IN THE SUPREME COURT OF TEXAS

IN THE SUPREME COURT OF TEXAS

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No. 05-0202

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Energy Service = Company of=20 Bowie, Inc., Petitioner,

Superior Snubbing = Services,=20 Inc., Respondent

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On Petition for Review from = the

Court of Appeals for the Second = District of=20 Texas

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Argued December 1,=20 2005

&nbs= p;=20 Justice Hecht delivered = the=20 opinion of the Court, in which Chief=20 Justice Jefferson, Justice Brister, Justice Medina, and Justice Lang[1]=20 joined.

&nbs= p;=20 Justice Johnson filed a = dissenting=20 opinion, in which Justice = Wainwright,=20 Justice Green, = and Justice Willett joined.

&nbs= p;=20 Justice O=92Neill took = no part in=20 the decision of the case.

&nbs= p;=20 Since 1963, the Texas Workers=92 Compensation Act has provided that a = subscribing=20 employer is not liable to indemnify others against an employee=92s = personal injury=20 claim unless it agreed to do so in writing before the injury occurred. = Until the=20 Act was overhauled in 1989, it referred to the required agreement as one = =93executed by the subscriber=94.[2]=20 The new Act referred instead to an agreement =93executed . . . with the = third=20 party=94 seeking indemnity.[3]=20 The issue in this case is whether this change was substantive. More=20 particularly, the question is: under section 417.004 of the Texas Labor = Code,=20 may a subscribing employer=92s written agreement to indemnify a person = and that=20 person=92s contractors be enforced by one of those contractors even = though the=20 agreement was not executed by that contractor? The trial court answered = yes, but=20 the court of appeals disagreed.[4]=20 We agree with the trial court.

&nbs= p;=20 Petitioner Energy Service Company of Bowie, Inc. and respondent Superior = Snubbing Services, Inc. both provided oilfield services to Mitchell = Energy=20 Corporation. In 1996, Superior and Mitchell signed an industry-standard = =93Master=20 Service Agreement=94, which provided in part that they would indemnify = each other=20 and each other=92s contractors against their respective employees=92 = personal injury=20 claims arising out of work performed under the Agreement or at the = jobsite, even=20 if the indemnitee was at fault.[5]=20 Energy and Mitchell had signed a similar agreement in 1991, containing = the=20 identical provision. Each party agreed to support its obligation with = liability=20 insurance[6]=20 so that to the extent of coverage obtained the indemnification = obligations would=20 not be voided by the Texas Oilfield Anti-Indemnity Act.[7]=20 Superior and Energy did not have a mutual indemnification agreement = between=20 themselves, nor was either a party to the other=92s agreement with = Mitchell, but=20 each was covered, as a Mitchell contractor, by the terms of the = other=92s=20 agreement with Mitchell. Thus, Energy agreed to indemnify Mitchell and = its=20 contractors, one of which was Superior, against claims by Energy = employees, and=20 Superior agreed to indemnify Mitchell and its contractors, one of which = was=20 Energy, against claims by Superior employees.

&nbs= p;=20 Superior=92s employee, Daryll Faulk, sued Mitchell and Energy for = injuries he=20 suffered in 2000 while working at a Mitchell wellsite where Superior and = Energy=20 were both performing services for Mitchell. Mitchell and Energy settled = with=20 Faulk and then sued Superior for indemnity. The trial court severed = Mitchell=92s=20 claims from Energy=92s. Superior, a subscribing employer, contended that = Energy=92s=20 claim was barred by section 417.004 of the Labor Code.[8]=20 The trial court disagreed and granted summary judgment for Energy for = the=20 $330,135.37 in attorney fees and expenses it incurred in the Faulk = suit.

&nbs= p;=20 The court of appeals reversed and rendered judgment for Superior. It = noted that=20 before the Workers=92 Compensation Act was completely revised in 1989, = the=20 predecessor provision to section 417.004 stated that a subscribing = employer=20 could not be liable to indemnify a person against an employee=92s = personal injury=20 claim =93in the absence of a written agreement expressly assuming such = liability,=20 executed by the subscriber prior to such injury or death.=94[9]=20 The court of appeals determined, and Superior acknowledges in its brief, = that=20 the statute did not require that the employer=92s agreement be executed = by the=20 person claiming indemnity;[10]=20 the claimant was entitled to indemnity if it was covered by the = agreement as an=20 intended beneficiary, such as a contractor of the signatory. But = according to=20 the court of appeals, a 1989 change in the provision, carried forward = into=20 section 417.004, the current law, precludes liability =93unless the = employer=20 executed, before the injury or death occurred, a written = agreement=20 with the third party to assume the liability.=94[11]=20 The court concluded, in effect, that since Superior=92s indemnification = agreement=20 with Mitchell was not executed by Energy, it was not executed = with=20 Energy, and therefore Superior could not be liable to indemnify = Energy.[12]

&nbs= p;=20 We granted Energy=92s petition for review to determine whether the = Legislature=20 intended, as part of its 1989 overhaul of the Workers=92 Compensation = Act, to make=20 a substantive change in the 26-year-old provision that is now section = 417.004.[13]=20 That overhaul, enormously controversial, was not completed until = December 1989,=20 in the second called session of the 71st Legislature, after efforts to = revise=20 the Act during the regular session and the first special session had = failed.[14]=20 But the controversy did not extend to the provision that is now section = 417.004.=20 Nothing in the lengthy history of the revision process indicates that = the=20 Legislature had any reason to change the substance of that provision.[15]

&nbs= p;=20 The common law allows parties to contract for the benefit of others =97 = in effect,=20 with others =97 if they do so explicitly, and when they do, the = beneficiary=20 can enforce the promisor=92s obligation in his favor as if he were = himself a=20 party.[16]=20 The pre-1989 predecessor to section 417.004 was consistent with that = rule,=20 allowing indemnification agreements to benefit a party=92s non-signatory = contractors, but the present section, as construed by the court of = appeals, is=20 not. Of course, statutes can modify common law rules, but before we = construe one=20 to do so, we must look carefully to be sure that was what the = Legislature=20 intended.[17]

&nbs= p;=20 The Legislature has directed that =93[i]n interpreting a statute, a = court shall=20 diligently attempt to ascertain legislative intent and shall consider at = all=20 times the old law, the evil, and the remedy.=94[18]=20 Superior has not pointed to anything suggesting that allowing = indemnification=20 agreements to cover persons working with the contracting parties was = perceived=20 to be an =93evil=94 before the 1989 amendment. Superior argues that a = contractor=20 working in the oil field should not be economically pressured into = surrendering=20 its statutory immunity from liability for indemnity of an employee=92s = personal=20 injury claims, but the Texas Oilfield Anti-Indemnity Act, enacted in = 1973,=20 limits that liability,[19]=20 and nothing suggests that the Legislature thought those limits should be = modified by amending the Workers=92 Compensation Act in 1989. Superior = concedes=20 that restricting such agreements to the parties themselves simply makes = the=20 protections such agreements afford much harder and costlier to obtain,=20 especially in a work setting like the oilfield, where many contractors = may come=20 and go on a project over a long period of time. Trying to be sure that = everyone=20 working at a wellsite has a signed agreement may well be impractical. = Superior=20 also concedes that the continued widespread use after 1989 of standard = mutual=20 indemnification agreements like those in this case strongly suggests = that the=20 industry does not consider the practice an =93evil=94 to be remedied. = Indeed, the=20 parties tell us that no one even appears to have noticed the 1989 change = in=20 language until this case.

&nbs= p;=20 Absent any identifiable reason for a substantive change to have been = made in the=20 statutory provision, or any extra-textual indication that one was = intended, or=20 any resulting change in industry practice, we think the most reasonable=20 construction of section 417.004 is the same as its pre-1989 = predecessors. In=20 these circumstances, we think that when the Legislature required that a=20 subscribing employer contract =93with the third party=94 seeking = indemnity, it=20 considered that an agreement intending to cover third party = beneficiaries was an=20 agreement with the beneficiaries. The issue for us, of course, is not = whether=20 this is good policy, but whether it is what the Legislature intended by = the 1989=20 amendments. We think it was.

&nbs= p;=20 This is not a situation like the one in Fleming Foods of Texas, Inc. = v.=20 Rylander, where the statutory text admitted of but one meaning, = however=20 doubtful it was that the Legislature intended it.[20]=20 In that case, the prior law allowed a person to claim a refund of sales = taxes=20 only if he had paid the taxes =93directly to the State=94.[21]=20 The recodified law omitted the quoted phrase, thus ostensibly allowing a = refund=20 claim by any taxpayer, even if taxes were made through an = intermediary.[22]=20 Consistently, the statute defined =93taxpayer=94 as =93a person liable = for a tax=94.[23]=20 Fleming Foods claimed a refund of taxes it had paid, but through a = vendor, not=20 directly to the State.[24]=20 Although the Legislature expressly provided that the recodification was=20 nonsubstantive, we held that the plain language of the recodified law = could not=20 admit the limitation of the prior law.[25]=20 The revised text gave no indication that the limitation of the prior law = might=20 still apply, and a person reading the new statute, unaware of its = history, could=20 not reasonably know of the limitation.[26]=20 The statute in this case, unlike that one, is not so clear. An agreement = with a third party does not necessarily exclude a third party = beneficiary=20 not identified expressly by name. Indeed, under the common law, an = indemnity=20 agreement could ordinarily include an obligation by the promisor to an = unnamed=20 third party beneficiary. The text of section 417.004 would not indicate to an ordinary reader that the third = party was=20 required to sign the agreement.

&nbs= p;=20 The dissent argues that construing the 1989 amendment to mean the same = thing as=20 the prior law deprives the added phrase, =93with the third party=94, of = any meaning.=20 But that argument assumes that the Legislature intended the added phrase = to mean=20 something different than existing law, when there is simply no = indication that=20 it did. In fact, the words =93third party=94 were inserted throughout = the 1989=20 version to serve as a shorthand substitute for the multiple word = descriptions =97=20 =93a person other than the subscriber=94 and =93such other person=94 =97 = used throughout=20 the pre-1989 version. The dissent also argues that because the = Legislature did=20 not expressly include third party beneficiaries, it must have intended = to=20 exclude them. But as we have already explained, the Legislature was = charged with=20 the knowledge that the common law would ordinarily include third party=20 beneficiaries, and thus it had no reason to reiterate what was already = the=20 law.

&nbs= p;=20 The dissent acknowledges that to restrict mutual indemnity obligations = to=20 signatories denies them the freedom to contract for the benefit of their = contractors, but argues that this is necessary to =93protect[] them from = economic=20 pressures=94.[27]=20 Since 1973, however, that protection has been provided, to the extent = the=20 Legislature has determined it should be in any setting, by the Texas = Oilfield=20 Anti-Indemnity Act.[28]=20 That Act expressly contemplates that parties will =93agree to indemnify = each other=20 and each other=92s contractors and their employees=94 and voids only = certain=20 indemnities not supported by liability insurance.[29]=20 The dissent argues that the 1989 amendments to section 417.004 further = restrict=20 the use of mutual indemnification agreements, but nothing in the = language or=20 history of the amendments suggests that such a restriction was intended. = To the=20 contrary, amicus curiae Texas Oil and Gas Association has explained the=20 significant policy and practical considerations favoring the use of such = agreements:

[T]ens of thousands of agreements have been entered = into by=20 which each party (as =93indemnitor=94) agrees to indemnify the other = party=20 (=93indemnitee=94) and the indemnitee=92s contractors for claims arising = from injuries=20 to the indemnitor=92s employees, regardless of fault. In other words, . = . . each=20 party in the oilfield takes care of its own =93slice of the risk=94 = (claims by its=20 own employees against the other party and its contractors or = subcontractors as=20 third party beneficiaries). In return, the indemnitor and the = indemnitor=92s=20 contractors or subcontractors receive a reciprocal indemnity from the = indemnitee=20 as third party beneficiaries (for claims by the indemnitee=92s = employees). This=20 approach to risk allocation provides a level of certainty to all of the = parties=20 regarding liability exposure because each company is able to train its = own=20 employees as to safe oilfield practices, manage its performance of the = work,=20 obtain insurance, and attempt to control the scope of its liability = arising out=20 of what is usually a common workplace. Liability insurers have also = written=20 insurance coverage to accommodate such a risk allocation approach = inasmuch as=20 policies typically provide contractual liability coverage for indemnity=20 obligations to third parties.[30]

&nbs= p;=20 Finally, the dissent argues that section 417.004 cannot be construed = solely in=20 the light of practices in the oil field. While we agree that the = provision=20 applies to indemnification agreements in other settings, nothing before = us=20 remotely suggests that other applications of the statute require a = different=20 construction.

* * *

= Accordingly, the judgment of the court of appeals is reversed, and the = case is=20 remanded to the trial court for rendition of judgment in accordance with = this=20 opinion.

__________________________

Nathan L.=20 Hecht

Justice

Opinion delivered: = August 24,=20 2007

^{^[1]}=20 Hon. Douglas S. Lang, Justice, Court of Appeals for the Fifth District = of Texas=20 at Dallas, sitting by commission of Hon. Rick Perry, Governor of Texas, = pursuant=20 to Section 22.005 of the Texas Government Code.

^{^[2]}=20 Act of May 20, 1963, 58th Leg., R.S., ch. 437, =A7 1, 1963 Tex. Gen. = Laws 1132=20 formerly Tex. Rev. Civ. Stat.=20 Ann. art. 8306, =A7 3, amended by Act of May 5, 1983, 68th Leg., = R.S., ch.=20 131, =A7 1, 1983 Tex. Gen. Laws 613, 614, formerly Tex. Rev. Civ. Stat. Ann. = art. 8306, =A7=20 3(d) (=93If an action for damages on account of injury to or death of an = employee=20 of a subscriber is brought by such employee, or by the representatives = or=20 beneficiaries of such deceased employee, or by the association for the = joint use=20 and benefit or itself and such employee or such representative or = beneficiaries,=20 against a person other than the subscriber, as provided in Section 6a, = Article=20 8307, Revised Civil Statutes of Texas, 1925, and if such action results = in a=20 judgment against such other person, or results in a settlement by such = other=20 person, the subscriber, his agent, servant or employee, shall have no = liability=20 to reimburse or hold such other person harmless on such judgment or = settlement,=20 nor shall the subscriber, his agent, servant or employee, have any tort = or=20 contract liability for damages to such other person because of such = judgment or=20 settlement, in the absence of a written agreement expressly assuming = such=20 liability, executed by the subscriber prior to such injury or=20 death.=94).

^{^[3]}=20 Act of Dec. 12, 1989, 71st Leg., 2d C.S., ch. 1, =A7 4.04, 1989 Tex. = Gen. Laws 1,=20 32-33, formerly Tex. Rev. Civ. = Stat.=20 Ann. art. 8308-4.04 (=93If an action for damages is brought by an = injured=20 employee, the legal beneficiary of a deceased employee, or an insurance = carrier=20 against a third party liable to pay damages for the injury or death as = provided=20 by Section 4.05 of this Act and the action results in a judgment against = the=20 third party or a settlement by the third party, the employer is not = liable to=20 the third party for any reimbursement or damages based on the judgment = or=20 settlement unless the employer executed, before the injury or death = occurred, a=20 written agreement with the third party to assume the liability.=94), = amended by=20 Act of May 12, 1993, 73rd Leg., R.S., ch. 269, =A7 1, 1993 Tex. Gen. = Laws 987,=20 1235, now Tex. Lab. = Code =A7=20 417.004 (=93In an action for damages brought by an injured employee, a = legal=20 beneficiary, or an insurance carrier against a third party liable to pay = damages=20 for the injury or death under this chapter that results in a judgment = against=20 the third party or a settlement by the third party, the employer is not = liable=20 to the third party for reimbursement or damages based on the judgment or = settlement unless the employer executed, before the injury or death = occurred, a=20 written agreement with the third party to assume the = liability.=94).

^{^[4]}=20 158 S.W.3d 112 (Tex. App.=97Fort Worth 2005).

^{^[5]}=20 Paragraph 7(b) of the =93Master Service Agreement=94 provided: = =93Contractor=20 [Superior] shall protect, defend, indemnify and hold Company [Mitchell], = its=20 employees, partners, agents, representatives, invitees, contractors and = their=20 employees (hereinafter =93Company=92s group=94) harmless from and = against all claims,=20 demands, causes of action, suits or other litigation of every kind and = character=20 for injury to or illness or death of and for all damage to, loss or = destruction=20 of property of Contractor, its employees, partners, agents, = representatives,=20 invitees, contractors, subcontractors and their employees (hereinafter=20 =93Contractor=92s group=94) which is incident to, arising out of, within = the scope of,=20 or in connection with the work to be performed, services to be rendered = or=20 materials to be furnished by Contractor=92s group under this Agreement, = or=20 occurring on the worksite(s), regardless of how, when or where such = injury,=20 illness, death, damage, loss or destruction occurs; including the sole = or=20 concurrent NEGLIGENCE or FAULT of Company or Company=92s group . . . and = regardless of whether contractual liability for indemnity or LIABILITY = WITHOUT=20 FAULT (including claims arising from premises or worksite liability) is = sought=20 to be imposed on Company=92s group. Likewise Company shall = protect, defend,=20 indemnify and hold Contractor=92s group harmless from and against all = claims,=20 demands, causes of action, suits or other litigation of every kind and = character=20 for injury to or illness or death of and for all damage to, loss or = destruction=20 of property of Company=92s group which is incident to, arising out of, = within the=20 scope of, or in connection with the work to be performed, services to be = rendered or materials to be furnished by Company=92s group under this = Agreement or=20 occurring on the worksite(s) regardless of how, when or where such = injury,=20 illness, death, damage, loss or destruction occurs; including the sole = or=20 concurrent NEGLIGENCE or FAULT of Contractor=92s group . . . and = regardless of=20 whether contractual liability for indemnity or LIABILITY WITHOUT FAULT=20 (including claims arising from premises or worksite liability) is sought = to be=20 imposed on Contractor=92s group. Contractor and Company = specifically intend=20 that the foregoing obligation to protect, defend, indemnify and hold the = other=20 harmless shall cover but not be limited to and shall apply even in the = event of=20 (i) the NEGLIGENCE, whether sole, comparative, contributory or = concurrent, of=20 Company=92s group or Contractor=92s group; (ii) any obligation of either = party=20 arising from contractual liability for indemnity or LIABILITY WITHOUT = FAULT=20 (including claims arising from premises or worksite liability); and = (iii) the=20 sole, comparative, contributory, concurrent, NEGLIGENCE or contractual = liability=20 for indemnity or LIABILITY WITHOUT FAULT (including claims arising from = premises=20 or worksite liability) of any third party.=94

^{^[6]}=20 For example, paragraph 7(c)of the Superior-Mitchell agreement provided: = =93This=20 indemnity shall be supported by the liability insurance coverage herein = required=20 to be furnished by Contractor or such greater amount of insurance (or=20 self-insurance) as Contractor in fact carries. Provided, however, = if the=20 work to be performed hereunder subjects this Agreement to [the Texas = Oilfield=20 Anti-Indemnity Act], Company agrees to provide insurance or self = insurance in an=20 equal amount to that provided by Contractor in support of the mutual = indemnities=20 contained herein.=94

^{^[7]}=20 Act of May 21, 1973, 63rd Leg., R.S., ch. 646, 1973 Tex. Gen. Laws 1767, = formerly Tex. Rev. Civ. Stat.=20 Ann. art. 2212b, =A7=A7 3, 4(a), now, with intervening = amendments, Tex. Civ. Prac. & Rem. = Code =A7=A7=20 127.001-.007.

^{^[8]}=20 Supra note 3.

^{^[9]}=20 158 S.W.3d at 114-115; see supra note 2 (emphasis=20 added).

^{^[10]}=20 158 S.W.3d at 115; Brief for Respondent 14.

^{^[11]}=20 Supra note 3 (emphasis added).

^{^[12]}=20 158 S.W.3d at 115-116.

^{^[13]}=20 49 Tex. Sup. Ct. J. 7 (Oct. 14, 2005).

^{^[14]}=20 See generally Texas Workers=92 Comp. Comm=92n v. Garcia, = 893 S.W.2d=20 504 (Tex. 1995).

^{^[15]}=20 As originally introduced in the regular session of the 71st Legislature, = the=20 bill to replace the Workers=92 Compensation Act did not carry forward = the=20 provision regarding indemnification agreements in the prior law; the = bill was=20 silent on the subject. Tex. H.B. 1, 71st Leg., R.S. (1989). = But the=20 House added the language that is now section 417.004 by floor amendment = without=20 objection, H.J. of = Tex., 71st=20 Leg., R.S. 466 (1989), and it was included in all bills to replace the = Act=20 introduced in the first and second called sessions, Tex. H.B. 1, 71st = Leg., 1st=20 C.S. (1989); Tex. S.B. 1, 71st Leg., 1st C.S. (1989); Tex. H.B. 4, 71st = Leg., 2d=20 C.S. (1989); Tex. S.B. 2, 71st Leg., 2d C,S. (1989); Tex. S.B. 9, 71st = Leg., 2d=20 C.S. (1989); Tex. S.B. 18, 71st Leg., 2d C.S. (1989), including the = Senate bill=20 that was ultimately enacted, Tex. S.B. 1, 71st Leg., 2d C.S., 1989 Tex. = Gen.=20 Laws 1. During the regular session, after the addition of the = present text=20 on the House floor, a Senate subcommittee staff member stated at a = hearing that=20 =93[t]he third party liability, uh, that, that covers the next several = sections =97=20 and for the most part that is, uh, current law. The one of the big = differences from the current law is the disposition of the attorney=92s=20 fees.=94 Hearing on Senate Committee Substitute to Tex. H.B. 1 = Before the=20 Committee of the Whole Senate, Subcommittee on Workers=92 = Compensation, 71st=20 Leg., R.S., Tape 1 at 21 (April 19, 1989) (transcript available from = Senate=20 Staff Services Office). In the first called session, a House = committee=20 bill analysis stated that the section regarding indemnification = =93[p]rovides that=20 an employer is not liable to a third party for reimbursement or damages = based on=20 a judgment or settlement against the third party for a work-related = injury=20 unless the employer has agreed to assume such liability, as provided = in the=20 current law.=94 House Comm. on=20 Business and Commerce, Bill Analysis, Tex. H.B. 1, at 10, 71st = Leg., 1st=20 C.S. (June 20, 1989) (emphasis added). In the second called = session, when=20 the legislation finally passed, a House committee bill analysis noted no = difference between the indemnity section and prior law, House Comm. on Business and = Commerce, Bill=20 Analysis, Tex. S.B. 1, at 3, 71st Leg., 2d C.S. (Nov. 27, 1989), = and the=20 conference committee report stated simply that the section =93[p]rovides = that an=20 employer is not liable to a third party unless there is a prior written=20 agreement to that effect=94, Conference=20 Comm. Report, Tex. S.B. 1, at 9, 71st Leg., 2d C.S. (Dec. 12,=20 1989). The legislative history contains no other pertinent = references to=20 the provision.

^{^[16]}=20 E.g. Stine v. Stewart, 80 S.W.3d 586, 589 (Tex. 2002) (per = curiam); MCI Telecomms. Corp. v. Texas Utils. Elec. Co., 995 = S.W.2d 647,=20 651 (Tex. 1999); see generally Restatement (Second) of = Contracts =A7 304=20 (1981) (=93A promise in a contract creates a duty in the promisor to any = intended=20 beneficiary to perform the promise, and the intended beneficiary may = enforce the=20 duty.=94).

^{^[17]}=20 Cash Am. Int=92l, Inc. v. Bennett, 35 S.W.3d 12, 16 (Tex. 2000) = (=93A statute=20 that deprives a person of a common-law right will not be extended beyond = its=20 plain meaning or applied to cases not clearly within its purview. =20 Abrogating common-law claims is disfavored and requires a clear = repugnance=20 between the common law and statutory causes of action.=94 (internal = quotations and=20 citation omitted)); Satterfield v. Satterfield, 448 S.W.2d 456, = 459 (Tex.=20 1969) (=93While Texas follows the rule that statutes in derogation of = the common=20 law are not to be strictly construed, it is recognized that if a statute = creates=20 a liability unknown to the common law, or deprives a person of a common = law=20 right, the statute will be strictly construed in the sense that it will = not be=20 extended beyond its plain meaning or applied to cases not clearly within = its=20 purview.=94).

^{^[18]}=20 Tex. Gov=92t Code =A7=20 312.005.

^{^[19]}=20 Generally, the Texas Oilfield Anti-Indemnity Act voids certain = agreements to=20 indemnify against liability for which the indemnitee or contractors = responsible=20 to him are at fault unless the agreement is supported by = insurance. =20 Liability for a mutual indemnity obligation is limited to the amount of = coverage=20 each indemnitor has agreed to obtain, and a unilateral obligation is = limited to=20 $500,000. Tex. Civ. = Prac. &=20 Rem. Code =A7=A7 127.003, .005.

^{^[20]}=20 6 S.W.3d 278, 283-284 (Tex. 1999).

^{^[21]}=20 Id. at 281.

^{^[22]}=20 Id.

^{^[23]}=20 Id.

^{^[24]}=20 Id. at 280.

^{^[25]}=20 Id. at 281, 283-284.

^{^[26]}=20 Id. at 283-284.

^{^[27]}=20 Post at ___.

^{^[28]}=20 Tex. Civ. Prac. & Rem. = Code=20 =A7=A7 127.001-.007.

^{^[29]}=20 Id. =A7=A7 127.001(3), .005.

^{^[30]}=20 Brief for Texas Oil & Gas Ass=92n as Amicus Curiae Supporting = Petitioners=20 7-8.