text:
    Orbie Elmer OLIVER, Appellant, v. The STATE of Texas, Appellee.
    No. 40168.
    Court of Criminal Appeals of Texas.
    April 12, 1967.
    Rehearing Denied May 24, 1967.
    Freddie F. Lee, Pasadena, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough and James I. Smith, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Judge.

The conviction is for statutory rape; the punishment, ninety-nine years.

Trial was prior to January 1, 1966, under the 1925 Code of Criminal Procedure.

It was shown by the state’s testimony that on the date alleged, the eleven-year-old prosecutrix and her twelve-year-old cousin went to a school carnival some block and a half from her home, in the city of Houston. While at the carnival the prosecu-trix became angered and left to go home, between 8 and 8:15 p. m., when a playmate knocked a snowcone from her hand. As she was walking toward her home she saw a man near a car parked in front of a driveway of a telephone building. A street light a little distance from the building made it possible to distinguish objects at the location. She kept walking and the man tapped her on the shoulder and asked where the nearest service station was. After she told him and continued walking, he grabbed her arm, put his hand over her mouth, struck her on the left side of the face, and pulled her to the car. He then threw her in the car to the front floorboard and told her to hide her face. Then he started the car and drove around but returned to the same location, and parked. She was told to get in the back seat. After she got in the back seat he told her to take off her panties. She took off her panties and he then proceeded to tie her hands with some rope. The man kept saying: “ ‘Don’t excite me or I’ll kill you.’ ” He also picked up a knife and, while holding it to her throat, said: “ ‘If you make a sound I’ll slash you.’ ” The prosecutrix was then blindfolded and the man got on top of her and placed his male organ in her sexual parts. In her testimony the prosecutrix described three acts of sexual intercourse with the man and also two acts of sodomy. One act of sodomy she was forced to commit and the other act he committed upon her. After the acts were completed and her blindfold had been taken off, the man exhibited a gun in her face and she was let out of the car to go home.

The testimony shows that the prosecutrix arrived home around 8:30 p. m. in a hysterical condition and could only tell her mother that a man caught her and “ ‘he did horrible things to me.’ ”

The prosecutrix was immediately taken to Methodist Hospital, where she was examined by Dr. Hiram P. Arnold. Dr. Arnold testified that the child’s hymenal ring and vagina had been penetrated, that there was blood in the vicinity of the vaginal opening, .and that he found sperm in her vagina. He expressed the opinion that she had been recently, subjected to sexual intercourse.

A description of the man and the automobile was given by prosecutrix to the officers. She related that the man was heavy-set, needed a shave, and was wearing a brown leather jacket. She described the car as an old black car with the upholstery tearing apart and a window broken on the passenger’s side.

On the morning after the assault, the prosecutrix, in company with her father and her mother and certain officers, went to a service station where she identified an old ’47 or ’48 black Chevrolet automobile belonging to appellant as the car in which she was assaulted. A brown leather jacket and an Army jacket were lying on the back seat of the car. She also identified the appellant, who was working at the station, as the man who had assaulted her. At the time, she asked to hear him speak. Appellant was placed under arrest and taken to the police station, where she again identified him in a police lineup.

At the trial the prosecutrix positively identified appellant as the man who had raped her.

Officers called by the state testified that, following his arrest, appellant gave his permission for them to go to the service station and get the work clothes he had worn the day before and also gave his oral consent for them to search his car.

The clothes were obtained from the station and certain articles were obtained from the car, including the Army jacket lying on the back seat.

A hair found on the jacket, when examined by the police chemist, was found to be identical, in all characteristics, with a hair from prosecutrix’s head. Also a hair found on the blouse which the prose-cutrix wore on the night in question compared in every respect with a pubic hair which appellant gave to the police after his arrest.

Appellant did not testify before the jury but called witnesses, including his mother, who testified in support of a defense of alibi.

The jury, by their verdict, rejected appellant’s defense, and we find the evidence sufficient to support the conviction.

We overrule appellant’s contention that the evidence is insufficient to establish his identity as the person who committed the offense. The positive identification of appellant by the prosecutrix as the guilty party was sufficient. Her credibility as a witness was for the jury. Cook v. State, 88 Tex.Cr.R. 659, 228 S.W. 213.

We also overrule appellant’s contention that the court erred in admitting evidence of the search of the automobile and the fruits thereof because the search was illegal following an unlawful arrest without a warrant.

The officers testified that after his arrest, appellant was duly warned of his constitutional rights against self-incrimination.

At a hearing in the absence of the jury, the officers swore that appellant gave his oral consent to a search of the automobile. Appellant denied that he gave such consent.

The trial court found that consent was given by appellant.

No request was made by appellant to have the issue submitted to the jury. Under the record the court did not err in admitting the evidence. Feather v. State, 169 Tex. Cr.R. 334, 333 S.W.2d 851; Phelper v. State, Tex.Cr.App., 396 S.W.2d 396.

Nor do we agree that appellant’s arrest without a warrant was unlawful. The record reflects that just prior to his arrest at the service station, appellant was pointed out and identified by the prose-cutrix as the man who had raped her.

Officer David DeLatore testified that before the arrest appellant’s face lost color and became pale when he looked at the prosecutrix. He further swore that the officers did not have time to secure a warrant of arrest for appellant and that “We feared he may escape, [sic].”

Under such facts and circumstances, appellant’s arrest without a warrant was authorized by Art. 215, Vernon’s Ann.C.C. P. (now Art. 14.04), in force at the time. Stickney v. State, 169 Tex.Cr.R. 533, 336 S.W.2d 133; Edwards v. State, 171 Tex.Cr.R. 70, 344 S.W.2d 687.

The judgment is affirmed.

ONION, J., not participating.


source: Caselaw Access Project

author: ONION, Judge.

license: Public Domain

text:
    Ex parte Ronald LEWIS.
    No. 40331.
    Court of Criminal Appeals of Texas.
    May 3, 1967.
    David Bolton and Sue Goolsby, Dallas, for petitioner.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

ONION, Judge.

This is an original application for Writ of Habeas Corpus brought by relator seeking his release from the Texas Department of Corrections. Relator alleges that the orders cumulating the sentences by virtue of which he is confined are insufficient.

From the record before us it appears that relator, who had been released on conditional pardon from two Dallas County sentences, was convicted and sentenced on June 23, 1947, in Criminal District Court No. 2 of Harris County, Texas, in Causes Nos. 58,481, 58,482, 58,483, 58,484, 58,486, 58,487, and 58,506. On the same date it appears relator was sentenced in Cause No. 58,505 in the Criminal District Court of Harris County. The sentences in Causes Nos. 58,481, 58,483, 58,484, and 58,486 were for not less than two years nor more than five years, and the sentence in Cause No. 58,487 was for two years. None of these sentences contained an order of cumulation.

The sentence in Cause No. 58,482 is for not less than two years nor more than five years and the order of cumulation contained therein reads: “Sentenced cumulative with sentence from Dallas County, Texas, under name of ‘Ronald Lee Lewis’, No. 104209 TSP.”.

The five year sentence in Cause No. 58,506 reads in part: “Sentenced cumulative with No. 58482.”.

The two to ten year sentence entered in Cause No. 58,505 entered in the Criminal District Court of Harris County reads in part: “Sentenced cumulative with No. 58506 * * * >9

A sentence is a final judgment and should be sufficient on its face to effect its purpose without resort to evidence in aid thereof. It should further convey to the authorities at the Texas Department of Corrections or any County jail clear and unequivocal orders of the trial court so that they may know definitely how long to detain the convict or prisoner.

This Court over the years has admonished trial courts to incorporate in their cumulative sentences a full description of the prior conviction in the interest of accuracy. Ex parte Collier, 156 Tex.Cr.R. 377, 243 S.W.2d 177. In Ex parte Hamilton, 163 Tex.Cr.R. 283, 290 S.W.2d 673, it was pointed out that an order of cumulation should give

(a) the number of such prior conviction,
(b) the correct name of the Court in which the prior conviction was had,
(c) the date of the prior conviction, and
(d) the term of years assessed in the prior case.

See also Ex parte Richmond, 163 Tex.Cr.R. 321, 290 S.W.2d 909; Ex parte Cox, 29 Tex.App. 84, 14 S.W. 396. It would further seem desirable, though not essential, to include in the cumulation order the offense for which the defendant has been previously convicted. Willson’s Criminal Forms, Anno. 7th Ed. Sections 2930, 2969.

Despite the lack of some of the specific and definite recitals recommended, this Court has upheld cumulated sentences which were substantially and sufficiently specific to authorize the punishment sought to be imposed.

In Ex parte Shields, Tex.Cr.App., 371 S.W.2d 395, an order of cumulation containing the number of the cause, the date, and name of the Court was held sufficient. There it was noted that this Court had held cumulation orders valid when such orders contained two, rather than three, details of the prior conviction, citing Ex parte Daffern, 162 Tex.Cr.R. 472, 286 S.W.2d 151; Ex parte Dyess, 161 Tex.Cr.R. 29, 274 S.W.2d 695; Ex parte Bell, 160 Tex.Cr.R. 490, 272 S.W.2d 530; Ex parte Collier, 156 Tex.Cr.R. 377, 243 S.W.2d 177. See also, Ex parte Pruitt, Tex.Cr.App., 385 S.W.2d 384; Ex parte Isom, 168 Tex.Cr.R. 434, 331 S.W.2d 753.

With this background we now examine the cumulation orders in the case at bar.

In Ex parte Robbins, 158 Tex.Cr.R. 44, 253 S.W.2d 53, this Court held invalid a cumulation order similar to the one in Cause No. 58,482, in which reference was by prison number and contained no reference to either court or cause number. The order in Cause No. 58,482 is therefore insufficient.

The order in Cause No. 58,506 is deemed sufficient although reference is made only to the previous cause number since the order was in the same court and on the same day as the sentence to which it is made cumulative. Ex parte Ogletree, 168 Tex.Cr.R. 429, 328 S.W.2d 446, 447; Ex parte Lee, 161 Tex.Cr.R. 398, 278 S.W.2d 137. While such form is not recommended, it has been held that the rule of certainty as to the beginning and ending of each sentence is not so strict as it is when the sentences sought to be cumulated are from different courts. Ex parte Hatfield, 156 Tex.Cr.R. 92, 238 S.W.2d 788; Ex parte Johnson, Tex.Cr.App., 218 S.W.2d 200; Ex parte Snow, 151 Tex.Cr.R. 640, 209 S.W.2d 931. Nevertheless, the like cumulation order in Cause No. 58,505 is not sufficient because, although entered on the same day and in the same county, it was entered in a different Court. Ex parte Cannon, 161 Tex.Cr.R. 447, 278 S.W.2d 850; Ex parte Lucas, 161 Tex.Cr.R. 144, 275 S.W.2d 816; Ex parte McFarland, 160 Tex.Cr.R. 641, 274 S.W.2d 71; Ex parte Coleman, 159 Tex.Cr.R. 48, 261 S.W.2d 351; Ex parte McClain, 158 Tex.Cr.R. 115, 253 S.W.2d 863.

The relator, having shown by certificate of the Texas Department of Corrections that he has served in excess of all concurrent sentences and the validly cumulated Harris County sentence, is entitled to be discharged and is ordered released from custody.


author: O’QUINN, Justice. HUGHES, Justice.

text:
    John L. HILL, Secretary of State, Appellant, v. Roy R. EVANS and Allen C. Matthews, Appellees.
    No. 11527.
    Court of Civil Appeals of Texas. Austin.
    April 12, 1967.
    Rehearing Denied May 10, 1967.

      Crawford C. Martin, Atty. Gen., George M. Cowden, First Asst. Atty. Gen., A. J. Carubbi, Jr., Staff Legal Asst. Atty. Gen., J. C. Davis, W. O. Shultz, James C. McCoy, Asst. Attys. Gen., Austin, for appellant.
    Sam Houston Clinton, Jr., Austin, for ap-pellees.
   O’QUINN, Justice.

This is an appeal from judgment of the district court permanently enjoining Appellant John L. Hill, Secretary of State, from canvassing returns and declaring the result of an election held November 8, 1966, at which was submitted a proposed amendment to the State Constitution to repeal the poll tax as a requirement for voting.

Decision in this case depends on whether the ballot used at the election identified the proposed amendment and fairly gave notice of its intent and subject matter. If the ballot met this test, it was sufficient, and the election was valid.

Appellees Roy R. Evans and Allen C. “Irish” Matthews filed this suit September 16, 1966, seeking to enjoin Appellant John L. Hill, Secretary of State, from certifying the proposed constitutional amendment for placement on the ballot for the general election November 8, 1966. The amendment had been proposed in May, 1965, by the Legislature in House Joint Resolution No. 13 (Acts, 59th Leg., 1965, Reg.Sess., p. 2218). The Governor of Texas approved the resolution June 2, 1965, and it was filed with the Secretary of State June 4, 1965.

In their original petition appellees alleged that Roy R. Evans was secretary-treasurer of Texas AFL-CIO, a voluntary unincorporated association of local labor organizations whose 175,000 members were working men and women, resident taxpayers and citizens of Texas. Appellees alleged that Allen C. “Irish” Matthews was president of Austin AFL-CIO Council, a voluntary unincorporated association comprising local labor organizations whose 7,200 members were working men and women, resident taxpayers and citizens of Travis County.

In addition to the Secretary of State, ap-pellees sued the commissioners’ court, the county judge, the county clerk, and the sheriff of Travis County, seeking to restrain these officers from printing the official ballot and using it at the election with a proposition on the ballot submitting the amendment proposed by House Joint Resolution No. 13.

The case was heard September 20 on temporary injunction, and the district court denied all temporary injunctive relief sought by appellees in an order entered September 21, 1966.

After the general election on November 8 appellees filed an amended petition November 18, 1966, with Appellant John L. Hill, Secretary of State, as the only defendant. Appellees prayed that appellant be enjoined from tabulating, estimating or canvassing the returns of the November 8 election with respect to the amendment pro-, posed under House Joint Resolution 13 and from declaring the result of the election on this proposition.

Appellees filed motion for summary judgment December 22, 1966, and appellant moved for summary judgment January 11, 1967. Appellees’ motion was heard by the trial court January 4, and on January 12 attorneys for the parties were advised by the court in a letter that judgment would be entered for appellees. By stipulation it was agreed that appellant’s motion for summary judgment could be considered by the court without necessity of ten days’ notice.

Judgment was entered January 17, 1967, granting the motion of appellees for summary judgment and permanently enjoining appellant from tabulating, estimating and canvassing the returns of the election with regard to the proposed amendment under House Joint Resolution 13 and from ascertaining or declaring the result of the election. Appellant’s motion was denied.

Appellant duly perfected appeal to this Court and here contends that the language of the ballot submitting the proposed amendment under House Joint Resolution No. 13 was sufficient to identify the amendment and to give fair notice to the voter of its intent and subject matter. The Legislature directed that the ballot have printed on it the following:

“FOR repealing the poll tax as a requirement for voting.
AGAINST repealing the poll tax as a requirement for voting.”

Appellees contend, and the trial court held, that this form of ballot failed to give the voter fair notice of the scope, character, and purpose of the amendment. Appel-lees argue that the ballot language was misleading, and that its failure to give fair notice to the voter might have been cured by adding the words “and providing for annual registration of all voters.”

The trial court, in the letter opinion of January 12, condemned the language of the ballot as “telling the voters that something is being removed from the Constitution,” but failing to suggest “that something is being written into the Constitution.”

The full import of these opposing contentions is not apparent without careful examination of House Joint Resolution No. 13 as adopted by the Legislature in May, 196S, and approved by the Governor June 2, 1965.

The caption of the resolution described it as “[pjroposing an amendment to Sections 2 and 4 of Article VI of the Constitution of the State of Texas so as to repeal the provision making payment of the poll tax a requirement for voting and so as to authorize the Legislature to provide for the registration of all voters.”

The body of the resolution comprised six sections, which are described as follows:

Section 1 proposed that Section 2 of Article VI of the Constitution, Vernon’s Ann.St. be amended, effective February 1, 1968, by deleting specified language and substituting for it different language.

The deleted language was all that part of Section 2 of Article VI beginning in the first sentence with the words “and provided further” and including the balance of the first sentence of Section 2. The deleted part of Section 2 required payment of the poll tax “before offering to vote at any election in this State” and the holding of “a receipt showing that said poll tax was paid before the first day of February next preceding such election.” The deleted language also permitted the voter to make an affidavit of lost or misplaced tax receipt at the polling place, and authorized a husband or a wife to pay the poll tax of the other spouse and to accept a receipt for payment.

The substituted language provided “that before offering to vote at an election a voter shall have registered annually,” but prescribed that the “requirement for registration” would not be “considered a qualification of an elector” under “the term ‘qualified elector’ as used in any other Article” of the Constitution “in respect to any matter except qualification and eligibility to vote at an election.” It further validated any legislation enacted in anticipation of adoption of the proposed amendment.

In section 1 of the resolution, following' the statements of deleted and substituted language described above, the Legislature then set out the entire text of Section 2, Article VI, as amended, “with the deleted language marked through by a broken line and with the new language underscored.” In this manner the Legislature twice stated the changes proposed for Section 2, Article VI, of the Constitution in section 1 of the joint resolution.

Section 2 of the resolution followed the same pattern used in section 1 and proposed amendment of Section 4, Article VI, of the Constitution.

As amended, Section 4 was made to read as set out below, with the deleted language here shown in brackets and the substituted word “shall” shown in italics:

“Section 4. In all elections by the people, the vote shall be by ballot, and the Legislature shall provide for the numbering of tickets and make such other regulations as may be necessary to detect and punish fraud and preserve the purity of the ballot box; and the Legislature [may] shall provide by law for the registration of all voters [in all cities containing a population of ten thousand inhabitants or more.]”

Section 3 of the resolution provided that adoption of the proposed amendment would not change or nullify any other amendment of Sections 2 and 4, Article VI, for a different purpose, if adopted at an earlier election or the same election for this proposed amendment.

Section 4 called for the proposed changes in Sections 2 and 4, Article VI, to be submitted at the general election of November 8, 1966, and prescribed the ballot language for submission of the proposal.

Section 5 directed that the proclamation declaring adoption of the amendment set forth the full text of the amended sections.

Section 6, the last section of the resolution, directed the Governor to “issue the necessary proclamation for the election” and that the proposed amendment be “published in the manner and for the length of time as required by the Constitution and Laws of this State.”

When more than one proposed constitutional amendment is submitted by the legislature at one election, the secretary of state is required to give each proposition a separate number on the ballot, the numbers to be determined by lot. Vernon’s Ann.Tex. Sts. Election Code, Art. 6.07 (formerly Art. 2982, V.A.T.S.); Acts 1951, 52nd Leg., p. 1097, ch. 492, art. 63, as amended Acts 1955, 54th Leg., p. 907, ch. 357, sec. 1. Sixteen proposed amendments were submitted at the November 8, 1966, election, and the amendment proposed by House Joint Resolution No. 13 became Proposition No. 7 on the ballot.

Neither the Constitution nor the statutes prescribe the form in which a proposed constitutional amendment is submitted, unless the legislature fails to prescribe the form. In such instances, Article 6.07 provides that if the form has not been prescribed by the legislature, the Governor shall prescribe the form in his proclamation. The Governor is required to describe the proposal “in such terms as give a clear idea of the scope and character of the amendment in question.” (Art. 6.07)

The legislature did prescribe the form of submission for Proposition No. 7 in section 4 of House Joint Resolution No. 13, and the requirements of Art. 6.07 as to form are not applicable, unless it be said that the legislature ought to be governed by the same standards required of the Governor. Whiteside v. Brown, Tex.Civ.App., Austin, 214 S.W.2d 844 (writ dsmd.).

In the absence of specific direction to the legislature as to the form of submission, the proposed amendment is validly presented if enough is printed on the ballot to identify the matter and show its character and purpose. 26 Am.Jur.2d, Elections, sec. 221, and cases cited.

Whether the ballot language was sufficient to identify the amendment and show its character and purpose must be tested under the facts at the time the legislature adopted the resolution proposing the amendment. In May, 1965, when the resolution was adopted, no court had declared the poll tax invalid as a requirement for voting. The lawsuit which reached the Supreme Court of the United States in 1966, resulting in a decision holding the poll tax unconstitutional as a precondition to voting, was filed several months after adjournment of the regular session of the 59th Legislature.

The first Court decision affecting validity of the poll tax as a precondition to voting was by the United States District Court for the Western District of Texas February 9, 1966. (United States v. State of Texas, 252 F.Supp. 234). This decision was affirmed by the Supreme Court on May 2, 1966, nearly a year after the legislature adopted House Joint Resolution No. 13. (384 U.S. 155, 86 S.Ct. 1383, 16 L.Ed.2d 434)

When the legislature proposed the amendment of Sections 2 and 4, Article VI, in 1965, the paramount issue was payment or not of the poll tax as a requirement for voting. Annual registration was to be continued as a part of the Constitution and therefore was not a new question. It was not mentioned in the caption of the resolution.

In the light of events taking place late in 1965 and through May of 1966, the paramount issue changed before the election in November, 1966. Necessity for repealing the provision for payment of the poll tax as a requirement for voting no longer existed, except to effect orderliness in the Constitution by removing a requirement no longer enforceable. Attention was focused upon registration aspects of the proposed change because payment or not of the poll tax had become moot.

The decision of the Supreme Court of the United States changed the need for the amendment of Sections 2 and 4, but could not halt the processes set in motion a year earlier to bring about a change in the Constitution deemed important at the time though no longer needed for the original reasons. After the regular session adjourned in 1965, the resolution could not be revised. Even if the legislature had been inclined to reconsider the resolution in the light of new conditions, the Constitution would not permit consideration of constitutional changes at a special session. The regular session did not convene until 1967, two months after the election.

Article XVII of the Constitution prescribes notice to the people of any amendment to the Constitution proposed by the legislature through publication in newspapers in each county of the state. This section requires that the proposed amendment “shall be duly published once a week for four weeks, commencing at least three months before an election * * Constitution of Texas, Art. XVII, sec. 1.

It is undisputed that the full text of House Joint Resolution No. 13 was published four consecutive weeks in July and August, 1966, as directed by the Constitution. The publications appeared under the heading, “Public Notice/Proposed Constitutional Amendment/Number Seven on the Ballot,” followed by the statement, PROPOSED CONSTITUTIONAL AMENDMENT TO BE VOTED ON AT AN ELECTION TO BE HELD ON NOVEMBER 8, 1966,” and full text of House Joint Resolution No. 13, with its caption, as adopted by the legislature.

In addition to the official notices, widespread and prominent publicity throughout the state was given to House Joint Resolution No. 13 and its subject matter, as well as to identity of the proposal as Proposition No. 7 on the ballot. Uncontradicted proof was made in the trial court that numerous news stories and editorials, published in nearly 100 newspapers over the state having a combined circulation of more than 2,600,000, dealt with the fact that Proposition No. 7 on the ballot provided for annual registration.

Widespread publicity was shown to have been given, by newspapers and other news media, to the opposition of the Texas AFL-CIO to annual registration and to its suit to enjoin the placing of Proposition No. 7 on the ballot. Some of the publicity related to the opposition of the League of Women Voters to Proposition No. 7 because it would require annual registration. The Texas AFL-CIO informed its membership in September and October, 1966, through its official newspaper that Proposition No. 7 would provide for annual voter registration. On October 24, 1966, two weeks before the election, the Texas AFL-CIO News told its readers that Proposition No. 7 on the ballot “would have voters believe that it repeals the Poll Tax, but this has already been done by federal courts.” The News also pointed out that, “The amendment, as it appears on the ballot, does not mention annual registration.”

Appellees complain that the legislature did not include a reference to annual registration in the ballot language. Appellees suggest this fault might have been cured by adding, after notice on the ballot of repeal of the poll tax as a requirement for voting, the clause “and providing for annual registration of all voters.”

The caption of House Joint Resolution No. 13 clearly reflects that the legislature did not regard annual registration for voters a new subject requiring mention on the ballot. The caption refers to (1) repeal of the provision making payment of the poll tax a requirement for voting and (2) to “registration of all voters.”

The reference in the caption to registration of all voters obviously meant the change proposed in Section 4, Article VI, of the Constitution. No mention is made in the caption or in the proposed amendment of Section 4 to registration as an annual or permanent requirement, but only to registration of all voters. This removed from the Constitution the exception for a limited number of voters not theretofore required to register.

Thus the registration of all voters, whether on an annual or permanent basis, would be achieved in amendment of Section 4, not Section 2, of Article VI. Annual registration of voters was already a requirement of Section 2.

The deleted language in Section 2 provided that every voter subject to payment of the poll tax must have paid the tax by February 1 each year “before offering to vote at any election in this State.” The voter was required to hold a receipt showing payment.

The substituted language, to eliminate the requirement for payment of the tax in order to vote, provided that the voter “be for offering to vote at an election * * * shall have registered annually.”

To vote under the poll tax, registration annually before February 1 was required. Under the proposed change, no final date for annual registration was prescribed, thus impliedly authorizing the legislature to fix dates for registration each year.

When the deleted language of Section 2 is placed side by side with the substituted language and the two are compared, it is apparent that the only basic difference between them is that under the deleted language the voter paid for registration and under the substituted language this requirement was removed. The net effect of deleting words and phrases and substituting words and phrases was to remove from the Constitution a precondition of paying for a registration receipt before voting. Nothing more was done, except to leave the final date for registration open to be fixed by the legislature. Section 4 was amended to supplement the registration system by making it applicable to all voters.

Provisions of the Constitution found in Section 2 for many years have been augmented by numerous statutes enacted by the legislature. The Election Code was replete with references to the use of “poll lists” in connection with elections. Prior to its repeal in 1966, Article 5.22 (Vernon’s Ann.Tex.Stats., Election Code) required county tax collectors to prepare “separate certified lists” from the poll ta^ receipts and exemption certificates in their offices showing “a description of the voter,” not a description of the “taxpayer.” The description of voters was to include ■“residence, length of his residence in the state, county and city, his age, sex, race, occupation, and post-office address.” These voter lists were furnished election officials as the certified list of qualified, or registered, voters for the current year.

Under Section 2 any person having paid the poll tax before February 1 in any year was a registered voter. As amended, Section 2 would require no more than was required before the amendment. The only substantial change in Section 2 was to remove from the Constitution the requirement that registration be paid for by the voter. Changes proposed in Section 2 would not inaugurate a system of annual registration, but would retain annual registration. Annual registration, through the poll tax, had been a part of the Constitution since 1902. Section 2 as amended would remove the burden of purchasing the registration receipt and omit a fixed date, February 1, by which registration must be completed each year.

Amendment of Section 4 would require the legislature to provide by law for “registration of all voters.” The effect of this change was to include a small segment of the voters, those 60 years or older not living in cities of 10,000 or more, who were not required to get exemption certificates annually.

The primary purpose of the proposed amendment, in fact, almost its entire purpose, was to provide suffrage without cost to the voter for registration. One new feature, in addition to repealing the tax on registration, was to extend registration to include all voters. The only complete notice, although probably not the ideal, would have been to print the joint resolution in full. Something less than full and complete notice is the practical solution, and if it is fair, it suffices.

Sufficiency of the ballot form in submission of constitutional amendments has been questioned but rarely in this state. In 1948 this Court, in Whiteside v. Brown, supra, held valid a ballot submitting a proposed amendment to levy taxes for construction of buildings for certain educational institutions.

The primary object of the proposed amendment as disclosed by the ballot was to rearrange and levy taxes for the purpose of financing construction and equipment of buildings and other permanent improvements at state institutions of higher learning. It was contended in the case that because the ballot did not disclose that the proposed amendment prohibited the various colleges from receiving state funds for building purposes for thirty years, except under certain circumstances, the ballot was insufficient and the election invalid.

This Court held that the omission of this provision from the ballot was not fatal, and said that the omission was a necessary consequence of failure to print the amendment in full on the ballot.

“It must be presumed,” the Court said, “that the voter would familiarize himself with the contents of the proposed amendment before entering the ballot box, otherwise the legislature would have required a full copy on the ballot.”

The Supreme Court of Texas in 1949 held the language of the ballot sufficient in submitting a proposed amendment authorizing the legislature to provide for appeals direct to the Supreme Court in certain cases. Railroad Commission v. Sterling Oil & Refining Co., 147 Tex. 547, 218 S.W.2d 415.

In that case the court pointed out that the Constitution “requires that certain publicity shall be given a proposed amendment prior to an election.”

“This is done,” the court said, “to identify the amendment and to show its character and purposes, so that the voters will be familiar with the amendment and its purposes when they cast their ballots.”

Sixteen proposed amendments to the Constitution were submitted at the election November 8, 1966. The amendment proposed under House Joint Resolution No. 13 was Proposition No. 7 on the ballot. The remaining fifteen propositions included these subjects: assessment of agricultural land, airports established by one or more counties, withdrawal of Arlington college from the permanent university fund, raising maximum terms from two to six years for directors of certain special districts, a state-wide retirement system cooperative with local governments, aid to survivors of firemen and law officers killed while performing duty, extending vote to newcomers in certain federal and all state-wide races, increasing Court of Criminal Appeals to five judges, preserving taxes and bonds in certain school districts after boundary changes, authorizing $200,000,000 in water development bonds, providing way to dissolve hospital districts, authorizing legislature to make laws for counties of 1,200,000 to consolidate functions of government and contract for performance, allowing military personnel residents of Texas to vote, authorizing grants in aid of the handicapped through rehabilitation facilities, and establishing date for new legislators to take office.

Proposition No. 7 asked the voter to choose between for or against “repealing the poll tax as a requirement for voting.” The language of the proposition clearly set it apart from the fifteen other propositions. It is difficult to believe that any voter, having familiarized himself with the proposal by reading the full text of the resolution published in the newspapers, could confuse Proposition No. 7 with any of the other fifteen subj ects on the ballot, or that the voter would fail to recognize Proposition No. 7 as the subject covered by House Joint Resolution No. 13.

If it is presumed that when the voter reaches the polling place he is already familiar with the contents of the proposed amendment, the language of the ballot will have served its purpose if it directs his attention to the amendment in such manner that he can identify the amendment and not confuse it with other propositions on the same ballot. To accomplish this end, the ballot language need show only the character and purpose of the amendment, and need not show all details. When the ballot has directed the attention of the voter to an amendment with which he is presumed to be familiar, the ballot has given fair notice, and the results of the election will not be set aside by reason of insufficiency of the ballot.

In view of the publicity, both official and otherwise, over a period of at least three months immediately prior to the election, through newspapers, radios, and television, and the widespread interest of the public in the subject, it would appear highly unlikely that any voter within the sight or sound of these media, or of other voters, went to the polls November 8 without knowing the scope and character of Proposition No. 7.

No voter is shown to have been deceived or misled by the proposition as stated on the ballot. The publication of the proposed amendment as required by the Constitution constitutes notice to the voters. This is their means of being informed of the contents of the proposal. The statement on the ballot refers to the proposed amendment as advertised. If the statement on the ballot directs the mind of the voter of ordinary intelligence to the proposed amendment, it has served its purpose to give fair notice. The court may look at all the facts and circumstances surrounding submission to ascertain whether fair notice was given by the ballot.

The only changes in annual registration proposed in House Joint Resolution No. 13 were (1) no payment required, which was stated on the ballot, (2) final date for registration each year subject to legislative action, and (3) registration made universal, with no exceptions. The first change was fully stated on the ballot. The other changes were details, not major changes, and it was not necessary to include them on the ballot by which the voters would decide whether to repeal the poll tax as a requirement for voting.

The legislature acted in good faith and consistent with law in ordering placed on the ballot the only major change proposed, which was repeal of the poll tax as a requirement for voting. Since under the proposed amendment annual registration for voters was retained in the Constitution and not added, the legislature with reason must have considered reference to annual registration on the ballot an unnecessary detail, and possibly misleading if included.

When the amendment was proposed, the legislature could not anticipate that a year and a half later the only major change proposed would be moot. The legislature, in prescribing the ballot language, could act only under facts existing when the proposal was made.

With the main question moot by court decision, annual registration received wide notice, even though it was not an innovation, having been in the Constitution 64 years. The relation of annual registration to Proposition No. 7 was widely published by news media all over the state for several months before the election. The full text of the joint resolution was published in all 254 counties of the state for four consecutive weeks less than three months before the election. This widespread public notice leading up to the election served no doubt to send a well-informed electorate to the polls in November, 1966, to vote on Proposition No. 7.

We hold that the ballot submitting House Joint Resolution No. 13, under Proposition No. 7, was valid, and the secretary of state was erroneously enjoined from canvassing the returns and declaring the result of the election on this proposed amendment November 8, 1966.

The judgment of the district court is reversed and rendered.

Reversed and rendered.

DISSENTING OPINION

HUGHES, Justice.

I respectfully dissent.

The simple question presented by this appeal is whether the ballot used at the November 1966, election, regarding Proposition 7, adequately described the purport of the proposed Amendments to our Constitution.

The sponsors of H.J.R. 13 which authorized submission of these proposed Amendments to the Constitution were careful to describe the import of these Amendments to their colleagues when they wrote the caption to such resolution, which I quote:

“Proposing an Amendment to Sections 2 and 4 of Article VI of the Constitution of the State of Texas so as to repeal the provision making payment of the poll tax a requirement for voting and so as to authorize the Legislature to provide for the registration of all voters.”

True to the caption, the body of H.J.R. 13 provided for two radical changes to the Constitution.

These two proposed changes were (1) repeal of the poll tax as a requirement for voting (2) the annual registration of all voters.

The ballot used to submit these two proposed Constitutional changes to the electorate described only the first of such changes.

I believe, as held in Whiteside v. Brown, 214 S.W.2d 844, Tex.Civ.App., Austin, writ dismissed w.o.j., that to be valid the ballot used in elections held to vote on amendments to the Constitution must describe the amendment “in such terms as to give a clear idea of the scope and character of the amendment in question,” or, stated differently, the language on the ballot must identify the amendment and show its “character and purpose.”

In Brown we held that the wording of the ballot was sufficient even though some of the provisions of the proposed amendments were omitted and in so holding, we stated:

“Some of the details and provisions, including the one to which appellants direct our attention, were omitted. This is a necessary consequence of the failure to print the amendment, in extenso, upon the ballot. It must have been presumed that the voter would familiarize himself with the contents of the proposed amendment before entering the ballot box, otherwise the legislature would have required a full copy on the ballot.
It is not shown that any voter was misled or deceived by the form of submission of this amendment. No one who had previously read the amendment could have been misled or deceived by the ballot used.”

The majority opinion quotes only the last sentence of the first paragraph of the above quotation from Brown. This is a quotation out of context, and misleading. We were clearly referring to details of the amendments because we had just held, in the preceding paragraph that “The primary object of the amendment, as disclosed by the ballot, was to rearrange and levy taxes for the purpose of financing the construction and equipment of buildings and other permanent improvements at state institutions of higher learning. This was its intent, import, theme and subject matter, and, hence, its scope.”

Is the annual registration of all voters a mere detail of the dead issue of removing the requirement that a voter otherwise qualified must have timely paid his poll tax before offering to vote?

I quote from the majority opinion:

“The only changes in annual registration proposed in House Joint Resolution No. 13 were (1) no payment required, which was stated on the ballot, (2) final date for registration each year subject to legislative action, and (3) registration made universal, with no exceptions. The first change was fully stated on the ballot. The other changes were details, not major changes, and it was not necessary to include them on the ballot by which the voters would decide whether to repeal the poll tax as a requirement for voting.”

These “details” assumed great importance as reflected by these comments of the majority:

“In the light of events taking place late in 1965 and through May of 1966, the paramount issue changed before the election in November, 1966. Necessity for repealing the provision for payment of the poll tax as a requirement for voting no longer existed, except to effect orderliness in the Constitution by removing a requirement no longer enforceable. Attention was focused upon registration aspects of the proposed change because payment or not of the poll tax had become moot. * * *
Widespread publicity was shown to have been given, by newspapers and other news media, to the opposition of the Texas AFL-CIO to annual registration and to its suit to enjoin the placing of Proposition No. 7 on the ballot. Some of the publicity related to the opposition of the League of Women Voters to Proposition No. 7 because it would require annual registration. The Texas AFL-CIO informed its membership in September and October, 1966, through its official newspaper that Proposition No. 7 would provide for annual voter registration. * * *
With the main question moot by court decision, annual registration received wide notice, even though it was not an innovation, having been in the Constitution 64 years. The relation of annual registration to Proposition No. 7 was widely published by news media all over the state for several months before the election.”

This was certainly a lot of ballyhoo for a sideshow. Our history refutes the notion that the registration of voters was a detail and not an issue of major importance in the November 1966 election.

The Texas Constitution of 1876 provided in Article VI, Section 4, that “no law shall ever be enacted requiring a registration of the voters of this State.” In 1887 an Amendment proposing to provide registration of voters in cities of ten thousand or more population and in such counties as the Legislature might deem advisable was rejected by the voters. In 1891 an amendment granting authority for registration of voters in such cities but omitting any reference to counties was approved. As late as November 5, 1963, a majority of voters were “AGAINST the amendment of the Constitution of the State of Texas so as to repeal the provision making payment of the poll tax a requirement for voting and so as to authorize the Legislature to provide for the registration of all voters.”

The principal theme of the majority opinion seems to be that since the Constitutional provisions relating to the poll tax as a requirement for voting provided, in effect, an annual registration of voters, nothing new was added to the Constitution by the voter registration provisions contained in the proposed amendment.

If we concede that such was the effect of the Constitutional provisions in the Constitution relating to the poll tax as a requirment for voting, then it follows as surely as night follows day that when the “well informed” electorate voted in November 1966 to repeal the poll tax as a requirement for voting it repealed the annual registration of voters which was effected by this requirement.

The Legislature recognized that if the Supreme Court of the United States held invalid our laws making payment of a poll tax a requirement for voting that we would be without any method of registering voters when it enacted S.B. 1, p. 1, General and Special Laws, 59th Leg., First Called Session providing for the registration of voters in the event of such occurrence by declaring in the emergency clause to such Act, “The necessity for immediate enactment of a voter registration law in order to avoid having to conduct elections without voter registration lists, arising from the recent judgment of the United States District Court for the Western District of Texas that the provisions of Texas law requiring payment of a poll tax as a condition for voting are invalid * * * ” creates an emergency etc.

The trial judge incisively described the inadequacy of the ballot used in submitting proposed amendment No. 7 when he said:

“ * * * To me this is telling the voters that something is being removed from the Constitution, but there is no suggestion that something is being written into the Constitution.”

The observation of the trial judge is literally and legally true and no amount of political sophistry can demonstrate its falsity.

The majority cites only two cases as bearing on its judgment, Brown by this Court, the principles of which it ignores, and Railroad Commission v. Sterling Oil and Refining Company, 147 Tex. 547, 218 S.W.2d 415.

Sterling was not an election contest, however the Court passed upon the validity of an amendment to the Constitution where the insufficiency of the ballot was raised. In sustaining the validity of the ballot the first of many authorities cited to support its ruling was our opinion in Brown.

The majority seems to imply that compliance with publication requirements relating to proposed constitutional amendments cures all. This is patently erroneous. The law requires certain publication of the proposed amendment. It also requires a ballot which describes the scope and character of the proposed amendment. These requirements complement each other. Substantial compliance with both requirements is prerequisite to a fair or lawful election.

If Proposition 7 on the November 1966 election ballot is sustained and accomplishes the incorporation into the Constitution the proposed amendments in full, then the electorate of Texas was offered and got a pig in a poke. It got one amendment fully exposed; it got another amendment in a bag.

The question has not been presented and I express no opinion on whether the November 1966 election had the sole effect of repealing the poll tax as a requirement for voting.

After the decision of the majority, two of the State’s leading newspapers, the Houston Post and the Houston Chronicle, carried stories of the decision. The Chronicle, 4-12-67, gave the story this caption: “COURT UPHOLDS VOTE ABOLISHING POLL TAX.” The Post, 4-13-67, gave the story this caption: “JURISTS RULE FOR ANNUAL REGISTRY.”

The captions to these stories illustrate, I believe, the dual nature of H.J.R. 13 and that each of its proposals was of major importance.

I would affirm the judgment of the trial court.

      . “PUBLIC NOTICE Proposed CONSTITUTIONAL AMENDMENT NUMBER SEVEN ON THE BALLOT PROPOSED CONSTITUTIONAL AMENDMENT TO BE VOTED ON AT AN ELECTION TO BE HELD ON NOVEMBER 8, 1966. HOUSE JOINT RESOLUTION NO. 13 proposing an Amendment to Sections 2 and 4 of Article VI of the Constitution of the State of Texas so as to repeal the provision making payment of the poll tax a requirement for voting and so as to authorize the Legislature to provide for the registration of all voters.
      BE IT RESOLVED BY THE LEGISLATURE OF THE STATE OF TEXAS:
      Section 1. That Section 2 of Article VI of the Constitution of the State of Texas be amended, effective February 1, 1968, by deleting the following language:
      ‘and provided further, that any voter who is subject to pay a poll tax under the laws of the State of Texas shall have paid said tax before offering to vote at any election in this State and hold a receipt showing that said poll tax was paid before the first day of February next preceding such election. Or if said voter shall have lost or misplaced said tax receipt, he or she, as the case may be, shall be entitled to vote upon making affidavit before any officer authorized to administer oaths that such tax receipt has been lost. Such affidavit shall be in writing and left with the judge of the election. The husband may pay the poll tax of his wife and receive the receipt therefor. In like manner, the wife may pay the poll tax of her husband and receive the receipt therefor,’ and by substituting therefor the following language:
      ‘provided, however, that before offering to vote at an election a voter shall have registered annually, but such requirement for registration shall not be considered a qualification of an elector within the meaning of the term “qualified elector” as used in any other Article of this Constitution in respect to any matter except qualification and eligibility to vote at an election. Any legislation enacted in anticipation of the adoption of this Amendment shall not be invalid because of its anticipatory nature.’
      The text of this Section, as so amended, is shown below with the deleted language marked through by a broken line and with the new language underscored:
      ‘Section 2. Every person subject to none of the foregoing disqualifications who shall have attained the age of twenty-one (21) years and who shall be a citizen of the United States and who shall have resided in this State one (1) year next preceding an election and the last six (6) months within the district or county in which such person offers to vote, shall be deemed a qualified elector; aaet provided further; that aay voter who fc subject to pay a rtnll 4-i-t f- tiwAww 4-Vt n 1 r> t-ttc-i fVi a Qtn 4-/-⅝ JTvtt uh3 UltuvA I'XIO llin w v —• tilv ULlluv of Texas shall have pai4 said tas before offering to vote at aay dee-tiea ia this -State aad held a receipt showing that said pell tas was paid before the first day of February aest preceding suefa oleetien? Or if TTftinT» fV> oil Vt n tt/⅝ 1 rt-w rv>íor>l n rtnA uuxrc Tutur nrmzz Httv" xvot ui iii.ru 11.i..⅛ said tas receipt, he or she; as the ease aiay be; shall be entitled to vote upon rn f> T7"* ^ ^ f| -f-p* <~> tt-⅞ 4- nn— n -it u t?vXviv trtrip wxrTtrtjv U>ll thorized to administer oaths that sueh-tas receipt has beea lost? Saeh affi-darit shall be made ia writing aad left with the judge of the election. The husband aiay pay the pell tas ef his wife aad receive the receipt there-⅛ ⅛ like manner,- the wife may pay the pell tas ef her husband mid receive the receipt therefor; provided however, that before offering to vote at an election a voter shall have registered annually, but such requirement for registration shall not be considered a qualification of an elector within the meaning of the term “qualified elector” as used in any other Article of this Constitution in respect to any matter except qualification and eligibility to vote at an election. Any legislation enacted in anticipation of the adoption of this Amendment shall not be invalid because of its anticipatory nature. The Legislature may authorize absentee voting. And this provision of the Constitution shall be self-enacting without the necessity of further legislation. Any member of the Armed Forces of the United States or component branches thereof; or in the military service of the United States, may vote only in the county in which he or she resided at the time of entering such service so long as he or she is a member of the Armed Forces.’
      Sec. 2. That Section 4 of Article VI of the Constitution of the State of Texas be amended by changing the word ‘may’ to ‘shall’ in the last clause thereof and by deleting the words ‘in all cities containing a population of ten thousand inhabitants or more.’
      The text of this Section, as so amended, is shown below, with the deleted language marked through by a broken line and with the new language underscored :
      ‘Section 4. In all elections by the people, the vote shall be by ballot, and the Legislature shall provide for the numbering of tickets and make such other regulations as may be necessary to detect and punish fraud and preserve the purity of the ballot box; and the Legislature aay shall provide by law for the registration of all voters ia all cities eea-tafeáag a population e# tea thousand iahabitaats ea saore.-
      Sec. 3. If any other Amendment to Sections 2 or 4 of Article VI of the Constitution of the State of Texas, being for a different purpose, is adopted at an earlier election or at the same election, the adoption of this Amendment shall not be construed as nullifying any change made by such other Amendment.
      Sec. 4. The foregoing Constitutional Amendment shall be submitted to a vote of the qualified electors of the state at an election to be held on the first Tuesday after the first Monday in November, 1966, at which election all ballots shall have printed thereon the following:
      ‘FOR repealing the poll tax as a requirement for voting.
      ‘AGAINST repealing the poll tax as a requirement for voting.’
      Sec. 5. If the foregoing Amendment is adopted, the proclamation of the Governor declaring the adoption of the Amendment shall set forth the full text of the amended Sections, as amended herein and as amended by any other proposed Amendment which is submitted by the 59th Legislature and which has been duly adopted prior to such proclamation.
      Sec. 6. The Governor of the State of Texas shall issue the necessary proclamation for the election and this Amendment shall be published in the manner and for the length of time as required by the Constitution and laws of this State.”

      . The Port Worth Court of Civil Appeals in Turner v. Lewie, 201 S.W.2d 86, writ dism., w. o. j., in a city charter amendment election case stated the test or rule in this language:
      “The ballot should contain a description of the proposition submitted in such language as to constitute a fair portrayal of the chief features of the proposed law, or amendment, in words of plain meaning, so that it can be understood by persons entitled to vote. 18 Am. Jur., p. 298.”

      . Actually, the fact of public discussion of this matter is wholly irrelevant. If public discussion validates an unlawful election, then lack of public discussion would invalidate a lawful election. The absurdity of these propositions is obvious.

      . S.J.U. No. 1, 58th Leg. General and Special Laws, p. 1797.
      The quoted language is taken from the ballot form prescribed by the Legislature.

      . It must be remembered that the Constitution only authorized the registration of voters in cities containing a population of 10,000 or more inhabitants.


author: O’QUINN, Justice.

text:
    TRUSTEES OF the CASA VIEW ASSEMBLY OF GOD CHURCH, Appellants, v. Reverend Fred A. WILLIAMS, Appellee.
    No. 11485.
    Court of Civil Appeals of Texas. Austin.
    April 19, 1967.

      Vactor H. Stanford, Dallas, for appellants.
    Jay S. Fichtner, Paul F. Vernon, Dallas, for appellee.
   O’QUINN, Justice.

This case, an action to recover a one-acre tract of land conveyed in 1960 by a Dallas church to its pastor, was decided in district court on motions for summary judgment.

Trustees of the Casa View Assembly of God Church brought this suit in 1964 to recover land from Rev. Fred A. Williams, appellee, who had resigned as pastor of the church in 1962 and moved to the State of Florida.

The church trustees, appellants in this cause, alleged that the acre of land was conveyed to appellee “in trust * * * upon which to build a parsonage for the church,” with the right in the church “to purchase the equity in the land * * * when the church was financially able to do so.” A resolution adopted by the congregation of Casa View Assembly of God Church on June 1, 1960, directed and empowered the trustees “to execute a General Warranty Deed to Fred A. Williams [to the acre of land, described in the resolution] “on which to build a parsonage.” The resolution also recited that “The Church is to have an option to purchase the equity from Rev. Williams when the Church is financially able to do so.”

The land was conveyed to appellee in August, 1960. Two years later, in August, 1962, appellee resigned as pastor, without having built the parsonage, and moved to Florida with record title to the land in him.

Appellants alleged demand upon appellee for reconveyance of the land to the church and tender of his equity, being taxes paid by appellee in years 1960 through 1963. Appellants tendered into the registry of the court taxes for 1960 through 1965 as the entire equity of appellee.

Appellee answered contending that in the summer of 1960 the church was in financial trouble and on July 20, 1960, at a regular business meeting the church decided to deed the acre of land to appellee, with the understanding “that the deed was to express some measure of appreciation of the church for the work that affiant had done in its behalf.” Appellee does not assert and the record does not show that the congregation took any formal action at this meeting to revoke or amend the resolution adopted June 1.

In his affidavit supporting his answer to appellants’ motion for summary judgment, appellee stated that two years after the deed, in connection with his departure as pastor in August, 1962, “the Trustees and Deacons of the church” held a regular meeting at which there was a discussion relating to the property. Appellee swore that all members of the church present at the meeting “recognized that affiant had still not been paid for his many sacrifices, physical, mental and financial, on behalf of the church.” No claim is made that the trustees and deacons, or the church congregation, took any concerted action either to affirm or rescind the transfer of the land to appellee.

Appellee further swore that, “At that time the trustees acknowledged that if and when the church were ever to re-purchase the property from affiant, it would pay him for his investments, not only in the said acre of land itself, but his investments of labor, and monies in the entire church property.” Appellee swore that he had spent $3,500 in behalf of the church, and “had put in physical labor, other than in connection with his duties as pastor, in building and refurbishing the church, the reasonable value of such labor being in the sum of $2,000.”

The deed to appellee was executed by the church trustees August 4, 1960, and acknowledged August 5, 1960. The resolution of the congregation adopted June 1, 1960, authorizing and directing the making of the deed was certified by the church secretary and acknowledged August 5, 1960, before the same notary public taking acknowledgments of the trustees on the deed. The deed and the resolution were filed for record in Dallas County August 11, 1960. The resolution was recorded on that date, and the deed was recorded August 16, 1960.

The conveyance executed by the trustees was a general warranty deed reciting a consideration of ten dollars and other good and valuable consideration in hand paid by appellee, receipt of which was “fully acknowledged and confessed.” The deed contained no reference to building a parsonage or the right of the church to buy the pastor’s equity. The deed was executed by four trustees, one of whom appears to have been appellee, who was also the grantee.

Ancillary to the proceedings in district court, appellants caused the land in dispute to be attached prior to trial and judgment in the cause. In the affidavit for attachment it was represented that appellee was indebted to appellants in the value of the land which was stated to be $10,000, and that the debt was due for property obtained under false pretenses.

The cause was heard by the trial court June 3, 1966, on motion for summary judgment by both parties, and judgment for ap-pellee was rendered June 14, 1966.

On this appeal, appellants assign two points of error. The first assignment is that there is a genuine dispute as to material facts which appellants are entitled to have submitted to a jury, and summary judgment is not applicable. The second point is that the trial court erred in basing judgment on the statute of limitations, since the property was held in constructive trust, and the statute is not operative under the facts.

Appellants pleaded that appellee held the property in trust for the church so that a parsonage could be built on the land, with title in the pastor, because the church was too poor to build on its own credit. It is undisputed that after two years following execution of the deed, the parsonage not having been built, appellee resigned as pastor and moved to Florida. The trustees for the church instituted suit to recover the land about two years after the pastor left, but more than four years after execution of the deed.

Appellee pleaded the four-year statute of limitations, contending that the statute started to run with execution of the deed August 4, 1960, and was barred when suit was filed November 12, 1964.

Appellants contend on appeal that this suit was brought to establish an express trust engrafted upon the deed. Appellants rely upon authorities holding that Article 5529, Vernon’s Anno.Tex.Stats., will not limit to four years the period within which an action may be brought to engraft a parol trust on a deed absolute on its face. Carl v. Settegast, Comm. of App., 1922, 237 S.W. 238; Redwine v. Coleman, Tex.Civ.App., Texarkana, 71 S.W.2d 921 (writ ref.); Jackson v. Hernandez, 155 Tex. 249, 285 S.W.2d 184 (1955).

The trustees for the church alleged a demand upon appellee to reconvey the property. They prayed for mandatory injunction to compel reconveyance or in the alternative for cancellation of the deed. Whether -a suit is one for recovery of real estate under the exception of Article 5529 depends upon the nature of the title asserted by the plaintiff. Miles v. Martin, 159 Tex. 336, 321 S.W.2d 62 (1959). Appellants did not bring this action on the theory that the deed was void and that the church owned the property with right of possession. Appellants apparently recognize the deed as valid, but contend that if they tender the amount, of taxes paid by appellee, the church is entitled to re-conveyance by appellee or cancellation of the deed by the court.

Under the facts and pleadings of this action, appellants must first invoke the equitable powers of the court to set aside the deed, in order to establish the title sued for. This action therefore is not one to recover real estate. 37 Tex.Jur.2d, Limitation of Actions, sec. 33, pp. 134-5; Slaughter v. Qualls, 139 Tex. 340, 161 S.W.2d 671 (1942). The trustees for the church, having executed a deed, -passed title to the land which can be recovered only by setting aside the deed, which is a personal action, not a suit to recover real estate, and is subject to Article 5529 which bars the action within four years. Lott v. Van Zandt, Tex.Civ.App., Amarillo, 107 S.W.2d 761 (no writ).

Appellants argue that appellee held the land under a constructive trust, and that the statute of limitations did not start to run until appellants learned that appellee would not reconvey the property to the church. Appellants did not plead a promise by appellee to build the parsonage or to reconvey the land, but pleaded only that appellee took the land in trust and then refused to reconvey when demand was made on him. There is no pleading charging the pastor defrauded the church, although the affidavit in support of attachment recited that the property had been obtained under false pretenses. Fraud is an essential element of a constructive trust, and mere failure to discharge a promise of something to be done in the future is not fraud. Talley v. Howsley, 142 Tex. 81, 176 S.W.2d 158 (1943). If it was the pastor’s intention when he accepted the deed not to perform his promise, if there was one, expressed or implied, to build a parsonage or deed the lot back to the church, the deed could be cancelled for fraud. But the fraud necessary to effect cancellation must be shown by more than breach alone. Turner v. Biscoe, 141 Tex. 197, 171 S.W.2d 118 (1943).

The resolution adopted by the congregation June 1, 1960, authorizing the trustees “to execute a General Warranty Deed to Fred A. Williams on [the one-acre tract] on which to build a parsonage,” was in the nature of an expression of a hope that the pastor would build the parsonage. The obligation, if it existed, was not set out in either the resolution or the deed, and there is no evidence the pastor agreed to build a parsonage.

In the law of wills and trusts such provisions are called precatory, derived from the Latin verb precari, to pray, and the suffix “ory,” that is, “pertaining to,” thus making a word that means “pertaining to prayer.” In the resolution the congregation could be said to have expressed the prayer, hope, expectation, desire, or even a request, that the pastor “build a parsonage” on the land. But these are no more than words of recommendation and are not imperative unless they appear to create an obligation.

It is well-settled law in this state that separate instruments executed contemporaneously, as part of the same transaction and relating to the same subject, may be construed together as a single instrument. Rudes v. Field, 146 Tex. 133, 204 S.W.2d 5 (1947). The rule applies to a deed conveying real estate, even though the deed does not expressly refer to an agreement contemporaneously made by the parties. Puckett v. Hoover, 146 Tex. 1, 202 S.W.2d 209 (1947).

In each of these cases the Supreme Court construed deeds with additional writings executed contemporaneously with the conveyances. In Rudes v. Field the contemporaneous writing was a contract and in Puckett v. Hoover the other writing was a draft. We believe the underlying principles of the rule require construction in this cause of the deed and the resolution as one instrument. See 19 Tex.Jur.2d, Deeds, Sec. 122, and cases cited.

The option “to purchase the equity from Rev. Williams when the Church is financially able to do so,” as stated in the resolution, was too 'indefinite for enforcement. No value for the land was stated and the equity of the appellee was not defined. The time within which the option might be exercised was measured only by the uncertain period when the church would be able financially to purchase. This period, by divine intervention could be short, or it could extend beyond the lives of all mortals party to the transaction, or it might never end.

Appellee contends that if there was an agreement to an option in connection with the deed, the option is void because it falls within the rule against perpetuities. The Constitution of Texas provides that perpetuities shall never be allowed. Vernon’s Ann.St. Constitution of Texas, Article I, Section 26. Without a statute on the subject defining perpetuities as denounced by the Constitution, the common law is the law of this State. Hunt v. Carroll, Tex.Civ.App., Beaumont, 157 S.W.2d 429, error dismissed 140 Tex. 424, 168 S.W.2d 238. The common law rule is that no interest is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest, to which is added the period of gestation if gestation exists. 70 C.J.S. Perpetuities § 3, pp. 577-578; Clarke v. Clarke, Tex.Comm.App., 121 Tex. 165, 46 S.W.2d 658, 121 Tex. 165; Hunt v. Carroll, supra; 45 Tex.Jur.2d, Perpetuities and Restraints on Alienation, sec. 2, p. 97.

The underlying policy of the rule against perpetuities requires that options to repurchase, the terms of which fall within the rule, be held invalid as violations of the rule. The American Law Institute, in the Restatement of The Law of Property, concludes that the reservation of an option to repurchase the whole or any part of the interest conveyed made in favor of the grantor is invalid when the option may continue for a period longer than the maximum period permitted in the rule against perpetuities. Restatement, Property, Vol. 4, sec. 394.

The option as expressed in the resolution was to purchase the equity “from Rev. Williams” when the church should be financially able to buy the equity. As expressed, the option appears to be limited to purchase from the pastor and would not extend to his heirs and assigns. Thus the interest must vest, if at all, during a life in being and not beyond. If an instrument is capable of two constructions, the courts will favor the construction that saves its validity, as against an interpretation rendering it void. Rust v. Rust, Tex.Civ.App., Austin, 211 S.W.2d 262, affirmed 147 Tex. 181, 214 S.W.2d 462. If by its terms the option must be exercised, or will expire, within the period limited by the rule, in this case during the life of the pastor, the option does not violate the rule. See 162 A.L.R. 581, 588.

The option sought to be reserved by the church to purchase from the pastor his equity, although not in violation of the rule against perpetuities, did create an unreasonable restraint on alienation. The rule prevailing in most jurisdictions is that ownership of land by legal' title in fee carries with it the right to sell, mortgage, or otherwise alienate the property at any time. Restraint on alienation is repugnant to the grant, and' the restraint is invalid as against public policy. See 42 A.L.R.2d 1243, 1247, 1249. The rule is applied to options reserved in deeds or in connection with such conveyances. See 162 A.L.R. 581, 594.

When it is clear from the deed that conveyance of fee simple title was intended, the provision repugnant to the grant will be disregarded. Soper v. Med-ford, Tex.Civ.App., Eastland, 258 S.W.2d 118 (no writ). In the grant of fee simple title, the church, by reservation of the option to buy the pastor’s equity, sought to take from the grant some of the essentials the law invariably attaches to the property rights of a title in fee. Diamond v. Rotan, 58 Tex.Civ.App. 263, 124 S.W. 196 (writ ref.).

The record in this case does not disclose that there was a dispute as to any material fact requiring submission to a jury. Appellants did not plead failure or lack of consideration in that the parsonage was never built. There is no pleading that appellee promised to build a parsonage in consideration for the conveyance. The parsonage evidently was in the hopes and prayers of the congregation, but it was not made an obligation of the deed. What moral obligation, if any, the pastor felt and assumed when he accepted the deed, knowing that the congregation hoped and expected that he would build a parsonage or deed the lot back to the church, must be determined by the judgment of a tribunal other than the courts.

We hold that the district court correctly found for the appellee on motion for summary judgment.

The cause is affirmed.


author: HUGHES, Justice.

text:
    Paul W. MATHEWS, Appellant, v. Mrs. Paul W. MATHEWS, Appellee.
    No. 11481.
    Court of Civil Appeals of Texas. Austin.
    April 26, 1967.
    Rehearing Denied May 17, 1967.
    Gragg, Storey, Griffith & Gilmore, Jerry C. Gilmore, Dallas, for appellant.
    Dalton, Moore, Forde & Joiner, C. Douglass Forde, Jr., Dallas, for appellee.
   HUGHES, Justice.

Dr. and Mrs. Paul Mathews were married in 1924. The trial court awarded Mrs. Mathews a divorce and from this portion of the judgment no appeal was perfected.

The trial judge approved a settlement of property rights made by the parties, entering judgment thereon and also entering judgment with respect to the following matters which were not agreed to by the parties but which were submitted to the court for resolution:

“THE COURT finds from the evidence that any and all disability income benefits and payments under the insurance policies above listed is the community property of the parties hereto and further finds from the evidence that the sum of $7,500.00 should be allowed to Mrs. Paul W. Mathews and her attorneys, Dalton, Moore, Forde & Joiner, as attorney’s fees for representing Plaintiff herein, said attorney’s fees to be paid by the community estate.”

Disposition of these disputed matters was made in the judgment in separate paragraphs, it being noted at the end of each paragraph an exception and notice of appeal on behalf of Dr. Mathews.

The appeal (supersedeas) bond in this case limits the appeal to the judgment insofar as it relates to “disability income payment.” We quote from such bond:

“WHEREAS in the above entitled and numbered cause pending in the Domestic Relations Court of Dallas County, Texas, and at regular term of said Court, to wit: on the 2nd day of June, 1966, the said MRS. PAUL W. MATHEWS recovered a judgment against the said PAUL W. MATHEWS providing for a division to her of one-half of all disability income payments of any and all policies or contracts of insurance owned by the parties as her sole and separate property, which payments would amount to approximately Three Thousand Dollars ($3,500.00) per year, from which portion of said judgment the said PAUL W. MATHEWS desires to take an appeal to the Court of Civil Appeals for the Fifth Supreme Judicial District setting at Dallas, Texas; and
WHEREAS the said PAUL W. MATHEWS desires supersedeas respecting such judgment in so far as it applies to the disability income payment;

In Connell Construction Company v. Phil Dor Plaza Corporation, 158 Tex. 262, 310 S.W.2d 311, it was held that the scope of an appeal could be limited in an appeal bond where the judgment had severable parts. To overcome this decision, and its adverse effect on the appellee, Rule 353, Texas Rules of Civil Procedure was amended in 1962 by adding Sec. (c) which reads:

“(c) No attempt to limit the scope of an appeal shall be effective as to a party adverse to the appellant unless the sever-able portion of the judgment from which the appeal is taken is designated in a separate notice served upon such adverse party and filed with the clerk within fifteen days after judgment or order overruling motion for new trial is rendered.”

Appellee in this case is making no complaint that appellant limited his appeal as above noted. It is our opinion that only an appellee, or an adverse party, cart complain of the failure of an appellant to comply with this rule in limiting the scope of an appeal. Absent such compliance, the only penalty prescribed is that it shall not be effective as to parties adverse to appellant. We hold that appellant is bound by the limitation of the appeal set forth in his appeal bond and that his first point to the effect that the court erred in ordering attorney’s fees allowed attorneys for appellee paid out of the assets of the community estate is not before us.

Appellant’s remaining point is that the trial court erred in holding that disability income payments under certain policies of insurance which provided for payments to him in the event of his total and permanent disability were community property and in decreeing that appellee was entitled to one half of such payments as they matured in the future.

The insurance policies under which disability payments are being made were all purchased during the marriage of the parties and with their community funds. There are no onerous acts or duties imposed upon appellant by the policies in order to keep the policies in force and the disability payments continuing. Of course, appellant must not make a miraculous recovery or his payments will cease.

Conceding that little authority exists on the question, appellant cites cases which we will discuss.

In Allen v. Allen, 363 S.W.2d 312, Tex.Civ.App., Houston, n. w. h., the Court held that anticipated railroad retirement benefits of husband under Railroad Retirement Act of 1937, as amended 45 U.S.C.A., are not property or estate of parties within Art. 4638, V.T.C.S., providing for division of the estate of the parties in a divorce action. This case turns, in part, upon the particular provisions of the Federal Act which are paramount to State law. For this reason, it is of small benefit here.

Appellant next cites McBride v. McBride, Tex.Civ.App., 256 S.W.2d 250, by this Court, n. w. h., in which we held that future wages of the husband were not “the estate of the parties” within Art. 4638, supra.

The Supreme Court has diluted the authority of McBride in Francis v. Francis, 412 S.W.2d 29, Tex.Sup.Ct. Neither Francis nor McBride are helpful here because each was based upon express agreements of the husband to make payments to the wife after divorce. There is no similar agreement here.

In Cunningham v. Cunningham, 183 S.W.2d 985, Tex.Civ.App., Dallas, n. w. h., the Court held that renewal commissions on life insurance policies sold by the husband during the marriage and which might be payable in the future if the policies were renewed and the husband remained in the employ of -the company were not community property in which the wife had an interest. This case turned upon insurance law to the effect that the agent acquired no interest in the renewals which became vested at the time the policies were written.

Pacific Indemnity Company v. Blessitt, 191 S.W.2d 904, Tex.Civ.App., Beaumont, writ ref. n. r. e., was a workmen’s compensation case in which the wife sued after divorce for an injury sustained by her during marriage. The husband filed a disclaimer. Judgment for the full amount due was awarded the wife over the protest of the insurance company that since the proceeds of the policy were community property, she was entitled to recover only one half. The Court held the disclaimer of the husband authorized the Court to make the entire award to the wife. This case is not helpful.

Mabry v. Aetna Casualty & Surety Company, 230 S.W.2d 572, Tex.Civ.App., Galv., n. w. h., was a suit by a former wife against the workmen’s compensation insurance carrier for one half the amount recovered by her former husband in a claim against such carrier for an injury sustained by the former husband during the marriage. In the divorce suit the wife had a judgment against her husband for one half of his claim. The Court held the wife was relegated to her claim against the husband since the insurance carrier paid the husband before the divorce judgment became final. The Court also held the divorce decree, in this respect, was invalid because it was in an effect an assignment of benefits contrary to the workmen’s compensation statutes.

The last case cited by appellant on this phase of his argument is Piro v. Piro, 327 S.W.2d 335, Tex.Civ.App. Fort Worth, writ dismissed. This is a divorce suit which involved a workmen’s compensation claim of the husband. The Court held that benefits accrued before the divorce belonged to the community but those accruing subsequently were separate property of the injured husband, the Court following Mabry v. Aetna, supra, in holding that to permit the wife to recover any of these benefits would constitute an unlawful assignment of them.

These authorities have little persuasive force in determining the present issue. We are not aided or beset by any statute, State or Federal, which has specific application to disability income from conventional insurance.

Appellee relies principally upon Herring v. Blakeley, 385 S.W.2d 843, Texas Supreme Court. We agree with appellee that the principles upon which this case is based control here and require an affirmance of the judgment of the trial court.

Mr. and Mrs. Herring were husband and wife from 1948 to 1960, when they were divorced. Herring died 10 months after the divorce. He had been an employe of Marathon Insurance Company and as such was a beneficiary of an employee’s profit sharing plan to which he made no contributions. He was also the beneficiary of an annuity insurance contract towards the purchase of which both he and his employer contributed. The Court held that Herring had property rights fully vested in both the profit sharing plan and the annuity contract at the time of divorce. The Court also held that such property rights, at the time of divorce, were community property. With respect to this latter holding we quote from the opinion:

“It is undisputed that the profit-sharing plan came into existence during the marriage; that all contributions to James Herring’s account in the plan were made during the marriage; and that James’ account fully vested in him during the marriage. As to the group retirement annuity contract, it is undisputed that James Herring became a group member during the marriage; and that all contributions by James toward the purchase of the annuity were made with community funds. We hold that James Herring’s vested interest in the profit-sharing plan and his interest in the retirement annuity contract were community property at the time of the divorce.
Property acquired by the husband during marriage is community property unless acquired by gift, devise or descent. See Articles 4613, and 4619, Vernon’s Annotated Civil Statutes. Both of these plans were acquired during the marriage. There is no contention that either was acquired by devise or descent.”

The Court after holding the benefits from these plans were not gifts said:

“Blakeley seeks to avoid the effect of a holding that these plans were community property at the time of the divorce by his contention that none of the funds were available at that time. Since they were not available, Blakeley argues, they could not be subject to the orders of the divorce court even if they were community property. The language of the divorce court’s order, covering as it does ‘all of the community property of the parties,’ is broad enough to include community property that was not available at the time of the divorce, but that could be reduced to possession at some later date. There is no requirement in Texas that community property must be reducible to immediate possession before a divorce court can take jurisdiction to determine the parties’ rights therein. Community rights may exist in interests that cannot be reduced to possession, such as remainder or reversion rights.”

The Court in Herring reversed and remanded the case with instructions to ascertain the value of both plans at the time of divorce and to divide such value on a community basis.

Under the decision in Herring and under the law generally defining community property, we have no difficulty in holding that the disability insurance carried by appellant at the time of the divorce was a property right and that it belonged to the community estate.

The more difficult problem is to ascertain the value of this property right at the time of the divorce.

The trial court has ordered that the disability income payments to accrue in the future be paid one half to each party. We sustain this disposition of such disability income. In reaching this conclusion, we are aided by a suggestion contained in an excellent article in 44 Tex.Law Review 860, by Vester T. Hughes, Jr., on Profit Sharing and Pension Plans. He says:

“In the divorce situation an attempt would be made to value the true expectancy interest, and this value, if any, would be treated as community in nature and would be taken into account by the court in the division of assets. The court could either order payment of present amounts by the husband from community or separate assets or order the husband to pay such amounts if, as, and when received; the decision regarding which alternative to choose would be based on all of the facts and circumstances, including the availability of other assets, the likelihood that an interest would become possessory, and any other relevant considerations.”

There can be no wrong guessing in the method employed here. It is accurate and fair.

Mr. Hughes raises many vexing problems which will undoubtedly arise in cases of this character. In divorce cases, the solution, as here, may be relatively simple for the reason that there is usually other property belonging to the spouses, either separate or community, and the court has great latitude in apportioning such property.

In cases where the unemployed or uninsured spouse dies and leaves an estate to remote kin or strangers and the pension, disability payments or annuities are inadequate to sustain the surviving spouse and there is no other or insufficient property to serve this purpose owned by such survivor, apparent injustice and real hardship-may result. If, however, we adhere to the community property principle, we must apply it when the community estate is small the same as when it is large.

We cannot conceive of a charge of injustice, unfairness or hardship being made in cases dividing the community estate where the sole asset of the estate was a pension, an annuity or disability insurance payments amounting to $10,000.00 per month. The community property principle makes no distinction based on the amount involved. Nor does such principle distinguish between, the employed-profit sharing or insured husband and the employed-profit sharing or insured wife.

The judgment of the trial court is affirmed.

Affirmed.