the City of Webster v. Mary Jennette Jackson Hunnicutt

Reversed and Rendered and Opinion filed April 14, 2022.
In The
Fourteenth Court of Appeals
NO. 14-20-00421-CV
THE CITY OF WEBSTER, Appellant
V.
MARY JENNETTE JACKSON HUNNICUTT, Appellee
On Appeal from the County Civil Court at Law No. 2
Harris County, Texas
Trial Court Cause No. 1135217
OPINION
The issue presented in this interlocutory appeal is whether an individual who
asserts she was coerced or fraudulently induced into deeding real property to a
governmental entity can (1) assert a viable inverse-condemnation claim and
(2) establish subject-matter jurisdiction for a claim against the governmental entity.
Concluding that appellee Mary Jennette Jackson Hunnicutt’s allegations against
appellant City of Webster are founded on tortious behavior that negates an
inverse-condemnation claim, we reverse the order of the trial court denying the
plea to the jurisdiction and render judgment dismissing Hunnicutt’s claims for
want of subject-matter jurisdiction.
I. BACKGROUND1
Hunnicutt owned a two-thirds undivided interest in a 23.5-acre tract of land
in the City of Webster fronting Interstate 45. Hunnicutt’s brother, Clifford Jackson,
owned the remaining one-third undivided interest in the 23.5-acre tract.
The City wished to develop the area around the interstate into a regional
shopping and entertainment destination which included public roads to service the
development. Hunnicutt alleges that the City desired to place a public road, or as
her petition describes it, a “grand entrance,” across a part of her 23.5-acre tract
instead of across land owned by the City through its wholly-owned subsidiary
Webster Economic Development Corporation. In November 2016, City employee
Betsy Giusto visited Hunnicutt in her home with a deed prepared for Hunnicutt’s
signature, which proposed to convey 4.111 acres of Hunnicutt’s 23.5-acre tract to
the City. Hunnciutt describes that she was induced to sign the “deed conveying not
only the approximate 2.6 acres needed for the grand entrance but also another 1.5
acres of land consisting of a pipeline easement and a five-foot strip of land south of
the pipeline easement to vastly increase the value of the land owned by the City[.]”
Hunnicutt’s petition alleges that even though the City and Giusto knew
Jackson owned an interest in the 4.111 acres, Hunnicutt was told that Jackson’s
signature was not necessary. Her petition further alternatively alleges that Giusto
assured her that if Jackson was not in agreement, then the deed would be voided. It
is undisputed that the City never received a conveyance of Jackson’s one-third
interest in the 4.111-acre tract. It also undisputed that the City began construction
1
See Hunnicutt v. City of Webster, No. 14–20–00222–CV (Tex. App.—Houston [14th
Dist.] Feb. 17, 2022, no pet. h.) (Hunnicutt I).
2
of the public road on the 4.111 acres approximately two years later.
In 2018, Hunnicutt filed suit in Harris County district court asserting: (1) an
inverse-condemnation claim against the City; (2) “an action for recission” of the
deed; (3) an ultra-vires claim against Giusto; and (4) a request for declaratory relief
against the City voiding Hunnicutt’s conveyance of the 4.111 acres. Hunnicutt
amended her district-court petition to remove the inverse-condemnation claim
because that claim may only be brought in a county court at law in Harris County.2
Tex. Gov’t Code Ann. § 25.1032(c) (“A county civil court at law has exclusive
jurisdiction in Harris County of eminent domain proceedings, both statutory and
inverse, if the amount in controversy in a statutory proceeding does not exceed
[$250,000] in civil cases.”).
In June 2019, Hunnicutt and Jackson brought this suit against the City in the
county civil court at law asserting a common-law inverse-condemnation claim
based on the same facts, as well as seeking recission of the warranty deed. The
City filed a plea to the jurisdiction arguing that Hunnicutt’s “action for recission”
was barred by governmental immunity and she had not pleaded a viable inverse-
condemnation claim against the City. The trial court denied the plea to the
jurisdiction, resulting in this interlocutory appeal. See Tex. Civ. Prac. & Rem.
Code Ann. § 51.014(a)(8).
II. ANALYSIS
In two appellate issues, the City argues that the trial court erred in denying
its plea to the jurisdiction. In issue 1, the City argues Hunnicutt did not plead a
viable inverse-condemnation claim. In issue 2, the City argues that Hunnicutt has
2
Hunnicutt’s remaining claims asserted in the district-court proceeding were challenged
by the City and Giusto in a plea to the jurisdiction. The district court granted the plea to the
jurisdiction and dismissed all Hunnicutt’s and Jackson’s claims in that proceeding. This court
affirmed the judgment of the district court. See Hunnicutt I.
3
no recission claim because rescission is not a separate cause of action, but rather an
equitable remedy.
The City does not dispute that Jackson’s undivided one-third interest in the
4.111 acres was taken by the City when the City built the road and admits that
Jackson is owed compensation. It is only Hunnicutt’s claims against the City that
are the subject of this appeal, and therefore Jackson is not an appellee in this
appeal.3
A. Standard of review
A plea to the jurisdiction is a procedural vehicle used to challenge the
court’s subject-matter jurisdiction over a claim. Texas Dep’t of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 232 (Tex. 2004). The standard of review of a trial
court’s ruling on such a plea is de novo. State v. Holland, 221 S.W.3d 639, 642
(Tex. 2007). In our review, we do not consider the merits of the underlying claim;
we consider only the plaintiff’s pleadings and the evidence pertinent to the
jurisdictional inquiry. See Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555
(Tex. 2000). When a plea challenges the claimant’s pleadings, we determine
whether the claimant pleaded facts that affirmatively demonstrate the trial court’s
jurisdiction, construing the pleadings liberally and in favor of the claimant.
Miranda, 133 S.W.3d at 226. If the pleadings do not contain sufficient facts to
3
Texas Rule of Appellate Procedure 3.1(c) defines an appellee as “a party adverse to an
appellant.” Unlike an appellant, which in civil cases Texas Rules of Appellate Procedure 3.1(a)
and 25.1(c) generally require the filing of a notice of appeal that identifies the appealing party, an
appellee need not be definitively identified until the appellant’s brief is filed. An appellee,
however, must be a party to the trial court’s final judgment and must be someone against whom
the appellant raises issues or points of error in the appellant’s brief. Showbiz Multimedia, LLC v.
Mountain States Mortg. Ctrs., Inc., 303 S.W.3d 769, 771 n.3 (Tex. App.—Houston [1st Dist.]
2009, no pet.). The City filed a plea to the jurisdiction only as to Hunnicutt’s claims and
confirmed both in the trial court and in its appellate briefing that Jackson is entitled to
compensation for his inverse-condemnation claim.
4
affirmatively demonstrate the trial court’s jurisdiction but do not affirmatively
demonstrate incurable defects in jurisdiction, the issue is one of pleading
sufficiency and the claimant should be afforded the opportunity to amend. Id. at
226–27. However, if the pleadings affirmatively negate the existence of
jurisdiction, then we should render by granting the plea and dismissing for want of
jurisdiction without allowing an opportunity to amend. Id. at 227.
The standard of review for a plea to the jurisdiction based on evidence
“generally mirrors that of a summary judgment under Texas Rule of Civil
Procedure 166a(c).” Id. at 228. Under this standard, we take as true all evidence
favoring the nonmovant and draw all reasonable inferences and resolve any doubts
in the nonmovant’s favor. Id. If the movant presents conclusive proof that the trial
court lacks subject-matter jurisdiction, then the nonmovant must present evidence
sufficient to raise a material issue of fact regarding jurisdiction or the plea will be
sustained. See id.
The City’s plea challenged both the pleadings and the existence of
jurisdictional facts.
B. Inverse-condemnation claim
1. Hunnicutt did not plead a viable inverse-condemnation claim
Inverse-condemnation claims,4 also referred to as “takings” claims, are
rooted in the takings clause of the Texas Constitution—article I, section 17—
which provides, in relevant part, that “no person’s property shall be taken,
damaged, or destroyed for or applied to public use without adequate compensation
4
The action is referred to as inverse because the property owner initiates a common-law
action to recover compensation for a taking that has already occurred instead of the government
initiating a formal statutory proceeding to determine appropriate compensation for a prospective
taking. See City of Dallas v. Stewart, 361 S.W.3d 562, 567 (Tex. 2012).
5
being made, unless by the consent of such person.” Tex. Const. art. I, § 17(a).5
Because this cause of action is created by the Texas Constitution, a viable
inverse-condemnation claim is not barred by common-law doctrines of sovereign
and governmental immunity. See Holland, 221 S.W.3d at 643. However, if a
plaintiff “cannot establish a viable takings claim” against a governmental entity,
the claim would implicate immunity and potentially be barred by it. Texas Dep’t of
Transp. v. A.P.I. Pipe & Supply, LLC, 397 S.W.3d 162, 166 (Tex. 2013). A trial
court should therefore grant a plea to the jurisdiction when a government defendant
demonstrates or produces evidence to show as a matter of law that the plaintiff
cannot establish a viable inverse-condemnation claim. See A.P.I. Pipe, 397 S.W.3d
at 166; Miranda, 133 S.W.3d at 228.
As part of its arguments in issue 1, the City argues that Hunnicutt’s
pleadings negate her inverse-condemnation claim, because her pleadings allege a
tort claim.6 To plead a viable inverse-condemnation claim under Texas
Constitution article I, section 17, Appellant must allege (1) an intentional act by the
governmental entity under its lawful authority, (2) resulting in a taking or
damaging of property, (3) for public use. See Harris Cty. Flood Control Dist. v.
5
The United States Constitution also provides “nor shall private property be taken for
public use, without just compensation.” U.S. Const. amend. V.
6
In so doing, the City advances new arguments on appeal in support of its position that
Hunnicutt has not pleaded a viable inverse-condemnation claim. Ordinarily new issues may not
be raised for the first time on appeal, though there is an exception for issues demonstrating an
absence of subject-matter jurisdiction. See Rusk State Hosp. v. Black, 392 S.W.3d 88, 95–97
(Tex. 2012). In some circumstances, a challenge to subject-matter jurisdiction raised for the first
time on appeal may deprive the plaintiff of the opportunity to amend its pleadings to cure defects
or to develop the record with relevant evidence. Id. at 96. However, Hunnicutt responded
substantively to the City’s arguments on appeal, and Hunnicutt raised no issue requiring further
development of the record or amendment of her pleadings. Because Hunnicutt’s pleadings and
response to the plea to the jurisdiction describe Giusto’s conduct as consisting solely of tortious
acts and intentional misrepresentations, we conclude that it is unnecessary to allow Hunnicutt a
further opportunity to amend her pleadings. Miranda, 133 S.W.3d at 226–27.
6
Kerr, 499 S.W.3d 793, 799 (Tex. 2016); State v. Hale, 146 S.W.2d 731, 737 (Tex.
1941). Mere negligence is not a compensable taking. Steele v. City of Houston, 603
S.W.2d 786, 790–91 (Tex. 1980).
The supreme court has held that an inverse-condemnation claim must be
based on intentional governmental action that is within the government’s authority.
See Steele, 603 S.W.2d at 791; Hale, 146 S.W.2d at 737. Only when the
governmental entity has properly exercised its authority may it be liable under
article I, section 17. Nussbaum v. Bell County, 76 S.W. 430, 432 (Tex. 1903). The
supreme court described the contours of “takings” liability in Nussbaum. The court
held that “where this authority is properly exercised a county may be made liable”
under article I, section 17. Id. However, governmental entities “are not responsible
for damages caused by the neglects or wrongs committed by their officers. . . . In
[this] class of cases the [governmental entity] is not responsible, but the person
through whose wrong or neglect the damage occurred may be.” Id. Nussbaum thus
distinguishes between a compensable taking under article I, section 17 and a tort.
See id. Unintentional acts of negligence or intentional acts that are outside the
authority of the state may be torts, but they are not takings. See id.; see also Texas
Highway Dep’t v. Weber, 219 S.W.2d 70, 72 (Tex. 1949) (recognizing distinction
between cause of action for inverse condemnation and cause of action based on
tort); Firemen’s Ins. Co. of Newark, N.J. v. Board of Regents of the Univ. of Tex.
Sys., 909 S.W.2d 540, 543–44 (Tex. App.—Austin 1995, writ denied) (“The
allegation of fraudulent inducement pleads a tort, not a taking.”), disapproved of on
other grounds by Bland Indep. Sch. Dist., 34 S.W.3d at 555; City of Richardson v.
Cannon, No. 05–18–00181–CV, 2018 WL 6845240, at *3 (Tex. App.—Dallas
Nov. 16, 2018, no pet.) (mem. op.) (plaintiff’s allegations that city and its
employees acted fraudulently negated takings claim).
7
The Texarkana Court of Appeals reached a different conclusion in holding
the “fraudulent taking of a person’s property by a governmental entity without
adequate compensation or consent constitutes inverse condemnation.” Smith v.
Harrison Cty., 824 S.W.2d 788, 792 (Tex. App.—Texarkana 1992, no writ). In so
holding, the court noted it found no cases in which an inverse-condemnation action
was used to complain that a deed was obtained fraudulently and did not reflect the
parties’ prior agreement. Id. In Smith, a landowner agreed to sell property to the
county for a specific use, subject to certain conditions. Id. at 790–91. The county
prepared the deed, which the landowner signed. Id. at 791. The landowner later
discovered that the deed did not restrict the use of the property pursuant to the
conditions she negotiated. The trial court rendered a take-nothing judgment on the
landowner’s claims following a bench trial. Id. at 791. Though ultimately the court
of appeals affirmed the judgment of the trial court, concluding the factfinder could
have determined the landowner did not meet her burden on her claims, the court
speculated that the landowner would be entitled to compensation if she had met the
requirements for fraud. We disagree with the conclusion of our sister court that the
fraudulent taking of a person’s property by a governmental entity constitutes
inverse condemnation, because it cannot be reconciled with precedent which holds
that an inverse-condemnation claim founded on tortious conduct cannot be
maintained.
Hunnicutt responds to the City by arguing that she did not bring tort claims
against the City. She maintains that her allegations in this lawsuit do not accuse the
City of unlawful behavior, but instead allege that the City “intentionally took
[Hunnicutt’s] property for public use” without her consent and denied her access to
the undivided two-thirds interest in the 4.111 acres of land that she owned but
“received absolutely no compensation for this taking, much less adequate
8
compensation as required by the Texas constitution.” However, the basis of
Hunnicutt’s taking claim is that she was fraudulently induced to sign the
conveyance based on various “unfulfilled” promises, including the promise that if
Jackson did not agree to convey his ownership of the property that the deed would
be voided.7 Hunnicutt alleges that she believed the deed she signed to be worthless.
In her response to the plea to the jurisdiction, Hunnicutt describes the interaction as
follows:
Later that day, Giusto arrived at Mrs. Hunnicutt’s house armed with a
prepared warranty deed (the “Warranty Deed”) and a City notary
named Pam Guillory. At the meeting, Giusto made a number of
promises and representations and used her relationship of trust to
persuade and pressure Mrs. Hunnicutt. In addition, when Mrs.
Hunnicutt hesitated and insisted that Mr. Jackson needed to sign a
deed as well due to his ownership interest, Giusto promised Mrs.
Hunnicutt that any conveyance of the land would be of no effect and
would be worthless if Mr. Jackson refused to convey his ownership
interest in property to the City. Giusto also told Mrs. Hunnicutt that
the document was just a piece of paper that the mayor needed for an
important meeting to show to some people. Mrs. Hunnicutt was never
allowed the opportunity to discuss the Warranty Deed with her lawyer
or Mr. Jackson. Eventually Mrs. Hunnicutt folded to Giusto’s pressure
and executed the Warranty Deed based upon the representations made
by Giusto and the trust relationship. As she had been assured the
Warranty Deed was worthless without Mr. Jackson’s signature, Mrs.
Hunnicutt did not understand that she had conveyed her interest in the
property at the time she executed the Warranty Deed.
We conclude Hunnicutt’s petition did not plead a viable
inverse-condemnation claim because her allegations are premised on tortious or
unlawful conduct on the part of Guisto rather than conduct within the lawful
authority of the City. Without a viable inverse-condemnation claim, Hunnicutt’s
7
Hunnicutt also attached to her response to the plea to the jurisdiction a copy of her
petition in the district-court case, which explicitly alleges fraudulent and unlawful behavior on
the part of the City and Giusto in procuring the conveyance of the 4.111 acres from Hunnicutt.
9
petition does not support the subject-matter jurisdiction of the trial court.
Therefore, we need not address the City’s other appellate arguments under issue 1
that the deed is unambiguous and must be construed as a matter of law to establish
consent and compensation.
2. The City was not precluded from challenging subject-matter
jurisdiction
Notwithstanding her pleadings, Hunnicutt argues that the City judicially
admitted that Hunnicutt has a viable inverse-condemnation claim, and that “it may
not now dispute this fact.”8 The statements alleged by Hunnicutt to constitute a
judicial admission were by made an attorney for the City during the hearing on the
City’s plea to the jurisdiction in the underlying district-court case in Hunnicutt I. In
discussing whether the City was engaged in a proprietary function or governmental
function for purposes of governmental immunity in the district-court case, the
attorney for the City responded to a hypothetical from the court asking if Hunnicutt
had any recourse if she was in fact “swindled,” by stating “No, it’s a takings
claim.” That response was part of a more extensive exchange between counsel and
the court:
[Counsel for the City:] And in addition to that, she could sue
whoever did it for fraud, and there’s an election of remedies under
101.06(f). And if you include the City, then it’s include—your—your
allegations, you’re stuck with that. You’re—it’s against the City and
the actual plaintiff under 101.106.
[Trial Court:] So even though she gives the deed to the City, there’s
no way for her to undo it?
[Counsel for the City:] No. It’s—its;—the City’s already taken it
8
Hunnicutt specifically states that she does not argue the application of judicial estoppel,
only the doctrine of judicial admission. Judicial estoppel is a “rule of procedure based on justice
and sound public policy” that bars a party from taking a position inconsistent with one taken
successfully in an earlier proceeding. Pleasant Glade Assembly of God v. Schubert,
264 S.W.3d 1, 6 (Tex. 2008).
10
and [] constructed a street. And it’s—that’s a—that—if they have a
claim, it’s a takings claim.
In response, the City argues: (1) its counsel never admitted Hunnicutt had a viable
claim; (2) a judicial admission must occur in the same proceeding and its counsel’s
statement was made in another proceeding; (3) the determination of a taking is
question of law; and (4) subject-matter jurisdiction cannot be conferred by judicial
admission.
A “true” judicial admission is a formal waiver of proof usually found in
pleadings or the stipulations of the parties. Mendoza v. Fid. & Guar. Ins.
Underwriters, Inc., 606 S.W.2d 692, 694 (Tex. 1980). Testimonial declarations
which are contrary to a party’s position are quasi-admissions and constitute some
evidence, but are not conclusive on the admitter unless they meet the following
requirements: (1) the statement must be made in the course of a judicial
proceeding; (2) it must be contrary to an essential fact or defense asserted by the
party; (3) it must be deliberate, clear, and unequivocal; (4) it cannot be destructive
of the opposing party’s theory of recovery or defense; and (5) enforcing the
statement as a judicial admission would be consistent with public policy. See id.Statements of fact made in other proceedings may also be received as an admission
if they meet the legal requirements. See Brown v. Lanier Worldwide, Inc.,
124 S.W.3d 883, 900 (Tex. App.—Houston [14th Dist.] 2004, no pet.).
Relying on Lanier Worldwide, Hunnicutt argues that a judicial admission
may be from a party’s counsel and need not be sworn. 124 S.W.3d at 900. But see
Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997) (unsworn statements of
counsel generally do not constitute evidence). Lanier Worldwide is distinguishable
as our opinion addressed a situation in which defense counsel represented to a
Georgia court that his client was an existing entity and a party to the dispute. See
11
Lanier Worldwide, 124 S.W.3d at 829, 900. When the plaintiff in Lanier
Worldwide attempted to domesticate the Georgia judgment in Texas, the defendant
sought summary judgment on the basis that it was not an existing entity and not
part of the dispute with the plaintiff. See id. Hunnicutt’s argument attempts to
expand our holding in Lanier Worldwide—that statements of material fact made by
counsel in another proceeding, over which counsel had personal knowledge, were a
judicial admission—to the facts here, which involve counsel’s response to
hypothetical questions from the trial court about a matter of law.
Statements made by a party or counsel in course of judicial proceedings that
are not based on personal knowledge or are made by mistake or based on a
mistaken belief of facts are not judicial admissions. See generally Gevinson v.
Manhattan Constr. Co. of Okla., 449 S.W.2d 458, 466 (Tex. 1969). Not only was
the statement made by counsel for the City not “clear, deliberate and unequivocal,”
but the admission alleged to have been made concerned a question of law and not a
material fact in the case. See generally Horizon/CMS Healthcare Corp. v. Auld,
34 S.W.3d 887, 905 (Tex. 2000); Mendoza, 606 S.W.2d at 694 (“A judicial
admission is conclusive upon the party making it, and it relieves the opposing
party’s burden of proving the admitted fact, and bars the admitting party from
disputing it.”). The admission alleged to have occurred is that Hunnicutt has a
viable inverse-condemnation claim, which is a question of law and affects the
subject-matter jurisdiction of the trial court. See Wilmer–Hutchins Indep. Sch. Dist.
v. Sullivan, 51 S.W.3d 293, 294–95 (Tex. 2001) (“A party cannot by his own
conduct confer jurisdiction on a court when none exists otherwise.”); Mayhew v.
Town of Sunnyvale, 964 S.W.2d 922, 936 (Tex. 1998) (“whether the facts are
sufficient to constitute a taking is a question of law”); see also American Title Co.
v. Smith, 445 S.W.2d 807, 809 (Tex. App.—Houston [1st Dist.] 1969, no writ)
12
(“The parties to an action may not control the power of the trial court to apply the
applicable rules of law to the facts in rendering his judgment by stipulations or
admissions concerning the rules of law deemed to be applicable.”). Furthermore, it
is well-settled that parties cannot agree to the trial court’s subject-matter
jurisdiction over a claim. See Texas Ass’n of Bus. v. Texas Air Control Bd.,
852 S.W.2d 440, 445–46 (Tex. 1993) (subject-matter jurisdiction cannot be waived
and may be raised for the first time on appeal by the parties or court). Accordingly,
we conclude that the statement by the City’s counsel was not a judicial admission
and did not preclude the City from challenging Hunnicutt’s inverse-condemnation
claim by asserting the trial court lacked subject-matter jurisdiction.
We sustain the City’s issue 1.
C. Recission claim
In issue 2, the City argues Hunnicutt has no separate claim for recission.9
Hunnicutt’s petition included an “action to rescind the Warranty Deed” because no
consideration was paid for the conveyance. Her petition maintained the deed failed
for lack of consideration and no meeting of the minds.
Rescission is merely the “common, shorthand name” for the composite
remedy of rescission and restitution. Cruz v. Andrews Restoration, Inc.,
364 S.W.3d 817, 825 (Tex. 2012) (citing Restatement (Third) of Restitution and
Unjust Enrichment § 54 cmt. a (Am. Law Inst. 2011)); see also Italian Cowboy
9
The City appears to use the term “claim” interchangeably with “cause of action.”
Black’s Law Dictionary defines a “claim” to include (1) [t]he assertion of an existing right; any
right to payment or to an equitable remedy”; (2) an interest or remedy recognized at law; the
means by which a person can obtain a privilege, possession, or enjoyment of a right or thing.”
Claim, BLACK’S LAW DICTIONARY (11th ed. 2019). Hunnicutt asserted a claim to the equitable
remedy of recission in her petition. In contrast, a “cause of action” is “[a] group of operative
facts giving rise to one or more bases for suing; a factual situation that entitles one person to
obtain a remedy in court from another person.” Cause of Action, BLACK’S LAW DICTIONARY
(11th ed. 2019). Both parties agree recission is not an independent cause of action.
13
Partners v. Prudential Ins., 341 S.W.3d 323, 344 (Tex. 2011) (rescission is a
remedy). A party seeking rescission and restitution must first establish a
substantive right to avoidance of the transaction in question. See Restatement
(Third) of Restitution and Unjust Enrichment § 54 cmt. a (Am. Law Inst. 2011).
Because Hunnicutt has not established a substantive right to relief against the City,
she has no claim for the remedy of recission. We sustain the City’s issue 2.
III. CONCLUSION
Having sustained the City’s two issues, we hold the trial court reversibly
erred in denying the City’s plea to the jurisdiction on Hunnicutt’s claims against it.
We reverse the order of the trial court and render the judgment the trial court
should have rendered, a dismissal of Hunnicutt’s claims for want of subject-matter
jurisdiction. Tex. R. App. P. 43.2(c).
/s/ Charles A. Spain
Justice
Panel consists of Justices Jewell, Spain, and Wilson.
14