author: CHARLES KREGER, Justice. DAVID GAULTNEY, Justice,

text:
    Shannon Lorene COSTILOW a/k/a Shannon Lorrine Costilow a/k/a Angel Elmore a/li/a Shannon Hebert, Appellant, v. The STATE of Texas, Appellee.
    Nos. 09-08-00559-CR, 09-08-00560-CR, 09-08-00561-CR.
    Court of Appeals of Texas, Beaumont.
    Submitted May 10, 2010.
    Decided Aug. 4, 2010.

      C. Haden Cribbs, Jr., Beaumont, for appellant.
    Tom Maness, Crim. Dist. Atty., Ann Manes, Asst. Crim. Dist. Atty., Beaumont, for state.
    Before McKEITHEN, C.J., GAULTNEY and KREGER, JJ.
   OPINION

CHARLES KREGER, Justice.

Appellant, Shannon Lorene Costilow, appeals her convictions for the felony offense of forgery, and two separate offenses of possession of a controlled substance. On appeal, Costilow argues that the trial court erred by improperly intruding into the plea bargain process and by refusing to allow her to withdraw her guilty pleas. We hold that the trial court did not improperly intrude into the plea bargaining process. We further hold that the trial court did not err in refusing to allow Costi-low to withdraw her guilty pleas. Finally, considering without finding the trial court erred in refusing to allow Costilow to withdraw her guilty pleas, the doctrine of invited error estops Costilow from asserting this complaint on appeal.

Costilow pled guilty to three offenses pursuant to a plea agreement in which the State consented and the trial court assessed punishment, as reflected in the modified plea agreement. Therefore, Costilow has no right to appeal under Rule 25.2(a)(2) of the Texas Rules of Appellate Procedure and these appeals are dismissed. See Tex.R.App. P. 25.2(a)(2).

Background

Costilow’s trial counsel began the October 2008 plea hearing by requesting that the trial court reset the sentencing hearing. The trial court then asked Costilow’s counsel for the basis of his request, to which counsel responded:

I want to give her 30 days to come back and get her affairs in order before she goes in, if that’s all right, with the understanding if she doesn’t — if she gets another case or gets in trouble, then she could be exposed to the full range of punishment.

The trial court then asked the prosecutor if she had any objections to defendant’s request, and the prosecutor stated she did not. Thereafter, Costilow entered a plea of guilty in each case pursuant to the modified plea bargain agreement. The trial court admonished Costilow on the punishment range for her offenses and explained that her failure to uphold her obligations under the modified plea agreement would allow him to reject the terms of her original plea agreement and subject her to the full range of punishment. The trial court further confirmed that Costilow understood her obligations under this agreement included that she was not to break the law or get arrested during the thirty-day period. The trial court accepted the modified plea bargain agreement and reset the cases for sentencing in thirty days.

A week after Costilow entered her guilty pleas, she was arrested and charged with forgery and evading arrest or detention through the use of a vehicle. Despite her earlier agreement and in view of these arrests, Costilow asked the trial court at the November 2008 sentencing hearing to allow her to withdraw her guilty pleas. The trial court found Costilow had violated the terms of the modified plea agreement, and denied her request to withdraw her guilty pleas as provided under the modified agreement — thereby subjecting her to the full range of punishment for her offenses.

Applicable Law and Analysis

Judicial Function in Plea Bargaining Process

A plea bargain is a contract between the State and the defendant. Moore v. State, 295 S.W.3d 329, 331 (Tex.Crim.App.2009); Papillion v. State, 908 S.W.2d 621, 624 (Tex.App.-Beaumont 1995, no pet.). When the State and the defendant knowingly and voluntarily enter into a plea bargain, they are jointly bound by the terms of that agreement once it is accepted by the trial court. Moore v. State, 295 S.W.3d at 331. The appellate courts look to the written agreement, as well as the formal record at the plea hearing, to determine the terms of the plea agreement. See Ex parte Moussazadeh, 64 S.W.3d 404, 411-12 (Tex.Crim.App.2001). “[Ojnly the state and the defendant may alter the terms of the agreement[.]” Moore v. State, 295 S.W.3d at 332.

The role of the trial judge is to follow or reject the agreement, not to modify its terms. Id.; Tex.Code CRim. Proc. Ann. art. 26.13(a)(2) (Vernon Supp.2009). If the trial court rejects the plea agreement, “the defendant shall be permitted to withdraw his plea of guilty or nolo conten-dere.” Tex.Code CRim. Proc. Ann. art. 26.13(a)(2). A trial court exceeds its authority when it inserts additional, non-negotiated terms into a negotiated plea bargain agreement between the State and the defendant, and then makes acceptance or rejection of the plea bargain contingent on whether or not defendant complies with the additional, non-negotiated terms. Papillion, 908 S.W.2d at 624; see also Moore v. State, 295 S.W.3d at 332.

Appellant relies heavily on the Court of Criminal Appeals’ decision in Moore v. State. Therein defendant, Jonathan Moore, complained that the trial court erred in improperly intruding into the plea bargaining process. 295 S.W.2d at 332-33. The Court of Criminal Appeals found that the defendant failed to preserve error by not raising objections in the trial court; consequently, the Court did not decide whether the trial court’s actions improperly intruded into the plea bargain process. Id. While the opinion does not reach the trial court’s actions, it does provide useful analysis for our review of this case. The defendant entered into a plea agreement with the State. Id. at 331. During the plea hearing, the trial court asked if sentencing was to take place at a later date. Id. The State indicated that a continuance was not part of the plea bargain, but that the State had no objection if the defendant and the court reached an agreement on the issue. Id. The trial court offered to postpone the sentencing hearing, “with the condition that either [defendant] appeared for sentencing or his guilty plea would be converted to an open plea.” Id. The defendant agreed to the additional terms, the court approved the plea bargain with these additions, and the defendant entered a plea of guilty. Id. Thereafter, the defendant failed to appear for sentencing and the trial court sentenced the defendant as if he had made an open plea. Id.

While Costilow shares some similarities with Jonathan Moore, the cases are distinguishable. Unlike Moore, Costilow requested the changes to the plea agreement. In Moore, the trial court initiated the changes to the agreement and entered into the plea bargaining process. The trial judge asked about a continuance of the sentencing hearing, the trial court reached an agreement with the defendant, and the trial court suggested the additional conditions. Here, while Costilow argues the trial court added conditions to her plea agreement with the State, the record does not support this claim; rather, the record reflects that Costilow’s trial counsel requested these modifications to the plea agreement in order to obtain a thirty-day reset for sentencing. Costilow, not the trial court, requested a modification. The trial judge was silent on the request and modifications until Costilow reached an agreement with the State. Costilow suggested the specific terms of the modification. Unlike the circumstances in Moore, the record is clear that the trial court did not initiate or suggest these modifications. Although the State was expressly left out of the negotiations in Moore, here, the record reflects that the State agreed to modify the plea agreement to include the additional conditions offered by Costilow’s counsel.

The trial court’s mere recitation and explanation to Costilow of the new conditions, which her attorney proposed, is not tantamount to the trial court’s improper intrusion into the plea bargain process. The appellate record demonstrates that the trial court properly fulfilled its role as a neutral arbiter between Costilow and the State in the plea bargain process.

Appellant’s Right to Withdraw Plea

Costilow further complains that the trial court erred in not allowing her to withdraw her pleas of guilty after the trial court rejected the original plea bargain agreement at the sentencing hearing.

When a plea bargain exists, “the court shall inform the defendant whether it will follow or reject such agreement in open court and before any finding on the plea. Should the court reject any such agreement, the defendant shall be permitted to withdraw his plea of guilty or nolo contendere.” Tex.Code Crim. Proc. Ann. art. 26.13(a)(2); Moore v. State, 295 S.W.3d at 333. “[W]hen the trial court is presented with a plea bargain agreement, it may choose only to enforce the terms of the agreement or to reject the agreement.” Zinn v. State, 35 S.W.3d 283, 287 (Tex.App.-Corpus Christi 2000, pet. ref'd).

In State v. Moore, the Court of Criminal Appeals held that defendant, Joshua Moore, did not have a right to withdraw his guilty plea when the trial court accepted and followed an enforceable plea agreement. State v. Moore, 240 S.W.3d 248, 254-55 (Tex.Crim.App.2007). The State agreed to recommend a punishment of twenty-five years and agreed to a six-week postponement of the sentencing hearing, so that Joshua could prepare for incarceration. Id. at 249. In return, Joshua promised to plead guilty to the charge, appear for his sentencing and refrain from committing any criminal offenses during this six-week period. Id. The agreement further provided that, should Joshua fail to abide by these terms, the State would not recommend punishment; the plea would become an open plea for the trial court to determine the sentence based on the full punishment range, up to life in prison. Id. Joshua breached the terms of the agreement by committing an assault during the six-week period. Id. Pursuant to the plea agreement, the State refrained from making a sentencing recommendation. Id. The Court of Criminal Appeals noted, “[i]t was not the trial judge who imposed these requirements on the appellant; the appellant and the State mutually agreed to these terms.” Id. at 253. The Court further explained:

The record shows that it was the appellant, not the State, who benefitted from the six-week deferment of sentencing. It is only reasonable that the State should obtain something in return, namely, assurances by the appellant that he would appear for his sentencing hearing and that he would not commit a crime during the interim. Both of these assurances benefitted the State and were intelligently negotiated. In order to assure that the appellant would abide by these terms, the State and the appellant expressly agreed that if the appellant should fail to appear at the sentencing hearing or committed a criminal offense, then the State would be relieved of its duty to recommend a twenty-five-year sentence. It was not contemplated, however, that the appellant should then be relieved of his ultimate agreed-upon obligation to enter a guilty plea. Instead, the agreement itself provided for an appropriate remedy. The parties used the term “open plea” at the plea bargain hearing, essentially acknowledging that the guilty plea would become open as to sentencing implications.

Id. at 253-54. The Court of Criminal Appeals found the parties entered into a valid, enforceable plea agreement, the terms of which allowed the trial court to refuse Joshua the right to withdraw his guilty plea. Id. at 254-55.

Costilow argues that the trial court erred by not allowing her to withdraw her plea after the trial court rejected her plea bargain agreement. Taken as a whole, the record reflects that while the trial court rejected the original plea agreement, he did not reject the modified plea agreement. The modified agreement in this case is similar to the agreement in Joshua Moore’s case. State v. Moore, 240 S.W.3d at 249. As in this case, in State v. Moore, the requirements of allowing the reprieve were not imposed by the trial judge, but rather agreed to by the parties. Costilow, not the State, benefited from the thirty-day deferment of sentencing. The agreement did not contemplate that Costilow would be relieved of her ultimate agreed-upon obligation to enter a guilty plea should she fail to uphold her promises. Rather, Costilow’s agreement provided the State with an appropriate remedy should she fail to uphold her agreement — an open plea. While the parties did not use the term “open plea” at the hearing, they essentially acknowledged that the guilty plea would become open as to sentencing implications.

By refusing to allow Costilow to withdraw her guilty pleas, the trial court was enforcing the terms of the modified plea agreement. The trial court found that Costilow failed to uphold her obligations under the modified plea agreement, thereby subjecting her to the full range of punishment allowed.

Finally, while considering but without finding the trial court erred in refusing to allow Costilow to withdraw her guilty pleas, Costilow is precluded from raising any such error under the invited error doctrine. It is well established law in Texas that “[i]f a party affirmatively seeks action by the trial court, that party cannot later contend that action was error.” Prystash v. State, 8 S.W.3d 522, 531 (Tex.Crim.App.1999).

The doctrine of invited error applies “ ‘[w]here a party by a request for a ruling leads the court into error[.] [H]e should be precluded from claiming a reversal of the judgment by reason of the error so committed. To hold otherwise would be to permit him to take advantage of his own wrong.’ ” Prystash, 3 S.W.3d at 531 (quoting Carbough v. State, 49 Tex.Crim. 452, 455, 93 S.W. 738, 739 (1906)). “Just as the law of entrapment estops the State from making an offense of conduct that it induced, the law of invited error estops a party from making an appellate error of án action it induced.” Id.

Costilow requested the terms of the modified plea bargain agreement with the State. She received the benefit of her request for thirty days to get her affairs in order. Only after the agreement was no longer beneficial to her, did she complain of the very terms that she requested be made a part of her agreement with the State. At the sentencing hearing, Costi-low conceded that she understood the terms of the modified agreement she entered into with the State. Costilow failed to comply with the terms she requested and received the punishment she understood was possible when she entered into the modified agreement. See State v. Moore, 240 S.W.3d at 250-51 (recognizing that the State and the defendant are given “great latitude” in crafting agreements). Consequently, while considering but without finding error, we hold that the doctrine of invited error estops Costilow from complaining on appeal about the trial court’s enforcement of the modified plea bargain agreement — thereby precluding Costilow from withdrawing her guilty pleas.

Because Costilow pled guilty to three offenses pursuant to a modified plea agreement between the State and Costilow, and because the trial court assessed punishment as reflected in the modified plea agreement, Costilow has no right to appeal under Rule 25.2(a)(2) of the Texas Rules of Appellate Procedure. Tex.R.App. P. 25.2(a)(2).

APPEALS DISMISSED.

DAVID GAULTNEY, Justice,

dissenting.

I respectfully dissent. This Court has jurisdiction over the appeals. Costilow’s request for a delay in sentencing did not “invite error,” and she is not estopped from raising the issue she raises in this appeal.

Under Moore v. State, “[a] trial court may conditionally agree to follow a plea-bargain agreement, but only by delaying the unconditional acceptance or rejection of the agreement until after the condition of acceptance has been fulfilled.” Moore v. State, 295 S.W.3d 329, 332 (Tex.Crim.App.2009). That is what happened here. Subject to a condition, the trial court agreed to follow the plea bargain agreement between the State and Costilow. That condition was not part of Costilow’s plea agreement with the State. Costilow requested a delay in sentencing from the trial judge so that she could get her affairs in order. The prosecutor did not offer the agreement, but only indicated she did not object to the arrangement between the trial court and Costilow. “Only the state may offer or withdraw a plea bargain.” Moore, 295 S.W.3d at 333.

There was no new or modified plea agreement between the State and Costi-low. Instead, the trial court accepted the plea agreement in each case and conditioned (at Costilow’s request) the acceptance upon Costilow’s not “get[ting] another case or get[ting] in trouble” during the thirty-day delay in sentencing. During the sentencing hearing, defense counsel characterized the condition as “the agreement [Costilow] had with the Court not to get in trouble[,]” rather than as an agreement with the State. Because Costilow did not fulfill the condition, the trial court stated at the sentencing hearing, “[T]he plea bargains are rejected on that basis; and I find her guilty in [numbers] 1704, 1703, and 00937.” Having rejected the plea agreement between Costilow and the State, the trial court erred in refusing to permit Costilow to withdraw her guilty pleas. The judgment should be reversed and the case remanded to the trial court.

      . Although the trial court mistakenly entered a certification of the defendant's right to appeal in which the court certified that this is not a plea bargain case and the defendant has the right of appeal, we have no jurisdiction over the appeal. See Tex.R.App. P. 25.2(a)(2); see also Shankle v. State, 119 S.W.3d 808, 813 (Tex.Crim.App.2003) (holding that defendant had no right of appeal where punishment assessed did not exceed punishment recommended by prosecutor and agreed to by defendant). The trial court's erroneous certification does not constitute permission to appeal. See Waters v. State, 124 S.W.3d 825, 826-27 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd).

      . Moore v. State and State v. Moore are separate but related cases, wherein the defendants are brothers who were each indicted for the same crime, manufacturing methamphetamine, and both pled guilty pursuant to negotiated plea agreements with the State. See Moore v. State, 295 S.W.3d at 329; State v. Moore, 240 S.W.3d at 248.


source: Caselaw Access Project

author: HOLLIS HORTON, Justice.

license: Public Domain

text:
    Mylus James WALKER, Jr. and Dinkins Kelly Lennox Lamb & Walker, LLP, Appellants, v. Dawn Johnson WHATLEY, Individually and as the Executrix of the Estate of Perry Lee Whatley, and Michael Easton, Appellees.
    No. 09-10-00285-CV.
    Court of Appeals of Texas, Beaumont.
    Submitted July 22, 2010.
    Decided Aug. 5, 2010.

      Kevin F. Risley, Thompson, Coe, Cousins & Irons, L.L.P., Houston, for appellants.
    Brad Beers, L.T. “Butch” Bradt, Gary M. Riebschlager, Houston, Susan C. Norman, Richmond, for appellees.
    Before McKEITHEN, C.J., KREGER and HORTON, JJ.
   OPINION

HOLLIS HORTON, Justice.

Mylus James Walker, Jr. and Dinkins Kelly Lennox Lamb & Walker, LLP (“Dinkins Kelly”), Walker’s law firm, filed a motion for summary judgment in which they claimed they were immune from the claims asserted in this suit. The trial court denied their motion. Walker and Dinkins Kelly then filed an interlocutory appeal, asking that we review the trial court’s ruling.

After the appeal was filed, Dawn Johnson Whatley, Individually and as the Executrix of the Estate of Perry Lee Whatley, Deceased, and Michael Easton filed a motion to dismiss the appeals, contending that at this stage of the proceedings we have no jurisdiction over the appeal. Because we agree that at this stage of the proceeding we lack jurisdiction, we dismiss the appeal for want of jurisdiction.

Background

In 2005, Honorable Mike Wood, acting as Judge of Probate Court No. 2 of Harris County, Texas, appointed Walker as temporary guardian, pending contest, for the person and estate of Perry Lee Whatley. Later, Judge Wood appointed Walker as the permanent guardian of Perry Lee Whatley’s estate. In 2006, the Fourteenth Court of Appeals declared that the trial court’s orders appointing Walker were void due to the existence of a recusal motion still pending against Judge Wood at the time Judge Wood had executed the orders. In re Whatley, No. 14-05-01222-CV, 2006 WL 2948230, **3-4, 2006 Tex.App. LEXIS 8911, **11-13 (Tex.App.Houston [14th Dist.] Oct. 13, 2006, orig. proceeding) (mem. op.). Subsequently, Sun Life Assurance Company of Canada filed suit against Walker, requesting that he return the proceeds from Perry Lee Whatley’s Sun Life annuity contract that Walker had obtained while he had acted as Whatley’s guardian. Whatley and Easton then filed an intervention, and their intervention alleges various claims against Walker, Dinkins Kelly, Judge Wood, and others. Walker and his law firm, Dinkins Kelly, moved for summary judgment and alleged that they were entitled to derived judicial immunity based on Judge Wood’s order that had appointed Walker to serve as ’Whatley’s guardian. The trial court denied their motion.

Jurisdiction

Generally, appellate courts do not have jurisdiction over appeals that arise from a trial court’s ruling to deny a party’s motion for summary judgment. Ackermann v. Vordenbaum, 403 S.W.2d 362, 365 (Tex.1966); Highlands Mgmt. Co. v. First Interstate Bank of Tex., N.A., 956 S.W.2d 749, 752 (Tex.App.-Houston [14th Dist.] 1997, pet. denied). An exception to this general rule exists when trial court’s rulings involve a party who is an officer or employee of the state or a political subdivision of the state. See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(5) (Vernon 2008). Under section 51.014(a)(5) of the Texas Civil Practice and Remedies Code, a person may appeal from an interlocutory order of a district court that “denies a motion for summary judgment that is based on an assertion of immunity by an individual who is an officer or employee of the state or a political subdivision of the state.” Id.

Walker and Dinkins Kelly claim they are entitled to judicial immunity because they acted as Whatley’s guardian based on orders entered by Judge Wood. Walker and Dinkins Kelly argue that under Texas law, “a person acting as guardian under an order of appointment that is later found to be void is entitled to the same protections afforded any guardian appointed under the Texas Probate Code.” The trial court denied Walker and Dinkins Kelly’s motion and they appeal.

After the case was appealed, Whatley and Easton filed a motion to dismiss Walker’s and Dinkins Kelly’s appeal. Their motion argues that the Legislature has not extended a right of interlocutory review through appeal to Walker and Dinkins Kelly because they are not government officials or employees or governmental agencies. Walker admits that he is neither an officer nor an employee of the state or a political subdivision of the state, and Dinkins Kelly acknowledges that it is not a governmental agency. Nevertheless, Walker and Dinkins Kelly assert that this Court has jurisdiction to hear their interlocutory appeals under section 51.014(a)(5) because their claim for immunity is based on judicial immunity that they derived from the acts of Judge Wood. See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(5). Thus, Walker and Dinkins Kelly maintain that a right of interlocutory appeal under section 51.014(a)(5) was intended by the Legislature to extend to persons other than State officials or State employees when the party is entitled to immunity that derives from the immunity of a State official or from that of a State employee. See id.

The Legislature has the right to determine the point at which a matter becomes appealable. See Seale v. McCollum, 116 Tex. 662, 287 S.W. 45, 47 (1926) (concluding that “the principle is fixed that the Legislature has the power to limit the right of appeal”). Generally, interlocutory orders are not appealable in the absence of a statute authorizing an interlocutory appeal. Stary v. DeBord, 967 S.W.2d 352, 352-53 (Tex.1998). The subsections of section 51.014, which authorize certain interlocutory appeals for governmental entities and their employees, are to be strictly construed. Bally Total Fitness Corp. v. Jackson, 58 S.W.3d 352, 355 (Tex.2001) (noting that section 51.014 is a “narrow exception to the general rule that only final judgments and orders are appeal-able”). With respect to section 51.014’s reach, the statute is unambiguous, as it expressly applies only to officers or employees of the state or a political subdivision of the state. We must give effect to the plain meaning of the statute. See Leland v. Brandal, 257 S.W.3d 204, 206 (Tex.2008) (“If the statute’s language is unambiguous, its plain meaning will prevail.”).

Walker and Dinkins Kelly are not officers or employees of the State of Texas. Even if they are later determined to be entitled to immunity based on their claim that they acted pursuant to Judge Wood’s orders, a matter we need not decide, they are not state employees or officials for purposes of an interlocutory appeal under section 51.014(a)(5). Therefore, we have no jurisdiction over their appeal at this stage of the proceedings under section 51.014(a)(5) of the Texas Civil Practice and Remedies Code. See Xeller v. Locke, 37 S.W.3d 95, 97 (Tex.App.-Houston [14th Dist.] 2000, pet. denied); Espinola v. Lotting, 971 S.W.2d 144, 145 (Tex.App.-Waco 1998, no pet.); see also Tex. A & M Univ. v. Koseoglu, 233 S.W.3d 835, 841-43 (Tex.2007) (comparing sections 51.014(a)(5), 51.014(a)(6), and 51.014(a)(8) and stating that “there is no other way to read Section 51.014(a)(5) than to conclude that only an ‘individual who is an officer or employee of the state or a political subdivision of the state’ may appeal an interlocutory order denying a motion for summary judgment”).

We hold that section 51.014(a)(5) does not authorize Walker or Dinkins Kelly’s interlocutory appeal from the trial court’s ruling on their motion for summary judgment. We dismiss Walker and Dinkins Kelly’s appeal for want of jurisdiction.

APPEAL DISMISSED.

      . We have used the spelling of the law firm’s name used in the trial court’s judgment, but the firm’s name is Dinkins Kelly Lenox Lamb & Walker, LLP.


author: STEVE McKEITHEN, Chief Justice.

text:
    In the Matter of J.B.L.
    No. 09-09-00217-CV.
    Court of Appeals of Texas, Beaumont.
    Submitted June 3, 2010.
    Decided Aug. 5, 2010.

      Jay M. Wright, Conroe, for appellant.
    David Walker, County Atty., Carolyn Atkinson, Christopher Allen, Asst. County Attys., Conroe, for appellee.
    Before MCKEITHEN, C.J., KREGER and HORTON, JJ.
   OPINION

STEVE McKEITHEN, Chief Justice.

J.B.L. appeals from an order transferring J.B.L. to the Texas Department of Criminal Justice to serve the remainder of his determinate sentence. See Tex. Fam. Code Ann. § 54.11(i)(2) (Vernon Supp. 2009); Tex. Fam.Code Ann. § 56.01(c)(2) (Vernon Supp.2009). J.B.L. challenges both the constitutionality of the determinate sentencing statute and the sufficiency of the evidence supporting the trial court’s findings of fact. We affirm the trial court’s judgment.

Issues one and two posit that the determinate sentencing statute violates the due process requirement that a jury determine any discrete issue of fact that has the effect of increasing the maximum punishment that can be assessed. See Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. The “statutory maximum” for Apprendi purposes “is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.” Blakely v. Washington, 542 U.S. 296, 303-04, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). The relevant inquiry is whether the required finding exposes the defendant to a greater punishment than that authorized by the jury’s verdict. Apprendi, 530 U.S. at 494, 120 S.Ct. 2348.

J.B.L. contends that the Juvenile Justice Code violates the Apprendi standard at two points in a determinate sentencing proceeding: (1) when the grand jury approves the petition for determinate sentencing; and (2) when the trial court determines whether to transfer the juvenile to the adult prison system to complete his sentence. J.B.L. argues that both actions increased his punishment without a jury having determined the issue beyond a reasonable doubt.

A grand jury certified the petition for determinate sentencing filed by the State. See Tex. Fam.Code Ann. § 53.045 (Vernon 2008). J.B.L. argues that Section 53.045 violates the due process requirements established by Apprendi because J.B.L. may lose his liberty and be stigmatized by a conviction as an adult without having a jury determine beyond a reasonable doubt that “this form of penalty should be imposed.” The narrow issue resolved by Apprendi — whether the sentence imposed was permissible given that it was above the maximum for the offense charged by the indictment count in question — concerned sentencing. See Apprendi, 530 U.S. at 474-75, 120 S.Ct. 2348. The grand jury certification functions as an indictment and satisfies the constitutional requirement of an indictment. In re T.D.H., 971 S.W.2d 606, 608-09 (Tex.App.-Dallas 1998, no pet.). The procedure established by Section 53.045 does not violate the due process requirements established by Apprendi because the jury determines the maximum punishment allowed under the charging instrument. See Tex. Fam.Code Ann. § 53.045.

The trial court instructed the jury that “the disposition for Aggravated Robbery, is commitment in the Texas Youth Commission with a possible transfer to the institutional division or the pardons and paroles division of the Texas Department of Criminal Justice for a term of not more than forty (40) years.” The charge questions asked if the jury did “find beyond a reasonable doubt that [J.B.L.] is in need of rehabilitation or the protection of the public or the child requires that disposition be made?” The jury was given the option of answering “Yes” or “No,” and answered ‘Tes.” The jury then found that “[J.B.L.], engaged in delinquent conduct by committing the offense of Aggravated Robbery” and assessed punishment at thirty years. Thus, the jury did determine the maximum punishment for the offense. See Apprendi, 530 U.S. at 494, 120 S.Ct. 2348.

J.B.L. argues that the transfer procedure in Section 54.11 of the Texas Family Code does not comport with due process because the jury was not given the opportunity to determine whether J.B.L. met the criteria for transfer. See Tex. Fam.Code Ann. § 54.11(k). Apprendi prohibits a trial court from an action that has the effect of increasing the punishment imposed over that which the jury authorized with its verdict. Apprendi, 530 U.S. at 494, 120 S.Ct. 2348. Apprendi distinguished state capital sentencing schemes in which a jury verdict finds the defendant guilty of a capital crime and the trial court subsequently determines whether the maximum penalty, rather than a lesser one, should be imposed. Apprendi, 580 U.S. at 496-97, 120 S.Ct. 2348. The transfer procedure found in Section 54.11 of the Texas Family Code allows the trial court to decide whether a lesser sentence than that assessed by the jury ought to be served. See Tex. Fam.Code Ann. § 54.11(k). After being instructed on a possible transfer to the Texas Department of Criminal Justice, the jury authorized a thirty year sentence for J.B.L. At the transfer hearing, the trial court determined whether J.B.L. should be returned to the Texas Youth Commission or be transferred for the completion of the sentence assessed by the jury. Id. J.B.L. was never exposed to a greater punishment than that authorized by the jury’s verdict. Apprendi, 530 U.S. at 494, 120 S.Ct. 2348. We overrule issues one and two.

In issue three, J.B.L. contends the evidence developed in the transfer hearing was factually insufficient to support the findings of fact entered by the court. The findings J.B.L. contends are not supported by sufficient evidence are: (1) a finding that “Juvenile-Respondent did not complete his Minimum Period of Confinement at the Texas Youth Commission[;]” and (2) a finding that “The Texas Youth Commission’s full recommendation was for a transfer of the Juvenile-Respondent to TDCJ-ID.”

J.B.L. argues the first of the two challenged findings is incorrect because the disposition order did not order a minimum period of confinement. The disposition order imposes a determinate sentence of thirty years based upon a jury finding that J.B.L. committed aggravated robbery. The first challenged finding actually relates to Human Resources Code Section 61.081, which prohibits the Texas Youth Commission from releasing under supervision, without approval of the juvenile court, a child who has been committed to the commission under a determinate sentence for conduct constituting a first degree felony. See Tex. Hum. Res.Code Ann. § 61.081(f)(2) (Vernon Supp.2009). In such a case, the commission may not release the child without approval of the juvenile court unless the child has served at least three years of his sentence. Id. J.B.L. has not challenged the finding that he served only twenty-two months of his sentence. Thus, J.B.L.’s argument that the finding is erroneous is not supported by the record.

The trial court also found that the commission’s full recommendation was to transfer J.B.L. to the adult prison system. The commission’s court liaison, Leonard Cucolo, testified that the commission recommended “that [J.B.L.] be transferred to the Institutional Division of the Texas Department of Criminal Justice and not be placed on parole.” Cucolo also testified that he, Diane Gadow, Leslie Blizzard, and Cherie Townsend all recommended transfer. Cherie Townsend is the Executive Commissioner of the Texas Youth Commission. Diane Gadow is the Deputy Commissioner of Treatment and Support. Leslie Blizzard is a psychologist at Crockett State School. Cucolo’s testimony is supported by a document in the commission’s file. The document, titled “Movement from High Restriction,” approved a referral to juvenile court with a recommendation for transfer to the adult prison system. The document is signed by Cuco-lo, Gadow and Townsend. The commission’s file on J.B.L. also contains a “Psychological Assessment — Update” signed by Blizzard and by Traci Kramer-Dudley, the Director of Clinical Services. The updated assessment states that “a transfer to TDCJ-ID is recommended.”

Although the evidence in the record shows that the commission did recommend transfer, J.B.L. argues that the trial court’s finding is “completely adverse to the testimony of the sole witness from the Texas Youth Commission[.]” J.B.L. claims Cucolo testified that J.B.L. did not meet the criteria for transfer to the adult prison system and argues this testimony is significant because it shows that J.B.L. did not qualify for transfer according to the commission’s own standards. The testimony at issue was part of Cucolo’s explanation of the process through which the commission both determines whether a child approaching age nineteen qualifies for release on parole or must be referred to the juvenile court and decides what recommendation the commission should make regarding the transfer to the adult system. Cucolo explained that the commission developed objective criteria to determine whether a child would remain in the Texas Youth Commission. If a child does not meet the criteria for transfer to the adult system, the child would remain in the Texas Youth Commission unless he met the criteria for release.

According to Cucolo, the commission adjusted its policy in response to statutory changes enacted in 2007. In particular, the commission could no longer hold a youthful offender beyond his nineteenth birthday. See Tex. Hum. Res.Code Ann. § 61.084(e) (Vernon Supp.2009). Because a child who would turn nineteen could not remain in the Texas Youth Commission until he turned twenty-one, some youthful offenders could not serve enough of their sentence for the commission to have the statutory authority to release the child to parole without referring the matter to the juvenile court. See Tex. Hum. Res.Code Ann. § 61.081(f). In determining how to proceed, the commission first determines whether the child is eligible for release on parole from the Texas Youth Commission. Because the 2007 statutes apply to J.B.L. and he would turn nineteen before he had served three years of his determinate sentence for aggravated robbery, J.B.L. did not qualify for release to parole from Texas Youth Commission. J.B.L. could not remain in a Texas Youth Commission facility beyond his nineteenth birthday, so the commission formed its recommendation by considering factors that Cucolo testified are very similar to the factors considered by the juvenile court in determining a transfer. See Tex. Fam.Code Ann. § 54.11(k).

In making a determination in a release or transfer hearing, the trial court may consider: (1) “the experiences and character of the person before and after commitment to the youth commission;” (2) “the nature of the penal offense that the person was found to have committed and the manner in which the offense was committed;” (8) “the abilities of the person to contribute to society, the protection of the victim of the offense or any member of the victim’s family;” (4) “the recommendations of the youth commission and prosecuting attorney;” (5) “the best interests of the person;” and (6) “any other factor relevant to the issue to be decided.” Tex. Fam.Code Ann. § 54.11(k). We review the trial court’s decision for abuse of discretion. In re F.D., 245 S.W.3d 110, 113 (Tex.App.Dallas 2008, no pet.).

Cucolo testified that J.B.L. performed well academically while at Texas Youth Commission. J.B.L. was the valedictorian of his G.E.D. class of twenty-six. Regarding the treatment J.B.L. received in Texas Youth Commission, J.B.L. completed the resocialization program and at the time of the hearing was on the Youth Empowerment Stage (‘YES”) of the CoNEXTions program. Although he had attained YES, J.B.L. was “inactive,” which could mean he was not fully meeting the requirements of that stage.

According to Cucolo, J.B.L. had an extensive delinquent history. J.B.L. was first adjudicated for a criminal offense— interference with a police officer — at age fourteen. The following year, J.B.L. was adjudicated for burglary of a habitation. He was later adjudicated for a second burglary of a habitation. While he was on intensive supervision probation, J.B.L. committed the aggravated robbery for which he received a determinate sentence of thirty years. That offense was part of a crime spree that included three armed robberies.

In addition to J.B.L.’s delinquent history, his other risk factors included a pattern of behavior that existed while J.B.L. was in Texas Youth Commission facility. According to Cucolo, J.B.L. “had problems with authority,” that occurred throughout his stay and extended into the period during which the transfer evaluations were being conducted. For instance, J.B.L. would be in undesignated areas without permission, would throw items, would use profanity and speak disrespectfully to the staff, and would refuse to follow instructions. The commission concluded that J.B.L.’s inability to deal with following staff instructions would likely continue in a less restrictive parole setting.

Blizzard conducted two psychological assessments of J.B.L. Blizzard performed the second assessment after she reviewed both the information regarding J.B.L.’s involvement in a carjacking, a home invasion robbery, and a high speed chase, and the information regarding J.B.L.’s recent behavior in the dorm. Although Blizzard’s first assessment concluded that J.B.L. would be a candidate for adult parole, in the updated assessment Blizzard recommended that J.B.L. be returned to court for possible transfer to the prison system. The report states

[J.B.L.] is currently assessed at Stage 4-Yes. However, after reviewing his behavior as indicated on the dorm logs, his overall attitude does not reflect appropriate Stage 4r-Yes values. Though his number of serious incident reports has not increased, his disrespectful attitude towards staff along with his refusal to follow simple commands indicate that [J.B.L.] may have not significantly internalized change. He continues to display behaviors which may lead to high-risk situations once paroled.

In addition, Cucolo suggested that J.B.L.’s lack of success on juvenile probation indicated a risk factor for problems on parole. Cucolo also suggested that J.B.L.’s behavior characteristics, which included being easily led by others and a willingness to participate in activities to gain negative acceptance, might cause J.B.L. to associate with other negative peers.

Cucolo’s testimony did not, as argued by J.B.L. on appeal, establish that J.B.L. did not meet the standard for transfer to the adult prison system. The trial court could consider Cucolo’s testimony and the commission’s file, both of which were admitted without objection, in determining the relevant factors contained in Section 54.11(k). See Tex. Fam.Code Ann. § 54.11(k). The trial court also considered the expert opinion of Kit William Harrison, a forensic psychologist who testified on behalf of J.B.L. Harrison calculated J.B.L.’s risk score to be low, in part because J.B.L. did not have a history of chemical dependency. According to Harrison, J.B.L.’s adolescent criminal spree behavior made J.B.L. less of a risk for re-offending than a person with childhood-onset chronic criminal behavior. J.B.L. has good intellectual functioning and no psychopathology. According to Harrison, J.B.L.’s conduct while in Texas Youth Commission “boils down to ... disruptive behavior.” Harrison diagnosed J.B.L. with adolescent onset conduct disorder, which he claims disappears by early adulthood in one-half of all persons fciven that diagnosis. Although J.B.L.’s 1‘tendency to mouth off’ concerned him, ■Harrison placed J.B.L.’s dynamic risk of l-e-offending at low to moderate.

I J.B.L.’s mother testified that her family ■muid support J.B.L.’s efforts while he is In parole. J.B.L. testified that he realizes Bhat he frightened the woman whom he Bobbed at Wal-Mart, and he knows what Be did was wrong. Being in Texas Youth Hommission taught him the value of family Hid freedom. He learned to weld while in Hexas Youth Commission and believes he Hun become a certified welder. On cross-Hcamination, J.B.L. admitted he had a tat-Ho that was an acronym for a phrase Bnneeted to the Bloods, but J.B.L. denied Hy gang involvement and stated that he Hd seen a lot of people with the same H±oo.

Hln this case, some evidence supports the ^nl court’s decision to transfer J.B.L. to ^|xas Department of Criminal Justice to serve the remainder of his sentence. Although J.B.L. exhibited intelligence and some awareness that his criminal conduct had harmed others, the severity of his conduct, combined with his previous lack of success on probation and his continued defiance and disrespectful attitude towards authority, support the trial court’s decision to transfer J.B.L. See In re F.D., 245 S.W.3d at 113. We overrule issue three and affirm the judgment of the trial court.

AFFIRMED.

      . J.B.L. claims violation of both the state and federal constitutions, but he presents a combined analysis of precedent based entirely on the federal constitution. "Consequently, we need not address J.B.L.’s Texas Constitutional claims.” See Muniz v. State, 851 S.W.2d 238, 251-52 (Tex.Crim.App.1993) (Absent argument and authority supporting, the claim that the state constitution provides greater protection than the federal constitution, the court need not address the state constitutional claims).

      . J.B.L. does not suggest that the jury could not constitutionally assess a thirty year sentence. See generally In re Gault, 387 U.S. 1, 16, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967) (“At common law, children under seven were considered incapable of possessing criminal intent. Beyond that age, they were subjected to arrest, trial, and in theory to punishment like adult offenders.").

      . The trial court made seventeen findings; J.B.L. has challenged only two on appeal. J.B.L. has not challenged on appeal findings that: (1) "Juvenile-Respondent was adjudicated for the offense of aggravated robbery on June 13, 2007 and committed to the Texas Youth Commission on a 30 year determinate sentence[;]” and (2) Juvenile-Respondent has served approximately 22 months of his total 30 year sentence."

      . See Act of May 25, 2007, 80th Leg., R.S., ch. 263, 2007 Tex. Gen. Laws 421 (effective June 7, 2007). J.B.L. was committed to the commission's care on June 13, 2007.


text:
    Hugo FLORES, Appellant, v. The CITY OF LIBERTY, Texas, Liberty Police Department, Allen L. Barnes, William Griffin, Richard Lee Skarpa, Kenneth Taylor, and Gary L. Martin, Appellees.
    No. 09-09-00532-CV.
    Court of Appeals of Texas, Beaumont.
    Submitted May 6, 2010.
    Decided Aug. 5, 2010.

      Scott R. Breitenwischer, Randy A. Canche, Royston, Rayzor, Vickery & Williams, L.L.P., Lloyd E. Kelley, The Law Office of Lloyd Kelley, Houston, Julie Karee Cain, The Law Office of Julie Karee Cain, Liberty, for appellant.
    Larry J. Simmons, Kellie B. Smith, B. Eliot New, Germer Gertz, L.L.P., Beaumont, for appellees.
    Before McKEITHEN, C.J., KREGER and HORTON, JJ.
   OPINION

STEVE McKEITHEN, Chief Justice.

After the termination of his employment as a detective with the Liberty Police Department, Hugo Flores sued the Department, the City of Liberty, city manager Allen L. Barnes, police chief William Griffin, and fellow officers Richard Lee Skar-pa, Kenneth Taylor, and Gary L. Martin. Flores alleged that “he was discriminated against on account of his national origin, Hispanic, and was retaliated against because of his opposition to unlawful employment practices in violation of the Texas Labor Code[.]” Flores also alleged that he “pursued his claim under the Whistle Blower Act and under the Sabine Pilot Common Law Rights.” The trial court granted the defendants’ combined traditional and no-evidence motion for summary judgment on all claims and entered a take nothing judgment. On appeal, Flores raises seven issues. We affirm the judgment of the trial court.

A judgment granting a combined traditional and no-evidence motion is reviewed first under the no-evidence standards of Rule 166a(i). Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex.2004); see also Tex.R. Civ. P. 166a(i). If the non-movant fails to produce more than a scintilla of evidence to support the challenged element of his claim, there is no need to analyze the traditional motion for summary judgment. Ridgway, 135 S.W.3d at 600.

In response to a no-evidence motion for summary judgment, the non-mov-ant must produce summary judgment evidence raising a genuine issue of material fact. Id. On appellate review, we view the evidence in the light most favorable to the non-movant. Id. at 601. “A genuine issue of material fact exists if more than a scintilla of evidence establishing the existence of the challenged element is produced.” Id. at 600. A scintilla of evidence “rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.” Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex.1994). “When the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, is no evidence.” Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983).

Flores contends that the trial court erred in granting summary judgment on his claim of discrimination under the Texas Commission on Human Rights Act (“TCHRA”). See Tex. Lab.Code Ann. § 21.051 (Vernon 2006). TCHRA provides for the state law execution of the policies of Title VII of the Civil Rights Act of 1964 and its subsequent amendments. Tex. Lab.Code Ann. § 21.001(1) (Vernon 2006); 42 U.S.C.A. § 2000e (West 2003). Accordingly, in a discrimination case that has not been fully tried on the merits, “we apply the burden-shifting analysis established by the United States Supreme Court” to the TCHRA discrimination claim. Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 739 (Tex.2003). The plaintiff must establish a prima facie case of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). If the plaintiff establishes a prima facie case of discrimination, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the employment action. Id. The burden then shifts back to the plaintiff to show that the employer’s stated reason was a pretext for discrimination. Id. at 805-07, 93 S.Ct. 1817.

To establish a prima facie discrimination claim Flores must show: (1) he is a member of a protected class; (2) who suffered an adverse employment action; and (3) non-protected class employees were not treated similarly. See id. at 792-93, 93 S.Ct. 1817; Winters v. Chubb & Son, Inc., 132 S.W.3d 568, 574 (Tex.App.-Houston [14th Dist.] 2004, no pet.). The no-evidence motion for summary judgment challenged the third element of Flores’s prima facie case. Flores argues that a comparison of the acts that led to his termination from his position as a detective with the Liberty Police Department to the acts of other employees of the Department demonstrate that employees of a non-protected class were not treated similarly.

Flores joined the Liberty Police Department in 2000 and was promoted to Detective in July 2003. The City of Liberty implemented a personnel policy manual on January 3, 2006. Flores received a copy on January 31, 2006. Grounds for disciplinary action, including termination, included: (1) fighting, using profane, abusive or threatening language; and (2) misconduct, defined as “[a]ny criminal offense or other conduct, including immoral conduct, which could have an adverse effect on the City or on the confidence of the public in the integrity of the City government or on the relationship of the employee and other employees.”

Beginning in February 2006, Flores had a six-month long extramarital affair with an administrative employee of the police chief. In March 2006, Chip Fairchild complained to Chief Griffin about a confrontation Flores had with Fairchild over this employee. Griffin talked to Flores the following week, and Flores recorded the conversation. Flores claimed that Fair-child had been flirting with the employee and that Flores told Fairchild that this employee was Flores’s girlfriend and that Fairchild should “stay off of her.” No adverse disciplinary action was taken.

On July 26, 2006, dispatcher Stacey R. Morrison filed a written complaint against Flores regarding sexual comments Flores made to Morrison and to Officer Sheree Peak in Morrison’s presence. On July 28, 2006, Sheree Peak made an official written sexual harassment complaint against Flores based upon comments Flores had made to Peak over the previous several weeks. On September 5, 2006, Griffin and Flores had a conversation that Flores recorded. In this conversation, Flores told Griffin that Peak had harassed Flores by rubbing against him in front of her boyfriend. Flores also told Griffin that after Peak told Flores she did not want to “play” with Flores any more, she “pinched” Flores “on the nipples.” On September 14, 2006, Griffin and Flores had another conversation that Flores recorded. In this conversation, Flores explained that he did not make any sexual advances toward Peak, like other officers did, but that he “plays” with her in a “different ... more of a derogatory way[.]” According to Flores, two or three weeks before she filed the complaint, Peak told Flores she “didn’t want to play anymore.” Flores expressed his opinion that Peak could not “hit and joke around” with other officers and then complain about him. Griffin stated that he would address the matter at the next patrol meeting and go over the policies with the officers as a group.

Flores received a substandard performance evaluation from William Griffin on August 16, 2006, and Flores was put on a 90-day review. Liberty City Manager Allen Barnes reviewed the evaluation. The evaluation included the following findings: (1) “Cannot be relied on for work of consistent quality. Tends to be careless.”; (2) “Occasionally difficult to work with; will help when asked, although sometimes grudgingly.”; and (3) “Requires extra supervision to finish tasks; accepts new ideas reluctantly; rarely anticipates problems.” To the criticism that he was occasionally difficult to work with, Flores commented that he had only one verbal dispute with the task force officer, Elaine Taylor. According to Flores, the subject of the argument was Taylor’s demand to see Flores’s DPS files. The negative performance review was also based upon Flores’s failure to build a burglary case against a person named Terry Duff. The district attorney’s office rejected the case for insufficient evidence.

On September 20, 2006, Flores and Griffin discussed the evaluation, and Flores recorded the conversation. They discussed a credit union’s complaint that Flores failed to adequately pursue a forgery case in January of that year. Flores stated that he received the checks on March 29, 2006, and that he had filed the case with the district attorney. Griffin commented that the case investigation should not have taken Flores two months to complete.

Flores received a disciplinary action from a supervisor, Sergeant Richard Skar-pa, on September 27, 2006. The action involved an incident in which Flores, while off duty, drove an official vehicle to the apartment of the police chiefs employee with whom he had been having a sexual relationship (since ended). The written reprimand stated that Flores “drove his assigned vehicle to the Forest Grand Apartments to engage himself with (the employee) in a hostile manner[,] beating on the door[,] demanding the door open, causing others within the residence to flee.” At the time of the action, Flores reserved comment. Flores received a suspension for the incident. Flores was told that if further unsatisfactory performance occurred, he would be terminated.

On October 6, 2006, a store clerk, J.C., filed a complaint against Flores that alleged Flores had intimidated J.C. Flores’s wife, Stacy, told Flores that she thought J.C. was cute. Flores confronted J.C., asked what his name was, and where he was from. Flores claimed he asked those questions because he wanted his wife to see him talking to J.C. On October 10, 2006, J.C. submitted another formal complaint to the Department after Stacy Flores confronted J.C. about the first complaint. J.C. complained that Flores had found out that J.C. had filed a complaint.

On November 28, 2006, Flores received another disciplinary action for an infraction that occurred on November 20, 2006. Flores was reprimanded for taking off before his approved time. At the time of the reprimand, Flores reserved comment. Flores was warned that further unsatisfactory performance would result in termination.

On November 30, 2006, Flores was reevaluated and determined to have failed to meet minimum requirements. The negative findings from the previous evaluation appeared on this evaluation, and a finding that Flores took unauthorized leave was added. Flores was dismissed on December 11, 2006.

Flores contends that he established a prima facie case of discrimination by producing evidence of similarly situated employees engaging in much more inappropriate conduct while only Flores suffered ill consequences. See McDonnell Douglas, 411 U.S. at 792-93, 93 S.Ct. 1817; Winters, 132 S.W.3d at 574. “Employees are similarly situated if their circumstances are comparable in all material respects, including similar standards, supervisors, and conduct.” Ysleta Indep. Sch. Dist. v. Monarrez, 177 S.W.3d 915, 917 (Tex.2005) (footnote omitted). “To prove discrimination based on disparate discipline, the disciplined and undisciplined employees’ misconduct must be of ‘comparable seriousness.’ ” Id. (quoting McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. 1817). Precise equivalence in culpability is not required, but a plaintiff must usually show that the misconduct for which he was discharged was nearly identical to the conduct engaged in by an employee whom the company retained. Id. at 917-18.

Flores contends that three officers engaged in inappropriate conduct: R.P. Pearson, Sheree Peak, and Kenneth Taylor. Peak was a patrol officer. In July 2006, Flores reported to Griffin that Peak had falsified her time sheet. According to Flores, Peak told the Department she was in court for two days but stayed home one of the days and put on her time sheet that she was in court both days. Griffin told Flores that the matter would be dealt with on Peak’s next evaluation. Flores then spoke to Skarpa, who agreed with Flores that he would consider Peak’s actions to be theft.

On October 11, 2006, Flores had a conversation with Peak that Flores recorded. Peak told Flores that the court date had been on August 15 or August 16, and she had not yet been paid for the day she was accused of falsely reporting when on August 28 she discussed quitting her job with the Chief. Flores remarked that Peak was suspended about three weeks later.

During this conversation, Flores told Peak that the two of them would “have to play with big guns” to secure their jobs. Peak then told Flores that when she was training, Corporal Kenneth Taylor had sex with her on the hood of a patrol car. Flores reported the incident to Skarpa on October 31, 2006. In a statement dated October 31, 2006, Peak stated that the sexual encounter had occurred in February 2004. On November 30, 2006, Skarpa “counseled” with Taylor and advised Taylor that he would no longer be permitted to train with any female officers.

In the course of their conversation on October 11, 2006, Peak told Flores that on the previous day the Chief told her that the City was going to press theft charges and that the Chief gave her the option of resigning. Peak told Flores that during her meeting “they brought up Dustin,” an inmate trusty with whom Peak had been seen in public. According to Peak, Dustin told Peak that Pearson had beaten a cat to death with a catch pole while Dustin and Pearson were working animal control.

Flores reported the allegations against Pearson to Skarpa. On November 2, 2006, Martin was assigned to investigate the allegations of animal cruelty. On November 2, 2006, Pearson wrote a report to Skarpa at Martin’s command and as a condition of continued employment. Pearson admitted that he killed the cat but claimed the cat had tried to bite him. Pearson claimed he struck the cat defensively, then struck the animal until it died because his first strike had “seriously hurt” the cat. Pearson claimed his actions were legal under a city ordinance that gave police the right to shoot or kill any rabid cat that is unconfined and poses a danger to the public, and a Department Policy that permitted officers to “relieve an animal so badly injured that it cannot possibly survive from injuries causing prolonged suffering.”

Martin spoke with Dustin Spurlock, and noted that Spurlock arrived at the meeting in Peak’s vehicle. Martin also noted that Peak had recently resigned due to allegations of impropriety. Spurlock stated that he did not think the cat was a threat. Martin concluded that he felt Pearson had been justified in his action and that he was concerned that Peak and Flores had known about the incident but did not come forward until “they found themselves in trouble.” Martin concluded that there was not enough evidence of wrongdoing to take disciplinary action against Pearson.

Pearson and Taylor were each alleged to have engaged in a single act of misconduct, while Flores was terminated after a series of incidents and progressive discipline. Peak and Flores were both accused of multiple infractions, and they both received similar adverse employment actions. Thus, Flores failed to produce evidence that similarly situated employees of a non-protected class received disparate treatment, as he must to establish a prima facie case of discrimination. Winters, 132 S.W.3d at 574. We hold that the trial court did not err in granting summary judgment on Flores’s employment discrimination claim. We overrule issue one.

In his second issue, Flores contends that the trial court failed to apply the applicable summary judgment standard to the appellees’ no-evidence motion for summary judgment. Flores argues that the trial court should have allowed more time for discovery. Flores’s response to the motion for summary judgment suggested that the no-evidence motion for summary judgment was not ripe because discovery was ongoing.

The case had been on file for almost thirteen months when the appellees moved for summary judgment, and had been on file for fifteen months when the trial court heard the appellees’ motion. The trial court started the hearing on September 24, 2009, but continued the hearing by agreement of the parties. When the trial court reconvened the hearing on October 29, 2009, Flores did not re-urge his request for a continuance or ask for additional time to conduct more discovery. The discovery deadline was November 7, 2009, eight days after the summary judgment hearing. The appellees had responded to written discovery requests. The record does not indicate that any depositions had been scheduled but not taken at the time of the hearing. Finally, Flores suggested additional time was needed to complete discovery, but he did not file a motion for continuance with a supporting affidavit. See Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 647 (Tex.1996); Martinez v. City of San Antonio, 40 S.W.3d 587, 591 (Tex.App.-San Antonio 2001, pet. denied); Specialty Retailers, Inc. v. Fuqua, 29 S.W.3d 140, 146 (Tex.App.-Houston [14th Dist.] 2000, pet. denied). Under these circumstances, the trial court did not abuse its discretion by considering the Rule 166a(i) motion for summary judgment. See Tex.R. Civ. P. 166a(i) (A party may move for summary judgment without presenting evidence “[a]fter adequate time for discovery[.]”). We overrule issue two.

Flores contends he produced at least a scintilla of evidence of his whistle-blower claim because he produced evidence that he reported criminal activity by Officers Peak and Pearson to his superiors. See Tex. Gov’t Code Ann. § 554.001-.010 (Vernon 2004). The elements of a whistleblower claim are: (1) a public employee; (2) of a state agency or local government; (3) reported in good faith a violation of law; (4) to the appropriate law enforcement agency; and (5) the report was the cause of the decision to terminate the employee’s employment. Guillaume v. City of Greenville, 247 S.W.3d 457, 461 (Tex.App.-Dallas 2008, no pet.); Tex. Gov’t Code Ann. § 554.002. Appellees challenged the third and fifth elements in their Rule 166a(i) motion. See Tex.R. Civ. P. 166a(i). Appellees also moved for summary judgment on the grounds that Flores’s reports were objectively unreasonable in light of his training and experience and that the reports were not the cause of Flores’s termination. See Tex.R. Civ. P. 166a(c).

On or about November 2, 2006, Flores reported that Pearson committed animal cruelty by killing a cat. Flores’s employment was terminated on December 11, 2006. Therefore, there is a rebuttable presumption that the report regarding Pearson was the cause of the termination of Flores’s employment. See Tex. Gov’t Code Ann. § 554.004(a) (A rebuttable presumption arises when the adverse personnel action occurs “not later than the 90th day after the date on which the employee reports a violation of law[.]”). “Once sufficient evidence is produced to support a finding of the non-existence of the causal connection between the termination or suspension and the reported violation of law, the case proceeds as if no presumption had ever existed.” City of Houston v. Levingston, 221 S.W.3d 204, 226 (Tex.App.-Houston [1st Dist.] 2006, no pet.). Here, Flores was clearly terminated within the ninety day window; however, there is no evidence that Flores reported a violation of law by a Liberty City official. Even if Flores had a subjective belief that the killing of the cat by Officer Pearson constituted a violation of the law, that belief was not reasonable for an officer with the training, experience, and responsibilities of Flores. Therefore, the City proved as a matter of law that Flores did not have a good faith belief that he was reporting a violation of law, and the protections of the Whistleblower Act did not come into play. See Donlevy v. City of the Colony, 8 S.W.3d 754, 757 (Tex.App.-Fort Worth 1999, no pet.).

Flores argues on appeal that he raised a fact issue regarding the causal connection between his report of Peak in July 2006 and the termination of his employment, because he reported Peak’s misconduct and “nothing was done about any of it.” The record shows, however, that the Department did investigate Peak and that she chose to resign in the face of the accusation that she had falsified time records and had engaged in other inappropriate conduct.

Flores argues on appeal that regarding his report of a violation of law by Pearson, Flores was told to “mind his own business.” Flores appears to imply that his superiors did not intend to investigate the matter and thereby revealed a negative attitude towards Flores’s report of Pearson’s alleged unlawful activity. The summary judgment record shows that Flores’s report did result in an investigation. In a May 9, 2007, conversation recorded by Flores, Texas Ranger Frank Huff told Flores that Huff had sent a Ranger named Jeff Cook to conduct a criminal investigation of the allegations. In addition, Martin conducted an internal investigation of the allegations. Martin was suspicious of the source of the information because it came from a trusty who had been directly implicated in Peak’s misconduct. Nonetheless, Martin did require Pearson to make a written report on the matter as a condition of continued employment. Thus, the evidence relied upon by Flores on appeal does not raise an inference that Flores was told not to interfere because no investigation was going to be conducted. Therefore, the evidence that Flores relies on in his appeal to establish that he presented more than a scintilla of evidence to support his whistleblower claim does not support his causation argument. Because Flores has not shown that the trial court erred in granting summary judgment on Flores’s whistleblower claim, we overrule issue five.

Flores contends the trial court erred in granting summary judgment on Flores’s claim that his employment was terminated because he refused to perform an illegal act. See Sabine Pilot Serv., Inc. v. Hauck, 687 S.W.2d 733, 735 (Tex.1985). The appellees moved for summary judgment on the grounds that there is no evidence that Flores was asked to do anything illegal. On appeal, Flores mentions acts by other Department employees but he does not claim that he was ordered to perform an illegal act and he provides no argument or reference to the record where he produced evidence that he was ordered to perform an illegal act. Having alleged other reasons for the termination of his employment, we agree with the trial court that there is no evidence to support a Sabine Pilot claim. We overrule issue six.

We also note that the appellees moved for summary judgment on Flores’s claims against the individual defendants on the ground that there was no evidence to support individual liability. Flores does not address this portion of the summary judgment in his brief on appeal. Accordingly, the issue of individual liability is not adequately briefed. See Tex.R.App. P. 88.1(i).

Flores contends the trial court erred in failing to sustain his objections to the ap-pellees’ summary judgment evidence. First, he contends the trial court erred in considering evidence relating to unpled affirmative defenses. We note, however, that the motion for summary judgment was based upon the absence of any evidence to support at least one element of each of Flores’s claims, not upon an affirmative defense.

Flores also argues that the appellees’ summary judgment evidence was not supported by verification. See Tex.R. Civ, P. 166a(f) (“Sworn or certified copies of all papers ... shall be attached thereto or served therewith.”). The exhibits were verified in a supplemental filing.

Flores argues that he objected to Exhibits B, C, D, E, F, G, H, I, J, L, N, 0, P, Q, R, S, T, U, V, W, and X on the grounds that they contained hearsay. Flores’s trial objection was that these exhibits contained “hearsay within hearsay.” “Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules.” Tex.R. Evid. 805. Both at trial and on appeal, Flores made a blanket objection without identifying each part of each statement that contained hearsay and hearsay within hearsay. As such, his objection was not sufficiently specific to preserve error. See Tex.R. Evid. 103(a)(1). On appeal, Flores fails to address each document, identify which parts of the document contain hearsay and hearsay within hearsay, and explain why the documents were not admissible as statement by a party opponent. See Tex.R. Evid. 801(e)(2). We overrule issue seven and affirm the judgment.

AFFIRMED.

      . Flores is evidently arguing that sexual comments and/or touching only qualifies as sexual harassment if the comment or touching is intended by the initiator of the conduct to lead to sexual activity. This is not the law.

      . Neither Pearson nor Taylor, both white males, is covered by Title VII. Peak, a female, does fall under the Act's protection.

      . Because we hold that Flores did not produce any evidence to support one element of his prima facie case, we do not address the parties' arguments and evidence relating to the other elements of the prima facie case, the articulated reason for the employment action, and pretext raised in issues one through four. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-07, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Ysleta Indep. Sch. Dist. v. Monarrez, 177 S.W.3d 915, 917-18 (Tex.2005).

      . It is a criminal offense under Chapter 42 of the Texas Penal Code to torture or kill in a cruel manner a nonlivestock animal; however, nothing in the record indicates that Flores witnessed an offense or knew the details of the reported incident, and the details determined by the investigation established that no crime had occurred. See Tex. Pen.Code Ann. § 42.092(b)(1) (Vernon Supp.2009).


author: J. WOODFIN JONES, Chief Justice.

text:
    FIRST-CITIZENS BANK & TRUST COMPANY, Appellant, v. GREATER AUSTIN AREA TELECOMMUNICATIONS NETWORK. First-Citizens Bank & Trust Company, Appellant, v. Austin Independent School District, Appellees.
    Nos. 03-09-00461-CV, 03-09-00462-CV.
    Court of Appeals of Texas, Austin.
    Aug. 6, 2010.

      Adam Pugh, Slater, Kennon & Jameson, LLP, Austin, TX, for Appellant.
    Sydney W. Falk Jr., Bickerstaff Heath Delgado Acosta LLP, Austin, TX, for Ap-pellee.
    Before Chief Justice JONES, Justices PEMBERTON and WALDROP.
   OPINION

J. WOODFIN JONES, Chief Justice.

Appellant First-Citizens Bank & Trust Company (the “Bank”), a putative assignee of a contractor’s accounts receivable, sued appellees Greater Austin Area Telecommunications Network, an interlocal administrative agency, and Austin Independent School District (collectively the “government defendants”) for breach of contract. The government defendants filed a plea to the jurisdiction, asserting that sovereign immunity barred the Bank’s suit. The judge who conducted an evidentiary hearing on the plea died before ruling on the matter; a different judge later granted the plea. The Bank appeals in two issues, asserting that (1) the trial court has jurisdiction here because the local government code waives sovereign immunity for an assignee to sue for breach of an assignor’s contract, and (2) the successor judge improperly ruled on the government defendants’ plea without “hearing evidence.” We will reverse the trial court’s order and remand the cause for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

Complete Communication Services, Inc. d/b/a CoCom Cabling Systems (“Co-Com”) sold communications cabling and installation services to the government defendants pursuant to a contract (the “construction contract”). CoCom also entered into an “accounts receivable purchase and security agreement” (the “assignment contract”) with the Bank, by which CoCom assigned its accounts receivable to the Bank in exchange for cash. The government defendants made payments on the construction contract to the Bank as Co-Com’s assignee for some time but later, for reasons that are not clear from the record, stopped paying.

The Bank, as the assignee of CoCom’s accounts receivable, brought suit against the government defendants for breach of contract. The government defendants filed a plea to the jurisdiction asserting that (1) CoCom’s assignment of its right to payment was invalid because the construction contract contained a no-assignment clause, and (2) even if the assignment was valid, sovereign immunity from suit had not been waived.

Travis County District Judge Scott Oz-mun heard the plea in an evidentiary hearing, but he died before ruling on it. The case was later assigned to Judge Lora Livingston who, after reconsidering the evidence on the Bank’s motion, signed an order granting the government defendants’ plea to the jurisdiction and dismissing the cause for lack of subject-matter jurisdiction.

The Bank appeals in two issues. It argues first that it was a lawful assignee of CoCom’s right to payment under CoCom’s contract with the government defendants, and, as such, local government code section 271.152 waives sovereign immunity for the Bank’s suit to adjudicate a breach of the construction contract. In its second issue, the Bank requests a remand for reconsideration of the plea to the jurisdiction, asserting that the trial court erred when, after the death of Judge Ozmun, his successor on the case granted the plea without “hearing evidence” anew.

STANDARD OF REVIEW

Sovereign immunity deprives the trial court of subject-matter jurisdiction in cases where the State has been sued, absent a waiver of immunity by the State. Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex.2004). Sovereign immunity encompasses two concepts: immunity from liability and immunity from suit. Tooke v. City of Mexia, 197 S.W.3d 325, 332 (Tex.2006). By entering into a contract, a governmental entity waives its immunity from liability but retains its immunity from suit unless a waiver is effected by clear and unambiguous statutory language. Id.; see also Tex. Gov’t Code Ann. § 311.034 (West Supp. 2009); but see Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 375 (Tex.2006) (noting that sovereign immunity is creature of common law whose boundaries are set and may be altered by courts). To affirmatively demonstrate the trial court’s jurisdiction, the plaintiff in a suit against the State or a governmental entity must allege a valid waiver of immunity, which may be either a reference to a statute or to express legislative permission. Texas Dep’t of Transp. v. Jones, 8 S.W.3d 636, 637 (Tex.1999).

Whether a court has subject-matter jurisdiction is a question of law, which we review de novo. Miranda, 133 S.W.3d at 224. When reviewing a grant or denial of a plea to the jurisdiction, we consider the plaintiffs pleadings, construed in favor of the plaintiff, and any evidence relevant to jurisdiction without considering the merits of the claim beyond the extent necessary to determine jurisdiction. Id. at 226-27; County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.2002).

When a plea to the jurisdiction challenges the pleadings, we determine whether the plaintiff has alleged sufficient jurisdictional facts to show the trial court’s subject-matter jurisdiction, using a liberal construction in favor of the plaintiff. Miranda, 133 S.W.3d at 226. If the plaintiffs pleadings “affirmatively negate the existence of jurisdiction,” then a plea to the jurisdiction may be granted without affording the plaintiff an opportunity to amend his pleadings. Id. at 226-27. If, however, the pleadings do not “demonstrate incurable defects in jurisdiction,” but merely fail to allege sufficient facts to affirmatively demonstrate the trial court’s jurisdiction, then the issue is one of pleading sufficiency and the plaintiff should have an opportunity to amend. Id.

“[I]f a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised, as the trial court is required to do.” Id. at 227. Where the jurisdictional facts do not implicate the merits of the suit and the facts are disputed, the court must make the necessary fact findings to resolve the jurisdictional issue. Id. If the jurisdictional facts do implicate the merits of the suit, the judge must apply a summary judgment-like standard to the evidence submitted. Id. If a fact question exists on the disputed jurisdictional issues, the court cannot grant the plea to the jurisdiction; the fact question must be resolved by the fact finder. “However, if the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of law.” Id. at 228.

DISCUSSION

In its first issue, the Bank argues that the trial court erred in granting the government defendants’ plea to the jurisdiction. It asserts that it affirmatively demonstrated the trial court’s jurisdiction by pleading facts that cause its suit to fall within the waiver of sovereign immunity contained in loeal government code section 271.152. The Bank pleaded that (1) Co-Com had a contract with the government defendants to provide goods and services, (2) the Bank purchased an assignment of CoCom’s accounts receivable, (8) among those accounts receivable were unpaid amounts owed to CoCom by the government defendants under the construction contract, and (4) section 271.152 of the local government code waived sovereign immunity for the Bank’s suit to recover money owed to CoCom on the construction contract.

The government defendants respond that (1) the construction contract contained a no-assignment clause, which invalidated CoCom’s purported assignment; (2) even if the assignment was valid, section 271.152 does not waive their sovereign immunity to a suit brought by the Bank because the Bank was an assignee, not a party to the construction contract; and (3) the Bank lacks standing to bring claims here because it never entered into a contract with the government defendants. The government defendants attached evidence to their plea. That evidence, however, is not probative of the existence of any disputed jurisdictional facts. Moreover, the government defendants did not attach the construction contract, so we cannot determine if their argument that the contract prohibits this assignment — and the Bank’s counter-argument that the UCC trumps the no-assignment clause — has merit. In the absence of relevant evidence creating a fact question as to the existence of the Bank’s pleaded jurisdictional facts, we decide the plea to the jurisdiction as a matter of law. Miranda, 133 S.W.3d at 228. In doing so, we take as true the Bank’s pleaded jurisdictional facts. See id. at 227-28. Our inquiry here is thus focused on the jurisdictional facts in the Bank’s live pleading. If the Bank pleaded facts that, if true, demonstrate a waiver of sovereign immunity, then granting the plea was improper.

As noted above, the Bank relies on section 271.152 of the local government code for that waiver. That section states:

A local governmental entity that is authorized by statute or the constitution to enter into a contract and that enters into a contract subject to this subchapter waives sovereign immunity to suit for the purpose of adjudicating a claim for breach of the contract, subject to the terms and conditions of this subchapter.

Tex. Loe. Gov’t Code Ann. § 271.152 (West 2006). A contract subject to this subchap-ter “means a written contract stating the essential terms of the agreement for providing goods or services to the local governmental entity that is properly executed on behalf of the local governmental entity.” Id. § 271.151(2) (West 2006).

The parties do not dispute that the government defendants are local governmental entities authorized to enter into a contract; nor do they dispute that the contract between the government defendants and CoCom was “subject to [sub-chapter I].” Liberally construing the Bank’s pleadings, we take as true the Bank’s pleaded allegation that CoCom’s accounts receivable, including its right to bring suit to enforce payment under the construction contract, were validly assigned to the Bank. The remaining questions, therefore, are whether the Bank has standing here and, if so, whether section 271.152 of the local government code waives sovereign immunity for a breach-of-contract suit brought by an assignee.

The Bank’s Standing

We first address the Bank’s standing. The government defendants argue that the Bank does not have standing because it was not a party to the construction contract. The Bank asserts that it is suing as CoCom’s assignee under the construction contract and has standing by virtue of that assignment.

Standing is a component of subject-matter jurisdiction. Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 849 (Tex.2005). One way to establish standing in a breach-of-contract action is to show privity with the defendant. See Interstate Contracting Corp. v. City of Dallas, 135 S.W.3d 605, 618 (Tex.2004) (citing Brown v. Todd, 53 S.W.3d 297, 305 (Tex.2001)); Redmon v. Griffith, 202 S.W.3d 225, 239 (Tex.App.-Tyler 2006, pet. denied). For purposes of standing, “[plrivity is established by proving that the defendant was a party to an enforceable contract with either the plaintiff or a party who assigned its cause of action to the plaintiff.” Redmon, 202 S.W.3d at 239. An assignee stands in the shoes of the assignor and may assert those rights that the assignor could assert, including bringing suit. Gulf Ins. Co. v. Burns Motors, Inc., 22 S.W.3d 417, 420 (Tex.2000); see also Jackson v. Thweatt, 883 S.W.2d 171, 175 (Tex.1994) (“[A]n assignee receives the full rights of the assignor....”). Thus, the Bank, as CoCom’s assignee, has standing to assert CoCom’s claims and defenses under the contract.

This case is distinguishable from State v. Oakley, in which the Texas Supreme Court held that a cause of action under civil practice and remedies code chapter 103-the chapter that waives sovereign immunity for suits against the State for wrongful imprisonment — was not assignable. 227 S.W.3d 58, 61-62 (Tex.2007). In Oakley, the assignee of a wrongfully imprisoned individual’s claim asserted that because chapter 103 was silent as to assignments, the court should apply the common-law rule permitting the sale and assignment of causes of action. He urged the court to hold that (1) an assignee had standing to sue, and (2) sovereign immunity was waived for an assignee’s suit. Id. at 61. Addressing the standing argument as a threshold inquiry, the court noted that chapter 103 explicitly prohibits survivability of a 'wrongful-imprisonment cause of action. Id. Noting that assignability and survivability have long been linked in American and Texas law, the court concluded that the legislature’s decision to extinguish the chapter 103 cause of action on the death of the wrongfully imprisoned person also prohibited assigning the claim. Id. at 62.

The present case differs from Oakley in a crucial way. While the statute in Oakley waived sovereign immunity, it also created the cause of action on which Oakley sued the State. It was, therefore, necessary for the court to look at the statute itself to determine whether the wrongful-death cause of action was assignable. See id. (“As Chapter 103 claims are entirely a statutory creation, we look to the words of the statute to determine whether they are assignable.”). Here, however, the opposite holds true. Cf. id. The statute at issue does not create the breach-of-contract cause of action against the State, it merely waives sovereign immunity for certain existing common-law breach-of-contract claims. Thus, we look to the statute not to determine if the claims are assignable but only to see if sovereign immunity is waived.

Local Government Code Section 271.152 Waives Immunity for Assignees

Concluding that the Bank has standing here, we must now decide whether section 271.152 of the local government code waives the government defendants’ immunity from a suit brought by an assignee. This requires interpreting several statutes. Our objective in interpreting any statute is to determine legislative intent. Mid-Century Ins. Co. v. Ademaj, 243 S.W.3d 618, 621 (Tex.2007). We look to the statute’s plain meaning and construe it as a whole to give effect to every part, see id., unless such a construction would lead to absurd or nonsensical results, FKM P’ship v. Board of Regents of Univ. of Houston Sys., 255 S.W.3d 619, 633 (Tex.2008); see also Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 866 (Tex.1999) (“[I]t is a fair assumption that the Legislature tries to say what it means, and therefore the words it chooses should be the surest guide to legislative intent.”). We may consider the object of the statute, legislative history, and the consequences of a proposed construction. Tex. Gov’t Code Ann. § 311.023(1), (3), (5) (West 2005). In deciding whether a statute waives sovereign immunity, we bear in mind that a legislative waiver must be “effected by clear and unambiguous language.” Id. § 311.034.

As quoted above, section 271.152 of the local government code waives sovereign immunity “for the purpose of adjudicating a claim for breach of the contract, subject to the terms and conditions of [subchapter I]” if the local government entity “enters into a contract subject to [subchapter I].” By its own terms, section 271.152’s waiver is not limited only to suits brought by signatory parties — that is, to contractors who directly contract with the local government entity. Instead, section 271.152 waives immunity for a class of suits — suits for the purpose of adjudicating a claim for breach of a contract subject to subchapter I — without restricting which parties can bring the suit. The logical implication of such statutory language is that when, as here, a plaintiff has standing to sue a local government entity for breach of a “contract subject to [subchapter I],” section 271.152 waives sovereign immunity “for the purpose of adjudicating [that] claim.”

As section 271.152 waives immunity “subject to [subchapter I],” we must examine the entire subchapter to determine if the legislature intended waiver to apply to assignees. See Ademaj, 243 S.W.3d at 621. Subchapter I encompasses sections 271.151 through 271.160, which (1) define the terms used in the subchapter; (2) provide for waiver; (3) limit the amount and types of damages that may be awarded in a suit; (4) make enforceable any special contracted — for adjudication procedures like alternative — dispute resolution or pre-suit notice; (5) clarify that this subchapter does not waive the governmental entities’ defenses, immunity to suit in federal court, or immunity to liability in tort; (6) note that this subchapter is not the basis of the grant of immunity to suit to a local governmental entity; and (7) prohibit the recovery of attorney’s fees absent a contractual provision allowing prevailing parties to recover. See Tex. Loc. Gov’t Code Ann. §§ 271.151-.160 (West 2006 & West Supp. 2009). None of the subchapter’s provisions limit who can bring a suit on the contract. Nor do they suggest that the legislature intended to exclude assignees from the reach of section 271.152.

The legislative history of subchapter I also suggests that the legislature intended to enact a relatively broad waiver. The supreme court noted in Ben Bolt that “by enacting section 271.152, the Legislature intended to loosen the immunity bar so ‘that all local government entities that have been given or are given the statutory authority to enter into contracts shall not be immune from suits arising from those contracts.’ ” Ben Bolt-Palito Blanco Consol. Indep. Sch. Dist. v. Texas Political Subdivisions Prop./Cas. Joint Self-Ins. Fund, 212 S.W.3d 320, 327 (Tex.2006) (quoting House Comm. on Civil Practices, Bill Analysis, Tex. H.B. 2039, 79th Leg., R.S. (2005)). The bill analysis also suggests that part of the impetus for House Bill 2039 was to address the fundamental unfairness inherent in allowing governmental entities to use sovereign immunity as a shield to avoid their contractual obligations. House Comm. on Civil Practices, Bill Analysis, Tex. H.B. 2039, 79th Leg., R.S. (2005).

Supporters of the bill asserted that, because of the threat of sovereign immunity, many highly qualified contractors considered bidding on local government contracts too risky, leading many contractors, especially small businesses, not to bid at all. Id. Supporters thought there was a risk that those who did bid would submit artificially inflated bids or potentially perform substandard work as a form of “insurance” against the possibility of the governmental entity’s non-redressable breach. Id. Subchapter I was intended to address those complaints and encourage a broader, more qualified, and more diverse range of bidders for local-government contracts and to lower the price of those contracts by reducing the risk of non-redressable breach. Id.

It would be inconsistent with the statute’s purpose, therefore, to construe sub-chapter I as denying waiver to assignees of local-government contracts. Such a construction would risk raising the cost of financing, as financiers like the Bank might be reluctant to purchase a contractor’s accounts receivable if they thought sovereign immunity would expose them to the same risk of non-redressable breach that the statute sought to eliminate. That could result in the same problems of inflated bids, reduced numbers and types of bidders, and higher costs to local governments that the legislature sought to remedy.

For the reasons discussed above, we conclude that, in enacting section 271.152, the legislature waived sovereign immunity for suits brought by assignees of those who enter into contracts that are subject to subchapter I. Contrary to the government defendants’ assertions, our conclusion here does not expand the unambiguous legislative waiver of sovereign immunity in section 271.152. To the contrary, first and foremost, the plain language of subchapter I compels our decision here. See Fitzgerald, 996 S.W.2d at 866 (“[I]t is a fair assumption that the Legislature tries to say what it means, and therefore the words it chooses should be the surest guide to legislative intent.”). Further, allowing the Bank, as CoCom’s assignee, to bring claims to enforce CoCom’s contract with the government defendants does not subject them to additional liability. The government defendants’ maximum liability is still capped by subsection I’s provisions limiting recovery to “the balance due and owed” on the contract plus any valid change orders and interest as allowed by law. See Tex. Loc. Gov’t Code Ann. § 271.158 (West Supp.2009). As the Bank stands in CoCom’s shoes, its claim against the government defendants is only as good as CoCom’s; the claim will succeed or fail as it would if CoCom itself were suing the government defendants. Recognizing waiver here also facilitates financing by contracting parties, furthering the statute’s objective of lowering costs to contractors and encouraging more diverse bidders to bid for government contracts.

Because we hold that local government code section 271.152 waives sovereign immunity here, we hold that the Bank’s live pleading affirmatively demonstrated the trial court’s jurisdiction. The court therefore erred in granting the government defendants’ plea to the jurisdiction. We sustain the Bank’s first issue. Having done so, we need not reach their second.

CONCLUSION

Having held that the Bank’s pleaded jurisdictional facts affirmatively demonstrate the trial court’s subject-matter jurisdiction, we reverse the order of the trial court and remand the cause to that court for further proceedings.

      . The government defendants argue that the accounts receivable purchase and security agreement was not an assignment, but was simply a “purchase” of CoCom’s accounts receivable. We disagree.
      The contract between CoCom and the Bank is in the record. Its terms plainly indicate that CoCom “agrees to sell and assign” to the Bank “obligation[s] owed to [CoCom] for goods sold and delivered or services rendered.” The contract also appoints the Bank as CoCom's attorney in fact to "demand, take or bring, in the name of the Bank or Client, all steps, actions, suits or proceedings deemed by the Bank in its sole and absolute discretion necessary or desirable to effect collection of or other realization upon the purchased accounts.” Such language establishes an assignment here.
      In addition, the government defendants themselves have, in their briefing, characterized the contract at issue as an “assignment contract,” going so far as to state: “The sole purpose of the [accounts receivable purchase contract] is the assignment of accounts receivable from CoCom to [the Bank].”

      . A related doctrine, governmental immunity, similarly protects other governmental subdivisions and entities. Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex.2004); see also Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n. 3 (Tex.2003) (noting that courts often use governmental immunity and sovereign immunity interchangeably although doctrines are conceptually different).

      . It is not necessary to have the construction contract in the record for us to decide this initial jurisdictional inquiry. See Ben Bolt-Palito Blanco Consol. Indep. Sch. Dist. v. Texas Political Subdivisions Prop./Cas. Joint Self-Ins. Fund, 212 S.W.3d 320, 327-28 (Tex.2006) (deciding waiver under local government code section 271.152 based on pleaded allegation of terms of contract when actual contract was not in record).

      . We note that public policy strongly favors assignability of contracts. See State Farm Fire & Cas. Co. v. Gandy, 925 S.W.2d 696, 706-07 (Tex.1996) (discussing historical development of free assignability of contract and tort causes of action in Anglo-American law and limited exceptions to general rule of assignability).