author: MICHAEL MASSENGALE, Justice. JIM SHARP, Justice,

text:
    Guillermo MONTALVO, Appellant, v. The STATE of Texas, Appellee.
    No. 01-09-01134-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    April 29, 2010.

      Tony Aninao, Houston, TX, for Appellant.
    Eric Kugler, Assistant District Attorney of Harris County, Patricia R. Lykos, Harris County District Attorney, Houston, TX, for Appellee.
    Panel consists of Justices KEYES, SHARP, and MASSENGALE.
   OPINION

MICHAEL MASSENGALE, Justice.

Appellant Guillermo Montalvo has been charged with murder (trial court cause number 1237568). See Tex. Penal Code Ann. § 19.02 (Vernon 2003). His pretrial bail was originally set at $50,000, and he filed a habeas corpus petition (trial court cause number 1242494) complaining that the bail was excessive and seeking a reduction of the bail to $5,000. See Tex.Code CRiM. Proc. art. 11.24 (Vernon 2005). After a hearing, the trial court increased Montalvo’s bail to $100,000. Montalvo appeals from this decision and asks that his bail be reduced to $10,000. See Tex.R.App. P. 31. He also asks that we order the trial court to reinstate attorney Tony Aninao as his appointed counsel of record.

We affirm the trial court’s ruling on the amount of Montalvo’s bail. We lack jurisdiction over Montalvo’s complaint about the withdrawal of his original appointed counsel and appointment of new counsel.

Factual and Procedural Background

On October 18, 2009, appellant Guillermo Montalvo was charged in Harris County with one count of murder. The State alleged that on or about October 5, 2009, Montalvo “did then and there unlawfully intentionally and knowingly cause the death of MELVIN SANCHEZ ... by STABBING THE COMPLAINANT WITH A KNIFE.” The case was assigned to the 183rd District Court, and bail was set at $50,000. Two days later, Mon-talvo represented to the trial court that he was financially unable to hire an attorney, and attorney Tony Aninao was appointed to represent him. After the appointment of Aninao, Montalvo’s case was transferred to the 208th District Court, where a companion case was pending against another defendant also charged with complicity in the murder of Melvin Sanchez.

On November 20, 2009, Montalvo filed an original application for a writ of habeas corpus. In that application, he alleged that he is a United States citizen and a resident of Harris County. He claimed that he was willing and able to post a bond in an amount sufficient to ensure his presence before the trial court to answer the pending charges. He alleged that the amount of bail previously set by the trial court violated his rights under the Eighth and Fourteenth Amendments to the United States Constitution; Article I, sections 11, 11A, and 13 of the Texas Constitution; and Articles 17.031, 17.15, 17.151, and 17.21 of the Texas Code of Criminal Procedure.

On December 10, 2009, the trial court held a hearing on Montalvo’s petition for habeas corpus. The State presented one witness, police officer H.A. Chavez. Officer Chavez testified that he had investigated a homicide that took place on October 5, 2009, at a nightclub in Harris County. Two men entered a restroom, and four men followed them. A brawl ensued, and the first two men were punched, kicked, and stabbed. One man, Melvin Sanchez, died as a result of his wounds. The four suspects identified as a result of the investigation were Montalvo, his brothers Alfonso (a/k/a “Paco”) and Richard, and Erick Dono. The four suspects were seen dragging Sanchez out of the restroom and fleeing the scene. Officer Chavez identified Montalvo as a participant in the assault, and he also testified that Paco was suspected of actually stabbing the two victims. One witness reported to Officer Chavez that Montalvo bragged about beating one of the men with a toilet cover.

According to Officer Chavez, after the incident Montalvo and his brothers fled to Mexico. As of the time of the hearing, Montalvo’s brothers had not been found. Montalvo, in contrast, while still in Mexico had contacted a police officer, and ultimately he voluntarily returned to Houston and gave a statement. In his statement, Montalvo conceded that he had gone to the nightclub so that his brother could fight one of the victims, he knew his brother carried a knife, and he participated in the fight while high on cocaine.

Montalvo also testified at the hearing. He testified that he was born in Houston and that he is a United States citizen. He testified that he has lived in the Houston area his entire life and all of his relatives live, or have previously lived, in the Houston area. He further testified that he was 20 years old, that he had two daughters and was expecting the births of two more children, and that he was then separated from the mother of his children.

Montalvo testified that after fleeing the crime scene, he stayed for two or three days in Reynosa, Mexico and then stayed with a sister-in-law in Ciudad Miguel Ale-mán. After contacting the police by telephone, he crossed the border back into the United States by swimming across the Rio Grande River to avoid immigration officials. He subsequently surrendered to the police because he had not stabbed either of the victims, he was tired of running, and he wanted to clear his name.

With respect to his work history, Mon-talvo testified that he attended, but did not complete, training to become a computer technician. He testified that , he did not complete his course of study because he “got locked up.” He also testified that he had worked for “at least a month” doing grinding for Spitzer Industries, and he was employed for approximately two weeks providing security for a construction company.

Montalvo testified that he had misdemeanor convictions as an adult for failure to produce identification to a police officer and burglary of a motor vehicle. In March 2009, Montalvo posted a bond in connection with the burglary charge, and he ultimately forfeited on the bond. He served 10 days in jail in for the failure-to-identify conviction, and 150 days for the burglary conviction. In addition, Montalvo admitted on cross-examination that he had been sent to the Texas Youth Commission for the juvenile offense of unauthorized use of a motor vehicle and that on one occasion he had run away from the Texas Youth Commission.

With respect to bail, which had been initially set at $50,000 for the murder charge, Montalvo testified that he had tried unsuccessfully to obtain a bond. His understanding was that he needed $5,000 cash collateral and a co-signor to obtain the bond. He testified that he had approximately $2,000 in cash that he could use to obtain a bond. He did not have a checking or savings account, but he did own an eight-year-old sports utility vehicle. He owned no jewelry, stocks, bonds, or real estate that could be used to raise money to obtain a bond. Montalvo asked the trial court to grant a reduction in bail to a range of $10,000-$15,000. He agreed to consent to electronic monitoring and urine tests pending trial of his case.

After the testimony of the two witnesses, the State argued that Montalvo’s bail had been set too low. The State argued that he was charged with a violent crime, he had forfeited on a bond in the past, and he had family contacts in Mexico, where he had fled after the incident at issue. He had previously evaded law enforcement while crossing the United States-Mexico border. Based on these factors, the State argued that bail of $200,000 would be more appropriate.

Montalvo argued after the conclusion of testimony that a reduction of bail to $20,000 would be appropriate because that was approximately what he had testified he could satisfy. He argued that bail of $20,000, in addition to other conditions such as electronic monitoring, would be sufficiently high to assure that he complied with the undertaking. He also argued that bail should not be used as an instrument of oppression. As mitigating factors, he asserted that he had not been the person who stabbed any victim, that there was no evidence of an advance plan to kill Sanchez, and that he had voluntarily returned to surrender after initially fleeing.

The trial court denied habeas corpus relief and also denied Montalvo’s request to reduce bail. The trial court increased his bail to $100,000 and certified his right to appeal. A notice of appeal was filed on December 10, 2009, and Aninao was appointed as Montalvo’s counsel on appeal.

On December 14, 2009, Aninao filed in the trial court a motion to withdraw as attorney of record. The motion stated that the reason for the request was that the trial court “informed undersigned appointed counsel to withdraw since court wanted to appoint another lawyer.” On the same day the trial court granted the motion.

Standard of Review

The Eighth Amendment to the United States Constitution provides that “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const. amend. VIII; Schilb v. Kuebel, 404 U.S. 357, 365, 92 S.Ct. 479, 484, 30 L.Ed.2d 502 (1971) (applying Eighth Amendment prohibition of excessive bail to the States). The standard for reviewing whether excessive bail has been set is whether the trial court abused its discretion. See Ex parte Rubac, 611 S.W.2d 848, 849-50 (Tex.Crim.App.1981) (reviewing bail pending appeal for abuse of discretion); Cooley v. State, 232 S.W.3d 228, 233 (Tex.App.-Houston [1st Dist.] 2007, no pet.). In the exercise of its discretion, a trial court should consider the following factors in setting a defendant’s bail before trial:

1. The bail shall be sufficiently high to give reasonable assurance that the undertaking will be complied with.
2. The power to require bail is not to be so used as to make it an instrument of oppression.
3. The nature of the offense and the circumstances' under which it was committed are to be considered.
4. The ability to make bail is to be regarded, and proof may be taken upon this point.
5. The future safety of a victim of the alleged offense and the community shall be considered.

Tex.Code Cmm. Proc. Ann. art. 17.15 (Vernon 2005); see Ludwig v. State, 812 S.W.2d 323, 324 (Tex.Crim.App.1991). A defendant carries the burden of proof to establish that bail is excessive. Ex parte Rubac, 611 S.W.2d at 849; In re Hulin, 31 S.W.3d 754, 759 (Tex.App.-Houston [1st Dist.] 2000, no pet.). In reviewing a trial court’s ruling for an abuse of discretion, an appellate court will not intercede as long as the trial court’s ruling is at least within the zone of reasonable disagreement. Cooley, 232 S.W.3d at 234; Ex parte Beard, 92 S.W.3d 566, 573 (Tex.App.-Austin 2002, pet. ref'd) (citing Montgomery v. State, 810 S.W.2d 372, 891 (Tex.Crim.App.1990)). We acknowledge, however, that an abuse-of-discretion review requires more of the appellate court than simply deciding that the trial court did not rule arbitrarily or capriciously. Cooley, 232 S.W.3d at 234. The appellate court must instead measure the trial court’s ruling against the relevant criteria by which the ruling was made. Id.

Analysis

I. Bail

The primary purpose for setting bail is to secure the presence of the defendant in court at his trial. Ex parte Vasquez, 558 S.W.2d 477, 479 (Tex.Crim.App.1977); Golden v. State, 288 S.W.3d 516, 519 (Tex.App.-Houston [1st Dist.] 2009, pet. ref d). The amount of bail should be set sufficiently high to give reasonable assurance that the accused will comply with the undertaking, but should not be set so high as to be an instrument of oppression. Ex parte Bufkin, 553 S.W.2d 116, 118 (Tex.Crim.App.1977); Ex parte Willman, 695 S.W.2d 752, 753 (Tex.App.-Houston [1st Dist.] 1985, no pet.). Courts should also consider the defendant’s work record, family ties, residency, criminal record, conformity with previous bond conditions and aggravating factors involved in the offense. See Ex parte Rubac, 611 S.W.2d at 849.

Sufficiency of bail

As Montalvo is complaining that bail of $100,000 is excessive, and the State has not appealed from the trial court’s rejection of the State’s suggestion to set bail at a higher amount, there is no dispute that the bail set by the trial court is sufficiently high to give reasonable assurance that Montalvo would comply with the undertaking of appearing in court as required in the future.

Nature and circumstances of the offense

Montalvo has been charged with murder, a first-degree felony offense. Tex. Penal Code Ann. § 19.02 (Vernon 2003). Our consideration of the nature and circumstances of the offense requires that we take note of the range of punishment permitted by law in the event of a conviction. See, e.g., Ex parte Rodriguez, 595 S.W.2d 549, 550 (Tex.Crim.App.1980); Ex parte Reyes, 4 S.W.3d 353, 355 (Tex.App.-Houston [1st Dist.] 1999, no pet.). In this case, the potential unenhanced punishment for murder ranges from 5 to 99 years or life in prison. Tex. Penal Code Ann. § 12.32 (Vernon Supp.2009).

Murder is an unquestionably serious offense, and bail set in the amount of $100,000 or more in non-capital murder cases has been routinely affirmed by courts of appeals. See, e.g., Milner v. State, 263 S.W.3d 146, 148-51 (Tex.App.-Houston [1st Dist.] 2006, no pet.) (affirming $500,000 bail for defendant accused of murdering his wife and attempting to murder his mother-in-law); Richardson v. State, 181 S.W.3d 756, 758-60 (Tex.App.Waco 2005) (affirming $200,000 bail for defendant accused of killing her husband). Most of these cases, however — including all of the authorities submitted by the State — are at least partially distinguishable from Montalvo’s case insofar they involved bail assessed for defendants accused of directly committing murder, and as the evidence presented at the habeas corpus hearing suggests that Montalvo did not personally stab the murder victim in this case. Instead, the evidence offered against Montalvo supports a charge of murder based only on his actions to assist and encourage the murder of Sanchez. This evidence included Montalvo’s awareness of his brother’s intention to fight Sanchez at the night club, his awareness that his brother carried a knife, his presence during the assault, his bragging that he beat one of the victims with a toilet cover, and his flight afterwards. (Based upon this evidence, along with Montalvo’s admission that he was high on cocaine during the assault, we reject Montalvo’s suggestion that the evidence against him presented by the State is so weak that bail should be reduced based on the likelihood of acquittal.)

We must take into account the allegations of Montalvo’s indirect role in the stabbing as part of the nature and circumstances of the alleged offense. However, we must also acknowledge that under the law of parties, if Montalvo acted with the intent to promote or assist the commission of the offense by encouraging, aiding, or attempting to aid another person in committing the offense, he is just as criminally responsible for the offense as if he had directly committed murder by his own conduct. See Tex. Penal Code Ann. §§ 7.01(a), 7.02(a)(2) (Vernon 2003).

A similar circumstance was presented in Ex parte Davis, 147 S.W.3d 546 (Tex.App.-Waco 2004, no pet.), in which the two brothers Davis were charged with murder. Pretrial bail was set at $1,000,000 for each of the brothers. At an evidentiary hearing on the brothers’ habeas corpus petition to reduce bail, the evidence showed that the two brothers were cocaine dealers and that Chad Davis hired three men to assault the murder victim, who had “ripped off the [Davises] for $100,000 worth of drugs and/or money.” Davis, 147 S.W.3d at 549. When the victim was confronted, a gun battle ensued and the victim was killed. The evidence adduced by the State identified Chad as the “primary instigator of the whole transaction.” Id. at 550. The only evidence referenced by the court of appeals about the other brother, Trey, suggested that he was “perhaps” involved in hiring the hitmen and that he “knowingly participated in the events leading up the murder and knowingly assisted the assailants as they fled the state.” Id. In reviewing Trey’s bail, which the trial court had set at $1,000,000, the Waco Court of Appeals considered, among other mitigating factors, the fact that the evidence suggested that Trey did not directly commit the murder. Id. at 553. However, in reducing Trey’s bail to $500,000, the court also noted that the evidence suggested that Trey knowingly participated in the plot that resulted in murder. Id. Similarly, in Montal-vo’s case we note that the information presented at the habeas corpus hearing suggests he did not personally stab the murder victim, but that he nevertheless may have knowingly participated in the offense.

As an additional circumstance of the offense of murder, Montalvo argues that his voluntary surrender is a factor that should be considered in lowering his bail. The evidence presented at the hearing suggested that Montalvo voluntarily returned to the United States after initially fleeing to Mexico. We acknowledge Montalvo’s voluntary surrender as a factor favoring a reduction of bail. See, e.g., Ex parte Hellenguard, 622 S.W.2d 875, 875 (Tex.Crim.App.1981); Ex parte Walton, 583 S.W.2d 786 (Tex.Crim.App.1979).

Future safety of victims and the community

The parties do not directly address the future safety of the victims and the community. Sanchez is dead, so there is no issue of his future safety. There was no evidence at the hearing on Montalvo’s petition to suggest that Montalvo presents any direct threat to the other assault victim or to the families of the victims. Nevertheless, we assume, as we must, that the trial court considered these factors in assessing bail. See Tex.Code Crim. Proc. Ann. art. 56.02(a)(2) (Vernon Supp.2009) (“A victim, guardian of a victim, or close relative of a deceased victim is entitled to ... the right to have the magistrate take the safety of the victim or his family into consideration as an element in fixing the amount of bail for the accused”).

Ability to make bail

Montalvo testified that he did not have the resources available to post a bond in the amount of $50,000 or more. He testified about the amount of cash available to him, his ownership of a vehicle, and his lack of other valuable property. No evidence was presented about any discussions with bondsmen or the maximum amount of bail that Montalvo believed he could satisfy. Similarly, no evidence was presented about whether Montalvo’s family had any ability to help him make bail. See Milner, 263 S.W.3d at 149 (“To show that he is unable to make bail, a defendant generally must show that his funds and his family’s funds have been exhausted.”). Based on his attorney’s arguments to the trial court, it appears that Montalvo possibly could make bail of as much as $20,000.

The Code of Criminal Procedure requires the trial court to consider the defendant’s ability to make bail. Tex.Code Crim. Proc. Ann. art. 17.15(4) (Vernon 2005). However, the Court of Criminal Appeals has emphasized that ability or inability to make bail does not, alone, control in determining the amount. See Ex parte Rodriguez, 595 S.W.2d at 550; Ex parte Bufkin, 553 S.W.2d at 118. The unrebutted evidence of Montalvo’s inability to make bail of $100,000 is a factor in favor of reducing his bail, but that factor did not require the trial court to set bail at an amount that Montalvo could satisfy.

Whether bail is being used as an instrument of oppression

Montalvo presents no argument or evidence that bail is being used as an instrument of oppression in this case. Our independent review of the habeas corpus record likewise does not suggest that the trial court deliberately set bail at an excessively high level solely to prevent Mon-talvo from posting bail.

Other factors

In addition to the considerations enumerated in the Code of Criminal Procedure, courts also consider the defendant’s work record, family ties, residency, criminal record, conformity with previous bond conditions and aggravating factors involved in the offense. See Ex parte Ru-bac, 611 S.W.2d at 849. Here, on balance, these factors suggest that a high bond is justified. Montalvo was twenty years old at the time of the hearing on his petition to reduce bail. Earlier in the same year he had defaulted on a bond posted in connection with charges that he burglarized a motor vehicle. After defaulting on the bond he pleaded guilty and served time for the burglary charge before the incident in which Sanchez was murdered. Montalvo fled to Mexico with his brothers, where other members of Montalvo’s family also live. Although Montalvo had two children in the Houston area and was expecting the imminent births of two more children at the time of the hearing, the evidence at the hearing suggested that he was separated from the mother of the children. Moreover, the evidence at the healing suggested that Montalvo has no meaningful work history that would establish an additional tie to the Houston area.

Montalvo testified that he returned to Houston believing he would be able to explain that he was not the person who stabbed Sanchez, and thus clear his name. Now that, rather than achieving exoneration, he has been charged with murder, the trial court could have reasonably concluded that his history demonstrates he is a flight risk, justifying high bail.

No abuse of discretion

In light of the foregoing analysis, we conclude that the trial court did not abuse its discretion in setting bail at $100,000 for the murder charge against Montalvo. That amount is not clearly excessive in light of the seriousness of the offense of murder and the violent circumstances of the alleged crime, even taking into account the circumstance that Montalvo’s alleged role may have been limited to assistance and encouragement, as opposed to directly stabbing the murder victim. Montalvo did establish some factors that could justify a lower amount of bail, such as Montalvo’s voluntary submission to the police and the evidence of his limited funds available to post a bond. However, still other factors support a higher amount of bail, such as evidence suggesting that Montalvo may be a flight risk.

It is not our role to simply substitute our judgment for that of the trial court. Because we conclude that the trial court’s ruling is within the zone of reasonable disagreement about the proper amount of bail in this circumstance, we will not disturb the trial court’s ruling.

II. Appointed counsel

Finally, we consider Montalvo’s request that we direct the trial court to reinstate Tony Aninao as his appointed trial counsel.

This is an appeal from denial of Montal-vo’s petition for habeas corpus. Montal-vo’s right to appeal is limited to the matters properly raised in his habeas corpus petition. The statutory authority for Mon-talvo’s petition is Texas Code of Criminal Procedure article 11.24, which provides:

Where a person has been committed to custody for failing to enter into bond, he is entitled to the writ of habeas corpus, if it be stated in the petition that there was no sufficient cause for requiring bail, or that the bail required is excessive. If the proof sustains the petition, it will entitle the party to be discharged, or have the bail reduced.

Article 11.24 provides no authority for Montalvo to raise any issue in his habeas corpus petition other than the cause for or excessiveness of his bail. Moreover, the appellate record reflects that in fact, no issue relating to the appointment of trial counsel was raised in the habeas corpus petition or hearing. Aninao filed his motion to withdraw in the murder case (trial court cause number 1237568), not the ha-beas corpus proceeding (trial court cause number 1242494), after the trial court had already denied the habeas corpus petition and after Montalvo had filed his notice of appeal.

Even if the issue of appointed counsel had been raised in the course of the habe-as corpus proceeding, we still could not consider it. Appellate Rule 31.2 expressly provides that “[t]he appellate court will not review any incidental question that might have arisen on the hearing of the application before the trial court.” Tex.R.App. P. 31.2.

We thus conclude that we lack jurisdiction to consider Montalvo’s request that Aninao be reinstated as his appointed trial counsel.

Conclusion

We affirm the judgment of the trial court.

Justice SHARP dissenting in part and concurring in part.

JIM SHARP, Justice,

dissenting and concurring.

Appellant, Guillermo Montalvo, surrendered to Houston Police Department officers on October 17, 2009. The following day, pursuant to the District Court Bail Schedule of the Harris County District Courts, the Magistrate set bail at $50,000. On November 20, 2009, Montalvo filed an original application for a writ of habeas corpus seeking to reduce the bond to $5,000. On December 10, 2009, the trial court held a hearing on the writ during which counsel for the State requested that the bond be increased to $200,000 and Montalvo asked the court to reduce the bond to $20,000. The trial court increased the amount of the bond to $100,000.

When the Magistrate initially set the bond at $50,000, the following facts were all of record: (1) Montalvo was a lifelong Houstonian with ties to the city that included parents, siblings, and children; (2) Montalvo previously had a Harris County bond revoked for failure to appear at a court setting for a prior misdemeanor; (3) immediately subsequent to the alleged commission of the current offense, Montal-vo visited two small towns south of the Rio Grande River on the Texas border; and (5) very soon thereafter he made arrangements with two different Houston Police officers to return to Houston and voluntarily surrender himself.

Article 17.09(3) of the Texas Code of Criminal Procedure provides the parameters by which a defendant’s bond may be changed and, in pertinent part, states that the judge or magistrate may set a new bond “[w]hen the bond is defective, excessive or insufficient in amount, ... or for any other good and sufficient cause.... ” Tex.Code Crim. Proc. Ann. art. 17.09(3) (Vernon Supp.2009). The purpose of a bond being the assurance of the defendant’s presence in court, the original $50,000 bond could not be considered insufficient inasmuch as Montalvo had not and testified that he could not raise such a sum. As the bond is now set at $100,000, the excessiveness of the original bond is not before us. Moreover, the only new information gleaned from the hearing on the habeas writ was Montalvo’s inability to make the original $50,000 bond and that the police knew that he was not the one who stabbed the decedent. As such, the record is devoid of “any other good and sufficient cause ” to increase the bond and I would hold that the trial court abused its discretion in doubling the bond amount absent of such cause.

I join the portion of the majority’s opinion regarding Montalvo’s second point of error, which pertains to the appointment/withdrawal of appointed counsel. However, for the reasons set forth above, I dissent to the portion of the majority’s opinion regarding Montalvo’s first point of error.

      . Three Montalvo brothers have been identified as suspects involved with the crime. Unless otherwise required by context, references to "Montalvo” in this opinion refer to appellant Gttillermo Montalvo.

      . By describing the evidence offered at the hearing, we express no opinion on the admissibility of any of this evidence in future proceedings in the case. See, e.g., Tex.R. Evid. 101(d)(1)(E) (“These rules, except with respect to privileges, do not apply in ... proceedings regarding bail except hearings to deny, revoke or increase bail....”); Garcia v. State, 775 S.W.2d 879, 880 (Tex.App.-San Antonio 1989, no pet.) (hearsay rule did not apply in habeas corpus proceeding in which reduction of bail was sought); 41 George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice and Procedure § 16.15 (2d ed. 2001) ("Such habeas proceedings are undoubtedly ‘[proceedings regarding bail,' and since they are not within the explicit and limited exceptions of Rule 101(d)(1)(E), the Rules appear not to apply.”). But see Ex parte Graves, 853 S.W.2d 701, 703-04 (Tex.App.-Houston [1st Dist.] 1993, pet. ref'd) ("The Texas Rules of Criminal Evidence apply in both habeas corpus hearings and proceedings to deny bail.” (citing Garcia, 775 S.W.2d at 881)). Moreover, we offer no view on the weight of any evidence discussed herein as it may relate to any future proceedings. See Ex parte Paul, 420 S.W.2d 956, 957 (Tex.Crim.App.1967) (noting policy in habeas corpus appeals relating to bail "to refrain from stating the facts at length and of expressing a conclusion as to the sufficiency of the evidence to show the defendant’s guilt” in order to avoid prejudgment by appellate courts).

      . The Bill of Rights contained within the Texas Constitution provides that "All prisoners shall be bailable by sufficient sureties, unless for capital offenses, when the proof is evident; but this provision shall not be so construed as to prevent bail after indictment found upon examination of the evidence, in such manner as may be prescribed by law.” Tex. Const. art. I, § 11. The Texas Bill of Rights further specifies that "Excessive bail shall not be required....” Id.., art. I, § 13. Montalvo alleged in the trial court that his bail violated his rights under Article I, sections 11, liA, and 13 of the Texas Constitution and Articles 17.031, 17.15, 17.151, and 17.21 of the Texas Code of Criminal Procedure. In his briefing on appeal, however, Montalvo has not offered separate argument or authorities to support a separate analysis on state constitutional grounds, and any such grounds are accordingly waived. See Tex.R.App P. 38.1 (i); Heilman v. State, 815 S.W.2d 681, 690 n. 23 (Tex.Crim.App.1991).

      . Our review of results in recent unpublished cases also supports this conclusion. See Sherman v. State, No. 01-06-00466-CR, 2007 WL 54806 (Tex.App.-Houston [1st Dist.] Jan. 9, 2007, no pet.) (mem. op. not designated for publication) (affirming $250,000 bail for murder charge); Haynes v. State, No. 11-0900135-CR, 2009 WL 2403569 (Tex.App.-Eastland Aug. 6, 2009, no pet.) (mem. op. not designated for publication) (affirming $500,000 bail for murder charge involving a drive-by shooting); Ex parte Wilson, No. 04-08-00553-CR, 2009 WL 330994 (Tex.App.San Antonio Feb. 11, 2009, no pet.) (mem. op. not designated for publication) (affirming $200,000 bail when defendant charged with murder by stabbing during fight provoked by defendant); Ex parte McBride, No. 12-07-00241-CR, 2007 WL 4216370 (Tex.App.-Tyler Nov. 30, 2007, no pet.) (mem. op. not designated for publication) (affirming $250,000 bail for murder charge in which victim was shot in the back eight times). Bail of less than $100,000 for a murder charge has also been approved by courts of appeals in some circumstances. See, e.g., Contreras v. State, No. 07-04-0085-CR, 2004 WL 2578102 (Tex.App.-Amarillo Nov. 12, 2004, no pet.) (mem. op. not designated for publication) (affirming trial court's reduction of pretrial bail in from $200,000 to $50,000); Ex parte Gomez, No. 08-01-00321-CR, 2001 WL 1654978, at *3 (Tex.App.-El Paso Dec. 27, 2001, no pet.) (mem. op. not designated for publication) (reducing bail from $100,000 to $50,000 for mother charged with murder by abandoning newborn child).

      . The State provided three case citations as support for the reasonableness of $100,000 bail in this murder case. One of those cases, Hughes v. State, 843 S.W.2d 236 (Tex.App.Houston [14th Dist.] 1992, no pet.), is not comparable because it involved post-trial bail in a case in which the defendant was convicted of shooting his girlfriend between the eyes. In the other two cases, both of which involved pre-trial bail for a charge of murder, the defendant was a lone actor who was accused of directly committing an act of murder. See Eggleston v. State, 917 S.W.2d 100, 101-03 (Tex.App.-San Antonio 1996, no pet.) (bail reduced from $1,000,000 to $300,000 when defendant was accused of beating his child to death); Mora v. State, 773 S.W.2d 629 (Tex.App.-Corpus Christi 1989, no pet.) ($100,000 bail affirmed when defendant was accused of murdering wife by shooting her in head).

      . See http://www.justex.net/BailBond Schedule.aspx.


source: Caselaw Access Project

author: SHERRY RADACK, Chief Justice.

license: Public Domain

text:
    John Wayne BATES, Appellant, v. The STATE of Texas, Appellee.
    No. 01-08-00580-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    May 6, 2010.

      Greg Neal Russell, Dickinson, TX, for Appellant.
    B. Warren Goodson Jr., Assistant Criminal District Attorney, Galveston, TX, for Appellee.
    Panel consists of Chief Justice RADACK and Justices ALCALA and HIGLEY.
   OPINION

SHERRY RADACK, Chief Justice.

Appellant, John Wayne Bates, challenges the trial court’s order denying his second motion for post-conviction DNA testing. Specifically, appellant claims that the trial court erred by ruling on his motion without first appointing counsel or granting him a hearing. We affirm.

BACKGROUND

In May 1990, appellant was convicted of aggravated sexual assault of a child and his punishment was assessed at confinement for life. This Court affirmed his conviction. See Bates v. State, No. 01-90-00809-CR, 1992 WL 76400 (Tex.App.-Houston [1st Dist.] Apr. 16, 1992, pet. ref d) (not designated for publication.).

In July 2001, appellant filed his first motion for DNA testing under Chapter 64 of the Texas Code of Criminal Procedure, seeking the testing of hairs taken from the complainant and appellant. The trial court appointed counsel for appellant, heard evidence, and then denied appellant’s motion. The trial court’s order stated that appellant had not shown that there was a reasonable probability that appellant would not have been convicted if exculpatory results had been sustained through DNA testing. See Tex.Code Crim. Proc. Ann. art. 64.03(a)(2)(A) (Vernon 2006) (stating that applicant for DNA testing must establish that “the person would not have been convicted if exculpatory results had been obtained through DNA testing”).

Appellant appealed the trial court’s denial of his first motion for DNA testing. This Court affirmed the trial court’s order, holding that “appellant has not proved by a preponderance of the evidence that a reasonable probability exists that he would have been convicted if he were permitted to conduct DNA testing.” In re Bates, 177 S.W.3d 451, 453 (Tex.App.-Houston [1st Dist.] 2005, pet. refd). This Court noted that the outcry witness testified that she had walked in on the complainant and appellant just after the incident had occurred and saw the complainant crying as she sat on the couch with her panties around her ankles. Id. The witness also saw appellant behind a door, pulling up his pants. Id. This Court also noted that the State had stipulated to exculpatory evidence showing that the rape kit conducted on the complainant was negative, but that appellant was convicted anyway. Id. at 454.

In August 2007, appellant filed a second motion for DNA testing, again seeking to have the hairs taken from the complainant and appellant tested. Appellant also filed a motion for appointment of counsel. On April 29, 2008, the trial court denied appellant’s second motion for DNA testing, again noting that the motion “fails to establish by a preponderance of the evidence that [appellant] would not have been convicted if exculpatory results had been obtained through DNA testing[.]” The trial court also denied appellant’s motion requesting appointment of counsel.

Appellant brings two issues on appeal. First, appellant argues that the trial court erred in failing to appoint counsel to represent him in his second motion for DNA testing and on his motion to appoint counsel. Second, appellant argues that the trial court erred in failing to hold hearings on his motion for appointment of counsel and the merits of his second motion for DNA testing. We address each issue respectively.

RIGHT TO APPOINTED COUNSEL

Appellant argues that the law permits successive motions for DNA testing and that he was entitled to a hearing and appointment of counsel because, “since the original charge in 1990 to the present, he has always been found to be indigent and has always been provided court appointed counsel.” Therefore, appellant argues that the trial court erred by refusing to appoint counsel for him.

We agree that Chapter 64 does not prohibit a second, or successive, motions for forensic DNA testing. See Ex parte Baker, 185 S.W.3d 894, 897 (Tex.Crim.App.2006). However, “the entitlement to counsel [in a post-conviction DNA proceeding] is not absolute; it is conditioned on three criteria.” Gutierrez v. State, 307 S.W.3d 318, 320-22 (Tex.Crim.App.2010). First, a defendant must inform the trial court that he or she wishes to submit a motion. Id. Second, the trial court must find that “reasonable grounds” exist for the filing of a motion. Id. Third, the trial court must find that the convicted person is indigent. Id.

The second criteria is relevant in this appeal because the State argues that appellant failed to show reasonable grounds for filing the motion. The statute does not define “reasonable grounds.” However, the San Antonio and Texarkana Courts of Appeals have looked to the requirements of Chapter 64.03 to determine whether reasonable grounds for the filing of a motion have been asserted. In Blake v. State, 208 S.W.3d 693, 695 (Tex.App.-Texarkana 2006, no pet.), the court held that no reasonable grounds existed for the filing of the motion because the trial court had evidence that no biological material still existed, as required by article 64.03(a)(l)(A)(i). In Lewis v. State, 191 S.W.3d 225, 228 (Tex.App.-San Antonio 2006, pet. refd), the court held that no reasonable grounds existed for filing the motion because (1) the trial court had evidence that no biological material still existed, as required by article 64.03(a)(l)(A)(i), and because (2) the court could have reasonably concluded that identity was not an issue in the case, as required by article 64.03(a)(1)(B).'

In addition to the requirements of article 64.03 relied on by Lewis and Blake courts, the statute also requires a person requesting DNA evidence to show that he or she “would not have been convicted if exculpatory results had been obtained through DNA testing.” Tex.Code CRiM. Prog. Ann. art. 64.03(a)(2)(A). To meet this requirement, a convicted person must show that “a reasonable probability exists that exculpatory DNA tests would prove their innocence.” Rivera v. State, 89 S.W.3d 55, 59 (Tex.Crim.App.2002). On appeal from appellant’s first motion for DNA testing, this Court affirmed the trial court’s ruling that appellant could not show that “a reasonable probability exists that he would not have convicted if permitted to conduct DNA testing.” Bates, 177 S.W.3d at 454. Appellant’s second request for DNA testing added nothing to change this holding. Appellant does not argue how analyzing the DNA of the hairs would reasonably prove his innocence, or how it would outweigh the eyewitness testimony of the outcry witness at trial. We are also mindful that the jury convicted appellant, even though it heard evidence that the rape kit was negative for appellant’s DNA. We are unable to see how additional negative DNA evidence regarding the hams would prove his innocence.

In light of this Court’s earlier holding that appellant had failed to meet one of the requirements of article 64.03 and the fact that appellant’s subsequent motion did not add anything to meet this requirement, we hold that the trial court did not err in concluding that appellant had failed to show reasonable grounds for the appointment of counsel.

RIGHT TO A HEARING

Appellant also claims the trial court erred by not holding a hearing on his motion for appointment of counsel and motion for DNA testing. We disagree. The Court of Criminal Appeals has held that article 64.03 does not require a hearing before the trial court determines whether a defendant is entitled to DNA testing. Rivera, 89 S.W.3d at 58-59. The court noted that if the Legislature had intended for a hearing to be mandatory, it could have so specified in the statute, but did not. Id. Similarly, we note that nothing in article 64.01(c) requires a hearing before the trial court determines whether a defendant has met the requirements for the appointment of counsel.

CONCLUSION

We overrule appellant’s issues on appeal and affirm the judgment of the trial court.

      . We note that the same trial court judge considered both appellant’s first and second motions for DNA testing.


author: DIANE M. HENSON, Justice.

text:
    ST. DAVID’S HEALTHCARE PARTNERSHIP, L.P., LLP d/b/a St. David’s Hospital; and St. David’s Community Health Foundation, Appellants, v. Genaro ESPARZA, Jr., Appellee.
    No. 03-09-00734-CV.
    Court of Appeals of Texas, Austin.
    May 13, 2010.

      J. Stephen Dillawn, Germer Gertz Bea-man & Brown, L.L.P., Austin, TX, for Appellants.
    Aaron F. Allison, Allison & Ward, Austin, TX, for Appellee.
    Before Justices PATTERSON, PURYEAR and HENSON.
   OPINION

DIANE M. HENSON, Justice.

St. David’s Healthcare Partnership and St. David’s Community Health Foundation (collectively, “St.David’s”) bring this interlocutory appeal from the trial court’s order denying their motion to dismiss under chapter 74 of the civil practice and remedies code. See Tex. Civ. Prac. & Rem. Code Ann. §§ 74.001-.507 (West 2005 & Supp. 2009). St. David’s alleges that ap-pellee Genaro Esparza, Jr.’s claims for negligence and premises liability are in fact health care liability claims subject to chapter 74, and that St. David’s is entitled to dismissal based on Esparza’s failure to serve an expert report. See id. § 74.351 (West Supp. 2009). We affirm the trial court’s order.

BACKGROUND

In April 2009, Esparza filed suit against St. David’s, bringing claims of premises liability and negligence in connection with injuries he suffered as a result of a fall during a November 2008 hospital stay. According to Esparza’s live pleading, while a patient at St. David’s, he slipped on a transient substance on the floor of his hospital room and injured himself. Espar-za alleged that shortly before his fall, a nurse had used a gelatinous substance to conduct sonogram scans on his abdomen. Esparza then observed the nurse shaking her hands as she walked to the restroom facilities, causing some of the gelatinous substance to fall from her hands to the floor. Esparza further alleged that after the nurse left his room, he got up to go to the restroom and slipped on a substance on the floor, which he believed to be the same gelatinous substance used during his sonogram.

In response to Esparza’s petition, St. David’s filed a motion to dismiss under chapter 74, arguing that Esparza’s negligence and premises liability claims were in fact health care liability claims subject to the statutory requirement that an expert report be served on the parties within 120 days of the petition being filed. See id. (requiring dismissal on motion of defendant health care provider if expert report is not served as required). It is undisputed that Esparza did not serve St. David’s with an expert report in connection with his claims. The trial court denied the motion to dismiss, and this appeal followed.

STANDARD OF REVIEW

Generally, we review a trial court’s order granting or denying a motion to dismiss for failure to timely file a section 74.351(a) expert report under an abuse-of-discretion standard. See Austin Heart, P.A. v. Webb, 228 S.W.3d 276, 279 (Tex.App.-Austin 2007, no pet.). However, when the issue presented is purely a question of law, we apply a de novó standard of review. See Holguin v. Laredo Reg’l Med. Ctr., L.P., 256 S.W.3d 349, 352 (Tex.App.San Antonio 2008, no pet.). Because the issue of whether Esparza’s claims represent health care liability claims is a question of law, we will review the trial court’s ruling de novo. See Lee v. Boothe, 235 S.W.3d 448, 451 (Tex.App.-Dallas 2007, pet. denied).

DISCUSSION

In a single issue on appeal, St. David’s argues that the trial court erred in determining that Esparza’s claims for negligence and premises liability did not constitute health care liability claims. When the essence of a suit is a health care liability claim, a plaintiff cannot avoid the requirements of chapter 74 by recasting his claims as another cause of action. See Garland Cmty. Hosp. v. Rose, 156 S.W.3d 541, 543 (Tex.2004) (applying predecessor statute). The statute defines “health care liability claim” as:

a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care, which proximately results in injury to or death of a claimant, whether the claimant’s claim or cause of action sounds in tort or contract.

Tex. Civ. Prac. & Rem.Code Ann. § 74.001(a)(13) (West 2005). Thus, any alleged departure from accepted standards of medical care, health care, or safety or professional or administrative services “directly related to health care” represents a health care liability claim. Id. In determining whether a claim is a health care liability claim, we look to whether “the act or omission alleged in the complaint is an inseparable part of the rendition of health care services.” Rose, 156 S.W.3d at 544.

Both parties cite to Diversicare General Partner, Inc. v. Rubio, 185 S.W.3d 842 (Tex.2005), in support of their respective positions. In Rubio, the supreme court held that a nursing home resident’s claims based on the nursing home’s failure to protect her from sexual assault by another resident were health care liability claims subject to the predecessor statute to chapter 74. Id. at 849. In reaching this conclusion, the court stated that the nursing home’s supervision of the plaintiff and the resident who assaulted her was “inseparable from the health care and nursing services provided.” Id. After describing the services expected of a nursing home, including the supervision and monitoring of its residents, the court stated, “This dispute between the parties is, at its core, over the appropriate standard of care owed to this nursing home resident; what services, supervision, and monitoring were necessary to satisfy the standard; and whether such specialized standards were breached.” Id. at 850. The court also found it significant that testimony from an expert in the health care field would be necessary to determine the appropriate number, training, and certifications of medical professionals necessary to care for and protect patients from injury by other residents. See id. at 851. We find the present case to be distinguishable from Rubio in that no specialized standard of care is implicated here and no expert testimony would be necessary to prove Espar-za’s claims.

The supreme court revisited the issue of identifying healthcare liability claims in Marks v. St. Luke’s Episcopal Hospital, — S.W.3d — (Tex.2009). In Marks, the court expressly rejected the notion that “any patient injury negligently caused by an unsafe condition at a health care facility” represents a health care liability claim, holding instead that a health care liability claim exists “when the unsafe condition ... is an inseparable or integral part of the patient’s care or treatment.” Id. at - — —. In determining whether a claim is inseparable from the patient’s care or treatment, relevant factors include (1) whether medical expert testimony might be necessary to prove the claim, (2) whether a specialized standard of care in the health care community would apply to the alleged circumstances, and (3) whether the negligent act involves medical judgment related to the patient’s care or treatment. Id. at-. Based on these factors, the court held that a patient’s claim that hospital staff negligently assembled his hospital bed, causing him injury, was not a health care liability claim. Id. at - (“[Wjhen a piece of hospital equipment is unrelated to any professional judgment and is merely incidental to the patient’s care, its alleged unsafe condition does not implicate [the predecessor statute to chapter 74].”).

Similarly, Esparza’s claims involve no professional judgment, require no expert testimony to establish liability, and are merely incidental to his medical care. Despite St. David’s arguments to the contrary, it is immaterial whether the nurse violated a standard of care by using excessive amounts of lubricating gel in performing the sonogram scan, or whether she violated the standard of care for infection control by failing to properly dispose of the gel. Even if the applicable standards of care permitted the use of unlimited amounts of lubricating gel in performing sonogram scans and placed no requirements whatsoever on the proper disposal of substances that come in direct contact with a patient’s body, Esparza could conceivably prove his claims for negligence and premises liability. Furthermore, unlike the plaintiff in Rubio, Esparza was not under the supervision or care of any medical professional at the time he slipped and fell, nor does he allege that the hospital failed to properly monitor and supervise him as a patient. He simply alleges that his injuries were caused by a dangerous condition — the slippery floor. The nurse’s alleged negligence in failing to remedy that dangerous condition required no professional judgment and was merely incidental to the sonogram procedure that she had previously performed. No expert testimony is necessary to establish that slipping and falling on a slippery floor can cause personal injuries. As a result, we hold that Esparza’s claims for negligence and premises liability are not health care liability claims subject to the expert report requirement of chapter 74. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351.

This holding is consistent with similar opinions from our sister courts of appeals. In Harris Methodist Fort Worth v. Ollie, the court held that a hospital patient’s premises liability claim based on her fall on a “slippery wet floor” was not a health care liability claim because the acts of cleaning the floor and failing to warn the patient of its slippery condition were not inseparable from the rendition of medical services and the accepted standards of safety within the health care industry. 270 S.W.3d 720, 726-27 (Tex.App.-Fort Worth 2008, pet. filed). Similarly, the court in Shults v. Baptist St. Anthony’s Hospital Corp., held that a patient’s negligence and premises liability claims based on injuries he sustained from stepping on a sharp paint chip on the hospital bathroom floor were not health care liability claims, stating, “We do not believe that the presence of a sharp paint chip in the shower of Shults’s hospital room could be considered in any way an inseparable part of the medical services rendered to Shults.” 166 S.W.3d 502, 505 (Tex.App.-Amarillo 2005, pet. denied). Finally, in Dual D Healthcare Operations, Inc. v. Kenyon, the court held that claims based on a patient’s fall in a nursing home after workers had stripped and waxed the floors were not health care liability claims because the plaintiff did not allege the breach of any safety standard related to medical care. 291 S.W.3d 486, 489 (Tex.App.-Dallas 2009, no pet.). Es-parza, like the plaintiffs in Ollie, Shults, and Kenyon, has made no allegation that St. David’s breached a safety standard directly related to medical care. As a result, we overrule the point of error raised by St. David’s on appeal and affirm the trial court’s order.

CONCLUSION

We affirm the trial court’s order denying the motion to dismiss.

      . The court noted that under some circumstances, the assembly or use of a hospital bed might involve professional judgment, such as when a patient’s condition calls for side rails or other restraints. Marks v. St. Luke’s Episcopal Hospital, — S.W.3d —, —-— (Tex.2009). In that case, a claim of negligence could potentially be considered a health care liability claim. Id.

      . For that matter, Esparza does not allege that the nurse used an excessive amount of gel in performing the medical procedure. His petition simply states, “The bladder scan imaging test required the use of copious amounts of a gelatinous substance."


author:
TERRY McCALL, Justice.
      RICK STRANGE, Justice, TERRY MeCALL, Justice. RICK STRANGE, Justice,

text:
    M.T.D. ENVIRONMENTAL, L.L.P., Appellant, v. CITY OF MIDLAND, Appellee.
    No. 11-09-00004-CV.
    Court of Appeals of Texas, Eastland.
    May 13, 2010.
    Opinion Denying Rehearing June 24, 2010.

      Jerry D. Caddel, Todd, Barron, Thoma-son & Hudman, P.C., Odessa, for appellant.
    Brian Matthew Catalano, Cotton, Bled-soe, Tighe & Dawson, Keith Stretcher, City Atty., Don Ray Fletcher, Asst. City of Midland, Midland, for appellee.
    Panel consists of WRIGHT, C.J., McCALL, J., and STRANGE, J.
   OPINION

TERRY McCALL, Justice.

M.T.D. Environmental, L.L.P. (MTD) filed this suit against the City of Midland (the City) under the Payment for Goods and Services Act (the Prompt Payment Act). Tex. Gov’t Code Ann. §§ 2251.001-.055 (Vernon 2008). MTD sought payment of an unpaid invoice, alleging that it had completed performance under its contract with the City. The City sought summary judgment on the ground that a release provision in the contract barred MTD’s cause of action for breach of contract. In response, MTD claimed that the release provision was void because Section 2251.004 of the Prompt Payment Act prohibits the waiver of any right or remedy granted under the Act. The trial court granted summary judgment to the City. We reverse and remand.

Background Facts

MTD entered into a contract with the City to grind and haul yard waste materials (e.g., tree limbs) at two locations in Midland County: the Smith Road location and the city landfill. The contract provided that MTD would be paid $12.25 per ton for yard waste ground at both locations and $125 per truckload hauled from the Smith Road location to the city landfill. After MTD completed the work at the Smith Road location, the City paid the invoices that MTD presented. MTD then moved to the city landfill location to finish the mulch grinding there. After completing its grinding at the city landfill, MTD calculated that it had ground 8,213 tons of material. MTD then submitted an invoice to the City requesting payment of $100,609.25.

A dispute arose between MTD and the City over the amount of work actually performed at the city landfill. The City notified MTD of the dispute, and MTD submitted a reduced invoice; however, the parties continued to disagree on the amount of work actually performed and the amount to be paid. As a result, MTD was not paid for the grinding at the city landfill, and it filed this suit.

The City moved for summary judgment on the ground that MTD’s claim for breach of contract was barred because the contract between the parties contained a clause that released any breach of contract claim MTD had or might have in the future against the City. The City asserted that the Prompt Payment Act did not apply to MTD’s claim because there was a bona fide dispute between the parties. To support its motion for summary judgment, the City filed the affidavit of Kay Snyder, Director of Utilities for the City. Snyder stated in her affidavit that, after the work was performed, a dispute arose over the amount of material that MTD ground and that, as a result of the dispute, MTD had not been paid. The City moved for partial summary judgment on the alternative ground that the contract between the parties contained a “Waiver of Attorney Fees” clause that barred MTD’s recovery of attorney’s fees. The trial court granted summary judgment to the City.

MTD presents three issues on appeal: (1) the trial court erred in granting summary judgment because genuine issues of material fact exist; (2) the trial court erred in granting summary judgment on the ground that the Prompt Payment Act does not apply because a bona fide dispute existed between the parties; and (3) the trial court erred in granting summary judgment on the ground that the release and waiver provisions in the contract barred its claim.

Standards of Review

A trial court must grant a traditional motion for summary judgment if the moving party establishes that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991). In order for a defendant to be entitled to summary judgment, it must either disprove an element of each cause of action or establish an affirmative defense as a matter of law. Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997). Once the movant establishes a right to summary judgment, the nonmovant must come forward with evidence or law that precludes summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex.1979). When reviewing a traditional summary judgment, the appellate court considers all the evidence and takes as true evidence favorable to the nonmov-ant. Am. Tobacco Co., 951 S.W.2d at 425; Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548A9 (Tex.1985). The appellate court “must consider whether reasonable and fair-minded jurors could differ in their conclusions in light of all of the evidence presented” and may not ignore “undisputed evidence in the record that cannot be disregarded.” Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755, 757 (Tex.2007). Summary judgments are subject to de novo review.

Interpreting statutes is a legal matter also subject to de novo review. Bragg v. Edwards Aquifer Auth., 71 S.W.3d 729, 734 (Tex.2002). Determining legislative intent is the overriding goal of statutory interpretation. Cont’l Cas. Co. v. Downs, 81 S.W.3d 803, 805 (Tex.2002). We first look to the plain and common meaning of the words used by the legislature. Tex. Gov’t Code Ann. § 311.011 (Vernon 2005); Kroger Co. v. Keng, 23 S.W.3d 347, 349 (Tex.2000). Statutes are interpreted by considering the entire statute, not just disputed provisions. Thomas v. Cornyn, 71 S.W.3d 473, 481 (Tex.App.-Austin 2002, no pet.). Courts must interpret a statute to promote its underlying purpose and the policies it embodies. Nw. Nat’l County Mut. Ins. Co. v. Rodriguez, 18 S.W.3d 718, 721 (Tex.App.-San Antonio 2000, pet. denied).

Whether a release or waiver clause is enforceable or void is also a question of law that appellate courts review de novo. Ranger Ins. Co. v. Ward, 107 S.W.3d 820, 824 (Tex.App.-Texarkana 2003, pet. denied).

The Contract

A release or waiver is an agreement by one party to surrender its own cause of action against the other party. Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 508 (Tex.1993). The contract between MTD and the City contained the following release clause:

10. RELEASE: NOTWITHSTANDING ANY OTHER PROVISIONS, [MTD] HEREBY RELEASES, ACQUITS, RELINQUISHES AND FOREVER DISCHARGES [THE CITY] FROM ANY AND ALL DEMANDS, CLAIMS, DAMAGES AND CAUSES OF ACTION OF ANY KIND WHATSOEVER WHICH [MTD] HAS OR MIGHT HAVE IN THE FUTURE, INCLUDING BUT NOT LIMITED TO BREACH OF CONTRACT, QUANTUM MERUIT.

In the contract, MTD also waived any claim of attorney’s fees:

22. Waiver of Attorney Fees: By executing this Contract, CONTRACTOR AGREES TO WAIVE AND DOES HEREBY WAIVE ANY CLAIM IT HAS OR MAY HAVE AGAINST THE OWNER, REGARDING THE AWARD OF ATTORNEY’S FEES, WHICH ARE IN ANY WAY RELATED TO THE CONTRACT, OR THE CONSTRUCTION, INTERPRETATION OR BREACH OF THE CONTRACT.

Although a release clause generally contemplates claims existing at the time of execution of a contract, a valid release clause may also encompass unknown claims and damages that develop in the future. Keck, Mahin & Cate, Grant Cook v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 20 S.W.3d 692, 698 (Tex.2000).

MTD’s challenge to the validity of the release and waiver provisions in the contract is based on Section 2251.004 of the Prompt Payment Act. Section 2251.004 provides as follows:

A person may not waive any right or remedy granted by this chapter [2251]. A purported waiver of any right or remedy granted by this chapter [2251] is void.

We turn next to an analysis of whether Chapter 2251 granted “any right or remedy” to MTD. Stated another way, did Section 2251.004 apply to void the release and waiver provisions in the contract?

The Prompt Payment Act

The purpose of the Prompt Payment Act is to require governmental entities to make timely payments for goods and services purchased by contract. See generally Sections 2251.001-.055. The Act provides governmental entities with clear guidelines regarding payment of interest. See Sections 2251.025-.027. The Act does not create an independent obligation to pay monies not otherwise owed under a contract. Billy Smith Enters., Inc. v. Hutchison Constr., Inc., 261 S.W.3d 370, 376 (Tex.App.-Austin 2008, pet. dism’d).

The Act contains four subchapters: (1) Subchapter A, entitled “General Provisions”; (2) Subchapter B, entitled “Payments and Interest”; (3) Subchapter C, entitled “Claims and Disputes”; and (4) Subchapter D, entitled “Remedy for Nonpayment.” Subchapter A contains definitions in Section 2251.001. A “[g]overn-mental entity” is defined as “a state agency or political subdivision of this state.” See Section 2251.001(3). The definition of “Political subdivision” includes municipalities, such as the City of Midland. See Section 2251.001(6)(B). Section 2251.002 of Subehapter A contains a number of exceptions to the application of Subchapter B, including the following:

(a)Except as provided by Subchapter D, Subchapter B does not apply to a payment made by a governmental entity ... if:
(1)there is a bona fide dispute between the political subdivision and a vendor, contractor, subcontractor, or supplier about the goods delivered or the service performed that causes the payment to be late.

Section 2251.002(a)(1). The provision prohibiting the waiver of any right or remedy granted by Chapter 2251 is also found in Subchapter A.

Subchapter B grants a right to vendors to receive prompt payment from governmental entities for goods and services provided under contracts. Section 2251.021 sets forth the prompt payment requirement for governmental entities:

(a) Except as provided by Subsection (b), a payment by a governmental entity under a contract executed on or after September 1, 1987, is overdue on the 31st day after the later of:
(1) the date the governmental entity receives the goods under the contract;
(2) the date the performance of the service under the contract is completed; or
(3) the date the governmental entity receives an invoice for the goods or service.

Section 2251.025(a) provides for payment of interest in the event of overdue payments. Section 2251.027 governs payment of interest by political subdivisions. It provides, in part, that a “political subdivision may not require a vendor or subcontractor to agree to waive the vendor’s or subcontractor’s right to interest under this chapter as a condition of the contract between the parties.” See Section 2251.027(e). Because Subchapter B grants vendors a right to receive prompt payment, any purported waiver of that right is void under Section 2251.004.

Subchapter C deals with the resolution of claims and disputes. Section 2251.042, which is entitled “Disputed Payment,” provides as follows:

(a) A governmental entity shall notify a vendor of an error in an invoice submitted for payment by the vendor not later that the 21st day after the date the entity receives the invoice.
(b) If a dispute is resolved in favor of the vendor, the vendor is entitled to receive interest on the unpaid balance of the invoice submitted by the vendor beginning on the date under Section 2251.021 that the payment for the invoice is overdue.
(c) If a dispute is resolved in favor of the governmental entity, the vendor shall submit a corrected invoice that must be paid in accordance with Section 2251.021. The unpaid balance accrues interest as provided by this chapter if the corrected invoice is not paid by the appropriate date.

Section 2251.043, which is also included in Subchapter C, provides for the recovery of attorney’s fees by the prevailing party:

In a formal administrative or judicial action to collect an invoice payment or interest due under this chapter, the opposing party, which may be the governmental entity or the vendor, shall pay the reasonable attorney fees of the prevailing party.

Subchapter D grants remedies to vendors and subcontractors for nonpayment of contracts. Section 2251.051 allows a vendor to suspend performance under a contract with a governmental entity if “the governmental entity does not pay the vendor an undisputed amount within the time limits provided by Subchapter B.” Section 2251.051(a)(1). Before suspending performance, a vendor must comply with the notice requirements in Section 2251.051. See Section 2251.051(a)(2), (b).

Application of Prompt Payment Act to MTD’s Claim

In the contract, MTD released the City from any breach of contract claims. However, based on Section 2251.004, any purported release or waiver by MTD of its right to prompt payment under Subchapter B of the Prompt Payment Act is void. The City presented summary judgment evidence showing that a bona fide dispute existed between it and MTD about the services performed by MTD and that, as a result of the dispute, MTD had not been paid. Because there was a bona fide dispute between MTD and the City, the prompt payment requirement in Subchapter B did not apply to the invoice sent by MTD to the City. See Section 2251.002(a)(1).

Subchapter C addresses the resolution of such disputes between vendors and governmental entities. The attorney’s fees provision in Subchapter C recognizes that “formal administrative or judicial action” may be necessary to resolve a dispute. Section 2251.04B. Thus, implicit in Sub-chapter C is a right of the vendor, such as MTD, to resolve its dispute with a governmental entity, such as the City, in court. The language in Subchapter A supports this conclusion. As stated above, Section 2251.002, which is found in Subchapter A, provides that “[ejxcept as provided by Subchapter D, Subchapter B does not apply to a payment made by a governmental entity ... if there is a bona fide dispute between the political subdivision and a vendor.” However, Section 2251.002 does not state that Subchapter C does not apply in a case involving a bona fide dispute.

Subchapter D does not apply in this case. MTD completed its performance under the contract before sending the disputed invoice to the City.

MTD has a right under Subchapter C to resolve its bona fide dispute with the City in the trial court. Section 2251.004 provides that “[a] person may not waive any right or remedy granted by this chapter” and that “[a] purported waiver of any right or remedy granted by this chapter is void.” Because Subchapter C gives MTD a right to resolve a bona fide dispute with the City, we conclude that the release and waiver provisions in MTD’s contract with the City are void with respect to MTD’s claim under the Prompt Payment Act. Therefore, the trial court erred in granting summary judgment to the City. We hold only that Subchapter C in itself gives MTD the right to resolve its dispute in court. While we are aware that this court can address the issue of governmental immunity on its own, we decline to do so because that issue was neither fully developed below nor briefed in this court. We sustain MTD’s issues.

This Court’s Ruling

We reverse the trial court’s judgment, and we remand this cause to the trial court for a new trial and further proceedings consistent with this opinion.

RICK STRANGE, Justice,

concurring.

I join the court’s judgment but write separately to clarify what I see as the effect of Tex. Gov’t Code Ann. § 2251.004 (Vernon 2008). This provision prohibits waiving “any right or remedy granted by this chapter.” I would, therefore, begin by asking what right or remedy does Chapter 2251 grant to MTD? The court correctly holds that the City demonstrated that a dispute existed and, therefore, that Sub-chapter B does not apply. Because the contract was completed, Subchapter D is also inapplicable. Subchapter A does not purport to provide any right or remedy. Thus, if MTD has a right or remedy that cannot be waived, it must come from Sub-chapter C.

Subchapter C consists of two provisions: Section 2251.042 and Section 2251.043. Section 2251.042(a) requires governmental entities to provide vendors notice of any error in their invoice. MTD contends that the City failed to demonstrate its compliance with this provision. If MTD did not receive the notice to which it was entitled, this provision would not authorize the monetary damages MTD is seeking with this suit. Section 2251.042(a), therefore, does not make MTD’s waiver unenforceable.

The remaining provisions do provide potential monetary relief. Section 2251.042(b) allows vendors to recover interest if a dispute is resolved in their favor. If the dispute is resolved in the governmental entity’s favor, the vendor is entitled to payment on a corrected invoice. Section 2251.042(c). Section 2251.043 allows the prevailing party in a formal administrative or judicial action to recover its attorney’s fees from the losing party. Because vendors have a right to monetary relief when a dispute is resolved in their favor or the right to timely payment when a corrected invoice is submitted, I believe that Section 2251.004 bars blanket waivers of interest or attorney’s fees.

This does not mean that the City has necessarily waived its immunity from suit. See Ben Bolt-Palito Blanco Consol. Indep. Sch. Dist. v. Tex. Political Subdivisions Prop./Cas. Joint Self-Ins. Fund, 212 S.W.3d 320, 324 (Tex.2006) (governmental immunity includes both immunity from suit and immunity from liability). To ensure legislative control over this immunity, courts have recognized that any waiver must be “clear and unambiguous.” McMahon Contracting v. City of Carrollton, 277 S.W.3d 458, 464 (Tex.App.-Dallas 2009, pet. denied).

There is no clear and unambiguous provision within the Prompt Payment Act waiving governmental immunity. See id. at 465. Sections 2251.042(b), (c) and 2251.043 provide remedies following the resolution of a dispute, but each would apply equally well to other types of dispute resolution, such as arbitration. Thus, while I believe that Section 2251.004 prohibits blanket waivers of interest on past-due invoices and attorney’s fees to prevailing parties, I do not believe that Chapter 2251 constitutes a waiver of a municipality’s immunity from suit or that it creates an independent cause of action. Because the majority reasons otherwise by holding that Subchapter C gives MTD the right to resolve its dispute in court, I respectfully submit this concurrence.

MEMORANDUM OPINION ON MOTION FOR REHEARING

TERRY MeCALL, Justice.

In its motion for rehearing, the City of Midland has raised the issue of governmental immunity. This question was not raised on appeal by either party, and the majority opinion only addressed the questions that were raised. As the court stated:

We hold only that Subchapter C in itself gives MTD the right to resolve its dispute in court. While we are aware that this court can address the issue of governmental immunity on its own, we decline to do so because that issue was neither fully developed below nor briefed in this court.

M.T.D. Environmental, L.L.P. v. City of Midland, No. 11-09-00004-CV, 315 S.W.3d 606, 2010 WL 1948319, at *5 (Tex.App.-Eastland May 13, 2010, no pet. h.). The Prompt Payment Act may or may not contain a waiver of governmental immunity from suit. But, that issue was not raised either in the trial court or this court. The first mention of governmental immunity from suit — as far as the contract claim — was in the concurring opinion.

The City has failed to provide either argument or authorities to this court to show why it is entitled to governmental immunity. That issue and the record should be developed in the trial court below. MTD sued for breach of contract. It may be that governmental immunity from suit is waived under Section 271.152 of the Local Government Code. See Tex. Local Gov’t Code Ann. §§ 271.151-.160 (Vernon 2005 & Supp.2009). Does this contract fall under Sections 271.151 and 271.152? If so, does the release provision in the contract between MTD and the City affect any waiver of immunity pursuant to Section 271.152? What is the effect, if any, of Section 271.155 on the provisions of the parties’ contract? Section 2251.004 of the Prompt Payment Act declares that any purported release or waiver of a right to prompt payment under Subchapter B of the Prompt Payment Act is void. What is the effect, if any, of this statute on MTD’s breach of contract claim and the City’s claim of governmental immunity?

On remand, the jurisdictional issue of governmental immunity for MTD’s breach of contract claim and the jurisdictional issue of governmental immunity for MTD’s attorney’s fees claim should be addressed separately.

The motion for rehearing of the City is denied.

RICK STRANGE, Justice,

concurring memorandum opinion on motion for rehearing.

For the reasons stated in my concurring opinion, I respectfully concur in the denial of the City’s motion for rehearing.

      . When the dispute is resolved, Subchapter B will apply to the City’s payment of the amount owed and, therefore, the time period for making payment under Section 2251.021 will begin.

      . Tex. Gov't Code Ann. §§ 2251.001-.055 (Vernon 2008).


author: TERRIE LIVINGSTON, Chief Justice.

text:
    In re Colby Glenn RIGGS, Relator.
    No. 2-10-075-CV.
    Court of Appeals of Texas, Fort Worth.
    May 19, 2010.

      Whitaker, Chalk, Swindle & Sawyer, L.L.P., Bruce L. James & Thomas F. Har-kins, Jr., Fort Worth, TX, for Relator.
    Hunton & Williams LLP, Will S. Montgomery & Kyle A. Owens, Dallas, TX, Loe, Warren, Rosenfield, Kaitcer, Hibbs, Windsor & Lawrence, P.C., Kelcie A. Hibbs, Fort Worth, TX, for Real Parties in Interest.
    Panel: LIVINGSTON, C.J.; DAUPHINOT and McCOY, JJ.
   OPINION

TERRIE LIVINGSTON, Chief Justice.

Relator Colby Glenn Riggs filed a petition for writ of mandamus asking this court to order the Respondent, Steve M. King, Judge of Probate Court No. 1 of Tarrant County to dismiss, upon his notice of nonsuit, Relator’s claims against two of the Real Parties in Interest, Edward D. Jones & Co., L.P. and financial advisor William B. Atkins, III, which the trial court has ordered to arbitration. Relator also requested that this court lift the stay of his remaining claims against Real Parties in Interest Dennis Lee Bailey (“D. Bailey”) — Individually and as Independent Executor of the Estate of Dorothy Alice Riggs, Deceased, and as Co-Trustee of the DAR Revocable Trust, and Pamela Bailey (“P. Bailey”) — Individually, and as Co-Trustee of the DAR Revocable Trust (collectively the “Baileys”). For the reasons that follow, we conditionally grant relief.

On April 21, 2008, Relator filed his original petition in the trial court seeking damages against the Real Parties in Interest primarily arising from the Real Parties’ alleged mismanagement and/or misuse of funds of which Relator is a beneficiary. After answering Relator’s petition, on July 29, 2008, Edward D. Jones and Atkins filed a motion to compel arbitration and a motion to stay proceedings as to the Baileys during the pendency of the arbitration. Relator filed a response to the motion to compel arbitration on January 16, 2009. On February 29, 2009, the trial court signed an order compelling arbitration as to the claims against Edward D. Jones and Atkins and staying the underlying proceedings against the Baileys.

On July 31, 2009, Relator filed a notice of nonsuit, a motion to dismiss without prejudice as to Edward D. Jones and Atkins, and a motion to lift the stay of his claims against the Baileys. The trial court denied Relator’s motions and he filed this original proceeding.

Relator contends that the trial court abused its discretion by denying his motion to dismiss and motion to lift the stay. The trial court’s order does not contain its reasons for denying Relator’s motions.

Under Texas law, a plaintiff has an absolute right to take a nonsuit if the defendant has not made a claim for affirmative relief. Tex. R. Civ. P. 162 ; see also Travelers Ins. Co. v. Joachim, 315 S.W.3d 860 (Tex.2010); Villafani v. Trejo, 251 S.W.3d 466, 468-69 (Tex.2008); BHP Petroleum Co. v. Millard, 800 S.W.2d 838, 840-41 (Tex.1990); Greenberg v. Brookshire, 640 S.W.2d 870, 871 (Tex.1982); Moseley v. Behringer, 184 S.W.3d 829, 833-34 (Tex.App.-Fort Worth 2006, no pet.). To assert a claim for affirmative relief, a defendant must assert a cause of action, independent of the plaintiffs claim, on which he could recover benefits, compensation, or relief. See Gen. Land Office of State of Tex. v. OXY, U.S.A., Inc., 789 S.W.2d 569, 570 (Tex.1990). A request for arbitration of claims — like that made by Edward D. Jones and Atkins here — is not a cause of action independent of the plaintiffs claim, nor one in which the defendant could recover benefits if the plaintiff abandons his or her cause of action; thus, it is not a claim for affirmative relief. See id. If a defendant does nothing more than resist a plaintiffs right to recover, the plaintiff has an absolute right to the non-suit. Id.; Newman Oil Co. v. Alkek, 614 S.W.2d 653, 655 (Tex.Civ.App.-Corpus Christi 1981, writ ref d n.r.e.).

If a defendant has no pending claim for affirmative relief, a trial court’s refusal to grant a nonsuit violates a ministerial duty. Hooks v. Fourth Court of Appeals, 808 S.W.2d 56, 59 (Tex.1991). A nonsuit extinguishes a case or controversy from the moment the motion is filed or when an oral motion is made in open court. See FKM P’ship, Ltd. v. Bd. of Regents of Univ. of Houston Sys., 255 S.W.3d 619, 632-33 (Tex.2008); Univ. of Tex. Med. Branch at Galveston v. Estate of Blackmon ex rel. Shultz, 195 S.W.3d 98, 100 (Tex.2006); Shadowbrook Apartments v. Abu-Ahmad, 783 S.W.2d 210, 211 (Tex.1990); see also Greenberg, 640 S.W.2d at 872.

We hold that the trial court abused its discretion by denying Relator’s motion to dismiss without prejudice the claims against Edward D. Jones and Atkins and Relator’s motion to lift the stay of the Bailey claims. Under the facts of this case, Relator has no adequate remedy at law. See In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-38 (Tex.2004) (orig. proceeding). Accordingly, we conditionally grant Relator’s petition for writ of mandamus. See Tex. R. App. P. 52.8(c). We are confident that the trial court will vacate its January 26, 2010 order and render an order granting (1) Relator’s motion to dismiss without prejudice his claims against Edward D. Jones & Co., L.P. and William B. Atkins, III and (2) Relator’s motion to lift the stay now in effect against Real Parties in Interest, the Baileys, in accordance with this opinion. We instruct our clerk to issue the writ only if the trial court fails to do so.

      . Such a dismissal shall not prejudice an adverse party's right to recover on a claim for affirmative relief or a motion for sanctions, attorney’s fees, or costs. Id.

      . In their response to Relator’s motion, Edward D. Jones and Atkins rely on opinions from two of our sister courts which hold that a claim for arbitration survives the filing of a nonsuit because a claim for arbitration is a claim for relief independent of the plaintiff's causes of action. See Quanto Int’l Co. v. Lloyd, 897 S.W.2d 482, 487 (Tex.App.-Houston [1st Dist.] 1995, orig. proceeding); see also Joe Williamson Constr. Co. v. Raymond-ville ISD, 251 S.W.3d 800, 805-06 (Tex.App.Corpus Christi 2008, no pet.) (citing Quanto, 897 S.W.2d at 487.). We respectfully disagree with the reasoning expressed by our sister courts in Quanto and Joe Williamson. See Gen. Land Office, 789 S.W.2d at 570 (holding that to qualify as a claim for affirmative relief, a defensive pleading must allege that the defendant has a cause of action, independent of the plaintiff's claim, on which he could recover benefits, compensation or relief, even though the plaintiff may abandon his cause of action or fail to establish it); Moseley, 184 S.W.3d at 833-34; Gillman v.

        Davidson, 934 S.W.2d 803, 804-05 (Tex.App.Houston [1st Dist.J 1996, orig. proceeding) (Hedges, J., dissenting); Quanto, 897 S.W.2d at 488 (Hutson-Dunn, J., dissenting). Neither Quanto nor Joe Williamson were reviewed by our higher court and, thus, they are persuasive but not binding on the other intermediate appellate courts of our state. See Aguilar v. Anderson, 855 S.W.2d 799, 810-11 (Tex.App.-El Paso 1993, writ denied).