Griffin v. Birkman (Tex.App.- Austin, 2007)

Government entity law, Declaratory Judgment Act

Constable Gary Griffin, Williamson County Precinct 1 v. Lisa Birkman, County Commissioner Precinct 1; Cynthia Long, County Commissioner Precinct 2; Valerie Covey, County Commissioner Precinct 3; Ron Morrison, County Commissioner Precinct 4; and Dan A. Gattis, County Judge, No. (Tex.App.- Nov. 28, 2007) (UDJA) (Opinion by Chief Justice Law)
Appeal from 368th District Court of Williamson Countyge

FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 368TH JUDICIAL DISTRICT
NO. 05-1039-C368, HONORABLE JAMES F. CLAWSON JR., JUDGE PRESIDING

O P I N I O N

Constable Gary Griffin appeals from the trial court's judgment against him in his suit for declaratory judgment asking that the court find that appellees (collectively "the County Commissioners Court" (2)) lacked authority to transfer funding for the Williamson County Mental Health Unit from his office to that of the Williamson County Sheriff.
We will affirm the trial court's judgment.

Factual and Procedural Background

Williamson County has a "Mental Health Unit," a team of law enforcement officers who have specialized training in responding to mental health emergencies. This unit had been under the direction of the constable for Precinct One for eight years. In October 2005, however, the County Commissioners Court formed a committee to study the issue of the best placement for the Mental Health Unit. For the budget year 2005-06, the unit remained in Precinct One, with funding for six mental health deputies and two mental health supervisors. Griffin and four deputy constable positions were also funded. (3)

The current litigation was precipitated by events that occurred on October 19, 2005. Griffin ordered all Precinct One deputies to stop responding to mental health calls. His chief deputy contacted the Williamson County 911 dispatcher and all local law enforcement officials and notified them that Griffin's office would no longer respond to mental health emergencies or transport the mentally ill and mentally disabled. The County Commissioners Court convened an emergency meeting on October 20, 2005, and decided to transfer funding for the Mental Health Unit from the Precinct One Constable's budget to the Sheriff's office. The Sheriff had authorized, but unfilled, positions available that he offered to the mental health deputies. The funding and ancillary resources, such as cars, for these positions were transferred from the Precinct One Constable's budget to the Sheriff's budget.

Griffin filed suit for declaratory judgment with ancillary injunctive relief requested. The temporary injunction was denied. The County Commissioners Court moved for both a traditional and a no-evidence summary judgment; the trial court granted a general summary judgment.
In four issues on appeal, Griffin contends that the trial court erred in granting summary judgment because: (1) once the County Commissioners Court adopts the annual budget, the Commissioners lack authority to amend that budget for the purposes of interfering with or countermanding the decision of a constable as to how to deploy his deputies during that fiscal year; (2) local government code section 111.104(b) could not serve as authority for the Williamson County Commissioners Court to cut Constable Griffin's original annual budget because that section only gives authority to a Commissioners Court to make an emergency "expenditure" that increases the county's original budget; (3) even if section 111.041(b) could be read to authorize a budget cut, summary judgment was inappropriate given the genuine fact issue of whether a "grave public necessity" existed when Constable Griffin temporarily deployed his deputies to serve criminal warrants and civil papers while deciding on a case-by-case basis whether to take mental health calls or let the Sheriff's office handle them, and no admissible evidence was introduced that a single mental health call went unanswered or that such calls would go unanswered in the future; and (4) local government code section 111.041(c) does not give the Williamson County Commissioners Court authority to "transfer" budgeted amounts to budget items that were created by the "transfer" order that did not exist in the original annual budget. We will hold that the County Commissioners Court had the authority to make the budget transfer, overruling issue four, and hold that the transfer did not improperly interfere with Griffin's "sphere of authority," overruling issue one. (4) Before reaching the merits of the case, we will discuss the County Commissioners Court's motion to dismiss the appeal.

Discussion

Mootness

The County Commissioners Court moved to dismiss this appeal for mootness because Griffin's complaint is about a budget transfer that occurred in fiscal year 2006 and the county is now operating under a new budget for fiscal year 2007. The mootness doctrine limits courts to deciding cases in which an actual controversy exists. Camarena v. Texas Employment Comm'n, 754 S.W.2d 149, 151 (Tex. 1988). A case becomes moot if a controversy ceases to exist between the parties at any stage of the legal proceedings, including the appeal. In re Kellogg Brown & Root, 166 S.W.3d 732, 737 (Tex. 2005). A dispute over attorneys' fees is a live controversy. McElroy v. City of Temple, 208 S.W.3d 471, 474 (Tex. App.--Austin 2006, pet. denied) (citing Allstate Ins. Co. v. Hallman, 159 S.W.3d 640, 642 (Tex. 2005)). Griffin sued for a declaratory judgment, injunctive relief, and attorneys' fees. Although the fiscal year at issue has ended, a decision that the County Commissioners Court acted improperly, thus reversing the trial court's judgment, would necessitate a remand to the trial court to consider whether an award of attorneys' fees to Griffin would be appropriate. See Tex. Civ. Prac. & Rem. Code Ann. § 37.009 (West 1997). Therefore, we overrule the County Commissioners Court's motion to dismiss and consider the merits of Griffin's claims on appeal.

Standard of Review

This Court reviews the granting of a motion for summary judgment under a de novo standard of review. See Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). Under this standard, the Court exercises its own judgment and redetermines each issue of fact and law. See Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex. 1998). No deference is given to the original tribunal's decision. Id. If a trial court's order does not specify the ground or grounds relied on for its ruling, then summary judgment will be affirmed on appeal if any theory advanced is meritorious. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). The appellate court may review and affirm on any ground the movant presented to the court in its motion for summary judgment, regardless whether the trial court identified the ground relied on to grant the summary judgment. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625 (Tex. 1996). Appellants moved for both a no-evidence and a traditional summary judgment on the ground that as a matter of law, the County Commissioners Court did not violate Texas law by moving the responsibility for the Mental Health Unit to the Sheriff's Office. See Young Ref. Corp. v. Pennzoil, 46 S.W.3d 380, 385-86 (Tex. App.--Houston [1st Dist.] 2001, pet. denied).
The budget transfer order made by the County Commissioners Court is reviewed for an abuse of discretion. See Commissioners Court of Titus County v. Agan, 940 S.W.2d 77, 79-80 (Tex. 1997) (citing Ector County v. Stringer, 843 S.W.2d 477, 479 (Tex. 1992)). Once the County Commissioners Court exercises its discretion, the district court may review the order only for abuse of discretion, and is limited to a review of whether the Court, by its order, acted illegally, unreasonably, or arbitrarily. See Agan, 940 S.W.2d at 980. In reviewing a Commissioners Court order for abuse of discretion, the court has no right to substitute its judgment and discretion for that of the Commissioners Court. Id.

County Commissioners Court

The Texas Constitution provides that the County Commissioners Court "shall exercise such powers and jurisdiction over all county business, as is conferred by this Constitution and the laws of the State, or as may be hereafter prescribed." Tex. Const. art. V, § 18. Thus, the Texas Constitution established the Commissioners Court as the county's principal governing body. Agan, 940 S.W.2d at 79. The powers and duties of the Commissioners Court include aspects of legislative, executive, administrative, and judicial functions. Id. (citing Avery v. Midland County, 390 U.S. 474, 482 (1968); Ector County v. Stringer, 843 S.W.2d 477, 478 (Tex. 1992)). In the exercise of its powers and jurisdiction over county business, the County Commissioners Court has implied authority to exercise broad discretion to accomplish the purposes intended. See Canales v. Laughlin, 214 S.W.2d 451, 453 (Tex. 1948); Cosby v. County Comm'rs of Randall County, 712 S.W.2d 246, 248 (Tex. App.--Amarillo 1986, writ ref'd n.r.e.). Constitutional and statutory provisions conferring authority upon the Commissioners Court should be broadly and liberally construed to ascertain the scope of the authority granted either expressly or by necessary implication. Canales, 214 S.W.2d at 453; Cosby, 712 S.W.2d at 248.

The County Commissioners Court has extensive authority over the county's budget, including the power to determine the number and compensation of employees, deputies, assistants, and clerks to be given to a particular department. See Abbott v. Pollack, 946 S.W.2d 513, 517 (Tex. App.--Austin 1997, writ denied). The County Commissioners Court has the statutory authority to amend the budget by: authorizing emergency expenditures in the case of a grave public necessity; transferring an amount budgeted for one item to another budgeted item; and changing the budget for county purposes. Tex. Loc. Gov't Code Ann. §§ 111.041, 111.0415 (West 2006).

The County Commissioners Court, however, does not have unlimited powers over county government. Each elected county official has a delegated sphere of authority that cannot be invaded. See Pritchard & Abbott v. McKenna, 350 S.W.2d 333, 335 (Tex. 1961). This sphere of authority covers only those duties that the Texas Constitution and statutes specifically delegate to the officer. Id. The protected "sphere of authority" does not protect discretionary duties that are outside the "core duties" of the elected official. Agan, 940 S.W.2d at 79.

The Texas Constitution creates the constable's office. Art. V, § 18. The general powers and duties of a constable are specified in the local government code:

(a) A constable shall execute and return as provided by law each process, warrant, and precept that is directed to the constable and is delivered by a lawful officer. Notices required by Section 24.005, Property Code, relating to eviction actions are process for purposes of this section that may be executed by a constable.
[(b), (c), (d); geographic authorizations and restraints]
(e) The constable shall attend each justice court held in the precinct.
Tex. Loc. Gov't Code Ann. § 86.021 (West 2006). The operation of a mental health unit is not contained within the list of "core duties" as set out by the legislature. (5)

The shift of duties and funding from one county office to another in this case appears to fall within the ambit of Agan. In Agan, the County Commissioners Court of Titus County transferred payroll preparation responsibilities from the County Treasurer to the County Auditor. 940 S.W.2d at 78. From 1987 until 1994 a payroll clerk working for the Treasury prepared the county payroll. In 1994, the Commissioners Court amended the budget to combine administrative duties involving county payroll, the insurance program, personnel, and receiving purchase orders and their payment into one full-time position assigned to the County Auditor. Id. at 79. These duties had previously been divided between the payroll clerk and a part-time employee in the Auditor's office, who had recently resigned. Id. The Treasury employee transferred to the Auditor's office to fill this position. Id. After enumerating various core functions of the Treasurer's office, the court noted that payroll preparation responsibilities had not been assigned to any county official in particular and thus were not a core function of the Treasurer. Id. at 81-82. Therefore, acting in its legislative capacity, the Commissioners Court was able to delegate the responsibilities to an appropriate county official and had the power to transfer the payroll duties to the Auditor. Id. The court then noted that the Treasurer was given the exclusive power to disburse funds, and the Commissioners could not transfer functions involving fund disbursement to the auditor. Id. The court concluded: "If the Legislature does not specifically assign a duty to the County Treasurer, that duty is not one of the county Treasurer's core functions. The Commissioners Court may, within its discretion, assign those non-core functions to other county officials the legislature authorizes to perform those functions." Id. at 82.

In the current case, the County Commissioners Court transferred funding for a number of jobs from the constable to the sheriff. These officers were not performing a core function of the constable's office. Accordingly, under Agan, the County Commissioners Court had the discretion to assign these non-core functions to another official authorized to perform those duties. Although Agan did not expressly discuss the timing of the transfer in that case, because the opinion referred to "amending" the budget, it appears comparable to the budget amendment at issue in this case as an event that occurred after the start of the fiscal year. We note that Agan did not address the budget transfer authority under Texas Local Government Code section 111.041(c). We now discuss this section as another basis for the County Commissioners Court's authority to transfer these funds.

Section 111.041(c) Transfer Authority

The Texas Local Government Code gives budgetary transfer authority to the Commissioners Court: "The Commissioners' Court by order may amend the budget to transfer an amount budgeted for one item to another budgeted item without authorizing an emergency expenditure." Tex. Loc. Gov't Code Ann. § 111.041(c) (West 1999). In this case, the Sheriff had open positions. He used those positions to offer employment to the mental health deputies. The funding for these deputies was transferred from the budget item for the Precinct One Constable to the Sheriff. Such a transfer in the form of a "rehire" of employees by one precinct from another precinct, with the funds originally budgeted for the first precinct of employment following the employees to their new precinct, was approved in an attorney general opinion. See Op. Tex. Att'y Gen. No. DM-158 at 5 (1992).

Griffin asserts that transfer must be a line-item to line-item transfer; in other words, because the Sheriff did not have a line item for each transferred position labeled "mental health deputy," no transfer could occur. A previous version of the transfer authority under section 111.041 did contain a limitation that a "budget surplus" could be transferred to a budget item of "similar kind and fund" as long as the total budget was not increased. See Hooten v. Enriquez, 863 S.W.2d 522, 529-30 (Tex. App.--El Paso 1993, no writ) (dealing with propriety of mechanism used to create "surplus" to transfer money from County Clerk to Record Office). However, the 75th legislature amended this section to the current version quoted above, removing the "like kind" and "surplus" restrictions. See Act of June 1, 1997, 75th Leg., R.S., ch. 1197, § 3, 1997 Tex. Gen. Laws 4612. We decline to read into the statute a new restriction not supported by its plain language.

Further, the Williamson County budget does not show individual salaries as separate line items; each department's budget simply shows a total for salaries, FICA, and other categories of expenditures. For example, the Commissioner's budget for Precinct One simply shows an "object code" of 001100 for "salaries" with a total of $139,815 allocated for salaries. The Precinct Two budget, under the same object code and label, shows a total of $145,285 allocated for salaries. Similarly, each of these two precincts shows an "object code" of 002010 for "FICA" with totals of $10,920 and $11,115, respectively, allocated for this item. The order authorizing the budget transfer contains a chart labeled, "Line Item Transfers for Transfer of Mental Health Unit from Dept. 551 [Constable, Precinct One] to Dept. 560 [Sheriff]." Under "Line Item" 1100, "Salaries," it shows the Precinct One current budget allocating a lump sum of $509,370.00, with a transfer to the Sheriff of a lump sum $229,363.49. The transfer budget tracks the format of the county budget with a lump-sum line item for FICA, retirement, and other categories of expenses. Although the County Auditor maintains a budget showing each salary as a separate line item for accounting control purposes, that is not the adopted budget of Williamson County as approved by the County Commissioners Court that was subject to amendment. See Tex. Loc. Gov't Ann. § 111.008 (West Supp. 2007) (adoption of budget), 111.009 (approved budget filed with county clerk and posted on county website).

Conclusion

We have concluded that the budget transfer was authorized by the local government code and did not improperly intrude into Constable Griffin's sphere of authority. Accordingly, the Willliamson County Commissioners Court was entitled to summary judgment in its favor. We affirm the trial court's judgment.

W. Kenneth Law, Chief Justice

Before Chief Justice Law, Justices Puryear and Henson
Affirmed

Filed: November 28, 2007

1. This suit was originally brought against Lisa Birkman, Greg Boatright, S. Thomas McDaniel, Frankie Limmer, and John Doerfler. Other than Lisa Birkman, the successors-in-office have been substituted. See Tex. R. App. P. 7.2(a) (automatic substitution of public officer when officer is party in official capacity).
2. The language in the Texas Constitution establishing the "County Commissioners Court" does not use an apostrophe in "Commissioners." See Tex. Const. art. V, § 18; 35 David B. Brooks, Texas Practice: County and Special District Law § 5.2 & n.1 (2d ed. 2002). We will use the spelling as it appears in the Texas Constitution.
3. Ordinarily, a Williamson County constable would only have two deputy constables and an administrative staff member.
4. Because of our disposition of the case, it is not necessary to discuss issues two and three concerning the existence of an emergency. See Tex. R. App. P. 47.1 (opinion to be as brief as practicable, but address every issue raised and necessary to final disposition of appeal).
5. We note that, in his brief, Griffin refers to handling mental health calls "in addition to their 'core' Constable duties serving criminal warrants, civil papers, and providing a bailiff to the JP Court." In other words, Griffin acknowledges that handling mental health calls was not a core function of the office.

Anders brief ends appeal in termination of parental rights case

James Boyd v. Texas Department of Family and Protective Services [TDFPS = Texas DFPS], N0. , (Tex.App.- Austin, Oct. 25, 2007)( Opinion by Chief Justice Law ) (Before Chief Justice Law, Justices Waldrop and Henson)
Appeal from 146th District Court of Bell County
Disposition: Affirmed

FROM THE DISTRICT COURT OF BELL COUNTY, 146TH JUDICIAL DISTRICT
NO. 212,085-B, HONORABLE RICK MORRIS, JUDGE PRESIDING

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

James Boyd brings this accelerated appeal from a final order terminating his parental rights to his minor children, G.B. and Y.B. Boyd is represented by court-appointed counsel who thoroughly reviewed the record and filed an Anders brief concluding that Boyd's appeal is frivolous and without merit. Counsel's brief meets the requirements of Anders by presenting a professional evaluation of the record and demonstrating that there are no arguable grounds for appeal. See Anders v. California, 386 U.S. 738, 744 (1967); see also Taylor v. Texas Dep't of Protective & Regulatory Servs., 160 S.W.3d 641, 646-47 (Tex. App.--Austin 2005, pet. denied).
Boyd was provided with copies of his counsel's brief and motion to withdraw. He was advised of his right to examine the record and to file a pro se brief. He has not filed a pro se brief or communicated with this Court in any way. Because our review of the record found nothing that would arguably support an appeal, we agree that the appeal is frivolous and without merit. We affirm the judgment of the trial court and grant the motion to withdraw as counsel.
W. Kenneth Law, Chief Justice
Before Chief Justice Law, Justices Waldrop and Henson
Affirmed
Filed: October 26, 2007

Frederic A. Gladle v. Dustin Leifheit, Samantha Leifheit and Darryl Leifheit, No. (Oct. 24, 2007)(Opinion by Chief Justice Law)(Dismissal upon request of appellant)(Before Chief Justice Law, Justices Puryear and Pemberton)
Appeal from 345th District Court of Travis County

THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT
NO. D-1-GN-06-003026, HONORABLE GISELA D. TRIANA, JUDGE PRESIDING

NO. 03-07-00028-CV
Frederic A. Gladle Management Trust; Frederic A. Gladle Living Trust;
Barbara E. Gladle; Barbara Lynne Gladle Management Trust; Barbara Lynne Gladle Living Trust; Alan Lynne Family Trust; LT Entertainment Center, LP; LT Entertainment Group, LLC; Alan Lynne Family Partnership; Meriport Capital, Inc.; and Train, Inc., Appellants
v.
Dustin Leifheit, Samantha Leifheit and Darryl Leifheit,
Appellees

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
NO. D-1-GN-06-003987, HONORABLE GISELA D. TRIANA, JUDGE PRESIDING

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

These appeals were consolidated for purposes of briefing and oral argument, if any. Appellants have now moved to dismiss each appeal because the parties have settled. See Tex. R. App. P. 42.1(a)(1). The motion is unopposed and the parties have asked that the costs be taxed against the party incurring same. We grant the motion and dismiss the appeals.
W. Kenneth Law, Chief Justice
Before Chief Justice Law, Justices Puryear and Pemberton
Dismissed on Appellants' Motion
Filed: October 24, 2007
DISMISSED ON APPELLANT'S MOTION: Opinion by Chief Justice Law (Before Chief Justice Law, Justices Puryear and Pemberton)

Frederic A. Gladle Management Trust; Frederic A. Gladle Living Trust; Barbara E. Gladle; Barbara Lynne Gladle Management Trust; Barbara Lynne Gladle Living Trust; Alan Lynne Family Trust; LT Entertainment Center, LP; LT Entertainment Group, LLC, et al. v. Dustin Leifheit, Samantha Leifheit and Darryl Leifheit--Appeal from 98th District Court of Travis County

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
NO. D-1-GN-06-003987, HONORABLE GISELA D. TRIANA, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
These appeals were consolidated for purposes of briefing and oral argument, if any. Appellants have now moved to dismiss each appeal because the parties have settled. See Tex. R. App. P. 42.1(a)(1). The motion is unopposed and the parties have asked that the costs be taxed against the party incurring same. We grant the motion and dismiss the appeals.
W. Kenneth Law, Chief Justice
Before Chief Justice Law, Justices Puryear and Pemberton
Dismissed on Appellants' Motion
Filed: October 24, 2007

DWOP: Appeal was years late - Costs of court issue did not prevent judgment from becoming final

In this appeal from a franchise tax refund case decided years earlier, the Third Court of Appeals determines it lacks appellate jurisdiction because the trial court's plenary power had long expired. Unresolved issue regarding award of costs of court did not constitute unadjudicated claim for affirmative relieve and did not operate the prevent the judgment from becoming final and appealable.

Saudi Refining, Inc. v. Susan Combs, successor-in-interest to Carole Keeton Rylander, Comptroller of Public Accounts of the State of Texas, and Greg Abbott, successor-in-interest to John Cornyn, Attorney General of the State of Texas, (Tex.App.- Austin, Oct. 12, 2007)(Opinion by Chief Justice Law)(DWOP, late appeal, franchise tax refund suit)(Before Chief Justice Law, Justices Puryear and Waldrop)
Appeal from 201st District Court of Travis County
Disposition: Dismissed for Want of Jurisdiction (DWOP)

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT
NO. D-1-GN-99-004227, HONORABLE SCOTT H. JENKINS, JUDGE PRESIDING

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

This appeal arises from a franchise tax refund case that was fully and finally decided on cross motions for summary judgment in 2003. Although the final judgment had been entered in 2003, the case remained pending in the district clerk's records. Because the parties took no further action, it was placed on the dismissal docket for want of prosecution in 2006. The district court signed an order retaining the case in 2007. Ultimately, because that retention order was signed after the court's plenary power had expired, the case was dismissed for want of jurisdiction.

Appellant Saudi Refining, Inc. filed its notice of appeal from the 2007 order dismissing the case for want of jurisdiction. Appellees Susan Combs, Successor-in-Interest to Carole Keeton Rylander, Comptroller of Public Accounts of the State of Texas; and Greg Abbott, Successor-in-Interest to John Cornyn, Attorney General of the State of Texas filed a motion to dismiss the appeal for want of jurisdiction. We will grant the motion.

In 2002, the parties filed traditional motions for summary judgment pursuant to Texas Rule of Civil Procedure 166a. Appellant's motion specified that it sought judgment on its "entire claim against the Comptroller." On January 23, 2003, the district court signed an order granting summary judgment in favor of appellees and denying appellant's motion. Both parties considered this order to have been final and appealable. No appeal was taken.
Almost four years later, the parties received a notice of intent to dismiss the case for want of prosecution. Appellant filed a motion to retain, noting that "the Court apparently d[id] not consider the matter to be completely resolved." The district court granted the motion to retain on March 27, 2007.

The next month, appellees filed a motion to dismiss the case for want of jurisdiction because the court's order retaining the case on the docket was signed four years after its plenary power expired. See Tex. R. Civ. P. 306a, 329b. Appellant responded that the 2003 order was not final because there was no determination of the court costs prayed for by appellees. On June 15, 2007, after concluding that the 2003 order disposed of all claims and parties and was final, the district court signed an order dismissing the case for want of jurisdiction. On July 5, 2007, appellant filed this appeal, which appellees have sought to dismiss.

In response to appellees' motion to dismiss, appellant renews its argument that the 2003 order is not final because it does not address court costs. But a trial court is not required to assess costs for a judgment to be final. Straza v. Friedman, Driegert & Hsueh, L.L.C., 124 S.W.3d 404, 406 (Tex. App.--Dallas 2003, pet. denied); City of Marshall v. Gonzales, 107 S.W.3d 799, 803 (Tex. App.--Texarkana 2003, no pet.); Thompson v. Beyer, 91 S.W.3d 902, 904 (Tex. App.--Dallas 2002, no pet.) (citing City of West Lake Hills v. State, 466 S.W.2d 722, 727 (Tex. 1971) (concluding that trial court retained jurisdiction for thirty days over judgment that did not adjudicate costs)). A summary judgment is final for purposes of appeal if it "actually disposes of every pending claim and party" before the court. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex. 2001). Here, the 2003 order disposed of all parties who were before the court and all claims, thus it was final. "[A]ppellate courts will not review judgments in cases where no actual controversy exists between the parties other than a determination of costs." Metal Enters., Inc. v. Don Love, Inc., 562 S.W.2d 892, 893 (Tex. Civ. App.--Houston [1st Dist.] 1978, writ ref'd n.r.e.) (citing City of West Univ. Place v. Martin, 123 S.W.2d 638 (1939)); see also Beyer, 91 S.W.3d at 904 (noting that "a request for costs is not itself a 'claim for affirmative relief'").

Appellant's notice of appeal, filed more than four years after the district court's final order on the cross motions for summary judgment, did not invoke our jurisdiction. See Tex. R. App. P. 26.1, 26.3. Accordingly, we dismiss this appeal for want of jurisdiction. See Tex. R. App. P. 42.3(a); Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997); Salas v. State Farm Mut. Auto. Ins. Co., 226 S.W.3d 692, 697 (Tex. App.--El Paso 2007, no pet.).
__________________________________________
W. Kenneth Law, Chief Justice
Before Chief Justice Law, Justices Puryear and Waldrop
Dismissed for Want of Jurisdiction
Filed: October 12, 2007

Chief Justice Ken Law denies petition in one-sentence opinion

In re Frank Fitzgerald, No. (Tex.App.- Austin, Sep. 14, 2007)(Opinion by Chief Justice Law)(one-line opinion)(Before Chief Justice Law, Justices Waldrop and Henson)
Appeal from County Court at Law No. 1 of Bell County

ORIGINAL PROCEEDING FROM BELL COUNTY

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

The petition for writ of mandamus is denied. See Tex. R. App. P. 52.8(a).
__________________________________________
W. Kenneth Law, Chief Justice
Before Chief Justice Law, Justices Waldrop and Henson
Filed: September 14, 2007

Austin court puts appeal on hold while parties try to settle

Ray Himel, Individually; RNL, Inc.; and Gulf Coast Boats, Inc. v. Ronnie Bertagna and Dorothy Bertagna, No. (Tex.App.- Austin, Sep. 7, 2007)(Opinion by Chief Justice Law)(appeal abated in aid of settlement)(Before Chief Justice Law, Justices Puryear and Henson)
Appeal from 22nd District Court of Hays County

FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT
NO. 05-0869, HONORABLE WILLIAM HENRY, JUDGE PRESIDING

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


The parties have filed a joint motion asking this Court to abate the appeal while they are engaging in settlement negotiations. We grant the motion and abate the appeal until November 7, 2007. If the settlement has been finalized by that date, the parties are instructed to file a motion to reinstate and dismiss the appeal in accordance with their settlement agreement. If the parties have not finalized their settlement by that date, they are instructed to file a report informing this Court about the status of the appeal and requesting an extension of the abatement.
__________________________________________
W. Kenneth Law, Chief Justice
Before Chief Justice Law, Justices Puryear and Henson
Abated
Filed: September 7, 2007

Appeal abandoned - appeal dismissed

Kameron Williams v. Texas Department of Family and Protective Services, No. (Tex.App.- Austin, Aug. 31, 2007)(Opinion by Chief Justice Law)(dismissal)(Before Chief Justice Law, Justices Pemberton and Waldrop)
Appeal from 146th District Court of Bell County

FROM THE DISTRICT COURT OF BELL COUNTY, 146TH JUDICIAL DISTRICT
NO. 214,846-B, HONORABLE RICK MORRIS, JUDGE PRESIDING

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

Appellant Kameron Williams failed to file a brief and to respond to this Court's notice that her brief was overdue. We abated this appeal and instructed the trial court to conduct a hearing to determine whether appellant desired to pursue her appeal. See Tex. R. App. P. 38.8(a)(2); see also Tex. R. App. P. 38.8(b)(2)-(3). At the hearing on August 20, 2007, appellant's counsel stated that appellant did not want to pursue her appeal, and the trial court found that appellant has abandoned her appeal. Accordingly, this appeal is dismissed.
__________________________________________
W. Kenneth Law, Chief Justice
Before Chief Justice Law, Justices Pemberton and Waldrop
Dismissed
Filed: August 31, 2007

Trial court judgment vacated per joint motion

Masud Kamal v. Kelly Edward Roberts, No. (Tex.App.- Austin, Aug. 31, 2007)(Opinion by Chief Justice Law)(reversal in aid of settlement)(Before Chief Justice Law, Justices Puryear and Waldrop)
Appeal from County Court at Law No. 1 of Travis County
Disposition: Vacated and remanded on joint motion

FROM THE COUNTY COURT AT LAW NO. 1 OF TRAVIS COUNTY,
NO. C-1-CV-06-000137, HONORABLE ORLINDA NARANJO, JUDGE PRESIDING

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

Appellant Masud Kamal and appellee Kelly Edward Roberts have agreed to settle this matter and have filed a joint motion to remand this case. We grant the motion, set aside the trial court's judgment without regard to the merits, and remand the cause to the trial court for further proceedings. See Tex. R. App. P. 42.1(a)(2)(B).
__________________________________________
W. Kenneth Law, Chief Justice
Before Chief Justice Law, Justices Puryear and Waldrop
Vacated and Remanded on Joint Motion
Filed: August 31, 2007

Dunn v. Calahan (Tex.App.- Austin, Aug. 28, 2007)

Summary judgment for defendant in tortious interference suit affirmed.

Terry L. Dunn vs. M. Ann Calahan, No. (Tex.App.- Austin, August 28, 2007)(Opinion by Chief Justice Law)(tortious interference, IIED)(Before Chief Justice Law, Justices Pemberton and Waldrop)
Appeal from 146th District Court of Bell County

FROM THE DISTRICT COURT OF BELL COUNTY, 146TH JUDICIAL DISTRICT
NO. 199,002-B, HONORABLE RICK MORRIS, JUDGE PRESIDING

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

Terry L. Dunn appeals from the summary judgment rendered against him in his suit for tortious interference with contract and intentional infliction of emotional distress. In five issues on appeal, Dunn claims that the trial court erred in granting summary judgment for appellee Dr. M. Ann Calahan because a genuine issue of material fact existed in his tortious interference cause of action and in all of Calahan's affirmative defenses. Because we hold that Calahan conclusively negated at least one element of Dunn's cause of action, we affirm the trial court's summary judgment.

Background

Dunn was a student at the Killeen campus of Tarleton State University (Tarleton) working toward a degree in elementary education. In April 2000, on his way to a student teaching assignment at an elementary school, Dunn stopped at a men's bathroom facility in a public park in Killeen. (1) A man followed him into the rest room, the two had sex, and they were subsequently arrested and charged with public lewdness. Dunn pleaded no contest to the offense and was placed on deferred adjudication in August 2000.

On discovery of the arrest, Tarleton's administration had placed Dunn on probation pending the outcome of the criminal charges. One of Calahan's official duties as the head of the the Curriculum and Instruction Department at Tarleton was to decide whether a person was to be admitted or retained in the teacher education department. Pursuant to standard procedures, Calahan recommended that Dunn be removed from public school classrooms after his conviction. In a series of letters from September to November 2000, the Dean of Education, Joe Gillespie, agreed that Tarleton would provide a "deficiency plan" by which Dunn could obtain his teacher certification if he secured employment with a school district or private school as long as he met two requirements: (1) make "full disclosure" about his arrest to his prospective employer, and (2) the employer confirmed in writing to Tarleton that Dunn had fully disclosed his arrest.

In mid-July 2001, Dunn applied for a fourth grade teaching position in the Temple Independent School District (TISD). He was interviewed by Gail Leidy, an elementary school principal in the TISD. TISD expressed interest in hiring him. Dunn gave Susan Brown, the director of human resources, a letter for her to send on TISD's behalf requesting a deficiency plan from Tarleton. However, Brown was disturbed because the letter requesting the deficiency plan also stated that "Mr. Dunn has been totally forthcoming about his arrest record." As part of a reference check, Brown called the Copperas Cove school district and was informed about a newspaper article related to plaintiff's arrest. Brown had her assistant find this article; this was the same article to which Calahan later referred. As part of her follow-up reference check, Brown also called Gillespie, and was referred to Calahan. Brown asked Calahan how she, Brown, could know "that what he told me is what really happened." Calahan referred to the existence of an article in the Temple newspaper discussing the arrest; this was the same article that Brown already possessed. Calahan said that she told Brown about the newspaper article so that TISD would not be "blindsided" if a resident of TISD had seen the article in the paper. Calahan had not yet read the article.

Brown said that she did not feel comfortable that Dunn "had been totally forthcoming about his arrest records and provided all documentation related to his arrest." Although Dunn had disclosed his arrest to Leidy, he simply said that it was for "public lewdness" without detail. Leidy said that she assumed that Dunn meant he had been caught doing something like urinating on the side of a building, or perhaps "gyrating" in public where people could see. (2) The routine criminal background check showed that appellant had received deferred adjudication for public lewdness. Dunn, however, had answered "No" to a question on his application that asked if he had "ever been convicted of a felony or offenses involving moral turpitude and/or received probation or deferred adjudication." Although Dunn had already been assigned a classroom and placed in paid training, TISD ultimately declined to allow him to teach. Dunn then sued Calahan for tortious interference with contract and intentional infliction of emotional distress. (3)

Discussion

We review the district court's summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). Summary judgment is proper when there are no disputed issues of material fact and the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Shell Oil Co. v. Khan, 138 S.W.3d 288, 291 n.4 (Tex. 2004) (citing Knott, 128 S.W.3d at 215-16). We construe the evidence in favor of the nonmovant and indulge every reasonable inference and resolve any doubts in the nonmovant's favor. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985); Dupont Photomasks, Inc. v. Strayhorn, 219 S.W.3d 414, 418 (Tex. App.--Austin 2006, pet. denied).

A defendant seeking summary judgment must negate as a matter of law at least one element of each of the plaintiff's theories of recovery or plead and prove as a matter of law each element of an affirmative defense. Missouri Pac. R.R. v. Lely Dev. Corp., 86 S.W.3d 787, 790 (Tex. App.--Austin 2002, pet. dism'd) (citing Centeq Realty v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995)). If the defendant establishes its right to summary judgment the plaintiff must then raise a fact issue. Id. When the summary judgment does not specify the grounds on which it was granted, the non-movant (as appellant) must show that each ground alleged in the motion is insufficient to support it. Goss v. Bobby D. Assocs., 94 S.W.3d 65, 68 (Tex. App.--Tyler 2002, no pet.). We must affirm the summary judgment if any of the grounds asserted in the motion are meritorious. Texas Workers' Comp. Comm'n v. Patient Advocates of Texas, 136 S.W.3d 643, 648 (Tex. 2004).

The theory of tortious interference with business relations by a third person includes two causes of action: (1) tortious interference with existing contracts, and (2) tortious interference with prospective contractual relations. Sterner v. Marathon Oil Co., 767 S.W.2d 686, 689 (Tex. 1989); see generally, 13 William V. Dorsaneo III & Cecil C. Kuhne III, Texas Litigation Guide § 205.01[1] (2007). Plaintiff has the burden of proving the essential elements of tortious interference with a contract. These elements are: (1) the existence of a contract subject to interference; (2) a willful and intentional act of interference; (3) the act was the proximate cause of plaintiff's damages; and (4) actual damage or loss. John Paul Mitchell Sys. v. Randalls Food Markets, Inc., 17 S.W.3d 721, 730 (Tex. App.--Austin 2000) (citing Texas Beef Cattle Co. v. Green, 921 S.W.2d 203, 210 (Tex. 1996)). The elements of tortious interference with a prospective contract are: (1) there must be a "reasonable probability" that the plaintiff would have entered into the prospective relationship or contract; (2) an "independently tortious or wrongful" act by the defendant that prevented the relationship from occurring; (3) the defendant did such act with a conscious desire to prevent the relationship from occurring, or knew that the interference was certain or substantially certain to occur as a result of the defendant's conduct; and (4) the plaintiff suffered actual harm or damage as a result of the defendant's interference. Johnson v. Baylor University, 188 S.W.3d 296, 304 (Tex. App.--Waco 2006, pet denied).

In his first issue, Dunn contends that the trial court erred in granting summary judgment against him on his tortious interference with contract claim. (4) Dunn's pleadings allege only interference with an existing contract. In his pleadings he states that he:

was notified by the Human Resources office of Defendant TISD that Susan C. Brown was authorizing Gail Liedy to hire Plaintiff as a teacher for academic year 2001-2002. Plaintiff signed a letter of commitment with Defendant TISD and in reliance upon the agreement that Plaintiff was hired, he gave notice and left his existing employment effective July 29, 2001."
(Emphasis added.) He also alleges that "Calahan was aware that he had been employed by TISD." (Emphasis added.) Because we will hold that Calahan conclusively negated the elements of intentional interference and causation, we will begin by assuming that a contract existed, and analyze the tort of interference with an existing contract. See Lely Dev. Corp., 86 S.W.3d at 787.
Recovery under tortious interference with contract requires that the alleged interfering party must be shown to have acted willfully and intentionally. COC Servs., Ltd. v. CompUSA, Inc., 150 S.W.3d 654, 670 (Tex. App.--Dallas 2004, pet. denied). A willful act involves more than simple participation in some act with a breaching party. See John Paul Mitchell Sys., 17 S.W.3d at 730. The defendant must knowingly induce one of the contracting parties to breach its obligations. Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925, 927 (Tex. 1993); John Paul Mitchell Sys., 17 S.W.3d at 730 (citing Davis v. HydPro, Inc., 832 S.W.2d 137, 139 (Tex. App.--Eastland 1992, writ denied). There must be some act interfering with a contract or act persuading a party to a contract to breach; for example, offering better terms or other incentives. Davis v. HydPro, Inc., 839 S.W.2d 137, 139 (Tex. App.--Eastland 1992, writ denied). Liability for intentional interference may not be based on a simple finding that the defendant performed certain acts; there must be a finding that the defendant performed certain acts with the knowledge or belief that interference with a contract would result from that contract. See Southwestern Bell Tel. Co. v. John Carlo Texas, 843 S.W.2d 470, 472 (Tex. 1992).

The act at issue in this case is the telephone conversation between Brown and Calahan in which
Calahan informed Brown about the newspaper article. Dunn alleges in his petition that Calahan "made it clear that she believed that hiring or retaining Plaintiff as a TISD teacher would embarrass both TISD and Tarleton." For evidentiary support, he refers to Brown's deposition. In Brown's deposition she said that Dr. Calahan referred to the newspaper article as giving the arrest date. Calahan did not read the article to Brown nor send her a copy. This is the totality of the evidence on which Dunn relies to support his assertion that Calahan advised TISD that hiring Dunn would create problems. Dunn refers to no other evidence that Calahan expressed any opinion to Brown, the only TISD administrator with whom she had contact, concerning Dunn's employment with TISD and our review of the record finds none. (5) In Calahan's deposition, she said that she responded to Brown's question about Dunn because she thought that Brown should have the information to "avoid being blindsided" by a parent who might have seen the article. She herself had not read the contents of the article at that time. She had no previous relationship with Brown. The record does not show any further contact with Brown or any other TISD administrator to whom she could have communicated a negative recommendation about Dunn.

Based on the evidence in the record, no reasonable fact finder could have concluded that Calahan performed an act intended to knowingly induce TISD to breach its contract with Dunn, see John Paul Mitchell Sys., 17 S.W.3d at 730, or that the conversation with Brown was done with the knowledge or belief that it would interfere with the Brown's TISD contract. See Southwestern Bell, 843 S.W.2d at 472. Accordingly, Calahan conclusively negated the element of tortious interference that requires a willful and intentional act. John Paul Mitchell Sys., 17 S.W.3d at 730. It then became Dunn's burden to raise a fact issue. Lely Dev. Corp., 86 S.W.3d at 790. Dunn produced no countervailing evidence that Calahan offered TISD some inducement to breach its contract with Dunn or that her reference to a newspaper article that TISD already had served as a "negative inducement" for TISD to breach the contract. Calahan demonstrated her entitlement to summary judgment; Dunn failed to meet his burden to raise a fact issue. See Lely Dev., 86 S.W.3d at 790.

Calahan also conclusively negated the element of causation. Causation in a tortious interference case is "but for" causation; the test in whether the act was a substantial factor in causing the injury "without which the harm would not have occurred." See COC Servs., Ltd. v. CompUSA, Inc., 150 S.W.3d 654, 679 (Tex. App.--Dallas 2004, pet. denied). The factors given by TISD as the cause of the decision not to allow Dunn to teach were that he did not "fully disclose" his arrest to TISD and that he lied on his application when he said "No" in response to the question concerning deferred adjudication. (6) Dunn's pleadings allege that Calahan's interference caused the loss of his job and the associated wages and benefits. Dunn's brief addresses the element of causation thusly: "But for Calahan's interference, Dunn would have retained his position with TISD and Calahan's actions caused TISD [sic] actions. Victoria Bank & Trust v. Brady, 811 S.W.2d 931, 939 (Tex. 1991)." That is his sole discussion on this element and he refers to no specific reference in the record that shows any causative factors for his injury other than those enunciated by TISD, nor do we find such evidence in the record. Based on this record, no reasonable factfinder could conclude that Calahan's actions were a substantial factor in causing damages to Dunn. Calahan having conclusively negated the causation element of tortious interference, see COC Servs., Ltd., 150 S.W.3d at 679, the burden shifted to Dunn to raise a fact issue, see Lely Dev. Corp., 86 S.W.3d at 790. He did not do so. Accordingly, Calahan was entitled to summary judgment against Dunn because she negated the existence of at least one element of plaintiff's cause of action. See id.

We have accepted Dunn's characterization of the contract as existing. (7) Even if we were to consider Dunn's cause of action as that for interference with prospective business relations, Calahan would still prevail by negating the elements that the defendant's conduct was independently tortious or wrongful and that the plaintiff's damage was the result of defendant's act. Johnson, 188 S.W.3d at 304. An "independently tortious act" does not mean that plaintiff must be able to prove an independent tort; the plaintiff must prove that defendant's conduct would be actionable under a recognized tort. Wal-Mart Stores, Inc. v. Sturges, 52 S.W.3d 711, 726 (Tex. 2001). Calahan and Brown produced evidence that their phone call simply involved a response by Calahan to Brown's question about how to verify the details of Dunn's offense; Calahan told Brown about a newspaper article about which Brown already knew. There is no actionable tort present; there is not even an assertion that the conversation was defamatory or fraudulent. (8) A reasonable fact finder could not conclude that Calahan committed a tortious act in her phone call. The causation element also fails for the same reasons as previously discussed. There was no evidence that Calahan's acts caused damage to Dunn; there is no evidence that the cause of TISD's non-retention of Dunn was based on any reasons other than those stated by the district, which were not based on the conversation between Brown and Calahan.

Dunn also claimed that Calahan interfered with his contract with Tarleton by preventing the deficiency plan from being implemented. However, the implementation of the deficiency plan depended on Dunn's securing employment. We have held that Calahan's actions did not interference with Dunn's contract; TISD's decision was not based on Calahan's actions. Accordingly, Calahan did not cause the termination of the deficiency plan by preventing his employment.

Conclusion

We hold that Calahan has conclusively negated one or more elements of Dunn's cause of action for tortious interference and, thus, was entitled to summary judgment. See Lely Dev. Co., 86 S.W.3d at 790. Accordingly, we overrule Dunn's first issue. Because we have held that Calahan was entitled to summary judgment as a defendant who conclusively negated one or more elements of the plaintiff's claim, we will not address Dunn's issues concerning Calahan's affirmative defenses because they are not necessary to resolve this case. See Tex. R. App. P. 47.1 (opinion to be as brief as practicable while addressing all issues necessary to disposition of claim). (9) We affirm the trial court's summary judgment.

W. Kenneth Law, Chief Justice
Before Chief Justice Law, Justices Pemberton and Waldrop
Affirmed
Filed: August 28, 2007

1. According to a newspaper article made part of the summary judgment record, the restroom in the park was under surveillance because of numerous complaints about drug use and lewdness around children. Calahan's reference to this article forms the basis of Dunn's complaint against her.
2. Similarly, Calahan said that she interpreted "public lewdness" to mean doing something "inappropriate" in public like flashing or mooning. When asked if the fact that another man was in the restroom "suggested anything to [her]" she said that it did not.
3. Dunn also sued TISD for sex discrimination and breach of contract. TISD filed a counter-claim alleging that Dunn's suit was groundless, and was brought in bad faith and for the purpose of harassment. TISD and Dunn entered an agreement to dismiss their claims against each other.
4. Dunn also contended that he had a contract with Tarleton concerning the deficiency plan with which Calahan interfered. Because the interference with the Tarleton contract could occur only if Calahan's actions caused TISD to refuse to employ Dunn, thus preventing the implementation of the deficiency plan, we discuss the claimed interference with the TISD contract first. At various times, Dunn refers to interference with business relationships, contract, and employment. However, the only relationships subject to interference are the contracts with TISD and with Tarleton. Appellee consistently refers to interference with contract, as will we.
5. Dunn asserts that Calahan was motivated to interfere with his contract because she personally did not think that Dunn should teach. At a deposition, when asked whether in her professional opinion Dunn should be a teacher, she said that he should not. However, at the time of the phone call, Calahan did not know all of the details about the arrest nor did she express an opinion to Brown concerning Dunn's employment. By the time of the deposition, Calahan learned more details and formed this professional opinion. At one point, Dunn even admitted that Calahan was not acting maliciously but in the best interests of Tarleton and the teacher education program.
6. We note that Dunn argues that he raised material fact issues concerning the scope of "full disclosure" of his arrest, i.e. did he have to disclose more than "public lewdness" and that the question concerning deferred adjudication could be interpreted as referring only to deferred adjudication for felonies and offense involving moral turpitude. However, the basis of his claim again Calahan is the one phone conversation and reference to the newspaper article, neither of which are affected by these arguments.
7. In other words, contrary to Dunn's position, a fact issue about whether the contract was existing or prospective may exist. Summary judgment is nevertheless proper because of the negation of other elements.
8. Dunn asserts that the "full disclosure" required by his "contract" for the deficiency plan did not specify that he had to disclose this newspaper article. He seems to have then interpreted the absence of specific language about the newspaper article as a prohibition against Calahan disclosing its existence. However, nowhere in the correspondence between Dunn and Tarleton concerning the deficiency plan is there any discussion of non-disclosure of any information.
9. Calahan also moved for summary judgment on Dunn's claim of intentional infliction of emotional distress. Dunn brings no issue or argument on appeal concerning the summary judgment against him on that claim and so waived appeal of that claim. See Tex. R. App. P. 38.1(e). Further, Calahan's action in disclosing the newspaper article does not rise to the level of "extreme and outrageous" conduct that this tort requires. See Twyman v. Tywman, 855 S.W.2d 619, 621 (Tex. 1993). Extreme and outrageous conduct is conduct so outrageous in character, and so extreme in degree, as to "go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Id. (citing Restatement (Second) of Torts § 46, cmt. d.).

Juvenile transferred to state jail to complete 20-years sentence for attempted capital murder - Austin Court of Appeals affirms transfer

In the Matter of R. C, No. (Tex.App.-Austin, Aug. 24, 2007)(Opinion by Chief Justice Law)(juvenile adjudicated for attempted capital murder transferred to state jail, decision affirmed on appeal)(Before Chief Justice Law, Justices Puryear and Henson)
In the Matter of R. C.--Appeal from 98th District Court of Travis County

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
NO. J-17,565, HONORABLE W. JEANNE MEURER, JUDGE PRESIDING

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

In October 2000, appellant was adjudicated delinquent based on the underlying offense of attempted capital murder. Appellant was committed to the Texas Youth Commission (TYC) on a twenty-year determinate sentence. In January 2006, the TYC requested that R.C. be transferred to the Institutional Division of the Texas Department of Criminal Justice (TDCJ) to complete his determinate sentence. See Tex. Hum. Res. Code Ann. § 61.079(a) (West Supp. 2006). In April 2006, after a hearing, the court ordered appellant to be transferred to the TDCJ. See Tex. Fam. Code Ann. § 54.11 (West Supp. 2006). In one issue on appeal, appellant contends that the trial court abused its discretion in ordering this transfer. We affirm the trial court's order.

Background

At the transfer hearing, numerous witnesses testified. Most of the witnesses were employees of TYC who had dealt with appellant in various capacities. Jacqueline Daiss, a therapist at the Giddings State School, testified as the TYC psychological examiner. She described appellant's record with TYC. As of June 5, 2005, the date of the examination, appellant had accrued 58 documented incidents in the "Correctional Care System," including seven category one referrals, the most serious category. Among the problems documented were an "aggressive confrontation" with another student in November of 2005 and involvement in stealing letters and pornography from a "staff desk." Several incidents involved gang related activity. However, Dais characterized appellant's TYC record as revealing very few major incidents.

Samuel Adepipe, appellant's most recent caseworker, described TYC's methods of assessing a juvenile's progress. Each juvenile is assessed in three different areas: academics, behavior, and correctional theory. The correctional theory area is weighted more heavily than the other two areas in making an overall assessment of the juvenile's progress. Within each area, a rating of zero to four, with four being the best rating, is assigned. The juveniles need to meet certain goals to move from one rating to the next. Appellant achieved ratings of A-4 and B-4. He had earned his GED and high school diploma, as well as learning marketable skills in construction and cabinet making. However, appellant's correction theory rating had remained at C-2 for much of his time at TYC. (1) Adepipe testified that correction theory was important because it reflected a juvenile's attitude toward his crime. The principal reasons for appellant remaining at level two were his failure to take responsibility for his actions, tendency to blame others for his problems, and failure to express remorse or regret for his crime.

A phase assessment hearing is held to assess a juvenile's progress and whether the juvenile can move from C-2 to C-3. Achieving a C-3 rating shows that the juvenile has moved from understanding how they were affected in their lives by their offense to the effect their actions had on others. A juvenile at level C-3 has recognized the patterns of behavior and thought that lead to committing crimes and victimizing other people and accepted responsibility for his actions.

Josh Ethridge, an associate psychologist at the Giddings State School, testified that he sat in on phase assessment reviews for appellant in October 2005 and January 2006. He described how important it was for the students to learn to have real empathy for their victims. Ethridge testified that although appellant made progress in this area and was able to talk about empathy, the members of the phase assessment review team did not feel that he was being genuine or honest in his feelings. Further, he had failed to accept responsibility for his actions, both in seeming to blame the victims of his crime and in blaming others for his referrals within TYC.

The treatment team felt that he was being dishonest, manipulative and still viewed himself as the victim. Ethridge said that he thought that appellant attempted to "front" or fake remorse. This inability to display true empathy prevented appellant from achieving level C-3. Ethridge acknowledged that he knew of no studies that linked empathy and recidivism, however.
Appellant was at one time in a specialized group within TYC to treat capital offenders (COG). His case worker while in that group, Maxine Cooper, testified that appellant presented "a risk to the community." She based this assessment on his patterns of thinking, his manipulation, his being deceitful and sneaky, and his lack of empathy. She stated in her "Youth Behavior Summary" that he had "demonstrated the ability to maintain appropriate behavior when he makes the effort as well as demonstrate[d] the ability to master excellent skills in manipulation and deception." She said that although he had many strong qualities and was a likable person, his inability to change his patterns of thinking would make him a threat to victimize people in the future. He was eventually removed from the COG program because of his inability to complete the "Crime Story" portion of the program. Specifically, he left out important information about the offense and failed to display "care and concern" for others.

Nicolas Ramos, appellant's instructor in the cabinet construction program, testified that he had taught appellant for two years and never had behavioral problems with appellant. Appellant spent several hours a day in his class. He said that appellant would be able to get a job without any difficulty because of the skills he had developed. Appellant would help new students learn the shop's rules and guidelines. However, Ramos never spoke to appellant about the crime or appellant's feelings about his past. Sometimes appellant would be depressed about the possibility of being transferred to TDC and Ramos would tell him to talk to his case worker. In general, he does not read a student's file unless he has a serious concern about that student, so he was not familiar with the details of appellant's crime or his disciplinary record within TYC. He would be comfortable working with appellant or having appellant live next door to him.

Brandon Griggs, a correction officer, had worked at Giddings for nine months at the time of the transfer hearing. Appellant was housed in Griggs's dorm. Griggs never had a behavioral problem with appellant. Appellant participated well in the behavior group that Griggs ran and helped out the other students. He said that appellant had expressed shame about his offense. Appellant told Griggs that he wanted to get a job, have his own family and place to live, and build a soccer field for local kids. In his opinion, appellant was rehabilitated.

Leonard Cucolo, the TYC court liaison, presented the formal recommendation that appellant be transferred to TDCJ. He gave his opinion that appellant's case was a hard one that in many ways "boiled down to" subjective determinations of the staff that evaluated him. However, he also described the assault on another TYC juvenile which occurred six months before the transfer hearing, after appellant knew he was being evaluated for possible transfer to TDCJ and in a "high restrictions" environment. Cuculo considered this assault an indication that appellant was still using a lot of the same type of thinking and behavior that caused his crime even after five years of exposure to rehabilitative programs. There were no more intensive programs available to appellant than the ones that he had already tried. In any event, appellant would not be able to remain at TYC after age 21.

In addition to testimony about appellant's behavior while in TYC, there was testimony from various counselors concerning appellant's history before he attempted to commit capital murder. He had been referred to the juvenile system for aggravated assault for threatening his mother with a knife; assault with injury for hitting his brother with a stick; arson; truancy; and making a false report. He had assaulted teachers and peers, made terroristic threats, possessed weapons, and called in a bomb threat to his school when he was 13. In a psychological report that was in evidence, he said that he had been fascinated with knives from an early age and had stabbed one gang member. When asked about the stabbing, he stated that he "liked to get people back" and said that he intended to hurt or kill the gang member. Daiss testified that appellant had told her about conduct that went outside the official records. Most of the behavior involved gang-related activities such as burglaries, destruction of property, and transporting cocaine and marihuana for the gang. He also said that he had been "jumped into" a gang called Murder Cide Crips at age 11. However, she and other of appellant's therapists were suspicious that he was overstating his gang history.

Appellant was described as having been diagnosed with "conduct disorder, adolescent type, severe." (2) Such a diagnosis indicates a risk for future criminal behavior.

The targets of the crime underlying appellant's adjudication as delinquent were the parents of appellant's girlfriend and had forbidden her to see him anymore. Appellant, who was fourteen at the time, entered their home while they were asleep. He was dressed entirely in black, with a bandanna and pantyhose hiding his face. He had taped his shoes to minimize footprints. He carried two knives taped to his legs. The mother awakened first and alerted the father that someone was at the door. He confronted appellant and, in the altercation that followed, appellant stabbed both the father and mother. Eventually, the couple was able to restrain appellant and call the police.

At the hearing, the parents testified that they would be so frightened if appellant were released that they would obtain concealed handgun licenses. The father testified that he sustained six knife wounds from the attack. At the time of this hearing, he still experienced problems affecting the use of his right arm because of the knife wounds. The mother testified that she can no longer sleep without lights on, gets up two or three time a night to check on the family, no longer goes out at night, and sleeps facing the door. She said that they had to move out of their previous home and change jobs.

Marcus Ramirez, the program director for the super intensive parole supervision program for the State of Texas, described the security features of the program. However, he said that only about one in ten offenders referred to the program is actually placed in the program. The court had no power to place the juvenile in the program; the parole board has that power.
Appellant's mother did not testify, but was allowed to speak. She expressed sympathy to the victims and said that her son had learned that what he did was wrong while in TYC and had expressed regrets for his crime. She did not consider him a threat to the victims.

Discussion

Standard of Review

A juvenile committed to TYC under the family code may be referred to the juvenile court for approval of the transfer of the child to TDCJ if the juvenile is between the ages of sixteen and twenty-one, the juvenile has not completed his sentence, and the juvenile's conduct indicates that the welfare of the community requires the transfer. Tex. Hum. Res. Code Ann. § 61.079. The standard of review for a transfer decision is abuse of discretion. In re J.L.C., 160 S.W.3d 312, 313 (Tex. App.--Dallas 2005, no pet.); In re C.L., 874 S.W.2d 880, 886 (Tex. App.--Austin 1994, no writ). The reviewing court analyzes the district court's decision to see if it was made without reference to guiding or principles. J.L.C., 160 S.W.3d at 313; C.L., 874 S.W.2d at 886. A transfer will only be reversed if the court acted in an unreasonable and arbitrary manner. J.L.C., 160 S.W.3d at 313.

The trial court may consider the following factors when evaluating the transfer:

(1) the experiences and character of the person before and after the commitment to the youth commission;
(2) the nature of the penal offense that the person was found to have committed and the manner in which the offense was committed;
(3) the abilities of the person to contribute to society;
(4) the protection of the victim of the offense or any member of the victim's family;
(5) the recommendations of the youth commission and the prosecuting attorney;
(6) the best interests of the person; and
(7) any other factor relevant to the issue to be decided.
Tex. Fam. Code Ann. § 54.11(k).

The trial court need not consider all of the listed factors and
may assign different weights to the factors it considers. J.L.C., 160 S.W.3d at 313-14; C.L., 874 S.W.2d at 886.

Application

Appellant had an extensive history of offenses before his commitment to TYC. Further, most of those offenses were of a violent nature: assaults against family members and others, arson, and terroristic threats. He had also been diagnosed with early onset conduct disorder, a risk factor for re-offending. The second factor, the offense committed and the manner in which the offense was committed, weighs heavily against appellant. At fourteen, with the only provocation being the disapproval of his relationship with their daughter, he committed a brutal and carefully calculated offense against the parents. (3)

Weighing in appellant's favor, he has developed technical skills that would allow him to contribute to society. He completed his high school education and secured marketable skills that would allow him to be self-supporting. However, as detailed in the testimony at the transfer hearing, the professionals working with him did not think that he had developed certain very fundamental attitudes and values that would allow him to use these skills and function in society. He had not shown empathy for his victims, was prone to blame others for his problems, and continued to use violence, as demonstrated by his attempted assault on another juvenile
while aware that he was being evaluated for possible transfer to prison.

Although appellant has made no threats toward the victims, they feel endangered should he be released. Appellant's caseworkers testified that appellant continues to see himself as the victim of the father's "persecution" in harboring an unfounded dislike of appellant that resulted in the severing of appellant's relationship with the daughter. Such a thought process is part of the overall concern that appellant still thought in the same way that lead to his commitment in the first place.

The caseworkers and psychologists who had worked with appellant recommended transfer. The core concern about appellant was his failure to show empathy toward his victims and failure to take responsibility for his actions. Although one corrections officer said that he had heard appellant express shame for what he did, that evidence was contradicted by the various caseworkers who did not think that appellant felt empathy or remorse. One psychologist, Josh Ethridge, testified that he thought that appellant attempted to "front" or fake his remorse. He was removed from the COG program because he failed to accurately describe his crime.
Appellant argues that he had done well in his academic and vocational educational endeavors, and that his B-4 (highest level) behavior rating indicates that his behavior had improved at TYC. Appellant did not have the large number of referrals that some other juveniles did. However, he did have seven category one referrals, including the attempted assault.

With regard to the person's best interest factor, the State notes that it is "difficult to argue that a person is best served by limiting his freedom." The State notes his pre-TYC behavior was marked by a string of crimes, truancy, and misbehavior. In the structured environment of TYC however, he had been able to accomplish various goals. Appellant uses the same evidence of progress to argue for parole.

The focus of the evaluation was that appellant continued to display the same thought processes, in particular lack of empathy and failure to take responsibility for his actions, that resulted in his TYC placement. Without such changes, the staff evaluation was that transfer to TDCJ was the most appropriate placement. Appellant's counsel at trial vigorously cross-examined the various TYC caseworkers about their lack of contact with Ramos and Griggs, who spent more time with appellant than the caseworkers and who had a more favorable opinion of appellant than those caseworkers in an attempt to show that these various reports were deficient and to plead for parole.

The court engaged in a thorough analysis of the evidence. The court spoke at length to appellant. She told him that there were two fundamental reasons to send him to the TYC: rehabilitation and punishment. She told him that many times she had opposed the TYC's recommendation. She said that she did not think that he had been able to connect with Adedipe as a caseworker, and she was not sure she blamed appellant for that. She noted that Ramos, the shop teacher, a person with whom he connected, "drew a line" about how engaged he would become with the psychological aspects of his students. But, she also told appellant that he had not done "the hard work" of confronting and dealing with what he had done, not "put[] up walls" to block what he had done, saying: "And whether you do that at TYC, or on your own, or at TDCJ, you have to let yourself feel, live, and breathe, and quit trying to build a wall around yourself to act like it didn't happen; because it did. And it is that problem that I have that prevents me from granting your request."

She observed that the only time appellant made eye contact with her was when the father said that he forgave appellant and appellant had a look of shock on his face. She noted that she had not heard anything from appellant about wanting to do something to "make it up" to the victim. The court noted that "even those who believe in you the most," did not think that he had ever internalized what he did. The court concluded: "I do this because you committed a heinous crime, and you have not confronted it. And I don't know if society is safe, and you have some more time to pay."

Conclusion

There was extensive testimony about appellant's performance in TYC. The court's statements at the close of the hearing made it clear that she had considered factors in appellant's favor as well as factors working against him. Based on this record, we cannot say that the court's decision was made without reference to guiding rules or principles or that the court acted in an unreasonable and arbitrary manner. See J.L.C., 160 S.W.3d at 313. Accordingly, we affirm the trial court's order.

W. Kenneth Law, Chief Justice
Before Chief Justice Law, Justices Puryear and Henson
Affirmed
Filed: August 23, 2007

1. Appellant was placed on phase level C-3 for five months in 2002. He was demoted to level C-2 because of behavior problems, ongoing problems in group therapy, being manipulative and deceptive, and involvement in gang-related activities. He failed to complete numerous assignments under his individual case plan, in spite of being warned that a demotion would occur.
2. One psychological report classified it as "childhood onset," making the disorder even more severe.
3. From some of the TYC reports dealing with the underlying offense, it appears that appellant's girlfriend asked appellant to kill her parents. In some reports, appellant disclosed that he had planned to kill her as well.

Appeals consolidated for oral argument, then abated

Frederic A. Gladle v. Dustin Leifheit, Samantha Leifheit and Darryl Leifheit--Appeal from 345th District Court of Travis, No. (Tex.App.- Austin, Aug. 23, 2007)(Opinion by Chief Justice Law )(Before Chief Justice Law, Justices Puryear and Pemberton)
Appeal from 345th District Court of Travis County

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

These appeals were consolidated for purposes of briefing and oral argument, if any. Appellants have filed an unopposed motion to extend time to file their brief. See Tex. R. App. P. 38.6(d). However, appellants also state in their motion that they and appellees have reached a settlement in principle and need the additional time to reduce the terms of the settlement to writing, thus alleviating the need to file briefs at all. In order to allow the parties adequate time to draft their settlement documents without having to ask for multiple extensions, we will abate the case. The parties should file a status report in thirty days to inform us if additional time is necessary or if we need to set a briefing schedule because they were unable to finalize the settlement. Of course, a motion to dismiss based on settlement may be filed at any time.
__________________________________________
W. Kenneth Law, Chief Justice
Before Chief Justice Law, Justices Puryear and Pemberton
Abated
Filed: August 23, 2007

Austin Appeals Court Abates Appeal

Frederic A. Gladle Management Trust; Frederic A. Gladle Living Trust; Barbara E. Gladle; Barbara Lynne Gladle Management Trust; Barbara Lynne Gladle Living Trust; Alan Lynne Family Trust; LT Entertainment Center, LP; LT Entertainment Group, LLC, et al. v. Dustin Leifheit, Samantha Leifheit and Darryl Leifheit, No. (Tex.App.- Austin, Aug 23, 2007)(Opinion by Chief Justice Law) (Before Chief Justice Law, Justices Puryear and Pemberton)
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

These appeals were consolidated for purposes of briefing and oral argument, if any. Appellants have filed an unopposed motion to extend time to file their brief. See Tex. R. App. P. 38.6(d).

However, appellants also state in their motion that they and appellees have reached a settlement in principle and need the additional time to reduce the terms of the settlement to writing, thus alleviating the need to file briefs at all. In order to allow the parties adequate time to draft their settlement documents without having to ask for multiple extensions, we will abate the case. The parties should file a status report in thirty days to inform us if additional time is necessary or if we need to set a briefing schedule because they were unable to finalize the settlement. Of course, a motion to dismiss based on settlement may be filed at any time.
__________________________________________
W. Kenneth Law, Chief Justice
Before Chief Justice Law, Justices Puryear and Pemberton
Abated
Filed: August 23, 2007

Which court has defamation claim jurisdiction?

Former employee resorted to plea to the jurisdiction after losing his defamtion suit on the merits in county court; proceeded pro se after his counsel withdrew. Third Court of Appeals expounds on county court jurisdiction and affirms denial of plea on finding that subject-matter jurisdiction was present.

Jose Santana v. Texas Workforce Commission and William McCrea, No. (Tex.App.- Austin, Aug. 16, 2007)(Opinion by Chief Justice Law) (Before Chief Justice Law, Justices Pemberton and Waldrop)
Appeal from County Court at Law No. 2 of Travis County
Disposition: Affirmed

FROM THE COUNTY COURT AT LAW NO. 2 OF TRAVIS COUNTY,
NO. 259750, HONORABLE ORLINDA NARANJO, JUDGE PRESIDING

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

Pro se appellant Jose Santana (1) appeals the denial of his plea to the jurisdiction, asserting that subsection 26.043(1) of the government code deprived the trial court of subject-matter jurisdiction in his suit for defamation against his employer, appellee Texas Workforce Commission, and his supervisor, appellee William McCrea. See Tex. Gov't Code Ann. § 26.043(1) (West 2004).

We conclude that the civil jurisdiction of the statutory county courts at law in Travis County is concurrent with that of the Travis County district courts, see id. §§ 25.0001, .2292(a) (West 2004), and we affirm the trial court's order denying the plea to the jurisdiction.

BACKGROUND

The question of the trial court's jurisdiction in suits for defamation is the sole issue before us. Because the merits of this appeal are not affected by the facts of the underlying suit, our discussion of the facts is brief. Cf. Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004) (concluding that predicate facts implicated merits of case and jurisdictional issue).

Santana sued his employer, the Texas Workforce Commission, and his supervisor, William McCrea, for defamation. The case proceeded to trial before a jury. The trial court granted a motion for directed verdict in favor of the Commission based on sovereign immunity and dismissed Santana's claims for lack of jurisdiction. Santana's remaining claim against McCrea in his individual capacity and the question of McCrea's official immunity were submitted to the jury, which found unanimously that McCrea did not defame Santana and that McCrea was entitled to official immunity. The trial court entered a final judgment that Santana take nothing based on the jury's verdict. After the court signed the final judgment, Santana filed a plea to the jurisdiction arguing that subsection 26.043(1) of the government code deprived the trial court of subject-matter jurisdiction. The trial court denied the plea. This appeal followed.

DISCUSSION

In his sole point of error, Santana argues that the trial court erred in denying his plea to the jurisdiction because the government code deprived the court of jurisdiction in his suit for defamation. See Tex. Gov't Code Ann. § 26.043(1). A plea that challenges the trial court's subject-matter jurisdiction presents a question of law that we review de novo. Westbrook v. Penley, No. 04-0838, 2007 Tex. LEXIS 599, at *8-9 (Tex. June 29, 2007) (citing Miranda, 133 S.W.3d at 226).

The jurisdiction of Texas courts is conferred solely by the Texas Constitution and state statutes. Chenault v. Phillips, 914 S.W.2d 140, 141 (Tex. 1996). Pursuant to the Texas Constitution, the judicial power of the State is "vested in one Supreme Court, in one Court of Criminal Appeals, in Courts of Appeals, in District Courts, in County Courts, in Commissioners Courts, in Courts of Justices of the Peace, and in such other courts as may be provided by law." Tex. Const. art. V, § 1. The Texas Constitution also authorizes the legislature to "establish such other courts as it may deem necessary and prescribe the jurisdiction and organization thereof, and [to] conform the jurisdiction of the district and other inferior courts thereto." Id.; see id. § 15 ("There shall be established in each county in this State a County Court . . . ."). Texas courts that are enumerated in the constitution are referred to as "constitutional courts," while courts that are established pursuant to the legislature's power to create "other courts" are referred to as "legislative" or "statutory" courts. 1 Roy W. McDonald & Elaine A. Grafton Carlson, Texas Civil Practice § 3:3 (2d ed. 2004); see also Tex. Gov't Code Ann. § 21.009 (1), (2) (West 2004).

The Travis County Court at Law No. 2 is a statutory county court, see Tex. Gov't Code Ann. § 25.2291(2) (West 2004), whose jurisdiction is prescribed by sections 25.0003 and 25.2292 of the government code. See id. § 25.0003 (West Supp. 2006), § 25.2292. Section 25.0003 contains the general grant of jurisdiction to all statutory county courts, and section 25.2292 contains the specific grant of jurisdiction to statutory county courts in Travis County. The general grant of jurisdiction in section 25.0003 provides, in part, that statutory county courts have concurrent jurisdiction (1) with constitutional county courts, and (2) with district courts in civil cases in which the amount in controversy is between $500 and $100,000. Id. § 25.0003(a), (c)(1). The specific grant of jurisdiction in section 25.2292 expands the jurisdiction of the county courts at law in Travis County. Id. § 25.2292(a). It states that "[i]n addition to the jurisdiction conferred generally by section 25.0003 and other law," a Travis County court at law has concurrent jurisdiction in civil cases with the district court. Id. It also increases the maximum amount in controversy for those cases to $250,000. Id. Thus, under section 25.2292--the specific provision of the government code applicable to Travis County--statutory county courts at law have concurrent jurisdiction with district courts in civil cases in which the amount in controversy is between $500 and $250,000. See id.

The parties do not dispute that Santana's suit satisfied the amount in controversy requirement, nor do they dispute that district courts have subject-matter jurisdiction in suits for defamation. See Tex. Const. art. V, § 8 (granting district courts "exclusive, appellate, and original jurisdiction of all actions, proceedings, and remedies," unless exclusive, appellate, or original jurisdiction is conferred by constitution or other law on some other court, tribunal, or administrative body).
Santana's argument attempts to minimize the significance of section 25.2292 by linking two different provisions of the government code that are not county-specific: subsections 25.0003(a) and 26.043(1). Subsection 25.0003(a) states that statutory county courts have concurrent jurisdiction with constitutional county courts. See Tex. Gov't Code Ann. § 25.003(a). Section 26.043(1) states that constitutional county courts do not have jurisdiction in suits "to recover damages for slander or defamation of character." Id. § 26.043 (prohibiting constitutional county courts from exercising jurisdiction in eight types of civil suits). Combining these statutes,

Santana argues that because the trial court has concurrent jurisdiction with constitutional county courts and because constitutional county courts are not empowered to hear defamation suits, the trial court lacked jurisdiction in his suit for defamation.

We disagree with Santana's argument. A county court lacks jurisdiction in the eight types of civil suits that are listed in section 26.043 of the government code. Id. "County court" is defined in the government code as "the" court created in each county pursuant to the Texas Constitution's article V, section 15. Id. § 21.009(1); see Tex. Const. art. V, § 15. By contrast, statutory county courts--such as Travis County courts at law--are defined in the government code as courts created by the legislature pursuant to its power under the Texas Constitution's article V, section 1. Tex. Gov't Code Ann. § 21.009(2); see Tex. Const. art. V, § 1. Nothing in section 26.043 of the government code refers to the county courts at law that possess civil jurisdiction concurrent with the district courts. Santana observes correctly that the legislature has enacted specific provisions clarifying the jurisdiction of some county courts at law in defamation suits. See Tex. Gov't Code Ann. § 25.1032(c)(2) (West 2004) (pertaining to Harris County), § 25.2222(b)(6) (West Supp. 2006) (pertaining to Tarrant County).

However, the plain language of section 26.043 does not apply to statutory county courts at law; section 26.043 restricts only the matters that may be heard in the constitutional "county court." See id. §§ 21.009(1) (defining "county court"), (2) (defining "statutory county court"), 26.043 (restricting subject-matter jurisdiction of "county court"); see also Continental Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 447 (Tex. 1996) (discussing jurisdictional conflict between county court at law and district court in context of labor code section 451.003 and concluding that to extent statutory courts shared concurrent jurisdiction with district courts, nothing in plain meaning of that statute limited or excluded that concurrent jurisdiction).

Santana's argument is also unpersuasive because it ignores subsection 25.0001(a) of the government code. See Tex. Gov't Code Ann. § 25.0001(a). Speaking directly to conflicts concerning the jurisdiction of statutory county courts, section 25.0001 states that if a general provision "conflicts with a specific provision for a particular court or county, the specific provision controls." Id.; see also id. § 311.026 (West 2005) (stating similar rule in Code Construction Act). Santana's issue presents such a conflict. Subsection 26.043(1) is a general provision that restricts the jurisdiction of the constitutional county court in every county in Texas. Id. § 26.043. Under Santana's interpretation, subsection 26.043(1) conflicts with subsection 25.2292(a), the specific provision that expands the jurisdiction of a statutory county court at law in Travis County. See id. § 25.2292. Thus, the specific provision that applies only to Travis County controls. See id. § 25.0001(a).

Santana relies on Loville v. Loville, 944 S.W.2d 818 (Tex. App.--Beaumont 1997, writ denied), in support of his argument that section 26.043 confined the trial court's jurisdiction to that of the constitutional county courts. His reliance on Loville is misplaced. In Loville, the Beaumont Court of Appeals held that a county court at law of Jefferson County lacked jurisdiction over the Lovilles' suit seeking the recovery of land because section 26.043 of the government code limited the jurisdiction of the statutory county court at law of Jefferson County to that of the constitutional county court. Id. at 819 (citing Tex. Gov't Code Ann. § 26.043(8) (stating that "county court does not have jurisdiction in . . . (8) a suit for the recovery of land")). But unlike Travis County, Jefferson County did not have a specific provision in the government code granting its statutory county courts at law concurrent jurisdiction with its district courts. Compare Tex. Gov't Code Ann. §§ 25.1252 (West 2004) (pertaining to Jefferson County), with id. .2292(a) (pertaining to Travis County).

The Dallas Court of Appeals construed a specific provision of the government code pertaining to the Dallas county courts at law in Schuld v. Dembrinski, 12 S.W.3d 485, 489 (Tex. App.--Dallas 2000, no pet.) (construing Tex. Gov't Code Ann. § 25.0592(a) (West 2004)). The provision at issue in Schuld applies to Dallas County courts at law specifically, and with the exception of the amount-in-controversy requirement, mirrors the expanded grant of jurisdiction to courts at law in Travis County. See id. §§ 25.0592(a), .2292(a). It states that "[i]n addition to the jurisdiction provided by Section 25.0003 and other law, a county court at law in Dallas County has concurrent jurisdiction with the district court in civil cases . . . ." Tex. Gov't Code Ann. § 25.0592(a). After deciding that the statutory probate court did not have exclusive jurisdiction over the subject matter of Schuld's suit, the Dallas court of appeals concluded, "[B]ecause the district court has jurisdiction over partition suits, and because the Dallas County courts at law have concurrent jurisdiction with the district courts in civil matters regardless of the amount in controversy, we conclude the county court at law has jurisdiction over this partition suit." Schuld, 12 S.W.3d at 489.

Similarly, by virtue of the controlling, specific grant of jurisdiction in subsection 25.2292(a), the statutory county courts at law in Travis County have concurrent jurisdiction in civil cases with the district courts. Travis County district courts have jurisdiction in suits for defamation, and the Travis County courts at law share that jurisdiction in civil suits that have an amount in controversy between $500 and $250,000. Accordingly, we conclude that the Travis County court at law had subject-matter jurisdiction in Santana's suit for defamation. We overrule Santana's sole issue.

CONCLUSION

Having overruled Santana's sole issue, we affirm the trial court's order denying the plea to the jurisdiction.

W. Kenneth Law, Chief Justice

Before Chief Justice Law, Justices Pemberton and Waldrop
Affirmed
Filed: August 16, 2007

1. Santana's counsel withdrew on April 22, 2004, but Santana proceeded to trial on March 29, 2005, pro se.