author:
CULVER, Justice.
      STEAKLEY, Justice SMITH, Justice

text:
    R. A. BENSON, Savings and Loan Commissioner of Texas, et al., Petitioners, v. SAN ANTONIO SAVINGS ASSOCIATION, Respondent.
    No. A-9548.
    Supreme Court of Texas.
    Nov. 12, 1963.
    Rehearing Denied Feb. 5, 1964.

      Waggoner Carr, Atty. Gen., Dudley Mc-Calla, Asst. Atty. Gen., Austin, Kampmann & Kampmann, San Antonio, for R. A. Benson and others.
    Graves, Dougherty, Gee & Hearon, Austin, for San Antonio Savings Assn.
   CULVER, Justice.

The San Antonio Savings Association applied to the Savings and Loan Commissioner of Texas for permission to open and operate a branch office in the City of San Antonio in addition to its ten existing branches already in operation. Three other savings and loan associations with home offices in the City intervened and offered evidence in opposition. Upon the conclusion of the hearing the Commissioner refused the application for the following stated reasons:

1. The public convenience and advantage will not be promoted by allowing such proposed additional office to engage in business taking into consideration that the proposed location of said additional office is only 2.1 miles from applicant’s Service Center #7, (branch office) 2716 Fredericksburg Road;

2. The proposed operation will unduly injure the Alamo Savings and Loan Association presently 3 miles distant and only 1.7 miles from their future location (land purchased for erection of) office building at the corner of Fredericksburg Road and Vance Jackson Road;

3. The proposed area is being adequately served.

The district court held that the order of the Commissioner denying the application was not reasonably supported by substantial evidence, but to the contrary was unreasonable, arbitrary and capricious and decreed that the Association be granted permission to maintain and operate the branch office as applied for.

The Court of Civil Appeals affirmed the judgment of the trial court in so far as it set aside the Commissioner’s order. Tex.Civ.App., 365 S.W.2d 388.

The Court of Civil Appeals begins its discussion of the merits of the case by saying that the propriety of the Commissioner’s action is to be gauged solely by the reasons assigned by him in denying the application. In other words the Court is saying that the evidence need be reviewed only to determine whether the grounds given by the Commissioner are reasonably supported by substantial evidence. We have just held to the contrary in Gibraltar Savings and Loan Ass’n v. J. M. Falkner, Banking Commissioner et al., Tex., 371 S.W.2d 548.

In Southwestern Savings and Loan Ass’n v. Falkner, 160 Tex. 417, 331 S.W.2d 917, we held that approval of the Commission for the establishment and operation of branch offices by building and loan associations is impliedly required by the provisions of Arts. 881a-2 and 881a-7, otherwise the purpose of the two statutes would be largely nullified. We further decided in that case that the same basic standards which govern-the approval or disapproval of the application for an original charter shall apply to-applications for the opening of branch offices, since excessively zealous competition may be waged quite as effectively by setting up branch offices as by the granting of charters in the first instance.

Article 881a-2 provides that before a charter will issue to a building and loan association the Banking Commissioner must be satisfied as to the responsibility and general fitness of the parties and that the business will be honestly and efficiently conducted in accordance with the intent and purpose of the act; whether the public convenience and advantage will be promoted thereby; and whether the population in the neighborhood of such place and in the surrounding country affords a reasonable promise of adequate support.

The rules and regulations adopted by the Commissioner relating to his consideration of an application for the establishment of a branch or additional office with which we are here concerned are as follows:

“3.3. No application to establish and maintain an additional office shall be approved unless the Commissioner shall affirmatively find from the evidence before him that:
“(b) The applying association has operated its principal office for at least three (3) years prior to such application successfully, profitably, properly and in accordance with law, and the proposed operation will not impair the applying association’s ability to carry on its overall operation;
“(c) The public convenience and advantage in the neighborhood proposed to be served and in the surrounding country will be promoted by allowing the proposed additional office to be established and engage in business at the proposed location, and the volume of business there is such as to indicate that a profitable operation is probable within a reasonable period of time;
“(d) The proposed operation will not unduly injure any other association operating in the neighborhood of the proposed location or in the surrounding country;
“(f) The proposed location of the additional office is within the same county as the home office of the applying association except in cases where it appears that the proposed additional office is in a neighboring or adjacent county to that in which the home office of the applying association is located and that there is no other association, either State or Federal, adequately serving the neighborhood and surrounding country in which such additional office is to be located.”

The proposed location of the branch office applied for is in what is called “Wonderland Shopping City” situated near the edge of the northwest portion of the City on the Fredericksburg Road, U. S. Highway No. 87, one of the principal traffic arteries leading to and from the business district. With a radius of varying from two to three miles, San Antonio Association has roughly semi-circled Wonderland City, enclosing what is described as the trade area of the proposed branch office. The population in that area is said to be some 36,000 people. The area, both as to population and commercial development has enjoyed a rapid growth during the past ten years and in the area so designated there does not exist a savings and loan home office nor a branch.

San Antonio Association urges that such a new and expanding area with 9S00 new homes constructed and occupied since 1945, needs and.deserves this facility and that the establishment of this branch office would promote the public convenience and advantage. Wonderland City is said to be one of the largest and most important suburban shopping centers in the State. There were about 40 business establishments in operation at the time of the hearing before the Commissioner. If this were an isolated area, no doubt public convenience and advantage would be promoted by the establishment of a branch office, but that is not the whole story.

The boundary line of this area so drawn on the map does not follow any trade barriers, either natural or artificial, but crosses lots, blocks, streets, railroad tracks and other terrain features indiscriminately. If the line were protracted as it begins and ends with a radius of three miles from the shopping center, it would include two existing branch offices of San Antonio Association as well as the home office of Alamo. Portions of the area are considerably nearer, and more accessible to two of the Association’s existing branches than to the proposed location. One of these two branch offices is located on the Fredericksburg Road approximately two miles from the shopping center, the other on the Bandera Road, State Highway 16, which runs in the southwesterly portion of the area. The Alamo Savings Association now has its home office on the Fredericksburg Road 2.8 miles from the proposed branch office of the San Antonio Association. Its new home office will be located further to the northwest on the Fredericksburg Road only 1.7 miles from the center. Additionally, San Antonio Association has a branch office at the intersection of San Pedro and Hildebrand on U. S. Highway 281 3.6 miles distant from the shopping center. Thus, San Antonio Association has offices located on all three of the main traffic arteries leading through the northwest quadrant of the City. In fact it has now a total of ten branch offices surrounding the business district in every direction and covering most of the principal traffic arteries in and out of the City. There are presently in San Antonio seven associations which, including branches, total 18 savings and loan offices within the City where customers may deposit their funds. All of San Antonio Association’s branches are located in the stores of a large grocery chain and it will follow that plan with the branch it now proposes to install. A sampling of the grocery customers taken at the Association’s Freder-icksburg Road branch on a Saturday afternoon revealed that 73% had savings accounts and 31% had accounts with San Antonio Association.

All of the savings and loan institutions in the City are active in the area surrounding Wonderland City. Alamo has 650 customers in the area; Travis has 150 mortgage loans and four to six hundred depositors; First Federal has 1200 loans and some eight hundred depositors. The extent of the business done in that section at the other three savings institutions is not shown. Officers of all three of these named concerns testified that in their opinion the area is adequately served.

It would be convenient to customers and probably produce more business if branch offices were established in every corner grocery and drug store in the City, but obviously that practice would not be economical nor would it promote public advantage. On the contrary it would serve to create “excessively zealous” competition to the detriment of the public and to the savings and loan industry at large. It must be admitted on the other hand, that the establishment of some branch offices will be in the public interest. So the matter of drawing the line of demarcation, while nebulous, must lie, to a great extent, in the discretion of the Commissioner.

The Association also objects to the finding of the Commissioner that the area is adequately served and contends that this finding is immaterial. It maintains that the matter of adequate service is related solely to paragraph (f) of the Commissioner’s Rule 3.3 which is to be raised only where the proposed location is not within the same county as the home office of the applying association, and, secondly, that the question as to whether the area is adequately served is not a determining factor. Regardless of the merit of these objections we believe that phase is one to be considered in deciding whether public convenience and advantage will be promoted by the establishment of an additional branch office and, though not in itself decisive, would have some bearing on that issue. Ordinarily we would say that public convenience and advantage would not be promoted by the addition of another branch office if the area was already being adequately served, since that would tend to render the service more than adequate.

The Commissioner’s Rule 3.3' quoted above expressly provides that an application to establish a branch office shall not be granted unless, from the evidence, the Commissioner makes four affirmative findings. It follows that the Commissioner’s order denying the application must be upheld unless we can say from the evidence that his refusal to make any one of the required findings was arbitrary or capricious. That problem is to be tested by the substantial evidence rule. As that rule operates in the fact situation before us, the refusal of the Commissioner to make a particular affirmative finding cannot be arbitrary or capricious unless the evidence adduced on the trial supporting the required affirmative finding is so conclusive that a negative finding would not be reasonably supported by substantial evidence. Since we are of the opinion that the evidence is not so conclusive, we hold that the Commissioner’s finding that public convenience and advantage will not be promoted by allowing the proposed additional office is reasonably supported by substantial evidence. It will therefore be unnecessary to discuss and pass upon the propriety of the other findings.

The San Antonio Association maintains that even if the trial court erred in setting aside the Commissioner’s order, nevertheless the cause must be remanded for a new trial for the reason that the Commissioner and the trial court denied the Association access to an investigative report made to the Commissioner at his direction in connection with this application in that it deprived the Association of due process of law in violation of the Constitutions of the United States and the State of Texas.

At the hearing before the Commissioner the Association did not request that it he allowed to examine this report, but on the trial before the court it was stipulated that the contents of the report or parts thereof were considered by the Commissioner in passing upon respondent’s application. It was further stipulated that such reports, by reason of the provisions of the statutes, were held to he secret and confidential and not to be revealed to the applying Association and that had request been made for the contents of the report the request would have been refused. On the trial the Association’s motion that the report be produced for examination was overruled by the court in reliance on Falkner v. Gibraltar Savings Ass’n, Tex.Civ.App., 348 S.W.2d 467, n. r. e., and Gibraltar v. Savings Ass’n., Tex.Civ.App., 348 S.W.2d 472, n. r. e. Both of these cases held that the investigation reports are confidential and not for public inspection and the Commissioner could not be compelled to divulge the same. This ruling was based upon the construction of Art. 881a-2 of the Civil Statutes, and Art. 1136a-9 of the Penal Code.

Article 881a-2, Vernon’s Ann.Civ.Stat., requires that the Commissioner shall ascertain the necessary information from the best sources at his command and by such investigation as he may deem necessary.

The pertinent provisions of Art. 1136a-9, Penal Code, are as follows:

“The Banking Commissioner and any examiner, inspector, deputy, assistant or clerk, appointed or acting under the provisions of this Act, failing to keep secret any facts or information regarding an association obtained in the course of an examination or by reason of his official position, except when the public duty of such officer required him to report upon or take official action regarding the affairs of the association so examined, * * * shall be removed from his position or office and shall be fined * * *, Reports of examinations made to the Banking Commissioner of Texas shall be regarded as confidential and not for the public record or inspection, except that for good reason same may be made public by the Commissioner, but copies thereof may, upon request of the Association, be furnished to the Federal Home Loan Bank Board and/or to the Federal Home Loan Bank for the purpose of meeting the requirements of the Federal Home Loan Bank Act. * * * ”

This article of the Penal Code is a section of a bill enacted by the 42nd Legislature defining and regulating building and loan associations and permitting investment in Federal Loan Agencies. Its manifest purpose is to shield the Association against public disclosure of its private affairs which must open its books and records to the Commissioner or his examiners for the purpose of seeing to it that its affairs are conducted in accordance with law and in the best interest of the investing public. The statute expressly provides that for good reason the information may be made public by the Commissioner and that copies upon request of the Association may he furnished to certain organizations. Certainly the statute does not deny disclosure to the Association itself. We therefore believe and so hold that the statute does not preclude, in the situation before us, the Commissioner from revealing the contents of the investigative report to the Association on demand by it. Further, the statute likewise does not preclude the Association from making public the report if it desires to do so.

It follows therefore that there is no statutory restraint which prevents the trial court from directing the production of the report upon the application of the affected association.

All of this, however, does not require a reversal and remand of this case. The investigative report, even if admissible in evidence in the trial court by reason of Art. 3731a, § 1, Vernon’s Ann.Civ.Stat., is necessarily hearsay and whether favorable or unfavorable to San Antonio Association, could not serve to show that the Commissioner’s rejection of the application was not supported by substantial evidence. From the record we must assume that it was at most merely cumulative of the evidence that was introduced. It is inconceivable that anything in the report reflected upon the integrity of the Association or its officials. It is unquestioned that the Association has operated for more than three years successfully, profitably, properly and in accordance with law. Incidentally, the Attorney General has pointed out some dealings of the Association with the stores in which it operates its branch offices but that custom has long been known to the Commissioner. He has made no complaint on this practice either before or at this hearing. We deem the matter of no materiality.

It should be presumed that the Commissioner initiated the investigation to inquire into the matters that according to his rules must be shown affirmatively before the application could be granted. Therefore this case relates only as to whether public convenience and advantage would be promoted; whether a profitable operation would be conducted within a reasonable period of time, and whether undue injury would result to other neighboring associations. In our opinion the failure of the trial court to compel the production of this report did not violate constitutional procedural due process.

The question for decision in this case is: was the Savings and Loan Commissioner’s refusal of respondent’s application reasonably supported by substantial evidence? The burden rests on the Association to show that there is no substantial evidence which would reasonably support a negative finding by the Commissioner. In our opinion on the trial in the district court the report made by the Commissioner’s investigator would have no bearing upon this issue.

The Association, for the proposition that it has been denied due process, cites the cases of Railroad Commission of Tex. v. Alamo Express, 158 Tex. 68, 308 S.W.2d 843 (1958), and Ohio Bell Telephone Co. v. Public Utilities Commission, 301 U.S. 292, 57 S.Ct. 724, 81 L.Ed. 1093.

In Alamo Express we held that the orders of the Railroad Commission not based on any evidence are arbitrary, invalid and void and in plain violation of the mandatory duty imposed by the statute. In the case here there is no contention that the Commissioner failed to follow any mandatory procedure established either by the statute or by the rules.

In Ohio Bell Telephone the Commission, in fixing intrastate rates, had taken into consideration certain information which the Telephone Company did not have the opportunity to examine or rebut and which was not spread on the record. It was pointed out that the Ohio statute did not provide for a review of the Commissioner’s order by a separate or independent suit and that a different question would be presented if such a suit could be maintained with an intermediate suspension of the administrative ruling. While our appeal is not strictly a de novo proceeding, nevertheless the ordinary rules of evidence are followed.

For the foregoing reasons the order of the Commissioner in denying the application of San Antonio Association to open and operate an additional branch office in San Antonio is upheld and the judgments of the trial court and Court of Civil Appeals are reversed and judgment rendered that respondent take nothing.

SMITH, NORVELL, GREENHILL and STEAKLEY, JJ., dissenting.

STEAKLEY, Justice

(dissenting’).

In Southwestern Savings & Loan Association v. Falkner, 160 Tex. 417, 331 S.W.2d 917, we said that “The statutory standards of public convenience and advantage, and adequate population to assure reasonable support, are sufficient statutory basis for the rules and regulations.” This statement referred to the rules and regulations promulgated by the Finance Commission and the Commissioner governing the establishment of branch offices. The majority opinion in Gibraltar Savings Association v. Falkner, 6 Supreme Court Journal 622, Tex., 371 S.W.2d 548, quoted these rules and regulations with the statement that such were promulgated by the Building and Loan Section of the Finance Commission and the Banking Commissioner “acting under its legal powers.”

The only findings by the Commissioner in the case at bar adverse to the application of respondent in terms of Rule 3.3 are that “The public convenience and advantage will not be promoted by allowing such additional office” (Rule 3.3(c) ) and that “the proposed operation will unduly injure the Alamo Savings and Loan Association” (Rule 3.3(d)). The additional adverse finding “that the proposed area is being adequately served” is inconsistent with Rule 3.3(f). As I read Rule 3.3(f), the question of adequacy of service arises only when the proposed location of the additional office is not within the same county as the home office of the applying Association.

Consistent with the approach which I advocated in the concurring opinion in Gibraltar Savings Association v. Falkner et al., 6 Supreme Court Journal 622, 625, Tex., 371 S.W.2d 548. I would hold that respondent discharged its burden of establishing that the evidence required an affirmative finding by the Commissioner that the public convenience and advantage will be promoted by the proposed additional office, and that the proposed additional office will not unduly injure the Alamo Savings and Loan Association.

I would also hold that the implied findings of the Commissioner favorable to respondent’s application in terms of the other provisions of Rule 3.3 were not shown to be without reasonable support in substantial evidence.

In view of the review of the evidence in the dissenting opinion of Justice Smith, I will pretermit further discussion in this respect. I would affirm the judgments below.

NORVELL, J., joins in this opinion.

SMITH, Justice

(dissenting).

I respectfully dissent. The trial court held that the order of the Savings and Loan Commissioner was not reasonably supported by substantial evidence on any ground. I have concluded that it was only necessary for the trial court to consider the grounds for denial of the application which were stated in the Commissioner’s order. Benson admits that the order of the Commissioner states just three reasons for refusing the Association’s application. These three stated grounds for refusal were: (1) want of convenience and advantage; (2) undue injury to Alamo Savings and Loan Association; and (3) adequacy of service of the proposed area. In reality the “adequacy of service” ground cannot under this record be considered a separate ground in view of the admission of the Commissioner that subsection (f) of the Rules (quoted by the Court) applies only to associations seeking a branch outside their home county. The Court of Civil Appeals unlike the trial court, judged the Commissioner’s order solely by the grounds stated in the order. I am inclined to agree with the Court of Civil Appeals on the theory that when specific grounds of dissatisfaction are stated, all other grounds must be presumed favorably found, since it must be assumed that the Commissioner made findings on all the statutory grounds, and stated in his order those which he found against the applicant and which were, therefore, reasons for refusal. The statute requires the Commissioner to state “the reason for such refusal.” The Commissioner has stated his reasons for denial of the application in the order under consideration. The statute does not mean that the Commission can state only a part of his unfavorable findings in the order. Article 881a-3, Vernon’s Annotated Civil Statutes says that the Commissioner, “ * * * shall endorse upon each copy of the articles of incorporation [branch application] the word ‘refused’, [in case of dissatisfaction], together with the reason for such refusal * * It seems to me it logically follows that since the order definitely states the reasons for refusal, it is reasonable to presume that the Commissioner found favorably to the Association on issues not recited in the order. This conclusion is sound for another reason. It has been held that an administrative order may not be upheld on appeal on a ground not specified in that order when there is a specific finding of fact by the administrator on another ground recited in the order as the basis for the decision. See Gulf Land Co. v. Atlantic Refining Co., 134 Tex. 59, 131 S.W.2d 73 (1939); Kerrville Bus Co. v. Continental Bus System, Tex.Civ.App. (1947), 208 S.W.2d 586, wr. ref. n. r. e.

Since Alamo did not appeal from the trial court’s judgment that there was not substantial evidence to support the Commissioner’s finding that undue injury would result to Alamo, the only issue properly before the Court of Civil Appeals was that of “public convenience and advantage.” It follows that no aspect of either the Rules or of the statute should be considered in support of the Commissioner’s order, except those bearing on that basic fact found against the Association by the Commissioner. Express findings have been made by the Commissioner. This is not a case where only general findings have been made against granting the application. In view of the specific finding on the statutory ground “public convenience and necessity,” and the absence of any finding on the issues of “reasonable promise of adequate support” and “fitness of management,” and especially in view of the statutory requirement that the Commissioner shall state the reason for his order, I conclude that this court cannot presume all ultimate statutory grounds not found by the Commissioner as though they were express findings against the Association. The Commissioner’s order cannot be sustained on reasons which he did not give in the order. Either party may introduce evidence relative to the Commissioner’s order, whether or not that evidence was introduced or considered at the administrative hearing, but the question of what evidence may be considered is not concerned with the more basic and different question of what grounds the order may be supported on.

Benson cites the case of Railroad Commission v. Magnolia Petroleum Co., 130 Tex. 484, 109 S.W.2d 967 (1937). That case was decided before the Gulf Land Company case, supra, and was specifically discussed and approved. The Magnolia case simply holds that the administrative agency will not be held to the legal reasons or theories it advances in its order in support of a particular ground or action. But the decision in Gulf Land clearly demonstrates that when there is a specific fact finding on one statutory issue, the courts will not uphold the order on the basis of some other unfound statutory ground.

For the reasons stated, the Court of Civil Appeals did not err in refusing to consider “as essential to a disposition of this appeal” phases of this case which were not found against the Association by the Commissioner.

Reverting now to the trial court’s judgment and its opinion in support thereof, the unusual-written opinion by the Honorable Herman Jones reflects that the trial court carefully considered whether there was substantial evidence to support the Commissioner’s order. The opinion reflects that the Court did not limit the trial to grounds found by the Commissioner, but, instead, covered all grounds. Obviously, the trial judge considered on their merits all grounds advanced by Benson (both stated and unstated), but concluded that the order was not supported by substantial evidence on any ground. I have reached the same conclusion and hereby incorporate the opinion of the trial court as a part of this dissent. The opinion reads:

“All parties agree that this case must be determined under the substantial evidence rule. While the statement of this rule is simple, its application to the evidence in a particular case presents great difficulty. The cardinal principle involved in the rule is believed to be that substantial evidence exists when, on the trial of the case, the evidence in support of the administrative agency is such as will convince reasonable men, that is, evidence such as a reasonable mind might accept as adequate to support a conclusion. If, on the whole record, the evidence is such that reasonable men might reasonably differ, irrespective of what the Court might think of the wisdom or justice of the administrative decision, such decision must stand, and the Court is prohibited from substituting its judgment for that of the administrative agency. It should be emphasized, however, that the authorities uniformly agree that whether or not substantial evidence exists must be determined by the Court upon a consideration of the whole record.

“In the instant case, it appears to the Court that the more specific evidence presented must be considered against the background of the following undisputed facts : the Southwestern Region of the United States, in population and economic strength, is presently developing at a considerably faster rate than the country as a whole, and the outlook for such development in the future in this region is as bright or brighter than the present; the State of Texas is developing at a faster rate than the Southwestern Region as a whole; the San Antonio metropolitan area is one of the fastest developing areas within the state; the northwestern quadrant of the City of San Antonio is one of the fastest developing sections in the metropolitan area, particularly with respect to residential growth; and, finally and probaby most important of all, (the proposed branch office is to be located in a shopping village which is far and away the largest in the metropolitan area of San Antonio and one of the largest in the entire nation.)

“Since tlie Commissioner has denied Plaintiff’s application to locate a branch savings and loan office in the above mentioned shopping village notwithstanding the undisputed facts set out, it is believed that the Court is required to examine closely the evidence presented to determine what, if any, peculiar circumstances exist here to condemn the proposed branch, when the overall picture would indicate that if the branch is not justified here there is virtually no place within the state where such a branch could be justified.

“Referring to article 881A-2, which, according to the Supreme Court, vests in the Defendant the authority to grant and deny applications for branch offices, the Legislature directs that the Defendant shall approve the application for a branch office if (1) the character, responsibility, and general fitness of the persons to operate the same are such as to command confidence and warrant belief that the business of the proposed branch will be honestly and efficiently conducted in accordance with the intent and purpose of this act, (2) the public convenience and advantage will be promoted by allowing such proposed branch to engage in business, and (3) the population in the neighborhood of such place and in the surrounding country affords a reasonable promise of adequate support for the proposed branch.

“Pursuant to this statute, the Defendant Commissioner has adopted rules and regulations, Chapter 3 of which, dealing with additional offices, is particularly applicable here. It is assumed that such rules and regulations must find support in the statute and that the action of the Commissioner under review here must find support in such of the rules and regulations as, in turn, are supported by the statute. Chapter 3.3 of the rules and regulations sets out the standards which must be met before the Commissioner will approve application for a branch office. Sub-paragraph (a) of Chapter 3.3 provides that the applying association must have adequate reserves and surplus to warrant the additional place of business. While the Court recognizes that the action of the Commissioner may be supported upon grounds not considered by the Commissioner if substantial evidence at the trial shows the existence of such grounds; nevertheless, the Court thinks it is relevant that the Commissioner made no finding or suggestion of inadequacy of reserves and surplus. Further, the Defendant Commissioner specifically testified that the reserves and surplus were adequate. While the evidence showed that Plaintiff’s reserves and surplus dropped from 5.49% to 5.34% between February of 1961 and March of 1962, nevertheless, the reserves and surplus are still well in excess of requirements. In view of all the record, it seems clear that there is no substantial evidence of inadequacy of reserves and surplus. What has been said with reference to reserves and surplus is thought to be applicable to the last clause of Chapter 3.3, sub-paragraph (b), that is, that there is no substantial evidence indicating that the operation of the proposed branch would impair the Plaintiff’s ability to carry on its overall operation.

“Turning to sub-paragraph (b) of Chapter 3.3, it is seen that the Commissioner must find that Plaintiff has operated its principal office for at least three years prior to the application successfully, profitably, properly and in accordance with law. It is assumed that this regulation finds support in the statute which requires the Commissioner to find that the character, responsibility and general fitness of the persons making the application are such as to command confidence and warrant belief that the business of the proposed building and loan association will be honestly and efficiently conducted in accordance with the intent and purpose of this act.

* *

“Sub-section (f) appears clearly to apply only if the proposed branch office is located in a county other than the county in which the principal office is located.

“This leaves sub-sections (d) and (c). It is believed that, under all of the record here, only these two sub-sections are genuinely at issue in the case, although considerable testimony was heard which, in one way or another, was presented under other of the sub-sections. With reference to subsection (d), wherein it is provided that the Commissioner must find that the proposed branch will not unduly injure any other association operating in the neighborhood or in the surrounding country, it should be noted that there is no suggestion of this standard in the statute unless it be that undue injury to an existing association will be detrimental to ‘the public convenience and advantage.’ The Supreme Court, in Southwestern Savings and Loan Association v. Falkner, 160 Tex. 417, 331 S.W.2d 917, evidently gave the statute such construction, because it is there stated that the purpose of the statute is to protect against the evils of excessively zealous competition by conferring upon the Commissioner control of the number of building and loan associations in a specified area. Further, that case clearly holds that the Commissioner may protect against the evils of excessively zealous competition by controlling the number and location of branch offices.

“In the instant case, the Defendant Commissioner has found that Plaintiff’s proposed branch will unduly injure Alamo, the home office of which is three miles from Plaintiff’s proposed branch, reciting also that the proposed branch will be only 1.7 miles from the proposed future location of Alamo’s home office. The Court has considerable difficulty in following the reasoning of the Commissioner with respect to Alamo’s proposed future location. The evidence here is undisputed that, when the Commissioner acted upon Plaintiff’s application, Alamo had no application to move its home office before the Commissioner, and did not file such application until the month following the Commissioner’s denial of Plaintiff’s application, although indications are that Alamo had purchased its site and that this fact was known to the Commissioner at the time he denied Plaintiff’s application. This presents the obvious question as to whether or not the Commissioner is justified in denying Plaintiff’s application because he wishes to reserve the area in question for Alamo which, at some subsequent date, may or will file application to move its home office into the questioned area. At any rate, the Court is required to review the facts as they existed on October 26, 1961, the date of the Commissioner’s order involved in suit. As of that date, the undisputed evidence is that Alamo had purchased its new site and was planning to move its home office to that site. It does not seem, however, that these facts would give to Alamo’s future plans any preference over Plaintiff’s application which had actually been filed with the Commissioner some three and a half months before October 26, 1961. The Court does not believe that, under the law, the Commissioner was entitled to protect Alamo’s future plans against'competition by denying Plaintiff’s application which was actually before him. It would be strange indeed if the Commissioner could deny entry by one association into an area because he wished to reserve that area for another association which had plans to enter it.

“However, independently of the views expressed in the last preceding paragraph, it is the opinion of the Court that, in light of all the evidence there is not substantial ■evidence to support the contention that undue injury will result to Alamo. Alamo ■chose its present location voluntarily, and such choice was approved by the Defendant Commissioner, notwithstanding the fact that such location was somewhat surrounded by three branch offices of the Plaintiff. Its present office is considerably nearer Plaintiff’s branch #7 than to Plaintiff’s proposed branch #23. The Court believes that it would be unreasonable to hold that undue injury did not result to Plaintiff’s #7 by the location of Alamo’s home office close to it, and the evidence shows that branch #7 was not unduly injured by the location of Alamo’s home office, and to hold that Alamo’s home office operation has not been unduly injured by the proximity of Plaintiff’s branch #7, as the facts show, and, at the same time, hold that Plaintiff’s #23 would unduly injure Alamo’s operations at its present office when Plaintiff’s #23 will be much farther removed from Alamo’s home office than is Plaintiff’s #7. If we seek to protect Alamo’s proposed location from undue injury, the case becomes weaker, because Alamo proposes to locate its new home office much nearer to Plaintiff’s #7 than is presently the case, and the evidence here indicates that the Commissioner has given reasonable assurance that the move of Alamo will be approved. This is tantamount to finding that Alamo’s coming closer to Plaintiff’s #7 will neither injure Plaintiff’s #7 nor Alamo’s home office operation. The Court is unwilling to find that no undue injury is occurring to Alamo at its present location although quite near Plaintiff’s #7; that no undue injury is occurring to Plaintiff’s #7 because of Alamo’s present home office; that no undue injury will occur to Plaintiff’s #7 from the relocation of Alamo’s home office; and that no undue injury will occur to Alamo from moving its home office still nearer to Plaintiff’s #7; and then condemn Plaintiff’s #23 because of undue injury to Alamo although #23 is located much farther away, in a new and growing area, and in a virtually self-sufficient shopping city. For evidence to be substantial it must be credible and reasonable, and it appears incredible and unreasonable to the Court that Alamo is not suffering undue injury from Plaintiff’s branch nearby, but that it will suffer undue injury from a branch much more distant from Alamo.

“In his findings, the Defendant Commissioner finds that the proposed area is being adequately served. Since this standard is found neither in the statute nor the Commissioner’s regulations, it is assumed that it is another way of saying that public convenience and advantage in the neighborhood proposed to be served and in the surrounding country will not be promoted by the proposed branch. This gets us to subsection (c) of the regulations dealing with public convenience and advantage in the neighborhood and in the surrounding country. The Commissioner finds that public convenience and advantage will not be promoted by the proposed branch because ‘the proposed location of said additional office is only 2.1 miles from the applicant’s service center #7.’ It is assumed that this means that Plaintiff’s #7 is meeting the needs and convenience of the same public as would be served by Plaintiff’s proposed #23.

“While 2.1 miles is regarded by the Court as a considerable distance in the congested traffic of a modern city and the traversing of such distance is thought to entail substantial inconvenience to the public, we cannot look to distance only and close our eyes to the numerous other factors presented in the area here involved. Obviously, it is impossible precisely to delineate the trade area of Wonderland Shopping City; nevertheless, it must be admitted that the drawing power of such a commercial center will be far-reaching. The center is designed to meet virtually all the shopping requirements of the public. The testimony shows that the retail floor space in the center is comparable to that to be found in a city the size of New Braun-fels; that the total cost of this center, including land, was some seven million dollars. Hundreds of thousands of people will be attracted to the center each year. Many of these are presently savings customers of Plaintiff; many more are potential customers. That the needs and convenience of these people will be served by the proposed branch office is self evident. It is assumed that the savings and loan industry is grounded in part at least upon the proposition that saving is a virtue and that the public advantage will be promoted by nurturing and encouraging that virtue. The location of a savings and loan office in this center where it is conveniently accessible to the public and where it is constantly before the eyes of countless thousands inevitably will encourage saving and thereby promote the public advantage. The Court suggests that a commercial center of this magnitude is unbalanced if it shows its patrons only easy and attractive ways of spending while providing them no facility which will afford security against the crises of the future. The needs of the ‘grasshoppers’ must be met, but the public advantage is heavily dependent upon the ‘ants’ of our society; and their needs, convenience, and encouragement cannot be ignored.

“It is the opinion of the Court that the record here shows no substantial evidence that public convenience and advantage will not be promoted by the operation of Plaintiff’s #23.

“Finally, sub-section (c), Chapter 3, of the regulations provides that the Commissioner shall withhold approval of a branch application in an area unless he finds that ‘the volume of business there is such as to indicate that a profitable operation is probable within a reasonable period of time.’ The statute directs that the Commissioner shall approve the application if the population in the neighborhood of such place and in the surrounding country affords a reasonable promise of adequate support for the proposed branch.

“What has been said above is believed to be sufficient to establish the probable profitable operation of the proposed branch. However, the present and anticipated growth of the area cannot be overlooked. The evidence shows that the rate of residential growth in the area is unexcelled elsewhere in the city and that most of this growth is occurring north and northwest of the proposed location, that is, so that the proposed branch office will lie far nearer to the most rapidly developing part of the area than any other existing savings and loan office.

“It is not possible to detail the evidence which the Court believes establishes beyond reasonable doubt that a profitable operation of the proposed branch is probable within a reasonable time, but it seems sufficient to mention: (1) the exceptional number of new residences recently constructed and presently being constructed and, more important, the residential subdivisions being actively developed which indicate an even more rapid growth in the years ahead; (2) the magnitude of the commercial area of which the proposed branch will be a part; (3) the opening in the near future of The University of Texas Medical Branch and the hospital and other developments which are certain to come with the school; and (4) the accessibility of the proposed branch office because of its location on vital traffic arteries of the city.

“In view of all the evidence presented in this case, it is believed that there is no location in the entire city of San Antonio with brighter prospects for the profitable operation of a branch savings and loan office than the one under review here, and it is, therefore, the judgment of the Court that there is no substantial evidence in this record to support a finding that a profitable operation of the branch is not probable within a reasonable time.

* * *

“Believing that on the whole record the order of the Defendant is not supported by substantial evidence, judgment is for the Plaintiff as prayed for.”

I think the trial court’s opinion is a sufficient answer to the Court’s holding that the Commissioner’s order is supported by substantial evidence. If this court upholds the denial of San Antonio Savings Association’s application, it will simply mean that no savings and loan association could go into the shopping center involved. Certainly there is a justification for a branch office in the center, and it should not be denied merely because it will be located in a grocery store and has been dubbed a “grocery branch.” The order of the Commissioner is arbitrary under the whole record in this case. The order, if allowed to stand, could be used as authority for denying any application regardless of whether or not the association applicant had other branches in the area.

The judgments of the courts below should be affirmed.

GREENHILL, J., joins in this dissent.

      . It is noted that Rule 3.8(c) was amended subsequent to the time involved in our opinion in Gibraltar Savings Association v. Falkner.


source: Caselaw Access Project

author: DICE, Commissioner.

license: Public Domain

text:
    Ex parte G. C. MARTIN.
    No. 36334.
    Court of Criminal Appeals of Texas.
    Dec. 11, 1963.
    Rehearing Denied Feb. 5, 1984.

      Raymond Dickens, Jr., Houston, King C. Haynie, Houston (on appeal only), for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and Daniel P. Ryan, Jr., Asst. Dist. Attys., Houston, Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

This is an appeal from an order entered in a habeas corpus proceeding remanding appellant to custody for extradition to the State of Tennessee.

At the hearing, the state introduced in evidence the executive warrant issued by Governor John Connally of this state, authorizing the arrest and return of appellant to the State of Tennessee.

The requisition of the governor of the State of Tennessee and supporting papers were also introduced in evidence, which certified that one G. C. Martin stood charged in said state by state warrant with the crime of disposing of personal property covered by mortgage or trust deed and that the said Martin was in the State of Tennessee at the time the crime was committed and had since fled from the state and had taken refuge in this state.

The state warrant, dated January 7, 1963, signed by the judge of Division 1 of the Court of General Sessions for Knox County, charged that “on the * * * day of Oct., 1959,” G. C. Martin committed the offense of disposing of a 1959 Biscayne 2-door Chevrolet mortgaged to the Bank of Knoxville, he owing $2,724.42 on the same.

At the hearing, appellant took the witness stand in his own behalf and swore that he was not in the State of Tennessee during the month of October, 1959. Appellant testified that he purchased the automobile in Knoxville, Tennessee, in July of 1959, for $2,742.42 and that the purchase was financed through The Bank of Knoxville and secured by a mortgage to the bank in such amount. Appellant stated that on the date the automobile was purchased he was living in Greenville, South Carolina ; that he carried the automobile from Tennessee to South Carolina; and that later, in January, 1960, he brought the automobile to Texas, when he moved to Houston. Appellant stated that after moving to Texas he could not make the payments on the mortgage and in March, 1960, he delivered the automobile back to Knoxville, Tennessee, by a friend.

Appellant insists that because he took the witness stand and testified, positively, that he was not in the State of Tennessee during October, 1959 (the date the offense was charged to have been committed), and the state offered no evidence to contradict his testimony, the court erred in remanding him to custody for extradition.

Reliance is had by appellant upon Ex parte Williams, Tex.Cr.R., 333 S.W.2d 146, and Ex parte Ryan, 168 Tex.Cr.R. 351, 327 S.W.2d 596, in which the judgments remanding relators to custody for extradition were reversed, where the relators offered evidence that they were not in the demanding state on the date the crimes were alleged to have been committed and no evidence of probative value was offered by the state to rebut the same.

In the Ryan case evidence was also offered on the issue of identity, which was not rebutted by the state.

We do not deem the two cases as here controlling, as appellant by his own testimony admitted that he was present in the State of Tennessee in July, 1959, and removed the mortgaged automobile from the state.

While the state’s warrant upon which the demand for extradition was based alleged that the offense was committed “on the * * * day of October, 1959,” the state, under Texas law, was not bound by such date but could prove that the offense was committed before, on, or after the date alleged, so long as the date was anterior to the presentment of the indictment and not barred by limitation. 1 Branch’s Ann.P.C.2d 547, Sec. 459; Madeley v. State, 165 Tex.Cr.R. 351, 307 S.W.2d 584.

We must assume that the law of Tennessee, in the absence of proof to the contrary, is the same as in our state.

Proof was offered by the state upon the habeas corpus hearing that the period of limitation for commencing prosecution for the crime charged against appellant under the laws of Tennessee, where the property exceeded sixty dollars ($60) in value, was four years.

Appellant’s admission that he was in the State of Tennessee during such limitation period and prior to the filing of an accusation against him and that he removed the-automobile from the state, was sufficient proof that he was in the demanding state on the date the offense was committed.

We further observe that the testimony of appellant, alone, was insufficient to require a finding that he was not in the demanding state at the time the offense was alleged to have been committed. Ex parte Norris, 154 Tex.Cr.R. 68, 225 S.W.2d 193; Ex parte Hatfield, 90 Tex.Cr.R. 293, 235 S.W. 591; and Ex parte Ackton, 164 Tex.Cr.R. 548, 301 S.W.2d 86.

The judgment is affirmed.

Opinion approved by the court.


author: McDonald, judge. WOODLEY, Presiding Judge

text:
    Harold Lloyd KINGHAM, Appellant, v. The STATE of Texas, Appellee.
    Nos. 36331, 36332.
    Court of Criminal Appeals of Texas.
    Dec. 18, 1963.
    Rehearing Denied Feb. 6, 1964.

      Donald W. Callahan (both cases), Thomas D. White (on 36,332 only), Houston, for appellant.
    Frank Briscoe, Dist. Atty., Houston, Carl E. F. Dally, James C. Brough and Frank Puckett, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

Appellant was charged with the offense of “Unlawfully Carrying a Pistol” in Cause No. 36,331. He was also charged with “A Serious Threat to take the life of a Human Being, or to Inflict Serious Bodily Injury upon a Human Being” in Cause No. 36,332. By agreement, both charges were tried at the same time before the Court on a plea of not guilty. Upon a finding of guilty on both charges, the Court assessed a penalty of 45 days’ confinement in jail for the offense of Unlawfully Carrying a Pistol, and a fine of $100.00 and 45 days’ confinement in jail for the offense of Serious Threat to take Life.

Since both appeals are before us with one Statement of Facts, we shall dispose of the two cases in one opinion.

A truck belonging to the appellant had been involved in an accident and had been towed to the Bud Moore Chevrolet Company. After having been informed that there was a towing charge of $22.50 and that he might have his truck upon the payment of the charge, the appellant went to get his truck.

Upon arriving at the lot, the appellant told William Lawrence Hughes, who was in charge of the body shop, that he had come for his truck. Mr. Hughes told him there was a towing charge of $22.50. The appellant insisted he was not going to pay the charge. The appellant then reached into the glove compartment of his car and produced a pistol which he held close to the stomach of Mr. Hughes, who could see the cartridges in the pistol, and said “I am going to take it or else.” Hughes threw up his hands and Hughes told appellant he had the odds and that he would not argue with him, to which appellant replied “Yes, and I will damn sure use them.” Hughes said he understood the appellant to mean he would get the truck or he would shoot him.

The appellant then placed the pistol in his pocket. Hughes whistled at a passing police car, which stopped. The appellant gave his pistol to an employee who started to leave the premises. The officer was told by one of Hughes’ employees that appellant’s employee had the pistol so he stopped the employee and recovered the pistol.

The appellant, testifying in his own behalf, admitted taking the pistol from the glove compartment of-his car and demanding his truck without the payment of towing charge. He denied he intended to harm Hughes.

There are no formal bills of exception. There are no informal bills of exception which merit discussion. The evidence is amply sufficient to sustain the judgment of the Court as to the offense of unlawfully carrying a pistol. The evidence is also sufficient to sustain the Court’s judgment for the offense of a Serious Threat to take the life of a Human Being, or to Inflict Serious Bodily Injury upon a Human Being. The Court, trying the facts, heard the evidence and concluded that the words spoken and the manner used indicated that the appellant seriously intended the threat to shoot the complainant, if the condition stated by the appellant was not met. The officers having intervened before the appellant could carry out his threat does not change matters and relieve the appellant of the consequences of his serious threat to take the life of Hughes. The finding of the Court would have the same weight as a jury’s verdict and should not be disturbed on appeal.

We find no error in the action of the trial court in overruling appellant’s motion for continuance and his motion for new trial in Cause No. 36,331, the case wherein appellant was charged with unlawfully carrying a pistol, for the reason that the mo-, tion for a continuance is not sufficient as a matter of law under the provisions of Article 543, Vernon’s Ann.C.C.P., and no affidavit of the missing witness, as to what his testimony would have been, was attached to the motion of appellant for a new trial, and there was no showing under oath as to why the affidavit had not been secured before the motion was filed. Massoletti v. State, 165 Tex.Cr.R. 120, 303 S.W.2d 412.

Appellant has filed separate briefs herein. None of his contentions in the “pistol case” have merit. It is his contention that the evidence is insufficient to show that a threat was seriously made to take the life of Mr. Hughes or to inflict serious bodily injury on him, as prohibited by Article 1265, Vernon’s Ann.P.C. From what we have already said, we find no merit in this contention.

It is appellant’s position that he comes within the terms of Article 1267, V.A.P.C. This article provides : “A threat that a person will do any act merely to protect himself, or to prevent the commission of some unlawful act by another, does not come within the meaning of this chapter”. Appellant contends that the evidence is insufficient to show a serious threat was made either to take the life of Mr. Hughes or to inflict serious bodily injury upon him. We have already resolved this contention against appellant. Appellant contends, in the alternative, that he had the right to prevent the unlawful retention of his truck by Mr. Hughes. To support his position, appellant cites and relies upon Spencer v. State, 156 Tex.Cr.R. 628, 245 S.W.2d 710. We do not think that the evidence shows an unlawful retention of appellant’s truck by Mr. Hughes. Neither do we think that Spencer’s case, supra, correctly interprets and applies the provisions of Article 1267, V.A.P.C. While the appellant in Spencer’s case might have had the right to have her truck loaded first, the prosecuting witness, in attempting to secure the loading of his truck first, cannot logically be said to be doing an unlawful act which would bring it within the terms of Article 1267, supra. Spencer’s case, supra, is overruled. Tullos v. State, 166 Tex.Cr.R. 44, 311 S.W.2d 244 involves a different factual situation and is not in point.

Finding the evidence sufficient to sustain the verdict of the Court in both cases, and finding no reversible error in either case, the judgments of the trial court are affirmed.

WOODLEY, Presiding Judge

(dissenting in part).

To that portion of the majority opinion which overrules Spencer v. State, the authority relied upon by the appellant, I respectfully dissent.

If, as the majority holds, the evidence does not show an unlawful retention of appellant’s truck by Mr. Hughes the Spencer case is not applicable and need not be overruled. On the other hand, if the facts here are such as to call for reversal under the majority opinion in Spencer v. State the conviction for seriously threatening to take the life or inflict serious bodily injury on Mr. Hughes should be reversed.


author: MORRISON, Judge.

text:
    Ex parte J. D. HOPE.
    No. 36634.
    Court of Criminal Appeals of Texas.
    Jan. 22, 1964.
    Ragan & Weaver, by Carroll S. Weaver, Houston, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

Petitioner, an inmate of the Texas Department of Corrections, made application to this Court in 1950 alleging that the conviction by virtue of which he was confined was void because at the time of his trial, he was indigent; that he asked the court to appoint counsel to represent him, which request was by the court refused; and that he was forced to trial without counsel and was sentenced to 50 years. In our opinion (Ex parte Hope, 154 Tex.Cr.R. 456, 228 S.W.2d 171) we denied the writ, but concluded the opinion with this observation: “We express the view that the trial court, where possible, should grant the request of an indigent accused for counsel in any felony case.”

Since the rendition of the above opinion, the Supreme Court of the United States has held in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, that all those indigent accused are entitled under the due process clause of the Federal Constitution to counsel at their trials. Following the decision in Gideon, petitioner again applied to this Court for writ of habeas corpus, relying upon Gideon. The Court ordered the Honorable David C. Moore, Judge of the 124 Judicial District to develop the facts in connection with petitioner’s allegations. Upon learning that Judge Moore was disqualified to hear such petition, we ordered the Honorable Joseph C. Gladney, Judge of the 4th Judicial District to hear the petition in the place of Judge Moore. Such petition has been heard, and petitioner, represented by counsel, has established that on the court’s docket in the handwriting of the Judge who originally tried petitioner in 1935, but who is now deceased, there appears the notation, “Defendant requested Court to appoint counsel to represent him and upon Court’s refusal the defendant excepted.” It was further shown that appellant was indigent and had only an eighth grade education. The State made no effort to refute any of these facts.

The Supreme Court of the United States is our appellate Court in due process questions, and in deference to their decision in Gideon, we have no alternative but to grant the writ of habeas corpus. It is therefore ordered that petitioner be discharged from his present custody and that he be transferred to the County Jail of Gregg County to stand trial on the original indictment there pending against him.

It is so ordered.


text:
    Ex parte Otis PARSONS.
    No. 36635.
    Court of Criminal Appeals of Texas.
    Jan. 22, 1964.
    William F. Walsh, Houston, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

Petitioner, an inmate of the Texas Department of Corrections, alleges that the conviction by virtue of which he is confined is void because he requested that counsel be appointed to represent him, that such request was denied and that since he was-indigent, he was forced to trial without the services of an attorney, the result of which his punishment was assessed at life-imprisonment, as an habitual criminal.

Petitioner’s appeal (Parsons v. State, 153 Tex.Cr.R. 157, 218 S.W.2d 202) was affirmed and his prior applications for writs of habeas corpus have been denied upon the authority of Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595. Prior to the submission of petitioner’s present application, Betts v. Brady, supra, was overruled by Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799.

We ordered the Honorable Edmund B. Duggan, Judge of the Criminal District Court of Harris County to hold a hearing and develop the facts concerning such allegations. This has been done and petitioner was able to establish that he asked the District Attorney to see that an attorney be appointed to represent him, that the District Attorney had a private conversation with the Judge and then reported to him that the Judge had said that petitioner had been out on bail, had had plenty of time to-secure the services of an attorney, and refused to appoint an attorney for him because he was not charged with a capital case. He further testified that he was without funds to employ an attorney.

Deputy Sheriff Treadway, who was present in court when petitioner was tried, testified that he had no attorney, that the Judge instructed the prosecutors to go over and talk to petitioner, following which the trial proceeded with no attorney representing petitioner.

The State was unable to contradict any of the foregoing testimony.

In Ex parte Hope, Tex.Cr.App., 374 S.W.2d 441, we have discussed our interpretation of the effect of Gideon, and our conclusions therein expressed are adopted and made a part of this opinion. It is therefore ordered that petitioner be discharged from his present custody and that he be transferred to the County Jail at Harris County to stand trial on the original indictment there pending against him.

It is so ordered.


author: McDonald, judge.

text:
    Jesse MALDONADO, Appellant, v. The STATE of Texas, Appellee.
    No. 36156.
    Court of Criminal Appeals of Texas.
    Jan. 22, 1964.
    No attorney of record on appeal, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The conviction is for the offense of burglary with intent to commit theft; the punishment, two years confinement in the state penitentiary.

There is no statement of facts, nor has appellant filed a brief herein.

The verdict in the transcript shows that the jury assessed the penalty at two years in the penitentiary. The judgment in the transcript shows the verdict with the penalty assessed, but it also shows a suspension of the sentence. The sentence of the Court shows no suspension of the sentence; thus, apparently the wrong judgment form was used by the clerk.

In any event, in the absence of a recommendation from the jury, the trial court was without authority to suspend sentence on the judgment rendered on their verdict. Brown v. State, 156 Tex.Cr.R. 652, 245 S.W.2d 497. See 13 Texas Digest, Criminal Law,

The judgment is reformed deleting therefrom the portion pertaining to the suspension of sentence, and as reformed, the judgment is affirmed.


text:
    James Ronald PREBLE, Appellant, v. The STATE of Texas, Appellee.
    No. 36339.
    Court of Criminal Appeals of Texas.
    Dec. 11, 1963.
    Rehearing Denied Feb. 5, 1964.
    John M, Anderson, Fort Worth, for appellant.
    Doug Crouch, Dist. Atty., R. J. Adcock, Asst. D'ist. Atty., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is assault with intent to murder with two prior convictions for felonies less than capital alleged for enhancement; the punishment, life.

Robert Trevino and his brother-in-law, Cruz Vallejo, testified that as they were leaving a dance on the night in question and as they approached Robert’s automobile, they observed a man seated in the driver’s seat and another man on the floor board of the front seat; the man under the wheel fled, but the appellant, who was on the floor board, remonstrated and was ejected. As they prepared to leave, appellant returned to their automobile armed with a shotgun and demanded their money. Cruz got out of the automobile and approached him as if to surrender his belongings, but instead grabbed the barrel of the shotgun, and a fight between the three of them over the gun ensued. During the course of this fight appellant fired the gun and Robert was seriously injured. Cruz continued to fight with appellant over the possession of the gun until the police arrived, placed the two under arrest and sent Robert to the hospital.

Officer Payne testified that when he arrived upon the scene Cruz told him that appellant was trying to steal their automobile, while appellant charged Robert and Cruz with trying to steal his motor vehicle. He further testified that the “wing glass” had been broken out of Robert’s automobile.

The prior convictions alleged were established. Appellant testifying in his own behalf denied that he was accompanied by anyone else on the night in question and stated that he had come upon Robert and Cruz looking in the open turtle back of his own automobile which was parked on the same parking lot, that he instructed them to leave, which they did, but that as he was preparing to leave they returned armed with what appeared to be an iron pipe, but which he later determined to be a shotgun, and that a struggle ensued. He stated that he acted in his own self defense against an attack made upon him by Robert and Cruz with the instrument in question and that they were the aggressors. His claim was that the gun was fired accidentally during the course of the fight, or at least that he did not fire the same. He admitted the prior convictions as well as many others and called his father, who testified that at times appellant “.goes off the deep end and really don’t know what he is doing.”

The above, we believe, are the salient facts in the case, and it was within the province of the jury to believe the State’s witnesses and to disbelieve appellant. We find the evidence sufficient to sustain the conviction.

We shall discuss the contentions advanced by brief on appeal. Appellant first contends that the court erred in instructing him not to argue the question of punishment under Article 63, Vernon’s Ann. P.C. This Court has held in Stockwell v. State, 166 Tex.Cr.R. 577, 316 S.W.2d 742, and Toone v. State, 144 Tex.Cr.R. 98, 161 S.W.2d 90, that such instruction was not error.

He next contends that the court erred in failing to define in his charge the term assault and in failing to instruct the jury on the law of aggravated assault. These questions were sought to be raised in two ways. His requested charges, filed at the time of the trial, do not contain appellant’s exception over the signature of the judge, and under the holding of this Court in Carpenter v. State, 171 Tex.Cr.R. 65, 345 S.W.2d 412, the question is not presented for review. By bills of exception filed 148 days after the giving of notice of appeal, the same questions are presented. Under the holding of this Court in Fowler v. State, 171 Tex.Cr.R. 600, 352 S.W.2d 838, the trial judge was without the authority to extend the time for filing the bills of exception after the expiration of the 90 days provided in Article 760d Vernon’s Ann.C.C.P., and the questions are therefore not before us for consideration. We note in passing that the defense raised was that of self defense or accident and the issue of aggravated assault was not raised.

Appellant’s last contention is that the court erred in refusing to grant a mistrial when the State asked appellant’s father if some of appellant’s companions (Bucky Smith and Lee Crow) had been convicted for murder. The court ultimately sustained the objection to the question, but declined to grant the mistrial. In order to determine if error is reflected by the above, the entire record must be examined. Appellant voluntarily testified that his parole in another case (not set forth in the indictment) had been revoked because he had been found guilty of associating with “disreputable characters”; he further testified that he had been arrested as many as five times in one week. His father testified affirmatively without objection that appellant had been running around with some pretty bad characters, among them one Bucky Smith and one Lee Crow, whom he would not allow appellant to bring to his home. He further testified that appellant hadn’t had time to get married because he had been in the penitentiary so much.

Gandy v. State, 137 Tex.Cr.R. 412, 129 S.W.2d 661, relied upon by appellant, can have no application here because the person whose misconduct was inquired about was not on trial.

It should be noted that the questions were not asked in had faith, because the father stated before the objection was sustained that he knew that the two named companions of appellant had been so convicted.

In view of all this evidence introduced without objection as to appellant’s association with bad characters, we are unable to find reversible error in the asking of the questions where the jury were instructed not to consider the question and the answer.

Finding the evidence sufficient to support the conviction and no reversible error appearing, the judgment is affirmed.


author: McDonald, judge. WOODLEY, Presiding Judge. MORRISON, Judge

text:
    George PIZZITOLA, Appellant, v. The STATE of Texas, Appellee.
    No. 36107.
    Court of Criminal Appeals of Texas.
    Nov. 20, 1963.
    Rehearing Denied Jan. 22, 1964.
    See also 372 S.W.2d 676.
    'William H. Scott, Sr., William H. Scott, Jr., Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally and James C. Brough, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., of Austin, for the State.
   McDonald, judge.

Appellant was charged by separate complaint and information, with two misdemeanor offenses, and by agreement of the parties was tried before the court at one time. In Cause No. 36,107, the case under consideration at this time, he was convicted of aggravated assault, a misdemeanor, and assessed the punishment of 90 days confinement in jail.

The cause is before this court without a statement of facts of the evidence adduced on the trial, and consequently, the sufficiency of the evidence is not before this court.

There is no verified pleading to support proof of denial of counsel, and exception to overruling of an unverified motion for new trial cannot be considered on appeal even though the trial court heard evidence thereon. Thomas v. State, 166 Tex.Cr.R. 584, 316 S.W.2d 741; Barnett v. State, 160 Tex.Cr.R. 622, 273 S.W.2d 878.

Appellant was represented by counsel, as a matter of record, from March 4, 1963, when his first amended motion for new trial signed by his attorney, was filed. This was 32 days before notice of appeal was given on April 5, 1963. A formal bill of exception could have been filed within 90 days from the date notice of appeal was given. Article 760d, Vernon’s Texas C.C.P.

This court is thus left with nothing to consider relative to the trial court’s denial of appellant’s motion for new trial.

Finding no reversible error, the judgment of the trial court is affirmed.

ON APPELLANT’S MOTION FOR REHEARING

WOODLEY, Presiding Judge.

The appellant urges that we were in error in holding that his claim of fundamental error in deprivation of counsel was not before us for review. We do not agree.

It is true that a denial of due process may be raised and urged by collateral attack after final conviction, as was done in Alcorta v. State of Texas, 355 U.S. 28, 78 S.Ct. 103, 2 L.Ed.2d 9. This does not alter the fact that appeals from convictions are to be decided upon the record from the trial court under the procedure provided by the statutes of this state.

In addition to the statutes referred to in our original opinion, we direct attention to Arts. 753 and 754 Vernon’s Ann.C.C.P., which read in part:

“New trials, in cases of felony, shall be granted for the following causes, and for no other:
“1. Where the defendant has been tried in his absence, or has been denied counsel.” (Art 753)
“New trials in misdemeanor cases may be granted for any cause specified in the preceding article, except that contained in subdivision one of said article.” (Art. 754)

Under these statutes the trial court did not err in overruling the motion for new trial based upon lack of counsel, this being a misdemeanor case.

In the light of the serious contention that lack of counsel to represent an indigent defendant in a misdemeanor case is a denial of a fundamental right under the Fourteenth Amendment of the United States Constitution which may be raised after conviction, we will discuss the appellant’s claim of denial of due process.

The appellant, on motion for new trial, testified that he had been on bond for three months preceding the date of trial; that his mother was his bondsman; that he never called an attorney while on bond, made no request to the trial court to appoint counsel, and did not inform the trial court that he was unable to employ counsel. In addition, the record reveals that appellant was represented by counsel of his own choice on his motion for new trial and on appeal in the case at bar.

The appellant urges that the recent case of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, is applicable to the instant case. We do not construe such case to embrace the misdemeanor case at bar. This is especially so in view of the foregoing facts and circumstances. Such being the case, no denial of a constitutional right to counsel is shown.

Appellant’s motion for rehearing is overruled.

MORRISON, Judge

(Dissenting).

Since the rendition of our original opinion, my attention has been called to several cases which hold that the failure to appoint counsel for an indigent accused charged with a misdemeanor (which provides as punishment confinement in jail) raises a constitutional question. I would favor following the reasoning of the Fifth Circuit Court of Appeals in Glenn v. United States, 303 F.2d 536, wherein they said, “The public is not obliged to furnish free legal help for a defendant who is earning sufficient income to provide his own”, but find that in the case at bar appellant testified that he was unable to employ counsel, that he had been unemployed from the time he made bond until the trial and that when he was able to gain employment, it was “relief work” on “the boats”. The State offered no evidence in rebuttal.

The Supreme Court of Indiana as early as 1951 in Bolkovac v. State, 229 Ind. 294, 98 N.E.2d 250, recognized such rule and reversed a misdemeanor conviction where the punishment had been assessed at 180 days confinement in jail on the grounds that the accused had been deprived of a right to counsel. The court based their opinion upon their State and the Federal Constitutions, even though they recognized that the Supreme Court of the United States had not at that time passed upon the question of the constitutional necessity of appointment of counsel for an indigent accused in a case where the possible punishment was confinement in jail.

The question was before the Appellate Department, Superior Court of California, during the following year in People v. Agnew, 114 Cal.App.2d Supp. 841, 250 P.2d 369, and the Court based their opinion on the Federal Constitution and held that there was no distinction between misdemeanors and felonies as to the right to have counsel appointed.

The question was also before the Supreme Court of Maryland in 1961 in Patterson v. State of Maryland, 227 Md. 194, 175 A.2d 746. In that case the Court held no reversible error was reflected by the court’s refusal to appoint counsel in a misdemeanor case where the punishment was by confinement. When the Patterson case reached the Supreme Court of the United States by writ of certiorari (Patterson v. Warden, Maryland Penitentiary, 372 U.S. 776, 83 S.Ct. 1103, 10 L.Ed.2d 137, the judgment was vacated and the case remanded to the Supreme Court of Maryland for further consideration in the light of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799. Upon remand, the Supreme Court of Maryland reversed the conviction (231 Md. 509, 191 A.2d 237).

The majority relies upon waiver and failure to request the appointment of counsel in affirming this conviction. The Supreme Court of the United States struck a death knell to such reasoning in the recent case of Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70, wherein they said “that when the Constitution grants protection against criminal proceedings without the assistance of counsel, counsel must be furnished ‘whether or not the accused requested the appointment of counsel. Uveges v. Commonwealth of Pennsylvania, 335 U.S. 437, 441, 69 S.Ct. 184, 185, 93 L.Ed. 127.’ ” The court further stated that “Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.”

In view of the above, I can bring myself to no other conclusion hut the appointment of counsel for indigent accused in misdemeanor cases where the possible punishment is confinement in jail is mandatory under the Federal Constitution as interpreted by the Supreme Court of the United States.

I respectfully dissent to the overruling of appellant’s motion for rehearing.


author: BELCHER, Commissioner.

text:
    Lonnie Gwin WELLS, Appellant, v. The STATE of Texas, Appellee.
    No. 36313.
    Court of Criminal Appeals of Texas.
    Dec. 11, 1963.
    Kehearing Denied Feb. 5, 1961.
    Mauzy & Mauzy, by D. B. Mauzy, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James I. Smith, Jr., and Bill White, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for aggravated assault; the punishment, thirty days in jail.

The prosecutrix testified that on February 2,1963, she saw the appellant, an adult male, in her mother’s restaurant, and after leaving the restaurant between 10:30 and 11:00 p. m. in her automobile she noticed the appellant following her in a truck. She stopped at a telephone booth to call a police officer and at this time the appellant drove up, came to the door of the booth, and told her she had to go with him. When the appellant would not let her out of the booth she promised to meet him later. Prosecu-trix further testified that upon leaving the telephone booth she stopped for a traffic light and the appellant approached her car, opened the door, grabbed her, pushed her over with his leg, body and hands, and sat down on the seat, put his arm around her and started kissing her, at which time she was telling him to leave her alone and said, “Go on, let me go,” and then the appellant left.

A police officer testified that he saw the appellant about a quarter to a third of a block behind the prosecutrix, in his truck, after the alleged incident.

The appellant testifying in his own behalf stated that he had stopped at a telephone booth upon seeing the prosecutrix therein to ask if she needed any help as the hour was late, but never assaulted her on the night in question in any manner.

The appellant’s wife testified that she heard a conversation between the' prosecu-trix and the appellant over an extension telephone subsequent to the date of the offense charged, but the substance of such conversation was rejected as being immaterial.

It is insisted that the trial court erred in excluding the testimony of appellant’s wife of a conversation she heard over an extension telephone between the appellant and the prosecutrix about her reasons for filing the charges against him in this case.

In the absence of the jury, appellant adduced the testimony of his wife, which he sought to introduce before the jury but it was by the court excluded on the ground that it was immaterial, to which action of the court an exception was reserved.

The excluded testimony in substance was as follows: Prosecutrix told appellant that she did not want to file the charges but that her friend who was a policeman had told her to file the charges, that he had a grudge against the appellant and he thought' he could make anybody do anything; and the policeman told her after she had filed the charges that she should not drop them or he would put her in jail; and that prose-cutrix also told the appellant to meet her at a service station on the freeway and that she would tell him about what happened.

1 Branch’s P.C.2d 192-193, Sec. 185, reads as follows :

“The motives which operate upon the mind of a witness when he testifies are never regarded as immaterial or collateral matters. The adverse party may prove declarations of a witness which tend to show bias, interest, prejudice, or any other mental state or status which, fairly construed, might tend to affect his credibility. (Numerous cases cited therein.)”
“The animus, motive, or ill-will of a prosecuting witness who testifies to facts hurtful to defendant is never a collateral or irrelevant inquiry, and the defendant may show by such witness, or by himself, or by others if necessary, why the witness became unfriendly with him. (Numerous cases cited therein.)”

See also: Burnaman v. State, 70 Tex.Cr.R. 361, 159 S.W. 244, 46 L.R.A.,N.S., 1001; Whaley v. State, 120 Tex.Cr.R. 517, 46 S.W.2d 996.

This conviction rests solely upon the testimony of the prosecutrix and the officer. In excluding the testimony as above shown, the appellant was deprived of the right to prove facts which could show the motive of the prosecutrix, and the jury could properly weigh her testimony.

For the error pointed out, the judgment is reversed and the cause is remanded.

Opinion approved by the Court.


author: MOORE, Justice.

text:
    Joseph W. KEAHEY and Scott P. Keahey, Individually and as Independent Executor of the Estate of Ethel M. Keahey, Deceased, Appellants, v. DALLAS TEACHERS CREDIT UNION, Appellee.
    No. 11.
    Court of Civil Appeals of Texas. Tyler.
    Jan. 9, 1964.

      John J. Fisher, Dallas, for appellants.
    S. E. Hale, Jr., Clarence Bentley, Dallas, for appellee.
   MOORE, Justice.

This is an appeal from an order granting a summary judgment under Rule 166-A, Texas Rules of Civil Procedure.

This suit was originally instituted by Dallas Teachers Credit Union, plaintiff in the Court below, against Joseph W. Keahey and his son, Scott P. Keahey, Individually and as Independent Executor of the Estate of his mother, Ethel M. Keahey, deceased. The claim arose by reason of a note and chattel mortgage executed by Joseph W. Keahey and wife, Ethel M. Keahey, on January 23, 1960, in the principal sum and amount of $2,948.00, payable to Dallas Teachers Credit Union, involving the purchase and financing of a 1959 Willys Utility Wagon. Some nine months thereafter Ethel M. Keahey died leaving a will, naming her son as independent executor and bequeathing her estate to her husband and son. At the time of her death the installment payments upon the note being in default, the Credit Union repossessed the automobile and sold the same and applied the proceeds upon the amount then due and owing on the note and then brought this suit for a deficiency judgment in the amount of $1,714.00, plus 20% attorney’s fees as provided in the note.

Although Scott P. Keahey was not a party to the original transaction, suit was brought against him individually on the theory that he, as independent executor under his mother’s will, knew of this claim and failed to liquidate it.

The chattel mortgage provided that in case of default of payment, “said mortgagee may at said mortgagee’s option (notice of which option is hereby expressly waived), foreclose this mortgage by action or otherwise, and said mortgagee is hereby authorized to enter upon the premises where said goods and chattels may be, and remove and sell the same and all equity of redemption of the mortgagor therein, either at public auction or private sale at Dallas, Texas, or elsewhere, without demand for performance,” and further provided that mortgagee had the right to deduct all expenses in connection with the repossession and to apply the residue toward the payment of the indebtedness.

Dallas Teachers Credit Union filed its first Motion for Summary Judgment on February 17, 1962. After the filing of this motion, defendant, Scott P. Keahey, then filed Defendant’s First Amended Original Answer, denying the claim and alleging ¡ that the Credit Union did not sell the automobile at the best price possible. The answer was sworn to by defendant, Scott P. Keahey.

No hearing was had on this motion and thereafter the Credit Union filed another Motion for Summary Judgment, which motion was supported by the affidavit of one of its officers. Defendant, Scott P. Keahey, then filed an affidavit alleging that he had had a telephone conversation with some unnamed person at the Credit Union and that such person had told him that they were going to sell the automobile and that in the conversation he offered to pay for the same; that the person he talked with told him that they would contact him before doing anything. Nowhere in this affidavit does he state that the Credit Union failed to sell the automobile at the best price possible.

After a hearing the trial court granted a summary judgment for the Credit Union for $1,741.00 and attorney’s fees in the amount of $342.80, to which ruling defendant, Scott P. Keahey, excepted and perfected his appeal. Defendant, Scott P. Keahey, is now before this Court urging his single point of error to the effect that the trial court erred in granting the summary judgment because there was a disputed issue as to a material fact; to-wit, whether or not the Credit Union obtained the “best price possible” for the automobile. As was pointed out hereinabove, defendant, Keahey, nowhere in his affidavit in reply to the Motion for Summary Judgment ever made the statement that the Credit Union did not obtain the “best price possible” for the automobile. It was only in his First Amended Original Answer that he made such a statement. Hence, the only controversy on the point was created by the defendant’s pleading and not by his affidavit. It has now been established that pleadings alone will not in and of themselves create a genuine issue of fact and thereby prevent a summary judgment under Rule 166-A, T.R.C.P. As was pointed out in the authority cited below, if controversy in the pleadings were alone enough to prevent a summary judgment, this practice would ordinarily be useless for there is no effective constraint upon what may be asserted or denied in the pleadings. Therefore, for this reason, among others, we feel that the defendant, Keahey, has failed to create any dispute on a material fact issue. Sparkman v. McWirter, Tex.Civ.App., 263 S.W.2d 832. Writ ref. Turinsky v. Turinsky, Tex.Civ.App., 359 S.W.2d 114. Stayton, 29 Texas Law Review 688.

Even though the sworn answer in this case should be considered as evidence in the hearing on the motion, such would still be insufficient to create any dispute on the facts concerning the sale price of the automobile because same would be hearsay. The sworn answer fails to show that Keahey was present at the sale or that he knew any of the facts of his own personal knowledge. His statement in the answer amounts to a conclusion in the nature of hearsay and therefore is not in compliance with the Rule requiring the affidavit to be made upon personal knowledge showing affirmatively that the affiant would be able to testify to the matters stated therein. An affidavit based upon hearsay is insufficient to warrant the overruling of a motion for summary judgment. Fonville v. Southern Materials Co., Tex.Civ.App., 239 S.W.2d 885; Westfall v. Lorenzo Gin Co., Tex.Civ.App, 287 S.W.2d 551; Earp v. First State Bank of Abilene, Tex.Civ.App., 356 S.W.2d 178.

The moving party is entitled to a summary judgment when it appears from the uncontroverted facts as set forth in the affidavits, depositions, or admissions on file, that as a matter of law there is no material issue of fact presented for trial; stated in another way, if under the facts as developed, the court would be required to direct a verdict for the moving party then a summary judgment should be granted. Arlington Heights Appliance Co. v. Gordon, Tex.Civ.App., 244 S.W.2d 337; Sparkman v. McWirter, supra.

In this case we feel that the defendant, Scott P. Keahey, has failed to demonstrate that there was any material fact issue to be tried by the court or jury.

The judgment of the trial court is affirmed.


author: RENFRO, Justice.

text:
    Rupert L. CANNON, Appellant, v. Dr. Harris F. PEARSON et al., Appellees.
    No. 16476.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 20, 1963.
    Rehearing Denied Jan. 24, 1964.
    Harris & Ball, and Chester G. Ball, Arlington, for appellant.
    Hill & Paddock, and Homa S. Hill, Fort Worth, for appellees.
   RENFRO, Justice.

A summary judgment was entered for Dr. Harris F. Pearson and Mid-Cities Memorial Hospital Corporation in a suit brought against them by Rupert L. Cannon and wife for damages for negligent treatment of their minor daughter, Mary Lee Cannon, for injuries sustained in an accident.

Mary Lee, age 4, was struck by an automobile on August 3, 1962, and suffered a head injury. She was taken to Mid-Cities Hospital in Grand Prairie immediately. She remained in said hospital under the care of Dr. Pearson, until August 5. Her condition became worse and on August 5 plaintiffs ordered her moved to the Arlington Memorial Hospital, where she was administered emergency treatment, then rushed to St. Joseph’s Hospital in Fort Worth. Surgery was performed at St. Joseph’s, but the child died on August 7. On August 4, the owner and the driver of the automobile (A. M. Donnelly and O. W. Feemster) which struck the child began negotiations with plaintiffs. On August 6, a settlement was agreed upon and on August 10 a written release was executed by plaintiffs to Donnelly and Feemster. Subsequently thereto, plaintiffs initiated the instant suit. By deposition plaintiffs testified to what they considered neglect or negligence on the part of the defendants. It was their dissatisfaction with the care being given that prompted them to move the child to another hospital under the care of another doctor.

Plaintiffs contend there was a question of fact as to whether the release and settlement was for full or partial settlement.

Í The instrument executed by plaintiffs rread as follows: “Full and Final Release ■Covering All Claims or Rights of Action •of Every Description, Past, Present or Future. For and in Consideration of the sum of Three Thousand Five Hundred and No/100 Dollars ($3,500.00) to me/us in hand paid by A. M. Donnelly DBA Bell Cab Company and O. W. Feemster the receipt of which is hereby acknowledged, I/we being of lawful age, for myself/ourselves, by/our heirs, administrators, executors, successors and assigns hereby fully and forever release, acquit and discharge the said A. M. Donnelly DBA Bell Cab Company and O. W. Feemster heirs, administrators, executors, successors and assigns from any and all actions, causes of action, claims and demands of whatsoever kind or nature on account of any and all known ■and unknown injuries, losses and damages by me/us or my/our property sustained or received on or about the 3rd day of August, 1962 through an accident occurring in the 600 Block of Ouida Street in Grand iPrairie, Texas wherein Mary Lee Cannon was injured, resulting in damages and injuries for which injuries, losses and damages I/we claim the said A. M. Donnelly D.B.A. Bell Cab Company and O. W. Feemster to be legally liable, which liability is expressly denied, it being understood and agreed that the acceptance of said sum is in full accord and satisfaction of a disputed claim and that the payment of said sum is not an admission of liability. It is expressly understood and agreed that this release and settlement is intended to cover and does cover not only all now known injuries, losses and damages but any future injuries, losses and damages not now known or anticipated but which may later develop or be discovered, including all the effects and consequences thereof; and I/we hereby declare that I/we fully understand the terms of this settlement; that the amount stated herein is the sole consideration of this release and that I/we voluntarily accept said sum for the purpose of making a full and final compromise, adjustment and settlement of all claims for injuries, losses and damages resulting or to result from said accident.”

Plaintiffs’ petition in the instant suit included a claim for recovery of the funeral bill and services rendered by defendants which were presented to the automobile owner prior to settlement.

Closely in point both as to undisputed facts and contentions made by plaintiffs is the case of Borden v. Sneed, Tex.Civ.App., 291 S.W.2d 485. In said case the court stated: “The dominant question posed by this appeal is whether or not a release by an injured party of the one responsible for his original injury bars action by the injured party against a physician or surgeon for negligent treatment of the injury.” The court cites 40 A.L.R.2d 1077: “ ‘By the weight of authority, a general release by the one responsible for the releasor’s original injury bars action by the injured party against a physician or surgeon for negligent treatment of the injury. The most commonly followed reasoning in support of this position is that since the one causing the original injury is liable for the consequences of the physician’s negligence, which would not have occurred “but for” the original negligence and injury, where the physician was selected with due care by the injured party, a release of the one so liable must be considered to have been a release of the claim based upon the physician’s negligence as well as the negligence of the original wrongdoer.’ ” After citing numerous authorities, the court held: “When the injured party elects to release the one who is primarily liable for his injuries, it is neither unjust nor inequitable to hold that his release of the wrongdoer serves to release also the physician who treated him in his injuries at a time when he needed treatment and relief from suffering.”

This court in Sims v. Auringer, 301 S.W.2d 286, followed Borden v. Sneed, supra.

In an earlier case this court held in Phillips v. Wright, 81 S.W.2d 129, that a release executed by plaintiff, who was injured in a motor bus accident and released the bus company from any and all liability of every kind and character, whether known or unknown, growing out of or incident to the accident, operated to discharge the attending physician from liability to plaintiff for allegedly negligent treatment of his injuries.

Believing as we do that the undisputed facts and the terms of the release agreement operated as a release to defendants as a matter of law, we affirm the summary judgment which so holds.

Affirmed.