source: Caselaw Access Project

author: RICK STRANGE, Justice.

license: Public Domain

text:
    Victor Lamar ROBERSON, Appellant, v. STATE of Texas, Appellee.
    No. 11-08-00161-CR.
    Court of Appeals of Texas, Eastland.
    April 1, 2010.

      Tim Copeland, Cedar Park, for appellant.
    Michael E. Fouts, District Attorney, Kristen L. Fouts, District Attorney’s Office, Haskell, for appellee.
    Panel consists of: WRIGHT, C.J., McCALL, J., and STRANGE, J.
   OPINION

RICK STRANGE, Justice.

The jury convicted Victor Lamar Roberson of engaging in organized criminal activity, assessed his punishment at seven and one-half years confinement, and fined him $7,500. We reverse and render a judgment of acquittal.

I. Background Facts

Chief Deputy Sheriff Winston Stephens clocked a vehicle traveling at eighty-nine miles per hour in a seventy mile per hour zone. He pulled the vehicle over and asked the driver for her driver’s license and for proof of insurance. She claimed that she did not have her license with her and, instead, gave Deputy Stephens her name and date of birth. This name did not match any record on file with either the National Crime Information Center or the Texas Crime Information Center. She then gave a second last name that also came back as “no record found.”

There were two passengers in the vehicle. Because the driver could not produce a valid license, Deputy Stephens asked the passengers if they had a valid Texas driver’s license. Both said yes and told him that they would have to get it out of the back of the vehicle. The first passenger produced a license that appeared valid, but the picture, height, and weight did not match him. Roberson was the second passenger and was sitting in the front seat. He gave Deputy Stephens a Texas ID card and a paper license. Deputy Stephens ran this license and was informed that it was invalid. In fact, Roberson did have a valid license. Deputy Stephens could not explain why his search came back invalid.

Deputy Stephens continued talking with the passengers in an effort to determine what was wrong. He had written the driver a ticket, and as soon as he verified that one of the passengers had a valid driver’s license, he originally intended to let them drive away. Deputy Stephens did not smell any marihuana or see any suspicious behavior, but when the driver gave him two false names and neither passenger could produce a valid license, he became suspicious that there was some criminal activity in progress. Deputy Stephens called for a canine officer and told everyone that he intended to let a drug dog walk around the vehicle. If the drug dog alerted, he would search the vehicle. If not, then everyone would be free to go.

The canine officer arrived six minutes later. The drug dog alerted on the front passenger door, and in the subsequent search, Officer Donald Matthew Cunningham of the Haskell Police Department found a seed and marihuana stem. Officer Cunningham also found on the floorboard, near where Roberson had been sitting, a CD case and a briefcase with the name “V. Roberson” on it. A number of checks that were drawn on fictitious banks, several driver’s licenses, and maps to retail stores in or near Abilene, San Angelo, Lubbock, and Amarillo were found in the briefcase. Finally, Officer Cunningham found a billfold in the passenger door pouch with two driver’s licenses and several credit cards issued to Carl Mackey.

II. Issues

Roberson challenges his conviction with two issues. First, he argues that the trial court erred when it did not grant his motion to suppress the evidence. Second, he argues that the evidence is legally and factually insufficient to support his conviction.

III. Motion to Suppress

Roberson alleges that the trial court erred when it refused to grant his motion to suppress because the evidence obtained by Deputy Stephens was the result of an illegal detention and search. We review a trial court’s ruling on a motion to suppress for an abuse of discretion. Wiede v. State, 214 S.W.3d 17, 24 (Tex.Crim.App.2007). We view the record in the light most favorable to the ruling, affording almost total deference to the trial court’s ruling on express or implied determination of historical facts and its application of law-to-fact decisions that are supported by the record and turn on an evaluation of witness demeanor and credibility. Id. All other law-to-fact decisions are reviewed de novo, which includes a trial court’s determination of reasonable suspicion and probable cause. See State v. Ross, 32 S.W.3d 853 (Tex.Crim.App.2000); Guzman v. State, 955 S.W.2d 85, 87 (Tex.Crim.App.1997). The trial court did not make explicit findings of fact. Therefore, we view the evidence in the light most favorable to the trial court’s ruling and assume that the court made implicit findings of fact supported by the record. Ford v. State, 158 S.W.3d 488, 493 (Tex.Crim.App.2005).

For Fourth Amendment purposes, a traffic stop is a seizure and must be reasonable. Sieffert v. State, 290 S.W.3d 478, 482 (Tex.App.-Amarillo 2009, no pet.). The driver and any passengers are considered seized within the meaning of the Fourth Amendment; therefore, any may challenge the legality of the stop and the length and scope of their detention. Brendlin v. California, 551 U.S. 249, 257, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007).

A traffic stop is reasonable if the officer was justified in making the stop and his actions were confined in length and scope to that necessary to fulfill the purpose of the stop. Kothe v. State, 152 S.W.3d 54, 63 (Tex.Crim.App.2004). Roberson concedes that Deputy Stephens was justified in stopping their vehicle. He challenges, instead, the length and scope of the stop. Roberson argues that his continued detention was illegal because Deputy Stephens had neither probable cause nor reasonable suspicion of criminal activity.

Because Deputy Stephens was authorized to stop the vehicle, he was also authorized to request identification, proof of insurance, and vehicle registration; to check for any outstanding warrants; to confirm the vehicle’s registration; and to ask about the purpose of the trip and intended destination. Sieffert, 290 S.W.3d at 483. This authority extended not only to the driver but to the passengers as well. Duff v. State, 546 S.W.2d 283, 286 (Tex.Crim.App.1977). But see St. George v. State, 237 S.W.3d 720, 726 (Tex.Crim.App.2007) (absent reasonable suspicion, officers may conduct only consensual questioning of the passengers in a vehicle). Deputy Stephens’s authority is not, however, without its limits. A traffic stop is temporary and may last no longer than necessary to effectuate its purpose. Kothe, 152 S.W.3d at 63-64. Once this purpose has been satisfied, the stop may not be used as a fishing expedition for unrelated criminal activity. Davis v. State, 947 S.W.2d 240, 243 (Tex.Crim.App.1997).

Roberson’s position is based upon the premise that, because Deputy Stephens had written a ticket, the purpose for the initial traffic stop had been satisfied and, thus, that he was subjected to a continued detention. Roberson then argues that Deputy Stephens had no authority for this continued detention. Roberson’s argument fails because the underlying assumption is inaccurate: the traffic stop’s purpose had not been satisfied. Roberson relies primarily upon St. George. In that case, officers issued the driver a warning ticket and then continued interrogating a passenger. The court held that the officers had no specific articulable facts to believe that the passenger was involved in any criminal activity and, without this, could not continue questioning him regarding his identity or to detain him to check for outstanding warrants. St. George, 237 S.W.3d at 726.

The distinction between that case and this one is that Deputy Stephens had not completed his initial investigation. The driver did not have a valid driver’s license and twice gave him a false identification. Because Deputy Stephens was authorized to check for any outstanding warrants, the continued detention while he attempted to secure her identification was within the permissible scope of the initial stop. His decision to not let her drive away was not unreasonable. Likewise, his insistence on proof of a valid license before releasing the vehicle to either passenger was not unreasonable and was within the scope of the initial stop. Moreover, unlike St. George, there is no indication that Roberson’s actions were nonconsensual. Cf. id. (passenger told officer “[t]he problem is you’re questioning someone who is not even driving a car and just sitting here and she got her ticket and there shouldn’t be any other problem here”).

Deputy Stephens’s decision to request a canine officer was also authorized as part of his traffic stop investigation. He had been given two false names by the driver and a driver’s license by a passenger that did not appear to belong to him, and Roberson produced a driver’s license that was incorrectly reported as invalid. Deputy Stephens’s conclusion that something inappropriate was in progress was not unreasonable, and he was, therefore, authorized to continue his investigation. See Zenos v. State, 15 S.W.3d 146, 151 (Tex.App.-Texarkana 2000, pet. ref'd) (if an officer develops a reasonable suspicion that criminal activity is occurring during a valid traffic stop, a continued detention is justified).

Deputy Stephens testified that, when he was unable to secure a valid driver’s license, he began to suspect that they were transporting drugs. Whether he then acted appropriately is judged by how diligently he pursued a means of investigation that was likely to dispel or confirm his suspicion quickly. Perez v. State, 818 S.W.2d 512, 517 (Tex.App.-Houston [1st Dist.] 1991, no writ). His conduct satisfies this test. The stop was not unnecessarily prolonged because the canine officer arrived within six minutes, and the use of a drug dog was an unobtrusive means of investigating his suspicion. See Illinois v. Caballes, 543 U.S. 405, 409, 125 S.Ct. 834,160 L.Ed.2d 842 (2005) (the use of a well-trained, narcotics-detection dog during a lawful traffic stop generally does not implicate legitimate privacy interests).

The trial court did not abuse its discretion by finding that Deputy Stephens acted appropriately. Because his actions were authorized, the trial court did not err by denying the motion to suppress. Issue One is overruled.

IV. Factual & Legal Sufficiency

Roberson next asserts that the evidence is legally and factually insufficient to support his conviction for engaging in organized criminal activity. To determine if the evidence is legally sufficient, we must review all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Jackson v. State, 17 S.W.3d 664 (Tex.Crim.App.2000). To determine if the evidence is factually sufficient, we must review all the evidence in a neutral light and determine whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence. Watson v. State, 204 S.W.3d 404, 414-15 (Tex.Crim.App.2006).

A person engages in organized criminal activity if he commits or conspires to commit a felony offense with the intent to establish, maintain, or participate in either a combination or the profits of a combination. Tex. Penal Code Ann. § 71.02 (Vernon Supp.2009). The State alleged that Roberson and the two other individuals in the car conspired to commit the offense of forgery and that the overt act of this conspiracy was possession of checks written on a fictitious account. The State’s burden was to show more than the intent to commit forgery or to conspire to commit forgery; the State was required to prove Roberson’s intent to establish, maintain, or participate in a combination. Hart v. State, 89 S.W.3d 61, 63 (Tex.Crim. App.2002). Combination is defined as “three or more persons who collaborate in carrying on criminal activities.” Tex. Penal Code Ann. § 71.01(a) (Vernon 2003).

Direct evidence of the intent to participate in a combination is not required. A jury may infer intent from any facts that tend to prove the combination’s existence, including the alleged member’s words, acts, and conduct and the method of committing the enumerated offense. Manrique v. State, 994 S.W.2d 640, 649 (Tex.Crim.App.1999) (Myers, J., concurring). It is permissible to infer an agreement among a group working on a common project when each person’s action is consistent with realizing the common goal. McGee v. State, 909 S.W.2d 516, 518 (Tex.App.-Tyler 1995, pet. ref'd). But proof of a single ad hoc effort is insufficient. See Smith v. State, 36 S.W.3d 908, 910 (Tex.App.-Houston [1st Dist.] 2001, pet. ref'd) (evidence that defendant was involved in a one-time transaction is insufficient to establish an organized criminal activity). Instead, the combination must intend to engage in a continuing course of criminal activity. Nguyen v. State, 1 S.W.3d 694, 697 (Tex.Crim.App.1999).

The State argues that there was sufficient evidence of a combination because the three individuals possessed numerous forged checks and identifications and because the driver and the other passenger lied about their identities. Clearly, there was substantial evidence implicating Roberson of forgery. In the front of the vehicle where Roberson was sitting, the officers found a briefcase (with Roberson’s name on it), a CD case, and a wallet with forged checks, driver’s licenses, credit cards, and maps and directions to more than 150 retail stores. There was some evidence connecting the other passenger (who was ultimately identified as Robert Lee Hall) to seized material. Hall gave Deputy Stephens a driver’s license with the name Shawn Rowan. Several of the checks were made payable to Shawn Rowan. But there was no evidence connecting the driver to any of the checks, credit cards, or IDs. The driver’s real name is Shawna Monique Baines. Initially, Baines told Deputy Stephens that her last name was Bennett. Later, she told him that her last name was Brooks. These names were not on any of the seized material. The officers found several checks made payable to Mary Lou Sheppard and identification for a Mary Lou Sheppard. They were found in the briefcase and CD case near Roberson, and there is no evidence that Baines ever used this name.

Equally clear is the fact that the State produced considerable evidence that all three individuals were engaged in criminal activity. Baines twice gave Deputy Stephens a false name even though she had no active warrants. Hall provided someone else’s driver’s license; and, as noted, Roberson possessed several forged items. But multiple criminal acts, without more, does not establish a combination engaged in organized criminal activity. See Arredondo v. State, 270 S.W.3d 676, 682 (Tex.App.-Eastland 2008, no pet.).

Furthermore, Section 71.01’s legislative history makes clear that evidence of a conspiracy by three or more to commit a felony is insufficient to establish a combination. Arredondo, 270 S.W.3d at 682. Section 71.01 was originally drafted by the Senate with the current definition of combination except that it required five members rather than three. The House proposed defining combination as five or more people who engage in a criminal conspiracy as defined by Tex. Penal Code Ann. § 15.02(a), (b) (Vernon 2003). A conference committee rejected this definition in favor of the Senate version. Id. at 682-83. The Court of Criminal Appeals has held, therefore, that this requires proof of more than a three-person conspiracy but requires proof of a combination working together in a continuing course of criminal activities. Nguyen, 1 S.W.3d at 697.

We recognize the practical problems the State faces because direct evidence of a combination may be unavailable. That is why an agreement may be inferred and why courts have found sufficient evidence based upon proof of coordinated action. See, e.g., Dowdle v. State, 11 S.W.3d 233, 236-37 (Tex.Crim.App.2000) (combination was shown when multiple individuals participated in a well-planned burglary, met after the burglary to discuss further plans, combined separate loads of stolen property, and then traveled to another location to locate the stolen property and incriminating evidence); Barber v. State, 764 S.W.2d 232, 236-37 (Tex.Crim.App.1988) (combination existed when the defendants obtained operating capital, leased property, purchased trucks, hired drivers, opened bank accounts, and made arrangements to sell stolen oil); State v. Mauldin, 63 S.W.3d 485, 489 (Tex.App.-Tyler 2001, pet. ref'd) (agreement could be inferred from a coordinated interstate effort to deliver a large amount of cocaine over 1,500 miles); Mayfield v. State, 906 S.W.2d 46, 50-51 (Tex.App.-Tyler 1995, pet. ref'd) (combination was shown when the evidence indicated a well-orchestrated scheme involving multiple levels of dealers, transfers of drugs and cash between them, and a central source of supply).

While there was considerable evidence establishing Roberson’s guilt of forgery and some evidence implicating Hall, there was no evidence connecting Baines to a combination working together in a continuing course of criminal activity. Section 71.01(a) requires proof of three or more persons to establish a combination. The evidence, therefore, is legally insufficient to support Roberson’s conviction for engaging in organized criminal activity, and Issue Two is sustained.

V. Holding

The judgment of the trial court is reversed, and judgment is rendered acquitting Roberson of the charged offense.

      . The record does not indicate whether she produced proof of insurance or to whom the vehicle belonged.


author: WILLIAM J. BOYCE, Judge.

text:
    WOODWAY DRIVE LLC a/k/a First Reliance Metering LP, Appellant, v. HARRIS COUNTY APPRAISAL DISTRICT, Appellee.
    No. 14-09-00340-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    April 8, 2010.

      Hugh L. McKenney, Houston, for appellant.
    Tammy White-Chaffer, Houston, for ap-pellee.
    Panel consists of Chief Justice HEDGES and Justices YATES and BOYCE.
   OPINION

WILLIAM J. BOYCE, Judge.

Woodway Drive LLC a/k/a First Reliance Metering LP appeals from the trial court’s order granting the plea to the jurisdiction filed by Harris County Appraisal District (“HCAD”). We affirm.

I. Factual and Procedural Background

The property at issue is a 1.691 acre tract of land in the John D. Taylor Survey, Abstract No. 72, in Harris County, Texas. By deed dated December 14, 2006, First Reliance Metering, LP (“First Rebanee”) conveyed the subject property to Woodway Drive, LLC (“Woodway”). Despite this conveyance, First Rebanee filed a notice of protest with HCAD’s Appraisal Review Board protesting the 2007 tax assessment for the property. On August 2, 2007, HCAD issued an order denying the protest to First Reliance’s agent, O’Connor & Associates.

On September 13, 2007, First Reliance appealed this decision by filing an original petition in the trial court challenging the Review Board’s determination. On February 18, 2009, First Reliance filed an amended petition adding Woodway as a plaintiff. At the same time, it filed a motion to substitute the true party pursuant to Texas Rule of Civil Procedure 28. On February 20, 2009, HCAD filed a plea to the jurisdiction arguing that the trial court lacked subject matter jurisdiction because First Reliance was not the owner of the property as of January 1, 2007, and only the property owner had standing to appeal from the Review Board’s order. Woodway, the property owner, failed to timely appeal. On March 11, 2009, the trial court granted HCAD’s plea to the jurisdiction and dismissed the case. This appeal followed.

II. Standard of Review

We review a trial court’s ruling on a plea to the jurisdiction de novo. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004). In our review, we construe the pleadings liberally in favor of the pleader and look to the pleader’s intent to determine whether the facts abeged affirmatively demonstrate the trial court’s jurisdiction to hear the cause. See id.

Standing is a component of subject-matter jurisdiction that cannot be waived. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445-46 (Tex.1993). If a party does not have standing, a trial court has no subject-matter jurisdiction to hear the case. Id. at 444-45. A trial court’s jurisdiction to hear the subject matter of a dispute may be challenged by filing a plea to the jurisdiction. See Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000).

A defendant may prevail on a plea to the jurisdiction by demonstrating that, even if all the plaintiff’s pleaded allegations are true, an incurable jurisdictional defect remains on the face of the pleadings that deprives the trial court of subject-matter jurisdiction. Harris County Appraisal Dist. v. O’Connor & Assocs., 267 S.W.3d 413, 416 (Tex.App.-Houston [14th Dist.] 2008, no pet.). In determining a plea to the jurisdiction, a trial court may consider the pleadings and any evidence pertinent to the jurisdictional inquiry. Bland, 34 S.W.3d at 554-55.

III. Analysis

In one issue, appellant asserts that the trial court erred in granting the plea to the jurisdiction. Specifically, appellant contends that it timely amended its petition to include Woodway as a party pursuant to section 42.21(e)(1) of the Texas Tax Code and Texas Rule of Civil Procedure 28.

A. Standing

This court recently addressed both arguments in BACM 2002 PB2 Westpark Dr. LP v. Harris County Appraisal District, No. 14-08-00493-CV, 2009 WL 2145922 (Tex.App.-Houston [14th Dist.] June 21, 2009, no pet.) (mem. op.), and we reach the same outcome here.

As a general rule, only a property owner may protest tax liability before an appraisal-review board and seek judicial review in court. Toumeau Houston, Inc. v. Harris County Appraisal Dist., 24 S.W.3d 907, 909 (Tex.App.-Houston [1st Dist.] 2000, no pet.). Section 42.21(a) of the Property Tax Code requires a party who appeals as provided by Chapter 42 of the Property Tax Code to timely file a petition for review with the district court. Failure to timely file a petition bars any appeal under the chapter. Tex. Tax Code Ann. § 42.21(a) (Vernon Supp. 2009). Section 42.01 of the Tax Code specifies that a property owner is entitled to appeal an order of the appraisal review board determining a protest by the property owner as provided by sections 41.41 et seq. of the Property Tax Code. Id. § 42.01(1)(A). Alternatively, a property owner may designate a lessee or an agent to act on the property owner’s behalf for any purpose under the Property Tax Code, including filing a tax protest. Id. §§ 1.111 (Vernon 2008) (authorizing a designated lessee or agent to act for a property owner), 41.413(b) (Vernon 2008) (authorizing a lessee to protest for the property owner in certain circumstances).

Therefore, to qualify as a “party who appeals” by seeking judicial review of an appraisal-review board’s tax determination under section 42.21(a), appellant had to be an owner of the property, a designated agent of the owner, or the authorized lessee of the property under the circumstances stated in section 41.413. A party who does not meet one of the above criteria would lack standing under the Property Tax Code. BACM, 2009 WL 2145922, at *3. If the litigant lacks standing, the trial court is deprived of subject-matter jurisdiction to consider a suit for judicial review based on an ad valorem tax protest. Id.

Here, First Reliance did not own the property as of January 1, 2007. It did not claim rights to protest under the Property Tax Code as either a lessee or an agent. Therefore, First Reliance lacked standing to pursue judicial review as a “party who appeals” under section 42.21(a). The record does not reflect that Woodway pursued its right of protest as the actual property owner. According to the record, Woodway was not named as a party until February 18, 2009, when a First Amended Original Petition was filed. Therefore, the Review Board had not determined a protest by the actual property owner, Wood-way, upon which it would then premise a right to appeal as the property owner. See Tex. Tax Code Ann. §§ 42.01(1)(A), 42.21(a); BACM, 2009 WL 2145922, at ⅜4.

B. Application of Section 42.21(e)(1)

Appellant also contends that the trial court had jurisdiction because section 42.21(e)(1) allows amendment of a timely filed petition “to correct or change the name of a party.” See Tex. Tax Code Ann. § 42.21(e)(1); BACM, 2009 WL 2145922, at *5. We disagree, for the same reasons announced in BACM.

Section 42.21(e) specifies that only petitions that are “timely filed under Subsection (a) or amended under Subsection (c)” may later be amended to correct or change a party’s name. See Tex. Tax Code Ann. § 42.21(e)(1). To seek judicial review under Subsection (a), the plaintiff must be a “party who appeals as provided by [Chapter 42],” meaning the plaintiff must be the property owner, a properly designated agent, or a lessee. Id. § 42.21(a).

First Reliance filed a timely appeal; however, it did not own the property on January 1, 2007, and thus lacked standing to seek judicial review. See BACM, 2009 WL 2145922, at *5. Appellant’s argument that subsection 42.21(3)(1) operates to allow it to correct or change the party’s name presupposes that Woodway was a proper party entitled to seek judicial review. Id. However, Woodway did not pursue its right to protest as the property owner. When no proper party timely appealed to the district court, the trial court did not acquire subject matter jurisdiction, and the Review Board’s determination became final. See id.

C. Application of Texas Rule of Civil Procedure 28

Appellant also argues that the trial court had jurisdiction to hear the case because Texas Rule of Civil Procedure 28, which governs suits by or against entities doing business under an assumed name, permits substitution of Woodway as First Reliance’s “true name.” Rule 28 states: Any partnership, unincorporated association, private corporation, or individual doing business under an assumed name may sue or be sued in its partnership, assumed or common name for the purpose of enforcing for or against it a substantive right, but on a motion by any party or on the court’s own motion the true name may be substituted.

Tex.R. Civ. P. 28.

In this case, First Reliance attempted to substitute its purported “true name” Woodway by filing an amended original petition and arguing Rule 28 permitted the substitution. For a party to take advantage of Rule 28 and sue in its common name, there must be a showing that the named entity is in fact doing business under that common name. Seidler v. Morgan, 277 S.W.3d 549, 553 (Tex.App.-Texarkana 2009, pet. denied). Whether an entity does business under an assumed or common name is a question of fact for the trial court. Sixth RMA Partners, L.P. a/k/a RMA Partners, L.P. v. Sibley, 111 S.W.3d 46, 52 (Tex.2003).

Appellant did not make a showing that Woodway was in fact doing business under the common name First Reliance, nor was there evidence that Woodway used First Reliance as a common name to warrant application of Rule 28. Compare Sixth RMA Partners, 111 S.W.3d at 52 (concluding evidence supported assumed-name finding when Sixth RMA presented evidence that RMA Partners, L.P. was used as trade name for various RMA partnerships, RMA letterhead was used, and payments on notes were made to RMA) and Chilkewitz v. Hyson, 22 S.W.3d 825, 829 (Tex.1999) (stating some evidence supported application of Rule 28 when stationery and phone-number listing used by one-person professional association contained name of individual).

IV. Conclusion

We overrule appellant’s sole issue and affirm the trial court’s judgment.

      . Appellant’s pleadings and notice of appeal identify both HCAD and the Harris County Appraisal Review Board as defendants. Because the record does not indicate that the Appraisal Review Board was served or appeared in the suit and it was not a necessary party, HCAD is the only appellee properly before this court. See BACM 2002 PB2 West-park Dr. LP v. Harris County Appraisal Dist., 14-08-00493-CV, 2009 WL 2145922 at *1, n. 1 (Tex.App.-Houston [14th Dist.] June 21, 2009, no pet.) (mem. op.).

        . See also Woodway Drive LLC v. Harris County Appraisal Dist., No. 14-09-00524-CV, 2010 WL 724174 (Tex.App.-Houston [14th Dist.] Mar. 4, 2010, no pet. h.) (mem. op.); Scott Plaza Assoc., Ltd. v. Harris County Appraisal Dist., No. 14-09-00707-CV, 2010 WL 724189 (Tex.App.-Houston [14th Dist.] Mar. 4, 2010, no pet. h.) (mem. op.); SWP Remic Prop. II LP v. Harris County Appraisal Dist., No. 14-08-00425-CV, 2010 WL 26524 (Tex.App.-Houston [14th Dist.] Jan. 7, 2010, no pet.) (mem. op.); Skylane West Ltd. v. Harris County Appraisal Dist., No. 14-08-00507-CV, 2009 WL 4913256 (Tex.App.-Houston [14th Dist.] Dec. 22, 2009, no pet.) (mem. op.); DL Louetta Village Square LP v. Harris County Appraisal Dist., No. 14-08-00549-CV, 2009 WL 4913259 (Tex.App.-Houston [14th Dist.] Dec. 22, 2009, no pet.) (mem. op.).

      . Appellants do not argue that Subsection (c) applies to this case.

      . Although appellant cites HCAD’s records that reflect First Reliance as the property owner even after the property sale, HCAD’s records alone are not sufficient to establish Woodway operated its business under the common name of First Reliance. See KM-Timbercreek, LLC v. Harris County Appraisal Dist., 312 S.W.3d 722, 731 (Tex.App.-Houston [1st Dist.] 2009, no pet.) (stating that only Timbercreek could establish whether it operated its business under an assumed or common name). There is no evidence that Woodway held itself out as First Reliance or requested HCAD refer to it as First Reliance in its records. See id.


author: DAVID PURYEAR, Justice.

text:
    C.C. CARLTON INDUSTRIES, LTD. and KB Homes Lone Star, L.P., Appellants, v. Kirk BLANCHARD, Tina Blanchard, Aleyda B. Sosa, and Maribel Rivera, Appellees.
    No. 03-07-00688-CV.
    Court of Appeals of Texas, Austin.
    April 9, 2010.
    Rehearing Overruled May 4, 2010.

      Carla Garcia Connolly, Connolly & Cas-tagna, LLP, Austin, TX, for Appellant.
    Amanda G. Taylor, Hohmann, Taube & Summers, LLP, Austin, TX, for Appellee.
    Before Justices PATTERSON, PURYEAR and HENSON.
   OPINION

DAVID PURYEAR, Justice.

Kirk Blanchard, Tina Blanchard, Aleyda B. Sosa, and Maribel Rivera (“Homeowners”) filed suit in district court against C.C. Carlton Industries, Ltd. (“Carlton”) and KB Homes Lone Star, L.P. (“KB”), seeking to recover monetary damages they alleged they suffered as a result of KB’s and Carlton’s construction activities that created a nuisance behind their residences. A jury returned a verdict finding KB and Carlton liable for nuisance and awarding the Homeowners collectively $200,988 in damages. KB and Carlton have appealed the court’s judgment entered in accordance with the verdict. We will affirm the trial court’s judgment.

BACKGROUND

The Homeowners are neighbors whose residences are contiguous and who live in southeast Austin on Bixler Drive off of William Cannon Drive behind Salt Springs Road. Beginning in August 2004, KB, a homebuilder and developer, and Carlton, a general contractor, began constructing a new 550-home subdivision along Salt Springs Road known as “Springfield Phase B, Section 6” (“the Project”). The Project included tearing up and widening Salt Springs Road, adding curbs and sidewalks, grading and preparing the land for home sites, removing a large number of trees, adding residential streets, installing sewer and utility lines, and constructing a storm-drainage culvert and retention pond. In connection with those activities, Carlton used heavy equipment for bulldozing, pounding, and steam-rolling the land; laying and tearing up asphalt; and digging through layers of hard clay and limestone.

In constructing the storm-drainage culvert, Carlton worked in close proximity to the Homeowners’ properties and used heavy machinery to excavate through 12 to 13 feet of limestone and hard clay. Although construction of the culvert and installation of a 48-inch pipe was to have been completed in five months beginning in August 2004, Carlton took almost another three months to finish the job. The culvert was not completed until sometime in March or April 2005.

Rivera’s house was closest to the construction activity, then Sosa’s, then the Blanchards’ house. From approximately August to November 2004, Carlton’s crews worked steadily, from early morning until about six in the evening for at least five days a week, constructing the storm-drainage culvert. In September 2004, the Blanchards began noticing the front facade separating from the rest of the house and cracks appearing on the house’s exterior foundation; Rivera, whose house was about 20 feet from the construction activity, observed cracks in her house and mud being sprayed on her exterior walls; and Sosa started noticing a large crack in the front entrance of her house. Because of Carlton’s construction activities carried out adjacent to their houses, the Homeowners testified they experienced pounding and persistent and intense vibrations that rattled their walls and windows.

In December 2004, however, the Homeowners stated the situation became worse. Carlton’s crews began working “around the clock,” including weekends and holidays, to finish the job because they had fallen behind schedule. They brought in three or four large bright lights and positioned them directly behind the Homeowners’ residences so the crews could continue working until 1:00 in the morning. The lights, the vibrations, the pounding, and the noise were so annoying and stressful that the Homeowners lost sleep.

The Blanchards testified their house now has a crack in the foundation that runs the full length of the house; the roof has begun to leak because the joists have been “rattled off the studs”; the ceiling has separated from the walls and is cracking; the kitchen has sunk, causing the floor tiles to pop up; and all the bathroom tubs “lifted up” and separated from the pipes. Rivera stated her ceilings, wall, and foundation are now cracked; the bathroom ceiling has fallen and damaged the faucet and tiles on the wall; her ceilings have separated; and she has water damage on the ceilings from roof leaks. Sosa testified she now has cracks in the living room and kitchen and large cracks in the foundation and ceiling; the roof is leaking and the ceiling is falling; a pipe under the bathtub burst, causing water damage in the bedrooms and kitchen; and the bathroom floor has a large crack.

DISCUSSION

Expert Testimony of Oran Venable

In their first issue, KB and Carlton complain the trial court abused its discretion in denying their motion to strike Oran Venable as an expert witness on the issue of causation. They argue Venable was unqualified by knowledge, education, training, or experience to render scientific opinions. Because Venable was not an engineer, KB and Carlton contend he was unqualified to give his opinion regarding any damage to the Homeowners’ residences caused by the impact of construction-equipment vibrations and subsequent shockwaves.

A witness may be qualified by knowledge, skill, experience, training, or education to testify as an expert. See Tex.R. Evid. 702. A trial court’s acceptance of a witness’s qualifications as an expert is reviewed for an abuse of discretion. Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 718-19 (Tex.1998). A court abuses its discretion when it determines the admissibility of evidence in an arbitrary or unreasonable manner or without reference to guiding principles or rules. Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 687 (Tex.2002); Taylor v. Texas Dept, of Protective & Regulatory Servs., 160 S.W.3d 641, 649 (Tex.App.-Austin 2005, pet. denied). An appel late court must uphold a trial court’s evi-dentiary ruling if there is any legitimate basis to support it. Owens-Coming Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex.1998).

The record shows that Venable had thirty-five years’ experience related to construction, damage, and repair of residential and commercial property, much of which involved the investigation and repair of foundation failure. He was a licensed master plumber and property inspector, licensed by the Texas Real Estate Commission, who owned a real-estate inspection and remodeling business. He had performed investigations for an insurance company to determine whether vibrations resulting from construction activity caused damage to a house and its plumbing system and, because of his previous experience inspecting and investigating damage to other houses in the neighborhood, he was familiar with the geology of the area, that is, its strata of hard clay, sand, and limestone. To further understand vibration and wave analysis, he had consulted learned treatises and other published works by engineers and people involved in construction. Venable also had personal experience operating such heavy equipment as a back-hoe, a hoe ram, a compactor, and a grader. Based on Venable’s knowledge, skill, experience, and training, the trial court could have rationally determined that Venable was qualified to testify as an expert on the issue of causation.

We find that the trial court did not abuse its discretion in accepting Venable’s qualifications as an expert witness and in denying KB’s and Carlton’s motion to strike. KB’s and Carlton’s first issue is overruled.

Sufficiency of the Evidence

KB and Carlton next assert that the jury’s finding of nuisance is not supported by either legally or factually sufficient evidence. The jury was charged to find whether the conduct of Carlton or KB created a nuisance that proximately caused damage to the Blanchards’ home, Rivera’s home, and Sosa’s home. “Nuisance” was defined as “a condition that substantially interferes with the use and enjoyment of property.” “Proximate cause” was defined as follows:

[T]hat cause which, in a natural and continuous sequence, produces an event, and without which cause such event would not have occurred. In order to be a proximate cause, the act or omission complained of must be such that a person using ordinary care would have foreseen that the event, or some similar event, might reasonably result therefrom.

The jury answered “yes”: both Carlton’s and KB’s conduct created a nuisance that proximately caused damage to the Homeowners’ homes.

In reviewing the legal sufficiency of the evidence, this Court must view the evidence in the light most favorable to the verdict, crediting favorable evidence if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. City of Keller v. Wilson, 168 S.W.3d 802, 807 (Tex.2005). Every reasonable inference must be indulged in the prevailing party’s favor. St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 519 (Tex.2002). There is legally insufficient evidence or “no evidence” when the record reveals one of the following situations: (a) a complete absence of evidence of a vital fact; (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no more than a mere scintilla; or (d) the evidence establishes conclusively the opposite of the vital fact. City of Keller, 168 S.W.3d at 810; Ancira Enters., Inc. v. Fischer, 178 S.W.3d 82, 87 (Tex.App.-Austin 2005, no pet.).

In reviewing an assertion that the evidence is factually insufficient, this Court must consider all the evidence in the record, including any evidence contrary to the judgment. Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex.1989). Inferences may support a judgment as long as they are reasonable in light of all the evidence. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996) (per curiam). A jury verdict should be set aside only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986) (per curiam); Dyson v. Olin Corp., 692 S.W.2d 456, 457 (Tex.1985).

“A ‘nuisance’ is a condition that substantially interferes with the use and enjoyment of land by causing unreasonable discomfort or annoyance to persons of ordinary sensibilities.” Schneider Nat’l Carriers, Inc. v. Bates, 147 S.W.3d 264, 269 (Tex.2004); Graham v. Pirkey, 212 S.W.3d 507, 511 (Tex.App.-Austin 2006, no pet.). “There is no question that foul odors, dust, noise, and bright lights — if sufficiently extreme — may constitute a nuisance.” Schneider, 147 S.W.3d at 269. Courts have broken actionable nuisance into three categories: (1) negligent invasion of another’s interests; (2) intentional invasion of another’s interests; or (3) other conduct, culpable because abnormal and out of place in its surroundings, that invades another’s interests. City of Tyler v. Likes, 962 S.W.2d 489, 503 (Tex.1997).

KB and Carlton argue the Homeowners presented no evidence that Carlton’s conduct was abnormal and out of place. They claim their construction project was “a typical residential development project,” required and directed by the City of Austin, and that expansion and improvement of an existing road and construction of a retention pond and drainage culvert were normal occurrences. Because the City of Austin approved KB’s and Carlton’s engineering plans, gave KB and Carlton a permit to construct the public improvements, and inspected the project while all the improvements were being constructed, KB and Carlton assert their conduct was normal and not out of place in its surroundings.

We initially note the jury charge did not set out the categories of actionable nuisance but only broadly defined “nuisance” as set forth above. Although during the charge conference KB and Carlton neglected to argue the charge did not set out those categories, the Homeowners do not now assert that KB’s and Carlton’s failure to object to the jury charge waived error regarding this point.

The record, however, demonstrates sufficient evidence to support the jury’s findings of nuisance and a determination that Carlton’s conduct was abnormal and out of place in its surroundings. For almost eight months, Carlton’s crew worked to construct the storm-drainage culvert, using heavy equipment to excavate through 12 to 13 feet of limestone and hard clay. The record shows that this construction activity occurred approximately 20 feet from Rivera’s house and in close proximity to Sosa’s and the Blanchards’ residences, which are contiguous to Rivera’s house. Vibrations from KB’s and Carlton’s construction project caused each Homeowners’ residence to experience large cracks in the foundation, leaks in the roof, and cracks in the interior and exteri- or walls. Vibrations also caused the following: the Blanchards’ house to have broken floors and their bathroom tubs to separate from the pipes; Rivera’s bathroom ceiling to fall; and Sosa’s master bedroom, kitchen, and guest bathroom to have water damage from broken pipes. When it became apparent that it had fallen behind schedule and would have to pay KB $1,000 a day in liquidated damages for the delay, Carlton brought in three or four large, bright lights, positioned them directly behind the Homeowners’ residences, and began working “around-the-clock” for approximately four months, including weekends and holidays, to finish the job. Annoyed and stressed from the lights, the vibrations, the pounding, and the noise, the Homeowners testified they lost sleep.

Regarding KB’s and Carlton’s assertion they were insulated from nuisance liability because they held a city permit, we note that, even if a commercial enterprise holds a valid permit to conduct a particular business, the manner in which it performs its activity may give rise to an action for nuisance. See Manchester Terminal Corp. v. Texas TX TX Marine Transp., Inc., 781 S.W.2d 646, 650 (Tex.App.-Houston [1st Dist.] 1989, writ denied).

KB and Carlton also contend the Homeowners did not prove that KB’s and Carlton’s construction activities proximately caused property damage to their houses. KB and Carlton argue that Venable, the Homeowners’ only expert, failed to establish a scientific nexus between their construction activities and the damages complained of by the Homeowners. They claim Venable neglected to explain how vibrations from a particular piece of Carlton’s construction equipment traveled directly through the earth and impacted each Homeowner’s foundation.

The record shows that, in the month before KB and Carlton began the construction project, the Blanchards had a home inspection performed in connection with the refinancing of their mortgage. The inspector confirmed that the Blanch-ards’ house was in excellent condition and exhibited no problems. Both Rivera and Sosa stated their houses were in perfect condition prior to KB’s and Carlton’s construction activities. Yet, a month after Carlton began constructing the storm-drainage culvert, all the Homeowners noticed cracks in their foundations and then, later, cracks in their ceilings and interior and exterior walls, as well as other damage.

Venable determined that the "vibrations and shockwaves from KB’s and Carlton’s construction activity caused each of the Homeowners’ residences to suffer foundation movement that, in turn, caused the foundations and exterior and interior walls of the houses to crack and their plumbing systems to leak. In reaching this opinion, he conducted an investigation in which he initially spent approximately 12 hours interviewing the Homeowners, inspecting the damage to their residences, taking numerous photographs, and conducting plumbing-leak-detection tests. He later conducted follow-up inspections of all three houses. Venable reviewed approximately 8,000 pages of documents supplied by Carlton regarding the equipment it used in its construction activities, and he had discussions with engineers and operators of that type of equipment to determine whether the use of such equipment could cause vibrations sufficiently intense to damage the Homeowners’ houses. He measured the distances from the Homeowners’ residences to Carlton’s construction site so that he could understand the proximity in which the vibrations and pounding from the “breaking rock” were occurring. In addition, Venable ruled out other potential causes of the property damage suffered by the Homeowners, such as improper maintenance, blasting, fault movement, normal settling, tree roots, drainage problems, and moisture or plumbing leaks.

KB and Carlton contend their expert, Kirby Meyer, a civil engineer specializing in geotechnical engineering, testified that the damages to the Homeowners’ residences were not reflective of the types associated with vibration effects. Meyer noted that the clay soils supporting the Homeowners’ residences are “highly reactive,” that is, those soils have the ability to expand or shrink with the change of water content caused by bad drainage, plumbing leaks, or trees pulling moisture out of the soil. In his opinion, the Homeowners’ houses were not damaged by vibrations because, in his inspection of their houses and examination of Venable’s photographs of the cracks in the Homeowners’ residences, he saw no evidence of the “X-shaped” cracking patterns associated with the effects of vibration. The record shows, however, that Meyer spent less than five minutes inside the Blanchards’ house, only three minutes inside Sosa’s house, and never went inside Rivera’s house.

When testimony is conflicting, it is for the jury to determine which witness is more credible. Dillard Dep’t Stores, Inc. v. Silva, 148 S.W.3d 370, 372 (Tex.2004); Jones v. Tarrant Util. Co., 638 S.W.2d 862, 866 (Tex.1982). Venable was qualified as an expert witness on the issue of causation, and the jury obviously found him more credible than Meyer.

Viewing the evidence in the light most favorable to the verdict, crediting favorable evidence if reasonable jurors could and disregarding contrary evidence unless reasonable jurors could not, we hold the evidence legally sufficient to support the jury’s finding that both Carlton’s and KB’s conduct created a nuisance that proximately caused damage to the Homeowners’ homes. Considering all the evidence and inferences in the record, including any evidence contrary to the judgment, we hold the evidence factually sufficient and the jury verdict not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. KB’s and Carlton’s second issue is overruled.

Proper Measure of Damages

In their third issue, KB and Carlton assert the trial court erred in overruling their objection to the submission of jury questions numbers 16 through 18 as an improper measure of damages. In Question No. 16, the jury awarded the Blanch-ards the following damages: (a) $55,524 for cost of repairs and contents manipulation and storage; (b) $9,000 for reasonable additional living expenses incurred during repairs; (c) $1,250 for reasonable inspection fees; and (d) $4,500 for loss of use and enjoyment due to lights and noise. The jury in Question No. 17 awarded Sosa the following damages: (a) $51,427 for cost • of repairs and contents manipulation and storage; (b) $9,000 for reasonable additional living expenses incurred during repairs; (c) $1,250 for reasonable inspection fees; and (d) $4,500 for loss of use and enjoyment due to lights and noise. In Question No. 18, the jury awarded Rivera the following damages: (a) $49,787 for cost of repairs and contents manipulation and storage; (b) $9,000 for reasonable additional living expenses incurred during repairs; (c) $1,250 for reasonable inspection fees; and (d) $4,500 for loss of use and enjoyment due to lights and noise.

Whether the trial court erred in applying an improper measure of damages is a question of law subject to de novo review. TA Operating Corp. v. Solar Applications Eng’g, Inc., 191 S.W.3d 173, 183 (Tex.App.-San Antonio 2005, pet. granted); Matheus v. Sasser, 164 S.W.3d 453, 458 (Tex.App.-Fort Worth 2005, no pet.). A jury instruction is proper if it assists the jury, accurately states the law, and finds support in the pleadings and evidence. Union Pac. R.R. Co. v. Williams, 85 S.W.3d 162, 166 (Tex.2002). KB and Carlton question whether, as a matter of law, cost of repairs is an appropriate measure of damages in this case.

KB and Carlton argue that the verdict awarding cost of repairs and contents manipulation and storage, additional living expenses, and inspection fees is an improper measure of nuisance damages, and that the trial court erred in overruling their objection to the jury charge. They claim “[the Homeowners] asserted that their homes had been permanently damaged by [KB’s and Carlton’s] negligent actions.” Citing Schneider National Carriers, Inc. v. Bates, KB and Carlton contend the proper measure of damages in a permanent nuisance case is not cost of repairs but diminution of fair market value. See 147 S.W.3d at 276. However, they note that the Homeowners chose not to present evidence of their homes’ fair market value prior to and after the injury.

Contrary to KB’s and Carlton’s claim that the Homeowners asserted their homes had been permanently damaged by KB’s and Carlton’s construction activities, the Homeowners argue they never requested such a finding, nor was any such determination ever made. In their petition, the Homeowners pled they incurred damages that included, among others, “repair costs needed for each [Homeowner’s] house and property” and “diminution of value to the houses and property.” They contend that, although the trial court did not expressly label the nuisance as temporary or permanent, its agreeing with the Homeowners that the cost of repairs was a proper measure of damages to submit to the jury could be construed as the court’s determination that the nuisance case was temporary.

A nuisance is permanent if it is “constant and continuous” and if “injury constantly and regularly recurs.” Schneider, 147 S.W.3d at 272. “Conversely, a nuisance is temporary if it is of limited duration.” Id. The nuisance in this case was of the limited duration of eight months. Because the nuisance was of limited duration, we find this is a temporary nuisance case.

The terms “permanent” and “temporary” have also been key in determining the appropriate measure of damages in property-damage cases, that is, whether the appropriate measure of property damage is repair cost and lost rent (temporary) or lost market value (permanent). See id. at 270, n. 12. The proper measure of damages for a temporary injury to real property is the amount necessary to place property owners in the same position they occupied prior to the injury. Kraft v. Langford, 565 S.W.2d 223, 227 (Tex.1978), disapproved on other grounds, Schneider, 147 S.W.3d at 281, n. 78.

The Homeowners argue that KB and Carlton waived error regarding the following categories of damages: (a) reasonable and additional living expenses incurred during repairs and (b) reasonable inspection fees. KB and Carlton respond they did preserve error by submitting to the trial court the proper measure of damages “in a permanent nuisance case” in their proposed charge. The record demonstrates that, during the charge conference, KB and Carlton objected only to the inclusion of cost of repairs as the measure of damages. By failing to object to the other elements of damages included in the proposed charge, KB and Carlton waived their complaint.

We find that submission of the jury charge was proper. Inclusion of cost of repairs was a proper submission given the “temporary” nature of the nuisance. Regarding the trial court’s submission of “reasonable and additional living expenses incurred during repairs” and “reasonable inspection fees,” a party objecting to a charge must clearly point out the objectionable matter and the grounds of the objection. See Tex.R. Civ. P. 274. “An objection that does not meet both requirements is properly overruled and does not preserve error on appeal.” Castleberry v. Branscum, 721 S.W.2d 270, 276 (Tex.1986); see Equistar Chems., L.P. v. Dresser-Rand Co., 240 S.W.3d 864, 868 (Tex.2007) (to preserve error on appeal, party must timely object and make trial court aware of its complaint). KB and Carlton neglected to point out clearly to the trial court the objectionable elements of damages in the jury charge and the grounds of their objection. Finding that the trial court did not err in submitting jury questions numbers 16 through 18, we overrule KB’s and Carlton’s third issue.

CONCLUSION

Having overruled KB’s and Carlton’s three issues on appeal, we affirm the judgment of the trial court.

      . On appeal, KB and Carlton argue for the first time that Venable should not have been permitted to testify regarding the issue of standard of care. In their motion to strike, however, they only objected to Venable's testimony on causation. KB and Carlton, therefore, waived any error on standard of care. See Tex.R.App. P. 33.1.

      . KB and Carlton are not appealing the jury’s award of damages for loss of use and enjoyment due to lights and noise.


author: JAN P. PATTERSON, Justice. '

text:
    TEXAS COMMISSION ON ENVIRONMENTAL QUALITY, Appellant, v. The Honorable Greg ABBOTT, Attorney General of Texas; and the Honorable Eliot Shapleigh, Texas Senator, Appellees.
    No. 03-09-00250-CV.
    Court of Appeals of Texas, Austin.
    April 13, 2010.
    Rehearing Overruled May 17, 2010.

      Brian E. Berwick, Cynthia Woelk, Assistant Attorneys General, Austin, TX, for Appellant.

      Brenda Loudermilk, Chief, Open Records Litigation, Austin, TX, for Appellees.
    Doug W. Ray, Ray, Wood & Bonilla, Austin, TX, for Intervenor.
    Before Justices PATTERSON, PURYEAR and HENSON.
   OPINION

JAN P. PATTERSON, Justice. '

In this appeal, the Texas Commission on Environmental Quality seeks reversal of the district court’s judgment requiring the Commission to disclose certain confidential and privileged documents to Texas Senator Eliot Shapleigh. The issue presented is whether separation of powers limits the legislature’s authority to obtain confidential and privileged communications between a state agency and its lawyers pursuant to section 552.008 of the Texas Public Information Act. See Tex. Gov’t Code Ann. § 552.008 (West 2004). Because we conclude that section 552.008 requires disclosure of the documents at issue to Senator Shapleigh, we affirm the judgment.

BACKGROUND

The facts of this cause are largely undisputed. In 2008, Senator Eliot Shapleigh intervened in an administrative proceeding before the Commission involving a request by Asarco, Inc., to renew its air quality permit in order to reopen its copper smelting plant in El Paso, Texas. Shortly after the Commission issued a final order granting the permit application, Senator Shap-leigh made two separate requests for documents from the Commission under the Texas Public Information Act. See Tex. Gov’t Code Ann. §§ 552.001-.358 (West 2004 & Supp.2009). In both requests, Senator Shapleigh requested documents pursuant to “the legislative purpose special right of access in Section 552.008.... ”

At the time of Senator Shapleigh’s requests, section 552.008 provided:

(a) This chapter does not grant authority to withhold information from individual members, agencies, or committees of the legislature to use for legislative purposes.
(b) A governmental body on request by an individual member, agency, or committee of the legislature shall provide public information, including confidential information, to the requesting member, agency, or committee for inspection or duplication in accordance with this chapter if the requesting member, agency, or committee states that the public information is requested under this chapter for legislative purposes. A governmental body, by providing public information under this section that is confidential or otherwise excepted from required disclosure under law, does not waive or affect the confidentiality of the information for purposes of state or federal law or waive the right to assert exceptions to required disclosure of the information in the future. The governmental body may require the requesting individual member of the legislature, the requesting legislative agency or committee, or the members or employees of the requesting entity who will view or handle information that is received under this section and that is confidential under law to sign a confidentiality agreement that covers the information and requires that:
(1) the information not be disclosed outside the requesting entity, or within the requesting entity for purposes other than the purpose for which it was received;
(2) the information be labeled as confidential;
(3) the information be kept securely; or
(4) the number of copies made of the information or the notes taken from the information that implicate the confidential nature of the information be controlled, with all copies or notes that are not destroyed or returned to the governmental body remaining confidential and subject to the confidentiality agreement.
(c) This section does not affect:
(1) the right of an individual member, agency, or committee of the legislature to obtain information from a governmental body under other law, including under the rules of either house of the legislature;
(2) the procedures under which the information is obtained under other law; or
(3) the use that may be made of the information obtained under other law.

The Commission made several documents available to Senator Shapleigh but declined to disclose certain documents that it deemed privileged attorney-client communications and attorney work product. Id. § 552.305 (West 2004). Included among the documents withheld by the Commission were documents prepared by the Commission’s Office of General Counsel to advise the Commissioners regarding the Asarco application. Also included were documents prepared by lawyers in the Environmental Law Division who advise the executive director of the Commission.

The Commission forwarded all of these documents to the Open Records Division of the Office of the Attorney General and requested a ruling under section 552.301 of the public information act. See id. § 552.301 (West 2004). The Commission asserted that its documents were excepted from disclosure under sections 552.101 (confidential under other law), 552.103 (information related to litigation), 552.107 (attorney-client privilege), and 552.111 (agency memoranda and deliberative process privilege) of the act. See Tex. Gov’t Code Ann. §§ 552.101, .103, .107, .111 (West 2004). In conjunction with its claim under section 552.101, the Commission also asserted that its documents were excepted from disclosure under Texas Rule of Evidence 503 and Texas Rule of Civil Procedure 192.5. See id. § 552.101; Tex.R. Evid. 503; Tex.R. Civ. P. 192.5. The Commission further claimed that disclosure of its documents to Senator Shapleigh would “disturb the effective separation of powers [under article II, section 1, of the Texas Constitution] because the legislative function would be in the position to interfere with the judicial and executive functions.” See Tex. Const, art. II, § 1.

The attorney general issued an informal letter ruling, OR2008-06742, which interpreted the public information act to require disclosure of all documents held by the Commission’s general counsel and Environmental Law Division to Senator Shapleigh. See Tex. Att’y Gen. OR2008-06742 (May 16, 2008). The attorney general declined to address the Commission’s assertions that its documents were confidential under Texas Rule of Evidence 503 or Texas Rule of Civil Procedure 192.5 in conjunction with section 552.101 of the act because the attorney general had previously “concluded that section 552.101 does not encompass discovery privileges.” See OR2008-06742 at 1 n. 1 (citing Tex. Att’y Gen. ORD Nos. 676 at 1-2 (2002), 575 at 2 (1990)). Finding that the Commission “failed to sufficiently demonstrate that such interference [wa]s present in the instant case,” the attorney general rejected the Commission’s claim that release of the subject documents would raise separation of powers concerns. Id at 3. The attorney general concluded that the Commission’s documents were subject to disclosure under section 552.008 of the public information act and, therefore, declined to address the Commission’s remaining arguments. Id.

The Commission sued the attorney general in district court, and Senator Shap-leigh intervened. See Tex. Gov’t Code Ann. §§ 552.324(a), .325 (West 2004). Senator Shapleigh filed a motion for summary judgment. See Tex.R. Civ. P. 166a(c). The Commission also sought summary judgment, but the attorney general did not. The district court granted the senator’s motion and denied the motion of the Commission. This appeal followed.

ANALYSIS

The Commission contends that the district court erred in concluding that section 552.008 of the public information act requires the Commission to disclose the documents at issue to Senator Shapleigh because the statute and Senator Shapleigh’s requests violate the separation of powers doctrine embodied in article II, section 1, of the Texas Constitution. Senator Shap-leigh and the attorney general respond that there was no error in the district court’s judgment because the Commission cannot show that the statute or Senator Shapleigh’s requests amounted to undue interference with a core function constitutionally committed to the Commission.

Standard of Review

We review the district court’s grant of summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005). To prevail on a summary judgment motion, the movant must show that there are no genuine issues of material fact and that he is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c).

Determining whether an exception applies under the public information act to support withholding of public information is a question of law, which we review de novo. See City of Garland v. Dallas Morning News, 22 S.W.3d 351, 357 (Tex.2000); City of Fort Worth v. Cornyn, 86 S.W.3d 320, 323 (Tex.App.-Austin 2002, no pet.). We construe the act liberally in favor of granting requests for information, while narrowly construing exceptions to disclosure. See Tex. Gov’t Code Ann. § 552.001(b) (West 2004); City of Garland, 22 S.W.3d at 365.

We consider questions of statutory construction de novo as well. See City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex.2003). When construing a statute, our primary goal is to determine and give effect to the legislature’s intent. Id. To determine legislative intent, we look to the statute as a whole, as opposed to isolated provisions. State v. Gonzalez, 82 S.W.3d 322, 327 (Tex.2002). We begin with the plain language of the statute at issue and apply its common meaning. City of San Antonio, 111 S.W.3d at 25. Where the statutory text is unambiguous, we adopt a construction supported by the statute’s plain language unless that construction would lead to an absurd result. Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 284 (Tex.1999).

We construe Texas constitutional provisions in the same manner as we construe statutes. Harris County Hosp. Dist. v. Tomball Reg’l Hosp., 283 S.W.3d 838, 842 (Tex.2009); Doody v. Ameriquest Mortgage Co., 49 S.W.3d 342, 344 (Tex.2001). The guiding rule is to discern and give effect to the intent of the provision’s drafters. Harris County Hosp. Dist., 283 S.W.3d at 842; City of El Paso v. El Paso Cmty. Coll. Dist., 729 S.W.2d 296, 298 (Tex.1986). We rely heavily on the literal text of a constitutional provision to give effect to its plain language. Harris County Hosp. Dist., 283 S.W.3d at 842; Doody, 49 S.W.3d at 344. If the plain language of a constitutional provision is clear and unambiguous, resort to extrinsic aids and rules of construction is inappropriate, and we give the language of the provision its common everyday meaning. City of Rockwall v. Hughes, 246 S.W.3d 621, 625-26 (Tex.2008); State v. Shumake, 199 S.W.3d 279, 284 (Tex.2006). This rule provides an objective guidepost to discern the drafter’s intent and ensures that ordinary citizens may “rely on the plain language ... to mean what it says.” Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 866 (Tex.1999).

Legislative Access Under Section 552.008

We address as an initial matter the Commission’s proposed construction of section 552.008. As part of its argument, the Commission asserts that we may interpret section 552.008 in a manner that avoids the constitutional question of separation of powers. Specifically, the Commission contends that we may employ a heightened standard of interpretation to construe the phrase “including confidential information” in subsection 552.008(b) to exclude the documents at issue in this case— i.e., documents protected by the attorney-client and work-product privileges.

As a general rule, we agree with the Commission that courts should construe statutes in a manner that renders them constitutional and gives effect to the legislature’s intent. See Quick v. City of Austin, 7 S.W.3d 109, 115 (Tex.1998); see also Sweeney v. Jefferson, 212 S.W.3d 556, 565 (Tex.App.-Austin 2006, no pet.) (courts should avoid deciding constitutional question when possible). However, the Commission provides no authority for its heightened statutory construction argument, and we have found none.

The starting point for construing a statute is the language of the statute itself. In re City of Georgetown, 53 S.W.3d 328, 331 (Tex.2001). The plain language of subsection 552.008(b) requires the Commission “on request by an individual member, agency, or committee of the legislature [to] provide public information, including confidential information,” if the information is requested for legislative purposes. Tex. Gov’t Code Ann. § 552.008(b). There is nothing ambiguous about the phrase “confidential information.” Id. In the context of the attorney-client relationship, the state bar disciplinary rules define “confidential information” to encompass even unprivileged client information. Tex. Disciplinary R. Prof. Conduct 1.05(a) (eff. Jan. 1, 1990), reprinted in Texas Rules of Court: State 507 (West 2009) (State Bar Rules art. X, § 9). Applying this definition, the Texas Supreme Court has held, “[V]irtually any information relating to a case should be considered confidential.” See Phoenix Founders v. Marshall, 887 S.W.2d 831, 834 (Tex.1994). The Texas Court of Criminal Appeals has also recognized, “ ‘Confidential information’ is, by definition, information that is available only to authorized persons; it is ‘classified,’ ‘privileged,’ ‘private,’ ‘secret,’ ‘restricted.’ ” Landers v. State, 256 S.W.3d 295, 309 (Tex.Crim.App.2008) (quoting “Confidential,” Roget’s II: The New Thesaurus (3rd ed.1995)). The plain meaning of this phrase includes documents subject to the attorney-client or work-product privileges. Such documents would also constitute information that is “excepted from required disclosure” or “confidential under other law.” See In re City of Georgetown, 53 S.W.3d at 332 (holding that rules of civil procedure and evidence are “other law” for purposes of section 552.022 of public information act).

Adopted in 1973, the Texas Public Information Act is modeled on the federal Freedom of Information Act. City of Fort Worth v. Cornyn, 86 S.W.3d 320, 323 (Tex.App.-Austin 2002, no pet.). The language in section 552.008(a), which states “This chapter does not grant authority to withhold information from individual members, agencies, or committees of the legislature to use for legislative purposes,” is strikingly similar to section 552(d) of the FOIA, formerly section 552(c), which states, “This section does not authorize withholding of information or limit the availability of records to the public, except as specifically stated in this section. This section is not authority to withhold information from Congress.” See 5 U.S.C. § 552(d) (emphasis added). The Texas Supreme Court has explained that, when the legislature adopts a federal statute, Texas courts must presume that the legislature knew of the federal courts’ construction of the federal statute and intended to adopt that construction. City of Garland, 22 S.W.3d at 360 (citing Blackmon v. Hansen, 140 Tex. 536, 169 S.W.2d 962, 964-65 (1943)). We may therefore look to the federal courts’ construction of the FOIA for guidance in interpreting the Texas act. Id.

When interpreting section 552(d), federal courts have consistently held that Congress reserved unto itself a special right of access to governmental information. See, e.g., Murphy v. Department of the Army, 613 F.2d 1151, 1157 (D.C.Cir.1979). These same federal courts have recognized that federal agencies may not use section 552(b)(5), or Exemption 5 — including the attorney-client, work-product, and deliberative-process privileges — to withhold information from Congress, its committees, or its individual members, when requested in their official capacity for legislative use. See id. As the court of appeals explained in Murphy, when enacting the FOIA, Congress intended to maintain its ready access to information necessary for it to fulfill its legislative function but not to override, directly or indirectly, all of the exemptions from general disclosure written into the FOIA. See id. at 1156 n. 12.

Applying the federal courts’ interpretation of the FOIA to the language of section 552.008, it is clear that the Texas Legislature, like Congress, intended to maintain for itself a special right of access to confidential governmental information necessary to fulfill its legislative function without overriding the exemptions to required disclosure written into the Texas act. See id.; see also Terrell v. King, 118 Tex. 237, 14 S.W.2d 786, 790 (1929) (“[C]onstitutional provisions which commit the legislative function to the two houses are intended to include [the power to investigate] to the end that the function may be effectively exercised.”). Authority to pursue investigations and inquiries has long been regarded as an incident of full legislative power. Tetrell, 14 S.W.2d at 789-90. We therefore conclude that the phrase “confidential information” in section 552.008 is sufficient to include the documents at issue, and we reject the Commission’s statutory construction argument.

We turn to the Commission’s separation of powers claim.

Separation of Powers

The Commission argues that section 552.008 and, by extension, Senator Shapleigh’s requests violate the separation of powers because they invade the exclusive power of the Commission to carry out its constitutionally delegated functions under article XVI, section 59 of the Texas Constitution. Specifically, the Commission argues that section 552.008 causes a chilling effect on the authority constitutionally committed to the Commission to regulate in the area of natural resources. Thus, the Commission contends, section 552.008 and Senator Shapleigh’s requests unduly interfere with the Commission’s authority as derived from the Texas Constitution. Article II, section 1 of the Texas Constitution, which governs separation of powers, states:

The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are Legislative to one; those which are Executive to another, and those which are Judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.

Tex. Const, art. II, § 1. This provision confirms the prohibition against one branch of government exercising a power inherently belonging to another branch. See General Servs. Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591, 600 (Tex.2001).

Although the language of this provision “appears on its face to be rigid and absolute[,] ... such a construction would be impossible to implement in all cases because not every governmental power fits logically and clearly into any particular ‘department.’ ” Holmes v. Morales, 906 S.W.2d 570, 573 (Tex.App.-Austin 1995), rev’d in part on other grounds, 924 S.W.2d 920 (Tex.1996). When construing separation of powers under the federal Constitution, the United States Supreme Court “ha[s] never held that the Constitution requires that the three branches of Government ‘operate with absolute independence,’ ” see Morrison v. Olson, 487 U.S. 654, 693-94, 108 S.Ct. 2597, 101 L.Ed.2d 569 (1988) (quoting United States v. Nixon, 418 U.S. 683, 707, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974)), choosing instead to adopt “Madison’s flexible approach to separation of powers,” Mistretta v. United States, 488 U.S. 361, 380, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989), and “uph[o]ld statutory provisions that to some degree commingle the functions of the Branches, but that pose no danger of either aggrandizement or encroachment.” Id. at 382, 109 S.Ct. 647. In the words of Justice Jackson:

While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.

Youngstown Sheet & Tube Co. v. Sawyer, 348 U.S. 579, 635, 72 S.Ct. 863, 96 L.Ed. 1153 (1952) (Jackson, J., concurring).

Like their federal counterparts, Texas courts have long held that some degree of interdependence and reciprocity is subsumed within the separation of powers principle. Id.; see Government Sews. Ins. Underwriters v. Jones, 368 S.W.2d 560, 562 (Tex.1963); State Bd. of Ins. v. Betts, 158 Tex. 83, 308 S.W.2d 846, 852 (1958); 1 George D. Braden et al., The Constitution of the State of Texas: An Annotated and Comparative Analysis 98 (1977) (“The separation principle is not and cannot be rigid.”). Addressing the relationship between separateness and efficacy, the Texas Supreme Court stated:

Co-ordination or co-operation of two or more branches or departments of government in the solution of certain problems is both the usual and expected thing.... The system of checks and balances running throughout the governmental structure[,] while designed to prevent excesses, is not intended to make effective action impossible.

Betts, 308 S.W.2d at 852.

While some degree of interdependence and reciprocity is permissible, Texas courts have consistently recognized that separation of powers may be violated in either of two ways:

First, it is violated when one branch of government assumes, or is delegated, to whatever degree, a power that is more “properly attached” to another branch. The provision is also violated when one branch unduly interferes with another branch so that the other branch cannot effectively exercise its constitutionally assigned powers.

Jones v. State, 803 S.W.2d 712, 715-16 (Tex.Crim.App.1991) (quoting Armadillo Bail Bonds v. State, 802 S.W.2d 237, 239 (Tex.Crim.App.1990)) (citations and emphases omitted). The Commission does not allege that the legislature, by enacting section 552.008, or Senator Shapleigh, by requesting information under the public information act, has assumed or exercised a power that is more “properly attached” to the executive branch of government. Rather the Commission argues that section 552.008 and the Senator’s requests “unduly interfere” with the Commission’s exercise of its constitutionally assigned powers.

To determine whether a separation of powers violation involving “undue interference” has occurred, we engage in a two-part inquiry. See Armadillo Bail Bonds v. State, 802 S.W.2d 237, 239 (Tex.Crim.App.1990). We look first to the scope of the Commission’s constitutionally assigned powers and, then, we consider the impact of the statute and the Senator’s requests upon the Commission’s exercise of those powers. Id. (appellate inquiry begins with nature of constitutional power and extent to which legislative encroachment is permitted).

Constitutional Powers Assigned to the Commission

The Commission asserts that it derives constitutional authority from article XVI, section 59, of the Texas Constitution. In relevant part, article XVI, section 59 — also known as the Conservation Amendment— provides:

(a) The conservation and development of all of the natural resources of this State, and development of parks and recreational facilities, including the control, storing, preservation and distribution of its storm and flood waters, the waters of its rivers and streams, for irrigation, power and all other useful purposes, the reclamation and irrigation of its arid, semiarid and other lands needing irrigation, the reclamation and drainage of its overflowed lands, and other lands needing drainage, the conservation and development of its forests, water and hydro-electric power, the navigation of its inland and coastal waters, and the preservation and conservation of all such natural resources of the State are each and all hereby declared public rights and duties; and the Legislature shall pass all such laws as may be appropriate thereto.

Tex. Const, art. XVI, § 59(a) (emphasis added). The plain language of this provision assigns the power to enact laws relating to conservation and development of natural resources not to the Commission, but to the legislature. Subsection (a) of this provision states “... and the Legislature shall pass all such laws as may be appropriate thereto.” Id. Subsection (b) authorizes the creation of conservation and reclamation districts, and subsection (c) permits the legislature to authorize indebtedness and the levy and collection of taxes within such districts provided, however, that such proposition be first submitted to and adopted by qualified voters of a district. Id. § 59(b)-(c). Nowhere in this provision does the constitution mention the Commission or otherwise delegate authority to the Commission. Id. § 59. Based on its plain language then, the Commission derives no constitutionally assigned power from article XVI, section 59, of the Texas Constitution.

To the extent the Commission claims to derive constitutional authority from article IV, section 10, we likewise reject that contention. Article IV, section 10 states:

[The Governor] shall cause the laws to be faithfully executed and shall conduct, in person, or in such manner as shall be prescribed by law, all intercourse and business of the State with other States and with the United States.

Tex. Const, art. IV, § 10. Like article XVI, section 59, article IV, section 10, makes no mention of the Commission. See id. While the parties do not dispute that the Commission functions within the realm of the executive branch, we cannot conclude that such functioning brings the Commission within the scope of any constitutional authority granted by article IV, section 10. See Holmes, 906 S.W.2d at 572 (ascribing different meanings to the terms “judiciary” and “Judicial Department”). The plain language of article IV, section 10, does not grant any constitutional authority to the Commission.

Our conclusions that the Commission does not derive constitutional authority from either article XVI, section 59, or article IV, section 10, are further supported by the longstanding recognition that agencies are creatures of statute and have no inherent authority. Public Util. Comm’n v. GTE-Southwest, Inc., 901 S.W.2d 401, 406-07 (Tex.1995). Although we recognize that the legislature may create an administrative agency, like the Commission, and delegate its legislative powers thereto, such powers are derived from statute, not the Texas Constitution. Id.; see also Texas Boll Weevil Eradi cation Found., Inc. v. Lewellen, 952 S.W.2d 454, 467 (Tex.1997); Railroad Comm’n v. Lone Star Gas Co., 844 S.W.2d 679, 689 (Tex.1992). More importantly, an agency may exercise only those powers expressly delegated by statute and those powers necessarily implied to carry out the specific powers delegated. Public Util. Comm’n, 901 S.W.2d at 406-07; McDaniel v. Texas Natural Res. Conservation Comm’n, 982 S.W.2d 650, 651-52 (Tex.App.-Austin 1998, pet. denied); Sexton v. Mount Olivet Cemetery Ass’n, 720 S.W.2d 129, 137-39 (Tex.App.-Austin 1986, writ ref'd n.r.e.).

In support of its separation of powers argument, the Commission relies on an informal letter ruling issued by the attorney general in response to a request for information by a Texas House Represen-tativé. See Tex. Atfy Gen. OR2008-02184 (Feb. 15, 2008). The representative requested public information from the attorney general himself pursuant to section 552.008. The attorney general argued that specific documents responsive to the request were exempt from disclosure because they were privileged attorney-client communications and disclosure would infringe upon the attorney general’s constitutional authority to render advisory opinions in violation of the separation of powers doctrine. In his letter ruling, the attorney general explained that article IV, section 22 of the Texas Constitution confers exclusive authority to issue advisory opinions on the attorney general and no constitutional provision conferred such power on the legislature. See id. at 2-3. The attorney general concluded that allowing legislative access to the attorney general’s internal deliberations would unduly interfere with the effective exercise of his constitutional power to render a written advisory opinion. See id. at 3.

The Commission’s reliance on this letter ruling is misplaced. Unlike the attorney general, the Commission derives no specific power from the Texas Constitution. In the absence of constitutional authority assigned to the Commission, there can be no separation of powers violation occasioned by the legislature’s enactment of section 552.008 or the Senator’s requests for information under that statute. See Holmes, 906 S.W.2d at 574 (“It is quite evident that the office of district attorney has by statutory delegation the duty and power to represent the state in criminal cases in district court. We must find that delegation in the constitution, however, before a separation-of-powers problem arises.” (citation omitted)). Because we find no constitutional authority committed to the Commission and, therefore, no separation of powers violation, we can affirm the district court’s judgment on this ground alone without considering the second prong of the inquiry.

Permissible Legislative Encroachment

Nevertheless, even if we agreed with the Commission that it derives authority to issue air quality permits from the Constitution, to reverse the district court’s judgment we would still have to find that the legislature’s enactment of section 552.008 unduly interferes with the Commission’s exercise of constitutional authority.

“The power and authority of a state legislature is plenary and its extent is limited only by the express or implied restrictions thereon contained in or necessarily arising from the Constitution itself.” Government Sens. Ins. Underwriters, 368 S.W.2d at 563. When the legislature enacts a statute, it exercises a power “properly attached” to the legislative branch of government. Jones, 803 S.W.2d at 716. A constitutional problem arises, however, when legislative enactment interferes with the core functioning of another branch of government in a field constitutionally committed to the control of that branch. Id,.; see also Armadillo Bail Bonds, 802 S.W.2d at 239 (legislature may not interfere in core judicial functions). Stated differently, the legislature may not interfere with the core functions of the judicial or executive branches without running afoul of separation of powers.

In support of its claim that section 552.008 unduly interferes with its permit granting authority, the Commission argues that release of its confidential documents to Senator Shapleigh would have a “chilling effect” on the free flow of ideas, frank communications, and the exchange of advice from the Commission’s attorneys and the Commission. But, the Commission cites no authority, and we have found none, for the proposition that some unspecified chilling effect alone would constitute sufficient undue interference to create a separation of powers violation.

We further observe that subsection 552.008(b) protects the confidentiality of the Commission’s documents once they are disclosed pursuant to a legislative request for information. See Tex. Gov’t Code Ann. § 552.008(b). Subsection 552.008(b) preserves the confidentiality of the Commission’s documents while in the possession of Senator Shapleigh by authorizing the Commission to require Senator Shapleigh to sign a confidentiality agreement prior to receiving the documents at issue. See id. In addition, subsection 552.008(b) expressly states that disclosure to Senator Shapleigh does not waive or otherwise affect the confidentiality of the documents for purposes of state or federal law, nor does disclosure to Senator Shapleigh under section 552.008 prevent the Commission from asserting exceptions to required disclosure in response to future requests for these documents. See id. These protections make clear that the legislature intended to give its members and committees a right of access even to confidential information. Accordingly, even were we to accept the Commission’s argument regarding its constitutional authority, we conclude the Commission has failed to demonstrate how disclosure of the documents at issue to Senator Shapleigh unduly interferes with the Commission’s exercise of that authority. We overrule the Commission’s separation of powers claim.

CONCLUSION

Because we conclude that section 552.008 requires disclosure of the documents at issue and the Commission has failed to demonstrate that such disclosure would unduly interfere with any constitutional authority committed to the Commission, we affirm the district court’s judgment.

      . Senator Shapleigh's first request was a letter to the Commission dated February 14, 2008. His second request was a letter to the Commission dated February 18, 2008.

      . Senator Shapleigh withdrew as a party to the administrative proceedings after the Commission refused to disclose certain documents in response to his requests.

      . Tex. Gov't Code Ann. § 552.008 (West 2004) (effective until September 1, 2010). The legislature enacted various amendments to section 552.008 in 2009; however, these amendments do not affect the outcome of this case. See Act of May 30, 2009, 81st Leg., R.S., ch. 1377, § 2, 2009 Tex. Gen. Laws 4326, 4326-27; Act of May 27, 2009, 81st Leg., R.S., ch. 1364, § 1, 2009 Tex. Gen. Laws 4304, 4304-05. For convenience, we cite to the current statute.

      . The Commission’s general counsel forwarded documents held by the general counsel's office, and a lawyer in the Commission’s Environmental Law Division forwarded documents held by that division to the attorney general’s office.

      . Because the attorney general did not seek summary judgment, our review is limited to whether the district court properly granted summary judgment in favor of Senator Shap-leigh. See Ackermann v. Vordenbaum, 403 S.W.2d 362, 365 (Tex. 1966); see also Montgomery v. Blue Cross & Blue Shield of Tex., Inc., 923 S.W.2d 147, 152 (Tex.App.-Austin 1996, writ denied) ("Before an appellate court may reverse summary judgment for one party and render judgment for the other party, all parties must have sought final judgment relief in their cross-motions for summary judgment.”). Therefore, we do not consider whether the district court erred in denying summary judgment to the Commission. See Ackermann, 403 S.W.2d at 365.

      . In support of this argument, the Commission relies on conclusory affidavits from two of the Commission's attorneys. In each affidavit, the affiant states a personal opinion that disclosure would have a chilling effect on the attorney-client relationship or would inhibit the ability of agency attorneys to provide legal advice. But neither affiant explains how disclosure of the subject documents to a legislator would restrict the communication of legal advice between Commission administrators and their counsel.

      . In response to two other requests for these same documents, we observe that the attorney general agreed with the Commission that the documents at issue were exempt from disclosure under section 552.107 of the public information act. See Tex. Att'y Gen. OR2008-10112 (July 25, 2008), OR2008-06741 (May 16, 2008).