author: ANN CRAWFORD McCLURE, Justice.

text:
    Deborah CUNNINGHAM, Appellant, v. HUGHES & LUCE, L.L.P. and Christopher L. Davis, Appellees.
    No. 08-07-00292-CV.
    Court of Appeals of Texas, El Paso.
    Jan. 13, 2010.

      Michael L. Jones, Henry & Jones, L.L.P., Dallas, TX, for Appellant.
    Gordon K. Wright, Cooper & Scully, Michael Prince, Brett Kutnick and Stephanie Dooley Nelson, Carrington, Coleman, Slo-man & Blumenthal, L.L.P., Dallas, TX, for Appellees.
    Before CHEW, C.J., McCLURE, and RIVERA, JJ.
   OPINION

ANN CRAWFORD McCLURE, Justice.

This is an appeal from a “trial within a trial.” Deborah Cunningham filed a legal malpractice suit against Hughes & Luce L.L.P. and Christopher Davis, complaining of mistakes they made in handling consumer litigation against a ear repair facility. The jury found for the attorneys on all of Cunningham’s claims. Finding no error, we affirm.

FACTUAL SUMMARY

The Classic Litigation

Cunningham took her 2000 Mazda Protege to Classic BMW for repairs after an automobile accident. A dispute arose concerning the length of time it took to repair the automobile and the quality of those repairs. Cunningham refused to pay for the repairs and left the shop with her car. Classic filed charges for theft of services. A warrant was issued for her arrest and she was advised to turn herself in. Cunningham retained Davis to represent her and signed a fee contract on February 21, 2001. Davis agreed to a reduced hourly rate of $155.00 plus: (1) 15% of any gross recovery from $1.00 to $5,000.00; and (2) 12.5% of any gross recovery exceeding $5,001.00. On February 23, Cunningham turned herself into the police and was released a few hours later. Three days later, Cunningham and Davis signed a new contract by which Davis would receive 38 1/3% of any gross recovery before suit was filed, 40% of any gross recovery after suit was filed, and 50% of any gross recovery after appellate briefing. This second contract increased the attorney’s percentage recovery, but eliminated Cunningham’s obligation to pay him an hourly fee. Davis then hired Robert Rubarts, a partner in Hughes & Luce, L.L.P., to assist him with Cunningham’s claims.

The attorneys filed suit against Classic for malicious prosecution, intentional infliction of emotional distress, defamation, unfair debt collection practices, breach of warranty, and violations of the Texas Deceptive Trade Practices/Consumer Protection Act (DTPA). In response to Classic’s disclosure requests, the attorneys designated Darrell Jordan as an expert witness on attorneys’ fees. The response provided Jordan’s name, address, telephone number, and curriculum vitae. It also indicated that Jordan would testify to the reasonable and necessary attorneys’ fees incurred by Cunningham in the course of her lawsuit.

On February 13, 2002, Classic offered to settle for $45,000, of which $25,000 was attributable to actual damages and $20,000 was attributable to attorneys’ fees, costs, and expenses. This offer was rejected. Classic then designated Marc Richman as its expert witness on attorneys’ fees.

Prior to trial, each party moved to exclude the testimony of the other’s expert. Davis and Rubarts submitted an affidavit in which Jordan opined that a reasonable and necessary fee would range from $300,000 to $500,000. The affidavit also detailed documents he reviewed in formulating his opinion, including Hughes & Luce’s billing records. These billing records had not been provided during discovery. The trial court, Judge Evans, ultimately excluded Jordan as an expert because the attorneys’ discovery responses failed to disclose Jordan’s opinions, the sources he relied upon, and the amount of fees sought. Unable to present expert testimony, Cunningham was not allowed to submit a jury question on attorney’s fees.

The jury found that Classic maliciously prosecuted Cunningham as a result of malice or fraud, that Classic defamed Cunningham with actual malice, and that Classic intentionally and knowingly engaged in false, misleading, or deceptive acts or practices. The jury awarded Cunningham actual damages of $588,744. The bifurcated trial then moved to Cunningham’s claim for exemplary damages and additional damages under the DTPA. At this phase, Rubarts was permitted to ask the jury to consider attorneys’ fees in its deliberations. The jury awarded Cunningham $1,000,000 in additional damages.

The Fee Dispute

Following trial, Appellees recommended that Cunningham settle her claims. Cunningham initially refused but eventually agreed to settle for $1,200,000. The paperwork was completed and Classic tendered payment to Appellees. From the $1,200,000, Appellees deducted expenses in the amount of $37,424.60 and attorney’s fees of $480,000, representing 40% of the total recovery. A check for $682,575.40 was hand-delivered to Cunningham on May 1, 2003.

Several months later, Cunningham began questioning Davis as to why she had not recovered her attorneys’ fees from Classic. On March 30, 2004, Cunningham sent a formal demand letter. Appellees filed suit on May 21, 2004, seeking a declaratory judgment that the fee contract was valid and enforceable. Cunningham filed counterclaims for professional negligence, breach of contract, breach of fiduciary duty, fraud, conversion, and violations of the DTPA. Appellees countered with fraud claims of their own.

The Malpractice Litigation

During the malpractice lawsuit, the trial court, Judge Stokes (presiding), granted a partial summary judgment, holding that Judge Evans did not abuse his discretion by excluding Jordan’s testimony. Immediately prior to voir dire, Appellees non-suited all of their claims against Cunningham, with the exception of their declaratory judgment and quantum meruit claims. The trial court then realigned the parties, with Cunningham becoming the plaintiff at trial. The jury rejected all of Cunningham’s claims and found in favor of Appel-lees on every issue:

• Appellees were not negligent and/or their negligence was not the proximate cause of the occurrence in question (Question No. 1);
• Appellees did not engage in an unconscionable action or course of action (Question No. 4);
• Appellees did not breach their fiduciary duties to Cunningham (Question No. 7);
• Appellees did not convert funds belonging to Cunningham (Question No. 9);
• Appellees did not commit fraud against Cunningham (Question No. 12);
• The engagement agreement between Appellees and Cunningham was fair and reasonable at the time of its inception (Question No. 16); and
• Appellees performed compensable work for Cunningham with a reasonable value of $289,298.23 and $228,126.37, respectively (Question Nos. 17 and 18).

The trial court rendered a take-nothing judgment and this appeal follows.

SUFFICIENCY OF THE EVIDENCE

In her first two issues, Cunningham challenges the legal and factual sufficiency of the evidence to support the jury’s finding that Appellees were not negligent as a result of their failure to properly designate an expert witness on attorneys’ fees. Cunningham concedes that the legal sufficiency issue has not been preserved for review. We overrule Point of Error One and turn now to a factual sufficiency review.

Standard of Review

Where the party with the burden of proof is challenging the factual sufficiency of the findings, the appropriate complaint is that the adverse findings are “against the great weight and preponderance of the evidence.” Tate v. Tate, 55 S.W.3d 1, 5 (Tex.App.—El Paso 2000, no pet.). In reviewing a factual sufficiency issue, we must consider and weigh all of the evidence in order to determine if the adverse finding was so against the great weight and preponderance of the evidence that it was clearly wrong and manifestly unjust. Dow Chemical Co. v. Francis, 46 S.W.3d 237, 242 (Tex.2001); Marrs and Smith Partnership v. D.K. Boyd Oil and Gas Co., Inc., 223 S.W.3d 1, 13 (Tex.App.—El Paso 2005, pet.denied), citing Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). We will not interfere with the fact finder’s resolution of conflicts or determine the weight or credibility of the witnesses testimony because a fact finder’s determination of conflicting evidence is generally regarded as conclusive. Tate, 55 S.W.3d at 5.

Legal Malpractice

A legal malpractice action in Texas is based on negligence. Cosgrove v. Grimes, 774 S.W.2d 662, 664 (Tex.1989). The elements of a legal malpractice claim are: (1) the existence of a duty, (2) a breach of that duty, (3) the breach proximately caused the injury, and (4) damages resulting from the injury. Id. at 665; see also Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. National Development and Research Corp., 299 S.W.3d 106 (Tex.2009). When a legal malpractice claim arises from prior litigation, the plaintiff has the burden to prove that “but for” the attorneys’ negligence, she would be entitled to judgment. MND Drilling Corp. v. Lloyd, 866 S.W.2d 29, 31 (Tex.App.— Houston [14th Dist.] 1987, no writ). A lawyer is held to the standard of care that would be exercised by a reasonably prudent attorney. Hall v. Rutherford, 911 S.W.2d 422, 424 (Tex.App.—San Antonio 1995, writ denied). The conduct of the attorney must be evaluated based upon the information the attorney had at the time of the purported negligence. Cosgrove, 774 S.W.2d at 664. If an attorney makes a decision which a reasonably prudent attorney could make in the same or similar circumstance, it is not an act of negligence, even if the result is undesirable. Id. at 665. The standard is an objective exercise of professional judgment. Id.

A party may request the following for any testifying expert:

(1) the expert’s name, address, and telephone number;
(2) the subject matter on which the expert will testify;
(3) the general substance of the expert’s mental impressions and opinions and a brief summary of the basis for them, or if the expert is not retained by, employed by, or otherwise subject to the control of the responding party, documents reflecting such information;
(4) if the expert is retained by, employed by, or otherwise subject to the control of the responding party:
(A) all documents, tangible things, reports, models, or data compilations that have been provided to, reviewed by, or prepared by or for the expert in anticipation of the expert’s testimony; and
(B) the expert’s current resume and bibliography.

Relevant Facts

Daniel Sheehan, an expert on legal malpractice, testified that Appellees were not negligent in designating Jordan as an expert on attorneys’ fees, that Appellees did not breach their duties “either in the context of negligence or fiduciary duties,” and that a reasonable and prudent attorney could have believed he had not erred. Sheehan further testified that the disclosure was sufficient and that a reasonable and prudent attorney exercising ordinary care would have expected Jordan’s testimony to be admitted.

Rubarts testified that he was not negligent, that he was “in compliance with the rule” on expert disclosures, that he did not breach his fiduciary duty to Cunningham, and that he properly designated Jordan “the way [he] was taught” and “the way [he]’d always done it.” Rubarts testified that he did not provide any documents to Jordan because he was planning to elicit expert testimony at trial through hypothetical questions.

Jeff Smith testified as Cunningham’s expert. He opined that (1) Appellees’ designation of Jordan did not comply with Rule 194, (2) Appellees were negligent; (3) the jury in the Classic litigation would have awarded Cunningham attorneys’ fees, and (4) Appellees breached their fiduciary duty by failing to disclose their mistake to Cunningham. Appellees characterize Smith as having been discredited because of his admissions that:

• his law license was suspended for six years because he stole $20,000 from a client;
• he was found guilty of violating multiple Disciplinary Rules of Professional Conduct;
• he was held in contempt of court after his license was reinstated;
• he had been sanctioned two or three times;
• he had failed to pay a court-ordered sanction and tried to discharge it in bankruptcy; and
• he was sanctioned $183,360.93 by a federal judge for suing a law firm “without legal and factual support, in bad faith, vexatiously, wantonly, maliciously, frivolously and for improper purposes.”

Analysis

Cunningham had the burden to prove that “but for” Appellees’ negligence, she would have recovered her attorneys’ fees. She presented expert testimony that Appellees did not comply with Rule 194, and were negligent in their designation. Appellees elicited controverting evidence.

On appeal, Cunningham contends that Judge Stokes ruled as a matter of law that Judge Evans did not abuse his discretion in excluding Jordan’s testimony. She then argues that “the question for the jury was whether Appellees’ negligence proximately caused Cunningham damage.” From this, she concludes that the jury was not entitled to ignore or overrule either judge. The problem with this argument is, first and foremost, that the jury was not asked that question. Instead, Question No. 1 inquired:

Did the negligence, if any, of those named below proximately cause the occurrence in question?
Negligence, when used with respect to the conduct of Hughes & Luce, L.L.P. and Christopher Davis, means the failure to use ordinary care, that is, failing to do that which an attorney of ordinary prudence would have done under the same or similar circumstances or doing that which an attorney of ordinary prudence would not have don under the same or similar circumstances.

Cunningham does not complain on appeal of charge error. Indeed, the question was submitted by her attorney and he argued it at length during summation. The jury was specifically asked whether the attorneys were negligent and if their negligence caused the injury. And the jury answered no.

Her argument fails for a second reason. Cunningham failed to object to defense testimony that undercut Judge Stokes’ ruling, Her attorney asked Sheehan this question:

Question [by Mr. Pennington]: Well, would you agree that Mr. Rubarts and the attorneys representing Mrs. Cunningham were negligent with respect to the designation of attorney’s fees?
Answer [by Mr. Sheehan]: No.

During questioning by the defense, Shee-han addressed the subject again:

Question [by Mr. Prince]: So you are aware that Ms. Cunningham has claimed, no big surprise, that Hughes & Luce and Mr. Davis committed legal malpractice and breached their fiduciary duties to her?
Answer [by Mr. Sheehan]: Yes, I’m aware of that.
Q: Based on your review of the file, what are your opinions of those claims?
A: I don’t think they breached their duties either in the context of negligence or fiduciaries.

No objection was lodged. Cunningham’s attorney then took it a step further:

Question [by Mr. Pennington]: Now you understand that Judge Evans who was the judge in the underlying lawsuit, Judge Evans is the one who listened to what was presented on the record and Judge Evans is the one who determined that Hughes & Luce and Mr. Davis did not comply with Rule 194 and he refused to allow Mr. Jordan to testify?
Answer [by Mr. Sheehan]: Yes, I know that.
Q: All right. And are you aware that another judge has reviewed Judge Evans’ ruling and determined that the ruling was not an abuse of discretion?
A: Yes.
Q: And so that makes two judges now who have ruled the same way?
A: Well, I wouldn’t agree with that. Judge Evans ruled on whether there had been sufficient compliance with Rule 194; that was the issue he was facing. The issue that Judge Stokes later faced was, was his decision an abuse of discretion. Judge Stokes reviewing [the] Rule 194 issue may have decided the opposite of Judge Evans. That wasn’t the question before him.

Based on these questions, the trial court determined that Cunningham’s counsel had violated the order in limine and that defense counsel would be able to question Sheehan as to whether Judge Evans’ decision was erroneous. Sheehan’s answer was straight forward: “I think Judge Evans improperly refused to permit Darrell Jordan to testify.”

Appellees additionally argue that Cunningham wholly failed to establish that Classic or its liability carrier would have settled for more than $1.2 million if the jury had awarded fees. Sheehan testified that “the larger the verdict, the less your chance of settling” because “when a defendant really gets popped they’re just not going to settle at all or they want to go to the appellate court.” In short, Appellees contend that the jury was entitled to believe that Classic would have appealed rather than settled had the verdict been $2 million ($1.5 million plus $500,000 in attorneys’ fees) for what was in essence bad car repairs.

Whether Appellees failed to use ordinary care was an issue of fact for the jury. The adverse finding was not so against the great weight and preponderance of the evidence that it was clearly wrong or manifestly unjust. See Dow Chemical Co., 46 S.W.3d at 242. The jury chose to believe Appellees’ witnesses and reject Cunningham’s claims. We will not interfere with the fact finder’s resolution of conflicts or determine the weight or credibility of the witnesses testimony. See Tate, 55 S.W.3d at 5. Because the evidence was factually sufficient, we overrule Point of Error Two.

EVIDENTIARY ERROR

In Point of Error Three, Cunningham contends that the trial court erred by admitting evidence of prior litigation she initiated and evidence of prior criminal charges. Evidentiary matters are committed to the trial court’s sound discretion. Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex.1989). A trial court abuses its discretion when it acts without regard for any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986). Stated differently, the appropriate inquiry is whether the ruling was arbitrary or unreasonable. Smithson v. Cessna Aircraft Company, 665 S.W.2d 439, 443 (Tex.1984); Landry v. Travelers Insurance Co., 458 S.W.2d 649, 651 (Tex.1970). The mere fact that a trial judge may decide a matter within his discretionary authority in a different manner than an appellate judge in a similar circumstance does not demonstrate that an abuse of discretion has occurred. Southwestern Bell Telephone Co. v. Johnson, 389 S.W.2d 645, 648 (Tex.1965); Jones v. Strayhom, 159 Tex. 421, 321 S.W.2d 290, 295 (1959).

Evidence of Prior Litigation

On cross-examination, Appellees asked Cunningham, “Do you think that you, you personally, have ever done anything to contribute to the lawsuit problem we have in America?” Cunningham objected that the question was irrelevant and a violation of Rule of Evidence 404. On appeal, however, she complains that the trial court erred in requiring her to answer a “disparaging and derogatory question.” See Falk & Mayfield L.L.P. v. Molzan, 974 S.W.2d 821, 824 (Tex.App.—Houston [14th Dist.] 1998, pet. denied). Because her objection at trial does not comport with her challenge on appeal, this issue has not been preserved for review. Tex. RApp.P. 33.1.

Next, Cunningham argues that the trial court erred by admitting evidence of prior litigation, including two sexual harassment lawsuits and sanctions entered against her by a federal court. In response, Appellees contend that her citations to the record relate only to questions about a particular lawsuit in which she had sued a former employer, TCI Cable. We agree and limit our review to the TCI Cable litigation and the sanctions issued in that case.

The legal malpractice lawsuit included a claim that Appellees violated the DTPA by charging her an unconscionable fee, entering into an unfair contingency fee agreement, and urging her to settle her claims against Classic without disclosing the problem with the expert designation. To prevail, Cunningham had to show that Ap-pellees took “advantage of [her] lack of knowledge, ability, experience, or capacity ... to a grossly unfair degree.” Tex. Bus. & Com.Code § 17.45(5). Appellees argued, and the trial court agreed, that her experience in the TCI lawsuit .was directly relevant to her “knowledge, ability, experience, [and] capacity” regarding contingency fee agreements and settlements. The trial court commented that the “facts of the underlying case” might. not be relevant, but “the fact that ... she’s been through litigation ... would be relevant to this issue.” The trial court limited the scope of the evidence to Cunningham’s experience with aspects of the civil litigation system that were at issue in the trial, including contingency fee agreements and settlements. The trial court did not permit questioning about the facts or,details of the underlying lawsuits. The trial court also prohibited Appellees from introducing pleadings from Cunningham’s prior lawsuits.

We perceive no abuse of discretion. See Gee, 765 S.W.2d at 396. Given that Cunningham filed a DTPA claim against Ap-pellees and the trial court found that evidence of Cunningham’s knowledge and previous litigation experience went directly to her claim, the trial court’s decision was neither arbitrary nor unreasonable. See Smithson, 665 S.W.2d at 443.

Evidence of Criminal History

Next, Cunningham complains that the trial court erred in admitting evidence about her criminal past. She points to evidence of a prior arrest for failure to identify herself to a police officer, the copy of the arrest warrant issued in connection with her arrest, and the charges against her for writing forty-two hot checks. She contends that the evidence was irrelevant and in violation of Rules 404(b), 608(a) and (b), and 609. Appellees again counter that her arguments on appeal do not comport with her objections at trial. Again, we must .agree. Because her trial objection was limited to Rule 404, our review will likewise be limited. Tex.R.App.P. 33.1.

“Relevant - evidence” is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Tex.R.Evid. 401. Rule 404 prohibits a party from injecting evidence of other wrongs or acts to show that the witness acted in conformity therewith. Tex. R.Evid. 404(b). The evidence may be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Tex.R.Evid. 404(b).

Appellees enumerate four reasons why the evidence was admissible:

• Cunningham’s criminal history constituted a major portion of the underlying Classic trial. During that trial, Cunningham testified about the arrests, charges, and convictions. Therefore, this evidence was relevant to the malpractice case because Cunningham was asking the jury to put themselves in the shoes of the Classic jury in order to determine what they would have awarded in attorneys’ fees if Jordan had been allowed to testify.
• The evidence was relevant to multiple claims at issue. For example, Appel-lees asserted an alternative claim for quantum meruit, seeking recovery for the “compensable work” and “valuable services” they provided in the Classic case. Therefore, they were entitled to offer evidence that they overcame obstacles created by Cunningham’s incomplete, evasive, and inaccurate information regarding her criminal past. Appellees argue that they were required to do extra work to minimize the negative consequences of that evidence in the Classic litigation.
• The evidence was relevant to Cunningham’s breach of fiduciary duty claim and, in particular, to her complaints regarding their recommendation to settle the Classic lawsuit. Because her criminal history came out at trial, their recommendation to quickly settle the vulnerable DTPA jury award was sound and in Cunningham’s best interest.
• The evidence was admissible to impeach Cunningham’s memory. Cunningham, at various times, purported not to remember her criminal history.

We also emphasize that Cunningham failed to object to the introduction of trial transcripts from the Classic litigation, including reference to the “failure to identify” and “hot check” charges. Not only did Cunningham’s attorney not object, he affirmatively stated that he had “no objection”. He also introduced exhibits reflecting these same charges. We conclude that the trial court did not abuse its discretion. See Gee, 765 S.W.2d at 396. For these reasons, we overrule Point of Error Three.

BATSONIEDMONSON CHALLENGES

In Point of Error Four, Cunningham argues that the trial court erred in overruling her Batson/Edmonson challenges to Appellees’ peremptory strikes of venire persons Eric Oliver and Richard Askew. In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the United States Supreme Court held that the Due Process Clause of the 14th Amendment is violated if prospective jurors are excluded from service in criminal trials on the basis of race or ethnicity. This holding has been extended to civil cases. Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991). There, the court emphasized that “[rjacial discrimination has no place in the courtroom, whether the proceeding is civil or criminal,” and that “courts must entertain a challenge to a private litigant’s racially discriminatory use of peremptory challenges in a civil trial.” Edmonson, 500 U.S. at 630, 111 S.Ct. at 2088. Texas adopted the Edmonson rationale in Powers v. Palacios, 813 S.W.2d 489 (Tex.1991).

Standard of Review

We review a trial court’s ruling on an Edmonson challenge for abuse of discretion. Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex.1997). In the context of an Ed-monson challenge, the abuse of discretion standard is similar to the federal standard of “clearly erroneous.” Id.; cf. Hernandez v. New York, 500 U.S. 352, 369, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991)(under the “clearly erroneous” standard, a trial court’s finding will not be disturbed unless the appellate court is “left with the definite and firm conviction that a mistake ha[d] been committed”). A trial court’s decision on discriminatory intent is given “great deference because a determination of the issue of purposeful discrimination depends on assessing the credibility and the content of the striking party’s explanation and all other relevant facts and circumstances.” Cain v. Pruett, 938 S.W.2d 152, 161 (Tex. App.—Dallas 1996, no writ).

Relevant Facts

Eight of the first twenty five venire persons were African-Americans, as is Cunningham. Cunningham contends that Appellees challenged all eight for cause and then exercised three of their six peremptory challenges to exclude those African-Americans who were not stricken for cause. Cunningham lodged a Batson challenge with regard to Eric Oliver and Richard Askew and Appellees were given an opportunity to provide race-neutral explanations for the strikes. Appellees reminded the court that both men had been challenged for cause, albeit unsuccessfully. Counsel then explained Oliver was struck because he was favoring Cunningham before hearing any of the evidence. Askew was struck because of his attitude toward attorneys, legal fees, his hostile demeanor, and his body language.

The jurors were required to complete written questionnaires before voir dire began. Pertinent to our discussion, Question 24 asked:

Do you agree or disagree with each of the following statements? (Please check one box for each statement).

Question 28 asked:

Generally speaking, which of the following best describes your opinion of attorneys?

Venire Person Oliver

The record reveals the following exchange between defense counsel and Oliver:

Question [by Ms. Blue]: Search your hearts and ask yourself, based on what I’ve heard so far, I am favoring Ms. Cunningham? Or do you think that the lawyers have done something wrong, that they were negligent based on what you’ve heard? Can we have this side of the room go ahead and raise your card. Because it’s so important that you say if you feel that way. Because what everybody in this room wants to make sure is that you’re the right juror for this case. So based on what you’ve heard, is anybody leaning toward Mrs. Cunningham’s side of the case?
Okay. Let’s go over here first. Anybody want to raise your card?
Okay. This side. Number 7. Thank you. God bless you. Thank you so much for your honesty.
Yes. And Number 7, Mr. Oliver?
Answer [by Oliver]: Yes.
Q: And thank you so much. The same question. You have a prejudgment, I think that’s the words that Mr. Pennington used. You have a prejudgment toward Ms. Cunningham’s case and the fact that you already believe that the lawyers did something wrong, correct?
A: From the information that’s been given thus far, yes.
Q: Okay. And that’s a good thing. That’s a good thing for you to tell us because if you believe that, we just need to know that. If you started with a prejudgment towards Ms. Cunningham’s case and you feel strongly about it, would that be a fair statement?
A: With the information given, yes.
Q: Right. And no matter who asks you the question 20 different ways will your answer be the same?
A: Unless I get more information, yes.
Question [by Ms. Aldous]: You are Mr. Oliver, Juror Number 7?
Answer [by Oliver]: Yes.
Q: And what you’re saying, Mr. Oliver, is that before you hear any of the evidence in this case, you have already decided you were going to give Ms. Cunningham a head start; fair enough?
A: [Nods affirmatively].
Q: Did you get that, Your Honor? He said yes.
The Court: I did not hear him.
A: Yes.
Question [by Ms. Blue]: And so you’re just saying that you’ve already decided the Plaintiff, you have a prejudgment toward the Plaintiff?
Answer [by Oliver]: I answered with the evidence that has been presented at this point, yes. I’m open to any other evidence to be presented.
Q: Okay.
A: Yes.
Q: And understanding there wasn’t evidence presented, but what the law, what this part of the trial is, is to figure out if you sit in the box, you have to just say, hey, I’m equal for everybody. And knowing that Ms. Cunningham is suing a bunch a[sic] lawyers, before you’ve heard any evidence, are you’re [sic] starting out with a prejudgment toward the Plaintiff, which is good if you feel that way. And you do feel that way?
A: Yes.
Q: Okay. It says — just for the record, I’m looking at your questionnaire.
A: Uh-huh.
Q: And when you filled this out you certainly were honest and open, and so you’re telling the Judge that in a case between a law firm and the former client I would lean toward or favor the former client. And you said agreed.
A: Yes.
Q: Is that right?
A: Yes.
A: And that’s because you felt strongly about it, I assume?
Q: Yes. Correct.

Appellees struck Oliver because he repeatedly professed a bias in favor of Cunningham’s case. While Cunningham argues that other potential jurors gave similar responses and were not stricken, Appellees counter that she made no complaint of disparate treatment in the trial court. On appeal, she points to venire members 13, 27, and 35, all of whom ended up on the jury and one of whom believed a 40% contingency was too much. But no other panelist acknowledged — as Oliver did — having a “prejudgment towards [Cunningham’s] case and ... already believftng] that the lawyers did something wrong.” None of the others stated that “before [they] hear[d] any of the evidence in this case, [they] ha[d] already decided [they] were going to give [Cunningham] a head start.” None of the others admitted they were “favoring the Plaintiff’ and that “no matter who ask[ed] [them], [they were] not going to change [their] mind[s].” Additionally, Oliver insisted that Appellees’ alleged negligence in failing to submit an attorneys’ fee question to the jury “should not be excused.”

Venire Person Askew

Of all of the prospective jurors, Askew expressed the most unfavorable view of lawyers. He disagreed with the notion (1) that the practice of law is an honorable profession, (2) that lawyers care about their clients, (3) that attorneys are honest, and (4) that lawyers charge fair fees. He held an “unfavorable” opinion of attorneys. He believed that attorneys should not “be let off the hook” for failing to submit an attorney’s fees question to a jury because “they’re professionals [and] should have known” that it would constitute negligence not to do so. Finally, Askew admitted that “[g]iven [his] feelings about lawyers, and given the fact there’s a bunch of lawyers on one side, and an individual on the other,” it would cause him to “pause a little bit.”

In the trial court, Cunningham alleged disparate treatment with regard to venire member Bobby Golightley, whose juror questionnaire is included in the record. On appeal, she compares Askew to Claire Lee, whose juror information is not contained in the record. From the voir dire we can ascertain this much. Claire Lee disagreed that lawyers care about their clients and she also expressed an unfavorable opinion of attorneys in general. Yet she believed that if a lawyer put something unethical in a contract, but “he’s forthright and honest with the client that this is what he’s going to do and the client agrees with that and accepts that as it stands and signs, then I think [the contract] should be okay.” Lee agreed that “[a] client is responsible for their choices, decisions, and actions.” We also note that Askew was Juror 24-while Lee was Juror 27.

The record supports race-neutral reasons for Appellees’ peremptory - strikes against both Oliver and Askew. We conclude that the trial court did not abuse its discretion in overruling Cunningham’s Batson/Edmonson challenges. We thus overrule Point of Error Four. Having found no error, we affirm the judgment of the trial court.

      . The record reflects Appellees’ concerns that the judgment would not stand up on appeal, that the $1.5 million in DTPA damages was "very suspect” and there was no "evidence in the record that Mrs. Cunningham had suffered that kind of injury because her car wasn't repaired well.”

      . Classic originally identified Cunningham as one of the payees. At Rubart’s request, the check was redrafted excluding Cunningham as a payee. The second check was then deposited in Hughes & Luce’s trust account.

      . The Fifth Circuit affirmed the sanctions award.

      . Clearly, the question comes straight from the pattern jury charge and is appropriate where negligent conduct is in issue. Cunningham did not ask for an instruction that Appel-lees were negligent as a matter of law, nor did she submit an issue limited to causation.

      . We have not been able to locate within the voluminous clerk’s record the precise order in limine. It is clear from the reporter’s record, however, that the parties and their counsel were not to inquire as to the propriety of Judge Evans’ ruling without first approaching the bench.


source: Caselaw Access Project

author: REBECCA SIMMONS, Justice. SANDEE BRYAN MARION, Justice,

license: Public Domain

text:
    In the Interest of A.M., A.M. and B.M., Children.
    No. 04-09-00069-CV.
    Court of Appeals of Texas, San Antonio.
    Feb. 24, 2010.

      M. Dinorah Diaz, Law Offices of M. Dinorah Diaz, San Antonio, TX, for Appellant.

      Michael Shulman, Texas Department of Family and Protective Services, Austin, TX, Patricia Blaschke DeVeau, Law Office of Patricia B. DeVeau, San Antonio, TX, for Appellee.
    Sitting: SANDEE BRYAN MARION, Justice, REBECCA SIMMONS, Justice, MARIALYN BARNARD, Justice.
   OPINION

Opinion by:

REBECCA SIMMONS, Justice.

This case arises from the attempts by Appellants, the maternal aunt and the maternal grandmother, to adopt the children in question. Over nine months after the rights of the biological parents were terminated, the aunt filed a petition to adopt the children, and several months later the grandmother filed a Plea in Intervention in Suit for Adoption. The trial court dismissed the suit based on lack of standing. This appeal followed.

Factual Background

The children, A.M., A.M., and B.M., (“children”) resided with their maternal aunt for approximately two years before the Department removed the children, in March 2007, based upon allegations of abuse. These allegations, however, were eventually determined to be unsubstantiated. Thereafter, on October 18, 2007, the parental rights with regard to all three children were terminated. After the termination, the Texas Department of Family and Protective Services (the Department) continued to encourage visitation between the aunt and the children, including unsupervised overnight visitations. On July 21, 2008, the aunt filed an original petition for adoption of the children. Almost five months later, the aunt filed a motion requesting the trial court to temporarily name her the children’s sole managing conservator. The Department filed a motion to strike the aunt’s petition for adoption and the grandmother’s plea in intervention and a motion to dismiss for lack of standing and the children’s attorney ad litem filed a motion to strike the grandmother’s petition in intervention for lack of standing. Specifically, the Department argued that the aunt lacked standing because the petition for adoption was filed more than ninety-days after parental rights were terminated, and the Department did not consent to the adoption. See Tex. Fam.Code Ann. § 102.006 (Vernon 2008). On January 20, 2009, the grandmother filed a Petition in Intervention in Suit for Adoption requesting that she be allowed to adopt the children or to be appointed managing conservator if the aunt’s petition was denied. See id. § 102.004(b).

Procedural Background

Appellants made three arguments before the trial court. First, Appellants argued that they have standing to seek adoption or managing conservatorship based on “substantial past contact with the children” under the Texas Family Code section 102.005(5). Id. § 102.005. Further, Appellants claim that the Department should be estopped from asserting any limitations to standing under section 102.006(c) as a result of alleged misrepresentations made by the Department and the aunt’s detrimental reliance on these alleged misrepresentations. See id. §§ 102.005, 102.006. Second, Appellants contended that the Department wrongfully withheld consent to their suit for adoption pursuant to section 162.010(a). Id. § 162.010(a). Finally, Appellants alleged that Texas Family Code section 102.006 violates due process in that it deprives a relative of the liberty interest in family integrity and association with family members by limiting an original suit filed by a family member to ninety days after parental termination. Id. § 102.006(c).

The trial court allowed the parties to present witnesses, but limited the testimony to (1) the issue of standing and whether the aunt had filed her original suit within ninety-days of the termination; and (2) whether the Department was estopped to claim she lacked standing. The testimony presented substantiated the contact the aunt had with the Department and the children following the termination of the rights of the children’s biological parents. Although Appellants’ counsel attempted to raise the issue of the Department’s wrongfully withheld consent to adoption on several occasions, the trial court refused to consider any testimony beyond the issue surrounding the ninety-day bar established under section 102.006(c) and estoppel. Id. At the conclusion of the hearing, the trial court granted the Department’s motion to strike for lack of standing. The trial court subsequently heard and denied Appellants’ motion for reconsideration.

Standing

In an original suit affecting the parent-child relationship in which the petitioner seeks adoption or managing conser-vatorship, the question of standing is a threshold issue. See § 102.006 (Vernon 2008) (outlining individuals who may not file an original suit in cases wherein the parent-child relationship between the child and every living parent of the child has been terminated); see also In re M.P.B., 257 S.W.3d 804, 808 (Tex.App.-Dallas 2008, no pet.). “[A] party seeking relief in such suits must plead and establish standing within the parameters of the language used in the Code.” In re MTC, 299 S.W.3d 474, 480 (Tex.App.-Texarkana 2009, no pet.) (citing In re H.G., 267 S.W.3d 120, 124 (Tex.App.-San Antonio 2008, no pet.)); see also Tex. Fam.Code Ann. §§ 102.003-.007. If a party fails to establish standing, the trial court must dismiss the suit. See In re C.M.C., 192 S.W.3d 866, 870 (Tex.App.-Texarkana 2006, no pet.). In the present case, we look to the Texas Family Code to determine standing. Tex. Dep’t of Prot. & Regulatory Servs. v. Sherry, 46 S.W.3d 857, 861 (Tex.2001).

In a case of first impression before this court, we must decide whether a person seeking to adopt has the right to request an evidentiary hearing to determine whether the Department wrongfully withheld its consent to adopt under section 102.006(b)(2). Tex. Fam.Code Ann. § 102.006(b)(2). Likewise, we must examine the constitutionality of the ninety-day limitation applicable to family members of children whose parents’ rights have been terminated. Id. § 102.006(c).

A. Standard of Review

Because this case involves reviewing a jurisdictional issue, we apply a de novo standard of review. Tex. Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex.2004). When reviewing a ruling on a motion to dismiss for lack of jurisdiction, we accept the allegations in the petition as true and construe them in favor of the pleader. Bexar County v. Lopez, 94 S.W.3d 711, 713 (Tex.App.-San Antonio 2002, no pet.). In addition to the pleadings, we may also consider relevant evidence and must do so when necessary to resolve the jurisdictional issues raised. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000). If the evidence creates a question of fact regarding the jurisdictional issue, the plea to the jurisdiction cannot be granted, and the fact issue is left to be resolved by the fact finder. Miranda, 133 S.W.3d at 227-28.

Statutory construction is a legal question and is also reviewed de novo. F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d 680, 683 (Tex.2007). In construing a statute, our primary objective is to determine the legislature’s intent, which, when possible, we discern from the plain meaning of the words chosen. State v. Shumake, 199 S.W.3d 279, 284 (Tex.2006). Additionally, the constitutionality of a statute is a question of law, which appellate courts review de novo. In re C.P.J., 129 S.W.3d 573, 576 (Tex.App.-Dallas 2003, pet. denied).

B. Texas Family Code Sections 102.005 and 102.006

1. Preservation and Waiver

The Department argues that the Appellants failed to raise the issue that the Department should not have been allowed to challenge Appellants’ standing before •the trial court. To preserve a complaint for appellate review, the record must first show that the complaint was made to the trial court by a timely request, objection, or motion stating the grounds with sufficient specificity to make the trial court aware of the complaint, unless those grounds are apparent on the record, and second, that the trial court ruled or refused to rule on the request, objection, or motion. Verburgt v. Dorner, 959 S.W.2d 615, 616-17 (Tex.1997) (liberally construing the Rules of Appellate Procedure to protect a party’s right to appeal). (emphasis added). The record reflects that the trial court clearly understood Appellants’ argument regarding equitable estoppel and the refusal of the Department to consent to the adoption. Given the appellate courts’ liberal construction of the Rules of Appellate Procedure, Appellants properly preserved this issue for review. Id.

2. Standing under the Family Code

Section 102.005 of the Texas Family Code details the standing requirements for a person filing a petition for adoption. Tex. Fam.Code Ann. § 102.005. Pertinent to this case is that an “adult whom the court determines to have had substantial past contact with the child sufficient to warrant standing” may file a petition for adoption. Id. Section 102.006, however, limits the standing of particular individuals in cases where an original suit is filed and the parents’ rights were previously terminated. Id. § 102.006.

The parties concede that both the aunt and the grandmother meet the standing requirement set forth in section 102.005(5) that grants standing to adopt to those who have had substantial contact with the child. Id. § 102.005. Section 102.006(a) provides that when the:

parent-child relationship between the child and every living parent of the child has been terminated, an original suit may not be filed by:
(1) a former parent whose parent-child relationship with the child has been terminated by court order;
(3) a family member or relative by blood, adoption, or marriage of either a former parent whose parent-child relationship has been terminated or of the father of the child.

Id. § 102.006(a). These limitations do not apply to a person who:

(1) has a continuing right to possession of or access to the child under an existing court order; or
(2) has the consent of the child’s managing conservator, guardian, or legal custodian to bring the suit.

Id. § 102.006(b). Additionally, this limitation does not apply if:

[the relative] files an original suit or a suit for modification requesting managing conservatorship of the child not later than the 90th day after the date the parent-child relationship between the child and the parent is terminated.

Id. § 102.006(c).

In the present case, the parental rights of the children’s parents were terminated on October 18, 2007. Although the Appellants had contact with the children through the Department, neither had continuing possession of the children under a court order. Critical to this case, neither Appellant filed suit within ninety-days of the termination of the parental rights. Consequently, they failed to meet the statutory standing requirements unless some other exception to the limitations on standing applied. Id. § 102.006. Appellants sought adoption of the children, after the ninety-day period, but failed to obtain the consent of the managing conservator (i.e. the Department) to file an original petition for adoption. Under a plain reading of section 102.006, the Appellants lacked standing to initiate a suit for adoption. We turn, therefore, to their arguments regarding estoppel and wrongfully withheld consent to determine if these arguments provide the standing not found in the statute.

Estoppel

Appellants assert that, based upon alleged representations made by the Department and the aunt’s detrimental reliance thereon, the Department should be es-topped from asserting lack of standing. The Appellants’ argument is two-fold — the Department not only wrongfully withheld its consent, but also waited for the ninety-day deadline to pass in order to assert lack of standing while simultaneously allowing Appellants to believe that the aunt would be allowed to adopt the children. See id. §§ 102.005, 102.006. Appellants claim that based on the Department’s actions toward the Appellants it would be unconscionable to allow the Department to maintain a position inconsistent with the one in which it acquiesced or accepted the benefit. See In re A.L.G., 229 S.W.3d 783, 786 (Tex. App.-San Antonio 2007, no pet.).

The doctrine of equitable es-toppel requires: (1) a false representation or concealment of material facts; (2) made with knowledge, actual or constructive, of those facts; (3) with the intention that it should be acted on; (4) to a party without knowledge or means of obtaining knowledge of the facts; (5) who detrimentally relies on the representations. Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 515-16 (Tex.1998). “The doctrine of [equitable] estoppel pre-eludes a party from asserting, to another’s disadvantage, a right inconsistent with a position previously taken by that party. This doctrine applies when it would be unconscionable to allow a party to maintain a position inconsistent with one in which it had acquiesced, or from which it had accepted a benefit.” Eckland Consultants, Inc. v. Ryder, Stilwell Inc., 176 S.W.3d 80, 87 (Tex.App.-Houston [1st Dist.] 2004, no pet.) (internal citations omitted). Appellants contend that the Department’s actions in encouraging the aunt to perform services and engage with the children should estop the Department from raising its lack of consent to the adoption and the ninety-day bar to the adoption.

A. Wrongfully Withholding Consent

Appellants couch their argument of wrongfully withholding consent in terms of estoppel — that the Department must give its consent based on its actions, and on an interpretation of two family code sections applicable to a managing conservator’s consent to adoption. Alternatively, they complain that because section 102.006(b)(2) provides Appellants standing if the managing conservator consents to the original suit, the trial court erred in refusing to hear evidence regarding-their claim that the Department wrongfully withheld its consent to adoption. More specifically, Appellants assert that, as a matter of law, the trial court was mistaken in concluding that “this issue is not whether or not [the aunt would] make a good adoptive parent or if she loves the children.... And even as frustrated as we all are in here regarding this case, my hands are tied.” To the contrary, the Appellants contend that consent cannot be withheld without good cause and should be waived by the trial court if it is in the best interests of the children. We must determine whether section 102.006(b)(2) should be read in conjunction with Texas Family Code section 162.010 governing adoptions. See Tex. Fam.Code Ann. § 102.006(b)(2).

Appellants rely on Chapman v. Home, 561 S.W.2d 265, 267 (Tex.Civ.App.-Fort Worth 1978, no writ), for the proposition that when reviewing a petition for adoption, the trial court may consider whether the managing conservator, i.e. the Department withheld consent -without cause. The Chapman court’s analysis, however, is premised on the language of section 162.010; yet, the Family Code explicitly provides that chapter 162 is “[subject to the requirements for standing to sue in Chapter 102.” See Tex. Fam.Code Ann. §§ 162.001, 162.010. Consequently, section 162.010’s provision that the managing conservator’s consent may not be refused absent good cause, does not apply until after the movant has established standing under Chapter 102. Id. §§ 102.001-.006. We presume that every word of a statute was used for a purpose, and, likewise, that every omitted word was excluded for a purpose. See Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 540 (Tex.1981). Unlike the language of section 162.010, section 102.006 does not require the managing conservator to consent to adoption nor is there any requirement that a refusal to consent must be made in good faith. See Tex. Fam.Code Ann. § 102.006(b)(2).

Although the present case appears to create an inequity, there simply is no statutory basis for an inquiry into the motivation of a managing conservator’s refusal to consent to an adoption in section 102.006, and we cannot import section 162.010 to provide such a basis. Moreover, the Legislature has continuously acknowledged the need for finality and permanency for the children. In the Interest of B.L.D., 113 S.W.3d 340, 353 (Tex.2003). In the present case, when the Department is the managing conservator, and the children still have no long term placement, the Department’s refusal to give consent seems insensitive. Yet, the statute is not limited to only the Department being the managing conservator, it applies to any managing conservator, guardian, or legal custodian. Tex. Fam.Code Ann. § 102.006(b). In many cases, shortly after the child’s birth, the parental rights are terminated and an adoptive child moves directly from the hospital to the home of the potential adoptive parents and/or managing conservators. Absent any problems, the adoption becomes final six months later. Under the Appellants’ reasoning, a relative, that no one has seen or heard from since the birth of the child, could file a petition the day before the adoption becomes final and seek to adopt the child urging the managing conservator to consent to such an adoption using an implied good faith standard. The managing conservator would be forced to defend and litigate good faith regardless of the passage of time.

This is precisely what section 102.006 is designed to prevent. In order to warrant a hearing on the managing conservator’s refusal to give consent to adopt under chapter 162, the petitioner must first establish standing under chapter 102. Id. §§ 102.001-006; 162.001-.010. Because the Department was not required to give its consent and the good faith of such a decision is irrelevant to standing, the trial court did not err in refusing to hear evidence regarding whether the Department wrongfully withheld its consent under section 102.006(b)(2). Id.

B. Ninety-Day Deadline

Conflicting evidence was presented at the hearing including reference to concerns expressed in a home study and lack of completion of the family plan by the aunt. However, viewing the evidence in the light most favorable to the Appellants, as required under a motion to dismiss, there is evidence in the record that the aunt believed that she was on track to adopt the children in question, and the Department did nothing to discourage her efforts to seek possession of the children. After the Department removed the children from her possession, the aunt attempted to complete the necessary guidelines and classes set out by the Department’s family plan. Additionally, there is evidence that the Department encouraged the aunt’s efforts by (1) allowing the aunt to continue to visit with the children, and (2) encouraging the aunt to proceed with her family plan. The Department’s encouragement continued even after the ninety-day deadline had expired.

Appellants argue that based on the Department’s actions, they never suspected the Department would refuse to consent to the adoption and, therefore, Appellants saw no need to file a petition for adoption within the ninety-day period. Under these circumstances, the Appellants argue, equity demands the Department be estopped from arguing that Appellants lack standing based on the ninety-day deadline set forth in section 102.006(c). Tex. Fam.Code Ann. § 102.006(c). This case presents issues similar to those in In re H.G., 267 S.W.3d 120 (Tex.App.-San Antonio 2008, no pet.). In H.G., the parental rights of the children’s biological parents were terminated, and the biological maternal grandparents were named managing conservators. Id. at 122. The children were subsequently adopted, with the grandparents’ consent. Id. More than two years later, the adoptive parents filed for divorce and the grandparents filed a petition to intervene seeking grandparent access to the children. Id. In their petition to intervene, the grandparents argued that but for the adoptive parents’ representations that the grandparents would be permitted on-going ■visitation with the children, they would not have consented to the adoption. Id. at 123. Thus, they argued that the adoptive parents should be estopped to deny the grandparents’ standing. Id. Noting the severe inequities, this court reiterated that the absence of standing deprived the court of subject matter jurisdiction and equity cannot confer jurisdiction. Id. at 124-25.

Much like our analysis under section 102.006(b)(2), there is no requirement under section 102.006(c) that the Department notify the Appellants of either the ninety-day deadline or its intention to withhold its consent to adopt. See Cameron, 618 S.W.2d at 540. The legislature did not impose such a burden on the Department, and we cannot. We are extremely troubled by this case. ■ Although Appellants sought relief via equitable estoppel, the trial court could not grant equitable relief in the face of this statutory standing provision. See In re H.G., 267 S.W.3d at 126. “[Wjhile equity may estop a party from relying on a mere statutory bar to recovery, it cannot confer jurisdiction where hone exists.” Id. at 124-25. The Department’s actions cry out for an equitable solution for the Appellants, yet the law simply does not provide one.

Accordingly, because the Appellants had neither the consent of the Department to bring the suit nor filed suit “no later than the 90th day after the date the parent-child relationship” was terminated, the trial court did not err in upholding the Department’s challenge based on lack of standing. Tex. Fam.Code Ann. § 102.006(c) (Vernon 2009).

Constitutional ARGument

Appellants next argue that section 102.006 is unconstitutional under both the United States Constitution and the Texas Constitution in that it denies standing to Appellants, violating their liberty interest in “family integrity and association” without due process of law. In their brief; Appellants allude to both a facial and an “as applied” constitutional challenge.

We begin our review by recognizing that when addressing the constitutionality of a statute, there is a strong presumption of validity. See Walker v. Gutierrez, 111 S.W.3d 56, 66 (Tex.2003); Barshop v. Medina County Underground Water Conservation Dist., 925 S.W.2d 618, 629 (Tex.1996). Appellate courts must presume a statute is constitutional and interpret the statute whenever possible in a matter that renders it so. FM Properties Operating Co. v. City of Austin, 22 S.W.3d 868, 873 (Tex.2000). Moreover, the party challenging the statute has the burden to establish the statute is unconstitutional. See Gutierrez, 111 S.W.3d at 66.

“To sustain a facial challenge, the challenging party must establish that the statute, by its terms, always operates unconstitutionally.” Barshop, 925 S.W.2d at 627. In other words, the challenger must show the statute, on its face, always operates unconstitutionally. City of Corpus Christi v. Pub. Util. Comm’n, 51 S.W.3d 231, 240-41 (Tex.2001) (citing Barshop, 925 S.W.2d at 627).

To sustain an “as applied” challenge, the party must show that the statute is unconstitutional when applied to that particular person or set of facts. Tex. Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d 504, 518 n. 16 (Tex.1995). In an “as applied” challenge, the appellant is only required to demonstrate the statute operates unconstitutionally when applied to the appellant’s particular circumstances. Id.; In re N.C.M., 271 S.W.3d 327, 328-29 (Tex.App.-San Antonio 2008, no pet.).

The Fourteenth Amendment of the United States Constitution guards against deprivation of life, liberty, or property by the State without due process of law. U.S. Const, amend. XIV. Similarly, Article I, Section 19 of the Texas Constitution requires due course of law. Tex. Const, art. I, § 19; Perry v. Del Rio, 67 S.W.3d 85, 92 (Tex.2001). The phrase “due process,” although incapable of precise definition, expresses the requirement of fundamental fairness. In the Interest of B.L.D., 113 S.W.3d at 352. In determining what process is due or constitutionally required in a particular proceeding, we must consider three factors:

(1) the private interest affected by the proceeding or official action;
(2) the countervailing governmental interest supporting the use of the challenged proceeding; and
(3) the risk of an erroneous deprivation of that private interest due to the procedures used.

Id. (citing Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976)). Therefore, we examine these three factors to determine whether the limitations on standing set forth in section 102.006 are constitutional.

A. Private Interest

Looking first at the private interest in question, the United States Supreme Court has long recognized a fundamental liberty interest in parent-child relationships. Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). In Moore v. City of E. Cleveland, 431 U.S. 494, 504-505, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977), the Supreme Court extended the liberty interest to traditional relatives, including uncles, aunts, cousins, and grandparents under certain circumstances. In this case, the trial court did not make any determination regarding the existence or extent of the Appellants’ private interest. Without making that determination, for purposes of this opinion, we will assume that the Appellants have some private, liberty interest in their association with the children.

B. Countervailing Government Interest

The challenged procedure is the application of standing requirements that bar the Appellants from adopting the children. The governmental interest is the State’s interest in promoting the welfare of children and ensuring that “children’s lives are not held in limbo while judicial processes crawl forward [.]” In re B.L.D., 113 S.W.3d at 353. The goal of establishing a stable, permanent home for a child is a compelling state interest. In re C.E.K., 214 S.W.3d 492, 498 (Tex.App.-Dallas 2006, no pet.).

C. Risk of Erroneous Deprivation of Private Interest

Finally, we assess the risk of an erroneous deprivation of the Appellants’ private interest due to the procedures set forth in section 102.006. Section 102.006 requires a child’s family member or relative by blood to file an original petition to adopt no “later than the 90th day after the date the parent-child relationship between the child and the parent is terminated.” See Tex. Fam.Code Ann. § 102.006. By imposing a 90-day deadline in which a child’s family member or relative by blood must file a lawsuit in order to protect his or her private interest in their relationship with the child (assuming one exists), section 102.006 does create some risk that the private interest could be erroneously deprived.

Balancing these three factors in our consideration of Appellants’ facial challenge, we note that section 102.006 is not an absolute bar to a relative seeking to adopt a child related by blood. Id. If a family member or relative by blood files the original suit to adopt within ninety-days, he or she will have standing. Thus, section 102.006 would not always operate unconstitutionally because in some cases the 90-day deadline would be met. Moreover, imposing the 90-day deadline furthers the compelling governmental interest of providing stability for the child. Accordingly, we hold Appellants’ facial challenge to section 102.006 is without merit.

Turning to Appellants’ “as applied” challenge, Appellants claim the 90-day deadline operates unconstitutionally in their particular circumstances because they were not given specific notice by the Department that they had ninety days to file their original suit to adopt after the parental rights of the children’s parents were terminated. The inherent problem in Appellants’ argument, however, is that section 102.006 is published law. Tex. Fam. Code Ann. § 102.006. “The rule is too elementary to require the citation of authority that all persons are conclusively presumed to know the law.” E.H. Stafford Mfg. Co. v. Wichita Sch. Supply Co., 118 Tex. 650, 655, 23 S.W.2d 695, 697 (1930); see also Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 n. 3 (Tex.1990). In this case, Appellants had notice that the children were removed and an opportunity to be heard regarding their removal. In order to satisfy due process, the Department was not, however, required to advise Appellants regarding the applicable law by providing specific notice of the 90-day deadline. Therefore, Appellants’ “as applied” challenge to the constitutionality of section 102.006 fails.

Conclusion

Because neither section 102.005 or 102.006 confer standing on either the aunt or the grandmother, the Appellants do not have standing to bring the petition for adoption or managing conservatorship. Equity cannot provide standing where none exists despite the difficult circumstances in this case. Additionally, the Appellants have failed to show that section 102.006 is unconstitutional, either facially or as applied. Accordingly, we affirm the judgment of the trial court.

Concurring opinion by: SANDEE BRYAN MARION, Justice.

SANDEE BRYAN MARION, Justice,

concurring.

I concur in the judgment; however, I write separately to urge the Legislature to amend the Family Code so as to avoid the inequitable result reached in this case.

Chapter 102 of the Texas Family Code sets forth the provisions governing the filing of a suit affecting the parent-child relationship. Section 102.005 lists the individuals who have standing to file a suit for adoption. See Tex. Fam.Code Ann. § 102.005 (Vernon 2009). Section 102.006, on the other hand, lists the individuals who lack standing to file such a suit, including “a family member or relative ... of ... a former parent whose parent-child relationship has been terminated.... ” Id. § 102.006(a)(3). However, section 102.006 also provides an exception to this exclusion, which as applicable here, is “an aunt who is a sister of a parent of the child.Id. § 102.006(c). To establish her standing to file a suit affecting the parent-child relationship, the aunt must satisfy one of three requirements; she (1) has a continuing right to possession of or access to the children under an existing court order; (2) has the consent of the children’s managing conservator, guardian, or legal custodian to bring the suit; or (3) files an original suit “not later than the 90th day after the date the parent-child relationship between the child and the parent is terminated in a suit filed by the Department of Family and Protective Services requesting the termination of the parent-child relationship.” Id. § 102.006(b), (c).

Chapter 162 of the Texas Family Code sets forth the provisions specifically governing the adoption of a child, including a requirement that, “[ujnless the managing conservator is the petitioner, the written consent of a managing conservator to the adoption must be filed.” Id. § 162.010(a). However, section 162.010 allows the court to “waive the requirement of consent by the managing conservator if the court finds that the consent is being refused or has been revoked without good cause.” Id. Unlike section 162.010(a), section 102.006(b) does not include the same good cause component. Although I must agree with the majority’s conclusion that there is no statutory basis to import the good cause requirement of section 162.010(a) into section 102.006(b), I believe the State’s interest in keeping families together is best served by amending section 102.006(b) to include such a requirement.

The children at issue in this case lived with their aunt for two years until they were removed by the Department based upon unsubstantiated allegations of abuse. After determining the abuse allegations were unsubstantiated, the Department allowed the aunt to visit the children, including unsupervised overnight visits. The aunt believed, based at least in part upon the Department’s own actions, that she would be allowed to adopt the children. However, once she moved forward with her attempt to adopt the children, the Department filed a motion to dismiss based on lack of standing despite her substantial past contact with the children. See id. § 102.005(5) (allowing “another adult whom the court determines to have had substantial past contact with the child sufficient to warrant standing” to file an original suit requesting adoption). Because ninety-days had passed since the termination of the parent-child relationship, the Department could refuse consent for any reason or for no reason at all. And, because section 102.006(b) does not include a good cause component, the trial court is prevented from hearing evidence on the issue of consent. I do not believe the Legislature intended to give the Department such unchecked authority; therefore, I ask the Legislature to amend section 102.006 to allow the trial court to waive the requirement of consent by the Department if the court finds that the consent is being refused or has been revoked without good cause.

      . The grandmother also had substantial past contact with the children, but her Petition for Intervention was also filed more than ninety days after the biological parents’ rights were terminated.

      . Section 102.006(c) limits the standing of a family member to seek adoption to within ninety days after the date the parent-child relationship between the child and the biological parents is terminated. See Tex.. Fam. Code Ann. § 102.006(c) ("The limitations on filing suit imposed by this section do not apply to ... an aunt who is a sister of a parent of the child ... [who] files an original suit or a suit for modification requesting managing conservatorship of the child not later than the 90th day after the date the parent-child relationship between the child and the parent is terminated.”).

      . We note the Department claimed the Appellants waived their issue regarding equitable estoppel in the trial court and the appellate court due to inadequate briefing. The record before the trial court and the Appellants’ briefing however, clearly raises the issue before us. Tex.R.App. P. 33.1, 38.1.

      . See Tex. Fam.Code Ann. § 162.010 ("The court may waive the requirement of consent by the managing conservator if the court finds that the consent is being refused or has been revoked without good cause.”).

      . We respond briefly to the concurring opinion. This is not the first case in this context in which an inequitable result has evoked concerned criticism by members of this court. See, e.g., In re S.L.M., No. 04-07-00566-CV, 2008 WL 2434160, at *2 n. 2 (Tex.App.-San Antonio June 18, 2008, pet. denied) (citing concerns with legislation that extends standing only to siblings at least eighteen years of age) (mem.op.); In re H.G., 267 S.W.3d 120, 126-27 (Tex.App.-San Antonio 2008, pét. denied) (Lopez, C.J., dissenting) (arguing in favor of applying equitable estoppel to prevent party who engaged in misrepresentations from depriving grandparents of access to grandchild); In re Pensom, 126 S.W.3d 251, 257 (Tex.App.-San Antonio 2003, orig. proceeding) (expressing regret where personal animosity of parties serves to deprive children of relationship with grandparents especially where grandmother serves as emotional link between children and recently deceased mother). For this reason, we agree with the concurring opinion that the Legislature should focus attention on the potential need for statutory changes.

      . We note that the only constitutional challenge raised by Appellants is a due process challenge.

      . Although the result in this case may seem harsh, we are not at liberty to impose upon the Department a requirement to provide notice of statutory time periods to family members.


author: WILLIAM J. BOYCE, Justice.

text:
    Andrew Fares KFOURI, Appellant, v. The STATE of Texas, Appellee.
    No. 14-08-00984-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    March 9, 2010.
    Rehearing En Banc Overruled June 10, 2010.

      Sam Adamo, Peyton Peebles III, Houston, for appellant.
    David Christopher Newell, Houston, for the appellee.
    Panel consists of Justices FROST, BOYCE, and SULLIVAN.
   OPINION

WILLIAM J. BOYCE, Justice.

Appellant Andrew Fares Kfouri challenges the denial of his motion to quash an indictment. After the trial court denied appellant’s motion, appellant pleaded “no contest” and the trial court assessed punishment as confinement for five years. We affirm.

Background

Appellant was indicted under Texas Transportation Code section 545.420 for the offense of causing the death of a person by intentionally and knowingly participating in a drag race on July 12, 2007. The indictment alleges as follows:

... Andrew Fares Kfouri hereafter styled the Defendant, heretofore on or about June 18, 2007, did then and there unlawfully while operating a motor vehicle on a highway, intentionally and 'knowingly participate in a drag race, to — wit, the operation- of two or more vehicles from a point side by side at accelerating speeds in a competitive attempt to outdistance each other, and as a result, caused the death of Daniel Reiter hereafter called the Complainant, by operating his motor vehicle at an excessive speed and by failing to maintain a single lane of traffic thereby striking the vehicle he was racing against which caused the vehicle to strike a vehicle occupied by the Complainant.

Appellant filed a Motion to Quash Indictment on October 2, 2008 alleging that section 545.420 is unconstitutionally vague. The trial court orally denied appellant’s motion in a hearing on October 8, 2008. Appellant subsequently pleaded “no contest” to the indictment and the trial court assessed punishment as confinement for five years. Appellant appeals the trial court’s denial of his motion to quash.

Analysis

We review the trial court’s denial of a motion to quash de novo. Lawrence v. State, 240 S.W.3d 912, 915 (Tex.Crim.App.2007); State v. Moff, 154 S.W.3d 599, 601 (Tex.Crim.App.2004). A defendant must be given notice before trial of the “nature and cause” of the accusation against him. See U.S. CONST, amend. VI; TEX. CONST, art. I, § 19. The notice must be given with sufficient clarity and detail to enable the defendant to anticipate the State’s evidence and prepare a proper defense to it. See U.S. CONST, amend. VI; TEX. CONST, art. I, § 19; Garcia v. State, 981 S.W.2d 683, 685 (Tex.Crim.App.1998) (en banc).

An indictment must allege all the facts and circumstances necessary to establish all material elements of the offense charged in plain and intelligible language. Garcia, 981 S.W.2d at 685; Bynum v. State, 767 S.W.2d 769, 779 (Tex.Crim.App.1989) (en banc). An indictment must allege on its face facts necessary to (1) show that an offense was committed, (2) bar a subsequent prosecution for the same offense, and (3) give defendant notice of precisely what offense he is charged with committing. Terry v. State, 471 S.W.2d 848, 852 (Tex.Crim.App.1971). An indictment tracking the statutory language will satisfy constitutional and statutory requirements; the State need not allege facts that are merely evidentiary in nature. State v. Mays, 967 S.W.2d 404, 406 (Tex.Crim.App.1998) (en banc); Moreno v. State, 721 S.W.2d 295, 300 (Tex.Crim.App.1986) (en banc).

An individual commits an offense if he “participate^] in any manner in ... a drag race or acceleration contest[.]” Tex. Transp. Code Ann. § 545.420(a)(3) (Vernon Supp.2009). “Drag race” is defined as “the operation of ... two or more vehicles from a point side by side at accelerating speeds in a competitive attempt to outdistance each other[.]” Id. § 545.420(b)(1)(A). If a person suffers serious bodily injury or death as a result of an individual’s participation in a drag race, the offense is a second degree felony. Id. § 545.420(h).

Appellant challenges the indictment on grounds that section 545.420 violates due process of law under the United States Constitution and due course of law under the Texas Constitution because it is unconstitutionally vague.

A statute is void for vagueness if it (1) fails to give a person of ordinary intelligence fair notice of the conduct prohibited, or (2) is so indefinite that it encourages arbitrary and discriminatory enforcement. Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983); Clark v. State, 665 S.W.2d 476, 482 (Tex.Crim.App.1984) (en banc). All penal laws must provide fair notice to a person of ordinary intelligence before making their activity criminal. State v. Fry, 867 S.W.2d 398, 401 (Tex.App.-Houston [14th Dist.] 1993, no pet.). A criminal statute need not be mathematically precise; it need only give fair warning in light of common understanding and practices. Id. A statute is unconstitutionally vague only when no core of prohibited activity is defined. Id. A statute also must be sufficiently definite to avoid the possibility of arbitrary and erratic arrests and convictions. Id.

In determining whether a statute is unconstitutionally vague, we interpret the statute in accordance with the plain meaning of its language unless the language is ambiguous or the plain meaning leads to an absurd result. Sanchez v. State, 995 S.W.2d 677, 683 (Tex.Crim.App.1999). “Words and phrases shall be read in context and construed according to the rules of grammar and usage.” Tex. Gov’t Code Ann. § 311.011(a) (Vernon 2005); see Tex. Penal Code Ann. § 1.05(b) (Vernon 2010) (making section 311.011 applicable to the Texas Penal Code). We presume that a statute is valid and that the legislature did not act arbitrarily and unreasonably in enacting it. Rodriguez v. State, 93 S.W.3d 60, 69 (Tex.Crim.App.2002). If a statute can be construed in two different ways, one of which sustains its validity, we apply the interpretation that sustains its validity. State v. Carmaco, 203 S.W.3d 596, 599 (Tex.App.-Houston [14th Dist.] 2006, no pet.). The burden rests upon the person who challenges a statute to establish its unconstitutionality. Rodriguez, 93 S.W.3d at 69. We must uphold a statute if we can determine a reasonable construction which will render it constitutional. Ely v. State, 582 S.W.2d 416, 419 (Tex.Crim.App. [Panel Op.] 1979); Duncantell v. State, 230 S.W.3d 835, 843 (Tex.App.-Houston [14th Dist.] 2007, pet. ref d).

When a vagueness challenge involves First Amendment concerns, the statute may be held facially invalid even though it may not be unconstitutional as applied to the appellant’s conduct. Long v. State, 931 S.W.2d 285, 288 (Tex.Crim. App.1996) (en banc); Coronado v. State, 148 S.W.3d 607, 608 (Tex.App.-Houston [14th Dist.] 2004, no pet.). But when (as here) no First Amendment rights are involved, we need only examine the statute to determine whether it is impermissibly vague as applied to the appellant’s specific conduct. Bynum, 767 S.W.2d at 773-74; Coronado, 148 S.W.3d at 608. Appellant does not argue that this case involves First Amendment concerns. Accordingly, appellant bears the burden to establish that section 545.420 is unconstitutional as applied to him in this case. See Bynum, 767 S.W.2d at 774; Coronado, 148 S.W.3d at 608. It is not enough for appellant to contend that section 545.420 might be unconstitutional as applied to others. See Bynum, 767 S.W.2d at 774; Coronado, 148 S.W.3d at 608.

Appellant argues that section 545.420 does not provide adequate notice of the prohibited conduct because it is unclear (1) “which individuals are subject to prosecution under the statute;” (2) “whether the application [of the statute] is restricted to motor vehicles or to any type of vehicle;” and (8) “on which traffic areas it is intended to apply.” Appellant also argues that section 545.420 is unconstitutionally vague because it is so indefinite that it gives law enforcement personnel unfettered discretion to apply the statute.

Appellant first argues that section 545.420is unclear because it could apply to “mere spectators.” The indictment specifically alleges that appellant was operating a motor vehicle while participating in a drag race. Section 545.420 clearly prohibits an individual from operating a motor vehicle in a drag race. Whether section 545.420(a)(1) extends to someone who is a “mere spectator” has no bearing on the validity of the indictment at issue. See Bynum, 767 S.W.2d at 774; Coronado, 148 S.W.3d at 608.

Appellant next argues that section 545.420is unclear because it could apply “to motor vehicles or to any type of vehicle.” The indictment alleges that appellant was “operating a motor vehicle.” Section 545.420 applies to “vehicles.” See Tex. Transp. Code Ann. § 545.420. “Vehicle” is defined as “a device that can be used to transport or draw persons or property on a highway.” Id. § 541.201(23) (Vernon Supp.2009). “Motor vehicle” is defined as “a self-propelled vehicle or a vehicle that is propelled by electric power from overhead trolley wires.” Id. § 541.201(11). A “motor vehicle” is clearly a vehicle under the transportation code. See id. § 541.201(11), (23). Whether section 545.420 applies to any other type of vehicle has no bearing on the validity of the indictment at issue. See Bynum, 767 S.W.2d at 774; Coronado, 148 S.W.3d at 608.

Appellant also argues that section 545.420is unclear because it could apply to all “traffic areas” including sidewalks, alleys, and shoulders. The indictment alleges that appellant was drag racing on a “highway.” Section 545.420 is entitled “Racing on Highway.” Tex. Transp. Code Ann. § 545.420. “Highway” is defined in the transportation code as “the width between the boundary lines of a publically maintained way any part of which is open to the public for vehicular travel.” Id. § 541.302(5) (Vernon 1999). “Highway” is further defined to consist of the traffic areas defined as “roadways” and “shoulders.” Id. § 541.302(11), (15).[] Section 545.420clearly applies to “highways.” Whether section 545.420 applies to any other traffic area has no bearing on the validity of the indictment at issue. See Bynum, 767 S.W.2d at 774; Coronado, 148 S.W.3d at 608.

Lastly, appellant argues that section 545.420does not establish a standard for law enforcement personnel to employ when determining whether two cars are in a “competitive attempt to outdistance each other.” Section 545.420 adequately details the prohibited conduct to the extent that enforcement of the statute is not relegated to the subjective interpretation of law enforcement personnel on the scene. The language of section 545.420 provides sufficient guidance to law enforcement personnel so that it is not so indefinite that it encourages arbitrary and discriminatory enforcement. See Bynum, 767 S.W.2d at 775; Duncantell, 230 S.W.3d at 843.

We conclude that section 545.420 is not unconstitutionally vague as applied to appellant in this case. We overrule appellant’s sole issue.

Conclusion

We affirm the trial court’s judgment.

      . "Roadway” is defined as "the portion of a highway, other than the berm or shoulder, that is improved, designed, or ordinarily used for vehicular travel. If a highway includes at least two separate roadways, the term applies to each roadway separately.” Tex. Transp. Code Ann. § 541.302(11).
      “Shoulder” is defined as "the portion of a highway that is: (A) adjacent to the roadway; (B) designed or ordinarily used for parking; (C) distinguished from the roadway by different design, construction, or marking; and (D) not intended for normal vehicular travel.” Id. § 541.302(15).