Opinion filed June 28, 2019

In The

Eleventh Court of Appeals __________

No. 11-17-00130-CV

__________

FRANCIS GONZALES, INDIVIDUALLY AND AS SURVIVING 

WIDOW OF CARLOS GONZALES, Appellant

V.

BRAD WILLIAMS D/B/A BRAD WILLIAMS FARMS, Appellee

On Appeal from the 106th District Court

Dawson County, Texas

Trial Court Cause No. 15-05-19588

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

Appellant, Francis Gonzales, individually and as surviving widow of Carlos 

Gonzales,1 appeals the trial court’s order granting summary judgment in favor of 

Appellee, Brad Williams d/b/a Brad Williams Farms. Appellant filed suit against 

Appellee for negligence and gross negligence arising out of a single-vehicle accident 

 1

We will refer to Francis Gonzales as “Appellant,” and we will refer to Carlos Gonzales as 

“Gonzales.” 
2

that resulted in Gonzales’s death. In a single issue, Appellant contends that the trial 

court improperly granted summary judgment in favor of Appellee. We affirm. 

Background Facts

Carlos Gonzales was involved in a single-vehicle rollover accident involving 

a 1987 Freightliner that occurred near O’Donnell. It is undisputed that, at the time 

of the accident, Gonzales was acting within the course and scope of his employment 

with Appellee. Gonzales died from his injuries while being transported to a hospital. 

Appellant filed a wrongful death lawsuit against Appellee for negligence and gross 

negligence. 

Appellee was a nonsubscriber under the Texas Workers’ Compensation Act.

In reliance upon a statutory defense in the Act, Appellee filed a traditional motion 

for summary judgment alleging that Gonzales was intoxicated as a matter of law

because Gonzales had multiple controlled substances in his body at the time of the 

accident. See TEX. LAB. CODE ANN. § 406.033(c)(2) (West 2015). Appellee 

supported the allegation with a toxicology report produced by Dr. Patricia Rosen and 

an autopsy report, which Appellee included as a part of his summary judgment 

evidence. The autopsy report, which included a blood test, noted that Gonzales had 

amphetamine, methamphetamine, and fentanyl in his blood at the time of the 

accident. Dr. Rosen’s toxicology report concluded that, based on the level and ratio 

of methamphetamine in Gonzales’s blood, Gonzales “had to have introduced 

methamphetamines into his body prior to [the] accident and his death. The amounts 

indicate voluntary introduction and the substance is a controlled substance[.]” Thus, 

Appellee asserted that Appellant’s claims against Appellee were barred as a matter 

of law because Gonzales was intoxicated.

Appellant timely filed a response to Appellee’s motion for summary 

judgment, alleging that a fact issue existed as to whether Gonzales was intoxicated. 

Appellant’s argument was based solely on the affidavit of Texas Department of 
3

Public Safety Trooper Joshua Loftin, which detailed conversations Trooper Loftin

had with Appellee and another witness, Alejandro Esparza, sometime after the 

accident. Trooper Loftin recalled that Appellee had said that, at breakfast on the 

morning of the accident, Gonzales “appeared to be normal and there were no 

indications that there was anything wrong” with his physical or mental abilities. 

 The trial court initially heard Appellee’s motion for summary judgment on 

January 2, 2016. Both Appellant and Appellee appeared, through their attorneys, at 

this hearing.

2

 At the end of the hearing, the trial court expressed concern that the 

only evidence offered to rebut Appellee’s argument that Gonzales was intoxicated 

at the time of the accident was Trooper Loftin’s affidavit. However, the trial court 

decided to “leave [the] motion for summary judgment open” to consider later after 

the parties had additional time to develop evidence. 

Over a year later, the trial court set another hearing on Appellee’s motion for 

summary judgment. The trial court set the hearing for February 22, 2017, in an order 

entered on February 8, 2017. Appellant filed a motion to set aside the hearing, 

arguing that, pursuant to Rule 166a(c) of the Texas Rules of Civil Procedure, she did 

not receive twenty-one days’ notice before the hearing. Appellant also asserted that 

the consideration of Appellee’s motion for summary judgment was premature 

because additional discovery had not been completed since the first hearing.

Appellee responded to Appellant’s motion, asserting that he had complied 

with Rule 166a(c) by timely filing his motion for summary judgment and supporting 

affidavits before the first hearing in January 2016. Appellee asserted that he was not 

 2

The Texas Supreme Court has held that a reporter’s record is neither necessary nor appropriate to 

the purposes of a summary judgment hearing. Schneider Nat’l Carriers, Inc. v. Bates, 147 S.W.3d 264, 

292 n.141 (Tex. 2004). Irrespective of this directive, the parties have filed a reporter’s record for two 

hearings held on Appellee’s motion for summary judgment. We have been aided by the reporter’s record 

because it permits us to review the parties’ arguments concerning notice. The reporter’s record has also 

provided us with the details of the trial court’s rulings at each hearing. We have not considered the 

reporter’s record for determining the merits of Appellee’s motion for summary judgment.
4

required to provide twenty-one days’ notice for the February 2017 hearing because 

Appellee was “not submitting a new motion for summary judgment” but, rather, was 

“requesting a re-hearing on the same motion that was heard last year.” 

The trial court conducted the second summary judgment hearing on 

February 22, 2017. Appellant did not present any additional summary judgment 

evidence. After hearing the arguments of counsel, the trial court concluded that no 

fact issue existed and that Gonzales was intoxicated at the time of the accident. 

Accordingly, the trial court granted Appellee’s motion for summary judgment. 

Analysis

In a single issue on appeal, Appellant asserts that the trial court erred in 

granting Appellee’s traditional motion for summary judgment. Appellant presents

two arguments in support of her sole issue on appeal: (1) Appellant did not have 

reasonable notice of the second summary judgment hearing and (2) there were 

genuine issues of material fact that precluded summary judgment. We review a

summary judgment de novo. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 

(Tex. 2010). When the trial court’s order fails to specify the grounds for its summary 

judgment, we will affirm if any of the theories are meritorious. Provident Life & 

Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003). 

A party moving for traditional summary judgment bears the burden of proving 

that there is no genuine issue of material fact as to at least one essential element of 

the cause of action being asserted and that it is entitled to judgment as a matter of 

law. TEX. R. CIV. P. 166a(c); Nassar v. Liberty Mut. Fire Ins. Co., 508 S.W.3d 254, 

257 (Tex. 2017). If the movant initially establishes a right to summary judgment on 

the issues expressly presented in the motion, then the burden shifts to the nonmovant 

to present to the trial court any issues or evidence that would preclude summary 

judgment. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678–

79 (Tex. 1979). When reviewing a traditional motion for summary judgment, we 
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review the evidence in the light most favorable to the nonmovant, indulge every 

reasonable inference in favor of the nonmovant, and resolve any doubts against the 

motion. City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005).

Appellant argues that summary judgment was improper because she did not 

receive “reasonable notice” and that the trial court erred “in not setting aside the 

hearing due to Appellant’s specific objection on the lack of twenty-one (21) day 

notice.” In her motion to set aside the summary judgment hearing, Appellant 

asserted that she was “entitled to twenty-one (21) days’ notice before the hearing.” 

The trial court disagreed with Appellant’s contention by noting that the hearing in 

February 2017 was not another hearing but rather was a continuation of the prior 

hearing. 

Except on leave of court, Rule 166a(c) requires a motion for summary 

judgment to be filed and served at least twenty-one days before the time specified 

for hearing. TEX. R. CIV. P. 166a(c). This rule requires at least twenty-one days’ 

notice of the hearing on a motion for summary judgment regardless of how far in 

advance of the hearing the nonmovant receives the motion itself. Winn v. Martin 

Homebuilders, Inc., 153 S.W.3d 553, 555 (Tex. App.—Amarillo 2004, pet. denied)

(citing Chadderdon v. Blaschke, 988 S.W.2d 387 (Tex. App.—Houston [1st Dist.] 

1999, no pet.)). The Amarillo Court of Appeals addressed a similar situation in 

Winn. The trial court in Winn conducted a subsequent hearing to reconsider its 

previous ruling on a motion for summary judgment. Id. at 555–56. The court of 

appeals determined that the second hearing did not require twenty-one days’ notice. 

Id. at 556. The court based its holding in part on the principal that a ruling on a 

motion for summary judgment is interlocutory and may be changed or modified 

before final judgment is rendered without a further motion or prior notice to the 

parties. Id. 
6

We agree with the reasoning in Winn and find that it is applicable to the 

circumstances in this case. There is no dispute that Appellant was provided with the 

requisite twenty-one days’ notice of the first hearing on Appellee’s motion for 

summary judgment. That hearing concluded without the trial court entering a ruling 

on the motion. Instead, the trial court invited the parties to submit additional 

summary judgment evidence as discovery occurred in the case. Over a year later, 

the trial court again considered Appellee’s motion for summary judgment. As was 

the case in Winn, the second hearing to reconsider the pending motion for summary 

judgment did not require twenty-one days’ notice to the parties. 

 Appellant also asserts that summary judgment was improper because there 

were genuine issues of material fact as to whether Gonzales was legally intoxicated

at the time of the accident. Appellant contends that (1) the affidavit of 

Trooper Loftin, (2) a statement made in Dr. Rosen’s toxicology report, and 

(3) Appellant’s answers to Appellee’s interrogatories created a genuine issue of fact 

as to Appellee’s affirmative defense of intoxication. Conversely, Appellee asserts 

that the trial court properly granted summary judgment in favor of Appellee because 

Appellant failed to raise a fact issue to rebut his probative evidence of intoxication. 

Section 406.033 of the Labor Code, “which is part of the Workers’ 

Compensation Act, governs an employee’s personal-injury action against his or her 

employer, when the employer is a nonsubscriber under the Act.” Kroger Co. v. 

Keng, 23 S.W.3d 347, 349 (Tex. 2000); see LAB. §§ 401.001–419.007 (West 2015 

& Supp. 2018). Appellee was not a subscriber under the Workers’ Compensation 

Act. “To encourage employers to obtain workers’ compensation insurance, section 

406.033 penalizes nonsubscribers by precluding them from asserting certain 

common-law defenses in their employees’ personal-injury actions.” Kroger Co., 23 

S.W.3d at 349; see LAB. § 406.033(a). However, “section 406.033(c) dictates the 

defenses that implicate the employee’s conduct and on which an employer may 
7

rely.” Kroger Co., 23 S.W.3d at 351; see LAB. § 406.033(c). These are “by an act 

of the employee intended to bring about the injury” or “while the employee was in 

a state of intoxication.” LAB. § 406.033(c). 

The relevant definition of intoxication as provided in Section 401.013(a)(2)(B) 

of the Labor Code is as follows:

(2) not having the normal use of mental or physical faculties 

resulting from the voluntary introduction into the body of: 

. . . .

(B) a controlled substance or controlled substance 

analogue, as defined by Section 481.002, Health and

Safety Code.

Id. § 401.013(a)(2)(B). A controlled substance “means a substance, including a 

drug, an adulterant, and a dilutant, listed in Schedules I through V or Penalty 

Group 1, 1-A, 2, 2-A, 3, or 4.” TEX. HEALTH & SAFETY CODE ANN. § 481.002(5)

(West 2017). A controlled substance analogue means the following:

 (A) a substance with a chemical structure substantially similar to 

the chemical structure of a controlled substance in Schedule I or II or 

Penalty Group 1, 1-A, 2, or 2-A; or 

(B) a substance specifically designed to produce an effect 

substantially similar to, or greater than, the effect of a controlled 

substance in Schedule I or II or Penalty Group 1, 1-A, 2, or 2-A. 

Id. § 481.002(6)(A)–(B). In cases involving controlled substances, “there is no level 

or test defined by the statute that establishes per se if a person has lost use of his or 

her physical and mental faculties.” Tex. Mut. Ins. Co. v. Havard, No. 01-07-00268-

CV, 2008 WL 598347, at *3 (Tex. App.—Houston [1st Dist.] Mar. 6, 2008, no pet.)

(mem. op.); see Am. Interstate Ins. Co. v. Hinson, 172 S.W.3d 108, 115 (Tex. App.—

Beaumont 2005, pet. denied). The statutory standard for controlled substances, such 

as methamphetamine, is relatively subjective. See Am. Interstate Ins. Co., 172 

S.W.3d at 115; LAB. § 401.013(a)(2). 
8

If an employer “rebuts the presumption of sobriety with probative evidence of 

intoxication, the burden shifts to the employee to prove that he was not intoxicated 

at the time of injury.” Tex. Mut. Ins. Co., 2008 WL 598347, at *3. The Texas Labor 

Code provides: “On the voluntary introduction into the body of any [controlled 

substance], based on a blood test or urinalysis, it is a rebuttable presumption that a 

person is intoxicated and does not have the normal use of mental or physical 

faculties.” LAB. § 401.013(c). 

Appellee introduced summary judgment evidence that Gonzales was 

intoxicated as defined by Section 401.013(a)(2)(B) of the Labor Code through the 

autopsy report and Dr. Rosen’s toxicology report. The autopsy report indicated that 

Gonzales had 37 ng/mL of amphetamine, 450 ng/mL of methamphetamine, and 0.34 

ng/mL of fentanyl in his blood. Amphetamine is a Schedule III controlled substance. 

21 U.S.C. § 812. Methamphetamine is listed in Schedules II and III, depending on 

the form of the substance, as well as Penalty Group 1. Id.; HEALTH & SAFETY 

§ 481.102(6)(West Supp. 2018). Fentanyl is a Schedule II controlled substance. 21 

U.S.C. § 812.

Dr. Rosen concluded that, based on the levels of amphetamine, 

methamphetamine, and fentanyl in Gonzales’s blood, Gonzales “had to have 

introduced methamphetamines into his body prior to [the] accident and his death. 

The amounts indicate voluntary introduction.” The toxicology report noted that 

methamphetamine and fentanyl are controlled substances and that amphetamine is 

an analogue. Dr. Rosen further explained:

Methamphetamine and amphetamine are known to cause impairment 

and difficulty driving a vehicle. Note that Fentanyl is a sedative pain 

killer and would also cause difficulty driving a vehicle in someone who 

does not have significant tolerance to this drug. 

. . . .
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. . . [I]t is . . . likely that Mr. Gonzales had used 

Methamphetamine recently and that his impairment would have 

resulted in intense, distracting and overwhelming rapid flow of ideas 

with excitation, panic and potentially perceptual distortion, 

hallucinations and delusions. There is a significant decline in 

concentration and inability to divide attention following use of 

methamphetamine. Following use of this drug there are errors in 

judgement and perception. 

Based on the autopsy and toxicology report, we conclude that Appellee, a 

nonsubscriber under the Workers’ Compensation Act, rebutted the presumption of 

sobriety with probative evidence of Gonzales’s intoxication under 

Section 401.013(a)(2) of the Labor Code. See Tex. Mut. Ins. Co., 2008 WL 59837, 

at *3. Therefore, the burden shifted to Appellant to prove that Gonzales was not 

intoxicated at the time of his injury. LAB. § 406.033(c). 

Appellant contends that the affidavit of Trooper Loftin created a genuine issue 

of material fact as to whether Gonzales had the normal use of his mental or physical 

faculties at the time of his injury. Trooper Loftin was one of the troopers who

investigated the accident. The affidavit notes that sometime after the accident,

Trooper Loftin spoke with Appellee and Alejandro Esparza, the passenger in the 

vehicle that Gonzales was operating at the time of the accident. In the affidavit, 

Trooper Loftin states that he recalled Appellee telling him that Appellee, Gonzales, 

and Esparza “met early for breakfast” on the day of the accident. Trooper Loftin 

notes in his affidavit:

During the breakfast[,] Carlos Gonzales[] appeared to be happy and in 

good spirits. Physically and mentally[,] he appeared to be normal and 

there were no indications that there was anything wrong with Carlos 

Gonzales[’s] physical or mental abilities. 

Finally, Trooper Loftin notes that Appellee and Esparza did not express concern 

regarding Gonzales’s ability to operate the vehicle.
10

Trooper Loftin’s affidavit does not specify what time Gonzales, Appellee, and 

Esparza allegedly ate breakfast together on the day of the accident. The affidavit

does not provide any indication of whether it was a matter of minutes or hours 

between the breakfast—where Gonzales allegedly appeared to have the normal use 

of his mental and physical faculties—and the accident, at which time he was 

intoxicated. As such, Trooper Loftin’s affidavit does not raise a genuine issue of 

material fact as to whether Gonzales was intoxicated at the time of the accident. 

Appellant also asserts that there is evidence that the accident was caused by 

faulty breaks on the vehicle that Gonzales was operating—rather than intoxication. 

Specifically, Appellant points to her answer to Appellee’s Interrogatory No. 20, in 

which she asserted that the vehicle had faulty brakes and no inspection sticker. 

However, “a party cannot rely on its own answer to an interrogatory as summary 

judgment evidence.” Morgan v. Anthony, 27 S.W.3d 928, 929 (Tex. 2000). 

Appellant also contends that the investigating officers concluded that the cause of 

Gonzales’s accident was the vehicle’s faulty brakes. The Texas Peace Officer’s 

Crash Report, attached to Trooper Loftin’s affidavit, included the “Investigator’s

Narrative Opinion of What Happened”:

Unit #1 was traveling Southbound on FM 2370. The driver of Unit #1 

attempted to stop at the intersection, but the brakes failed on the truck 

causing him to disregard the stop sign at the intersection, take faulty 

evasion action to the left, and roll Right Over Top through a fence. Unit 

#1 came to rest upright in the South barrow ditch facing Northwest. 

Appellant also notes that the same crash report is referenced by Dr. Rosen in her 

toxicology report. 

However, causation is not relevant to the intoxication defense. See LAB.

§ 406.033(c)(2); Kroger Co., 23 S.W.3d at 350. We previously noted that “the 

question is not whether intoxication caused [the decedent’s] injuries. Instead, the 

question is simply whether [the decedent’s] injury occurred while he was in a state 
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of intoxication.” Unique Staff Leasing, Ltd. v. Cates, 500 S.W.3d 587, 592 (Tex. 

App.—Eastland, 2016, pet. denied). Although Unique Staff Leasing involved a 

subscriber to the Workers’ Compensation Act, we note that the language in 

Section 406.032 of the Labor Code, which provides the defenses available to 

insurance carriers, is substantially similar to the language in Section 406.033, which 

provides the defenses available to nonsubscribers. See LAB. §§ 406.032(1)(A), 

.033(c)(2) (compare Section 406.032(1)(A), which states that “[a]n insurance carrier 

is not liable for compensation if . . . the injury . . . occurred while the employee was 

in a state of intoxication” to Section 406.033(c)(2), which states that “[t]he employer 

may defend the action on the ground that the injury was caused . . . while the 

employee was in a state of intoxication”); see also Unique Staff Leasing, 500 S.W.3d 

at 592. Therefore, unrebutted proof of intoxication at the time of a work-related 

injury is all that is required to bar a plaintiff’s claims arising out of such injury. See 

LAB. § 406.033(c)(2); Kroger Co., 23 S.W.3d at 350 (“Section 406.033 further 

identifies the defenses that implicate the employee’s conduct and on which a 

nonsubscribing employer may rely: the employee intended to bring about the injury, 

or the injury occurred while the employee was intoxicated.”). As such, Appellant’s 

argument that she provided evidence that the vehicle’s faulty brakes caused the 

accident is irrelevant to whether Gonzales was intoxicated at the time of the accident. 

We thus conclude that Appellant has not presented any evidence raising a 

genuine issue of material fact as to whether Gonzales was intoxicated at the time of 

his injury. See LAB. § 401.013(a), (c). Appellee established his right to summary 

judgment on his affirmative defense of intoxication against all of Appellant’s claims

by providing probative evidence of Gonzales’s intoxication. Tex. Mut. Ins. Co., 

2008 WL 598347, at *3. Appellant failed to rebut Appellee’s evidence of 

intoxication and, as such, failed to present any evidence that would preclude 

summary judgment. See id.; see also City of Houston v. Clear Creek Basin Auth., 
12

589 S.W.2d 671, 678–79 (Tex. 1979). Accordingly, the trial court did not err in 

granting Appellee’s motion for summary judgment. We overrule Appellant’s sole 

issue on appeal.

This Court’s Ruling

We affirm the order of the trial court.

JOHN M. BAILEY 

CHIEF JUSTICE

June 28, 2019

Panel consists of: Bailey, C.J.,

Stretcher, J., and Wright, S.C.J.3

Willson, J., not participating.

 3

Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland, 

sitting by assignment.