Juvenile law | In the Matter of RAN (Tex.App.- Austin, July 3, 2008)(drugs)

R.A.N., a juvenile, was adjudicated delinquent for the offense of possession of marihuana and was placed on probation in his home for twelve months. See Tex. Fam. Code Ann. §§ 54.03, .04 (West Supp. 2007). Three months later, the trial court signed an order modifying R.A.N.’s probation, finding that he had violated the terms of his probation, and ordering him placed at the Travis County Leadership Academy for eighteen months. See id. § 54.05 (West Supp. 2007).

In the Matter of R. A. N. (Tex.App.- Austin July 3, 2008)
AFFIRMED: (Before Chief Justice Law, Justices Puryear and Henson)

Appeal from 98th District Court of Travis County

R.A.N. appeals, complaining that the trial court should have committed him to a residential drug treatment center instead of the Leadership Academy. We affirm the trial court’s modification order.
When R.A.N. was adjudicated delinquent for the subject offense, he had already been placed on probation four times for possession of marihuana in a drug-free zone, violation of court orders, assault, and theft. Although R.A.N. was eligible for commitment to the Texas Youth Commission, the probation department recommended that he be placed on probation and required to participate in outpatient drug treatment. The trial court agreed, and R.A.N. was placed on probation at home. About three months later, the State filed its motion to modify R.A.N.’s disposition, alleging that he had skipped and gotten suspended from school, tested positive for THC, failed to report to his probation officer, and missed several drug treatment appointments. The department recommended that R.A.N. be committed to TYC custody because he needed “a secure structured environment” to help him develop “behavior modification skills.”
At the hearing on the State’s motion, the State dropped its allegations related to skipping school, positive drug tests, and missing drug treatment, and R.A.N. pled true to the remaining allegations. R.A.N.’s probation officer testified that when R.A.N. was adjudicated delinquent three months earlier, he had been accepted by and the department recommended that he be assigned to the Leadership Academy. Instead of sending him to the Leadership Academy, however, the trial court on its “own motion” placed him on probation. The officer testified that R.A.N. and his family had not cooperated with his counselors or the department and that his mother had said “she does not feel that they need counseling.” The officer was asked why R.A.N. was not staffed for “more restrictive drug treatment,” and she replied, “He was staffed for Leadership, whatever level to upgrade the level of substance abuse, Leadership.” The officer said that R.A.N.’s family wanted him to get residential drug treatment, but that they were “open to” both drug treatment and “Leadership if it turns out that his problem is more of a behavioral issue.” Although the department recommended TYC commitment, the Leadership Academy had agreed to reconsider R.A.N. R.A.N.’s father testified and said that he wanted R.A.N. to receive drug treatment and that he “[w]ould . . . like to see [R.A.N.] staffed for inpatient drug treatment or Leadership, something along that line.” He testified, “We don’t have behavioral problems with [R.A.N.] . . . The main problem is . . . the drugs.” He denied that he and his family were uncooperative.

At the conclusion of the hearing, the trial court said,

We have two programs that are appropriate for [R.A.N.] One is the Leadership program and one is the CHOICES program. . . . So I don’t really want to put [R.A.N.] in the Texas Youth Commission since he just barely turned 15. I cannot in good conscious [sic] return him home because he’s been unsuccessful at home. He will not follow the Court’s rules, parent’s rules, he won’t stay drug free permanently, all that sort of stuff. So I’m going to have our residential program interview him and his folks and decide which one is more appropriate, make a recommendation whether it should be the CHOICES program or whether it should be a behavioral program rather than a drug treatment program, figure out which one seems to be more appropriate.


The residential services representative told the court that he had already interviewed R.A.N. and that his department believed “that regular Leadership is more appropriate for [R.A.N.]” In closing statements, R.A.N.’s attorney said that his family believed drug treatment was more appropriate but that they were “willing to cooperate with Leadership if it turns out that that is more appropriate,” and asked the court to “make sure that Leadership is a more appropriate program for him.” The State asked the court to send R.A.N. to the Leadership Academy. The court noted that it was “hard to figure out quite honestly whether his is a drug problem or . . . a behavior problem and just one of his misbehaviors happens to be that every now and then he will use drugs.” The court acknowledged that the residential services department believed the Leadership Academy was “the best fit” and would deal “with his issues better than the other programs.” The court then held that it was going to follow the residential services department’s recommendation and placed R.A.N. on probation in the Leadership Academy for eighteen months.
R.A.N. asserts that the evidence showed that he “[c]learly needed drug treatment and thus commitment to the Leadership Academy . . . was not in his best interest.” He argues that the trial court’s decision “in not giving appellant the drug treatment which he needed goes against” the juvenile justice system’s goal of rehabilitation and was an abuse of discretion. We disagree.
A trial court has broad discretion to decide the suitable modification of disposition for a juvenile who has been adjudicated delinquent. In re E.D., 127 S.W.3d 860, 862-63 (Tex. App.—Austin 2004, no pet.). We will not disturb the court’s determinations in a modification proceeding unless the record reflects a clear abuse of discretion, which occurs if the court acts arbitrarily, unreasonably, or without reference to guiding rules and principles. Id. at 863.
When R.A.N. was adjudicated for the subject offense, the probation department recommended that he be placed at the Leadership Academy. The residential services department interviewed him and recommended the Leadership Academy instead of drug treatment. The trial court noted its concerns about whether R.A.N.’s problems were behavioral, with drug abuse being one of his misbehaviors of choice, or related to drug addiction and then opted to follow the experts’ recommendation that he be sent to the Leadership Academy. Based on the record before us, we cannot hold that this decision was an abuse of the trial court’s broad discretion in deciding when and how to modify a juvenile’s disposition. See id. We affirm the trial court’s modification order.

__________________________________________
David Puryear, Justice
Before Chief Justice Law, Justices Puryear and Henson
Affirmed
Filed: July 3, 2008

Juvenile Cases | In the Matter of S.C. (Tex.App.- Austin, July 3, 2008) (capital murder)

In March 2002, the trial court found that S.C., who was sixteen at the time, had committed the offense of capital murder when he shot and killed Jesse Rangel, Jr., during an aggravated robbery, adjudicated him delinquent, and committed him to the custody of the Texas Youth Commission for a determinate forty-year sentence.

AFFIRMED: (Before Justices Patterson, Puryear and Pemberton)

In the Matter of S. C.--Appeal from 98th District Court of Travis County

In February 2006, TYC asked to have S.C. transferred from TYC custody to the Texas Department of Criminal Justice to serve the remainder of his sentence. On April 6, 2006, the trial court held a hearing on TYC’s transfer request (the “transfer/release hearing”), see Tex. Fam. Code Ann. § 54.11 (West Supp. 2007) (on receipt of TYC request for transfer to TDCJ, court must hold hearing and decide whether to transfer juvenile or release juvenile under supervision), and ordered S.C. transferred to TDCJ custody for the completion of his sentence. S.C. appeals, arguing that the trial court erred in admitting into evidence a recent psychological evaluation of S.C. on which TYC relied in part for its transfer request. We affirm the trial court’s transfer order.
At the transfer/release hearing, Leonard Cucolo, court liaison for TYC, provided copies of TYC’s business records related to S.C. When TYC sought to admit the records, S.C. objected that the records included pre-sentence reports from the Austin Police Department. The trial court stated that it was admitting the exhibits but would not consider the police reports. S.C. then immediately objected “with regard to the psychological evaluation” performed in October 2005 by associate psychologist Jackie Daiss, complaining that S.C. was not formally warned of his Miranda
if( bInlineFloats )
{
document.write( '' );
document.write( WPFootnote1 );
document.write( 'Close' );
document.write( '' );
}
rights. The court noted that S.C. had already been sentenced and then overruled S.C.’s objection when his attorney could produce no case law to support his objection. On appeal, S.C. complains that the trial court erred in admitting Daiss’s report because the lack of Miranda warnings violated his constitutional rights against self-incrimination.
TYC initially contends that S.C. waived any objection to Daiss’s report because his objection was untimely, made immediately after the trial court admitted the records with the caveat that it would not consider the pre-sentencing police reports, and not sufficiently specific because S.C. did not specify exactly where in the exhibits the objectionable report was located.
if( bInlineFloats )
{
document.write( '' );
document.write( WPFootnote2 );
document.write( 'Close' );
document.write( '' );
}
We disagree and hold that S.C., by raising his objection immediately after his objection to the police reports and by specifying that it was Daiss’s report to which he objected, sufficiently preserved his complaints related to his Fifth Amendment rights under the federal constitution.
if( bInlineFloats )
{
document.write( '' );
document.write( WPFootnote3 );
document.write( 'Close' );
document.write( '' );
}

After objecting to the admission of Daiss’s report, S.C. called her as a witness. Daiss essentially testified to the same information that was included in her report. She said that S.C. had made good progress until he was transferred to a different unit, that he claimed he shot the victim in self-defense, and that he showed a lack of empathy and remorse for the offense. She believed S.C. was dishonest in taking a psychological test and recommended that he be transferred to TDCJ. Daiss’s report recites the same opinions and states that the evaluation was requested to aid TYC in “determining whether [S.C.] should be returned to court for a possible waiver of his minimum period of confinement or be transferred to” TDCJ. At the beginning of the assessment, S.C. “was informed that the results of psychological testing and clinical interview would not be confidential and would be used to assist” TYC in making a recommendation in S.C.’s case. Daiss explained to S.C. “that the evaluation would become part of his permanent record available to all decision-making authorities,” and S.C. said he understood the purpose of the assessment and agreed to participate.
S.C. also called as witnesses his TYC caseworker, who testified that he had not made sufficient progress with his treatment and seemed to have developed a self-defeating attitude; and five juvenile corrections officers who supervised him and testified that he had been cooperative, polite, and respectful and was not disruptive. At the conclusion of the hearing, the trial court said it was taking as true S.C.’s claim of self-defense and stated, [W]hether you feel like you had some justification for this murder or not, there has to be an emotional reaction to what you saw and experienced and what happened. And I don’t see any. I haven’t seen any today. I don’t see any in the records. I don’t see any ability to have any feeling for human life. That makes you, sir, a dangerous person. . . . But I don’t care how you play it out, whether you killed this man in cold blood, or want to believe, and it’s true in your heart, that it was self-defense, you better find some ability to connect with your conscience. You better find some reason to change.
We review a trial court’s order transferring a juvenile to TDCJ custody for an abuse of discretion. In re F.D., 245 S.W.3d 110, 113 (Tex. App.—Dallas 2008, no pet.); In re D.L., 198 S.W.3d 228, 229 (Tex. App.—San Antonio 2006, pet. denied); In re C.L., Jr., 874 S.W.2d 880, 886 (Tex. App.—Austin 1994, no writ).
S.C. complains that the admission of Daiss’s report during the transfer/release hearing violated his Fifth Amendment privilege against self-incrimination. Assuming that S.C. did not waive any error by calling Daiss to testify about the conclusions she reached and included in her report, see Leday v. State, 983 S.W.2d 713, 717-18 (Tex. Crim. App. 1998) (“overruling an objection to evidence will not result in reversal when other such evidence was received without objection, either before or after the complained-of ruling”), a transfer/release hearing is not a trial—a juvenile’s guilt or innocence has already been determined and a sentence imposed. In re M.M., No. 03-06-00396-CV, 2008 Tex. App. LEXIS 981, at *9-10 (Tex. App.—Austin Feb. 6, 2008, pet. denied) (mem. op.); In re D.L., 198 S.W.3d at 230; In re C.L., Jr., 874 S.W.2d at 884-85. The conduct for which S.C. is being punished was already considered by the trial court, and S.C. was sentenced to a term of forty years. In this transfer/release hearing, the trial court was simply considering whether to continue S.C.’s confinement or allow his supervised release. Thus, in this “second chance hearing,” “due process requirements are not as stringent as those in an actual trial.” In re J.M.O., 980 S.W.2d 811, 813 (Tex. App.—San Antonio 1998, pet. denied); see In re D.L., 198 S.W.3d at 230; In re D.S., 921 S.W.2d 383, 387 (Tex. App.—Corpus Christi 1996, writ dism’d w.o.j.).
Section 54.11, which governs transfer/release hearings, provides that a trial court considering whether to release a juvenile under supervision or transfer him to TDCJ custody may consider “written reports from probation officers, professional court employees, professional consultants or employees of” TYC, provided that the juvenile is allowed “access to all written matter to be considered by the court” and “previous examination of all reports on and evaluations and examinations of or relating to him that may be used in the hearing.” Tex. Fam. Code Ann. § 54.11(d), (e).
if( bInlineFloats )
{
document.write( '' );
document.write( WPFootnote4 );
document.write( 'Close' );
document.write( '' );
}
As we recently said in In re M.M.:
Thus, because a transfer hearing is not a stage of a criminal prosecution, the hearing does not require the same stringent requirements as a trial in which a person’s guilt is determined, and the statute expressly provides for the consideration of the [psychological evaluation conducted for the purposes of the transfer hearing], we hold that the trial court did not err in admitting the evaluation.
2008 Tex. App. LEXIS 981, at *11. S.C. has presented us with no argument or authority explaining why we should not follow our earlier decision. Further, in In re F.D., our sister court held that the trial court’s consideration of a psychological exam conducted for a transfer/release hearing when the psychologist did not appear for the hearing did not violate the juvenile’s Sixth Amendment rights, noting that the transfer hearing “is dispositional rather than adjudicative in nature.” 245 S.W.3d at 113-14.
if( bInlineFloats )
{
document.write( '' );
document.write( WPFootnote5 );
document.write( 'Close' );
document.write( '' );
}

We hold that the trial court did not abuse its discretion in admitting Daiss’s report into evidence during S.C.’s transfer/release hearing. We overrule S.C.’s sole issue on appeal and affirm the trial court’s transfer order.

__________________________________________
David Puryear, Justice
Before Justices Patterson, Puryear, and Pemberton
Affirmed
Filed: July 3, 2008

Juvenile Cases | In the Matter of R.S. (Tex.App.- Austin 2008)

R.S., a juvenile, was adjudicated delinquent for the offense of possession of a controlled substance. See Tex. Fam. Code Ann. §§ 54.03, .04 (West Supp. 2007); Tex. Health & Safety Code Ann. § 481.117 (West 2003). Following a disposition hearing, the trial court ordered R.S. committed to the custody of the Texas Youth Commission (TYC). R.S. appeals, asserting that in reaching its disposition decision, the trial court refused to consider all possible disposition options and instead relied on admonitions given to R.S. by another judge in an earlier delinquency proceeding. We affirm the trial court’s disposition order.

In the Matter of R. S. (Tex.App.- Austin, July 3, 2008)( )(juvenile case, drugs) (Before Chief Justice Law, Justices Puryear and Henson)

In the Matter of R. S.--Appeal from 98th District Court of Travis County

M E M O R A N D U M O P I N I O N

R.S., a juvenile, was adjudicated delinquent for the offense of possession of a controlled substance. See Tex. Fam. Code Ann. §§ 54.03, .04 (West Supp. 2007); Tex. Health & Safety Code Ann. § 481.117 (West 2003). Following a disposition hearing, the trial court ordered R.S. committed to the custody of the Texas Youth Commission (TYC). R.S. appeals, asserting that in reaching its disposition decision, the trial court refused to consider all possible disposition options and instead relied on admonitions given to R.S. by another judge in an earlier delinquency proceeding. We affirm the trial court’s disposition order.

A trial court may not commit a juvenile to TYC unless it finds that commitment is in the child’s best interest, all reasonable efforts were taken to avoid the need to remove the child from his home, and the child could not get the care, support, and supervision he needs to meet probation conditions in his home. Tex. Fam. Code Ann. § 54.04(i)(1); In re C.C., 13 S.W.3d 854, 858 (Tex. App.—Austin 2000, no pet.). A juvenile court has broad discretion in determining the suitable disposition of a juvenile who has engaged in delinquent conduct. In re A.I., 82 S.W.3d 377, 379 (Tex. App.—Austin 2002, pet. denied). In reviewing the court’s decision on disposition, we ask whether the court acted in an unreasonable or arbitrary manner. Id. at 379-80. A trial court does not abuse its discretion if some substantive and probative evidence supports its decision. In re C.J.H., 79 S.W.3d 698, 702 (Tex. App.—Fort Worth 2002, no pet.). Legal and factual sufficiency may be relevant in assessing the trial court’s exercise of its discretion, and we review evidentiary sufficiency under the standards applied in criminal cases. Id. at 702-04; see In re C.C., 13 S.W.3d at 858-59.
R.S. was sixteen in May 2006, when she committed the offense of possession of hydrocodone within 1000 feet of Westlake High School. As part of a plea agreement, the State abandoned the school-zone allegation, and R.S. pled true to the State’s allegations. After adjudicating R.S. delinquent, the trial court proceeded to disposition. The court took judicial notice of R.S.’s file, which reflects that she had been in trouble with the law since 2003 and had been referred to the probation department several times for theft and violation of court orders. She had been placed on probation twice for assault and criminal trespass, and at the time of this offense, was on probation for assault. The probation department’s report stated that child protective services had received three referrals on R.S.’s parents for neglectful supervision, her mother was arrested for assaulting R.S., and her two brothers have had legal and drug troubles.
According to the department’s report, R.S. had a history of behavior problems at school and skipping classes and she had tested positive for drugs at least once. From December 2005 to January 2006, R.S. “had a total positive turn around,” reporting to her probation officer as required, completing community service hours and required classes, and testing negative for drugs. In late January, however, she again tested positive for drugs and got into a fight with her mother. In late February, R.S.’s mother was arrested for assaulting R.S. Because R.S.’s father was in residential drug treatment at the time, R.S. was sent to live with her grandparents in Lampasas. During her time in Lampasas, R.S. “did exceptionally well.” She decided to return to her parents, however, against the advice of her grandparents and the probation department. She was warned by another trial court in an earlier proceeding that “if her positive progress made a change for the worse, then she would be sent to TYC.” R.S. “stated she would do well at home,” and the trial court allowed her to return to Austin. Things seemed to be going well until she was taken into custody less than one month later, returning to her campus in possession of five hydrocodone pills after having skipped classes without permission. The department concluded that R.S. was not an appropriate candidate for ISP staffing because of her “chaotic home environment,” her history of non-compliance and “continuing to re-offend,” her parent’s lack of cooperation and “minimizing behaviors,” and R.S.’s need for a structured environment.
The court also heard testimony from Jarrett Boykin, R.S.’s probation officer. He testified that in April 2006, just one month earlier, R.S. “was doing great” and had been living with her grandparents in Lampasas since February. She returned to Austin to be with her parents on April 5, and about one month later, was taken into custody for the subject offense. Boykin testified that R.S. was passing all her classes and was trying to get a job. R.S.’s parents were in the process of getting a divorce, and her father was attending Alcoholics Anonymous meetings every day. Boykin was asked what programs the probation department would recommend for R.S. as an alternative to TYC commitment. He answered, “Currently I staffed her for ISP, which she was turned down for. So the only thing the Department is recommending right now currently is TYC.” Asked if there were any other alternatives, Boykin testified,
If the Judge so ordered it, I guess she would go to ISP. But right now, we haven’t looked at any other—all the other programs are unavailable. We may look into some kind of drug treatment. We could possibly go back and look at residential or IOP. She’s ineligible right now for Leadership or any kind of Visions program. So it doesn’t leave too many other options other than probably drug treatment.


Boykin said R.S. did “very well” in Lampasas and that the trial court was reluctant to allow her to return to Austin and cautioned her that if she returned to Austin and “messed up,” she would be sent to TYC. In closing, R.S.’s attorney asked for another chance, noting that R.S. was getting good grades, looking for work, and obeying curfew. The State asked the court to commit R.S. to TYC, arguing that she had already been given several chances and had left a good situation in Lampasas, having been warned that she would be sent to TYC if she got in more trouble, only to be caught with a controlled substance one month later. The court committed R.S. to TYC, saying, “Why in the world didn’t you stay in Lampasas—and that’s not a question to you—because what young woman wouldn’t want to return home, even though you were just blowing the doors off the place with how well you were doing there in that environment?”
When viewed in the light most favorable to the court’s findings, the evidence is sufficient to show that TYC commitment is in R.S.’s best interest, that the department made all reasonable efforts to avoid removing her from her home, and that she cannot receive in her home the support, care, and supervision she needs. See In re C.C., 13 S.W.3d at 858. The same is true when all the evidence is viewed in a neutral light. See id. at 859. Although R.S. improved her behavior markedly, less than one month after returning from Lampasas, she again skipped classes and was caught in possession of a controlled substance. She was cautioned about the track she was on, and her grandparents, another trial court, and the probation department all recommended that she stay in Lampasas, but she decided to return to Austin, promising to stay out of trouble. Very shortly after returning to Austin and her parents’ care, while on probation for an earlier offense, she was again taken into custody, this time for possession of hydrocodone. The probation department recommended TYC commitment, and her probation officer testified that due to R.S.’s history of criminal offenses and her family’s tumultuous circumstances, the department believed she needed the structure that TYC could provide and that the department did not have many options to offer her other than TYC commitment or drug treatment. There is no evidence that the trial court based its decision on the other court’s admonishments rather than considering the entire record before it, which included the department’s report and recommendations.
if( bInlineFloats )
{
document.write( '' );
document.write( WPFootnote1 );
document.write( 'Close' );
document.write( '' );
}
We cannot hold that the trial court abused its discretion in determining that R.S. would be best served by being committed to TYC custody. See In re A.I., 82 S.W.3d at 379-80. We affirm the trial court’s order of disposition.

__________________________________________
David Puryear, Justice
Before Chief Justice Law, Justices Puryear and Henson
Affirmed
Filed: July 3, 2008

Allandale Neighborhood Assn. v. City of Austin (Tex.App.- Austin 2008)

Allandale Neighborhood Association v. The City of Austin (Tex.App.- Austin, June 26, 2008)( (Before Justices Patterson, Puryear and Henson)

Allandale Neighborhood Association v. The City of Austin; Lincoln Property Company Commercial, Inc. and Lincoln Northcross, Ltd.
Appeal from 200th District Court of Travis County

M E M O R A N D U M O P I N I O N

Appellant has informed this Court that it wishes to withdraw its notice of appeal, explaining that no final decision has been reached in the underlying case. Appellees have informed this Court that they do not object to appellant’s request. We therefore grant appellant’s request and dismiss the appeal. Tex. R. App. P. 42.1(a)(2).

___________________________________________
David Puryear, Justice
Before Justices Patterson, Puryear, and Henson
Dismissed
Filed: June 26, 2008

Allandale Neighborhood Association v. The City of Austin (Tex.App.- Austin, June 26, 2008)( (Before Justices Patterson, Puryear and Henson)

Allandale Neighborhood Association v. The City of Austin; Lincoln Property Company Commercial, Inc. and Lincoln Northcross, Ltd.--Appeal from 200th District Court of Travis County

M E M O R A N D U M O P I N I O N

Appellant has informed this Court that it wishes to withdraw its notice of appeal, explaining that no final decision has been reached in the underlying case. Appellees have informed this Court that they do not object to appellant’s request. We therefore grant appellant’s request and dismiss the appeal. Tex. R. App. P. 42.1(a)(2).

___________________________________________
David Puryear, Justice
Before Justices Patterson, Puryear, and Henson
Dismissed
Filed: June 26, 2008

Allandale Neighborhood Association v. The City of Austin (Tex.App.- Austin, June 26, 2008)( (Before Justices Patterson, Puryear and Henson)

Allandale Neighborhood Association v. The City of Austin; Lincoln Property Company Commercial, Inc. and Lincoln Northcross, Ltd.--Appeal from 200th District Court of Travis County

M E M O R A N D U M O P I N I O N

Appellant has informed this Court that it wishes to withdraw its notice of appeal, explaining that no final decision has been reached in the underlying case. Appellees have informed this Court that they do not object to appellant’s request. We therefore grant appellant’s request and dismiss the appeal. Tex. R. App. P. 42.1(a)(2).

___________________________________________
David Puryear, Justice
Before Justices Patterson, Puryear, and Henson
Dismissed
Filed: June 26, 2008

DTPA | Realtor | Pleasant v. Bradford (Tex.App.- Austin, 2008)

Allandale Neighborhood Association v. The City of Austin (Tex.App.- Austin, June 26, 2008)()(voluntary dismissal) (Before Justices Patterson, Puryear and Henson)

Allandale Neighborhood Association v. The City of Austin; Lincoln Property Company Commercial, Inc. and Lincoln Northcross, Ltd.--Appeal from 200th District Court of Travis County
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT
NO. D-1-GN-07-001957, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

Appellant has informed this Court that it wishes to withdraw its notice of appeal, explaining that no final decision has been reached in the underlying case. Appellees have informed this Court that they do not object to appellant’s request. We therefore grant appellant’s request and dismiss the appeal. Tex. R. App. P. 42.1(a)(2).

___________________________________________
David Puryear, Justice

Before Justices Patterson, Puryear, and Henson
Dismissed
Filed: June 26, 2008

Texas Orthopaedic Association v. Texas Medical Assn (Tex.App. Austin 2008)

[SUPERSEDING] O P I N I O N

Our opinion and judgment issued on March 14, 2008, are withdrawn, and the following opinion is substituted.

Various statutes over the years have described the practice of podiatry as the treatment of the foot, but the term "foot" has never been statutorily defined. See, e.g., Tex. Occ. Code Ann. § 202.001(a)(4) (West 2004). In 2001, the Texas State Board of Podiatric Medical Examiners (the "Board") promulgated a rule defining the word "foot." See Tex. Occ. Code Ann. § 202.151 (West 2004) (authorizing Board to adopt rules governing practice of podiatry); 22 Tex. Admin. Code § 375.1(2) (2007) (defining foot) (the "Rule"). The Rule included in its definition, among other things, portions of what in layman's terms is called the ankle. In response, the Texas Orthopaedic Association, the Texas Medical Association, and Andrew M. Kant, M.D. ("appellants") sought a declaration that the Rule impermissibly expanded the scope of podiatry. The district court concluded that the Rule was valid and did not exceed the Board's authority. The appellants appeal the judgment of the district court. We will reverse the district court's judgment.
BACKGROUND
In general, the statutory provisions governing the medical treatment and diagnosis of diseases and disorders of the human body and the individuals authorized to engage in those practices are found in the Medical Practice Act. See Tex. Occ. Code Ann. §§ 151.001-165.160 (West 2004 & Supp. 2007). Although the Act requires compliance with its provisions to practice medicine, see id. § 155.001 (West 2004), the Act exempts certain individuals from compliance, id. § 151.052 (West 2004). The exemption relevant in this case is found in subsection 151.052(a)(5) and exempts "a licensed podiatrist engaged strictly in the practice of podiatry as defined by law." Id. § 151.052(a)(5) (emphasis added). By providing the exemption, the legislature acknowledged that there is some degree of overlap between podiatrists' and physicians' scopes of practice.
The practice of podiatry in Texas has been governed by statute since 1923. At that time, podiatrists were referred to as chiropodists, and chiropody was defined as "the diagnosis, medical and surgical treatment of ailments of the human foot." Act of March 6, 1923, 38th Leg., R.S., ch. 169, § 1, 1923 Tex. Gen. Laws 357, 357-60. In 1951, the statute was amended and defined chiropody, in relevant part, as the treatment of "any disease or disorder, physical injury or deformity, or ailment of the human foot, by any system or method." See Act of April 18, 1951, 52nd Leg., R.S., ch. 132, § 1, 1951 Tex. Gen. Laws 219, 219. In 1967, the legislature renamed chiropodists as podiatrists. See Act of April 12, 1967, 60th Leg., R.S., ch. 96, §§ 1, 2, 1967 Tex. Gen. Laws 181, 181-82. The current statute provides, in relevant part, that podiatry "means the treatment of or offer to treat any disease, disorder, physical injury, deformity, or ailment of the human foot by any system or method. The term includes podiatric medicine." Tex. Occ. Code Ann. § 202.001(a)(4); see Senate Comm. on Health & Human Services, Bill Analysis, Tex. S.B. 673, 74th Leg., R.S. (1995) (stating that changes were made to statute governing podiatry because former statutes contained "antiquated and limiting language").
Pursuant to statutory authority, the Board announced in 2000 that it intended to adopt an administrative rule defining the term "foot." See Tex. Occ. Code Ann. § 202.151(2) ("The board shall adopt reasonable or necessary rules and bylaws consistent with the law regulating the practice of podiatry, the law of this state, and the law of the United States to govern: . . . (2) the regulation of the practice of podiatry"); see also id. § 202.051 (West Supp. 2007) (detailing requirements for Board membership). In describing the need for the definition, the Board stated that there was "uncertainty among various groups resulting from the lack of a definition" and that, without a definition, podiatrists, insurance companies, and hospitals were uncertain as to the limit of the practice of podiatry. See 26 Tex. Reg. 2385, 2385 (March 23, 2001). After receiving comments regarding the proposed definition, including objections from the Texas Orthopaedic Association and the Texas Medical Association, the Board adopted the Rule in 2001. See 22 Tex. Admin. Code § 375.1(2); 26 Tex. Reg. at 2390. The Rule provides as follows:
The foot is the tibia and fibula in their articulation with the talus, and all bones to the toes, inclusive of all soft tissues (muscles, nerves, vascular structures, tendons, ligaments and any other anatomical structures) that insert into the tibia and fibula in their articulation with the talus and all bones to the toes.
The tibia is "the shin bone" or "the inner and larger bone of the leg below the knee." Dorland's Illustrated Medical Dictionary 1911 (30th ed. 2003). The fibula is "the outer and smaller of the two bones of the leg." Id. at 698. The talus is "the highest of the tarsal bones and the one that articulates with the tibia and fibula to form the ankle joint" and is also called the ankle. Id. at 1853; see also id. at 1855 (explaining that tarsus is "the region of the articulation between the foot and the leg").
In response to concerns regarding the validity of the Rule, the attorney general issued an opinion stating that the Rule was invalid because it impermissibly expanded the practice of podiatry to the extent that it allowed podiatrists to treat the tibia and fibula. See Tex. Att'y Gen. Op. No. JC-441 (2001). The attorney general reasoned that the tibia and fibula are leg bones, not bones of the foot, and, therefore, outside the scope of podiatry. See id. Shortly after the attorney general opinion was released, the appellants filed a declaratory judgment action, asking the district court to determine the validity of the Rule. See Tex. Gov't Code Ann. § 2001.038 (West 2000) (allowing plaintiff to seek declaration regarding validity of rule); Tex. Civ. Prac. & Rem. Code Ann. § 37.001-.011 (West 1997 & Supp. 2007) (Uniform Declaratory Judgment Act). The Texas Podiatric Medical Association and Bruce A. Scudday (cumulatively "the Association") intervened.
The district court declared that the Rule was valid and did not exceed the Board's statutory authority. The appellants appeal the judgment of the district court. (1)
STANDARD OF REVIEW
On appeal, the appellants argue that the Board's promulgation of the Rule exceeded its rule-making authority. (2) As an agency, the Board is a creation of the legislature and, therefore, "has no inherent authority." See Public Util. Comm'n v. City Pub. Serv. Bd., 53 S.W.3d 310, 316 (Tex. 2001). For this reason, the Board possesses only those powers "expressly conferred upon it." See id. However, when conferring a power upon an agency, the legislature also "impliedly intends that the agency have whatever powers are reasonably necessary to fulfill its express functions or duties," see id., and the legislature is not required to include every specific detail or anticipate all unforeseen circumstances when enacting an agency's authorizing statute, State v. Public Util. Comm'n, 131 S.W.3d 314, 321 (Tex. App.--Austin 2004, pet. denied).
An agency's construction of a statute that it is charged with enforcing is entitled "to serious consideration by reviewing courts, so long as that construction is reasonable and does not contradict the plain language of the statute." Employees Ret. Sys. v. Jones, 58 S.W.3d 148, 151 (Tex. App.--Austin 2001, no pet.). In other words, when determining whether an agency's rule is valid, we must ascertain whether the rule is contrary to the relevant governing statutes, Public Util. Comm'n, 131 S.W.3d at 321, or whether the rule is in harmony with the general objectives of the statutes involved, see Liberty Mut. Ins. Co. v. Griesing, 150 S.W.3d 640, 648 (Tex. App.--Austin 2004, pet. dism'd w.o.j.). If a promulgated rule has no supporting statutory authority, the rule is void. Office of Pub. Util. Counsel. v. Public Util. Comm'n, 104 S.W.3d 225, 232 (Tex. App.--Austin 2003, no pet.).
To properly perform this function, we must ascertain the legislature's intent in enacting the relevant governing statutes. See Texas Workers' Comp. Comm'n v. Patient Advocates of Tex., 136 S.W.3d 643, 652 (Tex. 2004). Although the legislature has specified other tools to guide us when determining their intent, see Tex. Gov't Code Ann. § 311.023 (West 2005), our determination begins with the plain language of the statutes involved, Bragg v. Edwards Aquifer Auth., 71 S.W.3d 729, 734 (Tex. 2002). See Fireman's Fund County Mut. Ins. Co. v. Hidi, 13 S.W.3d 767, 768-69 (Tex. 2000) (providing that to determine legislative intent, courts should look to plain meaning of words used in relevant statutory provisions). In performing our analysis, we review the entire statute, not isolated portions, Continental Cas. Ins. Co. v. Functional Restoration Assocs., 19 S.W.3d 393, 398 (Tex. 2000), and we must presume that every word was deliberately chosen and that excluded words were left out purposely, USA Waste Servs. of Houston, Inc. v. Strayhorn, 150 S.W.3d 491, 494 (Tex. App.--Austin 2004, pet. denied). We should not adopt a construction of a statute that will render the statute meaningless or lead to absurd results. Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 284 (Tex. 1999); Watts v. City of Houston, 126 S.W.3d 97, 100 (Tex. App.--Houston [1st Dist.] 2003, no pet.).
DISCUSSION
On appeal, the appellants contend that the district court erred when it concluded that the Board's enactment of the Rule was a valid exercise of the agency's rule-making authority. On the contrary, appellants assert that the Rule impermissibly expands the practice of podiatry beyond the treatment of the foot.
In response, the Association contends that in making their claims, the appellants improperly focus on the phrase "foot" found in the statutory definition of podiatry rather than reading and giving meaning to every word found in the definition. See Tex. Occ. Code Ann. § 202.001(a)(4). In particular, the Association contends that the definition does not state that podiatrists may only treat the foot; on the contrary, it emphasizes that the provision allows podiatrists to treat the foot "by any system or method" and that "podiatry" includes everything constituting "podiatric medicine." Id. The Board makes similar arguments. In particular, it asserts that by including the term "podiatric medicine" in its definition, the legislature incorporated into the definition of podiatry all of the procedures podiatrists were actually performing at the time the statute was enacted.
In support of this interpretation of the statutory structure, the Board introduced during trial evidence demonstrating that for several decades, podiatrists have been treating the ankle. For example, several podiatrists testified that they were trained to perform both surgical and nonsurgical procedures on the ankle during their residencies, and the Board presented evidence that various podiatry books written over the past 80 years have included sections on treating the ankle. In addition, several podiatrists testified that they have been granted privileges by various hospitals to perform ankle surgeries and that when they performed ankle procedures, they were reimbursed by insurance companies, Medicare, and Medicaid. Further, several podiatrists testified that the practice of podiatry has always included treatment of the ankle and that the Board's definition is consistent with that practice and did not increase or decrease the scope of the practice.
In addition, the Association contends that the Rule is consistent with the medical definition of the term "foot," which it asserts includes the ankle. (3) See Tex. Gov't Code Ann. § 311.011 (West 2005) (requiring courts to construe "[w]ords and phrases that have acquired a technical or particular meaning" in accordance with that meaning); Lloyd Fry Roofing Co. v. State, 541 S.W.2d 639, 642-43 (Tex. Civ. App.--Dallas 1976, writ ref'd n.r.e.) (explaining that when statutory term has technical meaning, court will look to particular art, science, or trade from which it was taken to ascertain its meaning). Furthermore, the Association argues that by promulgating the Rule, the Board was following the statutory directive to utilize its expertise and promulgate reasonable and necessary rules to govern the practice of podiatry. See Tex. Occ. Code Ann. § 202.151(2). In addition, it insists that an interpretation limiting the scope of practice of podiatry to the area below the ankle bones and joint would lead to absurd results, including prohibiting podiatrists from treating a sprained ankle.
We disagree with the Board and the Association. All of their arguments are couched on the premise that the Rule merely authorizes podiatrists to treat the foot and the ankle and that the Rule is, therefore, consistent with the scope of podiatric medicine. However, there is no language in the Rule limiting the foot to that portion of the body that is at or below the ankle. On the contrary, the terms of the Rule authorize podiatrists to treat parts of the body that are well above the ankle.
The Rule states that the "foot" includes "all soft tissues (muscles, nerves, vascular structures, tendons, ligaments and any other anatomical structures) that insert into the tibia and fibula in their articulation with the talus." 22 Tex. Admin. Code § 375.1(2). However, many of the soft tissues included in this definition are not part of the foot or even the ankle. For example, various nerves ending in the foot--including the tibial nerve, the peroneal nerve, and the sural nerve--run along significant portions of the leg before reaching a termination point in the foot. See Frank H. Netter, N.D., Atlas of Human Anatomy 482, 483, 485, 504 (2nd ed. 1997). Similarly, several veins and arteries--including the saphenous vein and the tibial artery and vein--also end in the foot after having traversed significant portions of the leg. Id. at 477, 482, 483, 508. In fact, one of the nerves and one of the veins previously mentioned run along the entire length of the leg.
Because there is no language limiting the permissible area of treatment for these soft tissues, the Rule authorizes podiatrists to treat these anatomical features wherever they may be located in the body and to treat "any disease, disorder, physical injury, deformity, or ailment" of these features because they have been defined as being part of the foot. See Tex. Occ. Code Ann. § 202.001(a)(4). Moreover, because the occupations code allows podiatrists to treat the foot "by any system or method," the Rule effectively authorizes podiatrists to treat these body parts by utilizing procedures that are outside the scope of their training. (4) See id. § 202.001(a)(4); see also id. § 202.254 (specifying that to obtain license to practice podiatry, applicant must pass examination covering ailments of the foot) (emphasis added). As a result, the Rule authorizes podiatrists to treat parts of the body outside the traditional scope of podiatry without satisfying the requirements of the Medical Practice Act. See id. §§ 155.001-.152 (detailing requirements for obtaining license to practice medicine). This authorization exceeds the limited exemption given to podiatrists and would constitute the unauthorized practice of medicine. See id. §§ 151.052(a)(5), 155.001. (5)
For all these reasons, we conclude that the Rule is not in harmony with the general objectives of the various statutes involved and that the Board exceeded its authority by promulgating the Rule. (6)
As an alternative basis to support the district court's judgment, the Association contends that the judgment should be affirmed because the appellants "failed to meet their burden of proof" regarding the Rule's alleged invalidity. In making this assertion, it notes that agency rules are presumed to be valid and that the challenging party has the burden of proving that the rule is invalid. TXU Generation Co. v. Public Util. Comm'n, 165 S.W.3d 821, 829 (Tex. App.--Austin 2005, no pet.). In light of this proposition, the Association contends that the appellants failed to meet this burden because they failed to dispute the basis for the Rule set out in the Board's reasoned justification. See Tex. Gov't Code Ann. §§ 2001.033 (West 2000) (mandating that agency order adopting rule must contain "a reasoned justification for the rule as adopted"), .035(b) (detailing two-year deadline for attacking rule); see also id. § 2001.035(a) (West 2000) (stating that agency rule is voidable if agency adopts rule without substantially complying with various statutory requirements including need for reasoned justification). Stated differently, the Association argues that by detailing a reasoned justification for a rule, an agency establishes a presumption that the rule is valid and in harmony with the relevant statutory requirements and that a party dissatisfied with the rule has the burden of attacking the justification and rebutting the presumption within two years of the rule's promulgation. Further, the Association contends that the presumption of validity extends to the factual basis found in an agency's reasoned justification and that this presumption must be rebutted for any challenge to a rule to be successful. Moreover, it argues that the validity of the reasoned justification may only be overcome if the challenging party shows and convinces a court that the justification is "illogical, arbitrary or demonstrates an improper interpretation of the scope of [the agency's] statutory authority."
We disagree with these contentions. It is true that the government code does specify certain requirements that an agency must comply with when promulgating a rule, including the requirement that an order contain a reasoned justification for the rule. See Tex. Gov't Code Ann. §§ 2001.023-.034 (West 2000). It is also true that the government code allows a person to contest a rule on the ground that the agency promulgating the rule did not comply with those procedural requirements. Id. § 2001.035.
However, the government code also authorizes a party to contest either the validity or applicability of a rule by filing a declaratory judgment action. Id. § 2001.038. This provision allows a party to contest the rule if the party alleges that the rule "impairs, or threatens to interfere with or impair, a legal right or privilege" of the party. Id. The provision imposes no requirement that a party must contest the factual basis of an agency's reasoned justification as a condition to disputing the validity of the rule, and we see no reason to impose this type of requirement on our own. Although consideration of the reasoned justification may be relevant in certain declaratory actions, a determination of whether the factual basis supporting the justification is proper will not necessarily address whether the agency's rule is consistent with relevant statutory language or whether the agency had the authority to issue the rule.
Finally, the Board and the Association contend that the legislature has ratified or adopted the Board's definition of the term foot through subsequent actions. First, the Board and the Association contend that the legislature has adopted the Board's definition and that, therefore, the Rule is consistent with the occupations code. The doctrine of legislative acceptance provides that if "an ambiguous statute that has been . . . given a longstanding construction by a proper administrative officer is re-enacted without substantial change, the Legislature is presumed to have been familiar with that interpretation and to have adopted it." Texas Dep't of Protective & Regulatory Servs. v. Mega Child Care, Inc., 145 S.W.3d 170, 176 (Tex. 2004). In making their claim that the legislative acceptance doctrine applies, the Board and the Association note that although two different amendments to the relevant provisions of the occupations code were proposed in the legislature, neither of these proposals left the committee, and therefore, the legislature has acquiesced to the Board's interpretation.
Second, although acknowledging that their argument differs from a typical ratification argument, the Board notes that after the Rule was promulgated and after appellants first expressed dissatisfaction with the Rule, the legislature continued to compensate podiatrists through Medicaid payments for procedures performed on the ankle.
We disagree. First, we do not believe that the legislative acceptance doctrine applies under the circumstances of this case. The legislature did not reenact section 202.001 after the Rule was promulgated--a prerequisite to proper utilization of the doctrine. Moreover, what little evidence there is regarding the legislature's belief about the scope of podiatry undermines the Board and the Association's suggestion that the legislature has adopted the construction found in the Rule or that the limits of the scope are well settled. After the Rule was promulgated, two contradictory amendments to the statutory definition of podiatry were proposed. The first proposed amendment was made in 2003 and was directly contrary to the Rule because it would have limited the term "foot" to the part of the body found below the ankle. Tex. S.B. 1395, 78th Leg., R.S. (2003). However, the second proposal, which was made in 2005, would have included treatment of the ankle within the definition of podiatry. Tex. S.B. 460, 79th Leg., R.S. (2005). Furthermore, the legislative acceptance doctrine cannot be utilized as support for the construction of a statute that is contrary to the language of the governing statutes, see Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 282 (Tex. 1999), and we have already concluded that the Rule is inconsistent with the occupations code in that it allows podiatrists to perform treatment outside their scope of practice--it allows podiatrists to treat areas of the body other than the foot. (7)
Second, whether the legislature continued to compensate podiatrists through the Medicaid program for treatments performed on the ankle after the Rule was promulgated seems to have no bearing on our ultimate conclusion. As discussed previously, the Rule authorizes treatment of body parts that are above the ankle.
For all the reasons given, we conclude that the Board exceeded its authority when it promulgated the Rule and that the Rule is invalid. Therefore, we sustain the appellants' issue on appeal.
CONCLUSION
Having sustained appellants' sole issue on appeal, we reverse the judgment of the district court and render judgment that the Rule is invalid.
David Puryear, Justice
Before Justices B. A. Smith, Puryear and Waldrop;
Justice B. A. Smith Not Participating
Reversed and Rendered on Motion for Rehearing
Filed: May 23, 2008
1. Before addressing the merits of the case, we will address a jurisdictional argument made by the Board. On appeal, the Board contends that the appellants did not have standing to seek the declarations regarding the propriety of the Rule. In a previous opinion, we addressed the issue of the appellants' standing. See State Bd. of Podiatric Med. Examiners v. Texas Orthopaedic Ass'n, No. 03-04-00253-CV, 2004 Tex. App. LEXIS 10031 (Tex. App.--Austin Nov. 12, 2004, no pet.). In that case, the Board filed a plea to the jurisdiction asserting that the appellants did not have standing to bring this suit, but we ultimately concluded that the appellants did have standing to contest the Rule. Id. at *11; see also South Tex. Water Auth. v. Lomas, 223 S.W.3d 304, 307-08 (Tex. 2007) (providing general and associational standing requirements). In this appeal, the Board raises similar concerns regarding the appellants' standing. In particular, it contends that the appellants do not have standing because, during the trial, the appellants offered no evidence that would satisfy traditional standing requirements and because the appellants presented no evidence that subsection 2001.038(a) of the government code had been complied with.
We disagree with the Board. We previously concluded that the appellants had sufficiently demonstrated that they had standing to maintain this suit and that they complied with traditional standing and associational standing requirements, see State Bd. of Podiatric Med. Examiners, 2004 Tex. App. LEXIS 10031, and all the reasons articulated in our previous opinion again compel us to conclude that the appellants had standing to seek the declarations sought. The fact that the Board alleges that no additional evidence relating to standing was introduced at trial would not divest the district court of jurisdiction at the end of the trial.
2. The appellants also ask us to issue a declaration that "the lawful practice of podiatry in Texas is confined to treatment of the foot." Given our resolution of this case, it is unnecessary and would be advisory for us to opine as to the entire scope of the practice of podiatry in Texas.
3. We note that some medical definitions of the "foot" exclude the ankle. See, e.g., Black's Medical Dictionary 211 (39th ed. 1999) (defining foot as "that portion of the lower limb situated below the ankle joint"); American Heritage Stedman's Medical Dictionary 312 (2002) (defining foot as "The lower extremity of the vertebrate leg that is in direct contact with the ground in standing or walking").
4. Although there was extensive testimony and evidence presented during trial showing that treating the ankle was within the scope of podiatry, no evidence was introduced showing that treating parts of the body found within the leg were within the scope of podiatry.
5. It is worth noting that although on one hand the Rule impermissibly expands the practice of podiatry, the Rule also seems to truncate the scope as well. The Rule defines the foot as including certain bones and the soft tissues "that insert into the tibia and fibula in their articulation with the talus and all bones to the toes." 22 Tex. Admin. Code § 375.1(2) (2007). This definition seems to exclude soft tissues that are found exclusively within the foot and, consequently, that are not part of the articulation between the talus and the tibia and fibula.
6. On appeal, the Association also argues that because the appellants stated in their brief that they are not contesting "the reasonableness of the Board's Rule," the appellants have essentially conceded that they lose their appeal. In making this argument, the Association relies on Bullock v. Hewlett-Packard Co., 628 S.W.2d 754, 756 (Tex. 1982). That case involved a determination of the validity of a franchise tax rule. Id. at 756. In its analysis, the supreme court stated that "[c]ourts must uphold 'legislative' administrative rules if they are reasonable. . . . Such rules need only be based on some legitimate position by the administrative agency involved." These statements were not paired with the usual qualifiers that the rule must not contradict the plain language of the statutes that the rule interprets or that the rule must be in harmony with the relevant statutory objectives. Compare id., with Employees Ret. Sys. v. Jones, 58 S.W.3d 148, 151 (Tex. App.--Austin 2001, no pet.), and Liberty Mut. Ins. Co. v. Griesing, 150 S.W.3d 640, 648 (Tex. App.--Austin 2004, pet. dism'd w.o.j.). In light of this absence, the Association contends that the appellants' statement is an admission that the Rule is reasonable, and therefore, the analysis is concluded.
We disagree with the Association's assertion and believe that its reliance on Bullock is misplaced. Although the supreme court did not state explicitly that a rule must not be contrary to the relevant governing statutes, the court performed a detailed analysis of why the rule was "not inconsistent" with relevant statutory provisions. Bullock, 628 S.W.2d at 756-58. Moreover, when the appellants wrote the statement at issue in this case, they were simply stating that the legislature has the ultimate authority for determining whether podiatrists may medically treat parts of the body other than the foot and not conceding that the Rule was, in fact, reasonable.
7. The statutory authority currently in place limits podiatrists to the treatment of "the foot." While it may be difficult to define that term for purposes of treatment, whatever the term means, it is clear that "the foot" does not include the full portion of the body included within the definition in the Rule. Compelling arguments might be made as to whether--from a medical standpoint--it is reasonable to allow a practitioner treating the foot to consider and treat other anatomical systems that interact with and affect the foot. This is a debate to be had at the legislature.

REVERSED AND RENDERED ON MOTION FOR REHEARING: (Before Justices Puryear, Waldrop and Smith)

Texas Orthopaedic Association, Texas Medical Association and Andrew M. Kant, M.D. v. Texas State Board of Podiatric Medical Examiners; Texas Podiatric Medical Association; and Bruce A. Scudday, D.P.M.--Appeal from 345th District Court of Travis County

Child support appeal: With or without supersedeas?

Court of Appeals abates appeal and sends case back to the trial court to decide whether to suspend enforcement of child support arrears judgment and whether to require posting of a supersedeas bond or impose other conditions.

Inman v. Bryant, No. (Tex.App. - Austin, May 16, 2008)() (SAPCR appeal, child support enforcement, abatement, suspension of judgment, supersedeas bond) (Before Justices Patterson, Puryear and Henson)
Gerald Wayne Inman v. Sherry Ann Bryant--Appeal from 426th District Court of Bell County

Appeal from 426th District Court of Bell County

M E M O R A N D U M O P I N I O N

The trial court signed an order awarding appellee Sherry Ann Bryan almost $30,000 in child support arrearages from appellant Gerald Wayne Inman. Appellant, who is representing himself pro se, timely filed a notice of appeal and affidavit of indigence on March 14, 2008. Two weeks later, he filed a motion in this Court asking us to suspend the enforcement of the judgment, citing rule 24.2 of the rules of appellate procedure and arguing that he is entitled to suspension of the judgment without the need to post a supersedeas bond. See Tex. R. App. P. 24.2(a)(1) (to suspend judgment for money, bond must equal money award plus interest and costs, but may not exceed lesser of $25 million or 50% of judgment debtor's net worth). Appellee has filed a response asserting that the trial court has sole jurisdiction to determine the sufficiency of supersedeas and whether the bond amount should be reduced.

Appellant has since filed a motion asking for an extension time to pay his filing fees and again asking us to suspend the judgment. In this motion, he explains that the court reporter filed a contest to his affidavit of indigence and that, after a hearing, the court signed an order sustaining the contest and denying appellant's request for a free record. Appellant asserts that he did not receive notice of the contest and hearing on the contest until nearly two weeks after the contest was filed and three days after the trial court signed its order. He filed a motion in the trial court asking for a new hearing on the contest; the record does not reflect whether the trial court has acted on that motion.

We agree with appellee that the trial court is the proper court to determine whether the judgment should be suspended. See Tex. Fam. Code Ann. § 109.002(c) (West 2002) (appeal from final SAPCR order does not stay order unless trial court orders suspension "with or without a supersedeas bond").

We therefore abate the appeal until June 30, 2008, and remand it to the trial court to determine whether the judgment should be suspended and if so, under what conditions.
__________________________________________
David Puryear, Justice
Before Justices Patterson, Puryear and Henson
Abated
Filed: May 16, 2008

Award of attorney's fees in SOB litigation based on UDJA reversed

AVE, Inc. v. Comal County, Texas, No. (Tex.App.- Austin, May 14, 2008) ( ) (SOB regulation, injunctive and declaratory relief, claim for declaratory judgment redundant, award of fees under DJA improper) (Before Justices Patterson, Puryear and Henson)
AVE, Inc. and John Coil v. Comal County, Texas
Appeal from 22nd District Court of Comal County

FROM THE DISTRICT COURT OF COMAL COUNTY, 22ND JUDICIAL DISTRICT
NO. C-2002-859-C, HONORABLE DON B. MORGAN, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

Appellee Comal County sued appellants AVE, Inc. and John Coil, seeking temporary and permanent injunctive relief barring Coil and AVE from operating a sexually oriented business and alleging that they were violating section 243.0075 of the local government code and Comal County Commissioners Court Order Number 10 ("Order 10"). (1) See Tex. Loc. Gov't Code Ann. § 243.0075 (West 2005). The County sought a declaration under the Uniform Declaratory Judgment Act ("UDJA") that Coil's and AVE's actions constituted an ongoing violation of section 243.0075 and Order 10. See Tex. Civ. Prac. & Rem. Code Ann. §§ 37.001-.011 (West 1997 & Supp. 2007). The County also sought attorney's fees under the UDJA. See id. § 37.009 (West 1997).

The trial court signed a judgment finding that Order 10 was duly enacted; content neutral; intended to combat the secondary effects of sexually oriented businesses, such as prostitution, drug usage, increase in crime, and lowered property values; and narrowly tailored to reduce those secondary effects. The court found that AVE's store violated Order 10 in several ways, including the structure of its interior layout and its being located too close to homes. The court declared that Order 10 was constitutional except for provisions in sections 7(6) and 8(1)(f), which relate to approvals by several entities that are not supervised by the Comal County Sheriff, because the order does not provide deadlines for those departments to make licensing decisions related to sexually oriented businesses and, therefore, gives those departments "unbridled discretion." The Court severed the unconstitutional provisions from the remainder of Order 10; declared that Coil and AVE were in violation of section 243.0075 of the local government code, section 341.014 of the health and safety code, and several remaining portions of Order 10; and permanently enjoined Coil and AVE from operating the sexually oriented business until they fully complied with section 243.0075 and the remaining requirements of Order 10 and installed a sewage facility or connected to a public sewer utility. The court found that the County had incurred $55,000 in attorney's fees through the entry of final judgment and would incur additional fees in the event of an appeal, ordering those fees to be paid by Coil and AVE.

On appeal, Coil and AVE complain that the final judgment is internally inconsistent because it both found that Order 10 was unconstitutional and that Coil and AVE were in violation of Order 10; there was insufficient evidence presented to show that off-site sexually oriented businesses create harmful secondary effects; there was no jurisdiction to award the County attorney's fees under the UDJA; and there was insufficient evidence that Coil and AVE had violated section 243.0075. We dismiss AVE, Inc. as an appellant in this proceeding, dismiss three of Coil's issues, reverse the award of attorney's fees, and affirm the judgment as modified.
Procedural history

Our dismissal of AVE as an appellant and our consideration of the County's motion to dismiss two of the issues on appeal require us to consider the complicated procedural background of this case.
On September 17, 2002, the County filed the present suit for injunctive and declaratory relief ("the state case"), and the trial court signed its final judgment on February 23, 2005. Shortly before the County filed its state case, AVE filed suit against the County (2) in federal court (cause number SA-02-CA-847-FB, filed in the United States District Court for the Western District of Texas, San Antonio Division, "the federal case"), seeking declaratory and injunctive relief and arguing that the County was refusing to issue a septic permit in violation of AVE's constitutional rights to free speech and that Order 10 was an unconstitutional prior restraint on speech. The County counterclaimed, raising the same complaints it had raised in its state case against Coil and AVE and seeking injunctive and declaratory relief.

While the state and federal cases were pending, Coil and several other individuals were indicted in federal court (cause number W-03-CR-197-H, filed in the United States District Court for the Western District, Austin Division, "the criminal case") for more than thirty charges, including racketeering, tax evasion, transportation of obscene materials, and mail fraud. On June 10, 2004, Coil pled guilty to the transportation and mail fraud charges; the remaining charges were dropped. As part of his plea agreement, Coil agreed to forfeit to the government "any and all ownership in or other interest" he had in AVE and several other companies, including "any partnership interest therein, stock, inventory, fixtures." The federal court signed a judgment in accordance with Coil's guilty plea on September 23, 2004. AVE and another individual involved in AVE's management filed a motion to adjudicate the various parties' interests in AVE, and on January 4, 2005, the federal court signed an order in the criminal case finding that AVE was Coil's property and that Coil had established an elaborate structure of "front men" to hide his ownership of AVE and other companies.

After Coil pled guilty and forfeited all interest in AVE, the County moved to dismiss AVE's federal suit arguing that because AVE was Coil's alter ego and Coil had forfeited any interest in AVE, AVE no longer had standing to pursue its federal claims. On March 2, 2005, after briefing and a hearing, a federal magistrate entered a recommendation following the January 2005 order entered in the criminal case and finding that Coil was the only person to have an ownership interest in AVE. The magistrate further found that by his plea agreement, Coil forfeited his "ownership interest in AVE, Inc., instead of just the stores operated by AVE." The magistrate therefore concluded that AVE lacked standing to complain of the alleged constitutional violations and recommended the dismissal of AVE's federal case for lack of subject-matter jurisdiction. On June 22, 2005, a federal court adopted the magistrate's recommendations and dismissed AVE's federal case for lack of jurisdiction. AVE appealed, and on October 10, 2006, the dismissal was affirmed by the federal appeals court. See AVE, Inc. v. Hornseth, No. 05-51090, 201 Fed. Appx. 997, 998 (5th Cir. Tex. 2006) (unpublished per curiam opinion).

Dismissal of AVE, Inc.

On March 28, 2008, after reviewing the record presented, we ordered John Fahle, the attorney who filed the notice of appeal on behalf of Coil and AVE, to show that he has authority to represent AVE in light of Coil's forfeiture of his ownership interest in the company. That response was due by April 21. Neither attorney Fahle, Coil, nor anyone representing AVE filed a response to the request to show authority. Consequently, Coil and his attorney have failed to show authority to represent AVE. Based on Coil's forfeiture, the federal court's finding that Coil no longer has any ownership interest in AVE, and the failure by Coil and his attorney to show that they have the authority to pursue an appeal on AVE's behalf, we dismiss AVE, Inc. from this appeal. See Tex. R. Civ. P. 12; Tri-Steel Structures, Inc. v. Baptist Found., 166 S.W.3d 443, 453-54 (Tex. App.--Fort Worth 2005, pet. denied) (noting that policy behind rule 12 is to protect opposing party from groundless suits); Air Park-Dallas Zoning Comm. v. Crow-Billingsley Airpark, Ltd., 109 S.W3d 900, 905 (Tex. App.--Dallas 2003, no pet.) ("Any party may file a motion to show authority. The challenged attorney has the burden of proof to show sufficient authority to represent the client. If sufficient authority is not shown, the attorney is not permitted to appear in the cause. Further, if no authorized person appears, the court shall strike the pleadings on file." (citations omitted)). We will consider the issues raised only as they apply to Coil.

The County's Motion to Dismiss

The County has filed a motion to dismiss the first two issues raised in this appeal, arguing that due to his forfeiture of his interest in AVE, Coil lacks standing to raise those complaints. It argues that those two issues are moot because Coil lacks a legally cognizable interest in the constitutionality of Order 10 or its enforcement and is collaterally estopped from challenging Order 10 by the federal court's decisions. Coil has not responded to the County's motion to dismiss.

Standing is a constitutional prerequisite to bringing and maintaining a lawsuit. Williams v. Lara, 52 S.W.3d 171, 178 (Tex. 2001). "For a plaintiff to have standing, a controversy must exist between the parties at every stage of the legal proceedings, including the appeal." Id. at 184. "If a controversy ceases to exist--'the issues presented are no longer "live" or the parties lack a legally cognizable interest in the outcome'--the case becomes moot." Id. (quoting

Murphy v. Hunt, 455 U.S. 478, 481 (1982)); see Allstate Ins. Co. v. Hallman, 159 S.W.3d 640, 642 (Tex. 2005). "The mootness doctrine implicates subject-matter jurisdiction." Pantera Energy Co. v. Railroad Comm'n, 150 S.W.3d 466, 471 (Tex. App.--Austin 2004, no pet.).
In AVE's federal suit against the County, the federal court determined that Coil was the sole owner of AVE and that he forfeited all of that ownership to the federal government in his plea agreement in the criminal case. The court further determined that since Coil's forfeiture, AVE "no longer holds a legal right in the alleged breach of constitutional rights that is the subject of this litigation. Therefore, AVE, Inc. no longer holds standing to pursue this litigation." AVE was the entity that operated the store, and when Coil forfeited his interest in AVE, he lost standing to bring claims or raise defenses on behalf of AVE or to complain of County actions against AVE or the store. See Williams, 52 S.W.3d at 184 (former inmates lacked legally cognizable interest in obtaining injunctive or declaratory relief because they "no longer face[d] the unconstitutional conduct about which they complain[ed]" and any prospective relief would not benefit them); Elizondo v. Texas Natural Res. Conservation Comm'n, 974 S.W.2d 928, 932 (Tex. App.--Austin 1998, no pet.) (litigant lacked standing to bring suit because "she had no ownership interest in the affected land, having transferred her interest to her children"). We agree with the federal court that Coil's issues concerning the constitutionality and enforcement of Order 10 are moot. (3)

For the same reasons, we hold that Coil's fourth issue, related to the trial court's declaration that he and AVE "are in violation of Section 243[.]0075 of the Local Government Code," is also moot. As stated by the federal magistrate in his recommendation to the federal district court, AVE has been forfeited to the government; Coil no longer has any ownership interest in AVE, which operated the store in question; and his complaint related to violations of section 243.0075, which only occurred through AVE's operation of the store, has been rendered moot. See Allstate Ins., 159 S.W.3d at 642 ("A case becomes moot if a controversy ceases to exist or the parties lack a legally cognizable interest in the outcome."). Because Coil lacks standing and the issues are moot, we dismiss issues one, two, and four for want of jurisdiction.

Attorney's Fees

Despite our determination that the issues related to the trial court's declarations and injunctions were mooted by Coil's forfeiture of his interest in AVE, the entire appeal is not moot. "[A] dispute over attorney's fees is a live controversy." Id. (citing Camarena v. Texas Employment Comm'n, 754 S.W.2d 149, 151 (Tex. 1988)). Although the issues related to violations of Order 10 or section 243.0075 are moot, the County and Coil have an interest in determining whether the trial court's attorney's fees award can be sustained. See Allstate Ins. Co., 159 S.W.3d at 643 ("Hallman's remaining interest in obtaining attorney's fees 'breathes life' into this appeal and prevents it from being moot."); Camarena, 754 S.W.2d at 151 ("The 'live' issue in controversy is whether or not the farm workers have a legally cognizable interest in recovering their attorney's fees and costs."). We will therefore consider the merits of Coil's third issue related to attorney's fees because the attorney's fee award was assessed against both AVE and Coil, leaving Coil personally liable for the attorney's fees award.

The only grounds on which the trial court could have based its attorney's fees award is section 37.009 of the UDJA. See Tex. Civ. Prac. & Rem. Code Ann. § 37.009; Lesikar v. Rappeport, 33 S.W.3d 282, 306 (Tex. App.--Texarkana 2000, pet. denied) ("As a general rule, unless expressly provided for by statute or contract, attorneys' fees incurred in the defense or prosecution of a lawsuit are not recoverable."). Coil complains that the trial court lacked jurisdiction under the UDJA to award the County attorney's fees and that the evidence does not support the trial court's award. He argues that a party cannot simply add a request for a declaration in order to obtain attorney's fees and that the County's request for a declaration that Coil and AVE had violated section 243.0075 and Order 10 was merely a "back-door method of obtaining attorney's fees" that should not be available. Instead, Coil contends, the County's only remedy was for a judgment under local government code section 243.010, which provides for enforcement of sexually-oriented-business ordinances but does not allow for the recovery of attorney's fees. See Tex. Loc. Gov't Code Ann. § 243.010 (West 2005). (4)

At the time the County filed its suit, AVE had filed its federal suit seeking a declaration that Order 10 was unconstitutional. In the state suit, the County sought injunctive relief pursuant to section 243.010 and asked for "a declaration that Defendants' actions and the actions of their agents and employees constituted and continue to constitute a violation of Chapter 243 of the Texas Local Government Code and Comal County Commissioners Court Order No. 10." In their original answer, Coil and AVE "aver[red] that [the County's] claim is not properly brought under the Declaratory Judgments Act, and that therefore [the County] fail[ed] to State [sic], in that particular cause of action, a claim under which relief may be granted." Coil and AVE asserted that Order 10 was unconstitutional but did not counterclaim or seek an opposing declaration from the trial court.

Coil asserts that if he had sued to challenge the constitutionality of Order 10 or counterclaimed for declaratory judgment on that issue or if the County had sought a declaratory judgment on the constitutionality of Order 10, rather than whether Coil and AVE were in violation of the order, attorney's fees under the UDJA would have been proper. However, because the County sought only a declaration that Coil and AVE were violating Order 10, Coil contends, the issue was not the proper subject matter of an action under the UDJA. We agree.

The UDJA provides that a party "whose rights, status, or other legal relations are affected by a statute [or] municipal ordinance . . . may have determined any question of construction or validity arising under the . . . statute [or] ordinance . . . and obtain a declaration of rights, status, or other legal relations." Tex. Civ. Prac. & Rem. Code Ann. § 37.004(a) (West Supp. 2007). Declaratory relief is inappropriate if it would add nothing to the injunctive or other relief sought. See Boatman v. Lites, 970 S.W.2d 41, 43 (Tex. App.--Tyler 1998, no pet.) (declaratory judgment "may not be used solely as a vehicle to obtain attorney's fees" and is "inappropriate if it will serve no useful purpose"); Tucker v. Graham, 878 S.W.2d 681, 683 (Tex. App.--Eastland 1994, no writ) ("Plaintiffs' declaratory judgment action involved the same parties and the same issues as in the statutory cause of action and was not appropriate."). Further, a "declaratory judgment should not be rendered when there is no claim that a statute or a deed is ambiguous or invalid." Boatman, 970 S.W.2d at 43 (citing Bell v. State Dep't of Highways & Pub. Transp., 945 S.W.2d 292, 294 (Tex. App.--Houston [1st Dist.] 1997, writ denied)).

The County argues that the declaratory relief was appropriate because Coil and AVE raised the issue of constitutionality, albeit not through a counterclaim for declaratory relief. The cases cited by the County, however, involve cases in which the plaintiffs sought declarations to clarify their rights or duties under an order or statute. See, e.g., City of Austin v. Garza, 124 S.W.3d 867, 870, 875 (Tex. App.--Austin 2003, no pet.); City of Austin v. Pendergrass, 18 S.W.3d 261, 264-65 (Tex. App.--Austin 2000, no pet.); Texas Dep't of Pub. Safety v. Moore, 985 S.W.2d 149, 152-54 (Tex. App.--Austin 1998, no pet.); Texas Dep't of Human Servs. v. Benson, 893 S.W.2d 236, 238, 243 (Tex. App.--Austin 1995, writ denied); Weaver v. AIDS Servs. of Austin, Inc., 835 S.W.2d 798, 799-800, 802-803 (Tex. App.--Austin 1992, writ denied). In this case, contrary to the County's statement in its brief that it "sought a declaration regarding section 243.0075 [of the local government code], as well as its SOB Order," the County did not seek a declaration related to validity or meaning of the local government code or Order 10, and Coil and AVE did not file a counterclaim seeking a declaration that the order was unconstitutional. In its original petition, the County's request for declaratory relief asked only for a declaration that Coil and AVE were violating the local government code and Order 10.

The County admits as much when it states that it "is immaterial that the County did not specifically seek a declaration as to the constitutionality of the SOB Order in its petition," arguing that because AVE had raised the issue in the federal suit, the County "understood that [Coil and AVE] would, which they did, assert unconstitutionality as a defense" and, therefore, "there was no need for the County to amend its petition to specify that it was seeking a declaration as to the constitutionality of the SOB Order." We disagree.

"A plaintiff's petition must give notice of the relief sought, and the judgment must conform to the pleadings." Otis Elevator Co. v. Parmelee, 817 S.W.2d 731, 737 (Tex. App.--Houston [1st Dist.] 1991) (citation omitted), rev'd on other grounds, 850 S.W.2d 179 (Tex. 1993). The pleadings inform the parties what claims are alleged and what relief is sought, and we will not construe a general prayer for relief "as subsuming any equitable or legal doctrine simply by including those terms in the prayer." Wortham v. Dow Chem. Co., 179 S.W.3d 189, 196 (Tex. App.--Houston [14th Dist.] 2005, no pet.); see Holmstrom v. Lee, 26 S.W.3d 526, 532 (Tex. App.--Austin 2000, no pet.) ("A trial court may not grant relief in the absence of pleadings supporting such relief. . . . When a plaintiff has included a general prayer for relief, the propriety of a remedy depends not on the specific relief sought but on the facts pleaded and proven." (citations omitted)).
The County sought a declaration only as to whether Coil and AVE were violating the local government code and Order 10. It did not request a declaration to "determine[] any question of construction or validity" of the order or statute or "a declaration of rights, status, or other legal relations." See Tex. Civ. Prac. & Rem. Code Ann. § 37.004(a). Coil and AVE objected in their original answer that the County's claim was "not properly brought under the Declaratory Judgments Act" and that the County did not state "a claim under which relief may be granted." Despite this complaint being raised as a "defense and special exception," the County did not amend its pleadings. (5) Whether the constitutionality of the order had been raised by AVE in the federal proceeding or even in defense of the present case is irrelevant in determining whether the declaratory relief issued by the trial court went beyond the County's request made in its pleadings. We hold that the County was limited to the relief it requested in its pleadings. See Holmstrom, 26 S.W.3d at 532. Because the declaratory relief requested by the County was redundant of and would have added nothing to the injunctive relief sought, the request was inappropriate and cannot support an award of attorney's fees. See Boatman, 970 S.W.2d at 43. We sustain Coil's third issue.

Conclusion

We dismiss AVE, Inc. from this proceeding and dismiss issues one, two, and four. The County's pleadings did not support an award of attorney's fees under the UDJA, and thus we reverse the trial court's award of attorney's fees to the County. We affirm the remaining portions of the trial court's judgment.
__________________________________________
David Puryear, Justice
Before Justices Patterson, Puryear and Henson
Affirmed in part; Dismissed in part; Reversed and Rendered in part
Filed: May 14, 2008

1. The business in question was a store that sold sexually oriented materials. AVE, Inc. operated the store, and Coil owned AVE, Inc.
2. AVE sued the Comal County Engineer, the County Judge of the Comal County Commissioners Court, and the Comal County District Attorney. For the purposes of this appeal, we will collectively refer to those defendants in the federal case as "the County."
3. The issues presented in AVE's federal case were the same as those raised in the County's state case and were fully litigated in the federal court by way of extensive briefing and argument by both parties. See John G. & Marie Stella Kenedy Mem. Found. v. Dewhurst, 90 S.W.3d 268, 288 (Tex. 2002). Although AVE named individual employees of Comal County as the defendants in the federal case, those individuals--the county engineer, judge of the commissioners court, and district attorney--are the same individuals involved in bringing the state case against Coil and AVE. Thus, the parties are the same and were cast as adversaries in the federal case. See id.
4. A municipality or county may sue in district court for "an injunction to prohibit the violation of" a sexually-oriented-business regulation. Tex. Loc. Gov't Code Ann. § 243.010 (West 2005).
5. At a hearing to enforce the trial court's permanent injunction held after the trial court entered its final judgment, Coil and AVE objected to the award of attorney's fees, noting again that "[t]he only declaration that they asked for in their original petition was a declaration that the--that the defendants were in violation of the order."

Buffalo Equities, Ltd v. City of Austin (Tex.App. - Austin, May 9, 2008)

Buffalo Equities, Ltd. vs. The City of Austin, No. (Tex.App.- Austin, May 9, 2008) () (zoning law, regulatory taking, declaratory judgment, ripeness) (Before Justices Patterson, Puryear and Henson)
Buffalo Equities, Ltd. v. The City of Austin
Appeal from 98th District Court of Travis County

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
NO. GN501665, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

Buffalo Equities, Ltd. ("BEL") wanted to develop its property for residential and commercial purposes and applied to have its property appropriately re-zoned. Part of the proposed development consisted of improvements to an easement BEL owns that runs across its neighbor's property. The City of Austin agreed to re-zone BEL's property. However, a City employee, Gregory Guernsey, later wrote a letter to BEL informing BEL that its development plans for its easement did not comply with the relevant zoning restrictions on BEL's neighbor's property. Further, Guernsey stated that BEL, as an easement owner, could not file to have its neighbor's property re-zoned.

Rather than appealing Guernsey's determination or seeking approval from the City for its development plans, BEL, in light of Guernsey's letter, filed suit against the City seeking various declarations and arguing that the City's actions constituted an impermissible regulatory taking of BEL's property. See Tex. Civ. Prac. & Rem. Code Ann. §§ 37.001-.011 (West 1997 & Supp. 2007) (declaratory judgment act); Sheffield Dev. Co., Inc. v. City of Glenn Heights, 140 S.W.3d 660, 672-73 (Tex. 2004) (explaining when regulatory taking may occur).

The district court dismissed BEL's regulatory takings claim for lack of jurisdiction and declared that BEL's intended use for the easement did not comply with the zoning restrictions on the property and that an easement owner may not initiate re-zoning procedures. BEL appeals the judgment of the district court. We will dismiss one of BEL's claims for want of subject-matter jurisdiction and affirm the remaining portions of the district court's judgment.

BACKGROUND

BEL owns approximately 119 acres in Travis County. In 1997, it entered into an easement agreement with one of its neighbors, Speedy Stop. (1) Although there are other means of entering and exiting BEL's property, the easement affords BEL access to highway 290--a major highway in Austin--through a driveway (2) over Speedy Stop's property that is part of a signalized intersection with the highway.

BEL wanted to develop a large portion of its property into residential and commercial areas, and in 2000, BEL applied to have its property re-zoned as a "planned unit development" ("PUD"), which is the designation given to "large or complex single or multi-use development that is planned as a single contiguous project and that is under unified control." See Austin, Tex., Code § 25-2-144. The City approved the re-zoning request.

Through discussions BEL had with various City employees about developing the first phase of the PUD, BEL was informed that the City would probably not approve BEL's plans for the first phase of its proposed development. In response to these discussions, BEL asked the City's Development Services Manager, Gregory Guernsey, to issue a statement concerning BEL's plans. Shortly thereafter, Guernsey sent BEL a letter in which he stated that BEL's proposed driveway over the easement did not comply with the zoning restrictions on BEL's neighbor's property. In particular, Guernsey stated that Speedy Stop's property was zoned as a "rural residence district," which is the designation used "for a low density residential use on a lot that is a minimum of one acre," (3) see Austin, Tex., Code § 25-2-54, but concluded that BEL's proposed development for the easement constituted a "commercial driveway." Further, Guernsey opined that BEL could not apply to have Speedy Stop's property re-zoned for commercial purposes because BEL did not own the property. After receiving the letter, BEL asked the City's Zoning and Platting Commission to issue a request to re-zone Speedy Stop's property for commercial purposes, but the Commission denied that request. See id. § 25-2-242 (providing that, among other groups, re-zoning of property may be initiated by City Council, Land Use Commission, and record owner of property).

In 2004, BEL filed suit against the City. In its petition, BEL sought a declaration that the City's rules and regulations do not prohibit the use of the driveway as part of the PUD development. Alternatively, BEL sought a declaration that the owner of an easement may file an application to re-zone the property upon which its easement is located. Finally, BEL brought a regulatory takings claim against the City, asserting that by prohibiting BEL from building the driveway, the City has "unreasonably interfered with [BEL]'s right to use and enjoy" its property. (4)

In response, the City filed a plea to the jurisdiction, contending that the district court did not have jurisdiction over the case because BEL had failed to exhaust its administrative remedies prior to filing suit. In particular, the City argued that BEL failed to properly appeal Guernsey's determination that the proposed development on the easement was a commercial driveway and that the driveway did not comply with the relevant zoning restrictions. Both BEL and the City filed cross-motions for summary judgment.

After reviewing the various motions, the district court dismissed BEL's regulatory takings claim on the ground that the district court did not have jurisdiction to hear the claim. In addition, the district court ordered that BEL's intended use for the driveway and easement did not comply with the relevant zoning restrictions because the zoning for the property on which the easement rests did not match the PUD's zoning restrictions. In particular, the court declared that BEL's intended use for the easement qualified as an "accessory use" to the PUD and that the zoning for accessory uses must be consistent with the zoning for the "principal use." See Austin, Tex., Code §§ 25-2-891 (providing, in relevant part, that accessory use is use that is incidental to and customarily associated with principal use), 25-2-892 (stating that, in general, regulations applicable to principal use apply to accessory use). Furthermore, the court declared that BEL, as an easement owner, may not initiate re-zoning procedures for the property on which its easement rests because BEL was not the "record owner" of the property. BEL appeals the judgment of the district court.

SCOPE AND STANDARD OF REVIEW

The standards for obtaining a traditional summary judgment are well established: the movant must show that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law; in deciding whether there is a disputed material fact issue precluding summary judgment, the court must take evidence favorable to the nonmovant as true, indulge every reasonable inference in favor of the nonmovant, and resolve any doubts in the nonmovant's favor. Sergeant Enters., Inc. v. Strayhorn, 112 S.W.3d 241, 245 (Tex. App.--Austin 2003, no pet.) (citing Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985)); see Tex. R. Civ. P. 166a(c). If the movant establishes a right to summary judgment, the burden shifts to the nonmovant, who must present summary-judgment evidence to the trial court raising a genuine issue of material fact to preclude summary judgment. Cannon v. Texas Indep. Bank, 1 S.W.3d 218, 223 (Tex. App.--Texarkana 1999, pet. denied). If the evidence raises no more than a surmise or suspicion of a fact in issue, no genuine issue of fact exists to defeat summary judgment. Selz v. Friendly Chevrolet, Ltd., 152 S.W.3d 833, 837 (Tex. App.--Dallas 2005, no pet.) (citing Wiggins v. Overstreet, 962 S.W.2d 198, 200 (Tex. App.--Houston [14th Dist.] 1998, writ denied)). We review the trial court's decision to grant summary judgment de novo. Sergeant Enters., Inc., 112 S.W.3d at 245 (citing Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994)).

When the parties file cross-motions for summary judgment and when the trial court grants one motion and denies the other, the non-prevailing party may appeal the denial of its motion as well as the decision to grant the prevailing party's motion. Id. In this situation, an appellate court should review the summary judgment evidence from both sides and determine all the questions presented. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000). After reviewing the evidence, the appellate court "should render the judgment that the trial court should have rendered." Id.

DISCUSSION

On appeal, BEL raises three issues. In particular, BEL argues that the district court erred in issuing its first declaration in favor of the City, in declaring that an easement owner may not seek to re-zone the property upon which its easement rests, and in dismissing BEL's regulatory takings claim. In response, the City argues (1) that this Court does not have subject-matter jurisdiction over BEL's first claim because BEL failed to exhaust its administrative remedies before filing this lawsuit, (2) that the district court's second declaration was correct, and (3) that the district court correctly concluded that it did not have jurisdiction over BEL's regulatory takings claim. For the reasons that follow, we conclude that we do not have jurisdiction over BEL's first claim but conclude that the district court's second declaration was proper. We also conclude that the district court's determination that it did not have jurisdiction over BEL's third claim was proper. For ease of reading, we will first address the jurisdictional arguments as they relate to the first and third claim. Finally, we will address the merits of BEL's second claim.
First Declaration

Although it did not file a notice of appeal, the City asserts on appeal that the district court did not have jurisdiction over BEL's first declaration and should have granted its plea to the jurisdiction on that issue. See University of Tex. Sw. Med. Ctr. v. Loutzenhiser, 140 S.W.3d 351, 358 (Tex. 2004) (explaining that subject-matter jurisdiction cannot be waived and can be raised for first time on appeal by parties or court and that courts have obligation to ascertain whether jurisdiction exists regardless of whether parties question its existence). A determination of whether a court has jurisdiction over a claim presents a question of law. Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004); Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).

A plea to the jurisdiction "is a dilatory plea that seeks dismissal of a case for lack of subject matter jurisdiction." Sykes, 136 S.W.3d at 638. A plaintiff has the burden of alleging facts that demonstrate that a court has jurisdiction over the claims. See Miranda, 133 S.W.3d at 226. To prevail, a defendant must establish that there is an "incurable jurisdictional defect on the face of the pleadings." City of Austin v. Rangel, 184 S.W.3d 377, 384 (Tex. App.--Austin 2006, no pet.). We construe pleadings in favor of the pleader, but "[i]f the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiffs an opportunity to amend." Miranda, 133 S.W.3d at 226.

The City contends that Guernsey's letter constituted a "use classification" determination that BEL should have appealed if it was unhappy with the determination. The City's code authorizes the director of the Neighborhood Planning and Zoning Department to make use-classification determinations "for an existing or proposed use or activity." See Austin, Tex., Code § 25-2-2. According to the City, the director has delegated this authority to Guernsey. (5) In response to a request by BEL, Guernsey informed BEL that its proposed use of the easement constituted a commercial driveway that did not comply with the zoning restrictions on Speedy Stop's property. The Austin code provides that a party dissatisfied with an "appropriate use classification" determination may appeal the determination to the Board of Adjustment. Austin, Tex., Code § 25-2-2; see also id. § 25-1-182 (specifying 20-day deadline for appealing). Similarly, the local government code provides that the Board of Adjustment may "hear and decide an appeal that alleges error in a[] . . . determination made by an administrative official in the enforcement of" a local zoning ordinance. Tex. Local Gov't Code Ann. § 211.009(a) (West 2008) (emphasis added); see id. § 211.010 (detailing who may file appeal with Board of Adjustment concerning decision made by "administrative official"). Further, the local government code also specifies that after obtaining review by the Board of Adjustment, an aggrieved party may seek judicial review of the Board's determination. Id. § 211.011.
Courts have routinely held that the administrative remedies available under the portions of the local government relevant to this appeal must be exhausted before a party may seek judicial review of a determination made by an administrative official. See, e.g., City of San Antonio v. El Dorado Amusement Co., 195 S.W.3d 238, 250 (Tex. App.--San Antonio 2006, pet. denied); Winn v. City of Irving, 770 S.W.2d 10, 11 (Tex. App.--Dallas 1989, no writ); see also Grimes v. Stringer, 957 S.W.2d 865, 869 (Tex. App.--Tyler 1997, pet. denied) (construing phrase "may appeal" in statute to mean that aggrieved party has discretion to appeal determination, but if party elects to, it must be appealed to administrative body specified in statute rather than to court). The requirement of administrative exhaustion compels a party to "pursue all available remedies within the administrative process before seeking judicial relief." Larry Koch, Inc. v. Texas Natural Res. Conservation Comm'n, 52 S.W.3d 833, 839 (Tex. App.--Austin 2001, pet. denied). The failure to comply with this requirement before seeking judicial review deprives a court of jurisdiction to decide the case. Id.

BEL did not appeal Guernsey's determination to the Board of Adjustment. Consequently, the City's position has not officially been determined through the administrative process, and there is no justiciable controversy present. Winn, 770 S.W.2d at 11-12; see El Dorado Amusement Co., 195 S.W.3d at 250.

BEL claims that it was unnecessary for it to exhaust its administrative remedies prior to filing suit because the relief it sought fell within several exceptions to the exhaustion requirement. On appeal, BEL has characterized the declaration it originally sought as a declaration that "the City has no discretion to refuse to accept, process and approve BEL's application based on its new and invalid condition it has imposed on development of the BEL tract and the City has exceeded its authority in so doing." In other words, BEL claims that it is seeking a declaration stating that as a result of the City approving its PUD designation, the City is effectively precluded from improperly imposing a condition on the proposed development of BEL's property at a later stage in the development approval process, e.g., site- or building-permit approval. BEL asserts that resolution of this issue involves, among other things, determinations of pure questions of law and a determination of whether a city employee has exceeded its authority: determinations that BEL claims do not require administrative exhaustion. See Henry v. Kaufman County Dev. Dist. No. 1, 150 S.W.3d 498, 503 (Tex. App.--Austin 2004, pet. granted and case remanded by agr.).
In particular, BEL contends that the resolution of its first issue will involve consideration of whether the City may condition the approval of a site-plan application filed by BEL on "fulfillment of a condition that is not required under either the PUD Ordinance or the Code." Furthermore, BEL alleges that resolution of the issue will involve a determination of whether the City's employees may create new use classifications without approval by the City Council and whether the creation of a new classification is "beyond the scope of" the employee's authority. Specifically, BEL argues that the City's code does not list a "commercial driveway" as a type of "use classification," see Austin, Tex., Code §§ 25-2-1 (describing "major use categories" as "residential, commercial, industrial, civic, and agricultural"), 25-2-4 (listing 69 specific commercial use classifications), and that the creation of this new type of classification was beyond Guernsey's or the director of the Neighborhood Planning and Zoning Department's authority. (6)

As a preliminary matter, we note that BEL's characterization of this issue on appeal differs from what was stated in BEL's original petition, which sought a declaration "that the City of Austin rules and regulations (including the Land Development Code) do not prohibit use of the driveway area identified in the 1997 Driveway Easement Agreement across [rural residentially] zoned property to access the . . . [PUD], regardless of the use in the . . . PUD." This declaration, by its terms, is factually dependent and does not present pure questions of law.
Moreover, the fact that a party suggests that the resolution of the issue as framed on appeal might involve some determinations of law cannot be the end of our jurisdictional inquiry; rather, we must also ascertain whether the determination of the "pure questions of law" specified are in fact questions of law and, if so, whether addressing those questions, on their own, will resolve the actual controversy at issue. A declaration that the City may not impose a condition for approval that is contrary to the City's code will not resolve the controversy over whether Guernsey's determination and a potential decision by the City to forestall development are improper and contrary to the City's code. Similarly, a declaration that the City's employees may not create new use classifications without approval by the City Council will not, on its own, resolve the conflict of whether BEL's proposed improvements to the easement will violate relevant zoning restrictions or whether Guernsey's determination that BEL's intended use for the easement was commercial in nature was inaccurate or improper.

The first issue on appeal will not be resolved by consideration of pure questions of law and will involve consideration of significant factual matters, rendering it an issue primed for administrative exhaustion. Moreover, because BEL has bypassed the administrative process, we have no way of knowing what the City's ultimate response to BEL's arguments would have been. Although in part of its argument BEL concedes that Guernsey's letter constituted a use determination, albeit an improper one, BEL also argues that the letter could not constitute a use-classification determination. As described previously, the City's code does not specifically list "commercial driveway" as a type of use classification, see Austin, Tex., Code §§ 25-2-1, 25-2-4, and for this reason, BEL contends that the letter did not qualify as a use determination.
Even assuming that the letter was not a use determination and that the letter was in fact just an opinion by one of the City's employees, we would still conclude that we do not have jurisdiction over the case because no justiciable controversy is present. Prior to filing suit, BEL did not file an actual site-plan application, and the City has, therefore, taken no position on whether it would approve an application. See Austin, Tex., Code §§ 25-5-1 (providing, with certain exceptions, that "a site plan must be approved and released under this chapter before: (1) a person may change the use of property; (2) a person may develop property; or (3) the building official may issue a building permit)," 25-5-149 (stating that site-plan applicant may appeal denial of its application to City Council). Consequently, if Guernsey's letter was not a use determination, BEL has asked the district court and this Court to issue an advisory opinion regarding its future rights if the City decides to deny BEL's application, and there is, therefore, no actual controversy to resolve. See Thomas v. City of San Marcos, 477 S.W.2d 322, 324 (Tex. Civ. App.--Austin 1972, no writ) (concluding that when City official sent property owner letter requesting owner cease development of his property, court did not have jurisdiction over claim because owner did not file for permits to build on property and, therefore, had not exhausted administrative remedies).
Accordingly, whether the letter is viewed as a use determination or not, this Court does not have jurisdiction over BEL's first issue. Consequently, we conclude that the district court should have granted the City's plea to the jurisdiction with respect to this issue. Moreover, because BEL admits that it did not appeal Guernsey's determination or file a site-plan application, we conclude that the record affirmatively negates the existence of jurisdiction and that dismissal is appropriate. See Tex. R. App. P. 43.2 (explaining that one of permissible types of appellate judgments is to dismiss); South Tex. Water Auth. v. Lomas, 223 S.W.3d 304, 308 (Tex. 2007) (dismissing case after determining court did not have subject-matter jurisdiction over case).
Regulatory Takings Claim

In addition to the declarations sought against the City, BEL also contends that the City's actions constituted a regulatory taking of BEL's property because by "denying [BEL] the ability to build the driveway, [the] City . . . has denied [BEL] all economically viable use of their property and [the] City . . . has unreasonably interfered with [BEL's] right to use and enjoy same." See Rowlett/2000 v. City of Rowlett, 231 S.W.3d 587, 590-91 (Tex. App.--Dallas 2007, no pet.) (explaining that city's passage of ordinance may injure property's value or usefulness, which, in some circumstances, might constitute taking).

To bring a regulatory takings claim, the claim must be ripe for resolution. See Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 929 (Tex. 1998); see also Patterson v. Planned Parenthood, 971 S.W.2d 439, 442 (Tex. 1998) (explaining that ripeness is necessary component of subject-matter jurisdiction and concerns when a claim may be made). For a regulatory takings claim to be ripe, "there must be a final decision regarding the application of the regulations to the property at issue." Mayhew, 964 S.W.2d at 929. A final decision usually occurs after a development plan has been formally rejected by a city and after the city has rejected the property owner's request for a variance. Id. at 929-30. In this context, the term "variance" is applied flexibly and encompasses permits and other applications that provide relief that is similar to a variance. City of Houston v. Kolb, 982 S.W.2d 949, 952 (Tex. App.--Houston [14th Dist.] 1999, pet. denied). The purpose behind requiring the denial of a variance or similar requested relief is to give the city an opportunity to grant some form of relief or make a policy decision that will abrogate the alleged taking. Id. The requirement of a final decision stems, in part, from the need to have sufficient evidence to be able to compare uses prohibited by the regulation with permissible uses that may be made of the affected property in order to properly ascertain whether a taking has in fact occurred. See Mayhew, 964 S.W.2d at 929.

Although BEL received a letter from a City employee stating that BEL's intended use for the easement did not comply with the relevant zoning restrictions, BEL has not referred us to any regulation or case that equates this type of letter with a rejection of a development plan, that establishes that the receipt of this type of letter forecloses continued development approval through site-plan applications and building-permit applications, or that characterizes this type of letter as a final decision on the matter. (7) On the contrary, the various reports and the ordinance granting the PUD designation all demonstrate that the City has not foreclosed the possibility that BEL will be able to develop the easement in question: quite the contrary, they all contemplate development of the easement. Moreover, even assuming that the letter is a rejection of BEL's development plan, nothing in the record demonstrates that BEL sought a variance or similar relief from Guernsey's determination, and consequently, the City has not issued a denial of the relief requested.

BEL insists that, in this case, it was unnecessary for BEL to file for a variance in order for this Court to have jurisdiction over the claim. Specifically, BEL contends that it is unnecessary for a party to file what amounts to "futile variance requests or re-applications" before filing a takings claim. See id. at 929-30. However, nothing in the letter or the remainder of the record indicates that BEL had been informed that it would have been futile to petition for some type of relief from Guernsey's determination or that Guernsey and other officials would have been unreceptive to BEL's arguments. Furthermore, BEL presented no evidence or testimony from City officials that the City would not have considered allowing for a variance or some other form of relief. See Kolb, 982 S.W.2d at 953-54 (detailing testimony of various officials that it would have been futile for property owner to file for variance because city would not have approved it under any circumstances).

Moreover, the case BEL relies on as demonstrating that it would be futile for BEL to file applications is distinguishable from this case. In Mayhew, the Mayhews requested approval to build between 3,650 and 5,025 properties, but the Mayhews modified their application by asking to develop fewer properties after receiving negative feedback from the town's zoning committee. 964 S.W.2d at 931. Even after the Mayhews made the modification, the town of Sunnyvale denied a planned development application, but the Mayhews did not file for a variance. 964 S.W.2d at 931. In determining that the claim was ripe, the court noted that the Mayhews' proposed modification to their application might have, on its own, satisfied the variance requirement. But even if the modification was not a variance, the court concluded that it still had jurisdiction because the Mayhews alleged that they could not make an additional compromise to the number of properties that were to be developed because any further reduction would render the project economically unviable. Id. at 931-32. In essence, the court concluded that after receiving a rejection by a city, property owners should not be required to submit additional permits for development that would render the development unprofitable before being able to seek judicial relief. Id. at 932. Further, the court indicated that if the Mayhews had not made the economic allegation, the claim might otherwise not be ripe. Id.
Neither of those circumstances is present here. BEL proposed no modification after receiving the letter from Guernsey, and BEL has not demonstrated that any modification to its proposed development would render the development economically undesirable.
For all the reasons previously given, we conclude that the district court correctly determined that it did not have jurisdiction over BEL's regulatory takings claim, affirm that portion of the district court's judgment, and overrule BEL's third issue on appeal.

Second Declaration

In addition to the first declaration previously discussed, (8) BEL also sought a declaration that "an owner of an easement has the right to file an application to re-zone, if necessary, the area subject to such easement." The Austin code lists the individuals and governmental bodies that may file to re-zone property and provides, in relevant part, that zoning or re-zoning may be initiated by "(1) [the City] Council; (2) [the] Land Use Commission; (3) [the] record owner; (4) [the] Historic Landmark Commission, . . . ; or (5) for a proposed historic area (HD) combining district, petition of the owners of at least 60 percent of the land in the proposed district." Austin, Tex., Code § 25-2-242. After construing this portion of the code, the district court issued a declaration stating that because BEL "is not a 'record owner'" of the property on which its easement sits, it "may not . . . initiate zoning or rezoning of [the] property subject to the easement."

On appeal, BEL argues that the district court erred in issuing the declaration and in refusing to make the declaration that BEL originally requested. In making this assertion, BEL contends that as a result of entering into an easement agreement with Speedy Stop, it is a "record owner" of a property interest in Speedy Stop's property. BEL further notes that because it is an easement holder, it has a right to use the easement that is superior to Speedy Stop's, see McDaniel v. Calvert, 875 S.W.2d 482, 485 (Tex. App.--Fort Worth 1994, no writ), and that it has whatever implied rights to the property are necessary "to fairly enjoy the rights expressly granted," see Marcus Cable Assocs. v. Krohn, 90 S.W.3d 697, 701 (Tex. 2002).

In light of the preceding, BEL insists that the district court's declaration that BEL may not seek to re-zone the property is erroneous and is an inaccurate construction of the City's code that leads to the absurd result that an owner of a tract that has had its property zoned as a PUD will be prohibited from developing its property if the easement that will serve as an entrance to the development is not appropriately zoned but will also be prohibited from filing to have the property re-zoned. Moreover, BEL argues that the City's refusal to accept its zoning modification request is arbitrary, unreasonable, and in excess of its authority.

Resolution of this issue involves construing various City ordinances, which is a question of law reviewed de novo. See Bragg v. Edwards Aquifer Auth., 71 S.W.3d 729, 734 (Tex. 2002); USA Waste Servs. of Houston, Inc. v. Strayhorn, 150 S.W.3d 491, 494 (Tex. App.--Austin 2004, pet. denied); see also Coppell v. General Homes Corp., 763 S.W.2d 448, 453 (Tex. App.--Dallas 1988, writ denied) (explaining that courts construe city ordinances in same manner that they construe statutes). When construing ordinances, we must ascertain the intent of the governing body enacting the regulations at issue. Coppell, 763 S.W.2d at 453; see Fleming Foods of Tex. v. Rylander, 6 S.W.3d 278, 284 (Tex. 1999). In determining intent, courts should look to the plain meaning of the words used in the ordinances. Coppell, 763 S.W.2d at 43; see Fireman's Fund County Mut. Ins. Co. v. Hidi, 13 S.W.3d 767, 768-69 (Tex. 2000). We presume that every word was deliberately chosen and that excluded words were left out purposely. USA Waste Servs., 150 S.W.3d at 494. When determining intent, the entire regulation, not isolated portions, must be considered. Coppell, 763 S.W.2d at 453; Jones v. Fowler, 969 S.W.2d 429, 432 (Tex. 1998). In determining intent, courts also give serious consideration to an agency's interpretation of a statute that the agency is charged with enforcing provided that the interpretation is reasonable and consistent with the relevant governing regulations. Continental Cas. Co. v. Downs, 81 S.W.3d 803, 807 (Tex. 2002); see City of Austin v. Southwestern Bell Tel. Co., 92 S.W.3d 434, 441-42 (Tex. 2002).

For the reasons that follow, we disagree with BEL. First, the district court's declaration is consistent with the relevant governing regulations. The City's code specifies that a "record owner" may initiate re-zoning procedures. Austin, Tex., Code § 25-2-242. The code defines a record owner as "the owner of real property as shown by the deed records of the county in which the property is located." Id. § 25-1-21(86); see also id. § 25-1-134(B) (explaining that when notice needs to be given to "record owner" of real property, notice may be made "by mailing notice to the owner at the street address of the property or, if the property does not have a street address, to the return address shown on the deed").

Second, the declaration is also consistent with common law principles associated with easements. "[A]n easement is a nonpossessory interest that authorizes its holder to use property for only particular purposes" and constitutes a limited relinquishment of the right of a property owner to exclude others from his property. Krohn, 90 S.W.3d at 700; see Restatement (Third) of Property (Servitudes) § 1.2 cmt. d (distinguishing between easements, which allow owner to only use land for specific purposes, and possessory land interest, which permits owner to use property for any purpose). In other words, an easement is a privilege to use land that is completely distinct from ownership of the land, Hubert v. Davis, 170 S.W.3d 706, 710 (Tex. App.--Tyler 2005, no pet.), and an easement does not convey title to property, Stephen F. Austin State Univ. v. Flynn, 228 S.W.3d 653, 658 (Tex. 2007); Lakeside Launches, Inc. v. Austin Yacht Club, Inc., 750 S.W.2d 868, 873 (Tex. App.--Austin 1988, writ denied).
Third, the declaration is also consistent with the construction of the regulations made by the agency responsible for administering the City's zoning regulations. According to Guernsey's affidavit, the Neighborhood Planning and Zoning Department, which is responsible for administering the City's zoning regulations, equates the phrase "record owner" with "land owner" or "fee owner." Although BEL may own an easement right, it is not the owner of the property on which its easement rests.

Finally, the declaration is consistent with the terms of the easement in question. An easement is an agreement between a property owner and another party, and for this reason, courts apply basic contract principles of construction when determining the terms of the agreement. Krohn, 90 S.W.3d at 700. The parties' express intentions determine the scope of the easement. Id. The easement agreement at issue here specifies that it "contains the entire agreement between the parties relating to the easements, rights and privileges herein granted and undertaken." The agreement does not mention zoning in any manner and does not bequeath the right to re-zone the property to BEL. (9) Cf. Cross v. Dallas County Flood Control Dist. No. 1, 773 S.W.2d 49, 50 (Tex. App.--Dallas 1989, no writ) (detailing easement requirements, which included requirement that easement owner support all zoning requests and building-permit requests made by property owner).

For these reasons, we are persuaded that the district court properly declared that BEL, as an easement owner, may not seek to re-zone the property on which its easement rests. Accordingly, we overrule BEL's second issue on appeal.

CONCLUSION

In light of the preceding, we dismiss BEL's first issue on appeal and affirm the remainder of the district court's judgment.

David Puryear, Justice
Before Justices Patterson, Puryear and Henson
Affirmed in part; Dismissed in part

Filed: May 9, 2008

1. At the time the agreement was entered, Speedy Stop was not the owner of the property in question. However, by the time this lawsuit was filed, Speedy Stop had purchased the property. For ease of reading, we will refer to the owner of the property as Speedy Stop.
2. Although BEL originally characterized the paved portion of the easement as a driveway, it contends on appeal that the strip is actually an "access street." See Austin, Tex., Code § 25-4-157(A)(1) (defining "access street" as "street that provides access to a sub-division by connecting to an external street"). However, because the distinction is not relevant to our ultimate conclusion, we will refer to the strip as a driveway.
3. Although not relevant to the ultimate outcome of this case, we do note that Speedy Stop has engaged in commercial activities on its property for years. See Austin, Tex., Code § 25-2-222 (providing that, in general, property annexed by City will initially be designated as rural residence district regardless of property's actual use).
4. In its petition, BEL also made several claims against Speedy Stop. However, the claims against Speedy Stop were subsequently severed from the claims against the City. This appeal only concerns the claims against the City.
5. BEL does not dispute that the director delegated this authority to Guernsey or argue that this type of delegation is improper.
6. Although we need not reach the merits of whether Guernsey's characterization of the intended use for the easement as a commercial driveway was an improper use classification, we do note that although the code does not specifically include "commercial driveways" in its list of "use classifications," nothing in the code indicates that the list is exhaustive. In fact, section 25-2-2 seems to acknowledge that a proposed use might not fit within one of the enumerated categories. In particular, the section instructs the reviewer to "consider the characteristics of the proposed use and the similarities, if any, of the use to other classified uses." Austin, Tex., Code § 25-2-2(B) (emphasis added). Moreover, the code does include driveways within the description of a specific commercial use classification, which is some indication that the City intended for reviewers to consider driveways as part of a "use classification" determination. See id.
7. It is worth noting again that BEL has not actually filed a site-plan application to develop its property and that, consequently, the City has not formally refused to accept an application.
8. The City limited its jurisdictional arguments to BEL's first and third issues and does not contend that this Court lacks jurisdiction over BEL's second issue on appeal. However, we note that unlike the first issue, the second issue concerns a pure question of law, rendering the determination appropriate for decision despite the fact that BEL had not exhausted all of its administrative remedies. See Henry v. Kaufman County Dev. Dist. No. 1, 150 S.W.3d 498, 503 (Tex. App.--Austin 2004, pet. granted and case remanded by agr.). Furthermore, prior to filing suit, BEL was informed by a City employee that it would be unable to apply to re-zone Speedy Stop's property, and BEL's petition to the City's Zoning and Platting Commission to issue a request to re-zone Speedy Stop's property was denied. Consequently, there is a "justiciable controversy as to the rights and status of" the parties, and the requested declaration will "actually resolve the controversy." Brooks v. Northglen Ass'n, 141 S.W.3d 158, 163-64 (Tex. 2004); see Texas Dep't of Pub. Safety v. Moore, 985 S.W.2d 149, 154 (Tex. App.--Austin 1998, no pet.) (explaining that justiciable controversy "is one in which a real and substantial controversy exists involving a genuine conflict of tangible interests and not merely a theoretical dispute").
9. In this opinion, we make no comment on whether BEL may sue Speedy Stop to compel Speedy Stop to initiate a zoning request. We only note that the easement did not expressly give BEL the ability to initiate a zoning change.