author: STEVE McKEITHEN, Chief Justice.

text:
    ENTERGY GULF STATES, INC., Appellant, v. Nicholas TRAXLER, Appellee.
    No. 09-09-00362-CV.
    Court of Appeals of Texas, Beaumont.
    Submitted May 6, 2010.
    Decided Aug. 19, 2010.

      Jacqueline M. Stroh, Crofts & Callaway, San Antonio, Paul A. Scheurich, Christine S. Kibbe, Beaumont, for Appellant.
    Jane S. Leger, Provost Umphrey Law Firm, Beaumont, for Appellee.

      Before McKEITHEN, C.J., GAULTNEY and KREGER, JJ.
   OPINION

STEVE McKEITHEN, Chief Justice.

This is an appeal from a judgment in favor of the plaintiff in a personal injury case. We reverse the trial court’s judgment and render judgment that appellee take nothing.

Appellee Nicholas Traxler sued appellant Entergy Gulf States, Inc. (“Entergy”) for personal injuries Traxler allegedly sustained when, while riding on top of a house that was being moved along a street in Bridge City, Texas, he made contact with a power line and fell from the top of the house. Traxler asserted causes of action for general negligence and negligence per se. Specifically, Traxler complained that Entergy was negligent per se because it violated section 181.045 of the Texas Utilities Code, that Entergy was negligent “in the construction, maintenance[,] and inspection of its line and pole” and that Entergy was “negligent in its instructions to local home movers.” See Tex. Util. Code Ann. § 181.045 (Vernon 2007). Trax-ler did not assert that Entergy failed to properly warn of the known potential danger, and in his appellate brief, Traxler asserts that because “Entergy’s liability is not based on a failure to warn[,] ... En-tergy’s assertion [on appeal] that it has no duty to warn of known dangers is irrelevant to any issue in this case.”

The trial court submitted the general negligence and negligence per se theories to the jury in a single broad-form question. The jury found that Entergy was negligent; assigned 44% of the responsibility for the accident to Entergy, 46% to Trax-ler’s employer, Burkhart House Moving Company, and 10% to Traxler. The trial court signed a final judgment awarding Traxler damages in accordance with the verdict. Entergy then filed this appeal, in which it raises ten issues for our consideration. We reverse the trial court’s judgment and render judgment that Traxler take nothing.

Issue One

In its first issue, Entergy argues that it had no duty to Traxler to maintain the electrical line at issue at a height of twenty-two feet. See id. Specifically, En-tergy asserts that section 181.045(b) only applies to transmission lines that cross state highways and county roads, not to distribution lines that cross municipal streets. In response, Traxler contends that “[t]he only limitation recognized by Texas courts on what constitutes a ‘transmission line’ under Section 181.045 and its predecessors is that the line has to carry electricity.”

In this case, the trial court instructed the jury that section 1436a of the Texas Revised Civil Statutes, which is the predecessor of section 181.045(b)(2), applied to the jury’s determination of whether Enter-gy was negligent. . Both section 181.045(b)(2) and section 1436a require that where a transmission line crosses a highway or road, the transmission line must be at least twenty-two feet above the surface of the traffic lane. Id. § 181.045(b)(2) (“[A]n electric utility shall: ... (2) construct a transmission line that crosses a highway or road so that the line is at least 22 feet above the surface of the traffic lane[.]”); Act of May 1, 1995, 74th Leg., R.S., ch. 165, § 22(9) (current version at Tex. Util.Code Ann. § 181.045 (Vernon 2007)) (“[A]t any place where a transmission line crosses a highway or road it shall be at least twenty-two (22) feet above the surface of the traffic lane[.]”).

In chapter 25 of the Texas Administrative Code, which contains Public Utility Commission rules applicable to electric service, “distribution line” and “transmission line” are defined separately. 16 Tex. Admin. Code § 25.5(31), (140) (2010). “Distribution line” is defined as “[a] power line operated below 60,000 volts, when measured phase-to-phase, that is owned by an electric utility....” Id. §25.5(31). “Transmission line” is defined as “[a] power line that is operated at 60 kilovolts (kV) or above, when measured phase-to-phase.” Id. § 25.5(140). In chapter 23 of the Texas Administrative Code, which was repealed and moved into chapter 25 in 1998, the statute defined “transmission lines” as “[t]hose lines which are used for bulk transmission of ... electricity ... which are not normally used for serving the end user. For electric utilities, this includes all lines operated at 60,000 volts or above, when measured phase-to-phase.” Sam Houston Elec. Coop., Inc. v. Pub. Util. Comm’n of Tex., 733 S.W.2d 905, 909 (Tex.App.-Austin 1987, writ denied) (quoting 16 Tex. Admin. Code § 23.31(a)(1)). In addition, chapter 23 of the Texas Administrative Code separately defined “distribution lines” as “[t]hose lines from which the end user may be provided direct service.” Id. (quoting 16 Tex. Admin. Code Ann. § 23.31(a)(3)).

The evidence adduced at trial indicated that the line in question is a distribution line, not a transmission line. As support for his contention that the twenty-two-foot height requirement applied to the electrical line at issue, Traxler relies principally upon three cases from sister courts of appeals: Lamb County Elec. Co-op. v. Cockrell, 414 S.W.2d 228, 230 (Tex.Civ.App.-Amarillo 1967, writ ref'd n.r.e.); Tex. Power & Light Co. v. Holder, 385 S.W.2d 873 (Tex.Civ.App.-Tyler 1964, writ ref'd n.r.e.); and Tex. Power & Light Co. v. Jacobs, 323 S.W.2d 483, 491 (Tex.Civ.App.-Waco 1959, writ ref'd n.r.e.).

In Jacobs, the plaintiff was injured when he came into contact with an electrical wire that crossed a public road, and the trial court determined that the power company was guilty of negligence per se because its line was less than twenty-two feet above the surface of the traffic lane. Jacobs, 323 S.W.2d at 485, 490. The court of appeals noted that article 1436 required public utilities to construct and maintain their lines at a height of at least twenty-two feet above the ground, and that article 1436a required transmission lines that cross a highway or road to be at least twenty-two feet above the surface of the traffic lane. Id. at 490-91. When the legislature enacted section 1436a in 1949, the statute discussed corporations engaged in “the generation, transmission^] and/or the distribution of electric energy[,]” and it required that “at any place where a transmission line crosses a highway or road it shall be at least twenty-two (22) feet above the surface of the traffic lane.” Act of May 19, 1949, 51st Leg., R.S., ch. 228, § 1, 1949 Tex. Gen. Laws 427 (current version at Tex. Util.Code Ann. § 181.045 (Vernon 2007)). In construing sections 1436 and 1436a together, the Jacobs court held as follows:

Article 1436a aforesaid does not specifically repeal Article 1436 aforesaid. We think the effect of that statute is to make it a little more specific in that it does provide that at any place where a transmission line crosses a highway or road it shall be at least 22 feet above the surface of the traffic lane. Our view is that the mere designation of the electric line carrying the current from the source to the customer, a transmission line, and the designation of the line returning the current from the customer to the source as a distribution line does not prevent the line carrying the return current from being a transmission line for all practical purposes.... [T]he words ‘the transmission lines’ as used in the statutes mean any lines used to transmit electricity and not just those which are a part of the power or transmission system. We think this view is sustained by the rule, that the policy of the Courts is to avoid giving statutory words a technical meaning[.]

Id. at 491.

At the outset, we note that, in addition to the rule of construction cited in Jacobs, the Code Construction Act further provides that “[w]ords and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly.” Tex. Gov’t Code Ann. § 311.011(b) (Vernon 2005); see also Tex. Gov’t Code Ann. § 312.002(a), (b) (Vernon 2005) (Words shall be given their ordinary meaning, but “if a word is connected with and used with reference to a particular trade or subject matter or is used as a word of art, the word shall have the meaning given by experts in the particular trade, subject matter, or art.”); Jacobs, 323 S.W.2d at 491. In addition, we note that the Jacobs court did not discuss or acknowledge the definitions of “transmission line” and “distribution line” contained in the Texas Administrative Code, so we must assume either that the parties in Jacobs did not rely on those definitions, or that said definitions did not exist in 1959 when the Jacobs opinion was issued. Furthermore, the opinions of a sister court of appeals are not binding precedent in other courts of appeals. Mitchell v. John Wiesner, Inc., 923 S.W.2d 262, 264 (Tex.App.-Beaumont 1996, no writ). Finally, the Texas Utilities Code no longer contains a general twenty-two-foot height requirement like the one in former article 1436; instead, only the more specific requirement as set forth in article 1436a remains. See Tex. Util.Code Ann. § 181.045(b)(2).

In addition, Cockrell, which was also decided by a sister court of appeals, is distinguishable. In Cockrell, the plaintiff contended that the defendant was negligent because it failed to comply with the twenty-two-foot height requirement contained in section 1436a. Cockrell, 414 S.W.2d at 229. The Cockrell court held that the term “line or lines” “has reference only to lines carrying electric current[,]” and noted that the plaintiff failed to introduce evidence that the line carried any electric current. Id. at 230-31 (distinguishing Jacobs on that basis). Cockrell does not stand for the proposition that “transmission line” means any line that carnes electric current; therefore, it is inapposite to the issue presented here. See Cockrell, 414 S.W.2d at 230-31.

In Holder, the court adopted the Jacobs court’s holding in construing articles 1436 and 1436a, concluding that article 1436a did not repeal article 1436, and determining that the twenty-two-foot height requirement applied to the line in question. See Holder, 385 S.W.2d at 881. Because we reject the reasoning of the Jacobs court and its construction of the term “distribution line,” we likewise reject Holder, which relied upon Jacobs.

For all of the above reasons, we decline to adopt the construction of the term “transmission line” espoused by the Jacobs court. Instead, we hold that the term “transmission line,” as used by the Legislature in section 181.045(b)(2) of the Texas Utilities Code (as well as its predecessor, section 1436a of the Texas Revised Civil Statutes) has the technical meaning assigned to it by the applicable Public Utility Commission regulation: a power line that is operated at 60 kilovolts (kV) or above, when measured phase-to-phase. See Tex. Admin. Code § 25.5(140); see also Tex. Util.Code Ann. § 181.045(b)(2); Act of May 1, 1995, 74th Leg., R.S., ch. 165, § 22(9) (current version at Tex. Util.Code Ann. § 181.045 (Vernon 2007)). Because the evidence adduced at trial established that the line Traxler contacted was a distribution line, we hold that Entergy therefore owed no duty to Traxler under section 181.045(b)(2) or section 1436 to maintain the line at a height of twenty-two feet or more above the surface of the traffic lane. See Tex. Util.Code Ann. § 181.045(b)(2); Act of May 1, 1995, 74th Leg., R.S., ch. 165, § 22(9) (current version at Tex. Util. Code Ann. § 181.045 (Vernon 2007)). We sustain issue one.

Issue Two

In its second issue, Entergy argues that it owed no duty to Traxler under chapter 752 of the Texas Health and Safety Code. In response, Traxler asserts that at a meeting between Entergy and Burk-hart, Entergy’s representative, Kyle Todd, informed Burkhart and other movers that they need not contact Entergy unless the structure that was to be transported was more than seventeen feet tall. Specifically, Traxler argues in his brief that Todd “told the movers, in effect, that they could ignore the law[.]”

Section 752.003(a) of the Texas Health and Safety Code requires that any person, firm, corporation, or association responsible for temporary activity or work closer to a high-voltage overhead line than “the distances prescribed by this chapter” to notify the operator of the line at least forty-eight hours before the work or activity begins. Tex. Health & Safety Code Ann. § 752.003(a) (Vernon 2010). In addition, section 752.003(b) provides that work or activity may not begin until the person or entity responsible for the work has negotiated with the operator of the line to “provide temporary de-energization and grounding, temporary relocation or raising of the line, or temporary mechanical barriers to separate and prevent contact between the line and the material or equipment or the person performing the work, activity, or function.” Id. § 752.003(b) (Vernon 2010). Unless the person or entity responsible for the work has guarded against the danger of contacting the line as set forth in section 752.003, the work, function, or activity may not be performed if it is possible that the person doing the work, function, or activity may “(1) move or be placed within six feet of a high voltage overhead line while performing the function or activity; or (2) bring any part of a tool, equipment, machine, or material within six feet of a high voltage overhead line while performing the function or activity.” Id. § 752.004(a) (Vernon 2010).

In addition, “[a] person, firm, corporation, or association may not require an employee to perform a function or activity prohibited by Subsection (a).” Id. § 752.004(b) (Vernon 2010). Section 752.005 provides that unless the person or entity effectively guards against danger as prescribed by section 752.003, the person or entity may not transport all or any part of a house, building, or other structure within six feet of a high voltage overhead line. Id. § 752.005(1) (Vernon 2010). Furthermore, section 752.008 provides that if a violation of chapter 752 results in contact with a high voltage overhead line, the person or entity that committed the violation “is hable to the owner or operator of the line for all damages to the facilities and for all liability that the owner or operator incurs as a result of the contact.” Id. § 752.008 (Vernon 2010).

Nothing in chapter 752 imposes a duty upon the owner or operator of a power line to insure that persons or entities performing work, functions, or activities within six feet of power lines comply with the requirements of that chapter. See Tex. Health & Safety Code Ann. §§ 752.001-.008 (Vernon 2010). Rather, chapter 752 imposes duties upon persons or entities performing work, functions, or activities within six feet of power lines. See id. We therefore turn to the issue of whether Kyle Todd’s meeting with Burk-hart and other movers created an otherwise non-existent duty on the part of En-tergy to ensure that Burkhart complied with the requirements of chapter 752.

At trial, Henry Burkhart, the owner of Burkhart House Moving Company, testified that as the result of a meeting between various house movers (including himself) and Entergy’s representative, Kyle Todd, Burkhart believed that if a house was seventeen feet tall or less, he need not contact Entergy. Burkhart explained that he did not contact Entergy concerning the move during which Traxler was injured. According to Burkhart, the structure he intended to move was sixteen feet, ten inches tall.

During cross-examination, Burkhart testified that when he spoke with Todd, Todd told Burkhart and the other movers to use their judgment as to whether a particular electrical line might cause a problem, and to call Entergy if there was a problem. In addition, Burkhart explained that Todd told him that if Burkhart contacted Enter-gy, Entergy would send someone to assess the situation, even if the structure to be moved was below seventeen feet. Burk-hart also testified that Entergy told him that he was responsible for determining whether a particular Entergy wire posed a potential problem for the move. Burkhart testified that he was responsible for providing a safe workplace for Traxler. Furthermore, Burkhart testified that he warned Traxler about the wire at issue and instructed Traxler to get down and to avoid the wire.

Kyle Todd testified that when he met with the house movers, he was unaware that the movers were putting people on top of the houses that were being moved, and that they did not discuss that practice at the meeting. According to Todd, the purpose of the meeting was to tell the movers how to contact Entergy because the movers were frustrated with Entergy’s automated voice response unit. Todd testified that he told the movers “they should call [Entergy] if they feel that there is a concern. They make the decision if it’s unsafe. They are supposed to follow the law[.]” According to Todd, the discussion about a height of seventeen feet resulted from “talking about a Department of Transportation requirement.” Todd explained that “[ajnything ... around 17 [feet] it is [the movers’] decision to ... tell me if they ... feel that it’s unsafe, to call me and we will change the parameters of the line.” “[I]t is really the ... home mover’s decision to call me if they have a problem.” Todd testified, “I told them 17 is a good number. Below 17, if they have a problem, if they think they’re uncomfortable with that, please call me. But over 17, be sure to call me.”

Generally, one is under no legal duty to control the conduct of others, even if one has the practical ability to do so. Loram Maint. of Way, Inc. v. Ianni, 210 S.W.3d 593, 596 (Tex.2006). However, a person or entity may choose to undertake such a duty, and if it does so negligently, will be held liable. See Torrington Co. v. Stutzman, 46 S.W.3d 829, 837-38 (Tex.2000). In Stutzman, the Texas Supreme Court explained that in negligent undertaking cases, the jury must be instructed concerning the elements of negligent undertaking, which are as follows: (1) the defendant undertook to perform services that it knew or should have known were necessary to protect the plaintiff, (2) the defendant failed to exercise reasonable care, and either (3) the party to whom the duty is owed relied on the defendant’s undertaking, or (4) the defendant’s performance of its undertaking increased the plaintiffs risk of harm. Id. at 839. The evidence concerning the meeting between Todd and Burkhart, as well as Entergy’s policy with respect to when calls to it were necessary, does not establish that Entergy undertook to perform services that it knew or should have known were necessary to protect Traxler, or that Entergy failed to exercise reasonable care. See id. Absent such evidence of an undertaking, Entergy owed no duty to Traxler; therefore, Trax-ler failed to establish the elements of negligence. See Graff v. Beard, 858 S.W.2d 918, 919 (Tex.1993) (Without a legally cognizable duty, a defendant cannot be held liable in tort.). We sustain issue two. We need not address issues three through ten, as they would not result in greater relief. We reverse the trial court’s judgment and render judgment that Traxler take nothing from Entergy.

REVERSED AND RENDERED.

      . Traxler reached a settlement with Burkhart House Moving Company prior to trial, and the trial court signed a partial final judgment that Traxler recover nothing from Burkhart House Moving Company.

      . Traxler's accident occurred on June 22, 2005. Section 181.045(b) of the Texas Utilities Code became effective on September 1, 1997. Tex. Util.Code Ann § 181.045(b) (Vernon 2007). Therefore, assuming that the date of Traxler’s accident governs rather than the date Entergy installed the line, the trial court’s instruction to the jury that section 1436a applied to its determination of whether Entergy was negligent was incorrect. However, because the two statutes contained identical requirements, any error was of no consequence.


source: Caselaw Access Project

author: Justice LANG.

license: Public Domain

text:
    In re R. John CULLAR and the Texas Democratic Party, Relators.
    No. 05-10-00979-CV.
    Court of Appeals of Texas, Dallas.
    Aug. 19, 2010.

      Chad W. Dunn, K. Scott Brazil & Dunn, Houston, TX, for Relators.
    John H. Cayce, Jr., Adrienne N. Par-ham, Kelly Hart Hallman, Fort Worth, TX, for Respondents Steve Munisteri and Henry Teich.
    N. Terry Adams, Jr., Joseph M. Nixon, James E. Trainor, III, Beirne, Maynard & Parsons LLP, Houston, TX, for Real Party in Interest Brian Birdwell.

      Before Justices MOSELEY, LANG, and MYERS.
   OPINION

Opinion By

Justice LANG.

This original mandamus proceeding arises out of an election dispute. Rela-tors, R. John Cullar and the Texas Democratic Party, request this Court to (1) declare candidate and real party in interest Brian Birdwell “ineligible to seek election to the Office of Texas Senate, District 22, for the 2010 General Election”; and (2) direct respondents Steve Munisteri, Chairman of the Republican Party of Texas, and Henry Teich, Chairman of the Republican Senate District 22 Executive Committee, to “take all necessary steps to remove [Birdwell] as the nominee, and to take such actions as are necessary before August 20, 2010 to have [Birdwell] removed from the 2010 General Election Ballot.” For the reasons below, we deny relators’ petition.

I. BACKGROUND

Cullar is the Texas Democratic Party’s candidate for Texas Senate District 22 in the 2010 general election. In their August 6, 2010 “Emergency Petition for Writ of Mandamus,” which names Munisteri as a respondent, relators allege Birdwell was a resident of the Commonwealth of Virginia from 2004 to, and including, 2006. According to relators, public records establish Birdwell voted in the 2006 general election in Virginia and registered as a “new voter” in Texas on June 13, 2007. Relators contend that because Birdwell did not reside in Texas for at least five years immediately preceding the 2010 general election, he is not an eligible candidate for the Texas Senate and the law requires he be declared ineligible and removed from the ballot.

In a tabbed appendix to relators’ August 6, 2010 petition are documents identified by relators as follows: (1) “Virginia Voter Registration”; (2) “Virginia Voter History”; (3) “2006 Virginia Department of Game & Inland Fisheries Resident License”; (4) “2008 Virginia Department of Game & Inland Fisheries Resident License”; (5) “Tarrant County Voter History Record”; (6) “Hood County Voter Registration”; (7) “Hood County Voter History”; (8) “Press Clippings”; and (9) “Virginia Voter Registration Application Form.” Attached to that petition is a “certification” signed and sworn to by relators’ attorney that states in relevant part

NOW COMES Relators R. John Cul-lar and The Texas Democratic Party and files this their Rules 52.3(j) and 52.7(a)(1) Certifications and in support thereof would show the following:
Rule 52.7(a)(1)
The documents attached to the Emergency Petition for Writ of Mandamus and included in the Appendix thereto are true and correction [sic] copies to the best of my knowledge. Documents under Tab numbers 1 through 7 were obtained through a Freedom of Information Act request from the Secretary of State. These documents are true and correct copies to the best of my knowledge.
The documents included under tabs 8 and 9 were obtained by me through the internet and are publicly available.

In separate responses filed on August 12, 2010, Birdwell and Munisteri assert this proceeding was not brought against the proper respondent because Munisteri did not certify Birdwell’s name for placement on the general election ballot. Rather, they assert the Chairman of the Senate District 22 Executive Committee (i.e. Teich) is the person who certified Bird-well’s name to appear on the ballot.

Further, Birdwell contends generally (1) the election code does not charge an election authority with knowledge of documents not provided to it; (2) press clippings are not public records that an election authority can consider under the election code; and (3) the voting histories and other public records relators rely upon do not conclusively establish Texas was not Birdwell’s permanent residence from 2004 to 2006 because those documents show on their face that Birdwell’s presence in Virginia was temporary. An appendix to Birdwell’s response contains an April 26, 2010 judgment of the 355th Judicial District Court of Hood County, Texas, declaring Birdwell “is and has been a resident of Texas continuously since 1973” and an affidavit of Birdwell in which he alleges his continuous residency in Texas.

Relators filed an August 13, 2010 supplemental petition for writ of mandamus and reply in which they added Teich as a respondent. They assert generally (1) “[t]he uncontested public records establish [Birdwell] is not an eligible candidate”; (2) the proper respondents are before the Court; (3) relators do not rely upon press clippings as public records; and (4) the April 26, 2010 declaratory judgment from Hood County “should be accorded no weight whatsoever.”

On August 16, 2010, Birdwell and Mun-isteri filed a joint emergency motion to dismiss the mandamus proceeding. They assert in part “[Relators’ unprecedented effort to add [Teich] as a new party [Respondent in their Supplemental Petition for Writ of Mandamus is improper and not permitted by [Texas Rule of Appellate Procedure 52].”

Teich filed an August 17, 2010 response. He asserts generally (1) he has no power to remove Birdwell’s name from the 2010 general election ballot at this stage and (2) relators’ supplemental petition should be dismissed because it is unauthorized under the rules.

Finally, in an August 18, 2010 reply to Teich’s response, relators contend generally (1) Teich’s assertion he has no power to remove Birdwell’s name from the 2010 general election ballot is inaccurate in light of his power to declare Birdwell ineligible under Texas Election Code section 145.003(g) and (2) the assertion by Bird-well and respondents that a supplemental petition is unauthorized by the rules and the supplemental petition should be dismissed is contrary to Texas Rule of Appellate Procedure 52.7(b) providing for supplementation of the record, and filing a new action would be unnecessarily costly.

II. RELATORS’ ENTITLEMENT TO MANDAMUS RELIEF

A. Applicable Law

This Court has jurisdiction to consider relators’ petition and to “compel the performance of any duty imposed by law in connection with the holding of an election ... regardless of whether the person responsible for performing the duty is a public officer.” Tex. Elec.Code Ann. § 273.061 (Vernon 2010); see also Tex. Gov’t Code Ann. § 22.221 (Vernon 2004) (courts of appeals may issue writs of mandamus and all other writs necessary to enforce jurisdiction of court); Tex. Const. art. V (addressing judicial power of Texas courts and providing courts of appeals shall have jurisdiction, original and appellate, as prescribed by law). Generally, entitlement to mandamus relief is subject to establishing three requisites: a legal duty to perform a non-discretionary act, a demand for performance, and a refusal. O’Connor v. First Court of Appeals, 837 S.W.2d 94, 97 (Tex.1992) (citing Doctors Hosp. Facilities v. Fifth Court of Appeals, 750 S.W.2d 177, 178 (Tex.1988)); see also Axelson, Inc. v. McIlhany, 798 S.W.2d 550, 556 (Tex.1990) (in order for mandamus to lie, respondent must have refused to act); Bantuelle v. Renfroe, 620 S.W.2d 635, 639 (Tex.Civ.App.-Dallas 1981, no writ) (before mandamus will issue to require court reporter to prepare statement of facts, relator must show demand was made of reporter and he refused); cf. In re Link, 45 S.W.3d 149, 151-52 (Tex.App.-Tyler 2000, orig. proceeding) (in proceeding pursuant to section 273.061, relators must establish clear legal right to action they seek to compel, and duty of person sought to be compelled must be clearly fixed and required by law). We may not resolve factual disputes in a mandamus proceeding. In re Jackson, 14 S.W.3d 843, 846 (Tex.App.-Waco 2000, orig. proceeding). Further, “[a]ny constitutional or statutory provision which restricts the right to hold office must be strictly construed against ineligibility.” Wentworth v. Meyer, 839 S.W.2d 766, 767 (Tex.1992) (orig. proceeding).

The Texas Constitution provides in relevant part

No person shall be a Senator, unless he be a citizen of the United States, and, at the time of his election a qualified voter of this State, and shall have been a resident of this State five years next preceding his election, and the last year thereof a resident of the district for which he shall be chosen, and shall have attained the age of twenty-six years.

Tex. Const, art. Ill, § 6. According to section 1.015 of the Texas Election Code, “ ‘residence’ means domicile, that is, one’s home and fixed place of habitation to which one intends to return after any temporary absence.” Tex. Elec.Code Ann. § 1.015(a) (Vernon 2010).

Section 145.003 of the election code states in relevant part

(a) Except for a judicial action in which a candidate’s eligibility is in issue, a candidate may be declared ineligible only as provided by this section.
(b) A candidate in the general election for state and county offices may be declared ineligible before the 30th day preceding election day by:
(1) the party officer responsible for certifying the candidate’s name for placement on the general election ballot, in the case of a candidate who is a political party’s nominee....
(f) A candidate may be declared ineligible only if:
(1) the information on the candidate’s application for a place on the ballot indicates that the candidate is ineligible for the office; or
(2) facts indicating that the candidate is ineligible are conclusively established by another public record.
(g) When presented with an application for a place on the ballot or another public record containing information pertinent to a candidate’s eligibility, the appropriate authority shall promptly review the record. If the authority determines that the record establishes ineligibility as provided by Subsection (f), the authority shall declare the candidate ineligible.

Id. § 145.003 (Vernon 2010).

Under Texas Rule of Appellate Procedure 52.3(k)(l)(A), the appendix to a petition in an original proceeding in this Court must contain, inter alia, “a certified or sworn copy of any order complained of, or any other document showing the matter complained of.” Tex.R.App. P. 52.S(k)(l)(A).

B. Application of Law to Facts

Relators broadly state that Birdwell is not eligible to be a candidate for Texas Senate District 22 in the November 2010 general election because he does not meet the five-year residency requirement. It is relators’ contention that the documents attached to their petition show Birdwell was a resident of Virginia from 2004 to, and including, 2006, and that proves he cannot meet the Texas residency requirements. Relators seek a writ of mandamus pursuant to section 273.061 of the election code, the general mandamus power of this Court granted by article five of the Texas Constitution, and government code section 22.221. See Tex. Elec.Code Ann. § 273.061; Tex. Const. art. V; Tex. Gov’t Code Ann. § 22.221.

While section 273.061 of the election code empowers this Court to issue a writ of mandamus to compel performance of any duty authorized by law in connection with the holding of an election, relators do not cite to us any particular statute that they say identifies the duty we must address. Rather, relators argue broadly that “the Republican Party of Texas” has “refused to perform their [sic] ministerial duty to determine the eligibility of candidates for its nomination.” Specifically, re-lators contend Birdwell is ineligible based on his alleged residency in Virginia. Accordingly, relators request broadly that this Court “issue a mandamus declaring [Birdwell] ineligible to seek election to the Office of Texas Senate, District 22 for the 2010 General Election and further directing Respondent to remove [Birdwell] as the nominee and to take such actions as are necessary before August 20, 2010 to have [Birdwell] removed from the 2010 General Election Ballot.”

We conclude section 145.003 of the election code sets forth the “duty imposed by law” that could give rise to necessity for issuance of a writ of mandamus, in the context of this case, where relators claim Birdwell is an ineligible candidate. See Tex. Elec.Code Ann. § 145.003(a). Accordingly, we construe relators’ petition to address the duty in section 145.003 because they request this Court, in part, to evaluate the documents they offer as to Birdwell’s residency, conclude those documents are public records that conclusively establish Birdwell’s ineligibility, and direct that the “appropriate authority” declare Birdwell ineligible. See id.

Although relators contend public records show Birdwell’s ineligibility, Birdwell and Munisteri contend relators “do not point to any public records that were presented to [respondents] that conclusively establishes ineligibility” and thus “do not make any argument that is recognized by Section 145.003(f) and (g) of the Election Code.” Relators assert “the filing and serving of the Petition for Writ of Mandamus with its appendix has provided Respondents with the public records and they still have not issued the declaration of ineligibility.” Further, relators contend the argument regarding “lack of presentation of the conclusive public records” is “inapplicable to this judicial action under the plain language of [section 145.003(a) ],” which section states, “Except for a judicial action in which a candidate’s eligibility is in issue, a candidate may be declared ineligible only as provided in this section.” Id. § 145.003(a). According to relators, such “procedural complaints ... only apply to election officers” and not to this Court. The parties cite no ease law on point as to these contentions, and we find none.

Section 273.061 of the election code does not empower us to grant mandamus relief ordering performance not precisely identified as a duty by statute. Id. § 273.061. We find no applicable section of the election code that empowers us to simply declare Birdwell ineligible and order respondents to do whatever is necessary to take Birdwell off the ballot. Id. We must determine whether respondents, or either one of them, have failed to perform then-duty by reference to the clear language of the applicable statute, section 145.003. See id. § 145.003; see also In re Link, 45 S.W.3d at 151-52. Further, to the extent relators assert a request for mandamus relief pursuant to the general mandamus power of this Court granted by article five of the Texas Constitution and government code section 22.221, we must determine whether relators have established the requisites for such relief. See O’Connor, 837 S.W.2d at 97; Doctors Hosp. Facilities, 750 S.W.2d at 178; Axelson, Inc., 798 S.W.2d at 556; Bantuelle, 620 S.W.2d at 639.

Section 145.003 provides the means to obtain an administrative declaration of whether a candidate is ineligible to appear on the ballot. Under the plain language of section 145.003(g), the “appropriate authority” has a duty to “promptly review the record” when an application or public record is “presented.” Tex. Elec.Code Ann. § 145.003(g). Then, after the necessary presentment of “the record” and prompt review, there is at least one other, separate step in the process. That is, should “the authority” determine the record establishes ineligibility, “the authority shall declare the candidate ineligible.” Id. The “appropriate authority” cannot make an administrative determination of whether the public record conclusively establishes ineligibility until after he has been presented with such records. “The rule is that election officials, charged with the duty of certifying names to properly appear on the ballot, have no authority to inquire into facts dehors the record.” Witherspoon v. Pouland, 784 S.W.2d 951, 954 (Tex.App.-Dallas 1990, orig. proceeding).

Relators do not assert, and the record does not show, that prior to the filing of this proceeding, (1) the purported public records at issue were “presented” to the “appropriate authority” for prompt review or (2) a demand for performance or refusal occurred. Accordingly, relators have not shown that they are entitled to relief pursuant to this Court’s specific or general power of mandamus. See Tex. Elec.Code Ann. § 145.003(g), § 273.061; O’Connor, 837 S.W.2d at 97; Doctors Hosp. Facilities, 750 S.W.2d at 178; Axelson, Inc., 798 S.W.2d at 556 (“In order for mandamus to lie regarding this point, the respondent ... must have refused to act....”); Bantuelle, 620 S.W.2d at 639; see also In re Link, 45 S.W.3d at 151-52 (before writ of mandamus will issue, relator must establish clear legal right to action he seeks to compel, and duty of officer sought to be compelled must be clearly fixed and required by law).

Relators assert that, by filing their petition, they have presented the appropriate respondent with public documents relating to Birdwell’s residency and thus triggered his obligation to review them and ascertain whether they conclusively prove Birdwell’s ineligibility. Such a holding would, in general, effectively do away with the requirement that the person who has the duty must refuse a demand to perform a ministerial act before being made subject to a mandamus proceeding. Further, and specifically, such a holding here would improperly combine section 145.003(f)’s administrative, non-judicial procedure for initially determining whether a candidate is ineligible with a judicial proceeding seeking mandamus relief. We decline to hold that relators can bootstrap their right to mandamus relief by proceeding directly to court while ignoring two of the prerequisites for the relief they seek. That is, a demand upon the respondent for performance and a refusal of that demand. We conclude relators have not shown they are entitled to mandamus relief. See O’Connor, 837 S.W.2d at 97; Axelson, Inc., 798 S.W.2d at 556; see also In re Link, 45 S.W.3d at 151-52.

Further, even if the mere filing of relators’ petition for writ of mandamus was sufficient to trigger a duty by the appropriate respondent to review the records at issue pursuant to section 145.003, and/or constituted a demand for performance that was followed by a refusal, we cannot make the determinations requested by relators on the record before us. Rela-tors contend “[bjecause public records prove Brian Birdwell was a resident of Virginia at least in November, 2006, he is ineligible for election to the Texas Senate.” In support of their contentions, relators expressly rely upon and bring to our attention documents in their appendix identified as “Virginia Voter Registration” and “Virginia Voter History,” located at tabs one and two of the appendix. These documents appear to be photocopies of pages from a website. They purport to show a “voter overview” for Birdwell. The first document contains only the following below the copy of the website page: a handwritten note stating “certified copy made in Prince William County, Va April 1, 2010 by” and a notary seal stamp. On the second document, below a copy of a page from a website, is a notary seal stamp, but no handwritten note. Neither document contains a notary jurat or signature, or any authentication or certification. Also, specifically relied upon by relators are documents found at three and four of the appendix. These appear to be photocopies of two Virginia resident freshwater fishing licenses. Below the copy of each license, on the blank part of the sheets of paper containing the copy of the license, are notary signatures, seals, and stamps that state the following, with the underlined portions handwritten: “I hereby certify that the attached document is a true and exact copy of a fishing license presented before me this 1 day of April 2010.” The licenses are printed in Birdwell’s name and show a Virginia address, but are unsigned.

Relators argue “Birdwell’s voting in Virginia in 2006, coupled with other public records, establishes his residency in Virginia during that time.” Relators state in their “certification” that all the documents in the appendix, including those described above, are “true and correct copies to the best of my knowledge.” However, these purported voting records and other documents purporting to address residency are not properly sworn or certified. See In re Butler, 270 S.W.3d 757, 759 (Tex.App.-Dallas 2008, orig. proceeding) (concluding relators’ 52.3(k) affidavit was insufficient where relators swore the copies were true and correct “to my knowledge”); Tex. R.App. P. 52.3(k). Further, none of the documents relied upon by relators contains any verification as to authenticity. Cf. Tex.R. Evid. 901(b)(7) (requirement of authentication or identification regarding public records or reports); id. 902(2), (4) (self-authentication regarding domestic public documents and certified copies of public records). Finally, while relators assert Birdwell “does not contest the veracity of the public records nor does he dispute the critical facts stated therein,” the record does not show Birdwell admits such veracity or facts. Rather, the record shows Birdwell has offered documents purporting to establish the “temporary” nature of his presence in Virginia, thereby creating a fact issue. See Tex. Elec.Code Ann. § 1.015. We may not resolve factual disputes in a mandamus proceeding. See In re Jackson, 14 S.W.3d at 846 (courts of appeal lack authority to resolve factual disputes in a mandamus proceeding).

Relators admit the “Press Clippings” found at tab 8 of their appendix do not constitute public records. They state they attached these documents “merely ... to show the history in this case, to support collateral facts, notice to the Respondents, and to support the fact that the equities are in Relators’ favor.” They contend the Court can “consider the press clippings for their limited purpose.” Rela-tors’ argument shows the fundamental flaw in their request for relief. Relators seek a determination from this Court as to whether Birdwell is, in fact, ineligible as a candidate. We have no authority to make such a factual determination. See id. Rather, the only ultimate issue before this Court is whether, as a matter of law, rela-tors have shown they are entitled to mandamus relief as against either respondent.

“Unless the facts relied upon for disqualification are conclusively established by another public record, the election official is without authority to rely on them.” Witherspoon, 784 S.W.2d at 954 (citing Garcia v. Carpenter, 525 S.W.2d 160, 161 (Tex.1975); Weatherly v. Fulgham, 153 Tex. 481, 271 S.W.2d 938, 941 (1954)). We conclude the “records” relied upon by rela-tors, i.e., the documents attached to their petition and in the condition described above, do not conclusively establish Bird-well is an ineligible candidate for the Texas Senate. See id.; Tex. Elec.Code Ann. § 145.003(f)(2). Further, relators do not contend, and the record does not show, that information on any application by Birdwell for a place on the ballot indicates that he is ineligible for the office. See Tex. Elec.Code Ann. § 145.003(f)(1).

Finally, we address relators’ assertion that, should this Court deny relief, we

will have voided a provision in the State Constitution and ... will have declared Texas a political free range where candidates from anywhere in the state can move to another area on a whim and seek public office. Candidates from out of state can similarly come here and seek election despite their legal residency in other states.

Relators’ assertion is groundless. The law provides avenues for relief of any violation of the election code. See id. § 273.081 (availability of injunctive relief for person harmed or in danger of being harmed by a violation or threatened violation of the election code); see also id. §§ 145.003(h), 145.005 (procedure generally for determination of ineligibility occurring after the deadline for omitting an ineligible candidate’s name from the ballot).

III. CONCLUSION

We conclude relators have not shown they are entitled to the relief requested. Accordingly, we deny relators’ petition for writ of mandamus. See Tex.R.App. P. 52.8(a). By separate order, we deny Bird-well’s and Munisteri’s joint emergency motion to dismiss.

Because of the apparent limited time remaining as to certain deadlines identified by the relators with regard to the general election, see Tex. Elec.Code Ann. § 145.064-.065, no motion for rehearing will be entertained.

      . This proceeding was originally filed in the Second District Court of Appeals in Fort Worth and was forwarded to this Court pursuant to Texas Rules of Appellate Procedure 17.1 and 17.2. See Tex.R.App. P. 17.1, 17.2.


author: Justice FRANCIS.

text:
    In re Ann Elizabeth WIXOM, Relator.
    No. 05-10-00806-CV.
    Court of Appeals of Texas, Dallas.
    Aug. 19, 2010.
    Russell W. King, The King Law Office, for Relator.
    Howard Shapiro, The Shapiro Law Firm, Plano, for Real Party in Interest.
    Before Justices MOSELEY, FRANCIS, and FILLMORE.
   OPINION

Opinion by

Justice FRANCIS.

Before the Court is relator’s petition for writ of habeas corpus based on the trial court’s order of commitment dated February 6, 2009. Among other issues, relator complains that she was not provided with notice of the hearing at which she was adjudged to be in contempt and ordered committed to county jail. Real party in interest was afforded an opportunity to respond and did not respond. We agree with relator. Accordingly, we grant the writ of habeas corpus, set aside the order of commitment, and order relator discharged.

The underlying lawsuit was a divorce proceeding between relator and real party in interest. After the trial court signed the final decree of divorce, real party in interest filed a petition for enforcement of property division by contempt alleging four violations of the final decree dealing with the delivery of items of personal property by relator to real party in interest. On January 8, 2009, the court conducted a hearing and found relator in contempt for each violation alleged in the petition. The trial court sentenced relator to 180 days in jail but suspended the imposition of sentence conditioned on relator’s compliance with certain conditions dealing with the delivery of the items of personal property. As ordered by the court, relator returned to court January 22 for a progress report but was told by court personnel that the matter would be rescheduled. On February 5, 2009, the court held another hearing, found relator in contempt and sentenced her to 180 days in jail. On February 5, the court signed an order of enforcement by contempt of property division and suspension of commitment reflecting its January 8 ruling and, on the following day, February 6, signed an order revoking suspension and for commitment to the county jail.

Relator complains that she never received notice of the February 5, 2009, hearing, and the record does not reflect that any notice was given. As an alleged contemnor, relator was entitled to adequate notice before being adjudged guilty of contempt. Ex parte Vetterick, 744 S.W.2d 598, 599 (Tex.1988) (orig. proceeding). Because relator did not receive such notice, we GRANT habeas corpus relief and VACATE the February 6, 2009 commitment order in cause number 366-53527-06, styled In the Matter of the Marriage of Ann Elizabeth Woolman and Charles Edward Woolman. We ORDER that relator Ann Elizabeth Wixom be unconditionally released and discharged from the custody of the Sheriff of Collin County pursuant to that same order of commitment.


author: Justice FILLMORE.

text:
    Roosevelt TAYLOR, Jr., M.D., Appellant, v. LaToya FOSSETT, Appellee.
    No. 05-09-01271-CV.
    Court of Appeals of Texas, Dallas.
    Aug. 25, 2010.

      J. Wade Birdwell, D. Michael Wallach, Leslie Ann Dillon Thomas, Wallace, Andrews & Stouffer, P.C., Fort Worth, TX, for Appellant.
    Douglas Michael Wood, Law Firm of Douglas Wood, Dallas, TX, for Appellee.
    Before Justices MOSELEY, BRIDGES and FILLMORE.
   OPINION

Opinion By

Justice FILLMORE.

This interlocutory appeal follows the trial court’s refusal to dismiss LaToya Fos-sett’s health care liability claims against Roosevelt Taylor, Jr., M.D. Dr. Taylor contends the trial court erred by denying his motion to dismiss, which challenged the sufficiency of Fossett’s initial and supplemental expert reports, and by denying him attorney’s fees and costs. We reverse the trial court’s order and remand to the trial court for the limited purposes of determining Dr. Taylor’s reasonable attorney’s fees and costs and for entry of a final order dismissing Fossett’s claims with prejudice.

Background

Given the procedural posture of this case, we draw the facts from the allegations in Fossett’s petition. On November 1, 2006, Fossett was admitted under Dr. Taylor’s care to Mesquite Community Hospital for induction of labor. There were complications with the delivery and Dr. Taylor performed a cesarean section birth. A few days later, an infection developed in the cesarean section incision. According to Fossett, Dr. Taylor failed to culture the infection and failed to document abdominal fascial integrity during Fossett’s hospitalization. Fossett was discharged from the hospital on November 4, 2006. She was seen by Dr. Taylor in his office three days later on November 7, 2006. Dr. Taylor evaluated Fossett’s condition and prescribed the oral antibiotic Keflex. According to Fossett, Dr. Taylor failed at that time to culture the incision infection and to document abdominal fas-cial integrity. On November 9, 2006, Fos-sett went to the Baylor Hospital Emergency Department. She was diagnosed with cellulitis, hospitalized, and placed on intravenous antibiotics. A bacterial culture showed the infection to be methicillin resistant staphylococcus aureus (MRSA). Fossett was hospitalized for two weeks. While hospitalized, Fossett underwent two surgical procedures relating to wound de-hiscence and drainage from the incision. According to Fossett, she continues to suffer bowel and abdominal pain, has permanent scarring and disfigurement of her abdomen, and will require plastic surgery.

Fossett filed suit against Dr. Taylor. Fossett alleges that Dr. Taylor’s failure following a caesarian section to timely diagnose and treat her for an incision infection, wound dehiscence and cellulitis involving MRSA proximately caused her to suffer injuries and otherwise avoidable surgical intervention. Fossett contends Dr. Taylor was negligent in (1) failing to diagnose incision infection, wound dehis-cence and cellulitis; (2) failing to timely communicate with the patient and document cellulitis; and (3) failing to document abdominal fascial integrity, obtain bacterial cultures, evaluate for and administer appropriate medical care, including hospitalization, and treat spreading cellulitis.

Pursuant to section 74.351 of the Texas Civil Practice and Remedies Code, Fossett served Dr. Taylor with an expert report prepared by Dr. Adam S. Levine, a practicing obstetrician and gynecologist, in support of her claims. In his expert report, Dr. Levine asserted that Dr. Taylor deviated from the accepted standard of care for post-operative surgical wound infection and his deviations from the standard of care were the proximate cause of Fossett’s complications and injuries. In his report, Dr. Levine stated:

Dr. Taylor provided LaToya Fossett with ante- and post- natal care. Dr. Taylor performed LaToya Fossett’s cesarean section, which included making the surgical incision which ultimately became infected. Dr. Taylor breached the standard of care because: 1) neither a weight nor a blood pressure were recorded on the first post-operative visit for LaToya Fossett; 2) aside from a foul odor and draining, no information was recorded with regard to when the pain became worse, when the drainage began, or whether there was any redness or swelling; 3) no documentation was provided with Regard to the size or extent of the wound infection and there was no documentation regarding fascial integrity; 4) no bacterial wound cultures were taken; 5) Dr. Taylor prophylac-tieally prescribed the same antibiotics that had no impact earlier in LaToya Fossett’s pregnancy; 6) Dr. Taylor failed to order re-evaluation within 24 to 48 hours and instead ordered it for a week later; 7) Dr. Taylor ordered wound compresses but failed to document or instruct LaToya Fossett any (sic) form of wound care, irrigation or cleaning.
Because Dr. Taylor documented a surgical wound infection with “copious pus” and failed to provide LaToya Fossett with treatment in accord with the standard of care, Fossett required admission to Baylor Hospital. Unfortunately, this admission was within 48 hours of Dr. Taylor’s evaluation and order to followup one week later. At Baylor Hospital, LaToya Fossett was evaluated according to the standard of care and ultimately subjected to two surgical wound explorations, a prolonged hospital stay, a larger incision and scar, and long-standing abdominal pain. Had Dr. Taylor appropriately evaluated and treated LaToya Fos-sett in a timely fashion according to the standard of care, she might have been admitted to the hospital earlier and required only one, if any, surgical wound explorations (sic). She would most likely not have required two surgeries. Had Dr. Taylor appropriately evaluated and treated LaToya Fossett she would not have required as prolonged a hospital stay because the infection got worse each day and smaller infections are easier to treat than larger infections.
Dr. Taylor’s failure to meet to (sic) the applicable standard of care, as described above, in all medical probability, was the proximate cause of the injuries LaToya Fossett suffered. As a result of Dr. Taylor’s failure to meet the applicable standard of care LaToya Fossett required: 1) At least one surgical wound exploration that might not have been necessary; 2) A hospital stay that was longer than should have been necessary had she been admitted 48 hours sooner; 3) A longer recovery than should have been necessary had she been admitted 48 hours sooner; 4) a larger scar; and 5) continued abdominal pain and discomfort.

Dr. Taylor challenged the legal sufficiency of Dr. Levine’s report as failing to comply with the statutory requirements of section 74.851 and moved to dismiss Fos-sett’s health care liability claims with prejudice pursuant to section 74.351(b). See Tex. Civ. Prag & Rem.Code Ann. § 74.351(b) (Vernon Supp. 2009) (if health care liability claimant does not serve expert report as required, the trial court must, upon motion by affected health care provider or physician, dismiss claim with prejudice). He argued the report was legally insufficient to satisfy the statutory requirements because Dr. Levine’s opinions regarding the alleged violations of the standard of care and the alleged causal connection between such violations and injuries and damages claimed by Fossett were conclusory. After a hearing, the trial court concluded Dr. Levine’s report was insufficient under section 74.351. The trial court, however, granted Fossett a thirty-day extension under section 74.351(c) “to cure a causation deficiency” in her expert’s report:

namely, whether in Dr. Levine’s opinion, Dr. Taylor’s failure to meet the appropriate standard of care in post-surgical wound care more likely than not or -within reasonable medical probability caused LaToya Fossett to have one or more exploratory surgeries. The current language in the report is insufficient regarding the exploratory surgeries.

See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(c) (trial court may grant extension to party that failed to serve expert report because timely served report found to be deficient). The trial court overruled any other objections to the report.

Within the thirty-day extension period, Fossett served a supplemental report prepared by Dr. Levine. Dr. Levine’s supplemental report stated:

My original opinions regarding the medical care Dr. Taylor provided LaToya Fossett remain unchanged. Dr. Taylor failed to meet an appropriate standard of care for a post-surgical wound. Specifically, Dr. Taylor failed to timely examine, culture, investigate or treat what was an obvious post-surgical wound complication. Dr. Taylor’s failure to examine, culture, investigate or treat La-Toya Fossett’s surgical wound more likely than not and within a reasonable degree of medical probability caused La-Toya Fossett to have one or more exploratory surgeries and debridements. Dr. Taylor should have appropriately examined LaToya Fossett.
Further, Dr. Taylor should have recognized the possibility of MRSA infection because MRSA infections are common iatrogenic infections in hospitals. Had Dr. Taylor examined or cultured LaToya Fossett’s surgical wound, Dr. Taylor might have properly diagnosed MRSA and begun treatment with appropriate antibiotic therapy it (sic) is more likely than not that LaToya Fossett would not have required subsequent surgeries which resulted in significant pain and permanent scarring.
Finally, it is my opinion, based on a reasonable degree of medical probability, that Dr. Taylor deviated from the accepted standard of care in this case and that his deviations from the standard of care caused LaToya Fossett’s injuries.

Dr. Levine’s supplemental report added one opinion 'on causation that was not contained in his original report: “Had Dr. Taylor examined or cultured LaToya Fos-sett’s surgical wound, Dr. Taylor might have properly diagnosed MRSA and begun treatment with appropriate antibiotic therapy it (sic) is more likely than not that LaToya Fossett would not have required subsequent surgeries which resulted in significant pain and permanent scarring.”

Dr. Taylor again objected to the report and moved to dismiss Fossett’s claims for failure to serve a sufficient expert report under section 74.351. He contended that Dr. Levine’s opinions set forth in his original and supplemental reports, whether the reports are considered separately or collectively, were conclusory and lack sufficient factual specificity with regard to the violations of the standard of care alleged against Dr. Taylor and the alleged causal connection between any such violations and the injuries and damages claimed by Fossett. He further contended that the supplemental report, like the original report, merely concluded that Dr. Taylor caused Fossett’s injuries by breaching the standard of care. After a hearing, the trial court found that the expert report of Dr. Levine was sufficient and satisfied the requirements of section 74.351. See Tex. Civ. Prac. & Rem.Code Ann. §§ 74.351(i), 74.351(r)(6).

The trial court denied Dr. Taylor’s motion to dismiss. Pursuant to section 51.014(a)(9) of the civil practice and remedies code, Dr. Taylor brought this interlocutory appeal challenging the trial court’s denial of his motion to dismiss. See Tex. Civ. PRAC. & Rem.Code Ann. § 51.014(a)(9) (Vernon 2008).

Standard of Review and Applicable Law

Dr. Taylor asserts the trial court abused its discretion when it denied his motion to dismiss because Dr. Levine’s original and supplemental expert reports, whether considered separately or collectively, are legally and factually insufficient and conclusory. We review a trial court’s order on a motion to dismiss a health care liability claim for an abuse of discretion. See Am. Transitional Care Ctrs. of Texas v. Palacios, 46 S.W.3d 873, 875 (Tex.2001); Nexion Health at Terrell Manor v. Taylor, 294 S.W.3d 787, 791 (Tex.App.-Dallas 2009, no pet.). A trial court has no discretion in determining what the law is or in applying the law to the facts. See Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992) (orig. proceeding). An abuse of discretion occurs if the trial court clearly fails to analyze or apply the law correctly. Id.

Under section 74.351 of the civil practice and remedies code, any person who brings suit asserting a health care liability claim must, within 120 days of filing the original petition, provide an expert report for each physician or health care provider against whom a claim is asserted. Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a). “Expert report” means a written report that provides a fair summary of the expert’s opinions as to the applicable standards of care, the manner in which the care rendered failed to meet those standards, and the causal relationship between that failure and the injury, harm, or damages claimed. Tex. Civ. Prac. & Rem.Code Ann. § 74.351(r)(6); see also, Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002). An expert report must provide enough information to fulfill two purposes if it is to constitute an objective, good faith effort to comply with the definition of an expert report under section 74.351(r)(6). The report must inform the defendant of the specific conduct the plaintiff has called into question and must provide a basis for the trial judge to conclude the claims have merit. Leland v. Brandal, 257 S.W.3d 204, 206-07 (Tex.2008); Palacios, 46 S.W.3d at 879.

An expert report need not marshal all the plaintiffs proof. Wright, 79 S.W.3d at 52. However, it must do more than merely state the expert’s conclusions about the standard of care, breach, and causation; it must explain the basis of the expert’s statements and link his conclusions to the facts. Id. The report must contain sufficiently specific information to demonstrate causation beyond conjecture. See, Farishta v. Tenet Healthsystem Hosps. Dallas, Inc., 224 S.W.3d 448, 453 (Tex.App.-Fort Worth 2007, no pet.). The report must not be conclusory in its explanation of causation; it must explain the basis of its statements sufficiently to link its conclusions to the facts. Wright, 79 S.W.3d at 52; Quinones v. Pin, 298 S.W.3d 806, 810 (Tex.App.-Dallas 2009, no pet.); see also, Arkoma Basin Exploration Co. v. FMF Assocs. 1990-A, Ltd., 249 S.W.3d 380, 389 n. 32 (Tex.2008) (quoting Black’s Law Dictionary 308 (8th ed. 2004)) (defining conclusory as “[expressing a factual inference without stating the underlying facts on which the inference is based”). Thus, courts have reasoned that an expert report that describes causation in terms of mere possibilities does not accomplish the purpose of providing “a basis for the trial court to conclude that the claims have merit.” Wright, 79 S.W.3d at 52; see also Quinones, 298 S.W.3d at 815-16.

In determining whether a report complies with the requirements of section 74.351(r)(6), the court may not look beyond the report itself, because all information relevant to the inquiry should be contained within the document’s four corners. Wright, 79 S.W.3d at 52; Nexion Health at Terrell Manor, 294 S.W.3d at 791. A trial court must grant a motion to dismiss a plaintiffs claims for failure to file an adequate expert report only if it appears to the court, after hearing, that the report does not represent an objective good-faith effort to comply with the statutory definition of an expert report. Tex. Civ. Prac. & Rem.Code Ann. § 74.351(Z); see also, Palacios, 46 S.W.3d at 878.

Analysis

Dr. Levine opined in his original report that Dr. Taylor breached the applicable standard of care by failing to order re-examination of Fossett within 24 to 48 hours of her post-operative office visit, causing Fossett to suffer (1) at least one surgical wound exploration that might not have been necessary, along with resulting scarring and continued pain and discomfort and (2) hospitalization and recovery that was more lengthy “than should have been necessary had she been admitted [to the hospital] 48 hours sooner.” Dr. Levine’s supplemental report added the opinion that had Dr. Taylor examined or cultured Fossett’s surgical wound, he might have properly diagnosed MRSA and begun treatment with appropriate antibiotic therapy, thereby avoiding subsequent surgeries, pain, and permanent scarring.

Dr. Levine’s supplemental report incorporated his original report. Therefore, in this analysis we collectively refer to the original and supplemental reports as Dr. Levine’s “report.” Dr. Levine’s report emphasized the significance of the 24 to 48 hour period following Fossett’s office evaluation by Dr. Taylor:

Because of the possibility of worsening infection resulting in significant morbidity and mortality, [women with post-operative surgical incision] require both careful and frequent assessment of their surgical wounds every 24 to 48 hours by qualified personnel such as their physician, by wound management personnel, or by home health nursing.
Antibiotics for minor infections may be given by mouth; provided the patient is seen within 24 to 48 hours to assess that the infection is not getting worse.
Dr. Taylor failed to either admit LaToya Fossett to the hospital or to re-evaluate her within 24 to 48 hours [of Fossett’s office evaluation by Dr. Taylor],
The standard of care for evaluation and treatment of a post-operative surgical wound infection requirefs] ... either admitting the patient to a hospital or arranging for close outpatient follow-up and re-evaluation within 24 to 48 hours....

According to Dr. Levine’s report, Fossett was hospitalized “within 48 hours” of her post-operative visit in Dr. Taylor’s office. Fossett’s arrival at Baylor Hospital occurred within the time frame Dr. Levine determined a re-evaluation to be appropriate and consistent with the applicable standard of care. Had Dr. Taylor scheduled Fossett for re-evaluation 48 hours after her post-operative office visit, consistent with the standard of care articulated by Dr. Levine, the progression of Fossett’s infection and wound dehiscence presumably would have been no more advanced or severe than the condition actually treated at Baylor Hospital following Fossett’s arrival at the hospital within that same 48-hour period.

Dr. Levine did not assert in his report that had Fossett been re-evaluated by Dr. Taylor within 48 hours of her post-operative office visit, she would have avoided hospitalization and surgical treatment. Rather, Dr. Levine opined that the duration of Fossett’s hospitalization and recovery would not have been longer than it “should have been.” Dr. Levine provided no facts in his report concerning the expected duration of Fossett’s hospitalization and recovery in the absence of the alleged negligence of Dr. Taylor. Accordingly, Dr. Levine’s report presented no factual basis for a conclusion that Dr. Taylor’s alleged negligence resulted in a period of hospitalization and recovery that was longer than it would have been in the absence of such alleged negligence.

Dr. Levine’s report claimed that as a result of Dr. Taylor’s failure to meet the applicable standard of care, Fossett required at least one surgical wound exploration that might not have been necessary, sustained a larger scar from additional surgery and suffered continued pain and discomfort. He asserted that if Dr. Taylor had “appropriately evaluated and treated Fossett in a timely fashion according to the standard of care, she might have been admitted to the hospital earlier and required only one, if any, surgical wound explorations (sic). She would most likely not have required two surgeries.” (Emphasis added.) Again, Dr. Levine’s standard of care did not call for wound reevaluation until up to 48 hours from the time of Fossett’s post-operative office visit with Dr. Taylor. Within 48 hours of Fos-sett’s office visit with Dr. Taylor, she was being treated at Baylor Hospital. Accordingly, Dr. Levine’s report presented no factual basis for a conclusion that Dr. Taylor’s alleged negligence resulted in surgical procedures, scarring, and pain that would not have occurred in the absence of such alleged negligence. Moreover, Dr. Levine’s report suggested only that in the absence of the alleged negligence, Fossett might have been admitted to the hospital earlier and required only one, if any, surgical wound exploration. A description of only a possibility of causation is not sufficient to satisfy requirements concerning the necessary content of an expert report. See Wright, 79 S.W.3d at 53.

Dr. Levine’s report claimed that had Dr. Taylor examined or cultured Fossett’s surgical wound, he might have properly diagnosed MRSA and begun treatment with appropriate antibiotic therapy, thereby avoiding subsequent surgeries, pain, and permanent scarring. This attempt to establish causation also suffers from the infirmity that it presents only a possibility of causation. See id. Dr. Levine’s report presented no factual basis for a conclusion that had Dr. Taylor examined or cultured Fossett’s surgical wound, properly diagnosed MRSA, and begun treatment with appropriate antibiotic therapy, the subsequent surgical procedures, pain, and permanent scarring would have been avoided.

Dr. Levine’s report omitted any factual explanation of how any act or omission by Dr. Taylor in delaying diagnosis and treatment of Fossett’s condition for no more than 48 hours proximately caused additional complications or surgical interventions. Dr. Levine explained neither the impact of the alleged 48-hour delay in re-evaluation of Fossett on the nature and severity of the underlying infection nor in what manner the infection developed or changed in that period of time necessitating surgery that otherwise would not have been required. Dr. Levine’s report left the trial court to infer that the alleged delay in diagnosis and treatment proximately caused the additional surgery, pain and scarring without actually providing a factual basis for the trial court to so infer. Cf. Mosely v. Mundine, 249 S.W.3d 775, 780 (Tex.App.-Dallas 2008, no pet.) (comparative description of nodule and growth of mass after two-year delay in diagnosis provided factual basis for conclusion that failure to identify nodule led to invasive and aggressive treatment claimant underwent).

Dr. Levine’s report failed to articulate a causal connection between Dr. Taylor’s care of Fossett and the injuries that allegedly resulted. Dr. Levine’s statements concerning causation are conclusory, suggest only the possibility of causation, and are unsupported by a factual basis within the four corners of the report. Considering the report and applicable law, we conclude the report constitutes a factually and legally insufficient basis for the trial court to determine whether Fossett’s claims have merit. See Leland, 257 S.W.3d at 206-07. We conclude the trial court abused its discretion in denying Dr. Taylor’s motion to dismiss based on an inadequate expert report.

Dr. Taylor asserts the trial court abused its discretion in failing to award him attorney’s fees and costs. Section 74.351(b) requires that if an expert report has not been served within the statutorily required period of time, upon the motion of the affected physician or health care provider, the trial court shall enter an order awarding reasonable attorney’s fees and costs and dismiss the claim with prejudice. Tex. Civ. Prac. & Rem.Code Ann. § 74.351(b); see also, Hernandez v. Ebrom, 289 S.W.3d 316, 318 (Tex.2009) (“If a timely and sufficient report is not served, the trial court must award the provider its attorney’s fees and costs and dismiss the case with prejudice.”). Having concluded that the trial court should have granted Dr. Taylor’s motion to dismiss as to Fos-sett’s claims, under section 74.351(b) of the civil practice and remedies code, the trial court erred in denying Dr. Taylor’s request for reasonable attorney’s fees and costs of court. Accordingly, we sustain Dr. Taylor’s assertion of entitlement to his reasonable attorney’s fees and costs under section 74.351(b).

Conclusion

We reverse the trial court’s order denying Dr. Taylor’s motion to dismiss. We remand this case to the trial court for the limited purposes of determining and awarding Dr. Taylor reasonable attorney’s fees and costs and for entry of a final order dismissing Fossett’s claims against Dr. Taylor with prejudice.

      . Dr. Levine expressly incorporated the opinions he expressed in his original expert report in his supplemental expert report. On appeal, Fossett contends that "taken together,” Dr. Levine's original and supplemental reports comply with the statutory requirements of section 74.351. Reports may be considered together in determining whether a claimant provided a report meeting the statutory requirements. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(i); see also, Packard v. Guerra, 252 S.W.3d 511, 527 (Tex.App.-Houston [14th Dist.] 2008, pet. denied) (“If a plaintiff can rely on more than one report to satisfy the standard of care, breach, and causation, we see no violation of section 74.35l(i) just because a plaintiff attempted to cure an insufficient report with supplemental reports and refiled expert reports some of which initially were found to be insufficient.”).
      We disagree with Fossett's argument on appeal that Dr. Taylor is precluded from raising objections to Dr. Levine's initial report because Dr. Taylor did not seek relief from this Court at the time of the trial court's order regarding that report. See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(9) (Vernon 2008) (no appeal may be taken from trial court's order granting extension under section 74.351(c)); see also, Ogletree v. Matthews, 262 S.W.3d 316, 321 (Tex.2007) (in cases where report that implicated health care provider's conduct was served and trial court granted extension under section 74.351(c), appellate courts are without jurisdiction to reach merits of motion to dismiss).

        . Dr. Levine's original report contains numerous purported breaches of the standard of care by Dr. Taylor. Here, the analysis is dedicated to Dr. Levine’s opinions concerning alleged breaches of the standard of care that he asserts caused injury or damage.