author: DIANE M. HENSON, Justice.

text:
    ANDERSON PETRO-EQUIPMENT, INC., a Texas Domestic Corporation, and Curtis Ray Anderson, Appellants, v. STATE of Texas, Appellee.
    No. 03-08-00467-CV.
    Court of Appeals of Texas, Austin.
    June 18, 2010.
    Rehearing Overruled July 16, 2010.

      Rex H. White Jr., Austin, TX, for appellants.

      Ryan D. Larson, Office of the Attorney General, Bankruptcy & Collections Division, Austin, TX, for State.
    Before Chief Justice JONES, Justices WALDROP and HENSON.
   OPINION

DIANE M. HENSON, Justice.

The State of Texas brought an action in district court to enforce three final orders issued by the Railroad Commission assessing administrative penalties against Anderson Petro-Equipment, Inc. (Anderson Petro) for failure to plug inactive wells in violation of the Texas Natural Resources Code. See Tex. Nat. Res.Code Ann. § 81.0534 (West 2001). The State sued Anderson Petro and its president, Curtis Ray Anderson, (collectively, appellants) to enforce the orders and to recover additional penalties, attorneys’ fees, and clean-up costs. See id. §§ 85.381, .383, 89.083. The State’s claims against Anderson individually sought (1) to enforce two of the three final orders that were issued after Anderson Petro forfeited its corporate privileges and charter, and (2) to recover clean-up costs incurred by the State after the forfeiture. See Tex. Tax Code Ann. § 171.255 (West 2008). Appellants challenge the district court’s judgment on the ground that the State’s claims relating to the two final orders issued after Anderson Petro forfeited its corporate privileges are “post-dissolution” claims for which neither the dissolved corporation nor its officers and directors are liable. We will affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Anderson Petro was the registered operator of three wells that had not been plugged as required by, or were otherwise not in compliance with, Texas Railroad Commission rules and statutes. See Tex. Nat. Res.Code Ann. title 3, subtitle B, ch. 89 (West 2001 & Supp. 2009); 16 Tex. Admin. Code § 3.14 (2010) (Tex.R.R. Comm’n, Plugging). The wells at issue were Arco-Hurd Fee Lease (09704), Well No. 1, Joes Lake East Field, Tyler County (“the Joes Lake East Well”); Well No. 1, Arco Fee Sec. 189 Lease (10650), Beech Creek Field (9400), Hardin County (“the Beech Creek Well”); and Well No. 1, Han-kamer Sec. 31 Lease (18075), Devils Pocket, West Field, Newton County (“the Devils Pocket West Well”). The Commission initiated enforcement actions against Anderson Petro resulting in three final orders:

i. Final order dated May 11, 2004 ordering Anderson Petro to plug or otherwise place in compliance the Joes Lake East Well and pay $2,000 in administrative penalties (“the May 2004 Order”);
ii. Final order dated October 5, 2005 ordering Anderson Petro to pay $2,000 in administrative penalties for a period of noncompliance of the Beech Creek Well (“the October 2005 Order”); and
iii. Final order dated April 11, 2006 ordering Anderson Petro to plug the Devils Pocket West Well and pay $5,000 in administrative penalties and reimbursement of $2,936.25 in state funds expended to clean the lease (“the April 2006 Order”).

Additional state funds totaling $1,146.25 were spent to clean up the Devils Pocket West Well in November 2005 and November 2006.

Anderson Petro failed to pay its 2004 franchise taxes when due on May 17, 2004. This resulted in the forfeiture of Anderson Petro’s corporate privileges on October 13, 2004. See Tex. Tax Code Ann. § 171.251 (West 2008) (comptroller shall forfeit corporate privileges of corporation if corporation fails to pay franchise taxes). Subsequently, Anderson Petro’s corporate charter was forfeited on February 11, 2005. See id. § 171.309 (West 2008) (secretary of state may forfeit charter upon receiving certification from comptroller that 120 days have passed since corporation forfeited its corporate privileges and corporation has not revived its privileges). Although the May 2004 Order was issued while Anderson Petro was in good standing, both the October 2005 Order and the April 2006 Order were issued after Anderson Petro had forfeited both its corporate privileges and its corporate charter.

The State brought an action in district court against Anderson Petro seeking (1) to recover the administrative penalties assessed in each of the three Commission orders, along with civil penalties, court costs, and attorneys’ fees; (2) reimbursement of the state funds used to clean up the Devils Pocket West Well; and (3) an injunction for Anderson Petro’s failure to comply with the Commission’s final orders. The State also sued Anderson, seeking to impose individual liability for (1) the administrative penalties assessed in the October 2005 Order and the April 2006 Order along with the associated civil penalties; (2) $4,082.50 as reimbursement for the cost to clean up the Devils Pocket West Well; and (3) court costs and attorneys’ fees. The State asserted that Anderson was individually liable for these debts of Anderson Petro because they were created or incurred after Anderson Petro forfeited its corporate privileges. See Tex. Tax Code Ann. § 171.255 (if corporate privileges are forfeited for failure to file report or pay tax or penalty, each director or officer of corporation is liable for each debt of corporation created or incurred in this state after date on which report, tax, or penalty is due and before corporate privileges are revived).

The district court rendered judgment against Anderson Petro for the $2,000 in administrative penalties assessed in the May 2004 Order along with $20,500 in civil penalties for failure to comply with that order. The district court rendered judgment against Anderson Petro and Anderson, jointly and severally, for (i) the $5,000 in administrative penalties assessed in the October 2005 Order and the April 2006 Order, (ii) $4,197.70 as reimbursement for funds used to clean up the Devils Pocket West Well; (iii) $50,000 in civil penalties for failure to comply with the two orders; and (iv) $11,481.25 in attorneys’ fees plus costs. The judgment also ordered Anderson Petro to plug or otherwise place in compliance the Joes Lake East Well, and ordered Anderson Petro and Anderson, jointly and severally, to plug the Devils Pocket West Well.

Appellants challenge the district court’s judgment, contending in one issue that the court erred by rendering judgment against them on the State’s claims for administrative and civil penalties resulting from Anderson Petro’s failure to comply with final orders of the Railroad Commission “issued after Appellant corporation became a ‘dissolved corporation’ under Art. 7.12(F)(1)(e), Tex. Bus. Corp. Act.” See Tex. Bus. Corp. Act Ann. art. 7.12(F)(1)(e) (West 2003) (term “dissolved corporation” in this article means corporation whose charter was forfeited pursuant to tax code unless forfeiture has been set aside). Appellants contend that, because the October 2005 Order and the April 2006 Order were issued after Anderson Petro forfeited its corporate charter, the State’s claims did not exist prior to the corporation’s dissolution. Appellants argue that, as a “dissolved corporation,” it could not be held liable for any claim other than an “existing claim.” See id. art. 7.12(A)(2) (dissolved corporation continues corporate existence for three years from date of dissolution for purpose of permitting survival of any existing claim by or against it), 7.12(C) (corporation shall not be liable for any claim other than existing claim). Appellants maintain that the State could not sue to enforce the October 2005 Order and the April 2006 Order because they were not “existing claims” as that term is defined in article 7.12 of the business corporation act. See id. art. 7.12(F)(8) (term “existing claim” in this article means claim that existed before dissolution and is not otherwise barred by limitations or contractual obligation incurred after dissolution).

We will affirm the district court’s judgment.

DISCUSSION

Liability for post-forfeiture orders

Article 7.12 of the business corporation act is a survival statute that provides the exclusive means by which an injured party may assert a claim against a dissolved corporation that has ceased to exist for other purposes. Hunter v. Fort Worth Capital Corp., 620 S.W.2d 547, 549-51 (Tex.1981). A corporation that has forfeited its charter pursuant to the tax code is included in the article 7.12 definition of a “dissolved corporation” unless and until the forfeiture has been set aside. See Tex. Bus. Corp. Act. Ann. art. 7.12(F)(1)(e). Article 7.12(A) provides that:

[a] dissolved corporation shall continue its corporate existence for a period of three years from the date of dissolution, for the following purposes:
(2) permitting the survival of any existing claim by or against the dissolved corporation;....

Id. art. 7.12(A)(2). The term “existing claim” means “a claim that existed before dissolution and is not otherwise barred by limitations or a contractual obligation incurred after dissolution.” Id. art. 7.12(F)(3). A dissolved corporation is not liable for a post-dissolution claim. See Hunter, 620 S.W.2d at 553; Landrum v. Thunderbird Speedway, Inc., 97 S.W.3d 756, 758-59 (Tex.App.-Dallas 2003, no pet.). Appellants argue that the State’s claims to enforce orders issued by the Railroad Commission after Anderson Pe-tro forfeited its corporate charter are post-dissolution claims for which the corporation cannot be held liable under article 7.12. Appellants also challenge the district court’s judgment against Anderson individually for all damages and relief awarded to the State for enforcement of the October 2005 Order and the April 2006 Order. Appellants contend that, like the corporation, Anderson cannot be liable for enforcement of the orders because they issued after Anderson Petro was dissolved. Appellants argue that, because there can be no liability against the dissolved corporation, there is likewise no liability to assess against the corporation’s officers and directors individually. The linchpin of appellants’ challenge to both corporate and individual liability is their contention that the State’s claims did not exist pre-dissolution and therefore cannot be pursued against either the corporation or its officers and directors. We disagree.

Under article 7.12, a “claim” is “a right to payment, damages, or property, whether liquidated or unliquidated, accrued or contingent, matured or unma-tured.” Tex. Bus. Corp. Act Ann. art. 7.12(F)(2). The statute broadly defines the term, and includes contingent, unliqui-dated or unmatured claims. A “contingent liability” is one that is not now fixed, but which will become so upon the occurrence of some future event. See United States v. Leal, 30 F.3d 577, 586 (5th Cir.1994) (quoting Black’s Law Dictionary 321); see also Warren Co., Inc. v. Commissioner of Internal Revenue, 135 F.2d 679, 684 (5th Cir.1943) (contingent liability is potential liability that may become absolute liability upon happening of future event). Contingent liabilities include obligations that are reasonably anticipated but that have not yet actually been incurred. Arch Petroleum, Inc. v. Sharp, 958 S.W.2d 475, 478 (Tex.App.-Austin 1997, no pet.). Once the actions that may give rise to future liability have occurred, the contingent claim comes into existence. Article 7.12 requires only that the actions giving rise to the liability occur before dissolution. If they do, the statute plainly provides for the survival of a party’s right to assert claims arising out of or resulting from those actions even after the corporation’s dissolution.

The question before us, then, is whether the actions that ultimately gave rise to the claims asserted by the State in this suit occurred prior to Anderson Petro’s dissolution on February 11, 2005. If they did, the State’s claims existed as contingent liabilities of Anderson Petro, and as unma-tured and unliquidated claims against it, prior to its dissolution.

October 2005 Order

Texas law requires that operators plug their inactive wells, or otherwise place them in compliance with Railroad Commission rules. Tex. Nat. Res.Code Ann. § 89.011 (West Supp. 2009). The Commission’s rules require that operators commence plugging within one year after drilling operations cease on dry or inactive wells. 16 Tex. Admin. Code § 3.14. The October 2005 Order assessed a $2,000.00 penalty against Anderson Petro for plugging violations at the Beech Creek Well, and further ordered that “[n]oncompliance with this order is subject to enforcement by the Attorney General and subject to civil penalties of up to $10,000 per day per violation.” The October 2005 Order includes findings of fact that the Beech Creek Well (1) ceased production on or before March 31, 2002, (2) was not properly plugged in compliance with the Commission’s rules, and (3) was out of compliance from April 1, 2003 until October 18, 2004. All of the events giving rise to the assessment of penalties occurred prior to the forfeiture of Anderson Petro’s corporate charter. From the commencement of the period of non-compliance, Anderson Petro had a contingent liability to the Commission for administrative and civil penalties. See Tex. Nat. Res.Code Ann. § 81.0531(a) (providing for assessment of penalties for violation of provisions of rules pertaining to safety or prevention or control of pollution). The State also had an unmatured claim against Anderson Petro for civil penalties in the event Anderson Petro failed to pay the assessed administrative penalties. See id. § 81.0534 (civil penalties owed under sections 81.0531 through 81.0533 of code may be recovered in civil action brought by attorney general at request of commission). In its petition, the State sought to recover the administrative penalties assessed in the October 2005 Order along with additional penalties for Anderson Petro’s failure to comply with the order. These claims existed, albeit in a contingent and unmatured form, prior to Anderson Petro’s dissolution and, consequently, Anderson Petro’s corporate existence continued for three years for purposes of permitting the survival of these claims. See Tex. Bus. Corp. Act Ann. art 7.12(A)(2), (C).

April 2006 Order

Applying the same analytical framework, we next consider whether Anderson Petro’s corporate existence continued for three years for the purpose of permitting survival of the State’s claims related to the April 2006 Order. The Commission ordered Anderson Petro to plug the Devils Pocket West Well and reimburse $2,936.25 in State funds expended to clean up the well, and assessed a penalty of $5,000 for plugging violations. The April 2006 Order includes findings that the Devils Pocket .West Well ceased production on or before January 2002 and was not properly plugged in compliance with the Commission’s rules. In its petition, the State sought to recover the penalties assessed by the Commission and additional penalties for failure to comply with the order. The State also sought reimbursement for the $2,396.25 in State funds used to clean up the well in July 2005, along with an additional $1,146.25 in State funds spent to clean up the well in November 2005 and November 2006. Finally, the State sought an injunction requiring Anderson Petro to plug or otherwise bring the Devils Pocket West Well into compliance. All of these claims arose out of Anderson Petro’s failure to plug the Devils Pocket Well by January 2003, twelve months after the well ceased production, as required by Commission rules. See 16 Tex. Admin. Code § 3.14. The event giving rise to the assessments contained in the April 2006 Order and the claims asserted by the State in its petition occurred prior to the date Anderson Petro forfeited its corporate charter. Consequently, those claims existed as either a contingent liability of, or an unmatured claim against, Anderson Petro prior to its dissolution.

Appellants cite to this Court’s holdings in Jonnet v. State, 877 S.W.2d 520, 521-23 (Tex.App.-Austin 1994, writ denied) and Serna v. State, 877 S.W.2d 516, 517-18 (Tex.App.-Austin 1994, writ denied), in an attempt to bolster their argument that the State’s claims did not exist pre-dissolution. This Court held in Jonnet that, for purposes of tax code section 171.255, the “debt of the corporation” was not “created or incurred” until the Commission issued its order directing the corporation to pay a penalty. 877 S.W.2d at 523. We held in Serna that the corporate debt was “created” when the Commission assessed its fíne. 877 S.W.2d at 519. Anderson cites Jonnet and Serna for the proposition that “[a]n administrative penalty under the Natural Resources Code or the obligation to pay the penalty does not exist until assessed by the Railroad Commission in a final order.” Anderson’s reliance on these cases is misplaced — in Jonnet and Serna, this Court was addressing the question of when a “debt of the corporation” is “created or incurred” under section 171.255 of the tax code for the purpose of imposing individual liability on officers and directors of a corporation that has forfeited its corporate privileges. This is a different question from what constitutes an “existing claim” under article 7.12 of the business corporation act, for which even a dissolved corporation may be held liable. We conclude that the claims asserted by the State in this suit were “existing claims” under article 7.12 of the business corporation act prior to February 11, 2005, the date Anderson Petro forfeited its corporate charter and became a “dissolved corporation.”

In two sentences in their brief, appellants contend that (1) because claims against an officer may only be brought in district court, a claim for a “debt” against the officer does not exist until brought in court, and (2) a suit seeking to require a corporate officer to plug a well does not constitute a claim for a liquidated money obligation. Appellants do not further elaborate, explain or adequately brief these issues. See Tex.R.App. P. 38.1(h) (brief must contain clear and concise argument for contentions made, with appropriate citations to authorities and to record). These two statements, unsupported by argument or authority, present nothing for this Court to review. See General Servs. Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591, 598 n. 1 (Tex.2001).

Timeliness of State’s suit

An existing claim must be brought against a dissolved corporation before the expiration of the three-year period following the date of dissolution. See Tex. Bus. Corp. Act Ann. art. 7.12(C). Here, the State filed its petition asserting claims to recover for monetary and injunctive relief arising out of Anderson Petro’s failure to plug the Beech Creek West Well and the Devils Pocket West Well on November 2, 2006. This suit was filed within three years of February 11, 2005, the date Anderson Petro forfeited its corporate charter and became a “dissolved corporation” for purposes of article 7.12. See id. art. 7.12(F)(1)(e). Consequently, Anderson Petro continues to survive for purposes of the State’s suit “until all judgments, orders, and decrees therein have been fully executed.... ” See id. art. 7.12(C). We overrule appellants’ issue.

CONCLUSION

Having overruled appellants’ issue, we affirm the district court’s judgment.

      . Appellants do not challenge this portion of the district court’s judgment.

      . On January 1, 2010, the Texas Business Corporation Act expired and was replaced by the Texas Business Organizations Code. See Tex. Bus. Coip. Act Ann. art 11.02(B) (West Supp. 2009) ("This Act expires January 1, 2010.”). With the exception of filing fee requirements, the provisions of the business organizations code did not apply until January I, 2010 to entities formed before January 1, 2006, such as Anderson Petro, unless the entity elected early adoption. See Tex. Bus. Org. Code Ann. §§ 402.001-.005 (West Pamph. 2007). There is nothing in the record to indicate that Anderson Petro elected early adoption. At the time of trial, therefore, the operative statute was the business corporation act. In any event, the business organizations code made no substantive changes to business corporation act article 7.12. See id. §§ 11.001, 11.051, 11.055, 11.152, 11.254, II.311, 11.351, 11.356-359.

      . Appellants did not bring an appellate issue complaining of the district court’s imposition of individual liability on Anderson under section 171.255 of the tax code. See Tex. Tax Code Ann. § 171.255(a) (West 2008) (director or officer of corporation is liable for each debt of corporation created or incurred in state after date on which report, tax, or penalty is due and before corporate privileges are revived). Appellants’ arguments, both in the district court and on appeal, focus on their contention that the State's claims did not exist before Anderson Petro became a "dissolved corporation" under the business corporation act, and therefore that neither Anderson Petro nor its officers could be held liable for post-dissolution claims.

      . At common law, dissolution terminated the legal existence of a corporation, and it could neither sue nor be sued; all legal proceedings to which it was a party abated. See Hunter v. Fort Worth Capital Corp., 620 S.W.2d 547, 549-50 (Tex.1981); Suarez v. Sherman Gin Co., 697 S.W.2d 17, 19 (Tex.App.-Dallas 1985, writ ref’d n.r.e.).

      . Our reading of this statute comports with the directive that "[sjtatutes prolonging the existence of a dissolved corporation are remedial and should be given liberal construction.” See Alamo Fence Co. v. United States, 240 F.2d 179, 181 (5th Cir.1957) (quoting Eastman, Gardiner & Co. v. Warren, 109 F.2d 193 (5th Cir.1940)). As the Fifth Circuit noted, "this is especially true in Texas where the State constitution provides that its corporation laws 'shall ... provide fully for the adequate protection of the public_' " Id. It is also consistent with this Court’s holding in Strata v. State, in which we considered a similar provision in the bankruptcy code:
      Under the bankruptcy code, whether a claim for payment of the type at issue in this case is discharged depends on when that claim arose. The bankruptcy code defines a "claim” as a:
      (A) right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured;

        As the statute explicitly states, whether a claim is unliquidated, contingent, unma-tured, or unsecured is immaterial. The bankruptcy code requires only that the elements giving rise to liability occurred before the bankruptcy petition was filed.
      264 S.W.3d 832, 837-38 (Tex.App.-Austin 2008, no pet.) (citations omitted).


source: Caselaw Access Project

author: BOB McCOY, Justice.

license: Public Domain

text:
    James POAG, Appellant and Appellee, v. Kathy McCormick FLORIES, Appellee and Appellant.
    No. 2-08-170-CV.
    Court of Appeals of Texas, Fort Worth.
    July 1, 2010.

      Marcus C. Marsden, Fort Worth, TX, for Appellant.
    Albon O. Head, Amanda L. Bush, Jackson Walker, L.L.P., Fort Worth, TX, for Appellee.
    PANEL: WALKER, McCOY, and MEIER, JJ.
   OPINION

BOB McCOY, Justice.

I. Introduction

Appellant James Poag appeals the trial court’s final judgment granting summary judgment in favor of Appellee Kathy McCormick Flories and dismissing his claims with prejudice. Flories cross-appeals, arguing that the trial court abused its discretion by failing to award attorneys’ fees to her. We affirm.

II. Factual and Procedural History

In February 1984, Flories’s husband B.R. deeded 214.9 acres of land to Ranch-oaks Joint Venture by general warranty deed. That land subsequently became Ranchoaks Addition, a development of individual residential lots that were marketed under a common scheme for mobile homes. As of January 1987, B.R. owned all of Ranchoaks Addition’s mineral estate.

In May 1987, B.R. and several of his business associates, in an unrelated matter, signed a promissory note payable to the Texas American Bank/Fort Worth, N.A., a portion of which B.R. was personally liable. The note was subsequently assigned to Mike Ferguson, trustee and president of Anson Financial (Anson).

In June and October 1987, B.R. conveyed three lots in the Ranchoaks Addition to Poag by general warranty deed. All three deeds provided that they conveyed the “surface estate only.”

In November 1991, B.R. died, and his will was admitted for probate. Pursuant to his will, the probate court appointed Flories as dependent administratrix and authorized her to operate B.R.’s business.

After B.R.’s death, Ferguson filed suit on behalf of Anson against B.R.’s estate and eventually obtained a judgment against the estate. Anson’s claim was subsequently settled, and as consideration for the settlement, Anson agreed to purchase from B.R.’s estate several parcels of land in the Ranchoaks Addition. The terms of the settlement agreement were set forth in a document, which did not contain the phrase “surface estate only.”

After Anson’s claim against B.R.’s estate was settled, Flories filed an application for sale of real property and real assets with the probate court to fulfill the terms of the settlement agreement. The probate court granted the application and ordered that the agreed upon parcels be sold at a private sale for cash. Neither the application nor the probate court’s order included the phrase “surface estate only.” The property sold, and on May 15, 1996, Flories filed a report of sale of real property with the probate court, which described the property sold as “surface estate only.” The probate court approved and confirmed the sale of the “surface estate only” property and entered a written decree confirming the sale, which was later attached to and made a part of the administrator’s deed. The administrator’s deed, dated June 10, 1996, conveyed the “surface estate only” in four parcels of land to Anson and was recorded in the Tarrant County deed records on June 11,1996.

On June 21, 1996, Anson conveyed two of the four parcels of land to Poag by “Warranty Deed with Vendor’s Lien.” The deed provided that the conveyance was subject to “any and all ... reservations ... affecting the herein described property.” To secure part of the $110,000 purchase price, Poag signed and delivered a deed of trust to Anson in which Poag expressly provided that “all presently recorded ... reservations];,] ... oil and gas leases, [and] mineral severance[s]” were exceptions to the conveyance and warranty-

In August 1996, the probate court signed an order approving the first amended account for final settlement and declaring that all property remaining on hand after payment of the various settlements be delivered to Flories, “the person entitled to receive such property.” Subsequently, the probate court closed B.R.’s estate and discharged Flories as adminis-tratrix.

In June 2005, Flories executed a mineral lease agreement, granting Antero Resources, LLP the right to develop the mineral estate on the two tracts of land conveyed to Poag by Anson in June 1996.

In January 2006, Poag filed suit against Flories, petitioning the court “pursuant to the Declaratory Judgments Act, Chapter 37 of the Texas Civil Practice and Remedies Code, for a declaration of the invalidity of a certain document and/or claim made by ... Flories, in order to acquire title to property in which [Poag] has an interest....” Specifically, Poag prayed for a declaration that “the oil and gas lease executed by [Flories] is invalid and unenforceable, ordering it removed from the title of the properties made the subject of this litigation, and quieting title in [Poag].” Poag further alleged slander of title and reformation claims in his petition. Flo-ries’s answer (1) generally denied Poag’s claims and allegations, (2) asserted various affirmative defenses, and (3) requested an award of attorneys’ fees under chapters 37 and 38 of the Texas Civil Practice and Remedies Code.

Flories filed a motion for summary judgment, arguing that there was no evidence to support Poag’s declaratory judgment action or his slander of title and reformation claims. Specifically, Flories asserted that the slander of title claim failed because there was no evidence that: 1) Poag possessed the mineral estate he alleges was slandered, 2) Flories published a disparaging statement about title to the property, 3) Flories published any statement with legal malice, or 4) Flories lost a specific sale of the claimed estate, entitling Poag to special damages. Flories further asserted that Poag’s reformation claim failed because there was no evidence of any preexisting oral or written agreement between her and Poag-therefore, no privity. In the alternative, Flories argued that Poag’s claims were barred by the applicable statutes of limitations or that the evidence negated at least one essential element of each of Poag’s reformation and slander of title claims.

Poag filed a response and a first amended original petition, adding an additional claim for suit to quiet title. Flories thereafter filed a supplemental motion for summary judgment, claiming that there was no evidence that the administrator’s deed was invalid or unenforceable, which is the third essential element of Poag’s suit to quiet title claim. Alternatively, Flories argued that Poag’s claim was barred by the applicable statute of limitations or that the evidence negated at least one essential element of Poag’s suit to quiet title claim.

In November 2007, at an evidentiary hearing on the issue of attorneys’ fees, the trial court found that Flories had reasonable and necessary attorneys’ fees in the amount of $115,084.07. The trial court also took judicial notice of Flories’s appellate attorneys’ fees in the amount of $30,000 in the event of an appeal to this court, $10,000 in the event of a petition for review to the Texas Supreme Court, and $25,000 in the event the Texas Supreme Court granted review. The trial court found, however, that Flories’s pleadings did not support an award of attorneys’ fees, but “[h]ad there been a counterclaim for declaratory judgment or if it [had been] appropriate to award attorney[s’] fees,” then the court would have awarded them. Subsequently, the trial court entered a final judgment granting Flories’s motions for summary judgment, dismissing all of Poag’s claims with prejudice, and denying Flories her attorneys’ fees. The trial court did not specify the grounds upon which it granted Flories’s motions.

Poag filed a motion for new trial and a request for leave to file discovery evidence. The day before the hearing on Poag’s motion for new trial, Poag filed an amended motion for new trial and a request for leave to reopen and file additional evidence. Flories subsequently filed an objection to Poag’s amended motion and a written response. After a hearing, the trial court denied Poag’s amended motion. Poag thereafter appealed the trial court’s final judgment as it related to the summary judgment in favor of Flories, and Flories cross-appealed based on the trial court’s denial of her attorneys’ fees.

In August 2008, Poag filed a notice of bankruptcy, notifying this court that he had filed for bankruptcy in federal court. This court subsequently stayed the appeal pursuant to appellate procedure rule 8.2. See Tex.R.App. P. 8.2. In February 2009, the bankruptcy court granted Flories relief from the bankruptcy stay, allowing her to pursue her appeal relating to attorneys’ fees. Thereafter, both Flories and Poag filed motions to reinstate their appeals, which this court reinstated on June 11, 2009.

III. Poag’s Appeal

In two issues, Poag asserts that the trial court erred by granting Flories’s motion and supplemental motion for summary judgment because (1) his claims—suit to quiet title, slander of title, and reformation—are not barred by the applicable statutes of limitations and (2) there is summary judgment evidence raising a genuine issue of material fact as to each element of his claims. In his final issue, Poag argues that the trial court erred by denying his “First Amended Motion for New Trial and Request for Leave to Reopen and File Additional Evidence” because the additional evidence was decisive, would not have caused undue delay, and was necessary to prevent an injustice. We first address whether the trial court erred by granting Flories’s motions for summary judgment.

A. Summary Judgment

Although when both no-evidence and traditional summary judgment motions are filed we usually address the no-evidence motion first, see Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex.2004), here we will review the propriety of granting the traditional summary judgment first because it is dispositive. See Tex.R.App. P. 47.1; Reynolds v. Murphy, 188 S.W.3d 252, 258 (Tex.App.-Fort Worth 2006, pet. denied) (op. on reh’g), cert. denied, 549 U.S. 1281, 127 S.Ct. 1839, 167 L.Ed.2d 323 (2007).

1. Standard of Review

We review a summary judgment de novo. Mann Frankfort Stein & Lipp Ad-visors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex.2009). A movant is entitled to summary judgment on an affirmative defense if the movant conclusively proves all the elements of the affirmative defense. Chau v. Riddle, 254 S.W.3d 453, 455 (Tex.2008); see Tex.R. Civ. P. 166a(b), (c). Thus, to be entitled to summary judgment based on the defense of limitations, the movant must conclusively establish the date the cause of action accrued, negate the applicability of the discovery rule if applicable in the case, and prove as a matter of law that the non-movant’s claim is time-barred. See KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex.1999); Lerner v. First Commerce Bank, 302 S.W.3d 16, 18 (Tex.App.-Houston [14th Dist.] 2009, no pet.).

2. Applicable Statutes of Limitations

a. Suit to Quiet Title

An equitable suit to quiet title is not subject to limitations if a deed is void. Ford v. Exxon Mobil Chem. Co., 235 S.W.3d 615, 618 (Tex.2007). If a deed is voidable, however, then the four-year statute of limitations controls. See id. (noting that when a deed is merely voidable, equity will not intervene because claimant has an adequate remedy at law); see also Slaughter v. Qualls, 139 Tex. 340, 345, 162 S.W.2d 671, 674 (1942) (stating that four-year statute of limitations applies to deeds that are voidable).

The question of whether a deed is void or voidable depends on its effect upon the title at the time it was executed and delivered. Slaughter, 162 S.W.2d at 674. A void deed is without vitality or legal effect. Id. at 676. A voidable deed on the other hand “operates to accomplish the thing sought to be accomplished, until the fatal vice in the transaction has been judicially ascertained and declared.” Id.

Here, Poag alleged that the language in the administrator’s deed, “surface estate only,” was “not the intent of the document” and “was a fraud on the creditors of the Estate.” He further alleged that the failure of the administrator’s deed to evidence the true intent of the parties was due to a mutual mistake or a “unilateral mistake by one party together with the fraud or other inequitable conduct by [Flories].” Because deeds obtained by fraud or mutual mistake are voidable rather than void, and because unilateral mistake does not apply to the facts of this case, the administrator’s deed at issue here is voidable. Therefore, the four-year statute of limitations applies. See Nobles v. Marcus, 533 S.W.2d 923, 926 (Tex.1976) (holding that deeds obtained by fraud are voidable and remain effective until set aside); see also Williams v. Glash, 789 S.W.2d 261, 264 (Tex.1990) (stating that when parties to an agreement have contracted under a mutual misconception of material fact, the agreement is voidable under the doctrine of mutual mistake); Zapatero v. Canales, 730 S.W.2d 111, 114 (Tex.App.-San Antonio 1987, writ refd n.r.e.) (declaring that a party cannot claim unilateral mistake concerning outstanding mineral interest because interest was fully described in deed records).

b. Suit for Reformation and Slander of Title

The four-year statute of limitations also governs a suit for reformation. See Brown v. Havard, 593 S.W.2d 939, 947 (Tex.1980) (applying four-year statute of limitations to reformation suit). The two-year statute of limitations governs a claim for slander of title. Tex. Civ. Prac. & RermCode Ann. § 16.003 (Vernon Supp. 2009); see Kidd v. Hoggett, 331 S.W.2d 515, 520 (Tex.Civ.App.-San Antonio 1959, writ ref'd n.r.e.) (applying two-year statute of limitations to claim for slander of title).

3. Discussion

In general, a cause of action accrues and limitations begin running when a wrongful act causes a legal injury. See S.V. v. R.V., 933 S.W.2d 1, 4 (Tex.1996). Here, Poag claims that the wrongful act occurred in June 1996 when the administrator’s deed, which conveyed four parcels of land from Flories to Anson, was recorded in the Tarrant County deed records as a conveyance of “surface estate only.” Thus, Pong’s slander of title, reformation, and suit to quiet title causes of actions filed in 2006 are clearly barred by the applicable two- and four-year statutes of limitations. Poag, however, argues that the discovery rule applies to his claims. We disagree.

The discovery rule defers the accrual of a cause of action until the plaintiff knows, or by exercising reasonable diligence, should know of the facts giving rise to the claim. Barker v. Eckman, 213 S.W.3d 306, 311-12 (Tex.2006). For the discovery rule to apply, the injury must be inherently undiscoverable and objectively verifiable. Id. at 312. An injury is inherently undiscoverable if it is the type of injury that is not generally discoverable by the exercise of reasonable diligence. HECI Exploration Co. v. Neel, 982 S.W.2d 881, 886 (Tex.1998).

Here, the conveyance Poag attacks occurred in 1996 between Flories and Anson. The conveyancing document—the administrator’s deed—was recorded in the Tar-rant County deed records on June 11, 1996, and conveyed the “surface estate only” in four parcels of land from Flories to Anson. On June 21, 1996, Anson conveyed two of those four parcels of land to Poag. Poag took the conveyance subject to “any and all ... reservations ... affecting the herein described property.” Poag also signed and delivered a deed of trust to Anson in which he expressly provided that “all presently recorded ... reservations!;,] ... oil and gas leases, [and] mineral severance[s]” were exceptions to the conveyance and warranty.

The recording of the administrator’s deed on June 11, 1996, charged Poag with notice that Anson only possessed the surface estate, thereby commencing Pong’s two- and four-year period of limitations to file an action to set the administrator’s deed aside. See Mooney v. Harlin, 622 S.W.2d 83, 85 (Tex.1981) (stating that a person is charged with constructive knowledge of the actual knowledge that one could gain by an examination of the public records); see also Hoerster v. Wilke, 138 Tex. 268, 265-67, 158 S.W.2d 288, 289-90 (1942) (holding that suit to set aside fraudulent conveyance accrues when the fraud is or could be discovered by the exercise of reasonable diligence).

Moreover, although Poag presents some evidence of fraud or mutual mistake in the conveyance between Flories and Anson, at most this would toll limitations as to Anson, not as to a third party. See, e.g., Simmons v. Simmons, No. 05-00-00460-CV, 2001 WL 301472, at *2 (Tex.App.-Dallas Mar. 29, 2001, pet. denied) (not designated for publication) (concluding appellant, as a third party, was not entitled to the tolling of limitations on his cause of action because evidence did not support tolling for a third party). Poag has presented no evidence of any circumstances that would raise a fact issue concerning the tolling of the statute of limitations as to him (as opposed to Anson). Id. Thus, Pong’s limitations period on his claims expired in June 1998 and June 2000. Pong’s suit filed in 2006 is barred by the applicable statutes of limitations. Consequently, the trial court did not err by granting Flories’s motions for summary judgment on the affirmative defense of limitations. We therefore overrule Pong’s first issue. Having determined that summary judgment was proper on this ground, we need not reach Pong’s second issue, complaining that the trial court erred by granting Flories’s motions for summary judgment on the basis of no evidence. See Tex.R.App. P. 47.1.

B. Request for Leave to Reopen

In Pong’s third issue, he argues that the trial court erred by denying his request to reopen the case and file additional evidence. The evidence that Poag sought to offer was: (1) excerpts from his deposition testimony, (2) an affidavit in which he discusses both the contract he entered into with Anson and the Title Policy he received on the two tracts of land at issue, and (3) an actual copy of the Title Policy.

We review the denial of a motion to reopen the evidence under an abuse of discretion standard. Hernandez v. Lautensack, 201 S.W.3d 771, 779 (Tex.App.-Fort Worth 2006, pet. denied). Texas Rule of Civil Procedure 270 provides that a trial court may permit additional evidence to be offered at any time when it clearly appears necessary to the administration of justice. Tex.R. Civ. P. 270. Rule 270 allows, but does not require, a trial court to permit additional evidence. Lopez v. Lopez, 55 S.W.3d 194, 201 (Tex.App.-Corpus Christi 2001, no pet.). In determining whether to permit additional evidence, a court should consider whether (1) the moving party showed due diligence in obtaining the evidence; (2) the proffered evidence is decisive; (3) reception of such evidence will cause undue delay; and (4) granting the motion will cause injustice. Hernandez, 201 S.W.3d at 779. The decision to reopen is within the trial court’s sound discretion, id. “[A] trial court does not abuse its discretion by refusing to reopen a case after evidence is closed if the party seeking to reopen has not shown diligence in attempting to produce the evidence in a timely fashion.” Lopez, 55 S.W.3d at 201 (citing Estrello v. Elboar, 965 S.W.2d 754, 759 (Tex.App.-Fort Worth 1998, no pet.)); see Hernandez, 201 S.W.3d at 779.

Here, Poag does not address the question of diligence in his brief. After an independent review, we can find nothing in the record showing that Poag was diligent in attempting to produce the additional evidence in a timely fashion. On the contrary, the record shows that Poag’s deposition testimony was taken more than a year before the trial court entered its final judgment. There is also evidence that Poag provided Flories with a copy of the Title Policy eight months prior to the entry of final judgment. Finally, Poag’s affidavit is not based on new testimony or newly discovered evidence. The trial court could have reasonably concluded, on this record, that Poag’s desire to offer additional evidence was related to the trial court’s ruling in its final judgment. Under these circumstances, “the interests of justice do not warrant a second bite at the apple.” Estrello, 965 S.W.2d at 759; see Hernandez, 201 S.W.3d at 779 (concluding appellant failed to show he was diligent in attempting to produce evidence when he had opportunity to put on evidence before trial court closed evidentiary phase of trial). Therefore, the trial court did not abuse its discretion by denying Poag’s request to reopen and file additional evidence. Accordingly, we overrule Poag’s third issue.

IV. Flories’s Cross-Appeal

In her sole issue on cross-appeal, Flories argues that the trial court abused its discretion by refusing to award her “her attorneys’ fees based upon its mistaken belief that Flories’s pleadings do not support an award of attorneys’ fees even though it found that her attorneys’ fees were necessary, reasonable, and just.” In support of her argument, Flories points out that “Poag invoked the Uniform Declaratory Judgments Act (the UDJA) in his Original and First Amended Petitions and sought attorneys’ fees under the UDJA, section 37.009 of the Texas Civil Practice and Remedies Code.”

In a proceeding under the UDJA, a court may award “reasonable and necessary attorney[s’] fees as are equitable and just.” Tex. Civ. Prac. & Rem.Code Ann. § 37.009 (Vernon 2008). A trial court’s award of attorneys’ fees under the UDJA is reviewed for an abuse of discretion. See Bocquet v. Herring, 972 S.W.2d 19, 20-21 (Tex.1998).

A declaration under the UDJA is appropriate “to settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations.” Tex. Civ. Prac. & Rem.Code Ann. § 37.002(b) (Vernon 2008). However, a party may not recover attorneys’ fees under the UDJA when the only issues, aside from attorneys’ fees, concern clearing of title or trespass to try title. AMC Mortg. Servs., Inc. v. Watts, 260 S.W.3d 582, 588 (Tex.App.-Dallas 2008, no pet.); Sw. Guar. Trust Co. v. Hardy Road 13.4 Joint Venture, 981 S.W.2d 951, 956 (Tex.App.-Houston [1st Dist.] 1998, pet. denied). “Any suit that involves a dispute over the title to land is, in effect, an action in trespass to try title, whatever its form.” Hawk v. E.K. Arledge, Inc., 107 S.W.3d 79, 84 (Tex.App.-Eastland 2003, pet. denied). Because a claim for declaratory relief is “merely incidental to the title issues,” the UDJA will not supplant a suit to quiet title by allowing attorneys’ fees under such circumstances. Id. (quoting John G. & Marie Stella Kenedy Mem’l Found. v. Dewhurst, 90 S.W.3d 268, 289 (Tex.2002)); Sw. Guar. Trust, 981 S.W.2d at 957.

Here, Poag brought a declaratory action seeking to “quiet title and/or acquire title to property.” In his prayer, Poag sought a judgment “[d]eelaring that the oil and gas lease executed by Defendant [Flories] is invalid and unenforceable, ordering it removed from the title of the properties made the subject of this litigation, and quieting title in [Poag]”.

In substance, Pong’s claim for declaratory relief is a claim to quiet title. Although Poag couches his declaratory action in terms of a request for a declaration, everything he requests of the court is necessary to, and a component of, the ultimate relief he seeks, which is to clear the title on the two tracts of land he purchased from Anson. When the essence of the suit is in trespass to try title, attorneys’ fees are not recoverable. Hawk, 107 S.W.3d at 84; see Sw. Guar., 981 S.W.2d at 957. Thus, as a matter of law, Flories was not entitled to an award of attorneys’ fees under the UDJA. See Sani v. Powell, 153 S.W.3d 736, 746 (Tex.App.-Dallas 2005, pet. denied) (concluding cross-appellant was not entitled to an award of attorney’s fees under the UDJA when cross-appellant’s claim for declaratory relief was in substance a claim to quiet title). Accordingly, the trial court did not abuse its discretion by refusing to award Flories her attorneys’ fees. We overrule Flories’s sole issue on cross-appeal.

V. Conclusion

Having overruled Pong’s dispositive issues and having overruled Flories’s sole cross-issue, we affirm the trial court’s judgment.

      . We note that even Anson would be hard pressed to argue fraud or mutual mistake ten years after the fact when the recorded deed expressly stated "surface estate only." See Veterans Land Bd. v. Lesley, 281 S.W.3d 602, 624-25 (Tex.App.-Eastland 2009, pet. filed) (concluding alleged mutual mistakes of fact in grantors' deeds to grantee were mistakes so plainly evident that limitations on grantors’ claim to reform such deeds was not tolled under the discovery rule, as the deeds were not ambiguous and grantors should have known of the alleged mistakes when the deeds were executed).


author: MACKEY K. HANCOCK, Justice.

text:
    Michael RUNNINGWOLF, Appellant, v. The STATE of Texas, Appellee.
    No. 07-09-00182-CR.
    Court of Appeals of Texas, Amarillo, Panel E.
    July 12, 2010.

      David M. Crook, Crook & Jordan, Lubbock, TX, for Appellant.
    Lex S. Herrington, Floyd County Attorney, Floydada, TX, for Appellee.
    Before QUINN, C.J., and HANCOCK, J., and BOYD, S.J.

      . John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.

   OPINION

MACKEY K. HANCOCK, Justice.

A Floyd County jury found appellant, Michael Runningwolf, guilty of simulating legal process and assessed punishment at confinement for one year in the Floyd County Jail and a $4,000.00 fine. We affirm.

Factual and Procedural History

A state court awarded custody of three children to Helen Coleman, paternal grandmother of one of the children and great aunt of another, T.G. T.G.’s paternal grandmother, Venita Glenn, and Glenn’s sisters and mother were associated with a church led by Runningwolf and were displeased that Coleman had custody of T.G.

In May 2008, Glenn’s sister, Jerlene Ledbetter, “served” a document on Coleman in front of Coleman’s house. Coleman dropped the document and left it on the sidewalk. Minutes later, appellant, along with some of Glenn’s relatives, drove up to Coleman’s house. Appellant got out of the car and placed the document in Coleman’s mailbox. Coleman got the document and called the police. The document delivered to her was styled “Non-Statutory Abatement” (the “Abatement”) and referred to the custody of T.G. in terms of “ecclesiastical law,” “contempt of court,” and “default judgment.”

Appellant was charged with simulating legal process. The jury found him guilty of this Class A misdemeanor and assessed punishment at one year in the Floyd County Jail and a fíne of $4,000.00. He timely appealed his conviction, bringing six issues before this Court: (1) the acceptance of appellant’s “plea” was structural error and rendered the subsequent trial a nullity; (2) the evidence was legally insufficient to support his conviction; (3) the evidence was factually insufficient to support his conviction; (4) the trial court erred by overruling his objection that the statute is facially overbroad and, therefore, a violation of his rights to freedom of speech and free exercise of his religion; (5) the trial court erred by overruling his objection that the statute is facially unconstitutionally vague and, therefore, a violation of his rights to freedom of speech and free exercise of his religion; and (6) the trial court erred by overruling his objection that, as applied, the statute violated his rights to freedom of speech and free exercise of his religion.

Plea to Charges

After the information was read and the trial court asked appellant how he pleaded to the charges, appellant responded “[b]ar to prosecution.” The jury charge, to which no objection was made, stated that appellant pleaded not guilty. After the jury was charged, it sent out a note asking what appellant originally said instead of not guilty. To this note, the trial court responded “[b]ar to prosecution,” and neither side objected.

Appellant’s contention is premised on his position that the trial court accepted his irregular plea. We do not read the record in such a manner. As the jury charge shows, the trial court entered a plea of not guilty on appellant’s behalf. And it did so properly.

A plea must be entered in every criminal case, and if no plea is entered, the trial is a nullity. Lumsden v. State, 384 S.W.2d 143, 144 (Tex.Crim.App.1964). “[I]f the defendant answers that he is not guilty, such plea shall be entered upon the minutes of the Court; if he refuses to answer, the plea of not guilty shall in like manner be entered.” Tex.Code Crim. Proc. Ann. art. 26.12 (Vernon 2009). Article 27.16(a) imposes a duty on the trial court to enter a not guilty plea “in the absence of action by the defendant.” Mendez v. State, 138 S.W.3d 334, 343 (Tex.Crim.App.2004) (citing Tex.Code Crim. Proc. Ann. art. 27.16(a) (Vernon 2006)).

So, the trial court did not err by entering a plea of not guilty on appellant’s behalf; it was duty-bound to do so when appellant insisted on declaring “[b]ar to prosecution” when asked to plead to the charges against him. See Coyle v. State, 775 S.W.2d 843, 846 (Tex.App.-Dallas 1989, no pet.) (holding that the trial court did not err when it entered a not guilty plea pursuant to article 27.16 for the defendant who, when asked to plead to the charges, responded that “she was innocent of violating the contract with the State of Texas, because no contract exists”); Halbert v. State, No. 05-96-01438-CR, 1999 WL 23211, at *2, 1999 Tex.App. LEXIS 384, at ⅜5 (Tex.App.-Dallas Jan. 22, 1999, no pet.) (mem. op., not designated for publication) (observing that the county court entered a not guilty plea for appellant after he refused to plead guilty or not guilty and, instead, stated, “I enter a plea of I don’t understand the nature of the charge”).

The trial court did not accept appellant’s statement of “[b]ar to prosecution” as his plea to the charges against him. Instead, the trial court properly entered a plea of not guilty on appellant’s behalf. We overrule appellant’s first issue.

Sufficiency of the Evidence

Standards of Review

In assessing the legal sufficiency of the evidence, we review all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Laster v. State, 275 S.W.3d 512, 517 (Tex.Crim.App.2009). In conducting a legal sufficiency review, an appellate court may not sit as a thirteenth juror, but rather must uphold the jury’s verdict unless it is irrational or unsupported by more than a mere modicum of evidence. Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App.1988).

In a factual sufficiency review, we review all the evidence in a neutral light to determine whether the evidence supporting the verdict is so weak or is so outweighed by the great weight and preponderance of the evidence that the trier of fact’s verdict is clearly wrong or manifestly unjust. Roberts v. State, 220 S.W.3d 521, 524 (Tex.Crim.App.2007); Watson v. State, 204 S.W.3d 404, 414-15 (Tex.Crim.App.2006). In performing a factual sufficiency review, we must give deference to the trier of fact’s determinations if supported by evidence and may not order a new trial simply because we may disagree with the verdict. See Watson, 204 S.W.3d at 417. We are not justified in ordering a new trial unless there is some objective basis in the record demonstrating that the great weight and preponderance of the evidence contradicts the jury’s verdict. See id. An appellate court’s opinion addressing factual sufficiency must include a discussion of the most important evidence that appellant claims undermines the jury’s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App.2003).

Analysis

A person commits the offense of simulating legal process if he or she “recklessly causes to be delivered to another any document that simulates a summons, complaint, judgment, or other court process with the intent to ... cause another to submit to the putative authority of the document; or take any action or refrain from taking any action in response to the document, in compliance with the document, or on the basis of the document.” Tex. Penal Code Ann. § 32.48(a)(2). When we interpret a statute, we look to the literal text for its meaning, and we ordinarily give effect to that plain meaning, unless the plain language is ambiguous or the application of the statute’s plain language would lead to absurd consequences that the Legislature could not possibly have intended. State v. Webb, 12 S.W.3d 808, 811 (Tex.Crim.App.2000). That said, appellant’s contention that section 32.48’s legislative history indicates its purpose is “to prevent fraudulent action, presumably by such organizations as the so-called ‘Republic of Texas’ ” is not persuasive. Nothing in section 32.48’s text limits its application to those involved in specific organizations. We, then, look to the literal text of section 32.48 and apply its plain meaning to the evidence before us.

Appellant relies on Saldana v. State, 109 S.W.3d 4 (Tex.App.-El Paso 2002, no pet.), to support his challenge to the sufficiency of the evidence, characterizing Saldana as “functionally indistinguishable.” Saldana appears to be the only published case directly addressing the sufficiency of the evidence to support a conviction for simulating legal process. Saldana had been issued a citation for running a stop sign. He was later convicted of three counts of simulating legal process stemming from several documents he sent by certified mad to the officer who had issued that traffic citation. Id. at 5.

After describing the documents, which included references to a “Notice to Appear,” the court concluded that the “Notice to Appear,” as charged in the indictment, was a reference to the traffic citation itself, did not call upon the officer to appear, and, therefore, did not violate section 32.48. Id. at 10. Further, the court did not perceive the documents’ “disjointed legalese” as judicial process “having emanated from a court.” Id. Consequently, it reversed the judgment and rendered a judgment of acquittal. Id.

The Fort Worth court, in Gibbs v. State, No. 02-04-00563-CR, 2006 WL 563603, at *1, 2006 Tex.App. LEXIS 1896, at *3 (Tex. App.-Fort Worth Mar. 9, 2006, pet. refd) (mem. op., not designated for publication), questioned Saldana’s reliance on a North Carolina case interpreting a North Carolina provision and read Saldana as creating an inappropriate distinction, based on North Carolina law, between papers signed by an individual and those purporting to be issued by a court. Id. This distinction, according to Gibbs, is not consistent with section 32.48 which, in pertinent part, provides as follows:

(c) It is not a defense to prosecution under this section that the simulating document:
(1) states that it is not legal process; or
(2) purports to have been issued or authorized by a person or entity who did not have lawful authority to issue or authorize the document.

Id. at *2, 2006 Tex.App. LEXIS 1896, at *3-*4 (quoting Tex. Penal Code Ann. § 32.48(c)).

After having expressed its disapproval of the distinction suggested by Saldana, the Gibbs court went on to evaluate the legal sufficiency of the evidence. Id. at *l-*2, 2006 TexApp. LEXIS 1896, at *4-*7. Because Gibbs believed that his father was being mistreated at the county jail and that the sheriff was responsible for the mistreatment, Gibbs sent the sheriff two documents, an “Administrative Notice of Failure of Adhering to Policy and Customs Regulations” and a “Notice of Default of Administrative Notice of Failure of Adhering to Policy and Custom Regulations and Bill for Damages.” Id. at *4, 2006 Tex. App. LEXIS 1896, at ⅜2.

The evidence in Gibbs showed that the documents (1) were served on the sheriff by registered mail; (2) used terms common in civil process and litigation, such as “declarant” and “respondent”; (3) cited legislative authority and case law; (4) contained a warning that a default or failure to answer “will stand[ ] as a judgment nihil dicit”; (5) required the sheriff to respond under penalty of perjury; (6) demanded payment in the amount of $44,000,000; (7) “purported to be a judgment that could be abstracted to collect the money demanded,” (8) were signed by Appellant, verified, and notarized; and (9) contained four certificates of service which, the court observed, are commonly used in civil litigation to show that the legal document has been served upon the other parties to the litigation. Id. at *l-*2, 2006 Tex.App. LEXIS 1896, at ⅜4-*6. The court also noted that the record included a petition filed by Gibbs in an attempt to enforce the declaration of default set forth in the second document. Id. The court held the evidence was sufficient. Id. at *2, 2006 TexApp. LEXIS 1896, at *6-*7.

Here, appellant’s contentions appear to challenge the sufficiency of the evidence to show that the “Abatement” simulated court process and that he delivered it with the intent to cause Coleman to comply with the document. We disagree.

The “Abatement” consists of ten pages and a wealth of declarations and maxims seemingly designed to undermine the validity of the custody arrangement through state courts and to persuade the named Defendants to recognize the supremacy of the ecclesiastical court sitting in Floydada, Texas, by submitting the custody matter to its authority. On the top of the first page is the large, bold-faced heading “Kingdom of Heaven Ecclesiastic Court.” Also on the front page is the “Official Seal” bearing religious symbols and Latin phrases. The document begins with the pronouncement that, “[b]y the Authority and Power delegated to me solely by the Grace of God, ... I, an ordained Minister of His Gospel, ... issue this Non-Statutory Abatement.” The “Abatement” names Glenn and her relatives, in their respective relation to T.G., as “Demandmants” and names six Defendants. It goes on to “demand[ ] the compliance of a Court Order issued by” the ecclesiastic court and explains that “a Default and Default Judgment was Lawfully granted and issued in the matter.” It outlines eight counts against the Defendants in terms such as “contempt” and “conspiracy.”

Under its “Declaration of Authority and Jurisdiction,” the “Abatement” cites several cases discussing the authority of ecclesiastic courts and outlines the punishment for “conspiracy against rights” under listed circumstances, including kidnapping in bold letters, as a fine or imprisonment “for any term of years or for life, or both, or may be sentenced to death.” The “Abatement” was “issued by and under the Ministerial Power and Authority vested solely in and appertaining to the Ministerial Office of Christ ... and in Lawful execution of His Judgments declared therein by Him against [the named Defendants].”

It repeatedly condemns the Defendants’ noncompliance with and contempt of the ecclesiastic court and describes the Defendants’ “Marks of Deceit” and “actions of outlawry through color of law:”

Your actions, or lack thereof, are not sealed with Authority evidencing lineage through His Body ... traceable to the Tree of Life, and are, therefore, a Trespass against His Dominions and a breach of the Peace of our Lord and Savior Jesus, the Christ, in a vain attempt to circumvent His righteous Judgment upon the world and its darkness.

The “Abatement” characterized the Defendants’ actions as “scandalous and libelous.”

It then directs the Defendants to “lay and prove in His Lawful ecclesiastic court that you bear the Seal and Testimony of the Most High in the Christ.” The ecclesiastic court “so orders the said Defendants to abate their willful and odious actions of non-compliance” and various acts of contempt by showing cause in the ecclesiastic court why the “abatement should not lie.” The “Abatement” warns that “failure to obey this Lawful order of and from His Lawful ecclesiastic court or failure to respond in the time prescribed ... will result in Default and Default Judgment.” It then directs that “[a]ll remittance of this instant Cause should be sent” to the ecclesiastic court in Floydada. Though the “Abatement” was not filed, it concludes with the following announcement:

For the next eight weeks concerning this instant Lawful Cause, to edify in particular all Christians and fellow bondservants sojourning in and with our Lord ... and for public viewing in general, a Public Notice of this Non-Statutory Abatement and Default Rule Day is posted for Public Record at the Floyd County Courthouse, in Floydada, Texas; and in several other places for all the world to Witness, Record, and have Knowledge.

Deriving guidance from the analysis in Gibbs, we hold that the question of whether a document simulates court process may be answered by reference to the following non-exhaustive list of relevant considerations: (1) the use of terms commonly used in litigation and citation to legal authority, (2) the method of delivery, (3) the presence of a demand or directive, (4) the nature of any demand or directive, (5) the document’s internal characterization of its import, and (6) the presence and extent of formalities generally associated with process, such as declarations, cause numbers, seals, or captions. Applying these considerations to the instant case, we see that, much like the documents in Gibbs, the “Abatement” makes extensive use of legal terms, designations, and citation. The “Abatement” includes several references to a default judgment issued by the ecclesiastic court. Although the “Abatement” does not include a cause number, it does make clear that it specifically concerns the legal matter of child custody and attempts to undermine the validity of the secular court’s resolution of that legal matter. It also expressly sought a response from Coleman and the other Defendants by demanding that she, along with the other Defendants, answer in the ecclesiastic court. It outlines pending “counts” against the Defendants and suggests the range of punishment to which they may be subject. The use of an “official seal” and the repeated pronouncements of the supremacy of the ecclesiastic court lend further support to the conclusion that the “Abatement” simulates court process. And the declaration that the “Abatement” would be posted at the courthouse and elsewhere also sounds of the formalities associated with court process.

Because it was another party, rather than appellant, who had earlier handed the “Abatement” to Coleman and said that Coleman had been “served,” we note that the method of appellant's delivery in the instant case does not lend a great deal to the conclusion that the “Abatement” simulated court process. It does not lend itself to a contrary finding either. And, although some of the phrases used within the “Abatement” could be characterized as “disjointed legalese” in that those trained in the law may recognize that the terms are not used properly, we do not think appellant’s misuse of legal terms necessarily establishes that the “Abatement” does not simulate court process. On this point, and to the extent Saldana stands for the proposition that we gauge the precision of usage of legal terms by our own internal standards of usage, we respectfully disagree with our sister court’s position. See 109 S.W.3d at 10. Viewing the evidence in a light most favorable to the jury’s verdict, we conclude that a rational trier of fact could have found that the “Abatement” simulated court process.

Appellant maintains that “to sustain a conviction, any putative ‘court document’ must have at least some threshold plausibility as legal process.” To the extent he is addressing the actual authority of the person or “court” issuing the document, we point out that it is not a defense to prosecution that the simulating document “purports to have been issued or authorized by a person or entity who did not have lawful authority to issue or authorize the document.” Tex. Penal Code Ann. § 32.48(c)(2).

Appellant also directs our attention to Coleman’s lack of concern as evidence the “Abatement” was not a “simulating document.” Instead, he characterizes the “Abatement” as a statement of the church’s disapproval of Coleman’s custody of T.G. The recipient’s understanding of or reaction to the document does not conclusively determine whether the document simulated court process. Cf. Salda na, 109 S.W.3d at 5, 10 (finding the evidence insufficient even when the recipient officer “thought he was being sued” and the IRS sent him an inquiry based on copies it received from appellant). Instead, our review on this element should focus on the document. Based on such review, we conclude that there is also factually sufficient evidence to support the jury’s finding that the “Abatement” simulated court process.

As to requisite intent, the “Abatement” itself provides some evidence of intent in that it demanded compliance with the ecclesiastic court’s default judgment and repeatedly condemned the conduct of the Defendants. It specifically demanded that the Defendants answer before the ecclesiastic court or show cause why the “Abatement” should not lie. Further, Glenn testified that, after discussing the “Abatement” with appellant, she signed it in the belief that the “Abatement” would help her regain custody of T.G. The investigating officer testified that appellant insisted that federal law and ecclesiastic sovereignty authorized him to issue and enforce the papers. Based on such evidence viewed in a light most favorable to the verdict, the jury could have reasonably found that appellant delivered the “Abatement” with the requisite intent.

To support his position, appellant relies on evidence that Coleman knew the people associated with the document held no legal authority, that she was not at all troubled by the document. However, the recipient’s reaction to the papers is not an element of the offense. See Ebert v. State, Nos. 03-06-00752-CR to 03-06-00759-CR, 2007 WL 2141557, at *4, 2007 Tex.App. LEXIS 5952, at *16 (Tex.App.Austin July 27, 2007, no pet.) (mem. op., not designated for publication) (concluding, in response to arguments that the clerk’s office did not immediately file-stamp documents, that “the offenses were complete upon [appellant’s creation, presentation, and delivery of the documents to the clerk’s office without regard to whether or when the clerk filed them”). Nor do we interpret Coleman’s reaction relevant to appellant’s intent. Section 32.48 makes no mention whether the recipient must take the document seriously or attempt to comply with the document’s demands or instructions. Therefore, it is the intent of the actor, not the reaction of the recipient, that we must examine. Having viewed the evidence in a neutral light and considered the evidence on which appellant relies, we conclude that the evidence is also factually sufficient to support the finding that appellant delivered the document with the requisite intent that Coleman submit to the putative authority of the document or that she act or refrain from acting in response to the document’s directives.

Having found that legally and factually sufficient evidence supports the conviction, we overrule appellant’s second and third issues.

Constitutional Issues

Preservation of Error

A defendant must raise an as-applied constitutional challenge in the trial court to preserve it for appellate review. See Curry v. State, 910 S.W.2d 490, 496 (Tex.Crim.App.1995). The Texas Court of Criminal Appeals has clarified that a facial challenge is subject to the same error-preservation requirement: “a defendant may not raise for the first time on appeal a facial challenge to the constitutionality of a statute.” Karenev v. State, 281 S.W.3d 428, 434 (Tex.Crim.App.2009).

In his pro se motion to suppress, filed prior to appointment of counsel, appellant referred to equal protection and due process in the context of recognition of eccle-siastieal courts. He urged that “[under] the Ecclesiastical Abstention Doctrinef,] the First Amendment of the U.S. Constitution forbids [the] Court from inquiring into religious doctrine, BELIEFS, or principles.” He sought to suppress any evidence “connected to the Ecclesiastical Court.” In his pro se motion to dismiss, also filed prior to appointment of counsel, appellant challenged the trial court’s subject matter jurisdiction on

the basis that the Prosecutor’s Official Oppression of the Defendant are [sic] questions and controversies involving Ecclesiastical [sic], involving doctrinef,] creed[,] and worship, exercise of one’s faith[,] and establishing and enforcing needful laws and regulations within the religious association, all legitimate and real, not simulating anything.

He urged that his faith and beliefs are “beyond preview [sic] by this Court.”

Defense counsel announced that he reiterated the pro se motion to dismiss, without elaborating or explaining the basis of such motion, and added

that under the Full Faith and Credit Clause of the United States Constitution, through the 14th Amendment of the United States Constitution, which applies to all of the state[s], this is a matter of Ecclesiastical law, which basically, pertains to federal [law]. And federal preempts state law, Your Honor. And it is our position that this Court does not have jurisdiction to hear this matter here today.

He responded to the State’s position also in terms of preemption and ecclesiastical law.

Defense counsel’s contentions regarding full faith and credit and federal preemption are fairly clear and would likely have preserved error as to those issues. Those issues, however, are not presented to this Court on appeal. We read nothing in appellant’s pro se motions or in the re-urging of the motion to dismiss that goes to overbreadth or vagueness of the statute. Nor do we read anything that would serve as a specific objection regarding freedom of speech. Appellant has, therefore, failed to preserve for our review his challenges to section 32.48 in terms of overbreadth, vagueness, or freedom of speech. Accordingly, we overrule those issues.

Free Exercise of Religion

Government action may burden the free exercise of religion, in violation of the First Amendment, in two quite different ways: by interfering with a believer’s ability to observe the commands or practices of his faith and by encroaching on the ability of a church to manage its internal affairs. Westbrook v. Penley, 281 S.W.3d 389, 395 (Tex.2007). In appellant’s pro se motions, he refers to the “exercise of one’s faith.” More specifically, he raised the issue of ecclesiastical abstention in the trial court and cites to cases concerning this doctrine on appeal. His arguments are directed at the trial court’s jurisdiction over this matter, not the constitutionality of section 32.48. So, it appears the judiciary’s exercise of jurisdiction over the matter, rather than the Legislature’s enactment of section 32.48, is the target of his challenge. We, then, will address that aspect of the constitutional issue he now presents on appeal; we will determine whether the trial court’s exercise of jurisdiction violated appellant’s right to free exercise of religion by encroaching on the ability of his church to manage its internal affairs.

The Constitution forbids the government from interfering with the right of hierarchical religious bodies to establish their own internal rules and regulations and to create tribunals for adjudicating disputes over religious matters. See Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696, 708-09, 724-25, 96 S.Ct. 2372, 49 L.Ed.2d 151 (1976). Based on this constitutionally-mandated abstention, secular courts may not intrude into the church’s governance of “religious” or “ecclesiastical” matters, such as theological controversy, church discipline, ecclesiastical government, or the conformity of members to standards of morality. See In re Godwin, 293 S.W.3d 742, 748 (Tex.App.-San Antonio 2009, orig. proceeding).

The record shows that Coleman, to whom the “Abatement” was delivered, was not a member of appellant’s church. That being so, the church’s position on the custody matter is not a purely ecclesiastical matter over which the trial court should have abstained from exercising its jurisdiction. This is not an internal affairs issue because the record conclusively establishes that the recipient is not a member of the church. The ecclesiastical abstention doctrine does not operate to prevent the trial court from exercising its jurisdiction over this matter. We overrule appellant’s final issue.

Conclusion

Having overruled appellant’s issues, we affirm the judgment of conviction.

      . See Tex. Penal Code Ann. § 32.48 (Vernon 2003).

      . To the extent appellant’s contentions complain of the trial court’s entry of a not guilty plea on his behalf, such error was not preserved. Failure to object to the trial court’s entry of a plea is waived if it is not raised in the trial court. Tex.R.App. P. 33.1(a)(1); Seale v. State, 158 Tex.Crim. 440, 256 S.W.2d 86, 88 (1953) (op. on reh'g); Cantu v. State, 939 S.W.2d 627, 646 (Tex.Crim.App.1997). Appellant failed to object to the trial court's entry of a not guilty plea and has, therefore, waived such complaint.

      . We are not persuaded by appellant's argument that ’’[b]ar to prosecution,” as he used the phrase, is in the nature of a special plea.
        See Tex.Code Crim. Proc. Ann art. 27.10 (Vernon 2006). Article 27.05 defines a defendant's only special plea and does not include a plea like appellant’s declaration. Id. art. 27.05 (Vernon 2006). Further, ”[e]very special plea shall be verified by the affidavit of the defendant.” Id. art. 27.06 (Vernon 2006). Appellant’s declaration is more in the nature of a refusal to plead which invoked the trial court's duty to enter a not guilty plea for appellant. Id. art. 27.16(a).

      . The North Carolina case held that "documents that use language that possibly indicates judicial process do not constitute such process if the documents are not issued in the name of a court; but rather, an individual." See State v. Watts, 38 N.C.App. 561, 248 S.E.2d 354, 354-55 (1978, rev. denied).

      . The Defendants are Floyd County Sheriff's Department, Floydada Police Department, Attorney Lex Herrington, Child Protective Services, Coleman, and Monica Wickware.

      . We recognize that the method of delivery will ordinarily go to the element of intent. See Tex. Penal Code Ann. § 32.48(d) (creating a rebuttable presumption that a person acts with the requisite intent when he or she files the document of record). Nonetheless, the manner in which the document at issue was delivered may also be relevant to whether the document simulates court process. See Gibbs, 2006 WL 563603, at *2, 2006 Tex.App. LEXIS 1896, at *5 (noting evidence that the documents in question were delivered by registered mail and testimony “that registered mail is commonly used in litigation to show that a party has received a sent document”).

      . That is, to the extent Saldana stands for the proposition that usage of legal terms must be so precise that we could perceive it as "having emanated from a court,” we disagree. See 109 S.W.3d at 10. Of course, a document that uses legal terminology in a clearly ridiculous or jocular fashion would not be a "simulating document." However, we do not think that, to simulate process, a document must be so precise in its usage that those trained in the law would perceive it as having emanated from a court. We should be cautious in our review of the document that we do not engage in a full-fledged review of the merits of the document. Part of our daily activity as an appellate court is to thoroughly assess the viability of assertions made, but we should stop short of such an assessment when we examine the substance of a document to determine whether it sufficiently "simulates” court process.

      . Appellant also points out that the "Abatement” was not filed. Section 32.48 does not require that the papers at issue be filed and appears to contemplate situations in which documents are not filed. It creates a rebutta-ble presumption of the requisite intent when, on the other hand, it appears the documents at issue were filed. Tex. Penal Code Ann. § 32.48(d). A plain reading of the provision permits delivery to a person by other means; to read it as requiring filing would render subsection (d) unnecessary.

      . The First Amendment of the United States Constitution, applicable to the states through the Fourteenth Amendment, provides: "Congress shall make no law respecting an establishment of Religion, or prohibiting the free exercise thereof.” U.S. Const, amend. I, XIV.


text:
    GALLAND HENNING NOPAK, INC., Appellant, v. Susan COMBS, Successor to Carole Keeton Strayhorn, Comptroller of Public Accounts of the State of Texas; And Greg Abbott, Attorney General of the State of Texas, Appellees.
    No. 07-09-00250-CV.
    Court of Appeals of Texas, Amarillo, Panel B.
    July 14, 2010.

      William C. Davidson, Chamberlain McHaney, Austin, TX, for Appellant.
    Marc A. Barenblat, Office of the Attorney General, Austin, TX, for Appellees.
    Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
   OPINION

MACKEY K. HANCOCK, Justice.

Appellant, Galland Henning Nopak, Inc. (Nopak), appeals an order of the trial court granting defendants’, Carole Keeton Strayhorn, Comptroller of Public Accounts of the State of Texas, and Greg Abbott, Texas Attorney General (collectively, “the State”), motion for summary judgment and denying Nopak’s motion for summary judgment. We affirm.

Background

The Texas Comptroller of Public Accounts discovered that Nopak, a Wisconsin corporation that manufactures and sells pneumatic and hydraulic cylinders and valves, had been filing employee wages for its Texas-based employee, David Sebbas. Due to this discovery, the Comptroller established a franchise tax account and gave Nopak thirty days to file its franchise tax reports. After Nopak failed to respond to the Comptroller’s notice, the Comptroller estimated Nopak’s franchise tax liability for the years of 1995 through 2004. No-pak subsequently requested a redetermi-nation of the assessment resulting in the Comptroller issuing a decision finding that there was a sufficient nexus between No-pak’s business and Texas to justify the imposition of the franchise tax assessed. Nopak then filed the instant lawsuit claiming that Nopak’s business had insufficient nexus with Texas to allow the assessment of franchise taxes.

As a result of Nopak’s lawsuit, a hearing was held before the Administrative Law Judge of the Comptroller’s Office. During this hearing, Nopak called Sebbas and Joseph Dechant, general sales manager for Nopak, to testify. Sebbas and Dechant testified that Sebbas was employed by No-pak as a regional manager, servicing the needs of distributors in seven and a half states, including Texas. Dechant and Seb-bas then testified regarding the responsibilities of a regional sales manager. After requesting some briefing from the parties, the Administrative Law Judge of the Comptroller’s Office found that Nopak had a substantial nexus with Texas and was, therefore, subject to the franchise tax assessment. Nopak appealed this decision to the district court. Both parties filed motions for summary judgment based on the evidence that had been admitted at the administrative law hearing. The district court granted the State’s traditional summary judgment motion and denied No-pak’s summary judgment motion. Nopak timely appealed.

By one issue, Nopak appeals the district court’s grant of summary judgment in favor of the State and denial of Nopak’s motion for summary judgment. Nopak contends that the imposition of the Texas franchise tax against Nopak constitutes a violation of the United States Constitution because Nopak does not have a substantial nexus with the State of Texas.

Standard of Review

We review a trial court’s decision to grant or to deny a motion for summary judgment de novo. See Tex. Mun. Power Agency v. Pub. Util. Comm’n of Tex., 253 S.W.3d 184, 192 (Tex.2007). Although the denial of summary judgment is ordinarily not appealable, we may review such a denial when both parties moved for summary judgment and the trial court granted one and denied the other. Id. When reviewing competing motions for summary judgment, we review the summary judgment evidence presented by each party, determine all questions presented, and render the judgment that the trial court should have rendered. Id.; FWT, Inc. v. Haskin Wallace Mason Prop. Mgmt., L.L.P., 301 S.W.3d 787, 792 (Tex.App.-Fort Worth 2009, pet. denied). When the trial court does not specify the basis on which it granted summary judgment, the judgment will be affirmed on any meritorious ground expressly presented in the motion. State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex.1993).

Law and Analysis

Nopak contends that it is entitled to summary judgment because it established, as a matter of law, that it lacks a substantial nexus with the state and, therefore, the imposition of the Texas franchise tax would be an unconstitutional abridgement of interstate commerce. The State responds that the evidence established, as a matter of law, that the activities of Nopak created a substantial nexus between the company and Texas and, therefore, the assessment of the Texas franchise tax against Nopak was constitutional and authorized by the laws of Texas.

The United States Constitution specifically grants Congress the power to regulate commerce among the several states, which implicitly prohibits the states from actions that interfere with interstate commerce, such as taxation. See U.S. Const. art. I, § 8; Rylander v. Bandag Licensing Corp., 18 S.W.3d 296, 298-99 (Tex.App.-Austin 2000, pet. denied). However, the Commerce Clause does not prohibit all direct state taxation of interstate commerce. Rylander, 18 S.W.3d at 299. A state tax on a foreign corporation will be sustained if the “tax is applied to an activity with a substantial nexus with the taxing State, is fairly apportioned, does not discriminate against interstate commerce, and is fairly related to the services provided by the State.” Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 279, 97 S.Ct. 1076, 51 L.Ed.2d 326 (1977). Nopak’s challenge to the assessment of the Texas franchise tax is limited to whether a substantial nexus exists between Nopak and Texas.

Texas imposes a franchise tax on each corporation that does business in the state. Tex. Tax Code Ann. § 171.001(a) (Vernon 2008); INOVA Diagnostics, Inc. v. Strayhorn, 166 S.W.3d 394, 396 (Tex.App.-Austin 2005, pet. denied). A foreign corporation has a substantial nexus with Texas if the corporation can be taxed without violating the United States Constitution. 34 Tex. Admin. Code §§ 3.546(b) (2010) (Comptroller of Pub. Accounts, Taxable Capital; Nexus), 3.554(a) (2010) (Comptroller of Pub. Accounts, Earned Surplus: Nexus). The Supreme Court has established a bright-line rule to determine whether a taxing state has a sufficient nexus with the taxpayer to allow taxation: does the taxpayer have a “physical presence in [the] state.” INOVA Diagnostics, Inc., 166 S.W.3d at 402 (citing Quill Corp. v. North Dakota, 504 U.S. 298, 314, 112 S.Ct. 1904, 119 L.Ed.2d 91 (1992)). This bright-line test distinguishes companies whose only connection to the taxing state is by common carrier or the United States mail from those that have a physical presence in the taxing state, such as a small sales force, plant, or office. See Quill Corp., 504 U.S. at 315, 112 S.Ct. 1904. Thus, the constitutionality of the imposition of the Texas franchise tax on Nopak depends on the determination of whether Nopak had a physical presence in Texas. As a guide to this determination, the Comptroller has indicated that a representative of a foreign corporation in the state “to promote or induce sales of the foreign corporation’s goods or services ...” is indicative of a physical presence in the state. 34 Tex. Admin. Code § 3.546(c)(4).

The facts in this case are not in dispute. The dispute revolves around whether the activities of Sebbas were sufficient to create a substantial nexus between Nopak and Texas. The evidence establishes that Nopak is a foreign corporation that sells products in Texas; Sebbas was a regional manager for Nopak during the relevant time period and Texas was included in his region; and, other than the activities of Sebbas, Nopak’s only connection to the state was by common carrier and the United States mail. It is the job of No-pak’s regional managers “to support the sales efforts of our distribution ... companies with whom we have agreements.” The regional managers are “more or less our liaison” with the distributors of No-pak’s products. Sebbas described his job as “mak[ing] sure that Nopak ... is taking care of ... the distributor, period, and that they are satisfied with their services.”

Being mindful that a corporation has a physical presence with the state if, inter alia, it has a sales force in the state, see Quill Corp., 504 U.S. at 315, 112 S.Ct. 1904, we will look to the types of activities that Sebbas performed in the state to determine whether they were sufficient to establish that Nopak had a substantial nexus with the state. Dechant testified that one purpose of Sebbas’s presence in Texas was to allow customers to see a representative of Nopak periodically “to keep us in a dominant position among the salespeople.” Dechant further testified that Sebbas was presented by many distributors to be an expert on the Nopak product line and able to answer questions that the customers of the distributor might have. Dechant and Sebbas both testified that Sebbas would communicate advantages of Nopak products to distributors and their customers. While we fully acknowledge that Sebbas was not authorized to directly solicit or take orders for No-pak’s products, we conclude that his Texas activities were “to promote or induce sales” of Nopak’s products and, therefore, were sufficient to conclusively establish that Nopak had a physical presence in the state. See Tyler Pipe Indus. Inc. v. Wash. State Dep’t of Revenue, 483 U.S. 232, 250, 107 S.Ct. 2810, 97 L.Ed.2d 199 (1987) (approving of the state court’s holding that “the crucial factor governing nexus is whether the activities performed in this state on behalf of the taxpayer are significantly associated with the taxpayer’s ability to establish and maintain a market in this state .... ” (emphasis added)). As such, we affirm the trial court’s implied determination that the assessment of the Texas franchise tax against Nopak does not violate the Commerce Clause.

Nopak further contends that Seb-bas’s activities in Texas were, at best, de minimis activities that should be ignored for taxing purposes. The substantial nexus requirement requires more than de minimis contact with the state before taxes may be assessed against a foreign company doing business through interstate commerce. See Wis. Dep’t of Revenue v. William Wrigley, Jr., Co., 505 U.S. 214, 231, 112 S.Ct. 2447, 120 L.Ed.2d 174 (1992). Texas has defined de minimis activities to include “those [activities] that, when taken together, establish only a trivial additional connection with Texas. An activity regularly conducted within Texas pursuant to a company policy or on a continuous basis shall normally not be considered trivial.” 34 Tex. Admin. Code § 3.554(c)(3). An activity is more than de minimis if it serves an independent business function, separate from requesting orders, that the company would have reason to engage in whether or not it employed a sales force. See Wis. Dep’t of Revenue, 505 U.S. at 228-29, 112 S.Ct. 2447. In Texas, an example of an activity that is an independent business function in the state is the “investigating, handling, or otherwise assisting in resolving customer complaints.” 34 Tex. Admin. Code § 3.554(d)(7).

Looking at the activities performed by Sebbas on behalf of Nopak, the evidence establishes that his primary job was investigating, handling, or otherwise assisting in resolving customer complaints. While Nopak focuses on the infrequency with which Sebbas would go with a distributor to the distributor’s customer to “put out fires” relating to those customer’s complaints, there was evidence presented that Sebbas would take similar actions when it was a distributor that had a complaint regarding Nopak’s products or service. Based on the testimony of Dechant and Sebbas, it is hard to identify any services that Sebbas provided Nopak beyond extolling the virtues of Nopak’s products to distributors and attempting to resolve customer complaints. In addition, it appears that it is Nopak’s policy to have regional managers located throughout the country so that Nopak will have a continuous presence with its distributors. That the perception of Nopak having a local physical presence is a reason for Nopak to employ regional managers is shown through De-chant’s testimony that, “There’s an old axiom in our business that out of sight [is] out of mind, so we firmly believe that they need to see a representative of our company periodically....” Thus, Sebbas’s activities were performed in accordance with a company policy and on a continuous basis. Consequently, we affirm the trial court’s implied finding that Sebbas’s activities in Texas were more than de minimis and, therefore, justified the assessment of Texas franchise taxes against Nopak.

Conclusion

For the foregoing reasons, we conclude that the trial court did not err in granting the State’s motion for summary judgment and denying Nopak’s motion for summary judgment. Therefore, we affirm the judgment of the trial court.

      . Susan Combs is the current Texas Comptroller of Public Accounts and, as a successor rn interest, is a party to this appeal in her official capacity.

      . The testimony regarding the responsibilities of Nopak’s regional sales managers will be addressed in the analysis below.

      . Both Dechant and Sebbas were deceased by the time that the district court considered the competing motions for summary judgment.

      . We fully agree with Nopak’s contention that the physical presence required in Quill Corp. is not satisfied simply by Sebbas having chosen to live in Texas.