author: WILLIAM J. BOYCE, Justice.

text:
    Robert C. RYAN, Jeffrey L. Dorrell, Steven Howell, JoAnn McCracken, Lonnie Buckner, Barbara Coffman Buck, Shannon Burns, Dan Hall, and Pat Riddle Womack, Appellants, v. Charles A. ROSENTHAL, in his Capacity as District Attorney of Harris County, Texas, Appellee.
    No. 14-08-00382-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    April 20, 2010.

      Jeffrey L. Dorrell, David J. Farris, Houston, for appellants.
    Scott A. Durfee, Houston, for appellee.
    Panel consists of Justices BROWN and BOYCE, and Senior Justice MIRABAL.

       Senior Justice Margaret Garner Mirabal sitting by assignment.

   OPINION

WILLIAM J. BOYCE, Justice.

Appellants Robert C. Ryan, Jeffrey L. Dorrell, Steven Howell, JoAnn McCracken, Lonnie Buckner, Barbara Coffman Buck, Shannon Burns, Dan Hall, and Pat Riddle Womack appeal from the 190th District Court’s order granting appellee Charles A. Rosenthal’s motion to dismiss their declaratory judgment action for lack of subject matter jurisdiction. We affirm.

Background

The issue before us focuses on the circumstances under which a district court can exercise its civil jurisdiction by issuing a declaratory judgment addressing the enforceability of a criminal statute.

This appeal arises from proceedings in the 263rd District Court and the 190th District Court in Harris County. By local rule and statutory preference, the 263rd District Court hears only criminal cases. The 190th District Court hears only civil cases.

Appellants served as members of the 263rd District Court’s grand jury from August 6, 2007 to November 2, 2007 and are referred to collectively as the “Grand Jurors.” During that term, the Grand Jurors considered whether indictments should be presented against any individual in connection with a June 28, 2007 fire that destroyed a house at 3507 High Falls Drive in unincorporated Harris County, Texas. The house was owned by David M. Medina and his wife Francisca Medina.

On November 2, 2007, the 263rd District Court signed an order extending the grand jury’s term to expire on February 1, 2008.

On January 17, 2008, the Grand Jurors presented indictments against David and Francisca Medina. The indictment presented against Francisca Medina stated that she unlawfully “start[ed] a fire by igniting a combustible fluid with the intent to destroy and damage a habitation located at 3507 High Falls Drive” on June 28, 2007 and “knew that the habitation was subject to a mortgage and security interest.” The indictment presented against David Medina stated that he presented “a letter concerning an arson fire occurring at 3507 [High] Falls Drive ... with knowledge of its falsity and with intent to affect the course and outcome of the investigation” of the June 28, 2007 fire. The indictments were dismissed on January 18, 2008 upon the State’s motion on grounds of insufficient evidence.

The presentment and dismissal of indictments against David Medina, a sitting justice on the Supreme Court of Texas, and his wife received widespread media coverage. Media reports on January 17, 2008 discussed the indictments; reported that Harris County District Attorney Charles A. Rosenthal intended to seek dismissal of the indictments; and reported that grand jurors Ryan and Dorrell had criticized Ro-senthal for his handling of the indictments.

David Medina’s attorney held a televised press conference on January 18, 2008 after the indictments were dismissed, during which he criticized the Grand Jurors for presenting the indictments. David Medina’s attorney also filed a petition for a show cause hearing in the 263rd District Court to determine whether grand jurors Ryan and Dorrell should be held in contempt for violating the statutory requirement of grand jury secrecy based upon their statements to the media in connection with the Medina indictments. See Tex.Code Crim. Proc. art. 20.02(a) (Vernon 2005) (“The proceedings of the grand jury shall be secret.”); id. art. 20.02(b) (“A grand juror ... who discloses anything transpiring before the grand jury ... in the course of the official duties of the grand jury ... shall be liable to a fine as for contempt of the court, not exceeding five hundred dollars, imprisonment not exceeding thirty days, or both such fine and imprisonment.”). The criticism by David Medina’s attorney directed at the Grand Jurors and the filing of the petition for a show cause hearing were reported in the media on January 19, 2008.

On January 22, 2008, the 263rd District Court held that the November 2, 2007 order extending the grand jury’s term contained a defect and was invalid. That same day, eight grand jurors held a televised press conference at which they addressed criticism that had been directed at them regarding the Medina indictments. The Grand Jurors allege that information required to be kept secret under article 22.02(a) was not disclosed in the course of this press conference.

On February 15, 2008, the Grand Jurors filed their original petition for a declaratory judgment against Rosenthal and the State of Texas in the 190th District Court. They subsequently filed amended petitions culminating in Plaintiffs’ Third Amended Original Petition for Declaratory Judgment, in which they contended that they “have both the right and the privilege to disclose evidence showing that they were not a ‘runaway grand jury’ when they indicted Texas Supreme Court Justice David M. Medina for evidence tampering.” The Grand Jurors also asserted that they “should be free, if they wish, to defend themselves without fear of incarceration or other sanction for doing so.” They requested the following specific declarations.

H The Grand Jurors “have the right and privilege to publicly disclose evidence and testimony considered by the Grand Jury before voting the indictments of David M. Medina in response to David M. Medina’s public attacks on [the Grand Jurors’] ... character....” As support for this declaration the Grand Jurors rely upon Houston Press Co. v. Smith, 3 S.W.2d 900, 907 (Tex.Civ.App.-Gal-veston 1928, writ dism’d w.o.j), a libel case brought by a former district attorney against a newspaper arising in part from reports concerning disputes between the former district attorney and grand jurors.
HI The Grand Jurors “are not subject to the penalties of Tex.Code CRIM. Proc. art. 20.02 for disclosing anything transpiring before the unlawfully constituted Grand Jury after November 2, 2007 .... ” (original emphasis).
■ The Grand jurors “are not subject to the penalties of Tex.Code Crim. Proc. art. 20.02 for disclosing evidence and testimony considered by the Grand Jury supporting the indictments of David and Francisca Medina before or after November 2, 2007, to another lawfully constituted Harris County grand jury meeting in secret and whose members are bound by the oath of secrecy .... ” (original emphasis).

The Grand Jurors do not seek to invalidate article 20.02 on constitutional grounds or to enjoin enforcement of the statute; they concede article 20.02 is constitutional and valid. The Grand Jurors do not contend that a statutory exception to grand jury secrecy applies in this case. See Tex.Code Crim. Proc. art. 20.02(c), (d), (e) (Vernon 2005).

Rosenthal filed a motion to dismiss the Grand Jurors’ declaratory judgment action for lack of subject matter jurisdiction, contending that the 190th District Court lacks civil jurisdiction to construe a criminal statute and determine whether disclosure of evidence and testimony presented before the 263rd District Court’s grand jury violates article 20.02’s criminal contempt provisions.

The 190th District Court signed an order on April 30, 2008 granting Rosenthal’s motion to dismiss, and the Grand Jurors timely appealed.

Analysis

The Grand Jurors raise five issues on appeal challenging the 190th District Court’s April 30, 2008 order.

In their first three issues, the Grand Jurors assail the 190th District Court’s determination that it lacked subject matter jurisdiction to consider their declaratory judgment action. “Whether a court has subject matter jurisdiction is a question of law.” Tex. Dep’t. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004). “Whether a pleader has alleged facts that affirmatively demonstrate a trial court’s subject matter jurisdiction is a question of law reviewed de novo.’ Id. “Likewise, whether undisputed evidence of jurisdictional facts establishes a trial court’s jurisdiction is also a question of law.” Id.

We begin by reviewing the settled law establishing that civil jurisdiction to address criminal statutes is narrowly circumscribed.

I. Civil Jurisdiction to Address Criminal Statutes is Limited

A. Civil Jurisdiction to Enjoin Enforcement is Narrow

“[A]s a rule, a party cannot seek to construe or enjoin enforcement of a criminal statute in a civil proceeding without a showing of irreparable injury to the party’s vested property rights.” Tex. Educ. Agency v. Leeper, 893 S.W.2d 432, 441 (Tex.1994) (citing State v. Morales, 869 S.W.2d 941 (Tex.1994)); see also Tex. Liquor Control Bd. v. Canyon Creek Land Corp., 456 S.W.2d 891, 894 (Tex.1970) (“The civil courts are not powerless to interpret [a criminal statute], but its meaning and validity should ordinarily be determined by courts exercising criminal jurisdiction.”); Passel v. Fort Worth Indep. Sch. Dist., 440 S.W.2d 61, 63 (Tex.1969) (“It is well settled that courts of equity will not interfere with the ordinary enforcement of a criminal statute unless the statute is unconstitutional and its enforcement will result in irreparable injury to vested property rights.”); State v. Shoppers World, Inc., 380 S.W.2d 107, 110 (Tex.1964) (“[C]ourts of equity will take jurisdiction to enjoin enforcement of penal laws only in exceptional situations, thus leaving those laws to be interpreted through the criminal trial process whenever possible.”).

These limits mean that a district court has civil jurisdiction to declare a criminal statute constitutionally invalid and to enjoin its enforcement only when (1) “there is evidence that the statute at issue is unconstitutionally applied by a rule, policy, or other noncriminal means subject to a civil court’s equity powers and irreparable injury to property or personal rights is threatened,” or (2) “the enforcement of an unconstitutional statute threatens irreparable injury to property rights.” Morales, 869 S.W.2d at 942. “A naked declaration as to the constitutionality of a criminal statute alone, without a valid request for injunctive relief, is clearly not within the jurisdiction of a Texas court sitting in equity.” Id.; Warren v. Aldridge, 992 S.W.2d 689, 691 (Tex.App.-Houston [14th Dist.] 1999, no pet.) (“[B]efore a civil court may construe a penal statute and enjoin its enforcement, the complainant must both attack the constitutionality of the provision and aver that its enforcement would irreparably injure vested property rights.”); see also City of Houston v. Guthrie, — S.W.3d—,—(Tex.App.-Houston [1st Dist.] 2009, no pet. h.) (citing City of La Marque v. Braskey, 216 S.W.3d 861, 863 (Tex.App.-Houston [1st Dist.] 2007, pet. denied)); Morrow v. Truckload Fireworks, Inc., 230 S.W.3d 232, 236-41 (Tex.App.-Eastland 2007, pet. dism’d as moot); Sterling v. San Antonio Police Dept., 94 S.W.3d 790, 794 (Tex.App.-San Antonio 2002, no pet.); Cornyn v. Akin, 50 S.W.3d 735, 737-38 (Tex.App.-El Paso 2001, no pet.); Letson v. Barnes, 979 5.W.2d 414, 418 (Tex.App.-Amarillo 1998, pet. denied).

The limits on civil jurisdiction to address criminal statutes are grounded on important public policy considerations.

“The underlying reason for this rule is that the meaning and validity of a penal statute or ordinance should ordinarily be determined by courts exercising criminal jurisdiction.” Passel, 440 S.W.2d at 63. “When these questions can be resolved in any criminal proceeding that may be instituted and vested property rights are not in jeopardy, there is no occasion for the intervention of equity.” Id. “A person may continue his activities until he is arrested and then procure his release by showing that the law is void.” Id.; see also Morales, 869 S.W.2d at 945.

This longstanding policy favoring construction of criminal statutes in criminal proceedings rests in part on “a pragmatic justification” arising from the fact that Texas has two courts of last resort: The Supreme Court of Texas, which has final appellate jurisdiction in civil cases, and the Texas Court of Criminal Appeals, which has final appellate jurisdiction in criminal cases. Morales, 869 S.W.2d at 947; see also Tex. Const. art. V, § 3(a), 5(a).

Having competing trial courts construe criminal statutes in parallel civil and criminal proceedings would “ ‘create confusion ... and might result finally in precise contradiction of opinions between the [civil courts] and the Court of Criminal Appeals to which the Constitution has [entrusted supreme and exclusive jurisdiction in criminal matters.’ ” Morales, 869 S.W.2d at 947-48 (quoting Roberts v. Gossett, 88 S.W.2d 507, 509 (Tex.Civ.App.-Amarillo 1935, no writ)). “[I]f civil courts were to accept jurisdiction, a potential for conflicting decisions ... between our civil and criminal courts of last resort on the validity of such statutes [would be] ... a very real danger.” Morales, 869 S.W.2d at 948 (citing Dearing v. Wright, 653 S.W.2d 288, 290 (Tex.1983)). “[I]t is the prospect that civil courts will get into the business of construing criminal statutes which represents the real danger.” Morales, 869 S.W.2d at 948 n. 16 (original emphasis).

But pragmatism is not the only consideration, or the most important one. These limits protect “[t]he very balance of state governmental power imposed by the framers of the Texas Constitution ...” Id. at 949. This balance “depends on each branch, and particularly the judiciary, operating within its jurisdictional bounds.” Id. “The checks and balances inherent in our form of government depend upon the judiciary’s equanimity and particularly upon our self-restraint.” Id. “When a court lacks jurisdiction, its only legitimate choice is to dismiss.” Id.

B. Civil Jurisdiction to Issue Declaratory Relief Also is Narrow

The limits on civil jurisdiction to address criminal statutes do not apply only in suits seeking injunctive relief.

“The considerations that lead courts of equity to deny injunctive relief against enforcement of the criminal laws apply with equal force to an action for a declaratory judgment construing a penal statute.” Tex. Liquor Control Bd., 456 S.W.2d at 896. “[T]he procedures prescribed by the Legislature should not be circumvented or delayed by the prosecution of a declaratory judgment action to obtain a construction of the penal statute by the civil courts.” Id.

This further limitation dovetails with the precept that the statutory authorization for declaratory judgments does not by itself confer jurisdiction. See generally Tex. Civ. Prac. & Rem.Code Ann. § 37.001 et seq. (Vernon 2008). “Just as an injunction is a remedial writ that depends in the first instance on the existence of the issuing court’s equity jurisdiction, we have held that the Uniform Declaratory Judgments Act ... is merely a procedural device for deciding cases already within a court’s jurisdiction.” Morales, 869 S.W.2d at 947 (citations omitted). “A litigant’s request for declaratory relief cannot confer jurisdiction on the court, nor can it change the basic character of a suit.” Id.

“For the same reasons that equity courts are precluded from enjoining the enforcement of penal statutes, neither this court, nor the courts below, have jurisdiction to render a declaratory judgment regarding the constitutionality of [a criminal statute].” Id. “A civil court simply has no jurisdiction to render naked declarations of ‘rights, status or other legal relationships arising under a penal statute.’ ” Id. (quoting Malone v. City of Houston, 278 S.W.2d 204, 206 (Tex.Civ.App.-Galveston 1955, writ ref'd n.r.e.)); see also Guthrie,—S.W.3d at-(citing City of La Marque, 216 S.W.3d at 863); Trantham v. Isaacks, 218 S.W.3d 750, 753-54 (Tex.App.-Fort Worth 2007, pet. denied) (citing Briar Voluntary Fire Dept. v. Anderson, No. 02-04-258-CV, 2005 WL 1475409, at *2 (Tex.App.-Fort Worth June 23, 2005, no pet.) (mem. op.)).

We now measure the Grand Jurors’ requested declaratory relief against these longstanding limits on civil jurisdiction and the undisputed jurisdictional facts.

II. The Grand Jurors’ Requested Relief Exceeds the Limits of a District Court’s Civil Jurisdiction

In its findings of fact and conclusions of law, the 190th District Court made the following determinations (among others).

H The Grand Jurors were members of the 263rd District Court’s grand jury.
H The Grand Jurors took an oath to “keep secret” those matters occurring in the grand jury room unless they were “required to disclose the same in the course of a judicial proceeding in which the truth or falsity of evidence given in the grand jury room, in a criminal case, shall be under investigation.” See Tex. Code Crim. Proc. art. 19.34 (Vernon 2005).
■ Article 20.02(a) provides that “[t]he proceedings of the grand jury shall be secret.” See Tex.Code Crim. Proc. art. 20.02(a).
H Article 20.02’s constitutionality is not challenged. The parties agree that this provision is constitutional.
■ The Grand Jurors did not allege that immediate irreparable harm to persons or vested property rights is likely to occur absent issuance of a declaratory judgment recognizing an exception to or exemption from the effects of the criminal statute governing the secrecy of grand jury proceedings.

Appellants do not challenge the determinations listed above. In light of these unchallenged determinations, the Grand Jurors’ claims do not fall within the 190th District Court’s limited civil jurisdiction to address a criminal statute. See Morales, 869 S.W.2d at 942; Warren, 992 S.W.2d at 691; see also Guthrie,—S.W.3d at-(citing City of La Marque, 216 S.W.3d at 863); Morrow, 230 S.W.3d at 236-41; Sterling, 94 S.W.3d at 794; Cornyn, 50 S.W.3d at 737-38; Letson, 979 S.W.2d at 418. The Grand Jurors make three arguments in an effort to circumvent the applicable jurisdictional limits.

First, the Grand Jurors argue that subject matter jurisdiction exists because they requested only declaratory relief; they neither invoked the 190th District Court’s equity power nor sought to enjoin article 20.02’s enforcement.

The Grand Jurors’ first argument fails because the limits on a district court’s civil jurisdiction to address a criminal statute apply regardless of whether the requested relief is framed as an injunction or a declaratory judgment. Morales, 869 S.W.2d at 947 (“A civil court simply has no jurisdiction to render naked declarations of ‘rights, status or other legal relationships arising under a penal statute.’ ”) (quoting Malone, 278 S.W.2d at 206); Tex. Liquor Control Bd., 456 S.W.2d at 896 (“The considerations that lead courts of equity to deny injunctive relief against enforcement of the criminal laws apply with equal force to an action for a declaratory judgment construing a penal statute.”); Warren, 992 S.W.2d at 691 (“[O]ne of the two Morales elements has not been satisfied, and ... the trial court had no jurisdiction to render a declaratory judgment or to enjoin the enforcement of the penal statute.”); see also Guthrie, — S.W.3d at—; Trantham, 218 S.W.3d at 753-54; City of La Marque, 216 S.W.3d at 863; Briar Voluntary Fire Dept., 2005 WL 1475409, at *2.

Second, the Grand Jurors argue that subject matter jurisdiction exists because they refrained from challenging article 20.02’s constitutionality.

The second argument cuts against the Grand Jurors because the absence of a constitutional challenge to the targeted penal statute forecloses civil jurisdiction. See Morales, 869 S.W.2d at 942; Warren, 992 S.W.2d at 691. Moreover, the absence of civil jurisdiction “to render naked declarations of ‘rights, status, or other legal relationships arising under a penal statute’ ” encompasses both “naked declarations” focused on constitutionality as well as “naked declarations” focused on determining whether particular conduct violates a particular penal statute or ordinance. See Morales, 869 S.W.2d at 947; Tex. Liquor Control Bd., 456 S.W.2d at 896.

The Grand Jurors seek to bolster their second argument by pointing to City of Argyle v. Pierce, 258 S.W.3d 674, 681 (Tex.App.-Fort Worth 2008, pet. dism’d), which relies on the absence of a constitutional challenge in discussing whether a district court had subject matter jurisdiction to address a penal ordinance regulating billboard placement. The court of appeals affirmed in part the district court’s order denying the city’s plea to the jurisdiction insofar as that order addressed a request for a declaratory judgment construing the penal ordinance. Id. at 686. In so doing, the court of appeals stressed that the property owner and the billboard company who sought the declaratory judgment were not challenging the penal ordinance’s constitutionality or enforceability; “rather, their lawsuit seeks a declaration that their conduct did not constitute a violation of that [ordinance.” Id. at 681 (original emphasis). “Accordingly, we hold that State v. Morales does not affect the trial court’s jurisdiction in this case.... ” Id. The Grand Jurors ask us to apply similar reasoning here.

We decline the Grand Jurors’ invitation to follow City of Argyle. As a threshold matter, we look to this court’s own precedent for guidance on this issue; that precedent confirms the propriety of dismissing the Grand Jurors’ suit for lack of subject matter jurisdiction. See Warren, 992 S.W.2d at 691 (District court lacked civil jurisdiction to render declaratory judgment that “use of ‘eight liner’ machines does not constitute criminal activity”; absent challenge to constitutionality of penal statute prohibiting possession of gambling devices, “one of the two Morales elements has not been satisfied, and we must hold the trial court had no jurisdiction to render a declaratory judgment or to enjoin the enforcement of the penal statute.”).

More fundamentally, City of Argyle is incompatible with Morales and its progeny. Contrary to City of Argyle’s reasoning, the absence of a constitutional challenge contracts rather than expands a district court’s civil jurisdiction to construe a criminal statute. See Morales, 869 S.W.2d at 942, 945-47; Guthrie,—S.W.3d at—; Trantham, 218 S.W.3d at 752, 753-55; City of La Mar que, 216 S.W.3d at 863-64; Sterling, 94 S.W.3d at 794; Warren, 992 S.W.2d at 691.

The approach advocated by the Grand Jurors also is incompatible with the pragmatic justifications for the limits in Texas on civil jurisdiction to address criminal statutes. The mere “prospect” of having courts exercise civil jurisdiction to construe criminal statutes was deemed to be a “danger” in Morales. Morales, 869 S.W.2d at 948 n. 16. Here, the danger of confusion and conflict is far greater.

The Grand Jurors sought a declaration in the 190th District as to their potential criminal liability under article 20.02 while a petition for a show cause hearing was pending simultaneously in the 263rd District Court. The petition asserted that grand jurors Ryan and Dorrell violated article 20.02 “by making numerous illegal statements to members of the media and the public” regarding matters before the grand jury. A judgment from the 190th District Court containing the declarations requested by the Grand Jurors would create a direct conflict if the 263rd District Court were to find that the Grand Jurors violated article 20.02 and hold them in contempt. An appeal from a declaratory judgment signed by the 190th District Court would proceed in this court, and potentially in the Texas Supreme Court. Jurisdiction to review a contempt order entered by a district court in connection with criminal proceedings rests with the Court of Criminal Appeals by writ of habe-as corpus. See Ex parte Thompson, 273 S.W.3d 177, 181 (Tex.Crim.App.2008). This scenario involving the issuance of competing pronouncements by different district courts exercising civil and criminal jurisdiction, and review of those competing pronouncements by different appellate courts, would set the stage for confusion and conflict with respect to criminal liability arising from disclosure of grand jury evidence under article 20.02. This is precisely the situation that the limits on civil jurisdiction are designed to avoid. See Morales, 869 S.W.2d at 947-48.

In further support of their second argument, the Grand Jurors contend that the limits on civil jurisdiction should not apply to them because the absence of a constitutional challenge to article 20.02 means they cannot “continue [their] activities until arrested and then procure [their] release by showing that the law is void” as contemplated in Morales, 869 S.W.2d at 945, and Passel, 440 S.W.2d at 63. Justice Guittard provides the response to this contention. See Better Home Prods, of Tex., Co. v. City of Dallas, 517 S.W.2d 373, 374 (Tex.Civ.App.-Dallas 1974, writ ref'd n.r.e.). “We acknowledge the force of the argument that a litigant desiring to test the applicability or validity of a penal ordinance ... should be able to do so by the orderly process of civil litigation.... ” Id. Justice Guittard also acknowledged such a litigant’s desire to “not be put to the choice of either submitting to such regulation or exposing himself to the risk of criminal penalties.” Id. “Nevertheless, civil courts do not sit to give advice.” Id. For this reason, unconstitutionality and irreparable injury must be established before a court exercising civil jurisdiction will “grant declaratory relief to avoid a criminal prosecution.” Id. These words apply with equal force here.

Third, the Grand Jurors argue that they “sought no construction of any criminal statute from the court below” because they seek recognition of a “civil privilege” to disclose grand jury evidence rather than an interpretation of an existing statutory exception to grand jury secrecy under article 20.02.

We reject the Grand Jurors’ third argument. Regardless of how the claimed “privilege” is characterized, the requested declarations expressly seek to insulate the Grand Jurors from criminal liability under article 20.02. In Plaintiffs’ Third Amended Original Petition for Declaratory Judgment, the Grand Jurors assert that they “seek a declaration that they have a privilege to fairly respond to the defamatory attacks upon their character by revealing the overwhelming evidence considered by the Grand Jury....” The Grand Jurors contend they “should be able to do so without being prosecuted, sanctioned, fined, or jailed for violating Tex.Code Crim. PROC. art. 20.02.” The Grand Jurors also request declarations that they “are not subject to the penalties of Tex.Code Crim. Proc. art. 20.02 for disclosing anything transpiring before the unlawfully constituted Grand Jury” after November 2, 2007 or for disclosing evidence “to another lawfully constituted Harris County grand jury meeting in secret and whose members are bound by the oath of secrecy.”

These are requests to construe article 20.02 so that it is not enforceable against the Grand Jurors in certain circumstances. If the Grand Jurors were to succeed in obtaining these declarations from the 190th District Court, they would thereby obtain an impermissible declaration of their “ ‘rights’ ” and “ ‘status’ ” as persons who could not be prosecuted “‘under a penal statute’ ” in contravention of Morales. See Morales, 869 S.W.2d at 947 (quoting Malone, 278 S.W.2d at 206). The 190th District Court lacks civil jurisdiction to make “naked declarations” of this nature. Id.

We overrule the Grand Jurors’ first three issues challenging the 190th District Court’s order granting Rosenthal’s motion to dismiss for lack of subject matter jurisdiction.

Conclusion

We affirm the 190th District Court’s order granting the motion to dismiss for lack of subject matter jurisdiction.

      . The factual recitations in this opinion are based primarily upon the allegations in the Grand Jurors' third amended petition, which was the live pleading on file when the 190th District Court signed its order dismissing the case for lack of subject matter jurisdiction. See Tex. Natural Res. & Conservation Comm’n v. White, 46 S.W.3d 864, 868 (Tex.2001).

      . Appellate opinions sometimes refer in shorthand fashion to the ability of "civil courts" to address enforceability of criminal statutes. The Texas Constitution provides that district courts have jurisdiction over both civil and criminal cases. Tex. Const. art. V, § 8; State v. Landry, 793 S.W.2d 281, 284 (Tex.App.Houston [14th Dist.] 1990, orig. proceeding) (citing Lord v. Clayton, 163 Tex. 62, 352 S.W.2d 718, 721-22 (1961), and Reasonover v. Reasonover, 122 Tex. 512, 58 S.W.2d 817 (1933)). It follows that the 190th District Court is not a "civil court” in a constitutional sense; the 190th District Court hears only civil cases, but that occurs pursuant to local rule rather than by constitutional or statutory decree. Harris County Dist. Judges Admin. R. 9.1.3 (assigning the 190th District Court to the "civil division” and the 263rd District Court to the "criminal division”); see also Tex. Gov’t Code § 24.440(b) (Vernon 2004) (providing that “[t]he 263rd District Court shall give preference to criminal cases.”). Therefore, it is more precise to frame the issue in terms of a district court's ability to address the enforceability of a criminal statute through the exercise of its civil jurisdiction.

      . We take judicial notice that another grand jury presented an indictment against Francisca Medina on April 30, 2008 in connection with the June 28, 2007 fire, and that the second indictment was dismissed on August 27, 2009. See Tex.R. Evid. 201(b); Langdale v. Villamil, 813 S.W.2d 187, 189-90 (Tex.App.-Houston [14th Dist.] 1991, no writ).

      . We express no opinion about whether Houston Press Company, which addressed a privilege to make statements as a defense to liability for monetary damages in a libel suit, is germane to determining whether secret grand jury proceedings can be disclosed without suffering criminal penalties under article 20.02. See Houston Press Co., 3 S.W.2d at 907-08.

      . The Grand Jurors filed a notice of nonsuit of their claims against the State of Texas on March 10, 2008. The trial court signed an order granting the nonsuit on March 18, 2008.

      . The Grand Jurors cite City of San Antonio v. Rankin, 905 S.W.2d 427, 429, 431 (Tex.App.San Antonio 1995, no writ), in which a district court permissibly exercised civil jurisdiction to enjoin enforcement of a penal ordinance despite the asserted absence of a vested property right. The penal ordinance required fire department supervisors to file annual financial disclosure statements. Id. Rankin is distinguishable because the injunction at issue also prohibited the city from taking internal disciplinary action against the supervisors for failing to file disclosure statements in response to the fire chief's directive to do so. Therefore, "the trial court had jurisdiction in this instance because the fire chief's memo was considered a direct order and thus subjected the supervisors to employment-related disciplinary action in addition to criminal prosecution.” Morrow, 230 S.W.3d at 237 (citing Rankin, 905 S.W.2d at 429-30). The Grand Jurors’ claims do not involve a dual criminal and employment-related disciplinary process. See id.

      . We are not persuaded by the Grand Jurors’ invocation of Euresti v. Valdez, 769 S.W.2d 575, 582 (Tex.App.-Corpus Christi 1989, orig. proceeding), or Marks v. Feldman, 910 S.W.2d 73, 77-78 (Tex.App.-Dallas 1995), rev’d on other grounds sub nom. United States v. Marks, 949 S.W.2d 320 (Tex.1997). Euresti denied a petition for writ of mandamus seeking to vacate an order requiring disclosure of grand jury testimony and exhibits in connection with discovery in a malicious prosecution case. See Euresti, 769 S.W.2d at 576. Maries addressed the propriety of sealing an in camera hearing concerning matters being investigated by a federal grand jury in light of federal standards governing grand jury secrecy. Marks, 910 S.W.2d at 77-78. Neither case involved a request for a declaratory judgment delineating a litigant’s criminal liability or lack thereof under a Texas penal statute. Therefore, neither case confronts the core issue presented herein regarding a Texas district court’s civil jurisdiction to address a request for such declaratory relief absent a constitutional challenge to the penal statute at issue and allegations of irreparable harm. Similarly, the Grand Jurors' citation of numerous criminal cases discussing grand jury secrecy sheds no light on a district court's ability to exercise civil jurisdiction to entertain a request for declaratory relief concerning the scope of statutory grand jury secrecy.

      . See also Guthrie, -S.W.3d at---(District court lacked civil jurisdiction to render declaratory judgment that fire code “does not prohibit the transportation of consumer fireworks from one legal location outside the city limits of the City of Houston to another, even if the highway or roadway includes in whole or in part a purported [Limited Purpose Annexation].’’); Trantham, 218 S.W.3d at 752, 753-55 (District court lacked civil jurisdiction to declare appellee’s guilt in connection with alleged violation of criminal statute; a "declaratory judgment ... was an improper vehicle for determining Appellee’s potential ... criminal liability.’’); City of La Marque, 216 S.W.3d at 863-64 (District court lacked civil jurisdiction to render declaratory judgment that penal ordinance governing location of kennels did not apply to appellant's cat shelter); Sterling, 94 S.W.3d at 794 (District court lacked civil jurisdiction to address a “request for an interpretation of [a criminal statute] ... and a declaration that the use of his [eight liner] machines by the fire departments was not illegal under [the] Penal Code....”); Warren, 992 S.W.2d at 691 (District court lacked civil jurisdiction to render declaratory judgment that appellant's operation of eight liner device fell within exception to criminal statute prohibiting ownership, manufacture or possession of machine designed for gambling purposes).

      . We also note that City of Argyle’s, holding appears to be in tension with an earlier decision by the same court in Trantham, and with a memorandum opinion from the same court cited in Trantham. See Trantham, 218 S.W.3d at 753-54 ("Nor can a civil court issue a declaratory judgment to 'render naked declarations of rights, status or other legal relationships arising under a penal statute.’ ”) (quoting Morales, 869 S.W.2d at 947, and citing Briar Voluntary Fire Dept., 2005 WL 1475409, at *2); Briar Voluntary Fire Dept., 2005 WL 1475409, at *2 ("[I]n accord with the Warren court, we hold that because Appellant did not attack the constitutionality of the statute, which is required to give the civil court jurisdiction under Morales ... the trial court did not err by holding that it had no jurisdiction to render a declaratory judgment.”).

      . Given our disposition of the first three issues, we do not reach the Grand Jurors' fourth issue addressing justiciability. In their fifth and final issue, the Grand Jurors contend that Rosenthal’s jurisdictional challenge should have been framed as a plea in abatement based on concurrent jurisdiction. We reject the Grand Jurors’ contention and their fifth issue because the jurisdictional issue here is not grounded on the existence of concurrent jurisdiction belonging to both the 263rd District Court and the 190th District Court. The issue here is a lack of civil jurisdiction that would allow the 190th District Court to issue a declaratory judgment in the absence of allegations (1) challenging article 20.02’s constitutionality, and (2) asserting irreparable harm. See Morales, 869 S.W.2d at 942, 947. We also reject the Grand Jurors' contention that Rosenthal's challenge to subject matter jurisdiction is foreclosed because he failed to deny the Grand Jurors’ averment that all conditions precedent had been satisfied. “Subject matter jurisdiction is never presumed and cannot be waived.” Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443-44 (Tex.1993).


source: Caselaw Access Project

author: KEM THOMPSON FROST, Justice.. LESLIE B. YATES, Justice,

license: Public Domain

text:
    Mahesh RAMCHANDANI, M.D. and Texas Surgical Associates, Appellants, v. Gonzalo JIMENEZ, Appellee.
    No. 14-09-00098-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    April 20, 2010.

      Gary Sommer, Houston, for appellants.
    Jeffrey Scott Goldstein, Houston, for ap-pellee.
    Panel consists of Justices YATES, FROST, and BROWN.
   OPINION

KEM THOMPSON FROST, Justice..

The main issue in this appeal is whether all of the plaintiffs breach-of-contract claims against a surgeon and a health care organization should be characterized as health care liability claims or whether, as the trial court ruled, only some of these claims should be so characterized. We conclude that all of the claims are health care liability claims, and that the trial court abused its discretion to the extent it denied the defendants’ motion to dismiss under section 74.351(b) of the Texas Civil Practice and Remedies Code and to the extent it denied recovery of reasonable attorney’s fees under that statute. Accordingly, we reverse and remand.

I. Factual and PROCEDURAL Background

Appellee Gonzalo Jimenez filed suit against appellants Mahesh Ramchandani, M.D. and Texas Surgical Associates (collectively the “Ramchandani Parties”) claiming that he sustained damages associated with a surgical procedure. According to the original petition and first amended petition, Jimenez entered into an oral contract with Dr. Ramchandani, who works for Texas Surgical Associates, in which they agreed that only Dr. Ramchandani would perform a surgical procedure on Jimenez’s right carotid artery. Jimenez claimed that another doctor, Utham Tripa-thy, M.D., performed the operation without his consent and that he was not aware that a doctor other than Dr. Ramchandani would perform the surgery. Jimenez claimed Dr. Tripathy was negligent and incompetent in performing the surgery, resulting in Jimenez’s losing his voice and suffering impairment in his ability to speak. Jimenez claimed his injuries were a direct result of Dr. Ramchandani’s failure to perform the surgery as agreed. Jimenez asserted that he was entitled to compensation for all past, present, and future injuries, damages, and losses caused by the breach of contract.

In response, the Ramchandani Parties filed an answer and general denial. They denied any breach of contract and characterized Jimenez’s claim as a health care liability claim. In their answer, the Ram-chandani Parties asserted that Jimenez had not filed an expert report in accordance with several provisions of the Texas Civil Practice and Remedies Code.

The Ramchandani Parties filed a motion to dismiss Jimenez’s claims for failure to comply with section 74.351 of the Texas Civil Practice and Remedies Code, which pertains to health care liability claims. According to the motion, Jimenez attempted to improperly recharacterize his health care liability claims as actions for breach of contract. The Ramchandani Parties asserted that Jimenez had failed to provide an expert report within 120 days of filing suit as required for health care liability claims, as set forth in section 74.351(a) of the Texas Civil Practice and Remedies Code.

In a response in opposition, Jimenez denied that his claims were governed by Chapter 74 of the Texas Civil Practice and Remedies Code, also referred to as the Medical Liability Act. Jimenez asserted that no expert report was required because the claim was an action for breach of a medical contract and a medical ethics lawsuit. Jimenez also referred to a second amended petition in which he added a claim for fraud.

The Ramchandani Parties replied and attached hospital records relating to the procedure. The records contain a consent form in which Jimenez requested Dr. Ramchandani as a physician, “and such associates, technical assistants and other health care providers as they [sic] deem necessary” to treat the condition. Several of the medical records list Dr. Ramchanda-ni as surgeon for the procedure and Dr. Tripathy as assisting surgeon. An operation report indicates that Dr. Tripathy was the surgeon and Dr. Ramchandani was the assisting surgeon. The Ramchandani Parties also attached an affidavit of attorney Gary Sommer regarding attorney’s fees.

The record contains a notice of oral hearing on the Ramchandani Parties’ motion, set for November 24, 2008 (hereinafter “November Hearing”); however, the record does not contain a transcript or reporter’s record of a hearing on this date. The record contains the following electronic docket sheet entry on November 24, 2008: “D’s M/Dismiss Plaintiffs contract and fraud allegations. Plf to replead within 21 days as to contract claims.” The record contains an amended notice of oral hearing on the Ramchandani Parties’ motion to dismiss “that began on November 24, 2008,” which “will resume on Monday, December 15, 2008.”

In his third amended petition filed on December 9, 2008, Jimenez asserts the following:

H Jimenez and Dr. Ramchandani entered into an oral contract under which only Dr. Ramchandani would operate on Jimenez’s right carotid artery.
H Dr. Tripathy performed the surgery without Jimenez’s consent or awareness that another doctor would perform the procedure. Jimenez was not given prior notice that Dr. Ram-chandani would not be performing the procedure.
H Jimenez lost his voice and his speaking ability is materially changed for the rest of his life. These injuries were the result of Dr. Tripathy’s incompetence and negligence. Jimenez did not know Dr. Tripathy or have a consensual relationship with Dr. Tripathy.
H The injuries were a direct result of Dr. Ramchandani’s failure to perform the surgery as agreed. But for the actions of Dr. Ramchandani, no damages would have been inflicted on Jimenez.
H Dr. Ramchandani breached an oral contract by designating another physician to perform the surgery.
I Jimenez suffered damages as a result of the breach.

Jimenez claims damages from the alleged loss of the benefit of the contract. He requests to be placed in the same economic position he would have enjoyed had Dr. Ramchandani not breached the contract as alleged. Jimenez also alleges that he will continue to suffer medical injuries that will exceed the minimum jurisdictional limits, and accordingly Jimenez requests a sum in excess of the minimum jurisdictional limits.

At a hearing on December 15, 2008 (hereinafter the “December Hearing”), the trial court referred to a prior hearing and indicated that the Ramchandani Parties had asserted a motion to dismiss contract and fraud claims. The trial court indicated that it previously had granted Jimenez leave to amend within 21 days to include any additional allegations in the pleadings. The trial court also indicated that, at the prior hearing, it granted “basically the special exceptions or whatever it is.” Jimenez acknowledged that, now based on the amended pleadings, the action was based strictly on contract and he “deleted those other causes of action.” In open court, the trial judge granted the Ramchandani Parties’ motion to dismiss the claims involving damages for suffering, disfigurement of vocal chords, impairment of the ability to speak, and medical injuries exceeding the minimum jurisdictional limits. The trial court indicated that it denied the motion to dismiss as to any claims for contract damages.

In addressing the Ramchandani Parties’ request for attorney’s fees associated with the health care liability claims, Jimenez argued that the trial court previously had ruled on the motion to dismiss. For support, Jimenez referred to a letter dated December 9, 2008, which was filed along with his third amended petition, in which Jimenez wrote to the district clerk, “This letter is also to advise the Defendant that the court has already ruled and denied the Defendant’s motion. The Court has given Defendant no leave of court to file for a second regarding the same issues that she has already ruled on.” Jimenez argued that because the trial court already had ruled on the motion, there was no need for this second hearing and, therefore, attorney’s fees should have been denied. The trial court denied the Ramchandani Parties’ request for attorney’s fees.

The record contains a trial court order, signed on December 30, 2008, in which the trial court granted the Ramchandani Parties’ motion to dismiss all of Jimenez’s health care liability claims regarding medical treatment and all damages associated with the alleged disfigurement of Jimenez’s voice and vocal chords and impairment of his ability to speak. The trial court (1) dismissed the claims with prejudice for failure to comply with section 74.351(a), (2) denied the Ramchandani Parties’ request for attorney’s fees under section 74.351, and (3) denied the Ramchanda-ni Parties’ motion as to the breaeh-of-contract claim “seeking economic contract damages allowed under contract law.” The Ramchandani Parties now appeal, challenging the trial court’s failure to award attorney’s fees, failure to dismiss all of Jimenez’s claims, and failure to grant the motion to dismiss at the November Hearing.

II. Issues and Analysis

A. Did the trial court abuse its discretion in failing to dismiss all of the claims in the third amended petition?

In their third issue, the Ramchandani Parties assert that the trial court abused its discretion in failing to dismiss all of the claims in Jimenez’s third amended petition. The Ramchandani Parties assert that the trial court failed to correctly characterize all of Jimenez’s claims as health care liability claims that should have been dismissed.

A “health care liability claim” is defined as

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

Tex. Civ. Prac. & Rem.Code Ann. § 74.001(a)(13) (Vernon 2005). Whether a claim falls within the definition of “health care liability claim” requires an examination of the essence or underlying nature of the plaintiffs claim. Diversicare Gen. Partners, Inc. v. Rubio, 185 S.W.3d 842, 851 (Tex.2005). A cause of action against a health care provider or physician is a health care liability claim if it is based on a claimed departure from an accepted standard of medical care or health care, which allegedly caused injury to or death of a claimant, whether the action sounds in tort or contract. See id. at 848. A claimant alleges such a departure from accepted standards of medical care or health care if the act or omission complained of is an inseparable part of the rendition of medical services. See id.; Garland Cmty. Hosp. v. Rose, 156 S.W.3d 541, 544 (Tex.2004). When the essence of a suit is a health care liability claim, a claimant cannot avoid the requirements of the legislature’s statutory scheme through artful pleading. See Rose, 156 S.W.3d at 543.

Jimenez’s claims are based on Dr. Ramchandani’s alleged breach of an agreement that only he would operate on Jimenez’s right carotid artery. Jimenez asserts that Dr. Ramchandani breached this agreement by failing to perform the surgery as agreed and by designating another doctor to perform the surgery. Dr. Ram-chandani’s alleged failure to perform the surgery as agreed and his alleged designation of another doctor to perform the surgery are necessarily part of the rendition of health care services. Regardless of the damages that Jimenez seeks for the alleged breaches of contract, we conclude that the acts or omissions alleged in Jimenez’s suit are an inseparable part of the rendition of health care services and that the essence of this suit is a health care liability claim. See Murphy v. Russell, 167 S.W.3d 835, 837-39 (Tex.2005) (holding that claims for breach of contract, battery, and violations ' of the Deceptive Trade Practices Act based on alleged breach by anesthesiologist of his agreement not to administer general anesthesia to patient were health care liability claims under former article 4590i); Hunsucker v. Fustok, 238 S.W.3d 421, 426-29 (Tex.App.-Houston [1st Dist.] 2007, no pet.) (holding that claims for fraud, assault, and battery, based on surgeon’s performance of one surgical procedure when he allegedly had agreed to perform another surgical procedure, were health care liability claims under former article 4590i). Therefore, the trial court abused its discretion to the extent it denied the Ramchandani Parties’ motion to dismiss.

Jimenez asserts that the Ramchan-dani Parties waived any complaint regarding the trial court’s failure to dismiss Jimenez’s third amended petition because they did not move to dismiss this petition. The Ramchandani Parties filed their motion to dismiss before Jimenez filed his third amended petition. Nonetheless, the Ram-chandani Parties moved to dismiss all of Jimenez’s claims, without limiting the motion to a particular petition. The trial court denied, in part, this motion to dismiss. Therefore, the Ramchandani Parties preserved error and did not waive the appellate complaint they raise in their third issue.

Jimenez also asserts that the Ramchan-dani Parties requested or invited the ruling that the trial court made on their motion to dismiss. The record reflects that, during the December Hearing, counsel for the Ramchandani Parties suggested that the motion could be disposed of by an agreed order, under which the trial court would dismiss all claims except for “the breach of contract claim for the amount paid to Dr. Ramchandani for services.” The trial court, however, asked if counsel for Jimenez agreed with this disposition, and Jimenez’s counsel stated that he did not agree. Instead, counsel for Jimenez asserted that the trial court should deny the motion as to Jimenez’s “breach of contract claim against [the Ramchandani Parties] and all claims submitted under lawful breach of contract damages.” With no agreement as to the disposition of the motion to dismiss, the trial court proceeded to rule on the motion in a manner that was different from the disposition proposed by the Ramchandani Parties. We conclude that the parties did not agree as to how the trial court should dispose of the motion. Therefore, the Ramchandani Parties did not request or invite the ruling that the trial court made on the motion.

For the reasons stated above, the trial court abused its discretion to the extent it denied the Ramchandani Parties’ motion to dismiss. Accordingly, we sustain the Ramchandani Parties’ third issue.

B. Did the trial court err in failing to award attorney’s fees when dismissing the health care liability claims?

In their first issue, the Ramchandani Parties assert that the trial court abused its discretion in failing to award attorney’s fees and costs when dismissing the health care liability claims.

Section 74.351 requires that if an expert report has not been served within the statutorily required period of time, upon the motion of the affected physician or health care provider, the trial court shall enter an order awarding reasonable attorney’s fees and costs and dismiss the claim with prejudice. Tex. Civ. Prac. & Rem.Code Ann. § 74.851(b) (Vernon Supp.2009). The Texas Supreme Court has plainly stated that a plaintiff who fails to file a timely and sufficient report is subject to paying a healthcare defendant’s attorney’s fees and costs should the defendant move to dismiss the plaintiffs claims under Chapter 74. Hernandez v. Ebrom, 289 S.W.3d 316, 318 (Tex.2009) (“If a timely and sufficient report is not served, the trial court must award the provider its attorney’s fees and costs and dismiss the case with prejudice.”); see also Davis v. Webb, 246 S.W.3d 768, 774 (Tex.App.-Houston [14th Dist.] 2008, no pet.) (stating that “[u]nder subsection 74.351(b)(1), the trial court must enter an order awarding reasonable attorneys’ fees and costs of court when dismissing a case for failure to timely serve the required expert report”).

Although Jimenez asserts that the Ramchandani Parties presented no evidence to support an award of attorney’s fees, the record reflects that the Ramchan-dani Parties submitted an affidavit in support of their request for attorney’s fees. Jimenez also argues that a request for attorney’s fees must be supported by expert testimony in court rather than expert testimony by affidavit. Jimenez cites no authority that supports this proposition, and we reject it. The affidavit submitted by the Ramchandani Parties was sufficient to support their request for attorney’s fees.

At the December Hearing, after the trial court granted the Ramchandani Parties’ motion to dismiss in part, the Ramchandani Parties reminded the trial court of their attorney’s fees request, and the trial court denied this request. The Ramchandani Parties preserved error on their complaint that the trial court erred in denying their request for attorney’s fees and costs under section 74.351(b) of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(b). We have concluded that the trial court should have granted the Ram-chandani Parties’ motion to dismiss as to all of Jimenez’s claims. Therefore, under this statute, the Ramchandani Parties are entitled to reasonable attorney’s fees and costs, and the trial court erred in denying their request for them. See Hernandez, 289 S.W.3d at 318; Granbury Minor Emergency Clinic v. Thiel, 296 S.W.3d 261, 274 (Tex.App.-Fort Worth 2009, no pet.); Davis, 246 S.W.3d at 774. Accordingly, we sustain the Ramchandani Parties’ first issue.

III. Conclusion

The trial court abused its discretion to the extent it denied the Ramchandani Parties’ motion to dismiss and denied their request for attorney’s fees and costs under section 74.351(b) of the Texas Civil Practice and Remedies Code. Accordingly, we reverse the trial court’s order and remand for further proceedings for the trial court to dismiss all of Jimenez’s claims and to award the Ramchandani Parties the reasonable attorney’s fees and costs that they have incurred, in accordance with section 74.351(b) of the Texas Civil Practice and Remedies Code.

YATES, J., concurring.

LESLIE B. YATES, Justice,

concurring.

I agree with the majority’s conclusion that all of Jimenez’s claims constitute health care liability claims. However, the majority does not clearly explain the rationale behind its conclusion. The majority merely asserts that Dr. Ramchandani’s alleged failure to perform the surgery as agreed and designation of another doctor to do so are “an inseparable part of the rendition of health care services” because they are “necessarily part of the rendition” of those services. I write separately to explain why.

In assessing whether a plaintiffs claim is inseparable from the rendition of medical services, a key consideration is the role of medical judgment. See Marks v. St. Luke’s Episcopal Hosp., No. 07-0783, — S.W.3d —, —, — (Tex.2009); see also Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 847-52 (Tex.2005). An action, or lack thereof, is inseparable from patient treatment or care if it involves professional judgment. See Marks, — S.W.3d at-. The challenged conduct is Dr. Ramchandani’s decision to not perform the surgery (at least as the lead surgeon) and to allow Dr. Tripathy to do so. The jury will necessarily be called on to assess whether Dr. Ramchandani acted reasonably and in furtherance of Jimenez’s care when making that decision. Even though framed as a breach of contract action, Jimenez’s claim is still, at its essence, a complaint that Dr. Ramchandani exercised poor judgment in allowing Dr. Tripathy to perform the surgery. Many courts have held that breach of contract allegations based on the failure to follow an agreement to provide a certain type of treatment constitute health care liability claims because they involve the assessment of the medical judgment around whether those decisions were appropriate. See, e.g., Murphy v. Russell, 167 S.W.3d 835, 837-39 (Tex.2005) (holding that breach of contract claim based on breach of agreement by anesthesiologist not to administer general anesthesia was health care liability claim because circumstances during surgery may have warranted the conduct); Smalling v. Gardner, 203 S.W.3d 354, 364-65 (Tex.App.-Houston [14th Dist.] 2005, pet. denied) (finding that breach of contract claim based on failure to provide treatment to newborn surviving only a short time was health care liability claim because those decisions required assessment of what a prudent doctor would do); see also Hunsucker v. Fustok, 238 S.W.3d 421, 429 (Tex.App.-Houston [1st Dist.] 2007, no pet.) (concluding that providing care in a manner contrary to parties’ agreement is inseparable from the care itself and thus breach of contract claim constituted health care liability claim). It is for this reason that I conclude that all of Jimenez’s claims are health care liability claims.

      . The record does not contain a file-stamped copy of the second amended petition.

      . There is no evidence in the record to suggest that the trial court had ruled on the Ramchandani Parties’ motion to dismiss prior to the December Hearing. The only trial court order in the record is one signed December 30, 2008, which is discussed below.

      . The holding in this case should not be interpreted so as to suggest that a claim for breach of contract against a health care provider is necessarily a health care liability claim or that a claim for breach of contract against a health care provider can never stand as a separate, non-health care liability claim.

      . Because we conclude that the trial court erred to the extent it denied the Ramchandani Parties’ motion to dismiss, we need not and do not address the second issue, in which the Ramchandani Parties assert that the trial court erred by failing to grant their motion at the November Hearing.


author: EVELYN V. KEYES, Justice.

text:
    Jonathon Russell STAGGS, Appellant, v. The STATE of Texas, Appellee.
    Nos. 01-08-00565-CR, 01-08-00570-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    April 22, 2010.

      J.D. Hamm, The Law Offices of J.D. Hamm, Jonathon Russell Staggs, Beaumont, TX, for Appellant.
    Rodney D. Conerly, Asst. Criminal District Attorney, Wayln G. Thompson, Assistant Criminal District Attorney, Beaumont, TX, for Appellee.
    Panel consists of Justices KEYES, SHARP, and MASSENGALE.
   OPINION

EVELYN V. KEYES, Justice.

On May 24, 2007, appellant, Jonathon Russell Staggs, pleaded guilty to two felony charges of assault on a family member under former section 22.01(a)(1) and (b)(2) of the Penal Code. The trial court assessed punishment at five years’ deferred adjudication probation. Subsequently, on the State’s motion to revoke probation, the trial court found appellant guilty of the underlying offenses and the enhancement paragraphs and assessed punishment at ten years’ imprisonment for each offense with the sentences to run consecutively. In his sole issue, appellant argues that the trial court lacked jurisdiction to proceed with a felony prosecution because there was no evidence to support the finding of a prior family assault.

We affirm.

BACKGROUND

In separate indictments, appellant was charged with third-degree felony assault on two different family members under former section 22.01(a)(1) and (b) of the Penal Code. Former section 22.01 provided in relevant part:

(a) A person commits an offense if the person:
(1) intentionally, knowingly, or recklessly causes bodily injury to another including the person’s spouse;
(b) An offense under Subsection (a)(1) is a Class A misdemeanor, except that the offense is a felony of the third degree if the offense is committed against:
(2) a member of the defendant’s family or household, if it is shown on the trial of the offense that the defendant has been previously convicted of an offense against a member of the defendant’s family or household under this section.

See Act of June 17, 2005, 79th Leg., R.S., ch. 728, 2005 Tex. Gen. Laws 2188, 2298-99 (amended 2009) (current version at Tex. Penal Code Ann. § 22.01(a)(1), (b)(2) (Vernon Supp.2009)). The first indictment, in Cause No. 07-00352, alleged that appellant assaulted his mother, Verlene Felps, “a member of his family and household,” by hitting, pushing, and kicking her. The second indictment, in Cause No. 07-00483, alleged that appellant assaulted his brother, David Felps, “a member of his family and household,” by hitting, kicking, and biting him. Both indictments also stated that appellant “had been previously convicted of an offense against a member of the Defendant’s family and household, to-wit: assault against MELISSA PIPPS on October 12, 2006, in Cause No. 251 333, in the County Court at Law # 3 of Jefferson County, Texas.” Appellant pleaded guilty to both charges without an agreed recommendation as to punishment.

For both offenses, appellant signed identical admonishments entitled “Stipulations, Waivers, & Judicial Admission.” Specifically, he signed a statement that included the following sentence, “I have read the charging instrument and my attorney has explained it to me and I committed each and every element alleged.... I swear that all of the foregoing as well as the testimony I give is the truth, so help me God.” The documents containing this judicial admission that appellant had committed each element alleged in the indictments were distinct from his guilty pleas. The trial court accepted appellant’s guilty pleas to both offenses, placed appellant on deferred adjudication community supervision for five years, and assessed a fine of $1,000. In both cases, appellant’s community supervision was conditioned on 25 requirements.

On May 7, 2008, the State moved to adjudicate appellant guilty on both counts for violating several conditions of his community supervision, including failing to report to his probation officer and failing to enter and complete an anger management program. Appellant entered pleas of true to the claims that he had not reported to his probation officer in either February or March 2008 and that he had failed to enter and complete an anger management course. The trial court adjudicated appellant guilty in both causes without making a specific finding that the prior conviction alleged in each cause was true; accepted both pleas of true to the violations of his conditions of community supervision; and assessed punishment at ten years’ imprisonment for each offense, with the sentences to run consecutively. The trial court certified appellant’s cases as eligible for appeal, indicating that they were not plea bargain cases with an agreed recommendation as to punishment.

DISCUSSION

In his sole issue, appellant argues that the trial court lacked jurisdiction to proceed with his assault charge as a felony offense because there was no evidence of a prior family assault conviction to provide jurisdiction over the third degree felony offense with which appellant was charged.

A person commits assault if he “intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s spouse.” Tex. Penal Code Ann. § 22.01(a)(1) (Vernon 2003). Such an “offense is a felony of the third degree if the offense is committed against ... a member of the defendant’s family or household, if it is shown on the trial of the offense that the defendant has been previously convicted of an offense against a member of the defendant’s family or household under this section.” Id. at § 22.01(b)(2).

Pursuant to article 1.15 of the Texas Code of Criminal Procedure, the State must offer sufficient proof to support any judgment based on a guilty or nolo contendere plea in a felony case tried to the court. Tex.Code Crim. Proc. Ann. art. 1.15 (Vernon 2005); Ex parte Williams, 703 S.W.2d 674, 678 (Tex.Crim.App.1986); Keller v. State, 125 S.W.3d 600, 604 (Tex.App.-Houston [1st Dist.] 2003), pet dism’d, improvidently granted, 146 S.W.3d 677 (Tex.Crim.App.2004). The State must “introduce evidence into the record showing the guilt of the defendant and said evidence shall be accepted by the court as the basis for its judgment and in no event shall a person charged be convicted upon his plea without sufficient evidence to support the same.” Tex.Code Crim. PROC. Ann. art. 1.15; see Keller, 125 S.W.3d at 604. “A conviction rendered without sufficient evidence to support a guilty plea constitutes trial error.” Menefee v. State, 287 S.W.3d 9, 14 (Tex.Crim.App.2009). The State, however, is not required to prove the defendant’s guilt beyond a reasonable doubt; the supporting evidence must simply embrace every essential element of the charged offense. McGill v. State, 200 S.W.3d 325, 330 (Tex.App.-Dallas 2006, no pet.).

To provide sufficient evidence, the State must enter into the record a showing of each essential element of the offense charged. Breaux v. State, 16 S.W.3d 854, 857 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd). The “[e]vidence offered in support of a guilty plea may take many forms.” Menefee, 287 S.W.3d at 13. “The evidence may be stipulated if the defendant ... consents in writing, in open court, to waive the appearance, confrontation, and cross-examination of witnesses, and further consents either to an oral stipulation of the evidence and testimony or to the introduction of testimony or to the introduction of testimony by affidavits, written statements by witnesses, and any other documentary evidence in support of the judgment of the court.” Tex.Code Crim. Proc. Ann. art. 1.15.

A defendant who pleads guilty does not need to concede to the veracity of the evidence to which he stipulates, but if he does, the court will consider the stipulation to be a judicial confession. Stone v. State, 919 S.W.2d 424, 426 (Tex.Crim.App.1996); Barnes v. State, 103 S.W.3d 494, 497 (Tex.App.-San Antonio 2003, no pet.); Wright v. State, 930 S.W.2d 131, 133 (Tex.App.-Dallas 1996, no pet.). A judicial confession must be separate and independent from the plea itself and is sufficient to support a guilty plea if the defendant “enter[s] a sworn written statement ... admitting his culpability or at least acknowledging generally that the allegations against him are in fact true and correct ... so long as such a judicial confession covers all of the elements of the charged offense-” Menefee, 287 S.W.3d at 13. “A judicial confession alone is sufficient evidence to sustain a conviction upon a guilty plea under article 1.15.” Stewart v. State, 12 S.W.3d 146, 148 (Tex.App.-Houston [1st Dist.] 2000, no pet.) (citing Dinnery v. State, 592 S.W.2d 343, 353 (Tex.Crim.App.1979)). Moreover, a judicial confession can be sufficient proof of previous convictions involving family violence. See Edison v. State, 253 S.W.3d 303, 305 (Tex.App.-Beaumont 2008, no pet.) (indicating that prior assault on family member is element of crime of assault on family member under section 22.01(b)(2) of Penal Code; that “[t]he previous conviction for assault against a family or household member must be shown at trial to elevate the offense from a Class A misdemeanor to a third degree felony;” and that judicial confession to prior conviction for family assault alleged in the indictment is sufficient to support third degree felony conviction for assault on a family member under article 22.01(b)(2)).

Here, appellant made a valid judicial confession in which he admitted that he committed each and every element of the third-degree felony offense of assault on a family member alleged in the charging instruments, including the element of having been previously convicted of an offense against a family member. A valid judicial confession is sufficient to sustain a conviction upon a guilty plea under article 1.15 of the Code of Criminal Procedure. Stewart, 12 S.W.3d at 148; Edison, 253 S.W.3d at 305. We hold that the State carried its evidentiary burden of proving appellant guilty of third degree felony assault on a family member under former section 22.01(a) and (b) of the Penal Code.

Appellant disagrees, however, with Edison ⅛ holding that a defendant’s judicial confession to a prior conviction for family assault alleged in the indictment is sufficient to support a third degree felony conviction for assault on a family member. See 253 S.W.3d at 305. He contends that, in a section 22.01(b)(2) case, “the prior conviction is more than an element to the offense. It is the jurisdictional foundation for the third degree felony offense set out in section 22.01(b)(2),” and that, “at the adjudication hearing, the trial court should have obtained some oral stipulation on the record of whether the prior allegation was true or not.” He relies on Gant v. State to support his argument. See 606 S.W.2d 867, 871 (Tex.Crim.App.1980). Appellant’s reliance is misplaced.

Gant was a jury trial. The court held that a phrase in the felony theft statute stating “and the defendant has been previously convicted two or more times of any grade of theft” constituted a jurisdictional element of the particular offense proscribed, rather than an enhancement provision for punishment purposes, and, therefore, it had to be both alleged and charged in the trial before the jury was authorized to render a general verdict that the defendant was of guilty of the felony offense. 606 S.W.2d at 871. The court did not hold that a judicial confession to a prior assault was insufficient to satisfy this standard in a case, like this one, where the defendant judicially confessed to the prior assault prior to his conviction upon a guilty plea. Edison, however, was a sexual assault case in which the defendant pled guilty. The Beaumont Court of Appeals held, like the Court of Criminal Appeals in Gant, that a prior conviction for family assault must be shown prior to conviction to elevate the offense of assault on a family member from a Class A misdemeanor under section 22.01(a)(1) of the Penal Code to a third degree felony under section 22.01(b)(2) of the Code, and it further held that such showing can be made by a judicial confession voluntarily offered in conjunction with a guilty plea. 253 S.W.3d at 305. Edison is therefore consistent with the Court of Criminal Appeals’ holding in Gant that when a prior conviction is an element of an offense, as it is here, the prior conviction must be alleged and charged and proved prior to conviction for felony sexual assault, rather than being stipulated to as true in the punishment phase.

Here, the indictment alleged that appellant “had been previously convicted of an offense against a member of the defendant’s family and household.” Appellant pleaded guilty and judicially confessed to each element of the third degree felony offense, including the element of having been previously convicted of assault on a family member. The requirements for sustaining his conviction set out in Gant and Edison were thus satisfied. Appellant has failed to demonstrate any reason why his case should not be subject to the rule that a valid judicial confession is sufficient to sustain a conviction upon a guilty plea.

We conclude that the trial court had adequate evidence of a prior family assault conviction to establish felony jurisdiction over appellant.

We overrule appellant’s sole issue on appeal.

CONCLUSION

We affirm the judgment of the trial court.

      . See Act of June 17, 2005, 79th Leg., R.S., ch. 728, 2005 Tex. Gen. Laws 2188, 2298-99 (amended 2009) (current version at Tex. Penal Code Ann. § 22.01(a)(1), (b)(2) (Vernon Supp. 2009)).

      . The Texas Supreme Court transferred this appeal from the Court of Appeals for the Ninth District of Texas to this Court. See Tex. Gov’t Code Ann. § 73.001 (Vernon 2005) (authorizing transfer of cases).

      . The law for assault changed in 2005, 2007, and 2009. Appellant's indictments indicate that his offenses occurred on February 3, 2007. The 2007 amendments to section 22.01 apply only to offenses committed on or after September 1, 2007. See Act of June 15, 2007, 80th Leg., R.S., ch. 623, 2007 Tex. Gen. Laws 1192, 1192-93 (amended 2009) (current version at Tex. Penal Code Ann. § 22.01 (Vernon Supp.2009)).


author: RICK STRANGE, Justice.

text:
    Ray ATHEY, a/k/a Ray D. Athey and Belinda Athey, Appellant, v. MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. as Nominee for Lender, its Successors and Assigns, Appellee.
    No. 11-09-00224-CV.
    Court of Appeals of Texas, Eastland.
    April 22, 2010.

      Vance Dunnam, Christie Ryan, Dunnam & Dunnam, Waco, for appellant.
    C. Bradley Kitchens, Diana Estala Stevens, Mann & Stevens, P.C., Houston, for appellee.
    Panel consists of: WRIGHT, C.J., McCALL, J., and STRANGE, J.
   OPINION

RICK STRANGE, Justice.

Ray Athey, a/k/a Ray D. Athey and Belinda Athey sued Mortgage Electronic Registration Systems, Inc. (MERS) as Nominee for Lender, Its Successors and assigns, for fraud in connection with a home equity loan. MERS filed a motion for summary judgment. The trial court granted that motion and found that the Atheys were in default on a promissory note, that MERS was the beneficiary of a deed of trust securing their note, and that MERS was entitled to proceed with nonjudicial foreclosure. We affirm.

I. Background Facts

The Atheys executed a promissory note payable to Decision One Mortgage Company, LLC. The note was secured by 2.5057 acres, and the Atheys executed a deed of trust that named MERS as Decision One’s nominee and the mortgagee. The note was entitled:

TEXAS HOME EQUITY NOTE (Cash Out — Adjustable Rate — First Lien)
(LIBOR Six-Month Index (As Published in the Wall Street Journal)—
Rate Caps)
THIS NOTE CONTAINS PROVISIONS ALLOWING FOR CHANGES IN MY INTEREST RATE AND MY MONTHLY PAYMENT. THIS NOTE LIMITS THE AMOUNT MY INTEREST RATE CAN CHANGE AT ANY ONE TIME AND THE MAXIMUM RATE I MUST PAY.

In contrast to this language, the Atheys contended that an unnamed representative of Decision One told them at closing that the note had a fixed interest rate. The Atheys corroborated this contention with an affidavit from a disinterested person who was also present at closing.

Two years later, Decision One raised the interest rate from 7.79% to 10.79%. The Atheys became delinquent, and HomEq Servicing Corporation, as servicer for MERS, notified the Atheys that, if their delinquency was not cured, it would accelerate the note. The Atheys were unable to do so, and MERS accelerated the note and initiated foreclosure proceedings. The Atheys then filed this suit.

II. Issues

The Atheys challenge the summary judgment with two issues, contending that the trial court erred because there was a material question of fact on their fraudulent inducement cause of action and because MERS failed to establish that it was the owner and holder of the note.

III. Discussion

A. Standard of Review.

Questions of law are reviewed de novo. St. Paul Ins. Co. v. Tex. Dep’t of Transp., 999 S.W.2d 881, 884 (Tex.App.-Austin 1999, pet. denied). To determine if a fact question exists, we must consider whether reasonable and fair-minded jurors could differ in their conclusions in light of all the evidence presented. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex.2007). We must consider all the evidence in the light most favorable to the nonmovant, indulging all reasonable inferences in favor of the nonmovant, and determine whether the movant proved that there were no genuine issues of material fact and that it was entitled to judgment as a matter of law. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985).

B. Fraudulent Inducement.

To establish fraud, a claimant must prove: (1) that a material representation was made; (2) that the representation was false; (3) that, when the speaker made the representation, he knew it was false or made it recklessly without knowledge of the truth as a positive assertion; (4) that the speaker made it with the intention that it should be acted upon by the claimant; (5) that the claimant acted in reliance upon it; and (6) that the claimant thereby suffered injury. Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 524 (Tex.1998). Fraudulent inducement is a particular species of fraud that arises only in the context of a contract and requires the existence of a contract as part of its proof. Haase v. Glazner, 62 S.W.3d 795, 798 (Tex.2001).

The Atheys contended that they were defrauded when the Decision One representative misrepresented that the interest rate was fixed. MERS moved for summary judgment on this claim, arguing that the note fully disclosed that the interest rate was variable. The Atheys do not dispute that the note unambiguously provided for an adjustable interest rate but contend that, absent proof of their actual knowledge, the rate was variable (knowledge which cannot be inferred merely from what they would have learned had they read the note), testimony that the representative said the interest rate was fixed is sufficient to preclude summary judgment. The Atheys rely upon Trenholm v. Ratcliff, 646 S.W.2d 927, 933 (Tex.1983), for the proposition that, “[w]here one has been induced to enter into a contract by fraudulent representations, the person committing the fraud cannot defeat a claim for damages based upon a plea that the party defrauded might have discovered the truth by the exercise of proper care.”

Trenholm involved a common-law fraud action based upon oral misrepresentations made by a local developer to home builders during a meeting designed to solicit their participation in a new subdivision. The developer told the builders that a nearby mobile home park would be closed and the site bulldozed so that, by the time of the subdivision’s grand opening, “it will be like there’s never been a park there.” Id. at 929. One of the builders thereafter built eighteen houses in the subdivision. The mobile home park was not closed by the time these houses were completed, the subdivision did poorly, and the eighteen houses were sold at a loss. Id. The jury found that the developer made a material misrepresentation and that the builder detrimentally relied upon this misrepresentation. The developer argued that this was insufficient to constitute fraud because there was no evidence that the builder exercised due diligence and that he could have easily ascertained the status of the trailer park prior to building any homes. Id. at 933. The supreme court rejected this argument, holding that proof of due diligence was not an element of detrimental reliance. Id.

Trenholm makes clear that the Atheys were not required to independently investigate the Decision One representative’s statement before relying upon it. But does this mean that they could rely upon an oral statement clearly inconsistent with conspicuous provisions of the note? The Atheys respond positively and direct us to Amouri v. Sw. Toyota, Inc., 20 S.W.3d 165 (Tex.App.-Texarkana 2000, pet. denied). In that case, the plaintiff was led to believe that he was signing purchase papers for a car, but he instead signed a lease agreement. The Texarkana Court held that, when the execution of a contract is procured by fraud, misrepresentation, or concealment, there is no assent and, therefore, no binding contract. Id. at 169. The Ath-eys reason that, because the Decision One representative’s statement induced them to sign the note, they could rely upon it even if it was contradicted by a conspicuous note provision.

The Atheys read too much into Amouri. Even though the Texarkana Court voided the lease agreement because of a misrepresentation, it specifically noted that “a party to a contract may not successfully claim that he believed the provisions of the contract were different from those plainly set out in the agreement or that he did not understand the meaning of the language used.” Id. Thus, Amouri does not stand for the proposition that all pre-execution oral statements that are inconsistent with the terms of the written agreement are sufficient to vitiate assent. Instead, Am-ouri would require a determination of whether the misrepresentation was such that there was never a meeting of the minds.

Other courts have taken a slightly different approach by considering whether a party could justifiably rely upon an oral statement. In this instance, courts have held that reliance upon an oral representation that is directly contradicted by the express, unambiguous terms of a written agreement is unjustified as a matter of law. See, e.g., DRC Parts & Accessories, L.L.G. v. VM Motori, S.P.A., 112 S.W.3d 854, 858-59 (Tex.App.-Houston [14th Dist.] 2003, pet. denied) (one who enters into a written contract while relying on a contrary oral agreement does so at its peril and may not pursue a fraudulent inducement claim when the other party asserts its contractual rights).

Recent Texas Supreme Court decisions suggest that hard and fast rules for when contracting parties may justifiably rely upon oral representations will not always be easily ascertainable. See, e.g., Forest Oil Corp. v. McAllen, 268 S.W.3d 51 (Tex.2008); and Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171 (Tex.1997). But the court has ratified the concept that, to vitiate a contract, “the fraud must be something more than merely oral representations that conflict with the terms of the written contract.” Swanson, 959 S.W.2d at 179 (citing Distrib. Inv. Co. v. Patton, 130 Tex. 449, 110 S.W.2d 47, 48 (1937)).

Even if bright-line rules for determining whether reliance is justified are sometimes wanting, Texas courts have been more stringent in their analysis of fraudulent inducement claims when the contract is a promissory note. See Town N. Nat’l Bank v. Broaddus, 569 S.W.2d 489, 493 (Tex. 1978) (to prevail in asserting fraud as an affirmative defense to a promissory note, the defendant must show some “trickery, artifice, or device”); see also Simmons v. Compania Financiera Libano, 830 S.W.2d 789, 791 (Tex.App.-Houston [1st Dist.] 1992, writ denied) (the clear terms of a negotiable instrument cannot be varied by a parol agreement that purports to change the obligor’s responsibilities); Tripp Vill. Joint Venture v. MBank, Lincoln Ctr., N.A., 774 S.W.2d 746, 749 (Tex.App.-Dallas 1989, writ denied) (defendant could not prove fraud by extrinsic evidence until it demonstrated that it was tricked into executing the security agreement). The policy behind this heightened proof requirement is to avoid uncertainty and confusion in the law of promissory notes. Broaddus, 569 S.W.2d at 492. This is particularly appropriate when one considers that they are frequently negotiable instruments.

The Atheys’ evidence does not establish the trickery, artifice, or device necessary to void a promissory note. The oral representation upon which they rely is directly, clearly, and conspicuously contradicted by the note’s heading and introductory paragraph. We do not hold that a fraudulent inducement cause of action can never lie merely because the operative oral representation is contradicted by a provision within the contract. But in this instance, the Atheys could not reasonably rely upon an oral representation that was so plainly contradicted. The trial court did not err by granting MERS’s motion for summary judgment. Issue One is overruled.

C. Owner and Holder.

The Atheys next complain that the trial court erred because MERS failed to prove that it was the owner and holder of the note. The note is payable to the order of Decision One. The deed of trust designated MERS as the mortgagee and as Decision One’s nominee. MERS attached the affidavit of Noriko Colston to its motion for summary judgment. Colston testified that she was the assistant secretary and custodian of records for HomEq, that HomEq was a mortgage servicer for MERS, and that it was responsible for the day-to-day management of the Atheys’ note. She authenticated the note, deed of trust, notice of default and intent to accelerate, and the Atheys’ payment history as HomEq’s business records. She also testified that Decision One was the owner and holder of the note.

The Atheys did not object to this affidavit testimony, but Ray Athey testified in his affidavit that, “[biased upon my information and belief, [MERS] is not the owner of the note in question and does not have authority to bring suit on the note and foreclose under the deed of trust.” On appeal, the Atheys argue that Colston had no personal knowledge of any of the underlying documents because they were created by a third-party company. Because they did not object to Colston’s affidavit, they may not challenge her personal knowledge on- appeal. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 677 (Tex.1979) (a party must object in writing to formal deficiencies in the summary judgment proof or waive the objection). Form defects include the affi-ant’s lack of personal knowledge. Stewart v. Sanmina Tex. L.P., 156 S.W.3d 198, 207 (Tex.App.-Dallas 2005, no pet.). Moreover, the mere fact that Colston was employed by HomEq does not preclude her testimony. See Houston Shell & Concrete Co. v. Kingsley Constructors, Inc., 987 S.W.2d 184, 186 (Tex.App.-Houston [14th Dist.] 1999, no pet.) (Tex.R. Evid. 808(6) does not require the affiant to be the creator of the document or even an employee of the company keeping the record but does require that the affiant establish that they or others in their company knew of the events recorded on the third-party documents).

Even if the Atheys’ evidentiary challenge had been preserved below, on appeal, the Atheys argue that there is no evidence establishing that MERS is the owner and holder of the note. MERS never contended that it owned or held the note. The documents and Colston’s affidavit establish that Decision One was the owner and holder. And even if Ray Athens affidavit and their appellate issue are read as a challenge to MERS’s authority to bring this suit, the deed of trust clearly gives MERS that authority. The trial court did not err by holding that MERS was entitled to proceed with nonjudicial foreclosure. Issue Two is overruled

IV. Conclusion

The judgment of the trial court is affirmed.

      . The note established a yearly interest rate of 7.79% but provided that "[t]he interest rate I will pay may change on the 1ST day of SEPTEMBER, 2007, and on that day every sixth month thereafter. Each date on which my interest rate could change is called a 'Change Date.' " The interest rate was to be calculated by adding 6.79% to the average of interbank offered rates for six-month U.S. dollar-denominated deposits in the London market. 10.79% represented the largest permissible interest rate that could be charged on September 1, 2007, but the rate could continue to increase 1% every six months until it reached 13.79%. The interest rate could never be less than 7.79%.

      . See also Wuertz v. Nationwide Life Ins. Co., No. 01-07-00272-CV, 2009 WL 1331860 (Tex.App.-Houston [1st Dist.] May 14, 2009, no pet.) (plaintiff could not rely upon statement that life insurance policy required only one $300,000 premium payment when policy and policy application clearly indicated that it required an annual $300,000 premium payment).

      . For example, in McAllen, the court instructed lower courts faced with a waiver-of-reli-anee provision in a contract to consider whether: (1) the terms of the contract were negotiated, rather than boilerplate, and if the parties specifically discussed the issue that has become the topic of the subsequent dispute during their negotiations; (2) the complaining party was represented by counsel; (3) the parties dealt with each other in an arm’s length transaction; (4) the parties were knowledgeable in business matter; and (5) the release language was clear. 268 S.W.3d at 60.