dissenting from denial of rehearing en banc.
I dissent from the majority’s resolution of points of error four, five, and twelve.
In this case, the only special issues submitted to the jury concerned the division of the couple’s marital property — i.e., constructive fraud. Specifically, those issues were:
QUESTION 1
Did Glenn Vickery breach his fiduciary duty to Helen Vickery concerning the division of the marital property of Helen Vickery and Glenn Vickery?
QUESTION 2
Did Glenn Vickery commit fraud against Helen Vickery in the division of the marital property of Helen Vickery and Glenn Vickery?
*382The jury answered ‘Tes” to both questions.1
The majority opinion correctly states that “[t]he case went to the jury on the issues of breach of fiduciary duty (against Glenn and Richards) and fraud (against Glenn).” Maj. Op. at 4. What the majority fails to acknowledge is that the only fraud claims against Glenn contained in the jury charge relate to his constructive fraud in the division of the couple’s community property. No question regarding actual fraud was ever submitted to the jury.
In a single question regarding damages for both causes of action, the jury awarded Helen monetary damages based on Glenn’s fraud and breach of fiduciary duty during the division of the couple’s community property. In addition, the court granted Helen’s bill of review and made a new division of the Vickerys’ marital property.
In point of error five, Glenn complains, in part, that the questions regarding Glenn’s fraud and breach of fiduciary duty — along with the damage question regarding those same causes of action — were improperly submitted to the jury. Glenn argues the submission provided Helen an additional remedy beyond that granted on her bill of review — namely, a redivision of the community estate. The basis of Glenn’s complaint is that there is no independent cause of action for fraud or breach of fiduciary duty committed by one spouse against the other in the division of the parties’ community property. He asserts that the proper remedy for any fraud or breach of fiduciary duty committed in the division of the couple’s community property is to take those actions into account during a redivision of the couple’s community estate; the injured spouse is not entitled to receive a separate monetary award in addition to the redivision of property. I find Glenn’s contention meritorious and would sustain his fifth point of error.
“Fraud on the community” is defined as “a wrong by one spouse which the court may consider in its division of the estate of the parties and which may justify an unequal division of the property.” Belz v. Belz, 667 S.W.2d 240, 246 (Tex.App.—Dallas 1984, writ ref'd n.r.e.). A trial court may enter a judgment regarding the damages suffered by one spouse as a result of the other spouse’s fraud on the community. This type of recovery, however, is not awarded as separate damages for an independent cause of action. Rather, it provides the defrauded spouse a means of recouping the share of the community property lost as a result of the other spouse’s fraud or breach of fiduciary duty. See Mazique v. Mazique, 742 S.W.2d 805, 808 (Tex.App.—Houston [1st Dist.] 1987, no writ); Belz, 667 S.W.2d at 247.
In Belz, the court wrote:
[A] claim of fraud on the community is a means to an end, either to recover specific property wrongfully conveyed, or ... to obtain a greater share of the community estate upon divorce, in order to compensate the wronged spouse for his or her lost interest in the community estate. In the context of a divorce and property division, fraud on the communi*383ty is a wrong by one spouse which the court may consider in its division of the estate of the parties and which may justify an unequal division of the property. Further ... the court may render a personal judgement against one spouse in order to effect an equitable division of the property and as a means to recoup for the defrauded spouse the value of the property lost from the estate, by reason of the wrongful acts of the other spouse. A judgement for fraud on the community, however, is not one which may stand alone in the absence of a property division pursuant to a termination of a marriage by divorce.
Belz, 667 S.W.2d at 246-47 (citations omitted).
Recently, the Austin Court of Appeals expressly refused to follow Belz and approved the recovery of punitive damages where one spouse asserts against the other a claim of fraud on the community. Schlueter v. Schlueter, 929 S.W.2d 94, 100 (Tex.App.—Austin 1996, n.w.h.). In Schlueter, the Austin court purported to rely on the “direct and unambiguous” language of the Texas Supreme Court in Bounds v. Caudle, 560 S.W.2d 925 (Tex. 1977), Price v. Price, 732 S.W.2d 316, 319 (Tex.1987), and Twyman v. Twyman, 855 S.W.2d 619, 624 (Tex.1993). According to the Schlueter court, the Texas Supreme Court has abrogated the doctrine of inter-spousal immunity for all purposes — “allowing] a spouse to bring any cause of action against his or her spouse.” Schlueter, 929 S.W.2d at 100. With all due respect to the Austin Court of Appeals, I think it interprets the holdings of Bounds, Price and Twyman too broadly. The language of those cases indicates that the Texas Supreme Court did not intend to paint with as broad a brush as the Austin court now wields.
Each of those cases involved one spouse’s attempt to join in their divorce proceeding a claim to recover for personal injuries caused by the other spouse. See Bounds, 560 S.W.2d at 926 (wrongful death); Price, 732 S.W.2d at 316 (negligence action to recover for personal injuries stemming from traffic accident); Twyman, 855 S.W.2d at 620 (intentional infliction of emotional distress). Awards for personal injuries are the separate property of the injured spouse. Tex. Fam. Code Ann. § 5.01(a)(3) (Vernon 1993). Therefore, the cases cited in Schlueter do not address the situation where a spouse seeks to bring a tort claim for damage to the community in conjunction with the divorce proceeding.
Like Belz and Mazique, the case before us involves a tort committed by one spouse against the other with respect to the couple’s community property. There is no allegation of injury to Helen’s separate property. The questions submitted to the jury addressed Glenn’s damage to community assets due to fraud and breach of fiduciary duty. Bounds, Price, Twyman and Schlueter are, therefore, inapplicable.
In fact, the supreme court’s own language in Price and Twyman indicates that those holdings were limited to personal injury torts. In Price, the court stated:
The doctrine of interspousal immunity has previously been abrogated as to some causes of action in this jurisdiction. We now abolish that doctrine completely as to any cause of action. We do not limit our holding to suits involving vehicular accidents only.... To do so would be to negate meritorious claims such as was presented in Stafford v. Stafford, 726 S.W.2d 14 (Tex.1987). In that case a husband had transmitted a venereal disease to his wife, resulting in an infection that ultimately caused Mrs. Stafford the loss of her ovaries and fallopian tubes....
Price, 732 S.W.2d at 319 (citations omitted). Then, in Twyman, the supreme court further commented on the abrogation of interspousal immunity:
In Bounds v. Caudle, this court unanimously abolished the doctrine of inter-spousal immunity for intentional torts.
*384Ten years later, we abrogated inter-spousal immunity “completely as to any cause of action,” including negligence actions for personal injuries. Under the rules established in Caudle and Price, there appears to be no legal impediment to bringing a tort claim in a divorce action based on either negligence or an intentional act such as assault or battery.
Twyman, 855 S.W.2d at 624 (citations and footnotes omitted) (emphasis added). By its own language, the supreme court implicitly recognized the distinction between damage to .the separate property of one spouse by the other, and damage to the couple’s community estate during the division of the marital assets. A claim related to the former is unquestionably an independent cause of action under Bounds, Price and Twyman; a claim related to the latter is not.
I would hold that no independent cause of action for fraud or breach of fiduciary duty exists in this case. See Jimmy L. Verner, Jr., Economic Torts and Double Recovery, in Advanced Family Law COURSE 1995, at V-13 (State Bar of Tex. Profl Dev.1995) (noting that, where the community has been harmed, “the non-tortfeasor spouse cannot press an independent cause of action which would result in recovery exclusively by that spouse because the community estate, not the separate estate of the non-tortfeasor spouse, has been harmed”). Helen’s bill of review was based on Glenn’s conduct surrounding the division of the couple’s community property. The trial court granted Helen’s bill of review and ordered a new division of the community property. She should not have also been awarded monetary damages— much less prejudgment interest on those damages — for Glenn’s actions. Depletion of the community’s assets resulting from Glenn’s fraud or breach of fiduciary duty should have been considered by the trial court when ordering the redivision of the community estate.
Because I would hold there is no independent cause of action in this case, I would also hold there is no basis to support the award of mental anguish damages against Glenn. See In re Marriage of Moore, 890 S.W.2d 821, 829-30 (Tex. App.—Amarillo 1994, no writ). I would, therefore, reverse the trial court’s judgment against Glenn for $1,300,000 in mental anguish damages. In addition, because, without an award for mental anguish, there is no award of actual damages on which to base an award of punitive damages, I would likewise reverse the award of exemplary damages against Glenn in the amount of $1,000,000. See Federal Express Carp. v. Dutschmann, 846 S.W.2d 282, 284 (Tex.1993).
Thus, I would reverse the money judgement against Glenn for mental anguish, punitive damages, and prejudgment interest. The case should be remanded to the trial court for retrial and redivision of community property in accordance with this opinion — taking into consideration any depletion of the community assets resulting from Glenn’s fraudulent conduct and breach of fiduciary duty toward Helen.
I also dissent from the majority’s resolution of Richards’ points of error 1(C) and 1(D). She contends that the evidence is insufficient to support the award of $100,-000 in actual damages to Helen because of Richards’ fraud and breach of fiduciary duty. I agree. The majority’s summary of the evidence reflects that Richards helped Glenn conceal from Helen $1,000,-000 in gold coins and $500,000 in treasury bills. However, after Helen’s bill of review was granted, the trial court’s redivision of the couple’s community property indicates $992,000 in gold coins and $500,000 in treasury bills were among the community assets subject to redivision. Therefore, using the majority’s own figures, it appears that Richards’ conduct caused no more than $8,000 in actual damages to Helen. Because the evidence is insufficient to support the $100,000 award of actual damages *385against Richards, I would also reverse that portion of the trial court’s judgment.
For the reasons stated above, I respectfully dissent.
Do not publish. TexR.App. P. 47.
Judgment rendered and opinion delivered Dec. 4,1997.
. With respect to Helen's bill of review, question five of the charge asked the jury, "[w]as the division of the marital property between Helen Vickery and Glenn Vickery the result of extrinsic fraud by Glenn Vickery unmixed with any negligence on the part of Helen Vickery?” The jury answered, "Yes.” Helen’s bill of review having been granted, she was then entitled to a redivision of the couple's community property.
The language of question five does not indicate — and the majority opinion does not attempt to explain — what conduct by Glenn supported this finding of extrinsic fraud. Extrinsic fraud is present where one spouse conceals material facts from the other spouse, and the defrauded spouse is thereby prevented from asserting some legal right. See Montgomery v. Kennedy, 669 S.W.2d 309, 313 (Tex. 1984). In this case, Glenn concealed from Helen the existence of approximately $1,000,-000 in gold coins which belonged to the community. Therefore, because she did not know that the coins existed, Helen was unable to assert any claim to them.