudson v. State, when a person pulls over “in response to a patrol car’s emergency lights rather than of his own accord, an investigatory detention has occurred ... [,]” and the officer must have reasonable suspicion if the stop is to be legal under the Fourth Amendment.

We agree with Justice Quinn and conclude that Griffin’s act of shining his patrol car’s overhead lights in the appellant’s direction, coupled with his request-that-sounded-like-an-order, to “come over here and talk to me,” caused the appellant to yield to Griffin’s show of authority — a reasonable person in the appellant’s shoes would not have felt free to leave or decline the officer’s requests. We thus hold that a detention occurred during the initial interaction between the appellant and Griffin. Therefore, in order for that initial interaction to have been legal, Griffin needed to have reasonable suspicion that the appellant was engaged in criminal activity at the time of his approach.

Reasonable Suspicion

The Fourth Amendment to the United States Constitution protect citizens from unreasonable searches and seizures at the hands of government officials. For government officials to be able to conduct investigative detentions, they must have reasonable suspicion founded on specific, articulable facts which, when combined with rational inferences from those facts, would lead the officer to conclude that a particular person actually is, has been, or soon will be engaged in criminal activity. Articulable facts must amount to “more than a mere inarticulate hunch, suspicion, or good faith suspicion that a crime was in progress.” In deciding whether reasonable suspicion existed, we look at the facts available to the officer at the time of the detention.

Griffin testified that he became suspicious of the appellant because the appellant was walking late at night in a residential area in which burglaries occurred mostly after midnight and, when the appellant saw the squad car driving past him, the appellant “grabb[ed] at his waist.” This combination of circumstances motivated Griffin to return to the area after he responded to a theft call. At the time Griffin returned to talk to the appellant, he had neither any intention nor reason to arrest the appellant. No evidence was produced demonstrating that Griffin believed the appellant was engaged in criminal activity at the time he pointed the patrol car’s overhead lights in the appellant’s direction and demanded that he “come over here and talk to me.”

During cross-examination, Griffin agreed that there were “[a] hundred different things [the appellant] could have been doing ...” at the time he reached for his waistband and that the fact that the appellant had reached for his waistband did not necessarily mean that criminal activity was afoot. Further, testified Griffin during cross, there were no burglaries reported for that residential area on the evening of the appellant’s arrest. Griffin also stated that, at the time he began walking toward the appellant he did not know whether the appellant was a resident of the house to which the yard belonged.

Neither time of day nor level of criminal activity in an area are suspicious in and of themselves; the two are merely factors to be considered in making a determination of reasonable suspicion. Neither fact proves that the suspect is engaged in any sort of criminal offense. In order for these facts to affect the assessment of the suspect’s actions, the surroundings must raise a suspicion that the particular person is engaged in illegal behavior. Griffin did not offer any testimony that might have raised his suspicion that the appellant was engaged in criminal activity before he approached the appellant and smelled marihuana on him. We find no other indicia of reasonable suspicion on the record before us.

Under the totality of the circumstances, we hold that the circumstances apparent to Griffin at the time he shined his light on the appellant and ordered the appellant to come over to the officer and talk to him, — - did not provide him with reasonable suspicion to stop the appellant. The appellant was thus illegally detained in violation of his constitutional rights and the subsequent search that led Officer Moore to find a weapon on the appellant’s person was the fruit of an unreasonable seizure. Therefore, the evidence obtained as a result of that search should have been suppressed.

Conclusion

Viewing the totality of the circumstances in the light most favorable to the trial court’s ruling, we hold that the trial court erred in concluding that a reasonable person in the appellant’s position would have felt free to leave or terminate the interaction with Griffin. We hold that Officer Griffin detained the appellant without reasonable suspicion and the trial court therefore abused its discretion in denying the appellant’s motion to suppress. We reverse the judgment of the court of appeals and remand the cause to that court for a harm analysis.

COCHRAN, J., filed a concurring opinion in which HOLCOMB, J., joined.

KELLER, P.J., fíled a dissenting opinion in which KEASLER and HERVEY, JJ., joined.

KEASLER, J., filed a dissenting opinion in which KELLER, P.J., and HERVEY, J., joined.

COCHRAN, J.,

filed a concurring opinion in which HOLCOMB, J., joined.

Officer Griffin testified that the exact words he used in calling to appellant were, “Come over here and talk to me.” That is a command. It is an imperative sentence. Even a five-year-old child knows the difference between a command (“Eat your spinach.”) and a request (“Would you like to eat your spinach?”). The mother may smile as she issues her command, she may cajole and use a sugary tone of voice, but the recalcitrant child who declines the parental order knows that there may be consequences for disobedience.

In this case, Officer Griffin testified that he intended to “ask” appellant to come over and talk to him, but what the officer intended is not relevant. What he said is what matters. Courts must view the words from the perspective of their effect upon the reasonable listener, not from the perspective of the officer’s intent. Under the Fourth Amendment, there is a world of difference between an officer’s request and his order. A request signifies a consensual encounter beyond the purview of the Fourth Amendment; a command, if heeded, usually denotes a Fourth Amendment detention. A request is a question that asks for an answer; an order is a command which requires obedience. Officer Griffin gave a command; his order required obedience.

With these comments, I join the majority opinion.

KELLER, P.J.,

filed a dissenting opinion in which KEASLER, and HERVEY, JJ., joined.

In concluding that a reasonable person would not have felt free to decline Officer Griffin’s request to “Come here and talk to me,” the Court overlooks the obvious: appellant did decline the request. He evidently did not think it was a command that had to be obeyed, because he did not obey it. Appellant looked back at Officer Griffin, took a few more steps, and then stopped, but he did not obey what the Court refers to as a “request,” and the concurring opinion calls a “command.”

Furthermore, the Court says that Officer Griffin’s statement to appellant was a “request” that sounded like an order. I am at a loss to understand why this Court thinks that it knows better than the trial court what the request sounded like. The concurring opinion analogizes Officer Griffin’s statement to a mother using a “sugary tone of voice” while nevertheless letting her child know that there will be consequences for disobedience. But we don’t know what Officer Griffin’s tone of voice was. We defer to the trial court because, unlike us, that court actually heard the officer’s tone of voice as he repeated his statement at trial.

And it is not just the tone of voice about which we owe deference to the trial court. The trial court was entitled to put the specific words said (in whatever tone) in context with the rest of the officer’s testimony. Here is what Officer Griffin actually said when he saw appellant walking across someone’s yard after midnight:

“I ... I spotlighted him, saw him — get a good look at him, and I asked him to come over and talk to me.”

“Well, I called him from my patrol— while I was sitting in the patrol car and asked him to come over and talk to me.”

“I — I believe I told him, hey, come over here and talk to me.”

“Well I just wanted to interview him and I wanted to see, you know what — due to the burglaries in the area, I wanted to see what he was — if he lived in the area or— and where he was going, you know, just to, you know get a feel of what — what this individual is doing here after midnight.”

“We were just going to talk to him, see what he was doing and where he was headed, where he was coming from.”

On cross-examination, when asked directly whether he “told him to get over here” or “asked” him, Officer Griffin said, Well, I asked him.” He testified that he asked him by saying, “Come over here and talk to me.” I believe the Court errs in confining its analysis to the most restrictive view of the words used rather than considering the entirety of the testimony. “Hey, come over here and talk to me” may or may not sound like a command. It was up to the trial court to decide whether those words, said in the tone of voice the court listened to, and in the context of all the evidence, were a command or a request.

Moreover, the fact that appellant did not comply with the officer’s request is relevant to the legal issue before us. In Estrada v. State, Estrada argued that his own subjective belief that he was free to leave was irrelevant because the legal test for custody is an objective one. We disagreed, saying that it is relevant to the legal test for custody that a defendant “subjectively believes that he is free to leave while the police are questioning him.” In determining whether the officer “commanded” appellant to “come over,” the trial court was entitled to conclude that appellant did not consider it a command, since he did not obey it.

Also, even if the police officer’s request were construed to be a command to “come over,” no seizure would have occurred until appellant complied. The trial court could have concluded that, before appellant had complied with any show of authority, the officer had smelled marijuana, giving the officer a reasonable basis for detention.

I am not entirely sure that the specific issue before us was preserved. The motion to suppress referred to various constitutional provisions without any attempt to apply them specifically to the facts. At the hearing, the argument was not about whether there was an encounter or a detention, but about whether Officer Griffin had a right to detain appellant when the officer first saw him. Defense counsel cited cases that hold, essentially, that facts such as it being late at night and in a high-crime area are not sufficient to justify detaining an individual. The State pointed out that, unlike in those types of cases, once Officer Griffin approached appellant and smelled marijuana, he did have a right to detain him. In other words, the arguments to the trial court concerned only whether the actual undisputed detention (after marijuana was smelled) was justified; they did not concern the nature of the initial meeting.

In closing, the assistant district attorney argued that the officer had a right to approach the individual in a public place to ascertain information to protect the public. He said, “[T]o hold otherwise — I mean, my God, that — what do we have them in the streets for?” I have to agree.

I respectfully dissent.

KEASLER, J.,

filed a dissenting opinion in which KELLER, P.J., and HERVEY, J., joined.

The interaction under scrutiny in this case is properly classified as a consensual encounter, requiring no reasonable suspicion or probable cause. Words carry various shades of meaning when the tone and inflection of the speaker is considered. Examining only a cold record, the majority wrongfully discounts the credibility findings made by the trial judge, who witnessed testimony provided by Officer Dewayne Griffin firsthand.

Officer Griffin testified that he observed Crain walking alone across a yard in a residential neighborhood half past midnight. In his marked patrol car, Officer Griffin pulled up and shined a spotlight on Crain to get at look at Crain and the surrounding area. Officer Griffin then “told” or “asked” Crain to “come over here and talk to me.” On cross-examination, Officer Griffin stated that his statement may have sounded like an “order.” Crain turned toward Officer Griffin, took a few more steps, and stopped. Officer Griffin got out of his patrol car and approached Crain. Crain asked Officer Griffin what he was doing wrong, and Officer Griffin said that he just wanted to talk to him.

During this exchange, Officer Griffin smelled a strong odor of marijuana emanating from Crain’s mouth and clothing.

The trial judge found Officer Griffin’s testimony to be credible and denied Crain’s motion to suppress.

As the majority observes, and then improperly disregards, appellate courts are required to defer to a trial judge’s resolution of mixed fact and law issues when that determination is based on an evaluation of credibility and demeanor. The credibility determinations made by the trial judge about Officer Griffin’s testimony are entitled to almost total deference. Of utmost importance here is that the trial judge heard and witnessed Officer Griffin’s characterization of the statement he made to Crain. We should therefore presume, as the trial judge undoubtedly found and the record supports, that Officer Griffin’s statement was a request, not an order or directive with a display of authority that would lead a reasonable person to conclude that a seizure has occurred. Affording nearly total deference to the factfinding, when the totality of the circumstances— including Officer Griffin’s use of the spotlight and his request to Crain — are viewed objectively, Crain was free to ignore Officer Griffin and continue walking.

Finally, the majority posits a hypothetical situation in which an officer draws a gun, points it at an individual, and requests that the individual talk for a minute. This situation is in no way analogous to the facts here and is therefore irrelevant. The totality of the circumstances of this case and the trial judge’s credibility determination are dispositive though: An officer’s request to talk an individual coupled with the use of a spotlight to identify the individual and surrounding area at night by the officer does not rise to the level of a detention within the meaning of the Fourth Amendment.

I would affirm the court of appeals’s judgment.

      . Crain v. State, — S.W.3d — (Tex.App.Amarillo 2009).

      . See Tex.R.App. P. 66.3 (instructing this Court to consider — in deciding whether to grant discretionary review — among others, whether: (b) there is an important question of constitutional law that should be settled by the Court of Criminal Appeals and (e) the justices of the court of appeals disagreed on a material question of law necessary to the outcome of the case). We grant review based on both considerations.

      . See Texas Penal Code § 46.11.

      . Crain, — S.W.3d at —.

      . Because the trial court is the exclusive fact-finder at a suppression hearing, we defer to the trial court's express determination that Officer Griffin’s testimony was very credible and, therefore, disregard Marez’s statements that conflict with Griffin's. See n.7, infra. From this, it can be inferred that Griffin neither told the appellant not to run, nor did he threaten the appellant with a taser.

      . Crain, — S.W.3d at —.

      . State v. Dixon, 206 S.W.3d 587, 590 (Tex.Crim.App.2006).

      . St. George v. State, 237 S.W.3d 720, 725 (Tex.Crim.App.2007); State v. Ross, 32 S.W.3d 853, 856 (Tex.Crim.App.2000); State v. García-Cantú, 253 S.W.3d 236, 241 (Tex.Crim.App.2008).

      . Montanez v. State, 195 S.W.3d 101, 108-09 (Tex.Crim.App.2006).

      . Amador v. State, 221 S.W.3d 666, 673 (Tex.Crim.App.2007).

      . Ross, 32 S.W.3d at 855-56.

      . Id.

      . Id. at 855.

      . Madden v. State, 242 S.W.3d 504, 517 (Tex.Crim.App.2007).

      . State v. Perez, 85 S.W.3d 817, 819 (Tex.Crim.App.2002).

      . Koteras v. State, No.14-09-00286-CR, 2010 WL 1790808, at ⅜3 (Tex.App.-Houston [14th Dist.] May 6, 2010, no pet.); Gurrola v. State, 877 S.W.2d 300, 302-03 (Tex.Crim.App.1994).

      . Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); Perez, 85 S.W.3d at 819.

      . Perez, 85 S.W.3d at 819.

      . Perez, 85 S.W.3d at 819; Corbin v. State, 85 S.W.3d 272, 276 (Tex.Crim.App.2002) (citing Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991)) (so long as the citizen feels that he is free to disregard the officer and go about his business, an officer may approach and ask questions without implicating the Fourth Amendment); Muehler v. Mena, 544 U.S. 93, 125 S.Ct. 1465, 161 L.Ed.2d 299 (2005) (citing Bostick, 501 U.S. at 434, 111 S.Ct. 2382) (mere police questioning does not amount to a Fourth Amendment seizure); U.S. v. Drayton, 536 U.S. 194, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002) (even when police officer lacks suspicion of criminal activity he may, among other things, pose questions to a suspect so long as he does not induce the suspect’s cooperation by coercive means).

      . Johnson v. State, 912 S.W.2d 227, 235 (Tex.Crim.App.1995).

      . Hudson v. State, 205 S.W.3d 600, 604 (Tex.App.Waco 2006).

      . Hudson, 205 S.W.3d at 604; See Kaupp v. Texas, 538 U.S. 626, 629, 123 S.Ct. 1843, 155 L.Ed.2d 814 (2003) (a Fourth Amendment seizure occurs when, taking into account all circumstances surrounding the police-citizen interaction, “police conduct would have communicated to a reasonable person that he was not at liberty to ignore the [officer] and go about his business[J”) (citing Michigan v. Chesternut, 486 U.S. 567, 569, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988)); State v. Garcia-Cantú, 253 S.W.3d 236, 242 (Tex.Crim.App. 2008) (same).

      . U.S. v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) (emphasis added).

      . Stewart v. State, 603 S.W.2d 861 (Tex.Crim.App.1980).

      . Id. at 862.

      . Hudson v. State, 247 S.W.3d 780 (Tex.App.Amarillo 2008, no pet.).

      . Id. at 785.

      . Hudson, 247 S.W.3d at 785.

      . García-Cantú, 253 S.W.3d at 245; see Franks v. State, 241 S.W.3d 135, 142 (Tex.App.Austin 2007, pet. ref'd.) (activating a police officer's overhead lights in a dark, unoccupied area does not necessarily amount to a detention).

      . García-Cantú, 253 S.W.3d at 243.

      . García-Cantú, 253 S.W.3d at 244 (citing Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988)).

      . E.g., United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) (one factor to consider in determining if the interaction was a detention is “the use of the language or tone of voice indicating that compliance with the officer’s request might be compelled”); Orhorhaghe v. INS, 38 F.3d 488, 495-96 (9th Cir.1994) (finding a Fourth Amendment seizure had occurred when the tenor of the instructions the agent gave the citizen was not that used among citizens in everyday interaction, but instead was “authoritative and appeared to give [defendant] no option to refuse to comply.”).

      . García-Cantú, 253 S.W.3d at 244 (citing Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988)).

      . García-Cantú, 253 S.W.3d at 245 (emphasis added); see e.g., State v. Jestice, 177 Vt. 513, 861 A.2d 1060, 1062-63 (2004) (finding a detention implicating the Fourth Amendment where a uniformed officer parked his marked patrol car late at night in a dark lot with no one else around, left the cruiser's headlights shining in the detained couple's faces as he approached them, and asked them what they were doing).

      . Crain v. State, -S.W.3d at-(Quinn, C.J., dissenting).

      . Id.

      . Id.

        . Hudson v. State, 247 S.W.3d 780, 785 (Tex. App.-Amarillo 2008, no pet.).

      . In his dissent, Judge Keasler argues that the trial court was entitled to regard Griffin’s initial words to the appellant as nothing more than a request. But Griffin conceded that, though it was a request, it "sounded like an order[.]” Assuming the trial court did conclude that the statement was a request, that circumstance is not alone dispositive. A hypothetical police officer could approach a suspect with his gun drawn and pointed and ask, "Can we talk for a minute?” The fact that the officer asked would not, under the circumstances, render the contact a mere encounter rather than a detention. When looking to the totality of circumstances, as the Fourth Amendment requires us to do, we conclude that a reasonable person in the appellant's position would not have felt free to disregard the Griffin's request.
      For her part, Presiding Judge Keller argues that the appellant did not submit to a show of authority for Fourth Amendment purposes because he did not do precisely as Griffin requested/ordered him to do. She cites California v. Hodari D., 499 U.S. 621, 626, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). But Hodari D. does not support the proposition that, before it can be said that a suspect has been detained for Fourth Amendment purposes, he must submit to authority in precisely the way he is ordered to. In Hodari D., though he was ordered to halt, the defendant did not stop, and the question was whether a seizure occurred "even though the subject does not yield.” Id. Here, by contrast, it is clear enough that the appellant would not have stopped and turned around but for Griffin’s request/order to "Come over here and talk to me.” We think this constitutes sufficient yielding to authority to implicate the Fourth Amendment.

      . Wiede v. State, 214 S.W.3d 17, 24 (Tex.Crim.App.2007).

      . Castro v. State, 227 S.W.3d 737, 741 (Tex.Crim.App.2007); Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

      . Williams v. State, 621 S.W.2d 609, 612 (Tex.Crim.App.1981).

      . Davis v. State, 947 S.W.2d 240, 243 (Tex.Crim.App.1997).

      . Scott v. State, 549 S.W.2d 170, 172-73 (Tex.Crim.App.1976); Klare v. State, 76 S.W.3d 68, 73-74 (Tex.App.Houston [14th Dist.] 2002, pet. ref'd.).

      . Klare, 76 S.W.3d at 73-75.

      . Id. at 75.

      . See Tex.R.App. P. 44.2(a).

      . English sentences are categorized as (1) declarative (“I am a police officer.") which are statements of fact; (2) interrogatory ("Will you talk to me?") which are questions or requests; (3) exclamatory ("What a big gun you have!”) which express strong feelings; and (4) imperative ("Come here.") which command the listener to do something. See http://www.ucl.ac.uk/intemet-grammar/clauses/ imp.htm. (last visited June 10, 2010) ("Imperative sentences are used in issuing orders or directives.”). In grammar, the use of the imperative "expresses a command, strong request, or exhortation.” Webster’s New Twentieth Century Dictionary Unabridged 912 (2d ed. 1983).

      . United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) ("a person has been seized within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed he was not free to leave."); see generally 4 Wayne R. LaFave, Search & Seizure § 9.4(a), at 413-14 (4th ed. 2004) ("In exploring the meaning of the Mendenhall-Royer standard, certainly the first matter deserving attention is the emphatic statement that the uncommunicated intention of the officer is not determinative.").

        .See U.S. v. Thompson, 106 F.3d 794, 798 (7th Cir. 1997) ("The law is well established that if the officer asks rather than commands, the person accosted is not seized”) (internal quotations omitted); U.S. v. Steele, 782 F.Supp. 1301, 1309 (S.D.Ind.1992), aff'd, 989 F.2d 502 (7th Cir. 1993) ("A police officer's verbal command — if heeded — is often sufficient to seize a person.”). Compare Commonwealth v. Lopez, 451 Mass. 608, 887 N.E.2d 1065, 1066-67 (2008) (patrol car officers followed defendant, who was riding his bicycle; one officer asked "Can I speak with you," another officer got out of her cruiser and approached defendant, who agreed to stop and talk; officers’ actions did not amount to a Fourth Amendment seizure; officer did not issue a command, he asked a question), with Strange v. Commonwealth, 269 S.W.3d 847, 851 (Ky.2008) (when defendant "was directed to move over to the police cruiser,” his "passive compliance” could not "convert that order into a request.”), and People v. Martinez, 200 P.3d 1053, 1058-59 (Colo.2009) (officer had homeowner’s consent to enter, but when he "directed [defendant] to come out of the bathroom and then directed him into a separate room,” this was a detention). In Strange, the Kentucky Supreme Court explained,
      A reasonable person, in a high crime neighborhood late in the evening, would not and should not reasonably feel free to resist a police officer's order to move. Citizens are encouraged to comply with reasonable police directives, and the police should be permitted to expect reasonable compliance with reasonable demands. Appellant was directed to move over to the police cruiser, and he apparently did so promptly and peacefully. His passive compliance with the policeman’s order cannot convert that order into a request which Appellant, or any citizen, should feel free to resist.

        Id. at 851.

      . As explained by the Massachusetts Supreme Court in Lopez,

      We must consider, then, whether this question was an order. The defendant argues that an order may take the form of a question. A question, however, is typically not an order. A question is an inquiry; an order is a command. A question requests an answer, while an order demands obedience. To recognize that questions and orders are different creatures is not, of course, to ignore the fact that circumstances of an encounter with police may be sufficiently intimidating that a reasonable person would feel compelled to respond to a police officer's question as he believes the officer would wish him to.
      887 N.E.2d at 1067.

      . Estrada v. State, 313 S.W.3d 274, 295 n. 21 (Tex.Crim.App.2010).

      . California v. Hodari D., 499 U.S. 621, 626, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991) (where physical force is absent, a seizure occurs only when there is "submission to the assertion of authority”) (emphasis in original).

      . State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App.2000).

      . Id. at 856.

      . Id. at 855 (“we view the evidence in the light most favorable to the trial court's ruling and assume that the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record.”).

      . Id. at 856.

      . See United States v. Mendenhall, 446 U.S. 544, 555, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) (holding that the respondent was not seized within meaning of Fourth Amendment when law enforcement agents “approached her in a public place, asked if she would show them her ticket and identification, and posed to her a few questions.”); see also Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (plurality op.) (“law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen....”); Florida v. Bostick, 501 U.S. 429, 436-37, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (“the crucial test is whether, taking into account all of the circumstances surrounding the encounter, the police conduct would 'have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.’ ”) (quoting Michigan v. Chesternut, 486 U.S. 567, 569, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988)).

      . Ante, at 52 n. 39.


source: Caselaw Access Project

author: DIANE M. HENSON, Justice. G. ALAN WALDROP,

license: Public Domain

text:
    TEXAS STATE UNIVERSITY—SAN MARCOS, Appellant, v. Sam BONNIN, Appellee.
    No. 03-07-00593-CV.
    Court of Appeals of Texas, Austin.
    Dec. 18, 2008.

      Nichelle A. Cobb, Office of Atty. Gen., Austin, TX, for Appellant.
    Chad W. Dunn, Brazil & Dunn, Houston, TX, for Appellee.
    Before Justices PATTERSON, WALDROP and HENSON.
   MEMORANDUM OPINION

DIANE M. HENSON, Justice.

Sam Bonnin brought a wrongful death and survival action against appellant Texas State University — San Marcos (TSU) in connection with the death of his son, Jason Bonnin. TSU filed a plea to the jurisdiction, which the trial court denied. In this interlocutory appeal, TSU argues that the trial court erred in denying its plea to the jurisdiction because Bonnin has not established a waiver of sovereign immunity. Because we hold that Bonnin’s pleadings do not establish jurisdiction but do not affirmatively demonstrate incurable jurisdictional defects, we reverse the trial court’s order denying the plea to the jurisdiction and remand this case to allow Bon-nin the opportunity to amend his pleadings.

STANDARD OF REVIEW

Because this is an appeal from a plea to the jurisdiction, “we will review the face of appellants’ pleadings to determine whether they show a lack of jurisdiction or whether the pleadings, if liberally construed, favored jurisdiction.” Atmos Energy Corp. v. Abbott, 127 S.W.3d 852, 855 (Tex.App.-Austin 2004, no pet.). Whether a trial court has subject-matter jurisdiction is a question of law we review de novo. Westbrook v. Penley, 231 S.W.3d 389, 394 (Tex.2007). If the pleadings do not affirmatively demonstrate the trial court’s jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and the plaintiffs should be afforded the opportunity to amend. Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226-27 (Tex.2004). If the pleadings affirmatively negate jurisdiction, then a plea to the jurisdiction may be granted without allowing an opportunity to amend. Id. at 227. Unless a pled jurisdictional fact is challenged and conclusively negated, it must be taken as true for purposes of determining subject-matter jurisdiction. City of Austin v. Leggett, 257 S.W.3d 456, 462 (Tex.App.-Austin 2008, pet. denied). In reviewing a plea to the jurisdiction, an appellate court does not look to the merits of the case but considers only the pleadings and evidence relevant to the jurisdictional inquiry. Miranda, 133 S.W.3d at 227.

DISCUSSION

Jason Bonnin drowned on April 21, 2005, after jumping from the balcony of a restaurant where he worked into the waterway at Spring Lake Dam on the TSU campus. According to Bonnin’s pleadings, Jason’s death resulted from a turbulent undertow that pulled him into underwater caverns located beneath the restaurant. Bonnin brought claims for negligent use of real and personal property and the defective condition of real and personal property, alleging that TSU created an unreasonably dangerous condition by making repairs to the waterway where the incident occurred and failing to block access to the underwater caverns or warn others of them existence. In addition, Bonnin brought the following claim:

A condition of agricultural land or other property used for recreational purposes, which posed an unreasonable risk of harm. Specifically Defendant TSU allowed and/or created a defective condition on the subject real property when it knew, or should have known, the property would be used for recreational purposes. By allowing such condition, Defendant TSU proximately caused Plaintiffs’ damages.

In its first issue on appeal, TSU argues that Bonnin has not sufficiently established a waiver of sovereign immunity under the Texas Tort Claims Act. See Tex. Civ. Prac. & Rem.Code §§ 101.001-.109 (West 2005). The State and its agencies are generally immune from suit, absent an express waiver of sovereign immunity. Miranda, 133 S.W.3d at 224. Sovereign immunity is waived under the Tort Claims Act for claims involving personal injury or death if the plaintiff alleges the injury was caused by the condition or use of tangible personal property or real property. Tex. Civ. Prac. & Rem.Code § 101.021.

An exception to the waiver of sovereign immunity under the Tort Claims Act exists for a governmental unit’s failure to perform an act or decision not to perform an act if the law leaves the performance or nonperformance of the act to the discretion of the governmental unit. Id. § 101.056. TSU argues that because Bonnin alleges that the drowning occurred as the result of a design decision made by TSU in repairing the dam, the exception for discretionary acts applies and sovereign immunity is not waived. To the extent that Bonnin’s claims relate to the repairs made to the waterway by TSU, we agree.

The Texas Supreme Court has held that the exception for discretionary acts applies to the design of public works. See State v. Rodriguez, 985 S.W.2d 83, 85 (Tex.1999) (“Design of any public work, such as a roadway, is a discretionary function involving many policy decisions, and the governmental entity responsible may not be sued for such decisions.”). “Likewise, decisions about installing safety features are discretionary decisions for which the State may not be sued.” Texas Dept. of Transp. v. Ramirez, 74 S.W.3d 864, 867 (Tex.2002). While courts have held that the negligent maintenance of public works is not subject to the exception for discretionary acts, that is not the case here. See Brown v. Texas Dep’t of Transp., 80 S.W.3d 594, 598 (Tex.App.-Corpus Christi 2000), aff'd, 80 S.W.3d 549 (Tex.2002) (holding that failure to maintain street lamps was not discretionary act); Texas Parks & Wildlife Dep’t v. Davis, 988 S.W.2d 370, 374 (Tex.App.-Austin 1999, no pet.) (holding that failure to remove deteriorated park bench was not discretionary act protected by Tort Claims Act). Unlike the plaintiffs in Brown and Davis, Bonnin does not allege that TSU failed to maintain the waterway after the repairs were made, but attributes the injury to the initial design decisions regarding the repairs. As a result, we hold that Bonnin failed to establish a waiver of sovereign immunity for his claims of negligent use of real and personal property and defective condition of real and personal property, to the extent those claims relate to the repairs made to the waterway by TSU. We further hold that because the pleadings regarding these particular claims rely on a design decision that is subject to the discretionary acts exception, such pleadings affirmatively negate the existence of jurisdiction and Bonnin need not be allowed an opportunity to amend.

Bonnin does, however, raise an additional premises defect claim that is unrelated to the repairs of the waterway, alleging that “TSU allowed and/or created a defective condition on the subject real property when it knew, or should have known, the property would be used for recreational purposes.” (Emphasis added.) This particular claim is similar to the plaintiffs’ claim in State v. Shumake, 199 S.W.3d 279 (Tex.2006). In Shumake, the plaintiffs brought a premises defect claim after their daughter drowned while swimming at a state park, allegedly as a result of being sucked underwater by a powerful undertow and trapped in a man-made culvert. Id. at 281. The Shumakes alleged that the dangerous undertow was a premises defect, that the State was aware of the condition and failed to act, and that this failure to act involved an extreme degree of risk. Id. at 281-82. The Texas Supreme Court concluded that the plaintiffs’ pleadings were sufficient to state a premises defect claim that not only fell within the Texas Tort Claims Act waiver of sovereign immunity, but also satisfied the heightened standard for liability imposed by the recreational use statute. Id. at 288. The dangerous condition, as alleged by the plaintiffs in Shumake, was the undertow itself, rather than the design of the culverts. Id. at 281. Similarly, Bonnin, in alleging that TSU allowed a defective condition on real property, brings a premises defect claim based on the turbulent undertow itself, rather than the design decisions related to the waterway repairs. As a result, this claim, which does not rely on a design decision by TSU, is not subject to the discretionary act exception to the Tort Claims Act.

In determining whether Bonnin has established a waiver of sovereign immunity for his premises defect claim based on the turbulent undertow, we must address TSU’s second issue, in which it argues that its sovereign immunity has not been waived under the recreational use statute. See Tex. Civ. Prac. & Rem.Code Ann. §§ 75.001-.004 (West 2005 & Supp. 2008); see also Stephen F. Austin State Univ. v. Flynn, 228 S.W.3d 653, 660 (Tex.2007) (noting that “because the recreational use statute modifies the Tort Claims Act’s waiver of sovereign immunity, it is properly part of the government’s plea to the jurisdiction”).

The Texas Tort Claims Act incorporates the limitations of liability articulated in the recreational use statute into a governmental unit’s waiver of immunity from suit. Tex. Civ. Prac. & Rem.Code Ann. § 101.058 (“To the extent that Chapter 75 limits the liability of a governmental unit under circumstances in which the governmental unit would be liable under this chapter, Chapter 75 controls.”); Miranda, 133 S.W.3d at 225. The recreational use statute states, in relevant part:

If an owner, lessee, or occupant of real property ... gives permission to another to enter the premises for recreation, the owner, lessee, or occupant, by giving the permission, does not:
(1) assure that the premises are safe for that purpose;
(2) owe to the person to whom permission is granted a greater degree of care than is owed to a trespasser on the premises; or
(3) assume responsibility or incur liability for any injury to any individual or property caused by any act of the person to whom permission is granted.

Tex. Civ. Prac. & Rem.Code Ann. § 75.002(c). Because Bonnin, in bringing his premises defect claim, alleges that TSU “knew, or should have known, the property would be used for recreational purposes,” we will assume without deciding that the recreational use statute applies to the present case.

The recreational use statute limits the landowner’s duty for premises defects to that which is owed a trespasser — a duty not to injure that person willfully, wantonly, or through gross negligence. See Miranda, 133 S.W.3d at 225. “Therefore, a governmental unit waives sovereign immunity under the recreational use statute and the Texas Tort Claims Act only if it is grossly negligent.” Id.; see also Tex. Civ. Prac. & Rem.Code Ann. § 75.002(d) (recreational use statute does not limit liability where owner “has been grossly negligent or has acted with malicious intent or in bad faith”). When a premises defect claim subject to the recreational use statute is based on a natural condition, the plaintiff must also allege facts to establish that the condition was not open and obvious. See Kirwan v. City of Waco, 249 S.W.3d 544, 552 (Tex.App.-Waco 2008, pet. filed).

While Bonnin generally alleges gross negligence in his pleadings by stating, “Defendants!’] behavior rises to the degree of gross negligence entitling Plaintiffs to punitive and/or exemplary damages,” conclusory allegations of gross negligence, without additional facts supporting the claim, are insufficient to meet the standard imposed by the recreational use statute. Flynn, 228 S.W.3d at 660. Gross negligence is defined as an act or omission which involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others, and of which the actor has actual, subjective awareness of the risk involved but proceeds with conscious indifference to the rights, safety, or welfare of others. Tex. Civ. Prac. & Rem.Code Ann. § 41.001(11) (West 2008). Bonnin’s general allegations fail to demonstrate facts supporting essential elements of gross negligence — that TSU was aware of the risk in this case or that it was consciously indifferent to the waterway’s capacity to inflict serious injury — and therefore fail to establish subject matter jurisdiction. See Miranda, 133 S.W.3d at 221 (“Due to the unusual confluence of standards erected by the Legislature for waiver of sovereign immunity in the Texas Tort Claims Act and the recreational use statute, plaintiffs must plead gross negligence to establish subject matter jurisdiction.”). However, we find nothing in Bonnin’s pleadings to affirmatively negate the existence of gross negligence.

Similarly, Bonnin’s pleadings fail to allege facts to establish that the turbulent undertow was not open and obvious, but do not affirmatively negate such facts. While Bonnin represents in his petition that the “open and obvious waterway is regularly used for recreation and has been maintained by Defendant TSU for that purpose,” we read this statement to describe the use of the waterway for recreational purposes as being open and obvious, rather than the dangerous condition of the undertow. This reading is supported by a later reference in the pleadings to “the open and obvious use of the dam, restaurant and adjacent waterways for recreation.”

Where, as here, it is possible to cure a pleading defect, the plaintiff “must be given an opportunity to amend in response to a plea to the jurisdiction.” Texas A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex.2007); see also Miranda, 133 S.W.3d at 227 (“If the pleadings do not contain sufficient facts to affirmatively demonstrate the trial court’s jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and the plaintiffs should be afforded the opportunity to amend.”).

We conclude that Bonnin failed to plead jurisdictional facts necessary to prove a waiver of sovereign immunity under the recreational use statute. See Miranda, 133 S.W.3d at 221; Kirwan, 249 S.W.3d at 552. Because this pleading defect is one for which a plaintiff should be afforded an opportunity to amend, we remand this case to the trial court to allow Bonnin to re-plead.

In its third issue on appeal, TSU argues that Bonnin failed to plead or prove a claim for negligent use of tangible personal property. This argument is based solely on Bonnin’s allegation that in making the repairs to the waterway, TSU was negligent in installing “various personal property in and around the waterway.” TSU also asserts that Bonnin may not proceed on a general negligence claim once a premises defect claim has been identified on the same facts. Given our conclusion that the trial court did not have jurisdiction over Bonnin’s claims related to the repairs made by TSU and that the only claim for which jurisdiction has not been affirmatively negated is a premises defect claim, we need not address TSU’s third issue on appeal.

CONCLUSION

We reverse the trial court’s order denying TSU’s plea to the jurisdiction and remand this case for proceedings consistent with this opinion.

Dissenting opinion by Justice WALDROP.

G. ALAN WALDROP,

Justice, dissenting.

I respectfully dissent. The majority’s remand of this case is not consistent with our obligation to dismiss when the pleadings and jurisdictional evidence affirmatively negate jurisdiction. The pleadings and jurisdictional evidence demonstrate that Bonnin’s factual complaints concern discretionary decisions for which the State retains immunity from suit. Therefore, I would reverse the district court’s order denying TSU’s plea to the jurisdiction and dismiss Bonnin’s suit against TSU.

In deciding a plea to the jurisdiction, we may not weigh the merits of the plaintiffs claims but must consider only the plaintiffs pleadings, construed in the plaintiffs favor, as well as evidence pertinent to the jurisdictional inquiry. County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.2002). If the pleadings and jurisdictional evidence affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction should be granted without allowing the plaintiff an opportunity to amend. See Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex.2004).

With regard to TSU’s first point on appeal, the majority correctly concludes that Bonnin failed to establish a waiver of sovereign immunity for his claims “to the extent those claims relate to the repairs made to the waterway by TSU.” The Tort Claims Act’s waiver of immunity does not apply to discretionary decisions. See Tex. Civ. Prac. & Rem.Code Ann. § 101.056 (West 2005). This exception for discretionary acts applies to the design of public works. See State v. Rodriguez, 985 S.W.2d 83, 85 (Tex.1999).

The majority then concludes, however, that Bonnin has raised a premises-defect claim that is unrelated to the repairs of the waterway. In his pleadings, Bonnin alleges that TSU allowed a defective condition to exist on the property. According to the majority, this claim is not based on TSU’s design decisions related to the waterway repairs; rather it is based on the water’s turbulent undertow somehow independent of the design of the waterway. To reach this conclusion, the majority fails to accurately evaluate the jurisdictional evidence alleged by Bonnin.

Bonnin plainly alleges that TSU’s design decisions are the cause of the turbulent undertow. According to the expert report attached to Bonnin’s petition, the dangerous condition of the spillway was “due to the repairs that were performed on the Spring Lake Dam Spillway in 2001,” and could have been reduced or eliminated had the 2001 repairs to the dam “been designed differently.” In his briefing before this Court, Bonnin has continued to characterize his claims in this manner, stating that the “defective condition [that caused Jason’s death] was made as a result of a design decision by the Appellant,” and that “the acts complained of by Appellee ... are design decisions.” This is not a case in which the plaintiff alleges — or in which the jurisdictional facts indicate he could allege — negligent maintenance in response to alterations from the original design as time passed, see Texas Parks & Wildlife Dep’t v. Davis, 988 S.W.2d 370, 374 (Tex.App.-Austin 1999, no pet.), or a condition resulting from negligent construction that deviated from the original design, see City of Mission v. Cantu, 89 S.W.3d 795, 812-13 (Tex.App.-Corpus Christi 2002, no pet.). According to Bonnin’s pleadings and factual allegations, Bonnin’s causes of actions against TSU are based on property conditions — the spillway’s hydraulic properties and the penstock caverns’ accessibility— that are the direct result of TSU’s 2001 redesign of the dam and spillway.

The majority relies on State v. Shumake, 199 S.W.3d 279 (Tex.2006), to support its position that Bonnin has asserted a claim that is not subject to the exception for discretionary acts under the Tort Claims Act. However, the Texas Supreme Court in Shumake addressed only the recreational-use exception of the Tort Claims Act. See generally 199 S.W.3d 279. The court did not consider whether a design decision was involved, nor did the court address the discretionary-acts exception. Shumake is simply not relevant to the inquiry here.

This case is instead governed by Texas Department of Transportation v. Ramirez, 74 S.W.3d 864 (Tex.2002), the analysis and rationale of which are dispositive of the claims here. In Ramirez, a car driving on Interstate Highway 35 crossed the grassy median and hit the plaintiffs’ relative head-on, resulting in his death. 74 S.W.3d at 865. The plaintiffs asserted a premises-defect claim against the Texas Department of Transportation based on an allegedly dangerous highway condition. Id. The alleged defect of the highway where the accident occurred, according to the plaintiffs, was either the slope of the lanes and median or the lack of safety features installed at the location. Id. at 866. At the hearing on the plea to the jurisdiction, the plaintiffs offered an expert’s opinion letter that explained methods by which the highway’s design could have been remedied in order to avoid the accident — flattening the median’s slope or installing concrete median barriers or guardrails. Id. The trial court denied the Department’s plea to the jurisdiction, and the Department appealed. The Texas Supreme Court reversed the judgment of this Court and held that the plaintiffs did not have a cognizable premises-defect claim under the Act because the alleged defective condition of the highway — its slope and lack of safety features — reflected design decisions, which are discretionary acts for which the Department retained immunity under the Act. See id. (citing Tex. Civ. Prac. & Rem. Code Ann. § 101.056). Moreover, the supreme court went on to hold that the plaintiffs would not receive an opportunity to amend their pleadings because “the pleadings and the evidence affirmatively show that all Ramirez’s factual complaints concern discretionary decisions for which the State retains immunity from suit under section 101.056 of the Act.” Id. at 867-68. Thus, according to the Texas Supreme Court in Ramirez, when a property’s dangerous condition is the result of the design of an improvement on the property, sovereign immunity is not waived under the Tort Claims Act for a premises-defect claim based on that dangerous condition. See id. at 867.

I see no meaningful distinction between Ramirez and this case. Bonnin asserts a premises-defect claim against TSU based on an allegedly dangerous condition that Bonnin plainly alleges was due to the design of the waterway and/or the design of renovations to the waterway. The alleged defects of the waterway identified in Bon-nin’s pleadings are the hydraulic properties of the spillway resulting from the 2001 repairs and the lack of safety features installed beneath the restaurant. At the jurisdictional hearing, Bonnin offered an expert report that explained a method by which the dam’s design could have been remedied in order to avoid the accident— covering the caverns beneath the restaurant. As in Ramirez, the alleged defective condition of the waterway in this case reflects design decisions by a state governmental entity. Even according to Bonnin’s own allegations, the turbulent undertow was a result of design decisions. Therefore, in accordance with the Texas Supreme Court’s Ramirez opinion, I would hold that there is no need to remand this case because the pleadings and the evidence affirmatively demonstrate that all of Bonnin’s complaints concern discretionary decisions for which the State retains immunity from suit under section 101.056 of the Act. See id. at 867-68.

Bonnin’s pleadings and jurisdictional facts affirmatively negate the existence of jurisdiction. Consequently, in addition to reversing the district court’s order denying TSU’s plea to the jurisdiction, I would dismiss Bonnin’s suit against TSU for lack of subject-matter jurisdiction.

      . To avoid confusion, we will refer to the appellee as “Bonnin,” and to Jason Bonnin, when necessary, as Jason.

      . Bonnin also brought claims against several other defendants. Because TSU is the only defendant that sought dismissal by the plea to the jurisdiction involved in this appeal, our disposition of this appeal does not affect Bon-nin’s claims against the other defendants.

      . Bonnin's petition was accompanied by an affidavit from an engineering expert, stating: [I]t is my opinion that the hydraulic properties of the spillway have changed due to the repairs that were performed on the Spring Lake Dam Spillway in 2001. By raising the bottom of the spillway chute with 14 inches, a change in the hydraulic properties of the water discharging the spillway chute and entering the river has occurred.... The 2001 repairs to the dam could have reduced or eliminated the dangerous condition had they been designed differently. For example, the original penstock caverns beneath Joe's Crab Shack should have been covered or closed off as part of this project.

      . See discussion of recreational use statute, infra.

      . Since the discretionaiy-acts exception of the Tort Claims Act is dispositive of all claims, there is no need for this Court to address the issues raised in TSU's remaining points on appeal — the recreational-use statute and the negligent use of tangible personal property.


author: DIANE M. HENSON, Justice.

text:
    TEXAS HEALTH INSURANCE RISK POOL, Appellant, v. Sharon B. SIGMUNDIK, Benjamin J. Sigmundik, Zachary P. Sigmundik, as the Sole and Legal Heirs and Beneficiaries of Thomas M. Sigmundik, Deceased and/or the Estate of Thomas M. Sigmundik, Deceased; Otto L. Monecke; and Virgina L. Monecke, Appellees.
    No. 03-05-00057-CV.
    Court of Appeals of Texas, Austin.
    July 31, 2009.

      Larry Parks, Mitchell Williams Long Burner, Austin, TX, for Appellant.
    Jeff R. Steinhauser, Law Offices of Jeff R. Steinhauser, Flatonia, TX, Peggy S. Supak, County and Dist. Atty., La Grange, TX, Giorgio Caflisch, Gordon A. Holloway, Holloway & Rowley, PC, Houston, TX, for Appellees.
    Before Justices PATTERSON, PURYEAR and HENSON.

       Because former Chief Justice Law was originally assigned to author this opinion, the panel was reassigned as of March 3, 2009.

   MEMORANDUM OPINION

DIANE M. HENSON, Justice.

The Texas Health Insurance Risk Pool (“the Risk Pool”) appeals from the trial court’s judgment that the Risk Pool take nothing on its health insurance subrogation claim against Sharon, Benjamin, and Zachary Sigmundik, as the sole heirs and beneficiaries of Thomas Sigmundik, and the estate of Thomas Sigmundik (collectively, “the Sigmundiks”), and Otto and Virginia Monecke. The Risk Pool brought its subrogation claim in a petition for intervention in a wrongful death and survival action brought by the Sigmundiks against the Moneckes. The Sigmundiks ultimately settled with the Moneckes for $800,000 and the Risk Pool asserted a subrogation interest in the settlement proceeds. After a bench trial on the subrogation claim and a hearing on the allocation of the settlement proceeds, the trial court issued a final judgment ruling that the Risk Pool take nothing. We affirm the trial court’s judgment.

BACKGROUND

The underlying dispute arose from an oil field explosion that occurred on September 20, 2001. At the time of the incident, Otto Monecke was performing perforation services on a plugged oil well operated by Sigmundik. At some point during the perforation process, while both Monecke and Sigmundik were standing in the vicinity of the well, an explosive device unexpectedly detonated inside the well, causing an explosion that severely injured both men. Because Sigmundik was standing over the oil well at the time of the accident, he sustained extensive injuries from shrapnel that was propelled out of the well during the explosion, as well as second-degree burns over 61% of his body and third-degree burns over 10% of his body. Sig-mundik survived for 52 days at Brooke Army Medical Center, undergoing numerous surgeries before ultimately dying from his injuries. The Risk Pool paid all of Sigmundik’s medical expenses resulting from the accident, a sum of $336,874.71.

On June 18, 2002, Otto Monecke and his wife, Virginia Monecke, brought suit against the Sigmundiks, alleging that Thomas Sigmundik negligently caused the explosion. The Sigmundiks then counterclaimed, alleging that Otto Monecke negligently caused the explosion. On September 30, 2002, the Risk Pool filed a petition in intervention, asserting a subrogation interest against any settlement proceeds paid to the estate of Thomas Sigmundik, based on a subrogation provision in the health insurance policy covering Thomas Sigmundik. In September 2004, almost three years after the accident, the parties participated in mediation. The Sigmun-diks agreed to settle their counterclaim against the Moneckes for $800,000, and the Moneckes agreed to non-suit their claim against the Sigmundiks, subject to the court’s approval.

In November 2004, the trial court held a bench trial on the Risk Pool’s asserted subrogation interest and ruled that the Risk Pool take nothing because the Sig-mundiks had not been made whole by the settlement amount. In December 2004, the trial court held another hearing in which it approved the settlement and allocated the settlement sum among Sharon, Benjamin, and Zachary Sigmundik. The trial court then signed a judgment approving the settlement agreement and incorporating its previous order ruling that the Risk Pool take nothing on its subrogation claim. The Risk Pool appeals from the trial court’s judgment.

DISCUSSION

In its first point of error, the Risk Pool argues that it was improperly deprived of a trial on the merits of its subro-gation claim against the Moneckes and that the trial court erred by issuing a final judgment before allowing the Risk Pool to litigate the negligence claim. In support of this argument, the Risk Pool cites the rule that an insurance company’s subrogation claim cannot be destroyed by a settlement and release of liability between the third-party tortfeasor and the insured if the third-party tortfeasor is aware of the subrogation claim. See Wichita City Lines v. Puckett, 156 Tex. 456, 295 S.W.2d 894, 899-900 (1956); Landsdowne-Moody v. St. Clair, 613 S.W.2d 792, 793 (Tex.Civ.App.-Houston [14th Dist.] 1981, no writ). However, this argument was not properly preserved for appeal and is therefore waived.

The trial court, in its findings of fact and conclusions of law, found that the Risk Pool’s “subrogation claims were heard by bench trial in the absence of any jury trial request or other objection to the proceeding.” This finding of fact is supported by the transcript of the bench trial, which reflects that the Risk Pool presented argument and evidence in support of its subro-gation interest in the settlement proceeds without indicating any intention to alternatively pursue its subrogation claim against the Moneckes directly through litigation on the merits of the negligence claim. In addition, the trial court’s final judgment, signed after the December 2004 settlement hearing, expressly states that the Risk Pool “is entitled to take nothing of and from Defendants/Counter-Plaintiffs and from Counter-Defendants,” referring to both the Sigmundiks and the Moneckes, and that “[t]his judgment is final, disposes of all claims and parties, and is appeal-able.” After the final judgment was issued, the Risk Pool did not file a motion for new trial or otherwise assert that it sought a trial on the merits of its subrogation claim against the Moneckes. While the Risk Pool argues on appeal that it preserved the issue by requesting findings of fact relevant to a negligence claim against the Moneckes, our review reveals that the findings of fact requested by the Risk Pool pertain to the issue of whether settlement proceeds should have been allocated to the estate of Thomas Sigmundik, rather than a potential negligence claim against the Moneckes.

Because the Risk Pool failed to present any complaint to the trial court regarding its claim that it was entitled to a trial on the merits against the Moneckes before a final judgment could be issued, we hold that this argument was not preserved for appellate review. See Tex.R.App. P. 33.1 (record must reflect that complaint was made to trial court in order to be preserved for appellate review). The Risk Pool’s first issue on appeal is overruled.

The Risk Pool’s second, third, and fourth issues on appeal can be summarized as a single argument that the trial court erred in ruling that the Risk Pool take nothing on its subrogation claim to a portion of the settlement proceeds. The parties’ briefs focus primarily on the equitable subrogation principles described in Esparza v. Scott & White Health Plan, 909 S.W.2d 548, 551-53 (Tex.App.-Austin 1995, writ denied), particularly the “made whole” doctrine. Under the “made whole” doctrine, an insurer is not entitled to an equitable right of subrogation until the insured is “made whole,” or fully compensated, for his loss. See id. at 552. However, the Texas Supreme Court has since held that the “made whole” doctrine must yield to contractual subrogation provisions when applicable. See Fortis Benefits v. Cantu, 234 S.W.3d 642, 649-50 (Tex.2007).

In the present case, Thomas Sigmun-dik’s health insurance policy with the Risk Pool included the following provision:

Subrogation: We will be subrogated to all rights of recovery which any person may have against another party for all benefits paid by the Pool which were incurred by the Insured Person as a result of the negligence or misconduct of another party. Our right to repayment shall be a lien against any recovery by the Insured Person whether it be by judgment, settlement, or otherwise. The amount of any repayment will be no more than the total amount of benefits paid by Us. Reasonable attorney fees may be deducted if prior written approval is obtained from Us. The Insured Person agrees to give the Administrator all necessary information and complete all documents required by Us to assist the Administrator in the enforcement of Our right of subrogation.

It is undisputed that Thomas Sigmundik was the sole insured under his policy with the Risk Pool. The Risk Pool concedes that it has a subrogation right only in the amount of the proceeds allocated to the estate of Thomas Sigmundik, stating in its brief, “The Pool does not claim that it is entitled to the first dollar of the settlement, but it does claim to be entitled to the first dollar of any settlement sum allocated to the estate.” (Emphasis in original.) The trial court’s final judgment, however, does not allocate any amount of the settlement sum to the estate, thus precluding the Risk Pool from recovering on its sub-rogation claim.

The trial court approved an allocation of the entire settlement sum between Thomas Sigmundik’s widow, Sharon Sigmundik, and his two minor sons, Benjamin and Zachary Sigmundik. On appeal, the Risk Pool argues that the trial court erred in failing to require that a portion of the settlement funds be allocated to the estate of Thomas Sigmundik.

The Risk Pool, as the insurer seeking subrogation, has the burden of establishing what settlement funds, if any, should be allocated to an entity against whom it could assert its subrogation interest. Cf Ortiz v. Great S. Fire & Cas. Ins. Co., 597 S.W.2d 342, 344 (Tex.1980) (insurer bears burden of showing what amount, if any, of settlement funds was allocated to covered loss). In finding of fact number 21, the trial court found that “[n]o specific allocation of any portion of the $800,000.00 settlement proceeds was made to any Estate of Thomas Sigmundik or timely requested by Intervenor.” (Emphasis added.) The Risk Pool raised the issue of allocation to the estate for the first time at the settlement hearing, stating, “[T]he estate is being allocated nothing, and we object to that.” Despite this objection, the Risk Pool did not make any specific request that a particular amount be allocated to the estate or provide any evidence regarding the proper allocation of the settlement funds. While the Risk Pool requested certain findings of fact related to the damages suffered by Thomas Sigmundik before his death, see supra note 4, it did not request that any conclusions regarding allocation of the settlement funds be drawn from those facts or otherwise seek to connect the requested findings to the issue of settlement allocation. Therefore, we hold that the Risk Pool failed to carry its burden of establishing that settlement funds should be allocated to the estate.

Furthermore, we review the trial court’s determination of the proper allocation of settlement funds for an abuse of discretion. See Garcia v. Elizondo, No. 04-00-00077-CV, 2001 WL 99627, at *2, 2001 Tex.App. LEXIS 790, at *5-6 (Tex.App.-San Antonio Feb. 7, 2001, no pet.) (not designated for publication) (trial court did not abuse its discretion in denying motion to allocate portion of settlement funds to estate of decedent). Thomas Sig-mundik, who was 46 years old at the time of his death, died intestate, so that no estate was ever actually opened and no representative ever made an appearance on behalf of an estate of Thomas Sigmun-dik. The trial court heard extensive testimony regarding the mental anguish experienced by Sharon Sigmundik and her two sons, Zachary and Benjamin, ages 12 and 13, respectively, at the time of their father’s death, as well as the financial concerns related to the loss of the family’s primary breadwinner. When asked why the entire settlement amount was allocated to herself and her two minor sons with no amount allocated to the estate, Sharon Sigmundik answered, “[I]f you compensate the two boys for their loss and me for my loss out of the amount that was available, there is nothing left for [the estate].” Under these circumstances, we cannot conclude that the trial court abused its discretion in approving the allocation of the settlement funds to Sharon, Benjamin, and Zachary Sigmundik, without allocating any amount to an estate of Thomas Sigmundik. As a result, there are no settlement funds subject to the Risk Pool’s subrogation interest, which the Risk Pool concedes is limited to the amount of any recovery by the estate of the insured. The Risk Pool’s second, third, and fourth issues on appeal are overruled and the trial court’s judgment is affirmed in its entirety.

CONCLUSION

We affirm the trial court’s judgment.

      . The Risk Pool provides access to health insurance coverage to otherwise uninsurable Texans and their immediate families. See Tex. Ins.Code Ann. §§ 1506.101, .152 (West 2009). Sharon Sigmundik testified that the Sigmundik family obtained insurance from the Risk Pool as a result of her rheumatoid arthritis and resulting difficulty obtaining health insurance elsewhere.

      . At the bench trial, die parties presented extensive documentary evidence and called a number of witnesses, including the executive director of the Risk Pool, Sharon Sigmundik and her two minor sons, and the parties’ counsel. The court also heard argument from the children's guardian ad litem.

      . The notice of setting sent by the Sigmun-diks’ counsel to all parties stated, "This letter will confirm that a bench trial on the [Risk Pool’s] subrogation claim has been set for November 18, 2004 at 9:00 a.m. at the Auxiliary Courthouse....” There is nothing in the record to indicate that the Risk Pool objected to the setting or requested a bifurcated trial.

      .The findings requested by the Risk Pool are as follows:
      43. Tom Sigmundik suffered damages in excess of $1 million.
      44. The estate of Tom Sigmundik suffered damages in excess of $ 1 million.
      45. Tom Sigmundik was conscious for approximately one hour immediately following the explosion and remained in a state of semi-consciousness much of the time until his death 52 days later.
      46. Tom Sigmundik knew that he was horribly injured.
      47. Tom Sigmundik knew that he was likely to die of his injuries.
      48. Tom Sigmundik knew that he would probably not see his children again.
      49. Tom Sigmundik experienced unimaginably great physical pain from the time of the explosion until his death at Brooke Army Burn Unit 52 days later.
      50.Tom Sigmundik experienced unimaginably great mental anguish from the time of the explosion until the time of his death 52 days later.
      The trial court declined to issue the requested findings.

      . The Risk Pool’s second issue on appeal presents the argument that the trial court erred in denying the Pool a share of the settlement proceeds, while its third and fourth issues challenge a number of findings of fact and conclusions of law that support the trial court's take-nothing judgment. These issues are combined into a single discussion in the Risk Pool's brief.

      . Fortis Benefits was addressed in supplemental briefing by the parties.

      . Sharon Sigmundik testified at length regarding the family-owned business, Market Street Energy, a small oil and gas operating company that Thomas Sigmundik had been running almost entirely on his own, and the detrimental impact on the business from the loss of Thomas’s expertise.


author: Justice O’NEILL.

text:
    Robert L. MYER and Strider Marketing Group, Inc., Appellants, v. AMERICO LIFE, INC., Americo Financial Life and Insurance Annuity Company, Great Southern Life Insurance Company, The Ohio State Life Insurance Company, and National Farmer’s Union Life Insurance Company, Appellees.
    No. 05-08-01053-CV.
    Court of Appeals of Texas, Dallas.
    Oct. 22, 2009.
    Rehearing Overruled July 30, 2010.

      D. Douglas Brothers, Craig T. Enoch, Winstead Sechrest & Minick P.C., Peter E. Ferraro, The Ferraro Law Firm, P.C., Austin, TX, for Appellants.
    Mike A. Hatchell, Locke Liddell & Sapp, LLP, John K. Schwartz, Barbara M. Ellis, Susan Kidwell, Austin, TX, Edwin R. De Young, Roger B. Cowie, Locke Liddell & Sapp, LLP, Dallas, TX, for Appellees.
    Before Justices MOSELEY, O’NEILL, and MURPHY.
   OPINION

Opinion By

Justice O’NEILL.

Appellants Robert L. Myer and Strider Marketing Group, Inc. (collectively referred to as appellants) and Americo Life, Inc., Americo Financial Life and Insurance Annuity Company, Great Southern Life Insurance Company, The Ohio State Life Insurance Company, and National Farmer’s Union Life Insurance Company (collectively referred to as appellees) participated in arbitration. Appellants filed a petition with the district court to confirm the award, and appellees filed a motion to vacate or modify the award. The trial court denied appellants’ motion to confirm the award and granted appellees’ motion to vacate.

On appeal, appellants assert the trial court ignored rules of contract construction regarding whether the parties’ arbitration agreement was ambiguous and whether an arbitrator can be disqualified by the American Arbitration Association (AAA). Further, they argue each of ap-pellees’ remaining challenges fails as a matter of law. The parties agree the Federal Arbitration Act applies to this dispute. We reverse and remand for further proceedings.

Background

The parties acknowledge the facts are generally undisputed; therefore, we will discuss only those facts relevant to the arguments on appeal, rather than detailing the business dealings leading up to the arbitration.

Appellant Myer built a business platform for the sale and servicing of tax-sheltered insurance products. Myer sold the insurance companies to appellees in 1998. Appellees were unwilling to pay the full value up front, so the parties agreed to use “trailer agreements” as a financing mechanism. The parties entered into a new trailer agreement in October 1998, which contained, in part, the following arbitration clause:

In the event of any dispute arising after the date of this Agreement among the parties hereto with reference to any transaction contemplated by this Agreement the same shall be referred to three arbitrators. Americo shall appoint one arbitrator and Myer shall appoint one arbitrator and such two arbitrators to select the third.... Each arbitrator shall be a knowledgeable, independent businessperson or professional. If either Americo or Myer refuses or ne-gleets to appoint an arbitrator within 30 days after receipt of the written request for arbitration, the initiating party may appoint a second arbitrator....

Several controversies arose between the parties and in February of 2005, appellees filed a Demand for Arbitration and Complaint in Arbitration with the AAA. Appel-lees appointed Ernest E. Figari, Jr. as an arbitrator, and appellants appointed Rodney D. Moore. Appellants filed an objection to Figari under AAA rule R-17, which required that “any arbitrator shall be impartial and independent and shall perform his or her duties with diligence and good faith.” In March of 2005, a AAA case manager issued a decision disqualifying and removing Figari as arbitrator.

After the AAA removed Figari, appel-lees sent a letter to the AAA and appellants stating the following:

Americo will proceed to arbitrate this matter subject to and without waiving its objection to the AAA’s decision and without waiver of the right to appeal any decision in this matter based on the erroneous removal of Mr. Figari as Am-erico’s designated member of the Arbitration panel (citations omitted). Ameri-co hereby places its standing objection to conducting this arbitration without Mr. Figari on the Panel.

Based on the running objection, appellees contend they were not required to do anything else to preserve their complaint. Appellees then appointed Richard A. Sayles as an arbitrator. The parties later agreed to the appointment of the third arbitrator.

The arbitration commenced on March 27, 2007 and a final award was rendered on June 29, 2007. The arbitrators reached a 3-0 decision in appellants’ favor and awarded declaratory relief, $9.29 million in breach of contract damages, $15.8 million in damages for amounts wrongfully withheld under the new trailer agreement, and $1.29 million in attorneys’ fees and costs.

On July 9, 2008, appellants filed a petition to confirm the arbitration award in the district court. Appellees later filed a motion to vacate or modify the arbitration award and argued the award was not by arbitrators appointed under the method required in the agreement and the panel exceeded its authority. On July 15, 2008, the trial court denied the motion to confirm and granted appellees’ motion to vacate the arbitration award. In its conclusions of law, the trial court stated the AAA failed to follow the arbitration selection method contained in the first paragraph of section 3.3 of the new trailer agreement by not allowing appellees to appoint Figari, and because the award was not issued by a properly appointed and authorized panel, it was void and had no binding effect. The trial court did not consider appellees’ remaining grounds for vacating the award because it concluded any remaining arguments were moot.

Appellants filed a motion to reconsider. The trial court denied the motion on September 8, 2008. This appeal followed.

Discussion

We begin our analysis by considering appellants’ contention that appellees waived the argument they made to the trial court — and now make on appeal — to sustain the trial court’s order vacating the arbitration award because the argument was never presented to the arbitration panel or any other proper tribunal before appellees participated in the arbitration. Appellees respond they properly objected and notified the arbitration panel and appellants of their running objection to Fi-gari’s removal from the panel; therefore, the issue is properly preserved for our review. We agree with appellants.

After appellants objected to Figari, ap-pellees responded by arguing appellants’ objection was based on “the erroneous contention that Mr. Figari served as a non-neutral arbitrator” in two previous arbitra-tions involving the same parties; however, they alleged he served as a neutral arbitrator in both proceedings. They further argued the AAA rules allowed the parties to agree to use a non-neutral arbitrator, but they acknowledged the parties had not reached such an agreement.

Appellees cited to rule R-12(a), which provides that “[wjhere the parties have agreed that each party is to name one arbitrator, the arbitrators so named must meet the standards of rule R-17 with respect to impartiality and independence .... ” AAA Rule R-12(a) (2003). Rule R-17(a) states an arbitrator must be impartial and independent and shall perform his duties with diligence and in good faith. Id. Rule R-17(a). An arbitrator is subject to disqualification for (i) partiality or lack of independence, (ii) inability or refusal to perform his or her duties with diligence and in good faith, and (iii) any grounds for disqualification provided by applicable law. Id. Appellees then contended “there is no evidence that Mr. Fi-gari does not meet all of the requirements of Rule R-17(a).” Thus, under rule R-17(b), appellees urged the AAA to overrule appellants’ objection to Figari serving on the arbitration panel.

After arbitration, appellees argued to the trial court the award should be vacated under section five of the Federal Arbitration Act because the award was not made by arbitrators who were appointed under the method provided in the trailer agreement. In their brief in support of their motion to vacate the arbitration award, appellees further explained their argument to mean the trailer agreement did not require the party-appointed arbitrators to be “independent and impartial. Nor does the Agreement allow the AAA to disqualify a party’s appointed arbitrator for partiality, bias, or any other basis.” They continued to argue that because their right to select an arbitrator was governed by the standards in the trailer agreement, the impartiality standard set out in the AAA rules was inapplicable. Essentially, appel-lees argued to the trial court they had a right to a non-neutral arbitrator. This, however, is not the argument they raised to the AAA in response to appellants’ objection to Figari.

In fact, they repeatedly argued to the arbitration panel that Figari was neutral and met the rules of impartiality and independence as required under rule R-17(a). They specifically stated “there is no evidence that Mr. Figari does not meet all of the requirements of Rule R-17(a).” At no time did they object or argue to the arbitration panel that they had a right to a non-neutral arbitrator that did not meet the requirements of independence and impartiality, nor have they cited us to any such record reference. Not until after the arbitration panel ruled against them did appellees then assert this new argument to the trial court.

As noted above, appellees did not raise the argument they now make on appeal to the arbitrating entity (AAA) or the arbitration panel prior to the arbitration proceeding. See, e.g., Kendall Builders, Inc. v. Chesson, 149 S.W.3d 796, 806 (Tex.App.Austin 2004, pet. denied) (“A party may not sit idly by during an arbitration procedure and then collaterally attack that procedure on grounds not raised before the arbitrator when the result turns out to be adverse.”); Bossley v. Manner Fin. Group, Inc., 11 S.W.3d 349, 351-52 (Tex. App.-Houston [1st Dist.] 2000), ajfd, 79 S.W.3d 30 (Tex.2002).

We acknowledge that rule R-17(a)(iii) allows the parties to agree in writing that arbitrators directly appointed by a party under rule R-12 shall be non-neutral, in which case such arbitrators need not be impartial or independent and shall not be subject to disqualification for partiality or lack of independence. AAA Rule R-17(a)(iii). However, both parties conceded at oral argument there is no document in the record showing the parties agreed to use a non-neutral arbitrator. Had the ap-pellees asserted their alleged right to a non-neutral arbitrator to the AAA or the arbitration panel, the objection they later raised to the trial court might not have been waived, and thus available to sustain the trial court’s holding in appellees’ favor. However, on the record before us, appel-lees waived their argument that they were entitled to appoint Figari as a non-neutral arbitrator. Kendall, 149 S.W.3d at 806; Bossley, 11 S.W.3d at 351-52.

Appellees contend the arbitration panel’s authority to enter the award is a claim of fundamental error that cannot be waived and cite to a 1986 Second Circuit case. See Avis Rent A Car Sys., Inc. v. Garage Employees Union, Local 272, 791 F.2d 22 (2d Cir.1986). However, we are persuaded by the holding in Brook v. Peak International, Ltd., 294 F.3d 668, 673 (5th Cir.2002), in which the court determined the “failure to file a clear written objection to a defect in the [arbitrator] selection process constitutes waiver.” Because ap-pellees failed to file a clear written objection to the arbitration panel regarding the defect they now complain about on appeal, their issue is waived.

Further, before proceeding to arbitration, appellees could have sought an order from a district court compelling arbitration before what they considered a properly selected arbitrator. See 9 U.S.C.A. § 4 (2009) (“A party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States district court which, save for such agreement, would have jurisdiction ... for an order directing that such arbitration proceed in a manner provided for in such agreement.”); Brook, 294 F.3d at 673. This they failed to do.

Thus, we agree with appellants and conclude appellees waived the argument they made below regarding whether the panel was appointed in violation of the method provided for in the arbitration agreement. We sustain appellants’ first issue. Because the trial court expressly stated in its findings of fact and conclusions of law that “because the Court has found that the Award is void and had no binding effect, the remaining grounds raised by Defendants for vacating the Award are moot and, therefore, the Court has not reached them,” we likewise will not consider them.

We reverse and remand to the trial court for further proceedings.

      . Rule R — 17(b) states "[u]pon objection of a party to the continued service of an arbitrator, or on its own initiative, the AAA shall determine whether the arbitrator should be disqualified under the grounds set out above, and shall inform the parties of its decision, which decision shall be conclusive.” AAA Rule R-17(b).

      . Section five of the Federal Arbitration Act states the following:
      If in the agreement provision be made for a method of naming or appointing an arbitrator or arbitrators or an umpire, such method shall be followed; but if no method be provided therein, or if a method be provided and any party thereto shall fail to avail himself of such method, or if for any other reason there shall be a lapse in the naming of an arbitrator or arbitrators or umpire, or in filling a vacancy, then upon the application of either party to the controversy the court shall designate and appoint an arbitrator or arbitrators or umpire, as the case may require, who shall act under the said agreement with the same force and effect as if he or they had been specifically named therein; and unless otherwise provided in the agreement the arbitration shall be by a single arbitrator.
      9 U.S.C. § 5 (2009).