author: POPE, Justice. STEAKLEY, Justice

text:
    ALAMO EXPRESS, INC., et al., Appellants, v. RAILROAD COMMISSION of Texas and Missouri Pacific Truck Lines, Inc., Appellees.
    No. A-11012.
    Supreme Court of Texas.
    Oct. 12, 1966.
    Rehearing Denied Nov. 16,1966.

      Felts & Robinson, Ewell H. Muse, Jr., Austin, Rawlings, Sayers, Scurlock & Eid-son, Fort Worth, James, Robinson & Starnes, Austin, for appellants.
    William R. McDowell, Dallas, Clark, Thomas, Harris, Denius & Winters, Austin, Kelley, Looney, McLean & Littleton, Edin-burg, Waggoner Carr, Atty. Gen., Austin, Sam L. Kelley and Hawthorne Phillips, Asst. Attys. Gen., for appellees.
   POPE, Justice.

This is a direct appeal from an order of the trial court which upheld the validity of a Railroad Commission order. Article 1738a, Vernon's Ann. Tex. Civ. St. Missouri Pacific Truck Lines, Inc. applied for an amendment to its common carrier certificate which would authorize it to use an alternate route between Houston and San Antonio. It already had authority to operate between Houston and San Antonio over a route that was seventy-eight miles longer. The Commission authorized the amendment so Missouri Pacific could operate over Highway 90 with closed doors between those two termini but permitted a joinder at those termini with Missouri Pacific’s authorized routes west of San Antonio and east of Houston. The trial court upheld the validity of the order and refused to enjoin the issuance of the amended certificate. Seven protesting carriers urge that the Commission order is void because it did not comply with Section 5a(d) of Article 911b, which requires full and complete findings of fact which support the order, and also because the order is not reasonably supported by substantial evidence. We affirm the judgment of the trial court.

Section 5a(d) requires the Commission to set forth in its order full and complete findings of fact. Missouri Pacific contends that it is a regular route common carrier, that Section 5a (d) governs orders granting certificates to specialized motor carriers, but that Section 12(a) of the Motor Carrier Act governs orders on applications for regular route common carriers such as Missouri Pacific. Section 12(a) provides only that the order be accompanied by a concise written opinion. The order in question makes full findings about many matters which the protesting carriers do not attack. The findings which are attacked as too general are those set forth in the margin.

The history of the Motor Carrier Act, the construction of the statutes, and former decisions convince us that an order granting a certificate for a regular route common carrier is controlled by Section 12 (a) instead of Section Sa(d). The two sections provide in part:

Section 5a (d). “The order of the Commission granting said application and the certificate issued thereunder shall be void unless the Commission shall set forth in its order full and complete findings of fact pointing out in detail the inadequacies of the services and facilities of the existing carriers, and the public need for the proposed service.”
Section 12(a). “After hearing and such investigation as the Commission may make, it shall be the duty of the Commission to grant or refuse the application, and, in any contested hearing, the Commission shall, along with its order, file a concise written opinion setting forth the facts and grounds for its action, * *

In 1929 the Texas Legislature for the first time undertook the regulation of motor freight carriers over Texas highways. Acts 41st Leg.Reg.S ess. 1929, Ch. 314, p. 698. In 1931 the Motor Carrier Act was substantially amended. Acts 42nd Leg.Reg. Sess.1931, Ch. 277, p. 480. By the 1931 Act, regular route common carriers were required to prove public convenience and necessity. Sections 8, 9, 10, 11, and 12 of the Act stated in some detail the procedures that an applicant for a certificate as a regular route common carrier must follow. Section 12(a) was a part of the 1931 Act. The 1929 and 1931 Acts authorized a class of carriers known as special commodity carriers. Such carriers operated upon irregular routes, did not have fixed schedules, transported commodities that required special equipment and were not regarded as common carriers. The requirements for applicants for special commodity permits were different from those of regular route common carrier certificates.

In 1941 the Legislature enacted the Specialized Motor Carrier Act. Acts 47th Leg.Reg.Sess., Ch. 442, p. 713. The purpose of the Act was to create and regulate the holders of and applicants for permits and certificates as specialized motor carriers-as a new class of common carrier. The 1941 Act made substantial changes in and additions to the regulation of irregular route carriers of commodities which required special equipment. The Act contained seven sections, all of which related to special commodity carriers. Section 1 declared that the policy of the Act was “to create a class of common carrier motor carriers designated as ‘specialized motor carriers.’ ” Section 7 of the Act said that an emergency existed because carriers of special commodities were not regulated according to the needs of the general public. In other words, the purpose of the 1941 Act was to make provisions for the regulation of special commodity carriers. The provisions for issuance of certificates to the new class appear in Section 5a, Article 911b, V.T.C.S. Procedures for applicants for certificates as regular route common carriers, found in Sections 8 through 12, Article 911b, were undisturbed and unrepealed. We see, therefore, that the procedures for the regulation of the two classes of common carriers have different legislative origins and are contained in separate sections of the Motor Carrier Act. Procedures respecting the two-classes of carriers are and always have been different in many ways.

The protesting carriers’ argument is that the phrase “or any other common carrier” contained in Sections 5a (c) and 5a (d) extends the more stringent requirement as to findings to regular route common carriers. Such a construction would require an implied repeal of Section 10 of the Motor Carrier Act, and would leave the procedure for applications and hearings for regular route common carriers in confusion. Sections 5a (c), 5a (d) and 10 must be examined. They, with italics added, are:

“5a (c). The Commission shall have no jurisdiction to consider, set for hearing, hear, or determine any application for a certificate of convenience and necessity authorizing the operation of a ‘specialized motor carrier’ or any other common carrier except as provided in the preceding paragraph unless the application shall be in writing and set forth in detail the following facts:
“1. It shall contain the name and address of the applicant, who shall be the real party at interest, and the names and addresses of its officers, if any, and shall give full information concerning the financial condition and physical properties of the applicant.
“2. The commodity or commodities or class or classes of commodities which the applicant proposes to transport and the specific territory or points to, or from, or between which the applicant desires to ■operate, together with the description of each vehicle which the applicant intends to use.
“3. It shall be accompanied by a map, showing the territory within which, or the points to or from or between which, the applicant desires to operate, and shall contain a list of any existing transportation company or companies serving such territory, and shall point out the inadequacy of existing transportation facilities or service, and shall specify wherein additional facilities or service are required and would be secured by the granting of said application.
“5a(d). Before any such application shall be granted, the Commission shall hear, consider and determine said, application in accordance with Sections 8, 9, 11, 12, 13, 13a, 14, and 15 of Chapter 277, Acts of the Forty-first Legislature, Regular Session, as amended (Article 911b, Revised Civil Statutes of the State of Texas, 1925, as amended), and if the Commission shall find any such applicant entitled thereto, it shall issue certificate hereunder on such terms and conditions as is justified by the facts; otherwise said application shall be denied. The Commission shall have no authority to grant any application for a certificate of convenience and necessity authorizing operation as a ‘Specialized Motor Carrier' or any other common carrier unless it is established by substantial evidence (1) that the services and facilities of the existing carriers serving the territory or any part thereof are inadequate; (2) that there exists a public necessity for such service, and (3) the public convenience will be promoted by granting said application. The order of the Commission granting said application and the certificate issued thereunder shall be void unless the Commission shall set forth in its order full and complete findings of fact pointing out in detail the inadequacies of the services and facilities of the existing carriers, and the public need for the proposed service. Likewise, the Commission shall have no authority to grant any contract carrier application for the transportation of any commodities in any territory or between any points where the existing carriers are rendering, or are capable of rendering, a reasonably adequate service in the transportation of such commodities.”
“Sec. 10. No application for a certificate of public convenience and necessity shall be considered by said Commission unless it be in writing and set forth the following facts:
“(1) It shall contain the name and. address of the applicant and the names; and addresses of its officers, if any,, and shall give full information concerning the financial condition and physical. properties of the applicant.
“(2) The complete route or routes; over which the applicant desires to operate, together with the description of' each vehicle which the applicant intends to use.
“(3) A proposed schedule of service and a schedule of rates to be charged between the several points or localities to be served.
“(4) It shall be accompanied by a plat or map showing the route or routes over which the applicant desires to operate, on which plat or maps shall be delineated the line or lines of any existing transportation company or companies serving such territory, and shall point out the inadequacy of existing transportation facilities or service, and shall specify wherein additional facilities or service are required and would be secured by the granting of said application.”

In spite of the broad and inclusive statement in Section 5a (c) that an application by any common carrier must include the information stated, the only construction which will avoid confusion is one that makes the provision applicable to all common carriers except those provided for in another unrepealed section of the Motor Carrier Act. The more reasonable construction of the whole act, therefore, is that an applicant for a special commodity certificate must comply with Section 5a(c) and an applicant for a regular route common carrier certificate must comply with Section 10. Section 5a (c) requires information which is material to special commodity carriers, but it omits important matters which are essential to regular route carriers. Section 10, on the other hand, requires information which is vital to regular route carriers but is immaterial to special commodity carriers. Neither section purports to satisfy the requirements of all common carriers. Each describes a different kind of common carrier.

Section 5a(c) states that an application must set forth, among other matters, the commodity or commodities which the applicant proposes to transport, the territory in which the applicant desires to operate, and a map showing the territory or points between which the applicant desires to operate. The section requires information suitable to an irregular route carrier. It has no requirements that the application show the routes, schedules of service and schedules of rates. That information is relevant to and required of an applicant for a regular route common carrier. Section 10, Article 911b. Section 5a(c), in context with the whole act, states the requirements for an application for common carriers that do not operate over regular routes and on fixed schedules. Section 10 states the requirements for regular route common carriers.

Section 5a(d) repeatedly uses the terms “such application,” “said application,” and “such applicant.” The section immediately follows Section 5a(c), and the sense of the phrases is that they refer to the kind of an application discussed in the immediately preceding Section 5a(c). That would be an application for a special commodity certificate, and not an application for a regular route common carrier certificate. Moreover, Section 5a(d), after referring to the application required by 5a (c), in its first sentence shows that in most respects “such application” will be considered in the same way as one for a regular route common carrier but that the application itself shall be different. The sentence states that “the Commission shall hear, consider and determine said application in accordance with Sections 8, 9, 11, 12, 13, 13a, 14, and 15 * * * ” of the Motor Carrier Act. Section 10 is omitted. This shows that “such application” as used in Section 5a(d) refers to the kind of application described in Section 5a(c), but not the kind described in Section 10. The phrase refers to an application for special commodity carriers and not to one for a regular route common carrier.

The second sentence in Section 5a (d) broadly applies to “any application * * * as a ‘Specialized Motor Carrier’ or any other common carrier * * *.” The sentence, however, concerns the measure of proof which all carriers must meet. It requires all classes of common carriers to prove the inadequacy of service, public necessity and public convenience, and to do so by substantial evidence. Regular route common carriers were already required to meet that standard of proof and the 1941 Act was making clear that all carriers from that time forward would be required to prove their applications by substantial evidence. That sentence does not, however, depend upon or refer to Section 5a (c). The next sentence is: “The order of the Commission granting said application and the certificate issued thereunder shall be void unless the Commission shall set forth in its order full and complete findings of fact pointing out in detail the inadequacies of the services and facilities of the existing carriers, and the public need for the proposed service.” The sense of the sentence from all of Section 5a(d) is that the words, “said application” are used for the same purpose as they were used four other times in the same section, to refer to the application to operate as a specialized motor carrier as described in the preceding Section 5a(c).

This Court has previously held that orders which grant certificates to specialized motor carriers must comply with Section 5a(d) and must fully and completely state the findings of fact. Miller v. Railroad Commission, 363 S.W.2d 244 (Tex.Sup.1963) ; Thompson v. Railroad Commission, 150 Tex. 307, 240 S.W.2d 759 (1951); Thompson v. Hovey Petroleum Co., 149 Tex. 554, 236 S.W.2d 491 (1951). On the other hand, several opinions of the Courts of Civil Appeals have held that Section 5a(d) does not govern orders concerning regular route common carriers but that Section 12(a) does. Merchant’s Fast Motor Lines, Inc. v. Red Ball Motor Freight, Inc., 322 S.W.2d 35 (Tex. Civ. App. 1959, writ ref. n. r. e.); Railroad Commission v. Herrin Transportation Co., 262 S.W.

This Court delivered its opinion in Hovey on February 7, 1951, and its opinion in Thompson on May 9, 1951. Those cases concerned specialized motor carrier certificates and the Court required compliance with Section 5a(d). In March of 1951, between the time that those cases were decided, Merchant’s Fast Motor Lines v. Newman was pending in this Court on application for writ of error. The contention was made in that application that Section 5a(d) also governed regular route common carriers. Merchant’s Fast Motor Lines filed a supplemental petition and cited Hovey in support of the point. On May 16, the Supreme Court refused the writ with the notation, no reversible error. Although the Court had just decided that Section 5a (d) required orders for specialized motor carriers to be supported by full and complete findings, it did not disturb the clear holding by the intermediate court that Section 12(a) governed regular route common carriers.

The protesting carriers rely upon Miller v. Railroad Commission, supra, and language contained in Alamo Express, Inc. v. Union City Transfer, 158 Tex. 234, 309 S.W.2d 815 (1958). Those cases concerned specialized motor carriers, and under any construction, were governed by Section 5a(d). Neither case presented the issue that is now before this Court. The protesting carriers also rely upon Miller, Thompson,' and Hovey, cited above, as authority for striking down the order for its generality. Even applying the rule of those cases, the order here in question would not be governed by those decisions. In Miller, the finding of fact was embodied in a single sentence, which was clearly inadequate. In Thompson, the order contained a recital of the evidence but no findings of fact from the evidence. In Hovey, railroads as well as motor carriers protested the grant of additional authority to an applicant. The order found that an inadequate number of tank cars were furnished by the railroads but wholly failed to find that an inadequate number of tank trucks were furnished by the protesting motor carriers. It was a case of no finding at all upon the material issues. We conclude, therefore, the order of the Commission must be tested by Section 12(a) and that it met that test.

We regard the Commission’s grant of the alternate route to Missouri Pacific as the grant of new authority. Railroad Commission of Texas v. Jackson, 157 Tex. 32, 299 S.W.2d 266 (1957). It is our opinion also that the order is reasonably supported by substantial evidence of the inadequacy of existing services and that public convenience and necessity will be served by the new authority. The record in the case is voluminous with more than three thousand pages in the statement of facts in addition to numerous documents. Eleven carriers serve points on Highway '90 between San Antonio and Houston in addition to Missouri Pacific whose service was along another but more circuitous route between those termini. Thirty-five shippers and receivers of freight between the two termini testified that the existing service was inadequate and unsatisfactory. Their complaints about the companies already serving the route were many. Some •carriers were unable to perform single-line services or overnight services. The wit-messes testified that existing carriers refused to pick up shipments or failed to pick them up. There were complaints of •damages and loss to shipments, failure to furnish equipment, faulty equipment, and failures to make deliveries when required. These and other complaints were expressed by a large number of the heaviest shippers between the two termini.

Extensive economic data showed the growth of the two termini. Data about populations, the number of manufacturing establishments, the number of employees, the number of retail establishments, and the increase in sales per year showed that the industrial and commercial development at the two termini has outdistanced the transportation services afforded. No new •motor carrier authority has been granted •since 1954. Since that time the markets have expanded four or fivefold.

The protesting carriers urge that the testimony is general in nature, shows preferences and desires of shippers rather than material inadequacy and need. They also urge that the applicant must prove that each of the eleven existing carriers is affording inadequate service. Missouri Pacific’s brief has catalogued the testimony in so far as it applies to inadequacy of services presently afforded by each of the carriers that appealed as well as five other carriers that did not protest the application. From the entire record, we conclude that the Commission’s order is reasonably supported by substantial evidence.

The judgment of the trial court is affirmed.

STEAKLEY, J., dissents to this opinion.

STEAKLEY, Justice

(dissenting).

I respectfully dissent.

Missouri Pacific Truck Lines, Inc., the trucking subsidiary of Missouri Rail Lines, applied to the Railroad Commission for a certificate of public convenience and necessity to operate as a common carrier motor carrier between Houston and San Antonio over U. S. Highway 90, serving no intermediate points, with joinder of this authority so as to render a through service over Highway 90 between other points on other routes which Missouri Pacific is presently authorized to serve. Missouri Pacific presently serves Houston and San Antonio over a circuitous route from Houston and Navasota over Farm-to-Market roads 149 and 1174, from Navasota to Hearne over State Highway 6, from Hearne to Roúnd Rock over U. S. Highway 79, from Round Rock to Austin over an unnumbered county road and U. S. Highway 81, and from Austin to San Antonio over U. S. Highway 81. It also serves points beyond Houston and San Antonio such as Beaumont, Orange, Baytown, Galveston, Texas City and Freeport east and south of Houston, and Crystal City, Cotulla, Laredo and Jourdanton west and south of San Antonio. The joinder and coordination authority sought by Missouri Pacific would authorize an operation over U. S. Highway 90 between Houston and San Antonio in transporting shipments to and from these “beyond” points. The Railroad Commission authorized the proposed new service by granting the application in all respects. Its order is quoted in the majority opinion.

Seven of the ten common carrier motor carriers presently authorized to operate over U. S. Highway 90 between Houston and San Antonio protested the granting of the application to operate over this route and between these points and are appellants. Carriers serving the “beyond” points are also appellants. Two problems are presented. The first is whether the order is void under Section 5a(d) of Art. 911b because of the failure of the commission to “set forth in its order full and complete findings of fact pointing out in detail the inadequacies of the services and facilities of the existing carriers, and the public need for the proposed service.” Sec. 5a (d), later quoted in full, provides that the order of the Commission shall be void unless it does so. The question is whether the provisions of Sec. 5a(d) apply to the application of Missouri Pacific; if so, I regard it as self-evident under our decisions that the commission order does not comply with the requirements of the statute. See Miller v. Railroad Commission, 363 S.W.2d 244 (Tex.Sup.1963); Thompson v. Railroad Commission, 150 Tex. 307, 240 S.W.2d 759 (1951).

The second problem is whether the order of the Commission is reasonably supported by substantial evidence. This question is to be separately resolved with respect to the motor carrier operation authorized between Houston and San Antonio over U. S. Highway 90, serving no intermediate points, and with respect to the additional joinder and coordination authority.

The Texas Motor Carrier Act, Article 911b, was originally enacted in 1931. It was substantially amended in 1941. The statute defines and regulates two classes of motor carriers. These are common carriers who serve the public and contract carriers who serve a limited number of contracting shippers. The common carriers are of two types. The regular route carrier serves the public in the transportation of commodities generally over regular certificated highway routes and on regular schedules. The specialized common carrier serves the public in the transportation of special commodities over irregular routes and on irregular schedules. In statutory principle, the specialized carrier transports commodities with physical characteristics and/or origins or destinations beyond the services of the regular route common carrier. The specialized carrier is not limited to named highways but may operate on all highways within its area of authorized operation and the service of this carrier is often described as a call and demand service.

The 1941 amendment to the Texas Motor Carrier Act expressly refers to and includes in its coverage all motor carriers. Its title or caption carries notice that the statute provides “[T]he jurisdiction and procedure of the Commission in granting applications for certificates of convenience and necessity to specialized motor carriers and other common carriers and contract carrier permits.” Section 5a (c) provides that: “The Commission shall have no jurisdiction to consider, set for hearing, hear, or determine any application for a certificate of convenience and necessity authorizing the operation as a ‘specialized motor carrier’ or any other common carrier except as provided in the preceding paragraph unless the application shall be in writing and set forth in detail the following facts: * * Section Sa(d) provides that:

“The Commission shall have no authority to grant any application for a certificate of convenience and necessity authorizing operation as a ‘Specialized Motor Carrier’ or any other common carrier unless it is established by substantial evidence (1) that the services and facilities of the existing carrier serving the territory or any part thereof are inadequate; (2) that there exists a public necessity for such service, and (3) the public convenience will be promoted by granting said application. The order of the Commission granting said application and the certificate issued thereunder shall be void unless the Commission shall set forth in its order full and complete findings of fact pointing out in detail the inadequacies of the services and facilities of the existing carriers, and the public need for the proposed service. Likewise, the Commission shall have no authority to grant any contract carrier application for the transportation of any commodities in any territory or between any points where the existing carriers are rendering, or are capable of rendering, a reasonably adequate service in the transportation of such commodities.”

Prior to the 1941 amendment Section 12 (a) of Article 911b required the Railroad Commission to “file a concise written opinion setting forth the facts and grounds for its action” in granting or refusing an application for a certificate of convenience and necessity.

Section 3 of Article 911b prohibited the operation of any motor carrier as a common carrier except under the provisions of a certificate of public convenience and necessity issued “pursuant to a finding to the effect that the public convenience and necessity require such operation.”

Section 8 of Article 911b placed upon the Railroad Commission the mandatory duty of determining an application for a certificate of public convenience and necessity, as follows:

“The Commission is hereby vested with the power and authority, and it is hereby made its duty upon the filing of an application for a certificate of public convenience and necessity to ascertain and determine under such rules and regulations as it may promulgate, after considering existing transportation facilities, and the demand for, or need of additional services, if there exists a public necessity for such service, and if public convenience will be promoted by granting said application and permitting the operating of motor vehicles on the highways designated in such application as a common carrier for hire.”

It is clear to me that the requirements of the 1941 amendment to the Texas Motor Carrier Act are intended to be cumulative of the previous and existing statutory requirements. No other interpretation can reasonably be placed upon the language in Section 5a(c) and (d) “a ‘specialized motor carrier’ or any other common carrier” together with the reference to “any contract carrier application.” It is correct, as the majority points out, that there may be some difficulties in fitting the 1941 amendment into certain other unamended sections of the 1931 Act not here involved. But this often happens and the provisions of the statutes are to be harmonized if possible but where not, the conflicting provisions of the older statute are repealed by implication. I do not think we are authorized to ignore legislative purposes represented by express inclusive language in or-. der, as the majority says, to “avoid confusion.” Actually, there will be much less than the majority appears to fear and wants to avoid and none of the anticipated confusion is involved here.

I recognize that some persuasiveness may be given the action of this Court in refusing the application for writ of error in Merchants Fast Motor Lines v. Newman, 236 S.W.2d 646 (Tex.Civ.App.19Sl, writ ref. n. r. e.), contemporaneously, in effect, with the decisions of this Court in Thompson v. Hovey Petroleum Co., 149 Tex. 554, 236 S.W.2d 491 (1951), and Thompson v. Railroad Commission, 150 Tex. 307, 240 S.W.2d 759 (1951). But in my view Newman is wrong, and we should say so.

Of like seriousness to me is the generalized disposition by the majority of the problem of whether the order of the Commission with its twofold grant of operating rights to Missouri Pacific — a new service between Houston and San Antonio over U. S. Highway 90, and coordination of this new route with existing authority — is reasonably supported by substantial evidence. As previously noted, under Section 3 of Article 911b no operation as a common motor carrier is authorized except under a certificate of public convenience and necessity which, in turn, can be issued by the Commission only “pursuant to a finding to the effect that the public convenience and necessity require” such operation. Related to this requirement of Section 3 is the additional requirement of Section 12(a) that the Commission “file a concise written opinion setting forth the facts and grounds for its action” in granting or refusing an application for a certificate.

Apart from the question of the findings required by Section 5a(d), previously discussed, the findings of the Commission in an order granting a certificate of public convenience and necessity chart our course in resolving the question of whether the order is reasonably supported by substantial evidence. As grouped by Appellees in their brief, the findings of the Commission in the order under review relate to three classifications: “(a) The growth and economic development; (b) The condition of the highways; and (c) The evidence as to services.” I take it for granted that no one would seriously contend that evidence of the growth and economic development of Houston and San Antonio, and the existence of improved highways would constitute substantial evidence that the public convenience and necessity require a proposed new motor carrier service. Indeed, the Legislature has expressly provided in Section 5a(d) that “[t]he commission shall have no authority to grant any application for a certificate of convenience and necessity authorizing operation as a ‘Specialized Motor Carrier’ or any other common carrier unless it is established by substantial evidence (1) that the services and facilities of the existing carriers serving the territory or any part thereof are inadequate; (2) that there exists a public necessity for such service, and (3) the public convenience will be promoted by granting said application.” Perhaps the majority would say that we can again ignore express language of Section 5a(d). But even if we can, it must be acknowledged that the crucial consideration in resolving the question of public convenience and necessity in a proposed motor carrier operation — alternate route, or otherwise — is the adequacy or not of the services of the existing authorized carriers. This means all of the existing carriers and not just some of the existing carriers. To say otherwise would ignore every intendment of Article 911b, enacted in 1931, and as subsequently amended. This Court approved the opinion in Railroad Commission of Texas v. Red Arrow Freight Lines, Inc., 96 S.W.2d 735 (Tex.Civ.App.1936, writ ref’d). This, too, was an alternate or reroute proposal. The Court said:

“Under the conclusions we have reached, the controlling question the appeal presents is whether in substance and effect Lawler’s application was one for a certificate of convenience and necessity which required a showing by him and a finding by the Commission that the territory was not adequately served by existing facilities, and that additional facilities or service were required and would be secured by granting his application.” Id. at 737.

The Court then concluded:

“The order in suit manifestly conferred upon Lawler a right to render a service which was substantially different from that authorized in his two certificates, enabling him to compete directly with ap-pellees in a manner in which he could not compete with them before, if in fact he could effectively compete with them at all before. It is elementary that advantage in service is one of the most important factors in competition, and that time is a prime element in transportation service. We are clear in the view that the application could not be granted as a mere rerouting under the two certificates, but that it required a showing and commission finding of convenience and necessity.” Id. at 738.

The order of the Commission under review recites “that in these respects the existing transportation facilities are not adequate or satisfactory and the public need will be better served and filled and the public convenience will be promoted by the granting of this application and permitting applicant to render the proposed service.” “[T]hese respects” are stated by the Commission as follows:

“The Commission further finds from the evidence and its own records the pickup and delivery services of the existing common carriers operating between said termini are often slow, irregular and inconsistent; that delays and inconvenience are often caused on account of two line hauls now being performed by existing common carriers moving freight to and from points located beyond each of said termini, through and over the proposed route, which points are presently served by applicant; that the proposed service will permit applicant to render later and more prompt pickups of freight at points of origin and earlier deliveries at points of destination, thereby providing a more efficient handling and movement of such freight between said termini, from consignors to consignees; that such proposed service will also permit applicant to serve many points located beyond each of said termini presently served by applicant, with direct one line hauls to and from such points by use of the proposed route between said termini, thereby eliminating the necessity of interchange of freight at either or both of said termini; * *.”

These findings may be grouped as follows : (a) the pickup and delivery services of the existing common carriers operating between Houston and San Antonio “are often slow, irregular and inconsistent”; (b) “delays and inconvenience are often caused on account of two line hauls now being performed by existing common carriers moving freight to and from points located beyond Houston and San Antonio” (this finding not involving service between Houston and San Antonio) ; and (c) that the applicant, Missouri Pacific Truck Lines, Inc., will be able to improve its own service between the points it now serves. Missouri Pacific argues that even though the same criteria of public convenience and necessity and the adequacy of the service of existing carriers are present here, nevertheless the application should not be tested in all respects by the same standards as an application for original authority and that the quantum of proof required in alternate route cases should not be as exacting as in those for new authority. This is saying, in effect, that less evidence will constitute substantial evidence in an alternate route application than will do so in an application for original authority. But a grant of alternate route authority is a grant of new authority, Railroad Commission of Texas v. Jackson, 157 Tex. 32, 299 S.W.2d 266 (1957), and I. know of no principle that will transform something less than substantial evidence into substantial evidence.

I will discuss the substantial evidence problem in the order of the two-fold grant of operating rights to Missouri Pacific, i. e., first, the authorization for a new common carrier motor carrier service between Houston and San Antonio over U. S. Highway 90; and second, the authorization for Missouri Pacific to coordinate this new route with the service it is authorized to render under its other certificates of public convenience and necessity.

As to the first it is my view that the majority has fallen into the serious error of holding that some evidence as to some existing carriers is substantial evidence of inadequacies in the services of all the existing carriers. It is true that the thirty-five witnesses who testified in support of the application of Missouri Pacific to operate between Houston and San Antonio over U. S. Highway 90 adversely criticized, usually in general terms, the pickup and delivery services of some of the existing carriers. And perhaps it can be said that there is substantial evidence of the inadequacy of the pickup and delivery service and facilities of some of these carriers. But the statute does not speak in terms of the adequacy or not of the services of some of the existing authorized carriers; it speaks of the services of the existing carriers and this must be as a whole. It is at once evident that failure to enforce this statutory concept of public convenience and necessity will drive a wedge into the whole regulatory scheme. It is human experience that some people do business better than other people and that some companies operate more efficiently than others. This is true of the motor carriers. Some render better service than others; some specialize in certain fields to the neglect of others; some select choice tonnage and neglect tonnage not so desirable. As a consequence, it is always possible to find shippers who will adversely criticize the services of some carriers and evidence of some failures in service of some carriers is always obtainable. But the efficiently operating and protesting carrier, whether one or more, should not lose the regulatory protection of the motor carrier act because other carriers have fallen down. Inadequacies in the services and facilities of the existing carriers has not been established by proof of inadequacies in the services and facilities of some of the existing carriers.

The foregoing is well illustrated here. Herder Truck Lines, Inc. and its predecessor have been in operation between Houston and San Antonio since 1931. Approximately 40% of the total revenue of this carrier is derived from intrastate freight shipments moving between these termini. Twenty-two of the thirty-five witnesses supporting Missouri Pacific did not mention or testify concerning the Herder service. A study of the testimony of the fourteen witnesses in which Herder was mentioned, including every reference to such testimony by appellees in their briefs, establishes quite clearly that no substantial complaint was registered against the service of this carrier. Without belaboring the point, suffice it to say that a. finding of inadequacy in the service of this carrier quite clearly does not have reasonable support in the evidence. It is also doubtful if the evidence as to inadequacies in the pickup and delivery services of some of the other carriers will meet the test of substantiality. Many of the witnesses merely lumped together two or more of the carriers in general and conclusionary adverse comments. Moreover, the witnesses were unanimous in establishing their satisfaction with the present service of Missouri Pacific. So the question narrows to whether an order of the Railroad Commission authorizing a new common carrier motor carrier service between the important termini of Houston and San Antonio is supportable under the precepts of the substantial evidence rule where inadequacies in the services of at least one existing and protesting carrier are not shown, and, at the most, is doubtfully shown as to some of the other carriers. I think not. The authorization of a new motor carrier service in competition with existing carriers may be authorized by the Railroad Commission only when required by the public convenience and necessity and such is not reasonably shown by evidence that some carriers are not rendering the public an adequate and satisfactory service in some respects. To hold otherwise renders the regulatory scheme of the Texas Motor Carrier Act a hollow shell. It penalizes the efficient and dependable carriers with additional competition brought about by the less dependable carriers, and increases the traffic hazard to the traveling public to the extent of the additional trucks of the new carrier which will necessarily traverse the highways in question.

In Miller v. Railroad Commission, 363 S.W.2d 244 (Tex.1963) we concluded there was in the record no substantial evidence supporting the findings of the Commission that there was a public need for the proposed motor carrier service or that the services and facilities of existing carriers were inadequate. We specifically pointed out that the witnesses who testified in support of the carrier-applicant “had not sought on such occasions to obtain services from other carriers known by him to be certified.” This was unquestionably written in the concept that a public need for a proposed motor carrier service is not shown by evidence of failure or inadequacies in the services of some of the existing carriers.

In Railroad Commission of Texas v. Jackson, 157 Tex. 32, 299 S.W.2d 266 (1957), we said:

“The theory underlying the statutes applicable to motor carriers is that the public interest is better served by regulated rather than by excessive or destructive competition and in determining the issue of public convenience and necessity requisite to the creation of a ‘new service’ consideration must be given to the competitive effect upon presently operating carriers in the area and their continued ability to render effective public service.”

In this opinion we again reaffirmed the correctness of Railroad Commission of Texas v. Red Arrow Freight Lines, Inc. from which I have quoted above.

I also refer to our recent action in Railroad Commission of Texas v. Curry Motor Freight Lines, Inc., 392 S.W.2d 186 (Tex.Civ.App. 1965, writ ref’d n. r. e.). There we upheld the action of the lower court setting aside an order of the Commission, similar to the one under review, granting an alternate route application of Merchants Fast Motor Freight Lines, Inc., to operate between Lubbock and Amarillo. The emphasis there was upon the fact that Merchants was rendering a service between Lubbock and Amarillo and no showing was made that this service was not meeting the needs of the shipping public. The application there was for a direct route between these two termini as here between the termini of Houston and San Antonio. Here, as in Curry, the shipper-witnesses supporting the application of Missouri Pacific are using its present service between Houston and San Antonio, and to the “beyond” points, and have not found it inadequate or unsatisfactory for their needs.

It was correctly said in Railroad Commission v. National Transport Corp., 363 S.W.2d 360, 364 (Tex.Civ.App.1963, writ ref’d n. r. e.):

“Existing carriers are entitled to transport all of the traffic in the area of their authority as long as they can do so in a reasonably adequate manner, and until it be shown by substantial evidence that the existing carriers cannot adequately handle the traffic, there is no basis upon which new and competing operating rights can be granted.”

I would hold, finally, that there is in the record no substantial evidence supporting the findings of the Commission that there is a public need for the proposal of Missouri Pacific to serve points beyond Houston and San Antonio by a coordinated use of the newly authorized route with its present routes. In actuality, this grant was a gratuity to Missouri Pacific in the sense that no serious effort was made to establish either that the public convenience and necessity requires this additional operation or that Missouri Pacific would improve its present service to and from these points. The evidence simply does not establish any need for this newly authorized service. It is true that this particular operation is of relative unimportance to Missouri Pacific and its competitive impact upon the operation of existing carriers will not be severe. Nevertheless we should not close our eyes to the correctness of appellants’ point of error asserting the absence of reasonable support in the evidence for this further grant of authority to Missouri Pacific.

I would reverse the judgment of the trial court and therefore respectfully dissent.

      . “THE COMMISSION FURTHER FINDS FROM ITS OWN RECORDS that the termini of Houston, Texas, and San Antonio, Texas, between which the alternate route is proposed, are large and growing metropolitan areas whose growth has increased substantially over the past few years; that such growth will probably continue in the foreseeable future; that there has been and is now, not only an increase in population, industry and economic activities in said areas, but also an increase in freight tonnage moving through and between said termini and the demands for an expedited and improved common carrier service between said termini are likewise increasing.
      “THE COMMISSION FURTHER FINDS from the evidence and its own records that the highways over the proposed route are greatly improved over the highways of applicant’s present route between said termini; that the distance between the two termini will be shortened approximately seventy-eight miles each way over the proposed route; that applicant’s use of the proposed route between said termini will provide the public a much safer, more improved and expedited service and will result in operating savings to applicant of some $22,000.00 a year.
      “THE COMMISSION FURTHER FINDS from the evidence and its own records the pickup and delivery services of the existing common carriers operating between said termini, are often slow, irregular and inconsistent; that delays and inconvenience are often caused on account of two line hauls now being performed by existing common carriers moving freight to and from points located beyond each of said termini, through and over the proposed route, which points are presently served by applicant; that the proposed service will permit applicant to render later and more prompt pickups of freight at points of origin and earlier deliveries at points of destination, thereby providing a more efficient handling and movement of such freight between said termini, from consignors to consignees; that such proposed service will also permit applicant to serve many points located beyond each of said termini presently served by applicant, with direct one line hauls to and from such points, by use of the proposed route between said termini, thereby eliminating the necessity of interchange of freight at either or both of said termini; that in these respects the existing transportation facilities are not adequate or satisfactory and the public need will be better served and filled and the public convenience will be promoted by the granting of this application and permitting applicant to render the proposed service; that the granting of this application will not have any substantially adverse effect upon the operations or service of the existing common carriers presently authorized to use the proposed route and to serve the territory involved, and the public need for, and the public convenience that will be derived from, the proposed service, will outweigh any-nominal competitive effect that might result to the operations of said existing carriers.
      “THE COMMISSION FURTHER FINDS from the evidence and its own records, after carefully considering the existing transportation facilities and demand for and the need of the additional service, that the service and facilities of the existing carriers serving the territory are inadequate, and that there exists a public necessity for such proposed service, and that public convenience will be promoted by the granting of said application and permitting the operation of motor vehicles on the highways designated in said application as a common carrier for hire. * * * ”

      . The statutory references are to Vernon’s Annotated Revised Civil Statutes of Texas.

      . Acts 1931, 42nd Leg. p. 480, eh. 277.

      . Acts 1941, 47th Leg. p. 713, ch. 442.

      . Emphasis is added in all instances.


source: Caselaw Access Project

author: SMITH, Justice.

license: Public Domain

text:
    DUVAL CORPORATION, Relator, v. Jerry SADLER, Commissioner of the General Land Office, Respondent.
    No. A-11340.
    Supreme Court of Texas.
    Oct. 12, 1966.
    Rehearing Denied Nov. 16, 1966.

      Vinson, Elkins, Weems & Searls, Thomas Fletcher, Lynn R. Coleman, Houston, for relator.
    Waggoner Carr, Atty. Gen., Austin, J. Arthur Sandlin, Hawthorne Phillips and Maurice Bullock, Asst. Attys. Gen., for respondent.
    Johnson & Dionne, Fort Stockton, for in-tervenor Bear Creek Mining Co.
   SMITH, Justice.

Relator, Duval Corporation, has brought this original suit for mandamus against the Commissioner of the General Land Office of Texas, Jerry Sadler, asking this Court to order the Land Commissioner to approve certain mineral (sulphur) development applications. It is undisputed that all applications reflect statutory compliance under Articles 5388-5403.

All of-Duval’s applications for mineral awards were submitted to the Commissioner in accordance with Articles 5388-5403. These applications involve public free school lands which have been sold by the State with a reservation of the minerals in the State of Texas. Relator relies exclusively upon the provisions of Articles 5388 -5403 and has followed the provisions of those Articles for the acquisition of minerals under the land in question. No claim is made to oil, gas, coal or lignite. Respondent has denied all of the applications on the sole basis that the minerals could be acquired by Relator only under the provisions of Article 5421c.

Since each of the separate applications are identical with respect to the nature of the interests involved, and the nature of the lands involved, in the interest of brevity, we specifically identify only one of the -tracts of land. On January 24, 1906, J. H. Crawford made application to the General Land Office for the purchase of Section 592, GL and SF Block in Pecos County, Texas. Upon compliance with the laws regulating the sale of public free school lands, a patent was issued by the Governor of Texas to the assignees of Crawford. The patent specifically recites:

“All the minerals in the above described land are reserved to the State.”

Respondent, in refusing to approve the Duval applications for mineral awards, was apparently of the opinion that where public free school lands have been sold with a reservation of the minerals, such reserved minerals constitute unsold public free school lands, and, therefore, are subject to lease or sale under the provisions of Article 5421c, supra. It is undisputed that the Commissioner has prepared, released, and distributed purported forms to govern such a sale and has announced and publicized that applications and bids should be submitted to the Commissioner by March 18, 1966, and that sales were proposed to be held on May 3, 1966.

On April 18, 1966 we set Duval’s petition for mandamus for hearing and at the same time entered an order that all further actions by the Respondent and all other persons with reference to the proposed sul-phur sale in Pecos County, Texas, be stayed pending final decision of the case.

On April 23, 1966, Bear Creek Mining Company’s motion to intervene was granted, and our April 18th order was amended to read:

“It is ordered that all further actions by the respondent, Jerry Sadler, and all other persons, with reference to the proposed sulphur sale in Pecos County advertised to be held on May 3, 1966, be stayed; provided, that the Land Commissioner, Jerry Sadler, is not restrained hereby from issuing exploratory permits on such lands; and provided further that bids may be received, opened, tabulated, processed and conditionally accepted according to law, but no awards or leases for sulphur on lands in Pecos County shall be made pending the decision in these cases.”

The order was amended at the request of the Intervenor to protect its rights pending final decision on certain permits which had been granted and certain pending applications for permits for the exploration of sulphur after the Commissioner had announced to the public that sealed bids for leases in Pecos County, Texas, would be received in his office on May 3, 1966. In-tervenor concedes that if this Court should hold that Articles 5388 et seq., are the controlling statutes, then it has suffered no loss “because it has simply misconstrued the law,” but “if on the contrary, this * * * Court should decide that Article 5421c is the controlling law, as Intervenor believes it is, then Intervenor will have suffered an irreparable loss unless this * * * Court permits it to file all of its sealed bids for sulphur leases within fourteen (14) days after the date said order so permitting is filed * * (Emphasis added).

The Respondent takes the position that Section 8 of Article 5421c gives the Land Commissioner authority to issue sulphur leases on lands when the surface has been sold and the minerals have been reserved by the State. The Respondent argues that Article 5421c, as amended in 1939, effectively repealed Articles 5388-5403. Alternatively, Respondent contends that since Article 5421c-7, as amended in 1963, specifically mentions lands sold with a reservation in favor of the State of minerals, this new act took the place of the old prospecting statutes, Articles 5388-5403. In other words, the Respondent argues alternatively that if he is wrong in his contention that Section 8 of Article 5421c, gives him the authority to issue sulphur leases on lands when the surface has been sold and the minerals have been reserved by the State, it nevertheless is clear that Article 5421c-7 is the only current prospecting statute and that by the terms of such statute, State lands, and those lands in which the State has reserved the minerals, are not open to prospecting as to sulphur and the other excepted substances. This view, if followed, would lead to a holding that Articles 5388-5403, and Article 5421c-7 are prospecting statutes; that Articles 5388-5403 are squarely in conflict with Article 5421c-7 which provides that there is to be no prospecting for sulphur on land sold with a mineral reservation; that the general repealer provisions contained in Section 3 of the 1963 Amendment to Article 5421c-7, repealed conflicting Articles 5388-5403; that the effect of Articles 5421c-7 was to remove sulphur from the provisions of the prospecting statutes. In short, the ultimate holding would be that there is now no statute allowing the sale or lease of sulphur.

From the foregoing summary of the contentions of the parties and our examination of the undisputed facts, it is readily apparent that if writ of mandamus is to be issued in favor of Duval it must be as a result of a holding that Articles 5388— 5403 have not been repealed. Unless Du-val’s right to prospect for, develop and produce sulphur on public free school lands sold with the minerals reserved to the State, or the minerals therein relinquished, is governed exclusively by the provisions of Articles 5388-5403, Duval’s prayer for relief should be denied. We have before us a legal question of what statute must the Land Commissioner act under with respect to minerals reserved in public free school land sales. This Court has jurisdiction of the controversy. This is the proper Court, on mandamus, to determine which statute is applicable. See Freels v. Walker, 1930, 120 Tex. 291, 26 S.W.2d 627; Dolan v. Walker, 1932, 121 Tex. 361, 49 S.W.2d 695; Marshall v. Robison, 109 Tex. 15, 191 S.W. 1136, (1917); Wintermann v. McDonald, 129 Tex. 275, 102 S.W.2d 167, 171, 104 S.W.2d 4 (1937); Standard v. Sadler, Tex., 383 S.W.2d 391 (1964).

We have concluded that Duval’s rights are governed by Articles 5388-5403 and that such Articles have not been repealed. Mandamus should be granted.

The parties seem to be in agreement with the well recognized rule that the objective of the Court, when called upon to construe legislative enactments, is to ascertain the purpose of the Legislature in the enactment of the laws relating to the particular matter. The parties apparently are in accord with the rule announced in Wintermann v. McDonald, supra, that the intention of the Legislature is to be ascertained from the language of the statutes and to give effect to all laws bearing upon the same subject, although announced at different sessions of the Legislature. We are warranted in saying that the Legislature, in dealing with public free school lands, has consistently and with clarity drawn a well defined distinction between unsold public free school lands and public free school lands sold with mineral reservations or with relinquishment of the minerals.

In the absence of Court decisions construing Articles 5388-5403, we resort to an analysis of the various mineral acts since 1913, and to decisions which we deem to be analogous, in principle, to resolve the question involved.

Mineral Acts

The Mineral Act of 1913 was all inclusive, in that, it dealt with all minerals on all public lands, both unsold and those sold with the minerals reserved or relinquished. The Legislature treated the various minerals as falling into separate categories. Prospecting and development rights were segregated into three general categories, (a) oil and gas; (b) coal and lignite; and (c) other minerals. This early Act recognized, to some extent at least, a valid distinction as to those lands sold and those unsold by making provisions for the payment of damages to the surface owner where sold land was the subject matter.

The Mineral Act of 1917 repealed the Mineral Act of 1913. The 1917 Act indicates some modification of the Legislative scheme for regulation of prospecting and development of minerals on all lands. The basic methods for securing sulphur rights were outlined in Sections 10, 11 and 12 of the 1917 Act. Again we find a well defined distinction was drawn by the Legislature between lands unsold and those lands previously sold where there was a reservation of minerals to the State.

In 1919, the first Relinquishment Act was enacted. This Act, codified into Articles 5367-5379, dealt with surveyed free school and asylum lands theretofore sold or thereafter to be sold with a mineral classification or a mineral reservation. This Act has no applicability since it applies only to oil and gas; however, we mention it to point up the historical background of the present methods of mineral reservations.

The Mineral Act of July 23, 1919, controlled oil and gas leasing on unsold state lands. This Act, codified into Articles 5353-5366, like the 1919 Relinquishment Act, has no applicability to this controversy, but it also demonstrates the legislative history of the current methods of mineral reservation.

The Mineral Act with which we are particularly concerned is the Act of July 31, 1919. See Acts of the 36th Leg., Second Called Session, ch. 79, p. 241. This Act, codified and amended as Articles 5388-5403, has no application to oil and gas rights, since these rights were completely covered by the first Relinquishment Act of 1919, supra, as to sold lands and the Mineral Act of July 23, 1919, as to unsold lands. Furthermore, Articles 5388-5403 do not cover coal and lignite.

Two other acts should be discussed. These two acts were adequately analyzed in Standard v. Sadler, supra. The Legislature enacted two bills in 1931. The first, Senate Bill 310, was later held to be unconstitutional in its entirety in Empire Gas and Fuel Co. v. State, 121 Tex. 138, 47 S.W.2d 265. The effect of this decision was to leave Articles 5388-5403, the Mineral Act of July 31, 1919, in full force and effect. The second bill, enacted in 1931, was House Bill 358. As stated in Standard v. Sadler, this bill became known as the Sales and Leasing Act of 1931. This Act, with subsequent amendments, is now codified as Articles 5421c and 5421c-1 through 5421c-9. Section 13 of this second act expressly repealed Articles 5323, 5338 and 5374, Revised Statutes of 1925, and repealed, as well, all conflicting laws. We held in Standard that the Relinquishment Act of 1919 was not repealed. However, we went on to say that “[i]f repeal was effected it was by implication only, and repeal by implication is not favored”, citing Gordon v. Lake, 163 Tex. 392, 356 S.W.2d 138, 193; Wintermann v. McDonald, 129 Tex. 275, 102 S.W.2d 167, 171, 104 S.W.2d 4. Since the provisions of Article 5421c-1 through 5421c-9, as amended, are not in conflict with Articles 5388-5403, Respondent cannot successfully contend that any provision of Sec. 13 of the second 1931 Act repealed Articles 5388-5403. We agree with Respondent and the Amici Curiae Landowners that Articles 5388-5403 set out a comprehensive scheme of prospecting, but we disagree with the contention that the 1963 amendment of Article 5421c-7 repealed Articles 5388-5403 by the general repealer clause contained in Section 3 therein, thereby leaving 5421c-7 the only prospecting statute. We find no words in Article 5421c-7 which support the contention that the exception of sulphur from the scope of the Act means that there can be no prospecting for sulphur on the classes of land covered by the statute. Article 5421c-7 does not leave a “void” as to sul-phur. To the contrary, the provisions of the article are consistent with and recognize the continued applicability of Articles 5388-5403 to sulphur in lands sold with a mineral reservation. An analysis of Article 5421c-7, leads us to conclude that rather than repealing Articles 5388-5403, specific recognition was given to these articles. See Section 1 of Article 5421c-7. While Article 5421c-7 provides a method for the acquisition of certain minerals under lands belonging to the State, both unsold and surveyed public school land and land sold with a reservation in favor of the State of minerals thereunder, it, nevertheless, specifically excepts “oil, gas, coal, lignite, sulphur, salt and potash, shell, sand and gravel” from the scope of the Act. The pertinent part of Section 1 of Article 5421c-7 reads:

“Any tract of land belonging to the State, including * * * any lands sold with a reservation in favor of the State of minerals thereunder, shall be subject to prospect for uranium, thorium, and ■other fissionable materials and all other minerals, except oil, gas, coal, lignite, sulphur, salt and potash, shell, sand and gravel, by any person * * (Emphasis added.)

Our interpretation of this Act leads tis to believe that the Legislature had no intention of repealing any of the laws in effect at the time of the enactment of Article 5421c-7 which dealt with any of the ■excepted minerals. The Legislature recognized that Articles 5388-5403 adequately ■provided for the acquisition of sulphur rights, otherwise it would not have except-ad sulphur when Article 5421c-7 was adopted in 1963.

In summary, Article 5388, which we have declared to be applicable, provides in part:

“All * * * mineral * * * deposits * * * except oil, natural gas, coal and lignite, that may be in any lands included in this chapter shall be subject to development, sale and patenting as provided in this subdivision.”

To ascertain the “lands included in this chapter”, one has only to look at the definition of such lands found in Article 5383, the first subdivision of Chapter 5, Title 86, Lands — Public, of which Chapter 5, Article 5388 is a part. There it will be found that the Legislature was concerned, in adopting Article 5388, with mineral rights (other than oil and gas, coal and lignite) under public school lands sold with a reservation of minerals to the State. It is clear from the provisions of Article 5421c that it was the intent of the Legislature in the enactment of this statute to deal with all of the unappropriated and unsold public domain rather than with public free school land sold with a reservation of the minerals therein. The two statutes, rather than being in conflict, deal with a separate and distinct subject matter and area of the public domain. It is clear that each statute constitutes an additional part of the general body of law enacted with respect to minerals and their control. Each statute clearly points up the legislative intent to bring forward the legislative policy of distinguishing between, and separately providing for, the sale, development, patenting, and disposition of minerals reserved in sales of public free school lands or minerals in unsold public free school lands.

It is significant that Article 5400, of the series of Articles 5388-5403, and other acts relating to public free school lands sold with a reservation of minerals or with relinquishment provisions, protect the rights of the surface owner. We point out that Sections 8, 9 and 10 of Article 5421c which Respondent now contends are controlling, contain no provision for the protection of the surface owner.

This Court, in Standard v. Sadler, supra, recently held that Article 5421c-8 limits the Land Commissioner’s powers to leasing unsold surveyed public free school land. The Standard v. Sadler case, in principle, supports our holding in the present case. The case involved land which had been reacquired by the State through a judgment rendered on June 6, 1925, in an escheat proceeding, and was set apart to the Permanent Free School Fund under the provision of Article 3281. The tract was later sold by the State to Leo Standard in December, 1936, and a patent, in which all minerals were reserved to the State, was issued March 14, 1939. Leo Standard conveyed the premises to B. L. Standard and wife on February 14, 1946. On November 5, 1963, the present Land Commissioner, claiming that the authority of the landowner to negotiate and execute oil and gas leases was terminated by the Sales and Leasing Act of 1931, executed and delivered to Humble Oil & Refining Company an oil and gas lease on the Standard tract of land. This oil and gas lease was developed and production thereon was obtained thereunder over the protest of B. L. Standard. On February 24, 1964, Standard executed and delivered to Trace Mining Company an oil and gas lease of the tract similar in terms to that given by the Land Commissioner to Humble. When the Land Commissioner refused . to accept this lease, Standard and Trace Mining Company sought a writ of mandamus directing the Land Commissioner to accept and file the Standard-Trace oil and gas lease. We granted the writ of mandamus. We held, in effect, that when the State sold the escheated land involved it was sold public free school lands with reservation of the minerals. We pointed out that the Legislature undertook by the provisions of Article 3281 to define the powers of the Commissioner of the General Land Office to deal with escheated lands. We rejected the contention of the Land Commissioner and Humble that the provisions of Article 3281 precluded Standard from executing an oil and gas lease on the land in controversy. In doing so, we said:

“By the first three sentences the Commissioner’s power to lease was defined. By the remaining provisions his power to sell was defined. This arrangement in dealing with the subject matter of the Commissioner’s powers suggests in itself that the Legislature intended that the power to lease exist only until the lands were sold. The three sentences * * * also suggest that the Legislature intended the power to extend only to unsold lands. * * * Now, obviously, the Legislature did not intend that the Commissioner should have power to lease sold lands for any of the purposes indicated in the first and second sentences. Is there any sound reason for believing that the Legislature intended that the leasing power conferred by the third sentence be broader, and that it extend to both sold and unsold lands?”

This Court, in Standard, did not stop with an analysis of Article 3281, but went on to reason, “[i]f, as Humble asserts, the purpose of this language was simply to incorporate the procedure provided in Art. 5421c for executing leases and make that procedure applicable in the leasing of both sold and unsold lands, why was that purpose not plainly stated as was done with reference to forfeited lands in Art. 5371, where it is provided that such land ‘shall be subject to lease for oil and gas under the procedure provided by law for the leasing of unsold surveyed public school lands?’ * * * What we hold is that Art. 3281 confers no power on the Commissioner to execute leases for oil and gas and other mineral development on escheated land which has been sold by the State from the Permanent Free School Fund. And we hold further that when the full fee title to escheated land is owned by the Fund and the land is sold with a reservation of all minerals, the Relinquishment Act of 1919 constitutes the owner of the soil the agent of the State for the purpose of negotiating and executing oil and gas leases thereon.”

It should be noted that our opinion expressly limited the Court’s holding to a situation where the land “is sold with a reservation of all minerals.”

In Standard v. Sadler, the escheated lands which were later sold were placed by the Court in the same category as the Legislature has placed sold lands with reservation of all minerals, the type of lands involved in the present case. In view of our holding in Standard v. Sadler, it would be illogical to hold in this case, wherein sold land is involved, that reserved minerals equate with unsold lands, hence Articles 5388-5403 have no application.

We come now to the judgment to be entered. Since Articles 5388-5403 are applicable and since Duval has complied with the statutory requirements contained therein, it is the mandatory duty of the Land Commissioner to perform the ministerial act of issuing the minerals awards to Duval, as prayed for. Article 5393 provides :

“When the application has been considered and all things have been done in compliance with the law, the Commissioner shall issue to the applicant an award for the area. * * * ”

We construe this to mean that the Land Commissioner is given only the ministerial duty of ascertaining the fact of compliance. Compliance with the statute vests the applicant with absolute right. Articles 5388-5403 do not in any manner vest the Land Commissioner with authority to refuse to issue such awards, when the fact is, or when the Land Commissioner has ascertained the fact to be, that the applicant, Duval in this case, has factually done the things which the legislative offer of such statutes require. See State v. Robison, 119 Tex. 302, 30 S.W.2d 292, 297 (1930); Wertheimer v. Walker (1936, no writ hist.) 96 S.W.2d 831; Pohle v. Robertson, 102 Tex. 274, 277, 115 S.W. 1166, 1168 (1909); Schneider v. Lipscomb County National Farm Loan Ass’n, (1947) 146 Tex. 66, 202 S.W.2d 832. In Pohle v. Robertson, this Court said: “The legal efficacy of a purchaser of school land comes from the law which gives effect to the taking of the steps by which it authorizes the acquisition of title, and not from the consent of the officer to an application.” In Schneider, this Court said that the award is not a sale. The sale is “accomplished by the offer made by the State in the statute [in our case 5388-5403] which prescribes the terms and conditions of the sale, and by the acceptance of the offer by the intending purchaser in his taking the several steps for purchase as set out in the statute.”

The writ of mandamus shall issue. The Respondent, Jerry Sadler, Land Commissioner of Texas, is ordered and directed to issue mineral awards on Duval’s applications marked Exhibits “F-l” through “F— 30” and “G-l” through “G-32”; to process applications presently on file in the General Land Office, marked Exhibits “M-l” through “M-36”; to immediately file the applications marked “Exhibits “O-l” through “0-64” as of February 21, 1966, the timely date on which they were tendered for filing and refused by him; he is further directed to process such applications. He is directed to refrain and desist from interfering with the performance by the County Surveyor of Pecos County, Texas, of those duties laid upon such county surveyor by the terms and provisions of Articles 5391 and 5392, as amended. The Respondent, Land Commissioner, is directed to receive, file, ascertain the fact of statutory compliance, and then to issue mineral awards thereon. When such applications “Exhibits “Q-l” through “Q-36” shall have ripened for filing pursuant to said statutes, the Respondent is directed to receive and file such applications and to process them in accordance with Articles 5388-5403, as amended.

      . All references to statutes are to Vernon’s Ann.Texas Civil Statutes unless otherwise indicated.

      . “All valuable mineral bearing deposits, placers, veins, lodes and rock carrying metallic or non-metallic substances of value except oil, natural gas, coal and lignite, that may be in any lands included in this chapter shall be subject to development, sale and patenting as provided in this subdivision. Acts 2nd C.S.1919, p. 241.”

      . “All islands, salt water lakes, bays, inlets, marshes and reefs owned by the state, within tidewater limits and that portion of the Gulf of Mexico within the jurisdiction of Texas, and all unsold surveyed public free school land and all rivers and channels belonging to the state shall be subject to lease by the Commissioner of the General Land Office to any person, firm or corporation for the production of oil, gas, coal, lignite, sulphur, salt and potash that may be therein or thereunder, in accordance with the provisions of all existing laws pertaining to the leasing of such areas for oil and gas; provided that the leasing of minerals other than oil and gas shall not be subject to the provisions of Article 5359, Revised Civil Statutes, 1925, and subsection 5, Section 8-a of Section 1, Chapter 40, Acts of the 42nd Legislature, Second Called Session, 1931; provided further, that at the discretion of the School Land Board the minerals herein enumerated, other than oil and gas, may be leased together or separately, but oil and gas shall only be leased together, and separately from other minerals; provided further, that the royalty reserved to the state shall be not less than one-eighth (⅛) of the gross production or value of oil, gas and sulphur and one-sixteenth (Vie) of the gross production or value of other minerals.”

      . “Section 1. Any tract of land belonging to the State, including all islands, salt and fresh water lakes, bays, inlets, marshes and reefs owned by the State within tidewater limits, and that part of the Gulf of Mexico within the jurisdiction of Texas, and all unsold surveyed public free school land and all rivers and channels belonging to the State and any lands sold with a reservation in favor of the State of minerals thereunder, shall be subject to prospect for uranium, thorium, and other fissionable materials, and all other minerals, except oil, gas, coal, lignite, sul-phur, salt and potash, shell, sand and gravel, by any person, firm or corporation desiring to prospect same by the filing of an application with the Commissioner of the General Land Office designating the area to be prospected, each such application shall be for an area not in excess of six hundred and forty (640) acres. Such application must be accompanied by rental payment of twenty-five cents (250) per acre. As amended Acts 1963, 58th Leg., p. 933, ch. 362, § 1.
      “Sec. 2. Permits shall be issued by the Commissioner of the General Land Office giving to the first applicant a period of one (1) year from the date of filing his application within which to prospect the area designated. A permit may be be extended at the discretion of the Commissioner for periods of one (1) year upon payment of an annual rental of twenty-five cents (250) per acre, but in no event to exceed five (5) consecutive years from date of such permit. Permit-tee may at any time during the effective period of such permit file an application to lease the area covered by the permit, or a designated portion thereof, for the purpose of mining or producing the minerals covered thereby, which application shall be accompanied by the first rental payment of not less than Two Dollars ($2) per acre. The annual rental payments thereafter during the primary term shall be not less than One Dollar ($1) per acre, which shall be payable unless production in paying quantities is being obtained and royalty being paid the State thereon. If the designated area is less than that covered by the permit, the applicant shall forward with his application field notes prepared by the county surveyor or a licensed State land surveyor, describing the area so' designated. As amended Acts 1963, 58th Leg., p. 933, ch. 362, § 1.”

      . A number of parties owning substantial quantities of mineral classified land in Pecos County and other counties in the Trans-Pecos area of Texas, have filed Amicus Curiae briefs supporting the Respondent’s alternative position.

      . Acts 1919, 36th Leg., 2nd O.S., p. 249.

      . Article 5421c-8 also gives the Commissioner the power to lease islands, salt water lakes, bays, inlets, marshes and reefs owned by the State, within tidewater limits and that portion of the Gulf of Mexico within the jurisdiction of Texas [and] * * * all rivers and channels belonging to the State.” These lands are similarly unsold, though the State holds them in a different capacity from unsold public free schools lands.

      . Escheat of property in Texas is governed by Articles 3272-3289, Article 3281 was amended in 1934. See Acts of 43rd Leg., 3rd C.S., Ch. 60, p. 112.


text:
    PIPER PETROLEUM COMPANY, Relator, v. Jerry SADLER, Commissioner of the General Land Office of the State of Texas, Respondent.
    No. A-11369.
    Supreme Court of Texas.
    Oct. 12, 1966.
    Rehearing Denied Nov. 16, 1966.

      Thompson, Knight, Simmons & Bullion, Dallas, for relator.
    Waggoner Carr, Atty. Gen., Austin, J. Arthur Sandlin, Hawthorne Phillips and Maurice Bullock, Asst. Attys. Gen., for respondent.
   SMITH, Justice.

This is a mandamus proceeding brought in this Court against the Commissioner of the General Land Office of Texas, Jerry Sadler, asking this Court to order the Land Commissioner to receive and file in the General Land Office of the State of Texas forty mineral applications and mineral surveys covering land in Section 4, Block 140, Certificate No. 252, T. & St. L. RR. Co., Original Grantee, in Pecos County, Texas, to consider and act upon same and upon ascertainment of compliance with the statutory requirements, to issue awards for the areas to Relator. The Relator relies exclusively upon the provisions of Articles 5388— 5403. Relator contends that Section 4 in Block 140 is public free school land sold with a reservation of minerals therein and that Articles 5388-5403, supra, are controlling and applicable.

This Court has so held in an opinion this day rendered in an original mandamus proceeding, No. A-11340, Duval Corporation, Relator v. Jerry Sadler, Tex., 407 S.W.2d 493 Commissioner of the General Land Office of the State of Texas. The holding in that proceeding governs our action in this proceeding. It follows that writ of mandamus shall issue in accordance with Relator’s prayer.

The Respondent is directed and ordered to receive and file the mineral applications, and the mineral surveys as of March 18, 1966. Respondent is further directed to process such applications. Copies of such mineral applications are in the record, marked Exhibits 12 through 51, and copies of the mineral surveys are in the record as Exhibits 12-A through 51-A.

The Respondent is directed to proceed with the performance of all ministerial acts in accordance with our opinion in Cause No. A-11340, Duval Corporation v. Jerry Sadler, supra.

      . All references to statutes are to Vernon’s Texas Civil Statutes.


author: BELCHER, Commissioner.

text:
    Kenneth Doyle TAFF, Appellant, v. The STATE of Texas, Appellee.
    No. 39773.
    Court of Criminal Appeals of Texas.
    Oct. 26, 1966.

      Max Blankenship, Fort Worth, Court Appointed on Appeal, for appellant.
    Doug Crouch, Dist. Atty., Truman Power, Asst. Dist. Atty., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Commissioner.

The conviction is for burglary with a prior conviction for burglary alleged for enhancement; the punishment, twelve years.

Notice of appeal was given prior to January 1, 1966.

In the absence of the jury, proof of the prior conviction as alleged and of the identity of the appellant as the same person convicted therefor was stipulated by and between the appellant and his counsel and counsel for the state.

The testimony of the owners of a television set and the residence from which the television was taken during the daytime after a forcible entry of the residence, which was closed, the testimony of the officer who recovered the television which was returned to and identified by the owners, and the testimony of the person who identified the appellant as the person from whom she bought the television shortly after the forcible entry of the residence and the taking of the television without the consent of said owners, is sufficient to sustain the conviction.

The appellant did not testify or offer any evidence in his behalf.

The court charged the jury upon the law applicable to circumstantial evidence.

Appellant complains of the stipulation, made in the absence of the jury, of the prior conviction alleged because in precluding the state from reading the enhancement allegation it constituted a denial of due process by requiring him to elect to waive alternatively his right to a fair and impartial trial by a jury or of his right not to be compelled to give self-incriminating testimony.

The method of procedure complained of has been previously considered and held not to constitute a violation of due process. Taylor v. State, Tex.Cr.App., 398 S.W.2d 559.

Error is urged in the action of the trial court in sustaining the state’s obj ection to appellant’s question directed to the owner of the residence to-wit: “Do you like Roland Taff?”

The objection was sustained and the question was not answered. No showing is made of what the answer would have been. No incriminating connection is shown on the part of Roland with the burglary or the taking of the television. No error is presented.

The judgment is affirmed.

Opinion approved by the Court.


author: McDonald, judge.

text:
    Guadalupe Soliz MARTINEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 39753.
    Court of Criminal Appeals of Texas.
    Oct. 26, 1966.
    R. B. Fogle, Jr., Houston, for appellant.
    Carol S. Vance, Dist. Atty., Ted Hirtz and Donald M. Keith, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

McDonald, judge.

The offense is unlawful possession of a narcotic drug, to-wit, heroin; the punishment, ten years confinement in the Texas Department of Corrections.

While the facts are conflicting, we feel that since the jury resolved them in favor of the state and rejected the appellant’s version of the transaction, we shall adopt the state’s version of the testimony.

Officer Garcia and other officers had the apartment where appellant lived under surveillance from about 11:00 a. m. on the date in question until around 2:00 p. m. During this interval the officers observed several known narcotic addicts come and go to the apartment. Officer Garcia radioed Officer Chavez and another officer to come and relieve them and take over the surveillance while Garcia and Officer Tissue went to get a search warrant. Officer Chavez and the other officer arrived and set up their surveillance, parking about one-half block down from the apartment unit occupied by appellant, watching the apartment where appellant lived: Officer Garcia obtained the search warrant and an arrest warrant from Justice of the Peace Jack Treadway and then radioed to Officer Chavez that he was in possession of the warrants. It was at this time that Officer Chavez told Officer Garcia that appellant and his wife had left their apartment. Garcia then told Chavez to stop them. The couple were stopped and detained until Garcia arrived about ten minutes later. The pair were in custody of Officer Chavez. All parties then proceeded to the apartment, entered, and it was at this juncture that appellant took out four grams of heroin from behind the cover plate of the light switch in the dining room area and gave it to Officer Chavez. The appellant also took the cover off the bottom of the refrigerator in the kitchen and pulled out an eyedropper with a needle and two tablespoons and handed them to Officer Chavez.

Chemist Floyd McDonald of the Houston Police Department testified that the powdery substance in four envelopes was heroin. He also testified as to the number of shots that could be obtained from- such a quantity of heroin.

We find the evidence sufficient to sustain the jury’s verdict.

Appellant urges several contentions as error, the first one being in substance that he was arrested without a warrant, without probable cause, at a time when he was not in violation of any law. We find no merit in this contention and hold that Officer Chavez had probable cause to arrest appellant without a warrant, since Chavez had just been told over the radio by Garcia that Judge Treadway had issued a warrant for the arrest of appellant. Article 215, Vernon’s Ann.C.C.P., now Art. 14.04, V.A.C.C.P.; Jones v State, 171 Tex.Cr.R. 608, 352 S.W.2d 270, and cases there cited.

Since there is nothing in the record to indicate that the officer used an offense report to refresh his recollection either prior to or during trial, we find no error in the refusal of the trial court to make the report available to appellant’s counsel. Art. 39.14, V.A.C.C.P.; Young v. State, Tex.Cr.App., 398 S.W.2d 572, and cases there cited.

Further, we find no error in the action of the trial court in permitting Chemist McDonald to testify on the basis of his expert knowledge of the strength of the heroin recovered and to translate the amount of heroin recovered into terms understandable to the jury. This Court has consistently rejected such a contention. Acosta v. State, Tex.Cr.App., 403 S.W.2d 434 and Guajardo v. State, Tex.Cr.App., 378 S.W.2d 853.

We find no error in the closing argument of the prosecutor, which was, we think, a fair inference from facts in evidence before the jury.

No other contentions advanced are worthy of our attention.

The judgment is affirmed.


author: DICE, Commissioner.

text:
    Marron Jefferson RITCHEY, Appellant, v. The STATE of Texas, Appellee.
    No. 39815.
    Court of Criminal Appeals of Texas.
    Oct. 26, 1966.
    No attorney of record on appeal, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Commissioner.

The offense is statutory rape; the punishment, twenty years.

Trial was had after January 1, 1966, and governed by the provisions of the 1965, Vernon’s Ann.Code of Criminal Procedure.

The record on appeal consists of a transcript of the proceedings in the cause certified to by the clerk and a separate statement of facts of the evidence adduced upon the trial, bearing the certificate of the official court reporter and approved by counsel for the state and the appellant and also by the trial judge.

Such record is not in compliance with the requirements of Art. 40.09 of the 1965 Code of Criminal Procedure that it be assembled under one cover and be approved by the trial court.

No brief is shown to have been filed by the appellant in the trial court pointing out the grounds of error of which he desired to complain on appeal, as required by Sec. 9 of Art. 40.09, supra.

While no grounds of error are presented by appellant for review, we have considered as unassigned error, under the authority of Sec. 13 of Art. 40.09, supra, his objection to the court’s action in permitting his former wife (the mother of prosecutrix) to testify as a witness against him at the trial.

We perceive no error, as Art. 38.11 of the 1965 Code — in effect at the time of trial — permitted the former wife to testify against appellant in the case for the offense committed against her child under the age of sixteen years. The fact that Art. 3S.11, supra, became effective after the date of the commission of the offense did not, as applied to the case, render it ex post facto and invalid. Mrous v. State, 31 Tex.Cr.R. 597, 21 S.W. 764 (reversed on other grounds). No less evidence was required to convict by virtue of the statute.

The judgment is affirmed.

Opinion approved by the court.


author: WOODLEY, Judge.

text:
    Jake ANDREWS, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 39755.
    Court of Criminal Appeals of Texas.
    Oct. 26, 1966.
    John W. Overton, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Ray Moses and C. A. Davis, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Judge.

The offense is the unlawful possession of marihuana; the punishment, life.

Trial was had and notice of appeal was given prior to January 1, 1966.

The punishment was not assessed by the jury but was enhanced by two of the three prior convictions for the offense of burglary alleged in the indictment, one on October 17, 1936 and the other on January 17, 1942.

Neither the transcript nor the statement of facts, agreed by counsel for the state and for appellant to contain a complete and correct transcript of all of the evidence adduced and the proceedings, reflects any stipulation or proof to sustain the allegation of the indictment that the conviction in 1942 was for a burglary committed after the conviction in 1936 became final.

In the absence of such proof a life sentence under Art. 63 P.C. cannot stand. Square v. State, 142 Tex.Cr.R. 493, 154 S.W.2d 852; Harrison v. State, 168 S.W.2d 243; Guilliams v. State, 159 Tex.Cr.R. 81, 261 S.W.2d 598; Armendariz v. State, 163 Tex.Cr.R. 515, 294 S.W.2d 98; Cortez v. State, Tex.Cr.App., 314 S.W.2d 589; Rogers v. State, 169 Tex.Cr.R. 239, 333 S.W.2d 383; Hobbs v. State, 171 Tex.Cr.R. 607, 352 S.W.2d 836; Ferrell v. State, Tex. Cr.App., 397 S.W.2d 86; Lee v. State, Tex.Cr.App., 400 S.W.2d 909.

The judgment is reversed and the cause is remanded.


text:
    Randolph WILSON, Appellant, v. The STATE of Texas, Appellee.
    No. 39774.
    Court of Criminal Appeals of Texas.
    Oct. 26, 1966.
    No attorney of record on appeal for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Commissioner.

Appellant was charged by indictment in the District Court of Winkler County, in Cause No. 1045, of the offense of robbery with firearms.

In an appeal to this court from a conviction in the year 1961 with punishment assessed at twenty years, the judgment was reversed and the prosecution ordered dismissed because the indictment was fundamentally defective. Wilson v. State, 171 Tex.Cr.R. 391, 356 S.W.2d 928.

A new indictment was returned against appellant in said court in Cause No. 1099 and he was again tried and convicted, in the year 1963, of the offense of robbery with firearms and sentenced to serve twenty-three years in the penitentiary. There was no appeal to this court from the conviction.

In the year 1965, appellant sought his discharge from confinement in the State Department of Corrections under the 23-year sentence in a habeas corpus proceeding before this court. Relief was denied in an opinion holding that he had not been deprived of the effective assistance of counsel in the matter of an appeal from the 1963 judgment of conviction. Ex parte Wilson, Tex.Cr.App., 392 S.W.2d 134.

On January 25, 1966, Judge Joe W. Sheehy, of the United States District Court for the Eastern District of Texas, granted appellant’s petition for writ of habeas corpus, in civil Cause No. 4535, upon a finding that the 23-year sentence imposed upon him in 1963 in Cause No. 1099, was'void because appellant was not allowed the two-day and the ten-day periods provided by Articles 755, 762, and 768, Vernon’s Ann. C.C.P., in effect at the time of his trial, in which to file a motion in arrest of judgment or for a new trial before being sentenced in the cause. In his opinion holding the sentence void, Judge Sheehy further found that “ ‘The fact that the sentence is void does not in any wise void the Judgment of conviction.’ ” The judgment entered upon such findings granting the writ of habeas corpus directed the respondent to release appellant from custody “and set him free if, within a reasonable time from the date of this judgment, Petitioner has not been resentenced in Criminal Action No. 1099, in the District Court of Winkler County, Texas, with Petitioner and his attorney or attorneys being present in Court at the time the Petitioner is re-sentenced.”

Pursuant to such judgment, appellant was resentenced by Honorable Russell D. Austin, Judge of the District Court of Winkler County, on March 7, 1966, in Cause No. 1099, his counsel being present, to a term of not less than five nor more than twenty-three years in the penitentiary, the sentence providing that it commence the 2d day of January, 1963 (the date of the second trial and conviction).

On such date (March 7, 1966) notice of appeal was given by appellant to this court.

The evidence presented by the state at appellant’s trial on January 2, 1963, shows that on the date alleged in the indictment three men entered a place of business owned and operated by the prosecuting witness in Kermit and, with the use of firearms, assaulted and robbed him of over two thousand dollars.

Appellant’s written confession, made to Sheriff L. B. Eddins following his arrest, was introduced in evidence, in which confession appellant related in detail his participation in the robbery.

The evidence is sufficient to sustain the judgment of conviction.

In his motion for new trial, filed at the time of resentencing, appellant alleged that the court erred in admitting his confession in evidence in violation of his rights under the Fourth, Fifth, and Sixth, and Fourteenth Amendments to the Constitution of the United States, because it was involuntary and because it was taken after indictment without the benefit of counsel. It was further alleged that the court erred in appointing a new attorney to represent him at his second trial who was not aware of the facts like his court-appointed attorney at his first trial. Such action appellant alleges was tantamount to the appointment of ineffective counsel, in violation of his constitutional guarantees under the Sixth Amendment to the United States Constitution.

While such contentions were not assigned as grounds of error in a brief filed with the clerk of the trial court as required by Sec. 9 of Art. 40.09 of the 1965 Code of Criminal Procedure, we have considered the same as unassigned error under the provisions of Sec. 13 of the statute.

An examination of the record of appellant’s second trial does not reflect that any issue was made as to the voluntary nature of his confession. The only objection made to the confession by appellant was that he was not legally warned, which objection was by the court overruled, after a hearing in the jury’s absence.

Appellant is apparently relying upon Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, in support of his contention that the confession was invalid because it was made in the absence of counsel.

These two cases have been held not to be retroactive. Escobedo has been held to affect only those cases in which the trial began after June 22, 1964, and Miranda to affect only those cases in which the trial began after June 13, 1966. See: Johnson and Cassidy v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882. Clearly, the cases do not affect the appellant’s trial and conviction on January 2, 1963. The contention is overruled.

The record does not support appellant’s claim that the court erred in changing his court-appointed counsel between the first and second trials because such action was tantamount to a denial of his constitutional right to the assistance of counsel. In Ex parte Wilson, supra, as heretofore shown, the claim by appellant that he was denied the effective assistance of counsel in the matter of an appeal from the conviction in the cause was by this court overruled.

The judgment is affirmed.

Opinion approved by the court.


text:
    Ex parte Richard VILLAREAL.
    No. 39777.
    Court of Criminal Appeals of Texas.
    Oct. 26, 1966.
    Clyde W. Woody, Marian S. Rosen,. Houston, for appellant.
    Jules Damiani, Jr., Dist. Atty., Thomas L.. Douvry and Albert G. Redmond, Asst. Dist.. Attys., Galveston, and Leon B. Douglas,. State’s Atty., Austin, for the State.
   OPINION

McDonald, judge.

This is an appeal from an order in a. habeas corpus proceeding denying bail to> appellant upon a complaint charging him with murder.

It is made to appear that subsequent to the entry of the order appealed from, an indictment was returned charging appellant with said offense, and the question of his right to bail upon the charge by complaint has therefore become moot. Ex Parte Davis, Tex.Cr.App., 290 S.W.2d 669; Ex Parte Bowles, 166 Tex.Cr.R. 346, 314 S.W. 2d 108; Ex Parte Bowie, Tex.Cr.App., 368 S.W.2d 767.

The appeal is dismissed.