Mattox v. County Commissioner's Court-Grimes Cty. (Tex.App.- Houston [14th Dist.]
Oct. 29, 2009)(Hedges)(cancellation of a roadway dedication, interpretation of section 232.008 of the
Texas Local Government Code, which governs cancellation of all or part of a subdivision located outside of
any municipality) (mandamus against a public official) (both parties' motions for summary judgment denied)
REVERSED AND REMANDED: Opinion by Chief Justice Hedges
Before Chief Justice Hedges, Justices Brock Yates and Frost
14-08-00193-CV Gregory R. Mattox and Barbara Wilkerson v. County Commissioners' Court-Grimes
County, Betty Shiflett-Grimes County Judge, John Bertling-County Commissioner Pct 1., and Pam Finke-
County Commissioner Pct 4
Appeal from 506th Judicial District Court of County
Trial Court Judge: Albert M McCaig Jr.
Dissenting Opinion by Justice Frost in Mattox v. County Commissioners' Court of Grimes County
("Because this court reverses and remands based on a different analysis, I respectfully dissent.")
M A J O R I T Y O P I N I O N
Appellants, Gregory R. Mattox and Barbara Wilkerson, appeal the trial court's judgment denying their
petition for writ of mandamus to compel appellees, Grimes County Commissioners Court, Betty Shiflett,
John Bertling, and Pam Finke, to order the cancellation of a roadway dedication. In five issues, appellants
argue that: (1) the trial court erred by denying their petition for writ of mandamus; (2) the affidavits
attached to appellees' motion for summary judgment were not competent summary judgment evidence; (3)
the trial court erred by denying appellants' motion for summary judgment; (4) the trial court erred by
granting appellees' motion for summary judgment, and (5) the trial court erred by denying appellants'
motion for sanctions. We reverse and remand.
Appellants purchased lots 35 and 36 of the Hill Forest Manor subdivision in May 2005. The two adjoining
lots were located in the southwest corner of Hill Forest Manor. After purchasing their lots, appellants
learned that a portion of an unpaved roadway dedicated as a county road encroached upon their newly-
acquired property. The dedicated county road, Hill Forest Lane, ran across the southern border of Hill
Forest Manor, and the last 134 feet on the west part of Hill Forest Lane extended across appellants'
property. Appellants sought to cancel the dedication on the 134-foot portion of Hill Forest Lane that
extended onto their property by filing an application with the commissioners court pursuant to chapter 232
of the Local Government Code.
A. Proceedings Before Grimes County Commissioners Court
Section 232.008(e) of the Local Government Code mandates a commissioners court to authorize
cancellation of “a subdivision or any phase or identifiable part of a subdivision, including a dedicated
easement or roadway" upon application by “the owners of 75 percent of the property included in the
subdivision, phase or identifiable part." Section 232.008(e) further provides that “if owners of at least
10 percent of the property affected by the proposed cancellation file written objection to the cancellation
with the court, the grant of an order of cancellation is at the discretion of the court." After appellants
filed their application to cancel the dedication, proper notices were filed, and a hearing was conducted
before the commissioners court.
At the hearing, appellants presented their application and argued that cancellation was mandatory under
section 232.008(e) because (1) the 134-foot portion of Hill Forest Lane sought to be cancelled was an
“identifiable part" of Hill Forest Manor for purposes of subsection (e), (2) appellants owned 100% of this
identifiable part, (3) no written objection to the proposed cancellation had been made by owners of at least
10% of the property to be cancelled, and (4) the cancellation did not interfere with the established rights of
any owner in Hill Forest Manor.
In response, the county and counsel for Clifford and Eleanor Jackson (collectively “the Jacksons"),
adjoining landowners, argued that cancellation was not mandatory, but discretionary under section 232.008
(h). Subsection (h) vests a commissioners court with discretion to grant or deny a request to cancel a
roadway dedication if “the cancellation will prevent the proposed interconnection of infrastructure to
pending or existing development." Relying on subsection (h), the Jacksons argued that they owned
land immediately outside of Hill Forest Manor, but adjoining appellants' lots (“the Jackson property"), and
the proposed cancellation would affect any intended, pending, and existing development on the Jackson
property. Specifically, the Jacksons argued that they had prepared an unrecorded plat dividing their
property into various lots and had been selling those partitioned lots. The Jacksons further claimed that
they intended to divide other parts of their property and sell those partitioned parts in the future. However,
such development would be vitiated by the proposed cancellation because Hill Forest Lane is the only
road that could provide adequate access to developments on the Jackson property. The only other
access to the Jackson property was by way of a 36-foot-wide easement, a path that was insufficient to
accommodate access to any pending or prospective developments on the Jackson property.
Appellants disputed the applicability of subsection (h), contending that there was no evidence in the
county records of a pending or existing development on the Jackson property. Appellants further
contended that the Jacksons had not sold any part of their property since 1995.
The county argued that Hill Forest Lane was a public road and provided access to other residents.
Petitions signed by county residents generally opposing “the closing of any county road" in Grimes County
were submitted to the commissioners court for consideration. Additionally, a former county commissioner
and local resident both appeared before the commissioners court and expressed their opposition to the
proposed cancellation. At the close of the hearing, two of the four county commissioners and the county
judge voted to deny appellants' application to cancel the road dedication. The county judge and two
commissioners voting to deny the application are appellees Betty Shiflett, John Bertling, and Pam Finke.
Subsequently, appellants challenged the commissioners court's decision by filing a petition for writ of
mandamus with the district court.
B. Mandamus Proceeding Before the District Court
In their petition for writ of mandamus, appellants asked the trial court to order appellees to cancel the
roadway dedication on the portion of Hill Forest Lane that extended onto their property because the
commissioners court was required to do so under section 232.008(e). Specifically, appellants argued that
they owned 100% of the portion of the roadway sought to be cancelled, and no written objection by owners
of at least 10% of the affected property had been filed with the court. Furthermore, appellants argued that
the exception under subsection (h) vesting a commissioners court with discretion to deny an application to
cancel a roadway dedication did not apply because there were no proposals for interconnecting
infrastructure to the Jackson property and no pending or existing developments on the Jackson property.
Appellants urged the trial court to grant their writ and mandamus the commissioners court to order
cancellation of the 134-foot portion of Hill Forest Lane that encroached upon their property.
Appellees responded to the writ by general denial and, subsequently, by amended answer. In the
amended answer, appellees specifically denied the allegations set forth in appellants' petition for writ of
mandamus. Appellees contended that subsection (h) authorized the commissioners court to deny
appellants' application to cancel Hill Forest Lane because (1) the proposed cancellation would prevent an
interconnection between Hill Forest Manor and the Jackson property and (2) there was pending and
existing development on the Jackson property. Thereafter, both parties moved for summary judgment,
primarily disputing the applicability of subsection (h). Both parties submitted affidavits supporting their
position as to whether (1) there was a proposed interconnection between Hill Forest Manor and the
Jackson property and (2) there was pending or existing development on the Jackson property. The trial
court ultimately found in favor of appellees, denying appellants' motion for summary judgment and
sanctions and granting appellees' motion for summary judgment.
C. Issues on Appeal
On appeal, appellants challenge the trial court's judgment in favor of appellees. In issues one, three, and
four, appellants challenge the applicability of subsection (h): whether there was competent summary
judgment evidence reflecting a proposed interconnection between Hill Forest Lane and pending or existing
development on the Jackson property. In their second issue, appellants contend that the affidavits
attached to the appellees' summary judgment motion were not competent summary judgment evidence. In
their fifth issue, appellants contend that the trial court erred in denying their motion for sanctions.
II. STANDARDS OF REVIEW
A. Summary Judgment
Appellants moved for summary judgment under rule 166a(c), while appellees moved for summary
judgment under both rule 166a(c) and rule 166a(i). Traditional summary judgment under civil procedure
rule 166a(c) is proper only when a movant establishes that there is no genuine issue of material fact and
that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Randall's Food Mkts., Inc. v.
Johnson, 891 S.W.2d 640, 644 (Tex. 1995); Mayer v. Willowbrook Plaza Ltd. P'ship, 278 S.W.3d 901, 908
(Tex. App.-Houston [14th Dist.] 2009, no pet.). In deciding whether there is a disputed issue of material
fact, every doubt must be resolved in favor of the nonmovant, and evidence favorable to the nonmovant
must be taken as true. Fort Worth Osteopathic Hosp., Inc. v. Reese, 148 S.W.3d 94, 99 (Tex. 2004).
Under rule 166a(i), a party may move for summary judgment on the ground that there is no evidence of
one or more essential elements of a claim or defense on which an adverse party would have the burden of
proof at trial. See Tex. R. Civ. P. 166a(i).; W. Invs., Inc., v. Urena, 162 S.W.3d 547, 550 (Tex. 2005). To
defeat a no-evidence motion for summary judgment, the nonmovant must produce summary judgment
evidence raising a genuine issue of material fact. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex.
2004); McInnis v. Mallia, 261 S.W.3d 197, 202 (Tex. App.-Houston [14th Dist.] 2008, no pet.). A genuine
issue of material fact exists if the evidence Arises to a level that would enable reasonable and fair-minded
people to differ in their conclusions." King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003)
(quoting Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)). If the evidence does no
more than create a mere surmise or suspicion of fact, less than a scintilla of evidence exists, summary
judgment is proper. See id. (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)).
When, as here, both parties move for summary judgment and the trial court grants one motion and denies
the other, we review the summary judgment evidence presented by both sides, determine all questions
presented, and render the judgment the trial court should have rendered. Tex. Worker's Comp. Comm'n
v. Patient Advocates of Tex., 136 S.W.3d 643, 648 (Tex. 2004). We must affirm a summary judgment if
any of the summary judgment grounds are meritorious. Id.
B. Petition for Writ of Mandamus
Appellants in this case did not pursue a direct appeal from the commissioners court's decision to the
district court. Rather, appellants filed an original proceeding in the trial court seeking a writ of mandamus
against the commissioners court and those who voted against appellants' application to cancel the
roadway dedication. Generally, a party is entitled to mandamus relief against a public official when there is
(1) a legal duty to perform a nondiscretionary act, (2) a demand for performance of that act, and (3) a
refusal to perform. Anderson v. City of Seven Points, 806 S.W.2d 791, 793 (Tex. 1991); Sheppard v.
Thomas, 101 S.W.3d 577, 581 (Tex. App.-Houston [1st Dist.] 2003, pet. denied). An act is
nondiscretionary, or ministerial, when the law clearly spells out the duty to be performed by the official with
sufficient certainty that nothing is left to the exercise of discretion. Anderson, 806 S.W.2d at 793;
Sheppard, 101 S.W.3d at 581; Harris County v. Walsweer, 930 S.W.2d 659, 667-68 (Tex. App.-Houston
[1st Dist.] 1996, writ denied). The Texas Supreme Court has recognized an exception, however, which
authorizes mandamus relief in cases involving a discretionary act: “a writ of mandamus may issue in a
proper case to correct a clear abuse of discretion by a public official." Anderson, 806 S.W.2d at 793.
The burden is upon the petitioner to negate by affirmative allegation and prove every fact or condition
which would have authorized the public official to take action sought to be enforced upon him. Wortham v.
Walker, 133 Tex. 255, 128 S.W.2d 1138, 1151 (1939); Rash v. City Council of City of Houston, 557 S.W.
2d 324, 326 (Tex. Civ. App.-Houston [1st Dist.] 1977, writ ref'd n.r.e.). Without such proof, there is no
basis for finding an abuse of discretion. Wortham, 133 Tex. at 279, 128 S.W.2d at 1151.
III. ANALYSIS 
The issue on appeal is not whether the commissioners court abused its discretion in denying appellants'
petition for cancellation, but whether the commissioners court had discretion to deny the petition under
section 232.008(h). See Anderson, 806 S.W.2d at 793. Thus, if section 232.008(e) applies, the
commissioners court had no discretionary authority to deny the petition, because appellants established its
criteria as a matter of law. In contrast, if section 232.008(h) applies, the commissioners court could deny
the petition in its discretion. The trial court properly granted summary judgment in favor of appellees only
if appellees established as a matter of law that section 232.008(h) applies. There must be no genuine
issue of material fact concerning the existence of authoritative criteria under section (h). The trial court
should have granted appellant's motion for summary judgment only if appellants had established as a
matter of law that section 232.008(e) applied.
A. Section 232.008(e)
Section 232.008(e) mandates a commissioners court to order the cancellation of “a subdivision or any
phase or identifiable part of a subdivision, including a dedicated easement or roadway" upon application
by “the owners of 75 percent of the property included in the subdivision, phase or identifiable part." Tex.
Loc. Gov't Code § 232.008(e). However, “if owners of at least 10 percent of the property affected by the
proposed cancellation file written objection to the cancellation with the court, the grant of an order of
cancellation is at the discretion of the court." Id. Accordingly, if an applicant shows that he is the owner of
at least 75% of the property to be cancelled and no written objection is filed with the court by owners of at
least 10% of the property affected by the proposed cancellation, the act of cancellation is ministerial,
leaving nothing to the exercise of discretion by the commissioners court. See id.; see also Anderson, 806
S.W.2d at 793.
In the sworn application for cancellation, the petition for writ of mandamus, and appellants' sworn affidavits,
appellants averred that the 134 feet of Hill Forest Lane sought to be cancelled lay wholly within their two
lots; thus, they owned 100% of the identifiable part sought to be cancelled. Furthermore, appellants
averred that because they owned 100% of the property to be cancelled, no written objection by owners of
at least 10% of the same property could be filed with the court and indeed had not been filed. Appellees
do not dispute appellants' evidence supporting the subsection (e) requirements, which would render the
act of cancellation ministerial. Instead, appellees argue that the commissioners court's determination is a
discretionary act under subsection (h).
B. Applicability of Section 232.008(h) 
Section 232.008(h) provides that A[t]he commissioners court may deny a cancellation under this section if
the commissioners court determines the cancellation will prevent the proposed interconnection of
infrastructure to pending or existing development." Tex. Loc. Gov't Code § 232.008(h). The parties
dispute whether the cancellation will prevent a proposed interconnecting infrastructure from Hill Forest
Manor to the Jackson property and whether there is a pending or existing development on the Jackson
1. Proposed Interconnection
Appellants request that we define “proposed interconnection" as “a proposal or a proffer to another party,
in this case the County Commissioner's Court." We reject this interpretation of “proposed
interconnection." We review the statutory construction of the term “proposed interconnection" under a de
novo standard. See Bragg v. Edwards Aquifer Auth., 71 S.W.3d 729, 734 (Tex. 2002).
In construing statutory provisions, our objective is to determine and give effect to the legislature's intent.
Nat'l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex. 2000). We assume that the legislature tried
to say what it meant; therefore, its words should be the surest guide to its intent. Segal v Emmes Capital,
L.L.C., 155 S.W.3d 267, 286 (Tex. App.-Houston [1st Dist.] 2004, pet. dism'd). If the meaning of the
statutory language is unambiguous, we will adopt the interpretation supported by the plain meaning of the
provision's words. St. Luke's Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 505 (Tex. 1997). We must not
engage in forced or strained construction; instead we yield to the plain sense of the words the legislature
chose. See id.
The unambiguous meaning of proposed is to “intend," “suppose," or “to offer for consideration, discussion,
acceptance, or adoption." See Webster's Third New Int'l Dictionary 1819 (1993). Thus, the plain
language of subsection (h) requires a showing of an (1) infrastructure that is intended to be used as the
interconnection or (2) interconnection offered for consideration as the interconnecting infrastructure.
Contrary to appellants' argument, the plain unambiguous language of subsection (h) does not require that
the “proposed interconnection" be formally dedicated by or filed or platted with the county. Moreover, the
plain unambiguous language of subsection (h) does not require that the “proposed interconnection" be
recently dedicated or platted. We conclude that the plain unambiguous meaning of “proposed
interconnection" under subsection (h) is infrastructure that is intended to be used as the interconnection
or an interconnection offered for consideration as the interconnecting infrastructure.
With respect to the evidence produced on the proposed interconnection between Hill Forest Manor and
the Jackson property, appellants relied on the affidavit of County Commissioner Bill Pendley, who voted to
grant appellants' application for cancellation. Pendley indicated that there was “no proposal pending
before the Commissioners Court with regard to making an interconnection between the Jackson property
and Hill Forest Manor." Appellants also argue that no proposals or plats had been filed for an
interconnecting infrastructure between Hill Forest Manor and the Jackson property.
Disputing appellants' evidence, appellees submitted the minutes and transcript from the hearing before the
commissioners court, together with the affidavits of Betty Shiflett, John Bertling, and Pam Finke. The
hearing minutes and transcript reflect that Hill Forest Manor was platted with the “intent to leave a road
that could" be used to access the Jackson property and that “Hill Forest Lane was platted up to the
Jackson property with this in mind." Appellees argue that because Hill Forest Lane was originally platted up
to the Jackson property, in part, to provide access to the Jackson property, Hill Forest Lane is the
proposed interconnection between Hill Forest Manor and the Jackson property and that cancelling the last
134 feet of Hill Forest Lane connecting Hill Forest Manor to the Jackson property would prevent
interconnection between the properties.
We find that the Pendley affidavit and the hearing minutes and transcript submitted by the parties create a
genuine issue of material fact as to whether there is a proposed interconnection of infrastructure between
Hill Forest Manor and the Jackson property, namely, whether Hill Forest Lane, a platted county road, is a
“proposed interconnection of infrastructure" between Hill Forest Lane and the Jackson property and
whether cancellation of the last 134 feet of Hill Forest Lane would prevent that proposed interconnection.
Having found a genuine issue of material fact on the first subsection (h) requirement, we now turn to the
2. Pending or Existing Development
Appellants also rely on the Pendley affidavit to support their contention that there was no pending or
existing development on the Jackson property. Pendley attested in his affidavit that there was “no
subdivision or development of any kind" on the Jackson property and Clifford Jackson told Pendley that
he, Clifford Jackson, “was not going to develop his land because he was too old, [but] . . . wanted to keep
the option open."
Appellees attempted to dispute appellants' evidence by asserting an intent to develop the Jackson
property. Appellees also cite to portions of the hearing transcript presenting evidence of a pending or
existing development on the property. The cited portions of the transcript reflect that the Jacksons had
prepared unrecorded plats dividing their land into separate tracts and that they had been selling those
partitioned tracts. We find that this evidence compared with the Pendley affidavit creates a genuine issue
of material fact as to whether there is a pending or existing development on the Jackson property.
Because there are genuine issues of material fact as to whether subsection (h) applies, neither party is
entitled to summary judgment.
The evidence submitted for summary judgment does not conclusively prove that subsection (e) applies.
Appellants, therefore, did not meet their burden of proof and were not entitled to mandamus as a matter of
law. Accordingly, we overrule appellants' first and third issues. Moreover, appellees were not entitled to
summary judgment because genuine issues of material fact precluded such relief. The evidence reflects a
factual dispute as to whether subsection (h) applies, which ultimately determines whether appellants are
entitled to mandamus relief against appellees. Accordingly, we sustain appellants' fourth issue.
C. Motion for Sanctions
In their last issue, appellants argue that the trial court erred in denying their motion for sanctions. Below,
appellants filed a motion for sanctions against appellees and county attorney Jon C. Fultz, asserting
multiple grounds, including filing groundless pleadings for improper purposes and in bad faith and making
false and misleading representations to the court. Appellants requested sanctions pursuant to Rule 13 of
the Texas Rules of Civil Procedure and section 10.001 of the Texas Civil Practice and Remedies Code.
See Tex. R. Civ. P. 13; Tex. Civ. Prac. & Rem. Code § 10.001.
A trial court's ruling on a motion for sanctions is reviewed under an abuse-of- discretion standard. Cire v.
Cummings, 134 S.W.3d 835, 838 (Tex. 2004). The test for abuse of discretion is not whether, in the
opinion of the reviewing court, the facts present an appropriate case for the trial court's action, but
whether the court acted without reference to any guiding rules and principles. Id. at 838-39. Civil
procedure rule 13 authorizes sanctions against an attorney, a represented party, or both if the evidence
establishes a pleading is either (1) groundless and brought in bad faith, or (2) groundless and brought to
harass. Tex. R. Civ. P. 13. Groundless “means no basis in law or fact and not warranted by good faith
argument for the extension, modification, or reversal of existing law." Id.
Sanctions under chapter 10 of the Civil Practice and Remedies Code are authorized if the evidence
establishes that (1) a pleading or motion was brought for an improper purpose, (2) there were no grounds
for legal arguments advanced, or (3) a factual allegation or denial lacked evidentiary support. Tex. Civ.
Prac. & Rem. Code § 10.001. Furthermore, we must presume that the challenged pleadings were filed in
good faith. Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); Thottumkal v. McDougal, 251 S.W.3d 715,
718 (Tex. App.-Houston [14th Dist.] 2008, pet. denied). The party seeking sanctions bears the burden of
overcoming the presumption of good faith in the filing of pleadings. Low, 221 S.W.3d at 614.
Appellants sought sanctions based primarily upon their belief that appellees filed pleadings and affidavits
containing false and misleading statements. Appellants also argue on appeal that they were entitled to
sanctions against appellees because appellees did not respond to their motion for sanctions. The motion
filed with the trial court sought sanctions for appellants' belief that the pleadings and affidavits asserted
false and misleading statements. However, those beliefs were not supported by sufficient evidence.
Although appellants accompanied their sanctions motion with exhibits, the evidence did not establish that
appellees knowingly filed pleadings with false or misleading statements or knowingly filed false affidavits.
The sanctions evidence simply controverts appellees' position in the mandamus proceeding. Appellees'
motion essentially sought sanctions for their disagreement with the factual and legal assertions made by
appellees, which does not warrant sanctions.
Therefore, we cannot conclude on the record before us that appellees' claims, pleadings, or evidence had
no basis in law or fact or that the pleadings were not supported by a good faith argument. Further, we
cannot conclude that appellees acted in bad faith or for the purpose of harassment or for any improper
purpose in attempting to defend against appellants' petition for writ of mandamus. Accordingly, the trial
court did not abuse its discretion in denying appellants' request for sanctions. We overrule appellants' fifth
We overrule appellants' first, second, third, and fifth issues. Further, we sustain appellants' fourth issue,
reverse the summary judgment in favor of appellees, and remand to the trial court for further proceedings
consistent with this opinion.
/s/ Adele Hedges
Panel consists of Chief Justice Hedges and Justices Yates and Frost. (Frost, J. dissenting).
 See Tex. Loc. Gov't Code § 232.008(e).
 See id.
 Id. § 232.008(h).
 District courts have jurisdiction to review and issue writs of mandamus against a commissioners court. Section 24.020
of the Texas Government Code provides that “[t]he district court has appellate jurisdiction and general supervisory control
over the commissioners court . . ." Tex. Gov't Code § 24.020. Furthermore, the Texas Constitution and the Government
Code authorize the district court to “grant writs of mandamus . . . and all other writs necessary to the enforcement of the
court's jurisdiction." Tex. Const. art. V, § 8; Tex. Gov't Code § 24.011; see also Vondy v. Commissioners Court of Uvalde
County, 620 S.W.2d 104, 109 (Tex. 1981) (acknowledging that district courts are vested with original mandamus jurisdiction
over county officials and “general supervisory control over the orders of the commissioners court").
 Appellants argue that mandamus should be granted exclusively on appellees' failure to file a verified response to the
petition for writ of mandamus. After appellants filed their petition with the trial court, appellees filed a general unverified
denial and, later, an amended verified answer specifically denying the petition's allegations. Appellants argue that because
appellees failed to file a verified response, we must take the allegations in the petition as true and grant mandamus based
exclusively on appellees' failure to file a verified response. See Patton v. Terrell, 101 Tex. 221, 105 S.W.1115, 1116 (1907);
Sansom v. Mercer, 68 Tex. 488, 5 S.W. 62, 65B66 (1887). Contrary to appellants' assertions, appellees disputed the
petition's allegations with a verified amended answer specifically contesting the allegations set for in the petition.
Accordingly, we find that appellants are not entitled to mandamus on this basis.
 Subsection (h) applies only to land subdivided or plats filed on or after its effective date of September 1, 1999. See Act
of May 5, 1999, 76th Leg., R.S., ch. 129, § 8, secs. 7, 10, 1999 Tex. Gen. Laws 574, 578. Because neither party challenges
the applicability of subsection (h) on the basis of its September effective date, we do not review the applicability of
subsection (h) on this ground.
 In their second issue, appellants challenge the affidavits of Betty Shiflett, John Bertling, and Pam Finke on the basis that
they contain conclusory statements. Having found that the hearing transcript alone, which is not challenged on appeal and
is relied upon by both parties, creates a genuine issue of material fact and, thus, precludes summary judgment for either
party, we need not address the propriety of the affidavits submitted by appellees. See City of Brownsville v. Alvarado, 897 S.
W.2d 750, 753B55 (Tex. 1995) (concluding that successful evidentiary challenge requires a showing that the judgment
turned on the complained-of evidence). Accordingly, we overrule issue two.
 Our colleague contends that we should reverse and remand based upon the statutory language of 232.008(b).
However, appellants made no complaint in their briefing under subsection (b). Because we cannot reverse a judgment in a
civil case based upon unassigned error, we can neither analyze this case under subsection (b) nor reverse and remand
under this subsection. See Pat Baker Co. v. Wilson, 971 S.W.2d 447, 450 (Tex. 1998) (per curiam); Exxon Mobil Corp. v.
Hines, 252 S.W.3d 496, 507 (Tex. App.-Houston [14th Dist.] 2008, pet. denied).