author: RICK STRANGE, Justice.

text:
    Teresa WAY et al, Appellants, v. Tommy W. HOUSE, Appellee.
    No. 11-09-00161-CV.
    Court of Appeals of Texas, Eastland.
    June 10, 2010.

      J. Clarke Wilcox, James M. Beggs, Beggs Law Firm, Irving, for Appellants.
    Stephen Robert McKethan, Scott D. Allen, The Allen Firm, P.C., Stephenville, for Appellee.
    Panel consists of: WRIGHT, C.J., MeCALL, J., and STRANGE, J.
   OPINION

RICK STRANGE, Justice.

This is a declaratory judgment proceeding. The trial court found that a trust, as amended, was valid, that Tommy W. House was the current trustee, and that he was entitled to distribute the trust’s corpus in accordance with its terms. We affirm.

I.Background Facts

Richard H. Gilbert and A. Deloris Gilbert created the Gilbert Family Revocable Living Trust. Deloris passed away, and Richard subsequently amended the Trust twice. The second amendment named House the successor trustee. Richard died in 2007. House filed this declaratory judgment proceeding seeking a determination of the Trust’s validity and his authority as trustee.

Teresa Way, Charlene Gorrell, Karen Gilbert, and Christopher Lynn Gilbert are Richard’s daughters and grandson from a prior marriage. They were named as parties, and they filed a general denial. On the day of trial, their attorney filed a motion for nonsuit and a plea in intervention on behalf of the Trust. The plea contended that House had been removed as trustee, and the motion for nonsuit requested the dismissal of House’s declaratory judgment proceeding. The trial court denied the motion for nonsuit, conducted a bench trial, and entered a declaratory judgment. The court found that Richard had properly amended the trust instrument, that House became the successor trustee when Richard died, that House was the qualified and current trustee, and that House was authorized to conclude the Trust’s affairs and to distribute its assets.

II.Issues Presented

Appellants challenge the trial court’s judgment with two issues. Appellants contend first that the trial court erred by denying the motion for nonsuit without a hearing and second that it erred by entering a final judgment.

III.Nonsuit

The Trust’s motion for nonsuit asked the trial court to “enter a non-suit against Tommy W. House, without prejudice to refile same with costs of suit taxed against Applicant Tommy W. House.” The trial court denied the motion without specifying the reason for its decision. The text of appellants’ first issue raises a procedural challenge, contending that the trial court erred by denying their motion without holding a hearing, but the body of their brief complains about the trial court’s substantive ruling. In the interest of justice, we will address both complaints.

Appellants have not preserved their procedural challenge. The Trust did not request a hearing in its motion, there is nothing in the record indicating that the Trust or any other appellant otherwise requested a hearing or complained about the lack of one, and appellants made no offer of proof to establish what evidence the Trust would have offered at a hearing. See In re 119 S.W.3d 707, 711 (Tex.2003) (to preserve issue for appellate review, including constitutional error, party must present to trial court a timely request, motion, or objection; state the specific grounds therefor; and obtain a ruling); see also In re J.(B.B.) M., 955 S.W.2d 405, 410 (Tex.App.-San Antonio 1997, no pet.) (party failed to preserve error by failing to object to the premature conclusion of the trial or by making an offer of proof).

Even if appellants have preserved their procedural issue, they have failed to show any substantive error. We generally review procedural and trial management determinations under an abuse of discretion standard. In re Doe, 19 S.W.3d 249, 253 (Tex.2000). To establish an abuse of discretion, appellants must attack all independent bases or grounds that fully support the trial court’s ruling. Britton v. Tex. Dep’t ofCrim. Justice, 95 S.W.3d 676, 681 (TexApp.-Houston [1st Dist.] 2002, no pet.).

Appellants assume that the trial court denied the motion for nonsuit because it found that the Trust lacked standing. The record does not indicate whether t'he trial court addressed the Trust’s standing, and we need not do so ourselves because the trial court’s ruling can be supported on two other independent grounds. First, Tex.R. Civ. P. 162 allows a party to nonsuit its own cause of action; it does not authorize dismissing another party’s claims. See Tex. Mut. Ins. Co. v. Ledbetter, 251 S.W.3d 31, 37 (Tex.2008) (parties have an absolute right to nonsuit their own claims, but not someone else’s claims they are trying to avoid). Second, the Trust lacked capacity. See Ray Malooly Trust v. Juki, 186 S.W.3d 568, 570 (Tex.2006) (the term “trust” does not refer to a separate legal entity but to the fiduciary relationship governing the trustee with respect to the trust property). Because a trust does not have capacity, any suits involving the trust must be brought by or against the trustee. Id.

The trial court could have appropriately concluded that the Trust’s motion was not authorized by Rule 162 or that the Trust lacked capacity. Therefore, the trial court did not abuse its discretion by denying the motion for nonsuit. Issue One is overruled.

IV. Final Judgment

Appellants next complain that the trial court erred by entering a final judgment because it failed to address the Trust’s plea in intervention. As noted above, the Trust lacks capacity. Accordingly, the trial court did not err by denying the Trust any affirmative relief. Furthermore, appellants can show no harm because the record does not establish that they were prevented from litigating House’s current authority to act as trustee.

House requested a declaratory judgment that he was the trustee and was entitled to distribute the Trust’s corpus in accordance with the trust instrument’s terms. The Trust’s plea in intervention challenged his ability to do so, contending that the adult beneficiaries had removed him as trustee. Each of the appellants was a beneficiary and a party. If any beneficiary contended that House was no longer the trustee, this would constitute a compulsory counterclaim and the individual appellants were required to assert it in this action. See Ingersoll-Rand Co. v. Valero Energy Corp., 997 S.W.2d 203, 207 (Tex.1999) (a party’s failure to assert a compulsory counterclaim precludes that party from asserting it in later lawsuits).

The record indicates that this case had been set for trial at least four times and that no motion for continuance was filed prior to the last trial setting. Appellants may have assumed that the Trust’s plea in intervention would result in a further delay, but this does not establish that the trial court erred by proceeding with the trial setting. Appellants contend that the trial court failed to consider, rule upon, or receive any evidence regarding House’s removal. Ordinarily, appellants would need a reporter’s record — which was not requested — and an offer of proof to preserve this issue. We can, however, address appellants’ contention because House has provided this court with a limited reporter’s record that confirms appellants were able to introduce evidence of House’s purported removal. The parties stipulated to the admissibility of several exhibits, including a letter from Way to House advising him that he had been removed as trustee. House’s current authority was, therefore, before the trial court.

Because the Trust lacked capacity to participate as a party and because appellants have shown no harm, Issue Two is overruled.

V. Conclusion

The judgment of the trial court is affirmed.

      . Appellants have represented to this court that these pleadings were filed under the authority of Way as the newly elected trustee. The pleadings themselves were filed in the name of the Trust and not in Way’s name as substitute trustee. We note this distinction for purposes of our capacity discussion in Sections III and IV of this opinion.

      . The notice of appeal was filed on behalf of Teresa Way, Charlene Gorrell, Christopher Lynn Gilbert, Karen Gilbert, and the Gilbert Family Revocable Living Trust.

      . Appellants' first issue reads: "Whether the trial court erred by denying Intervenor’s Motion for Non-Suit without a hearing of any kind whatsoever.”

      . See Tex.R. Civ. P. 97(a). A claim is compulsory if it arises out of the transaction or occurrence that gives rise to the opposing party’s claim, is mature and owned by the counterclaimant, is against an opposing party in the same capacity, does not require third parties who cannot be brought into the suit, is within the court’s jurisdiction, and is not pending elsewhere. Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 247 (Tex. 1988).

      . To preserve error, the record must show that appellant made a timely request, objection, or motion and that the trial court ruled on it. Tex.R.App. P. 33.1. Without an offer of proof, reviewing courts cannot determine whether the exclusion of evidence was harmful. Bobbora v. Unitrin Ins. Servs., 255 S.W.3d 331, 335 (Tex.App.-Dallas 2008, no pet.).


source: Caselaw Access Project

author: Justice FILLMORE.

license: Public Domain

text:
    CITY OF BALCH SPRINGS, Texas, Appellant, v. Diana Hall AUSTIN, Individually, and as Administratrix of the Estate of Jimmy Wayne Hall, Deceased, Appel-lee.
    No. 05-09-00984-CV.
    Court of Appeals of Texas, Dallas.
    June 10, 2010.

      William W. Krueger III, Casey S. Erick, McKamie Krueger, LLP, Richardson, TX, for Appellant.
    Houston M. Smith, Larry Roberts, Law Office of Houston M. Smith, P.C., Terrell, TX, Marquette William Wolf, Ted B. Lyon & Associates, Mesquite, TX, Ramona Martinez, Cobb, Martinez & Woodward, L.L.C., Dallas, TX, for Appellee.
    Before Justices BRIDGES, FRANCIS and FILLMORE.
   OPINION

Opinion By

Justice FILLMORE.

Appellee Diana Hall Austin, Individually, and as Administratrix of the Estate of Jimmy Wayne Hall, Deceased, sued appellant the City of Balch Springs, Texas on claims arising from the death of Jimmy Wayne Hall. The City filed a plea to the jurisdiction based on governmental immunity. The trial court denied the plea, and the City perfected this interlocutory appeal. See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(8) (Vernon 2008). We conclude that Austin’s claims against the City are barred by governmental immunity. Accordingly, we reverse the trial court’s order denying the City’s plea to the jurisdiction and render judgment dismissing Austin’s claims against the City for lack of subject matter jurisdiction.

Procedural Background

The suit arises from a vehicular accident that resulted in a fatality. At the time of the accident, off-duty City police officer Jonathan Allen Purifoy was driving a City police department vehicle. Purifoy was returning from the City police station to the location of his part-time security job at Wal-Mart Stores, LLC. Hall was driving a riding lawn mower with a trailer in tow on Balch Springs Road when struck from behind by the City police department vehicle. Hall died following the accident. Austin sued the City and Wal-Mart. The City filed a plea to the jurisdiction asserting governmental immunity from suit. The trial court denied the City’s plea. This interlocutory appeal followed.

Standard and Scope of Review

Governmental immunity from suit defeats a trial court’s subject matter jurisdiction and is properly asserted in a plea to the jurisdiction. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex.2004). Whether a court has subject matter jurisdiction and whether a plaintiff has alleged facts that affirmatively demonstrate a trial court’s subject matter jurisdiction are questions of law. Id. at 226; Perez v. City of Dallas, 180 S.W.3d 906, 909 (Tex.App.-Dallas 2005, no pet.). Accordingly, we review de novo a challenge to the trial court’s subject matter jurisdiction. Miranda, 133 S.W.3d at 226; Perez, 180 S.W.3d at 909.

The purpose of a plea to the jurisdiction is to defeat a cause of action without regard to whether the claims asserted have merit. Bland Indep. Sch. Disk v. Blue, 34 S.W.3d 547, 554 (Tex.2000). The plaintiff has the burden to plead facts affirmatively showing the trial court has jurisdiction. Miranda, 133 S.W.3d at 226. In determining whether the plaintiff has met this burden, we look to the allegations in the pleadings, accept them as true, and construe them in favor of the pleader. Id. We also may consider evidence presented to the trial court to resolve the jurisdictional dispute, and we must do so when necessary to resolve the jurisdictional issues. Bland Indep. Sch. Dist., 34 S.W.3d at 554. In reviewing the plea to the jurisdiction where evidence is submitted that implicates the merits of the case, we take as true all evidence favorable to the nonmovant, indulging every reasonable inference and resolving any doubts in the nonmovant’s favor. Miranda, 133 S.W.3d at 227-28. This standard generally mirrors our summary judgment standard under Texas Rule of Civil Procedure 166a(c), and the burden is on the governmental unit as movant to meet the standard of proof. Id. at 228. After the governmental unit asserts and provides evidentiary support for its plea, the nonmovant is required to show only that a disputed material fact issue exists regarding the jurisdictional issue. Id.; City of Dallas v. Heard, 252 S.W.3d 98, 102 (Tex. App.-Dallas 2008, pet. denied).

Allegations and Evidence

Given the procedural posture of this case, we consider the allegations of fact in Austin’s live pleading and the evidence presented to the trial court by the City and Austin in connection with the City’s plea to the jurisdiction.

Purifoy was a police officer employed by the City. Subject to restrictions, and with the approval of the City, off-duty police officers were permitted to undertake part-time employment with private employers. Purifoy was a part-time employee of Wal-Mart and provided security-related services at a retail store location. While working for Wal-Mart, Purifoy was compensated by Wal-Mart, not by the City.

On January 25, 2006, Purifoy was off-duty as a City police officer and clocked in at Wal-Mart to begin his shift as a part-time security employee. Purifoy was armed, wearing his City police uniform, and carrying his police badge. Off-duty police officers were permitted by the City to check out City patrol vehicle 501 (Unit 501), subject to availability, and park it at their off-duty job locations as a visible deterrent to criminal activity. Unit 501 was a 1994 Ford Crown Victoria. Purifoy observed that Unit 501 had not been left at the Wal-Mart location by a security employee on a prior shift, and Purifoy indicated to his Wal-Mart supervisor that he intended to drive to the City police station, check out Unit 501, and return to the Wal-Mart store location. The Wal-Mart manager approved. Purifoy did not clock out when he left the Wal-Mart store location to retrieve Unit 501.

Purifoy went to the City police station and obtained permission to use Unit 501. He completed a vehicle inspection form and left that form at the police station. In connection with obtaining Unit 501, Puri-foy provided the police department dispatcher with his officer’s identification number, making Purifoy eligible to be called from his private work for Wal-Mart and dispatched by the City in the event of an emergency situation. After leaving the police station in Unit 501, Purifoy drove to a Sonic drive-in restaurant for a drink. From the Sonic, he was returning to the Wal-Mart location via Balch Springs Road, an unmarked, unlit two-lane roadway. When Purifoy observed Hall riding the lawn mower with trailer in tow on the roadway, he applied the brakes and unsuccessfully attempted to swerve to avoid the collision. At the time of the collision, Puri-foy was traveling in excess of the posted speed limit but was not responding to any criminal activity or otherwise driving at the direction of the City.

Discussion

Governmental immunity protects political subdivisions of the State, including cities, from suit and liability. See Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex.2004); Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 & n. 3 (Tex.2003); see also Tex. Civ. Prac. & Rem.Code Ann. § 101.001(3)(B) (Vernon 2005) (defining “governmental unit” to include political subdivisions of the state, including cities). The Legislature, however, created a limited waiver of a city’s immunity from suit for certain tort claims under the Texas Tort Claims Act (the Act). See Tex. Civ. Prac. & Rem.Code Ann. § 101.025(a) (Vernon 2005); State v. Shumake, 199 S.W.3d 279, 283 (Tex.2006). The Act permits suits against governmental units in the following circumstances: under section 101.021(1), injury caused by the operation or use of a publicly-owned motor-driven vehicle or piece of equipment by a city’s employee in the scope of his employment; and, under section 101.021(2), injury caused by a condition or use of tangible personal or real property. Tex. Civ. Prac. & Rem.Code Ann. §§ 101.021(1)(A) & (2) (Vernon 2005).

In its first, third, and fifth issues, the City contends there has been no waiver of its immunity from suit, and it has no vicarious liability for alleged acts or omissions of Purifoy, because Purifoy was not in the scope of his employment with the City at the time of the accident. Austin asserts the City’s governmental immunity is waived pursuant to section 101.021(1) of the Act, because Purifoy was operating a City-owned vehicle and was in the scope of his City employment at the time of the accident. See Tex. Civ. Prac. & Rem.Code Ann. §§ 101.002 (Vernon 2005) & 101.021.

Austin’s live pleading alleges that at the time of the accident, Purifoy was in the course and scope of his employment with Wal-Mart, was performing duties for the private benefit of Wal-Mart, and was not performing a job incident to enforcement of the public laws. However, Austin argues the City’s Police Department General Order paragraph 4.02.05 entitled “Responsibilities and General Conduct” mandates that a City police officer is “on-duty” twenty-four hours a day while within the City, and hence Purifoy was acting within the' scope of his employment at the time of the accident. In pertinent part, paragraph 4.02.05 provides:

A. For the purpose of protecting life and property, officers shall always be prepared to act any time circumstances indicate their services are required. Officers are always considered on duty while in the City of Balch Springs.

“It is the duty of every peace officer to preserve the peace within the officer’s jurisdiction.” Tex.Code Crim. Prog. Ann. art. 2.13(a) (Vernon 2005); see also, Mansfield v. C.F. Bent Tree Apartment, L.P., 37 S.W.3d 145, 151 (Tex.App.Austin 2001, no pet.). Peace officers are not relieved of this obligation because they are off-duty. If an off-duty officer observes and responds to a crime, he becomes an on-duty officer. See Hafdahl v. State, 805 S.W.2d 396, 401 (Tex.Crim.App.1990), overruled on other grounds by Madden v. State, 799 S.W.2d 683, 686 n. 3 (Tex.Crim.App.1990); City of Dallas v. Half Price Books, Records, Magazines, Inc., 883 S.W.2d 374, 377 (TexApp.-Dallas 1994, no writ) (when off-duty police officer saw crime being committed, he ceased being employee or independent contractor of private employer for which he was providing off-duty security and immediately became on-duty police officer).

However, the fact that an off-duty police officer is subject to being called to service twenty-four hours a day while within the City does not mean he is acting within the scope of government employment at all times while off-duty. “[I]t is a well-established principle that merely because an employee is on-duty, or on-call twenty-four hours a day, does not mean that the person is always acting within the scope of his employment.” City of Laredo v. Saenz, No. 04-05-00188-CV, 2006 WL 286006, at *3 (Tex.App.-San Antonio Feb. 8, 2006, no pet.) (mem. op.) (citing Banfield v. City of San Antonio, 801 S.W.2d 134, 137 (Tex.App.-San Antonio 1990, no writ)). “[E]ven where an employee is on call 24 hours a day he must be engaged in or about the furtherance of the affairs or business of his employer to be in the scope of his employment.” Garcia v. City of Houston, 799 S.W.2d 496, 499 (Tex.App.-El Paso 1990, writ denied). The Act defines an “employee” as “a person, including an officer or agent, who is in the paid service of a governmental unit” and the “scope of employment” as “the performance for a governmental unit of the duties of an employee’s office or employment and includes being in and about the performance of a task lawfully assigned to an employee by competent authority-” Tex. Civ. Prac. & Rem.Code Ann. § 101.001(2). In general, whether a person is acting within the scope of his employment depends on whether the general act from which an injury arose was in furtherance of the employer’s business and for the accomplishment of the objective for which the employee was employed. Leadon v. Kim-brough Bros. Lumber Co., 484 S.W.2d 567, 569 (Tex.1972). In short, an employee is not acting within the scope of his duties unless the activity has some connection with, and is being undertaken in furtherance of, the employer’s business. Biggs v. U.S. Fire Ins. Co., 611 S.W.2d 624, 627 (Tex.1981); Vernon v. City of Dallas, 638 S.W.2d 5, 8-9 (Tex.App.-Dallas 1982, writ ref d n.r.e.).

In determining whether a police officer is acting within the scope of his employment, it is necessary to consider whether the officer is discharging a duty generally assigned to him by his government employer. City of Lancaster v. Chambers, 883 S.W.2d 650, 658 (Tex.1994); see also Harris County v. Gibbons, 150 S.W.3d 877, 882 (Tex.App.-Houston [14th Dist.] 2004, no pet.) (whether police officer is acting within scope of employment is generally tied to officer’s duty under the law). Even in a case where a police officer is off duty, law enforcement responsibilities may trigger a change in status from off-duty to on-duty. See Moms v. State, 523 S.W.2d 417, 418 (Tex.Crim.App.1975) (off-duty officer can still be engaged in lawful discharge of his law enforcement duties); Wood v. State, 486 S.W.2d 771, 774 (Tex.Crim.App.1972) (“It is the law in this state that a police officer’s ‘off-duty’ status is not a limitation upon the discharge of police authority in the presence of criminal activity.”). When determining the status of an officer, we must ask “in what capacity was the officer acting at the time he committed the acts for which the complaint was made?” C.F. Bent Tree Apartment, L.P., 37 S.W.3d at 150-51 (quoting Blackwell v. Hams County, 909 S.W.2d 135, 139 (Tex.App.-Houston [14th Dist.] 1995, writ denied)) (police officer resident of apartments where he performed off-duty security patrols was acting in capacity as police officer by arresting trespasser); see, e.g., Brawn, v. Dillard’s, Inc., 289 S.W.3d 340, 344 (Tex.App.-East-land 2009, no pet.) (off-duty police officer working part-time for store as security was acting as on-duty officer when responding to crime information that suspect was engaged in burglary of vehicle in parking lot); Saenz, 2006 WL 286006, at *4-5 (off-duty officer driving city-issued truck not in scope of employment with city at time of accident where more than six hours had passed since officer completed his assignment, he was not responding to any calls at time of accident and had not observed criminal activity); Gibbons, 150 S.W.3d at 882 (actions of off-duty deputy driving patrol car were in capacity as peace officer when at time of accident, deputy was using on-board computer for results of license plate check performed based on suspicion of a stolen vehicle).

Jack Gilbert, the City’s Chief of Police at the time of the accident, testified concerning the application of Police Department General Order paragraph 4.02.05. Gilbert indicated that a police officer within the City must always be prepared to respond to an emergency and to take action concerning the enforcement of the law. Gilbert further testified that Purifoy was not acting in his capacity as a City police officer at the time of the accident, noting Purifoy was not responding to a crime. Gilbert’s testimony is consistent with the plain meaning of the language used by the City in paragraph 4.02.05. A police officer employed by the City must always, whether on duty or off duty within the City, be prepared to act to protect the life and property of City residents. However, the language of paragraph 4.02.05 does not suggest an off-duty police officer acts within the scope of his City employment when engaged in activities other than law enforcement responsibilities assigned to him by the City.

Accordingly, we disagree with Austin’s contention that, pursuant to paragraph 4.02.05, Purifoy was acting within the scope of his City employment at the time of the accident merely because he remained within the city limits. The reference in paragraph 4.02.05 to police officers always being considered on duty while in the City is consistent with applicable statutory and case law. Paragraph 4.02.05, however, does not control the question of whether Purifoy was acting within the scope of his employment by the City at the time of the accident. We consider the capacity in which the officer was acting at the time he committed the acts that are subject of the complaint. At the time of the accident, Purifoy was returning to the location of his private, off-duty employment. He had not been contacted by the police dispatcher to respond to a call or to engage in his official police officer duties, he was not responding to an emergency, such as a citizen in need of assistance, and he was not engaged in a law enforcement duty of preserving the peace. At the time of Purifoy’s acts complained of, he was acting in his off-duty capacity of providing security for a private employer.

We also disagree with Austin’s alternative pleading that at the time of the accident, Purifoy was performing a task of crime deterrence that was “lawfully assigned to him by [the City]” when he obtained Unit 501, “assigned” by the City to be used at Wal-Mart, from the City’s police department. At the time of the accident, Purifoy was returning to his place of off-duty private employment. He was not operating in his capacity as a City police officer during his return travel to his off-duty job site at Wal-Mart. See Gibbons, 150 S.W.3d at 882 (because police officer is in a patrol car does not necessarily mean officer is on-duty). Moreover, while having a patrol vehicle parked at a business within the City may have some benefit to the public generally as a visible deterrent against criminal activity, the City did not require Purifoy, in his capacity as an off-duty security employee of Wal-Mart, to obtain Unit 501 and park the marked unit at the retail location of the private employer. Rather, the City permitted Unit 501 to be parked at the retail location, subject to its availability. In his capacity as an off-duty security employee, Purifoy obtained Unit 501 for the purpose of enhancing security by deterring criminal activity on the premises of his private employer.

The City produced evidence establishing that Purifoy was not acting within the scope of his employment for the City at the time of the accident. Therefore, the doctrine of respondeat superior is inapplicable to the City. Austin’s claim against the City for the alleged negligence of Puri-foy is barred by the doctrine of governmental immunity. We sustain the City’s first, third, and fifth issues.

In its second issue, the City asserts it has not waived its governmental immunity because no condition of Unit 501 caused the accident in question. Austin responds that the City’s governmental immunity has been waived because her pleadings allege conditions of the patrol vehicle caused the accident resulting in Hall’s death. Specifically, Austin’s pleading alleges and she argues in her appellate brief that Unit 501’s odometer and speedometer were inoperable, causing Purifoy to travel at an excessive rate of speed and the accident at issue.

Section 101.021(2) provides that a governmental unit is liable for:

personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.

Tex. Civ. Prac. & Rem.Code Ann. § 101.021(2). This provision waives governmental immunity for a claim of personal injury or death based upon a condition of tangible personal property if the governmental unit would, were it a private person, be liable to the claimant. See Ra mos v. City of San Antonio, 974 S.W.2d 112, 116 (Tex.App.-San Antonio 1998, no pet.) (police car is tangible personal property).

Texas courts have consistently required a nexus between the condition or use of the property and the injury or death. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 543 (Tex.2003); Tex. Dep’t of Criminal Justice v. Miller, 51 S.W.3d 583, 588 (Tex.2001); Dallas County Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 342-43 (Tex.1998). This nexus requires more than mere involvement of property; rather, the condition or use must actually have caused the injury. Id. at 343. Property does not cause injury if it does no more than furnish the condition that makes the injury possible. Miller, 51 S.W.3d at 588; Bossley, 968 S.W.2d at 343.

The testimony of the City’s mechanic, Jason Thomas, is uncontroverted that the speedometer on Unit 501 was working properly at the time of the accident. Thomas testified that his mechanic duties included preventative maintenance and repair of the City’s vehicles and tractors. Preventative maintenance is performed on the City’s vehicles every three thousand miles or three months, whichever comes first. Therefore, even with the odometer failing to record the mileage on Unit 501 to trigger maintenance at increments of 3,000 miles, preventative maintenance was performed at least every three months on Unit 501. If a problem was identified with a vehicle during preventative maintenance, the vehicle was either repaired or taken out of service. Thomas testified that he drove City vehicles in the process of performing maintenance and during test drives would observe the speedometer for functionality. Although the evidence established that Unit 501’s odometer was not functional at the time of the accident, there is no evidence that the patrol vehicle’s speedometer was not functioning properly. Thomas testified that on 1994 Crown Vic-torias such as Unit 501, the odometer and speedometer are not linked and function independently. The speedometer operates through a cable to the transmission. The odometer operates through a sensor linked to a computer chip. Therefore, even though Unit 501’s odometer was not functioning at the time of the accident, there is no evidence the speedometer was not functioning.

Austin’s allegation and inference that a malfunctioning speedometer caused Puri-foy to travel at an excessive rate of speed, resulting in the accident, must fail in light of the uncontroverted evidence to the contrary. Austin’s claim against the City relating to the alleged defective condition of Unit 501 is barred by the doctrine of governmental immunity. We sustain the City’s second issue.

Having concluded in our disposition of the City’s first, second, third, and fifth issues that the City is entitled to dismissal of Austin’s claims against it for lack of subject matter jurisdiction, it is not necessary to address the City’s fourth, sixth, seventh, and eighth issues. See Tex.R.App. P. 47.1 (opinion need only address the issues “raised and necessary to final disposition of the appeal”).

Conclusion

We conclude the trial court erred in denying the City’s plea to the jurisdiction. We reverse the trial court’s order denying the City’s plea to the jurisdiction and render judgment dismissing Austin’s claims against the City for lack of subject matter jurisdiction.

      . Purifoy is not a party to the lawsuit.

      . The terms "sovereign immunity” and "governmental immunity” are often used interchangeably. The supreme court, however, has distinguished the terms, stating that sovereign immunity protects the State and the various divisions of State government from suit and liability, while governmental immunity protects political subdivisions of the State, including counties, cities, and school districts. See Wichita Falls Stale Hosp. v. Taylor, 106 S.W.3d 692, 694 n. 3 (Tex.2003). Therefore, we analyze the City’s issues in the context of governmental immunity.


author: PER CURIAM.

text:
    In re JEFFERSON COUNTY APPRAISAL DISTRICT.
    No. 09-10-00074-CV.
    Court of Appeals of Texas, Beaumont.
    Submitted April 8, 2010.
    Decided June 10, 2010.

      Amanda G. Taylor, Amy Keith, Robert Summers, Hohmann, Taube & Summers, Austin, Robert Q. Keith, Keith & Weber, Cypress Mill, for relator.
    Edward Kliewer, III, William T. Sullivan, Rosemarie Kanusky, Fulbright & Ja-worski L.L.P., San Antonio, M.C. Carring-ton, Patricia Chamblin, Mehaffy Weber, Beaumont, Steven A. Kuntz, Jay M. Cha-dha, Fulbright & Jaworski L.L.P., Houston, for real parties in interest.
    Before McKEITHEN, C.J., GAULTNEY and KREGER, JJ.
   OPINION

PER CURIAM.

Jefferson County Appraisal District (“JCAD”) seeks a writ of mandamus compelling the trial court to vacate orders granting Total Petrochemicals, USA, Inc., Total Par L.P., Total Par General Partner, L.L.C., and Total Par Limited Partner, L.L.C.’s (collectively “Total”) motion to compel discovery related to the identity of JCAD’s jury consultant, and denying JCAD’s Motion to Reconsider and Motion for Protective Order on its assertion of discovery objections and privileges. JCAD further asks this Court to enter a modified order, sustaining each of JCAD’s assertions of privilege and objections to Total’s interrogatories, and reversing the trial court’s order directing JCAD to supplement its discovery responses and to “conclude that JCAD is not required to produce any of the information sought by Total, and that Total is not entitled to depose JCAD’s jury consultant.” Because the information Total seeks to discover is privileged or outside the scope of discovery, we conditionally grant the writ of mandamus.

BACKGROUND

Total filed the underlying lawsuit challenging JCAD’s tax appraisal for Total’s refinery in Port Arthur, Texas. While deposing Mark Brumbaugh, one of JCAD’s designated testifying experts, Total learned that counsel for JCAD had conducted a mock trial utilizing the services of a trial/jury consultant. Brumbaugh was questioned extensively during his deposition regarding the mock trial. Among other things, Total questioned Brumbaugh regarding who was present at the mock trial, the number of jurors who participated, the length of the mock trial, the conclusions or opinions expressed by the jurors, how the case was presented to the jurors, where the mock trial was held, whether Brum-baugh or other witnesses testified in the mock trial, and the identity of the consulting company that conducted the mock trial. Brumbaugh answered each of the questions without objection by counsel for JCAD. Brumbaugh provided details about the arguments presented, as well as his perception of the jurors’ reaction to those arguments.

Brumbaugh’s billing records showed that several days later he spent seven hours doing “mock trial follow-up.” Brum-baugh explained that he had several telephone conversations with JCAD’s lawyers reviewing the mock trial. Total also questioned Brumbaugh regarding the substance of those telephone conversations without objection by counsel for JCAD, wherein he explained:

Well, I was concerned that we didn’t win and I was — there were more questions about how the process works and why we represented the case the way we did and, you know, was — was reassured that we intentionally represented it in a way to — to feret [sic] out what might be our — our weakest arguments; not necessarily to try to see if we had good arguments ourselves, but to try to find where our holes were.

When asked if he had seen a copy of the consultant’s report, Brumbaugh responded that he had not.

Brumbaugh also answered questions about any changes made as a result of the adverse result of the mock trial and he responded, “we didn’t change anything as a result of that trial.” Specifically, Brum-baugh testified, “I don’t know if anybody else has changed their approach or tactics, but I didn’t change anything.” When questioned regarding whether there were any recommendations made by the consultants, Brumbaugh responded, “I don’t remember. None that influenced me or my approach.” Brumbaugh reiterated that he could not recall anything the jury consultant said at the conclusion of the mock trial, or the name of the jury consultant, but he agreed to provide the name at a later date.

Following Brumbaugh’s deposition testimony, Total sent JCAD a letter asking JCAD to “supplement [its] response to request for disclosure” with information about JCAD’s jury consultant. Because Rule 194.2(f) is expressly limited to requests for information about testifying experts, JCAD refused to supplement its responses to Total’s Request for Disclosure with information regarding its jury consultant. See Tex.R. Civ. P. 194.2(f). Thereafter, Total filed a Motion to Compel Designation of Undisclosed Experts and Related Discovery; arguing that based on Brumbaugh’s deposition testimony, “it is clear that [JCAD’s] testifying experts ... reviewed the mental impressions and opinions of [JCAD’s] mock trial/jury consultants.” Total requested that the trial court compel JCAD to “disclose the identities of the mock trial/jury consultants and disclose the information required by Rule 192.3(e).” Total also requested an order from the trial court allowing Total to depose the jury consultant.

On the morning of the hearing on Total’s Motion to Compel, Total served JCAD with the following four interrogatories seeking information about JCAD’s jury consultant and the mock trial:

1. With regard to any consulting expert whose mental impressions or opinions have been reviewed by a testifying expert, please provide the expert’s name, address, and telephone number.
2. Please identify by name and address all persons present during the Mock Trial which occurred in Beaumont, Texas on or about September 3, 2009.
3. Please identify by name and address all persons present during the Mock Trial follow-up which occurred on or about September 9, 2009.
4. Please identify by name and address the jury consultant in charge of the Mock Trial which took place in Beaumont, Texas on or about September 3, 2009.

Following the hearing, JCAD responded to the interrogatories. In response to interrogatory number one, JCAD responded in part, “None. JCAD’s ‘jury consultant’ is a member of JCAD’s trial team. He is not a consulting ‘expert’ as contemplated by the Texas Rules of Civil Procedure.” JCAD further stated in response to interrogatory number one that “no mental impressions or opinions of the jury consultant were reviewed by any testifying expert,” and objected that “such information is protected from disclosure by the work product privilege.” JCAD asserted various other objections and privileges in response to the remaining three interrogatories, including objections on the basis of relevance and attorney-client and work product privileges.

By order dated January 14, 2010, the trial court granted Total’s motion to compel the identity of JCAD’s consulting expert “for discovery purposes only” and further required JCAD to “supplement its responses to Plaintiffs’ discovery requests” to “identify the consultant(s) who conducted the subject mock trial so that he/they can be deposed by Plaintiffs.” Thereafter, JCAD filed a motion to reconsider, motion for protective order, request for an in camera review and request for hearing. After a hearing, by order dated February 5, 2010, the trial court denied the motion to reconsider and motion for protective order, overruled each JCAD’s objections and privileges asserted in response to Total’s interrogatories, and affirmed its prior order granting Total’s motion to compel. Thereafter, JCAD filed this petition for writ of mandamus.

MANDAMUS

An appellate court may issue a writ to correct an abuse of discretion for which relator has no adequate remedy by appeal. See Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992) (orig. proceeding). A failure by the trial court to apply the law correctly constitutes an abuse of discretion. Id. at 840. Likewise, a trial court abuses its discretion when it orders discovery exceeding the scope permitted by the rules of procedure. In re CSX Corp., 124 S.W.3d 149, 152 (Tex.2003) (orig. proceeding); see also In re Weir, 166 S.W.3d 861, 865 (Tex.App.-Beaumont 2005, orig. proceeding). When a trial court orders disclosure of privileged information, the aggrieved party lacks an adequate remedy by appeal and mandamus will lie. See Hide v. DeShazo, 922 S.W.2d 920, 928 (Tex.1996) (orig. proceeding); In re Baptist Hosp. of Se. Tex., 172 S.W.3d 136, 139 (Tex.App.-Beaumont 2005, orig. proceeding).

DEPOSITION OF THE TRIAL/JURY CONSULTANT

“In general, a party may obtain discovery regarding any matter that is not privileged and is relevant to the subject matter of the pending action[.]” Tex.R. Civ. P. 192.3(a). “While the scope of discovery is quite broad, it is nevertheless confined by the subject matter of the case and reasonable expectations of obtaining information that will aid resolution of the dispute.” Tex.R. Civ. P. 192, Texas Rules of Court, Vol. I, State 97, cmt. 1 (West 2010); see also In re Am. Optical Corp., 988 S.W.2d 711, 713 (Tex.1998) (“[Discovery] requests must be reasonably tailored to include only matters relevant to the case.”). The Texas civil procedure and evidence rules protect the work product and attorney-client privileges that developed from Texas common law. In re Baptist Hosp., 172 S.W.3d at 139. “Work product” is defined under the rules of procedure as:

(1) material prepared or mental impressions developed in anticipation of litigation or for trial by or for a party or a party’s representatives, including the party’s attorneys, consultants, sureties, indemnitors, insurers, employees, or agents; or
(2) a communication made in anticipation of litigation or for trial between a party and the party’s representatives or among a party’s representatives, including the party’s attorneys, consultants, sureties, indemnitors, insurers, employees, or agents.

Tex.R. Civ. P. 192.5(a). “[T]he work product of an attorney or an attorney’s representative that contains the attorney’s or the attorney’s representative’s mental impressions, opinions, conclusions, or legal theories — is not discoverable.” Tex.R. Civ. P. 192.5(b)(1). “Any other work product is discoverable only upon a showing that the party seeking discovery has a substantial need of the materials in the preparation of the party’s case and that the party is unable without undue hardship to obtain the substantial equivalent of the material by other means.” Tex.R. Civ. P. 192.5(b)(2).

“‘The primary purpose of the work product rule is to shelter the mental processes, conclusions, and legal theories of the attorney, providing a privileged area within which the lawyer can analyze and prepare his or her case.’ ” In re Bexar County Criminal Dist. Atty’s Office, 224 S.W.3d 182, 186 (Tex.2007) (quoting Owens-Coming Fiberglas Corp. v. Caldwell, 818 S.W.2d 749, 750 (Tex.1991)). The work product privilege “promote[s] the adversary system by safeguarding the fruits of an attorney’s trial preparations from the discovery efforts of the opponent.” Wiley v. Williams, 769 S.W.2d 715, 717 (Tex.App.-Austin 1989, orig. proceeding); see generally In re Certain Undenmters at Lloyd’s London, 294 S.W.3d 891, 898 (Tex.App.-Beaumont 2009, no pet.) (The work product privilege “protects materials and mental impressions prepared ‘in anticipation of litigation’ from discovery.”). We conclude that the jury consultant was retained to assist JCAD’s counsel with case strategy and presentation in anticipation of trial. In his affidavit, submitted with JCAD’s motion to reconsider, the jury consultant stated that the goal of the mock trial/focus group he conducted “was to determine how to best present the facts to a jury.” He further explained that his “mental impressions and opinions regarding how to best present the facts were then provided in a confidential report to JCAJD’s lawyers ... several weeks later.” As we explained in In re Baptist Hospitals:

[T]he ‘[pjroper presentation of a client’s case demands that [the attorney] assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. That is the historical and the necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients’ interests.’

In re Baptist Hosps., 172 S.W.3d at 139 (quoting Hickman v. Taylor, 329 U.S. 495, 511, 67 S.Ct. 385, 393, 91L.Ed. 451 (1947)).

In Baptist Hospitals, Baptist sued various contractors and engineering and architectural firms asserting claims related to the design and construction of a surgical center owned by Baptist. Beaumont Surgical Affiliates (“BSA”), real party in interest, was Baptist’s tenant at the center. BSA intervened in the lawsuit claiming Baptist breached the lease by failing to provide suitable premises. Id. In asserting its right to depose one of Baptist’s attorneys, BSA presented affidavits stating the attorney was involved in observing, investigating, monitoring, reviewing, and evaluating the technical problems at the surgery center. Id. at 142. BSA argued that the attorney’s involvement in that case was not the work of an attorney, but was more akin to the work of an engineer, construction manager, or relationship manager. Id. In holding that the trial court abused its discretion in ordering the deposition of trial counsel, we stated:

Every attorney of record in a case being litigated, or in a case where litigation is anticipated, obtains ‘factual, relevant information.’ Performing the function of a lawyer does not preclude a litigation attorney from observing, investigating, monitoring, and evaluating the facts surrounding the matter in controversy. The evidence does not show [the attorney] was a fact witness divorced from the litigation. His work was reasonably related to and in furtherance of the prosecution of Baptist’s case against the defendants, and also related to mitigating its damages regarding BSA and to defending against BSA’s causes of action. We conclude his activities fall within the Rule 192.5 work product definition.

Id. at 143. The same holds true for work performed in anticipation of trial by an attorney’s consultants, employees, and agents. Tex.R. Civ. P. 192.5(a)(1).

Discovery of the jury consultant’s discussions with JCAD’s legal counsel, including notes of such discussions, may reflect the mental impressions and legal theories of JCAD’s counsel. Therefore, such information goes to the core of the work product doctrine and is not discoverable. See Tex.R. Civ. P. 192.5(b)(1). Likewise, any material or impressions developed by the jury consultant in anticipation of trial that reflect the consultant’s opinions or conclusions is ordinarily not discoverable, unless otherwise disclosed or reviewed by a testifying expert. See id.; see also Tex.R. Civ. P. 192.3(e). Work product that does not reflect the impressions, opinions, conclusions, or legal theories of JCAD’s counsel or the jury consultant may be discoverable only upon a showing “that the party seeking discovery has substantial need of the materials in the preparation of the party’s case” and the party is unable to obtain the materials by other means “without undue hardship[.]” Tex.R. Crv. P. 192.5(b)(2). The Total entities have not made, or attempted to make, such a showing nor have they identified any evidence in the record showing that such information was reviewed by a testifying expert. See id.; see also Tex.R. Civ. P. 192.3(e). Total is not entitled to depose the jury consultant. See Tex.R. Civ. P. 192.5, 192.3(e).

Total argues that JCAD waived the work product privilege by allowing its testifying experts to view the mock trial. See generally Tex.R. Civ. P. 192.5(c)(1), 192.3(e). We disagree. Brumbaugh testified that he had not seen a copy of the jury consultant’s report. Additionally, JCAD submitted uncontroverted affidavits from its testifying experts, JCAD’s counsel, and the jury consultant, which establish that no privileged information was disclosed to JCAD’s testifying experts in conjunction with their viewing of the mock trial. In support of its contention that JCAD waived its work product privilege, Total cites Rule 192.3(e) of the Texas Rules of Civil Procedure and In re Christus Spohn Hosp. Kleberg, 222 S.W.3d 434, 438 (Tex.2007) (orig. proceeding).

Rule 192.3(e) of the Texas Rules of Civil Procedure allows the discovery of certain information “regarding a consulting expert whose mental impressions or opinions have been reviewed by a testifying expert[.]” Tex. R. Civ. P. 192.3(e). Christus involved documents related to an internal investigation performed by Christus Spohn Hospital and inadvertently produced by a paralegal to the hospital’s testifying expert. In re Christus, 222 S.W.3d at 436. The plaintiff sought to depose the hospital’s expert and requested all documents furnished to the expert in connection with her consultation on the case. Id. Documents related to the hospital’s internal investigation were brought to the deposition, at which time the hospital’s counsel learned they had been forwarded to the expert. Id. As a matter of first impression, the Supreme Court held that expert-disclosure rules set forth in Rule 192.3 precluded the snap-back of documents inadvertently produced so long as the expert remained designated to testify at trial. Id. at 438-45. Here, the evidence establishes that JCAD has not produced, or otherwise disclosed the contents of, the jury consultant’s report to its testifying experts. See Tex.R. Civ. P. 192.3(e), 192.5(c)(1). Christus is inapplicable to the present case.

Total further argues that it is “not seeking any information beyond what has been seen or heard by the testifying experts.” Significantly, however, Total was not precluded from questioning JCAD’s testifying experts regarding what they saw or heard at the mock trial. Total questioned Brum-baugh extensively regarding the mock trial and how, if at all, the mock trial affected his expert opinion. See Tex.R. Civ. P. 192.3(e)(3). As pointed out by Total, JCAD lodged no objections to these questions. See Tex.R. Civ. P. 199.5(e), (f). Total has not sought to depose JCAD’s other testifying expert, Paul Hornsby. Because Total is not entitled to depose the jury consultant, the trial court’s order granting Total’s motion to compel was improper.

TOTAL’S INTERROGATORIES

Generally, the trial court has discretion to control the scope of discovery for the cases over which it presides. See Dillard, Dep’t Stores, Inc. v. Hall, 909 S.W.2d 491, 492 (Tex.1995) (orig. proceeding). However, its discretion is not unlimited, as the trial court is obligated to make an effort to impose reasonable discovery limits. In re Am. Optical Corp., 988 S.W.2d at 713. Ordering discovery that exceeds “that permitted by the rules of procedure” constitutes an abuse of discretion. Texaco, Inc. v. Sanderson, 898 S.W.2d 813, 815 (Tex.1995). The trial court’s order of February 5, 2010, denied JCAD’s motion for protective order and overruled each of JCAD’s objections and privileges asserted in response to the interrogatories of Total. The identity of persons present during the mock trial or during any follow-up communications regarding the mock trial, as sought in Total’s interrogatories, is irrelevant and outside the proper scope of discovery. See generally Tex.R. Evid. 401; see also Tex.R. Civ. P. 192.3,192.5.

CONCLUSION

We find the trial court abused its discretion in ordering discovery that exceeds the scope permitted by the rules, and JCAD has no adequate remedy by appeal. See Walker, 827 S.W.2d at 843. The writ of mandamus is conditionally granted. The trial court shall vacate its orders signed on January 14, 2010, and February 5, 2010. We are confident the trial court will comply with this opinion. A writ will issue only if the trial court fails to comply.

WRIT CONDITIONALLY GRANTED.

      . JCAD initially submitted the affidavit of the jury consultant in camera with its motion to reconsider and, thereafter, served a copy of the affidavit, with all identifying information redacted, on Total. In his affidavit, submitted with JCAD's motion to reconsider, the jury consultant stated that pursuant to the engagement letter he sent to JCAD, he and JCAD’s counsel agreed that he was "neither being retained as an expert witness on liability or damages issues, nor as a consulting expert.” He explained that he specializes in "case presentations, witness communications, trial strategy and jury selection” and confirmed that he had "no factual knowledge about this case except for knowledge acquired from ... [JCAD's] counsel.” He further stated that he has "no specialized knowledge or expertise relating to any of the substantive issues in this case” and has "never formed any opinions or mental impressions relating to the subject matter or claims or defenses in this case.”

      . With its motion to reconsider and motion for protective order, JCAD submitted affidavits from its testifying experts, Brumbaugh and Paul Hornsby, as well as an affidavit from counsel for JCAD, and an affidavit from the jury consultant for in camera review by the court.
      In Brumbaugh's affidavit he stated that he attended the mock trial, but remained in a viewing room where he viewed the entire proceeding on a monitor. Brumbaugh stated that he met the jury consultant but otherwise had limited contact with the consultant. Brumbaugh stated, “at no time ... did the [jury] consultant ever give any opinions or mental impressions related to this case.” Brumbaugh further stated, “I have not been in communication with the [jury] consultant since [the date of the mock trial], not have I ever viewed any written communication from him or reports prepared by him.”
      Total has not sought to depose JCAD’s other designated testifying expert, Paul Hornsby. In his affidavit, Hornsby also stated that he viewed the mock trial on a monitor in the viewing room, that on the date of the mock trial he had limited contact with the jury consultant, and that the jury consultant did not give any opinions or mental impressions relating to the case. Hornsby likewise stated that he has not been in communication with the consultant since the date of the mock trial and has never viewed any written communication from him or reports prepared by him.
      In an affidavit submitted by counsel for JCAD, counsel stated that he also viewed the mock trial and jury deliberations from a monitor in the viewing room. According to counsel, the consultant introduced himself to those in the viewing room but "except during a brief lunch, the [jury] consultant was not in the [v]iewing [r]oom.” Counsel stated that “[a]t no time [on the date of the mock trial] ... did the [jury] consultant ever express any opinions or mental impressions.” According to counsel, “[approximately two weeks following [the mock trial date] the [jury] consultant delivered a report to trial counsel containing his opinions relating to the mock trial/focus group." Counsel confirmed that "[n]either Mr. Hornsby nor Mr. Brumbaugh has ever seen the [jury] consultant's report, and none of the contents of the report has otherwise been disclosed to them.”
      The affidavit of the jury consultant, submitted in camera, stated “[flhroughout the data gathering process on [the date of the mock trial], I had neither formed nor did I state any opinions or mental impressions regarding how to best present the facts.” Additionally, the affidavit stated, "[furthermore mock trials/focus groups do not cause me to form any opinions or mental impressions relating to the subject matter [of the case].” "Any mental impressions and opinions regarding how to best present the facts to a jury were not formed until after the mock trial/focus group was completed.... My mental impressions and opinions regarding the [sic] how to best present the facts were then provided in a confidential report to JCAD’s lawyers only several weeks later.” "Following the mock trial, I have neither met nor communicated with Mr. Hornsby or Mr. Brumbaugh.”

      .Texas Rule of Civil Procedure 192.3(e) provides as follows:
      (e) Testifying and Consulting Experts. The identity, mental impressions, and opinions of a consulting expert whose mental impressions and opinions have not been reviewed by a testifying expert are not discoverable. A party may discover the following information regarding a testifying expert or regarding a consulting expert whose mental impressions or opinions have been reviewed by a testifying expert:
      (1) the expert's name, address, and telephone number;
      (2) the subject matter on which a testifying expert will testify;
      (3) the facts known by the expert that relate to or form the basis of the expert's mental impressions and opinions formed or made in connection with the case in which the discovery is sought, regardless of when and how the factual information was acquired;
      (4) the expert's mental impressions and opinions formed or made in connection with the case in which discovery is sought, and any methods used to derive them;
      (5) any bias of the witness;
      (6) all documents, tangible things, reports, models, or data compilations that have been provided to, reviewed by, or prepared by or for the expert in anticipation of a testifying expert's testimony;
      (7) the expert’s current resume and bibliography.
      Tex.R. Civ. P. 192.3(e).

      . According to the Hospital's counsel, the paralegal who sent the documents to the Hospital's testifying expert had recently moved to Texas from California, where she understood that all materials forwarded to an expert witness remained confidential. She assumed the same rule applied in Texas.

      . Total also cites Tom L. Scott, Inc. v. Mcllhany, 798 S.W.2d 556, 559 (Tex.1990) (orig. proceeding) and In re Family Hospice, Ltd., 62 S.W.3d 313, 315 (Tex.App.-El Paso 2001, orig. proceeding), in support of its waiver argument. In Mcllhany, the Texas Supreme Court held that parties could not circumvent the discovery rules by re-designating their testifying experts as consulting only experts. Mcllhany, 798 S.W.2d at 560. Similarly, in
        In re Family Hospice, the court held that because the documents at issue were “the product and/or documentation of the mental impressions of a testifying expert,” the documents were discoverable. In re Family Hospice, Ltd., 62 S.W.3d at 316. Neither Mcllhany nor In re Family Hospice involved waiver.

      . Total appears to recognize the same. In its response to JCAD's petition, Total states that "[d]uring Brumbraugh's deposition, TOTAL'S attorney asked at least a dozen different questions concerning the details of the mock trial and its follow up. Brumbraugh responded to each question without objection.”


author: DIANE M. HENSON, Justice.

text:
    Anthony Allen JONES, Appellant, v. STATE BOARD OF EDUCATOR CERTIFICATION, Appellee.
    No. 03-09-00223-CV.
    Court of Appeals of Texas, Austin.
    June 11, 2010.

      Sheri L. Caldwell, Hermes Sargent Bates, LLP, Dallas, TX, for Appellant.
    Ellen Sameth, Office of the Attorney General, Environmental Protection and Administrative Law Division, Austin, TX, for Appellee.
    Before Justices PATTERSON, PURYEAR and HENSON.
   OPINION

DIANE M. HENSON, Justice.

Appellant Anthony Allen Jones appeals from the trial court’s grant of the plea to the jurisdiction filed by the State Board of Educator Certification (the “Board”) in Jones’s suit for judicial review of an administrative disciplinary proceeding. We affirm the trial court’s order granting the plea to the jurisdiction.

BACKGROUND

Jones was certified by the Board and taught special education in Texas from 1995 to 2003. In September 2006, the Board filed an administrative complaint against Jones based on allegations that he had physically assaulted a special education student and had engaged in unprofessional conduct toward two other students. Jones disputed the charges, and on August 23, 2007, a contested case hearing was held at the State Office of Administrative Hearings (“SOAH”). The administrative law judge (the “ALJ”) issued a proposal for decision finding that Jones “is worthy to continue to instruct the youth of this state,” but recommending that Jones take 30 classroom hours in anger management training and 30 classroom hours in proper classroom discipline and management of special education students. The ALJ also found that while Jones’s conduct in certain instances violated the code of ethics for teachers, the Board had not proven that Jones exhibited a pattern of inappropriate behavior toward special education students.

After reviewing the ALJ’s proposal for decision, the Board issued its final decision and order. Contrary to the proposal for decision, the Board found that Jones “shows a pattern of inappropriate treatment of special education students” and that “he is presently unworthy to instruct the children of this state.” The Board adopted the ALJ’s recommendation that Jones be required to take 30 hours of anger management training and 30 hours of classroom management for special education classrooms, but also suspended Jones’s teaching certification for three years. The Board notified Jones of its decision by letter dated February 7, 2008, which was received by Jones’s counsel on February 11, 2008.

Jones timely filed a motion for rehearing of the Board’s decision on February 29, 2008. See Tex. Gov’t Code Ann. § 2001.146(a) (West 2008) (upon receiving notice of agency decision, party has 20 days to file motion for rehearing). This motion was deemed overruled by operation of law on March 27, 2008. See id. § 2001.146(c) (in absence of agency action, motion for rehearing is overruled by operation of law on 45th day after party receives notice of decision). On April 21, 2008, however, the Board sent Jones notice that his motion for rehearing would be considered at the Board’s May 9, 2008 public meeting. The public-meeting notice further informed Jones that he could appear at the meeting and testify before the Board. The agenda for the Board’s May 9, 2008 meeting contains an action item for consideration of Jones’s motion for rehearing, but the motion was not actually addressed at the meeting. On May 13, 2008, the Board sent Jones a letter notifying him that his motion for rehearing had been overruled by operation of law.

On June 6, 2008, Jones filed a petition for judicial review of the Board’s decision in Travis County district court. In response, the Board filed a plea to the jurisdiction asserting that the trial court lacked jurisdiction because Jones failed to seek judicial review of the decision within 30 days after his motion for rehearing was overruled by operation of law on March 27, 2008. See id. § 2001.176(a) (West 2008) (petition for judicial review in contested case must be filed no later than 30th day after decision becomes final and appeal-able); see also id. § 2001.144 (West 2008) (decision in contested case is considered final when timely filed motion for rehearing is overruled by operation of law). Jones argued that his petition was timely filed because the Board’s public-meeting notice extended the deadline for action on his motion for rehearing, either as a written order under section 2001.146(e) or an agreement between the parties under section 2001.147, and therefore extended the deadline for filing his petition for review. See id. §§ 2001.146(e) (permitting agency to issue written order extending deadline for action on motion for rehearing), .147 (allowing parties to contested case to agree to modify deadlines related to motions for rehearing) (West 2008). The trial court granted the Board’s plea to the jurisdiction, and this appeal followed.

STANDARD OF REVIEW

A plea to the jurisdiction is a dilatory plea that seeks dismissal of a case for lack of subject-matter jurisdiction. Hams County v. Sykes, 136 S.W.3d 635, 638 (Tex.2004). In an appeal from a plea to the jurisdiction, we “review the face of appellants’ pleadings to determine whether they show a lack of jurisdiction or whether the pleadings, if liberally construed, favored jurisdiction.” Atmos Energy Corp. v. Abbott, 127 S.W.3d 852, 855 (Tex.App.Austin 2004, no pet.). Whether a trial court has subject-matter jurisdiction is a question of law we review de novo. West-brook v. Penley, 231 S.W.3d 389, 394 (Tex.2007). If the pleadings do not affirmatively demonstrate the trial court’s jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and the plaintiffs should be afforded the opportunity to amend. Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226-27 (Tex.2004). If the pleadings affirmatively negate jurisdiction, then a plea to the jurisdiction may be granted without allowing an opportunity to amend. Id. at 227.

DISCUSSION

Jones’s issues on appeal can be summarized as a single issue contending that the trial court erred in granting the Board’s plea to the jurisdiction because the public-meeting notice operated to extend the deadline for the Board to act on his motion for rehearing and therefore also extended the deadline for filing his petition for judicial review.

Disciplinary proceedings before the Board are governed by the Administrative Procedure Act (the “APA”), Tex. Gov’t Code Ann. §§ 2001.001-.902 (West 2008). See Tex. Educ.Code Ann. § 21.041(b)(7) (West Supp.2009). The APA provides that a petition for judicial review of an agency decision in a contested case must be filed no later than 30 days after the date the decision becomes final. See Tex. Gov’t Code Ann. § 2001.176(a). In suits against governmental entities, a timely filed petition for judicial review is a statutory prerequisite to suit, so that failure to comply deprives the trial court of jurisdiction to review the agency decision. See id. § 311.034 (West 2008) (“Statutory prerequisites to a suit ... are jurisdictional requirements in all suits against a governmental entity.”).

Under the APA, if a timely motion for rehearing is filed, an agency decision becomes final and appealable when that motion is overruled, either expressly or by operation of law. Tex. Gov’t Code Ann. § 2001.144(a)(2). Thus, the Board’s decision in this case became final and appeal-able when Jones’s motion for rehearing was overruled by operation of law on March 27, 2008, making Jones’s petition for review due on April 26, 2008, 30 days after the decision became final. See id. § 2001.176(a).

Jones argues, however, that when the Board sent its public-meeting notice on April 21, 2008, after the motion for rehearing was overruled but prior to the deadline for his petition for judicial review, the Board extended the time for agency action on his motion for rehearing under government code section 2001.146(e), which states:

A state agency may by written order extend the time for filing a motion or reply or taking agency action under this section [governing motions for rehearing], except that an extension may not extend the period for agency action beyond the 90th day after the date on which the party or the party’s attorney of record is notified ... of the decision or order that may become final under Section 2001.144.

Id. § 2001.146(e). Jones takes the position that the public-meeting notice constituted a written order under section 2001.146(e), which extended the time for agency action on his motion for rehearing and prevented the Board’s decision from becoming final until he received the Board’s letter stating that his motion for rehearing had been overruled by operation of law. Consequently, Jones argues, the 30-day deadline for filing his petition for review did not begin to run until May 13, 2008, making his petition timely filed.

In the alternative, Jones argues that even if the Board’s notice did not constitute a written order under section 2001.146(e), it qualifies as an agreement between the parties under section 2001.147, which provides that “[t]he parties to a contested case, with state agency approval, may agree to modify the times prescribed by Section[ ] ... 2001.146.” Id. § 2001.147. The Board responds that it had no jurisdiction to extend the time for acting on the motion for rehearing once it had been overruled, and that the public-meeting notice, issued in error, represented neither a written order under section 2001.146(e) nor an agreement between the parties under section 2001.147.

Because the public-meeting notice was issued after Jones’s motion for rehearing had been overruled by operation of law, the threshold issue in this case is whether the Board has the power to extend the time for taking action on a motion for rehearing once the motion has been overruled and the Board’s decision has been rendered final and appealable. If the Board has no such authority, then we need not reach the questions of whether the public-meeting notice constituted a written order to extend the time limits under section 2001.146(e) or an agreement to do so under section 2001.147, because the public-meeting notice would be legally irrelevant.

The filing of a motion for rehearing under the APA has been analogized to the filing of a motion for new trial in civil practice. See El Paso Elec. Co. v. Public Util. Comm’n, 715 S.W.2d 734, 737 (Tex. App.-Austin 1986, writ ref d n.r.e.); Houston Mobilfone, Inc. v. Public Util. Comm’n, 565 S.W.2d 323, 325-26 (Tex.Civ.App.-Eastland 1978, no writ). In Houston Mobilfone, the court held that when an agency issued an order overruling a motion for rehearing after the motion had already been overruled by operation of law, the order was a nullity and did not operate to extend the deadline for filing a petition for judicial review. 565 S.W.2d at 326. In reaching this conclusion, the court noted that in the civil context, a motion for new trial is overruled by operation of law 45 days after it is filed, and “a subsequent order purporting to overrule the motion is a nullity.” Id.; see also Tex.R. Civ. P. 329b (c).

We note that while Rule 329b(e) gives the trial court plenary power to grant a new trial or to vacate, modify, correct, or reform the judgment for an additional 30 days after any motion for new trial has been overruled, see Tex.R. Civ. P. 329b(e), the APA does not include a similar provision expressly giving an agency plenary power to extend deadlines for agency action on a motion for rehearing for a specified time after the motion is overruled. Jones takes the position that section 2001.146(e) gives an agency plenary power, for 90 days after notice of a decision, to issue orders extending the time for action on a motion for rehearing, even if that motion has already been overruled by operation of law. Tex. Gov’t Code Ann. § 2001.146(e). We disagree with this reading of section 2001.146(e). As previously stated, section 2001.146(e) provides that a “state agency may by written order extend the time for filing a motion or reply or taking agency action under this section, except that an extension may not extend the period for agency action beyond the 90th day” after the party receives notice of the decision. Id. The plain language of the statute indicates that the 90-day period represents the maximum amount of time that the deadline may be extended, not the maximum time period during which the agency may take action to extend the deadline. See id. In other words, the agency may issue an order extending the deadline for action on the motion to the 90th day, provided the motion has not yet been overruled at the time the order is issued, but the agency could not wait until the 89th day, long after the motion has been overruled by operation of law, and then issue an order extending the deadline for action to the next day. This same conclusion was reached in Houston Mobilfone, in which the court, applying the predecessor statute to section 2001.146, determined that a motion for rehearing became final and appealable when the agency failed to act on it within 45 days and did not “by written order within the original 45 days grant an extension of time.” 565 S.W.2d at 325. This language supports our interpretation of section 2001.146(e) to mean that while an agency may extend the time limits for action on a motion for rehearing, it must do so before that motion is overruled.

The facts and issues in the present case are similar to those in Texas Alcoholic Beverage Commission v. Sfair, 786 S.W.2d 26 (Tex.App.-San Antonio 1990, writ denied). In that case, the agency expressly overruled the Sfairs’ motion for rehearing in a contested case proceeding, making the agency decision final and appealable under the APA. Id. at 27. Two weeks later, however, the agency issued a second order sua sponte granting rehearing. Id. Additional administrative proceedings followed, and the Sfairs eventually filed for judicial review. Id. On appeal from the trial court’s decision in favor of the Sfairs, the agency asserted that the trial court lacked jurisdiction because the Sfairs’ petition was not filed within 30 days of the date their original motion for rehearing was overruled. Id. The court of appeals agreed, stating that despite the agency’s subsequent action of sua sponte granting rehearing, the decision became final when the motion for rehearing was initially overruled, and the appellate timetable began running on that date. Id. The court reasoned:

The Sfairs’ tardiness was undoubtedly brought on by the actions taken by the Commission in sua sponte granting the rehearing and setting a new hearing date.
However, the [APA] is clear: the decision became final and appealable on the date that the Commission overruled the Sfairs’ motion for rehearing. Thus, regardless of the Commission’s subsequent actions, the Sfairs’ time for appeal started on November 10, 1987.... The fact that the agency may have erred in sua sponte granting the motion for rehearing and engaging in subsequent proceedings does not excuse the Sfairs’ late filing of their petition in the district court.

Id. at 27-28 (citations omitted).

Like the agency in Sfair, the Board in this case took action after the motion for rehearing was overruled that was inconsistent with the finality of the decision, leading the affected party to believe that the deadline for seeking judicial review had been extended. Nevertheless, the agency decision, both here and in Sfair, became final and appealable under the APA on the date the motion for rehearing was overruled, and the agency’s subsequent actions had no effect on the deadline for filing a petition for judicial review. See id.; see also State v. Triax Oil & Gas, Inc., 966 S.W.2d 128, 126 (Tex.App.-Austin 1998, no pet.) (“[A] party is charged with the knowledge that the motion for rehearing is overruled by operation of law at forty-five days....”).

“An appeal from an administrative agency is not a matter of right, it is set out by statute and must be strictly complied with in order to vest the district court with jurisdiction.” Sfair, 786 S.W.2d at 27. While Jones was perhaps understandably misled by the Board’s actions in this case, the fact remains that he failed to comply with the statutory requirement that a petition for judicial review be filed within 80 days of the date the Board’s decision became final. See Tex. Gov’t Code Ann. § 2001.176(a); see also id. § 311.034. Further, we note the importance of construing the APA to allow parties to rely on the finality of agency decisions. As the court pointed out in Houston Mobilfone, “Without a mandatory adherence to the time limits specified in the [APA], the finality of administrative agency decisions would be uncertain and not in the public interest. The Legislature would not so intend.” 565 S.W.2d at 327. Because a party is required to exhaust all available administrative remedies before seeking judicial review, the APA must be construed in a manner that allows litigants to clearly recognize when those remedies have been exhausted. See Tex. Gov’t Code Ann. § 2001.171.

Based on the foregoing, we hold that once Jones’s motion for rehearing was overruled by operation of law, the Board did not have the power to extend the deadline for action on the motion for rehearing under either section 2001.146(e) or section 2001.147 of the APA. The 30-day time period for filing a petition for judicial review began to run when Jones’s motion for rehearing was overruled on March 27, 2008. Because Jones’s petition was not filed within 30 days of that date, the trial court had no jurisdiction to consider his suit for judicial review and therefore did not err in granting the Board’s plea to the jurisdiction.

CONCLUSION

We affirm the trial court’s order granting the plea to the jurisdiction and dismissing Jones’s suit for judicial review.

      . The ALJ's proposal for decision includes a footnote stating, "In its amended notice of hearing, Staff seeks a three-year suspension and continuing education; however, Staff seems to have abandoned the three-year suspension penalty. In its post-hearing brief, Staff only discusses the 60 hours of continuing education and never mentions the three-year suspension.” The Board subsequently filed exceptions to the proposal for decision, taking exception to the ALJ’s failure to grant a suspension. The ALJ declined to amend the proposal for decision.

      . For this reason, we note that if Jones had filed a petition for judicial review within 30 days of his motion being overruled by operation of law, the Board would not have been entitled to prevail on a plea to the jurisdiction based on failure to exhaust administrative remedies. Despite the public-meeting notice indicating the Board’s future intent to consider Jones’s motion for rehearing, Jones's administrative remedies were exhausted when his motion for rehearing was overruled by operation of law.

      . In light of this conclusion, we do not reach the issues of whether the public-meeting notice constituted either an order under section 2001.146(e) or an agreement under section 2001.147. See Tex.R.App. P. 47.1 (requiring opinions to be as brief as practicable in addressing issues necessary to final disposition of appeal).


author: Chief Justice WRIGHT.

text:
    The BECKHAM GROUP, P.C., Appellant, v. Gulsam Taylan SNYDER and Robert L. Snyder, Appellees.
    No. 05-09-00491-CV.
    Court of Appeals of Texas, Dallas.
    June 16, 2010.

      J. Darlene Ewing, Sunnyvale, Blake L. Beckham, Beckham & Thomas, L.L.P., Sarita Smithee, The Beckham Group, Dallas, for Appellant.
    Diana S. Friedman, Diana S. Friedman, P.C., Michael K. Hurst, Gruber Hurst Jo-hansen & Hail LLP, Dallas, for appellees.
    Before Chief Justice WRIGHT and Justices O’NEILL and MYERS.
   OPINION

Opinion By

Chief Justice WRIGHT.

In a single issue, the Beckham Group, P.C. contends the trial court abused its discretion by granting an order severing appellant’s claim for attorney’s fees from the underlying divorce action between Gul-sam Taylan Snyder and Robert L. Snyder. Because we conclude the severance order is not a final, appealable order, we dismiss for want of jurisdiction.

Background

On November 15, 2005, appellees filed for divorce. On November 18, 2008, appellant intervened seeking payment of attorney’s fees. On March 5, 2009, appellees mediated a settlement of the divorce issues, but not the payment of attorney’s fees owed to appellant. Then on March 9, 2009, Gulsam Snyder filed a motion to sever appellant’s claim for attorney’s fees from the divorce. After considering the motion and appellant’s response and opposition, the trial court signed an order severing appellant’s attorney’s fees claim. The agreed final decree of divorce was signed by the trial court on April 15, 2009.

Discussion

Appellate jurisdiction is never presumed. Brashear v. Victoria Gardens of McKinney, L.L.C., 802 S.W.3d 542, 546 (Tex.App.-Dallas 2009, no pet.). Unless the record affirmatively shows the propriety of appellate jurisdiction, we must dismiss. Id.

This Court’s jurisdiction is established exclusively by constitutional and statutory enactments. See, e.g., Tex. Const, art. V, § 6; Tex. Gov’t Code Ann. § 22.220 (Vernon Supp.2009). Unless one of the sources of our authority specifically authorizes an interlocutory appeal, we only have jurisdiction over an appeal taken from a final judgment. Lehmann v. HarCon Corp., 39 S.W.3d 191, 195 (Tex.2001); N.E. Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 895 (Tex.1966). A judgment is final if it disposes of all pending parties and claims in the record. Guajardo v. Conwell, 46 S.W.3d 862, 863-64 (Tex.2001) (per curiam); Lehmann, 39 S.W.3d at 195.

When a suit is severed, two or more independent lawsuits result with their own final appealable judgments. Van Dyke v. Boswell, O’Toole, Davis & Pickering, 697 S.W.2d 381, 383 (Tex.1985); Law Offices of Robert D. Wilson v. Texas Univest-Frisco, Ltd., 291 S.W.3d 110 (Tex.App.-Dallas 2009, no pet.). Thus, although a severance is not a final judgment, it may result in a final judgment. When, as here, a party seeks to challenge an interlocutory severance order, mandamus is the appropriate avenue by which to seek review. In re Liu, 290 S.W.3d 515, 518 (Tex.App.-Texarkana 2009); see In re Hoover, Bax & Slovacek, L.L.P., 6 S.W.3d 646, 650 & n. 12 (Tex.App.-El Paso 1999, orig. proceeding) (mandamus appropriate vehicle through which to challenge trial court’s order severing claims brought within lawsuit).

Here, when the trial court signed its April 7th severance order, two separate lawsuits resulted. There has been no separate final judgment regarding the attorney’s fees issue that was severed from the divorce. Until there is a final judgment signed by the trial court regarding the separate issue of attorney fees, this Court does not have appellate jurisdiction to hear this matter. See Lehmann, 39 S.W.3d at 195.

Accordingly, we dismiss this appeal for want of jurisdiction.