author: CALVERT, Chief Justice. GRIFFIN, Justice

text:
    William M. PEARCE, Petitioner, v. Floyd M. CROSS, Respondent.
    No. A-11424.
    Supreme Court of Texas.
    Nov. 2, 1966.
    Rehearing Denied Dec. 14, 1967.
    Garrett & Garrett, Fort Worth, for petitioner.
    Brown, Day & Crowley, Fort Worth, for respondent.
   CALVERT, Chief Justice.

The only question presented by the appeal in this case is whether there is in the record evidence of probative force supporting a jury finding that execution of a will by Mrs. Effie Ferguson on September 1, 1961, was procured by undue influence exercised by her sister, Mrs. Della Pearce. A judgment of the district court, based on the jury finding, denying probate of the September will and admitting an earlier will, dated July 27, 1961, to probate, was affirmed by the court of civil appeals. 400 S.W.2d 622. We affirm.

Petitioner, William M. Pearce, a nephew of Mrs. Ferguson and named as independent executor in both wills, offered the September will for probate. Respondent, Floyd M. Cross, surviving husband of Mrs. Ferguson’s daughter, an only child, and a beneficiary under both wills, contested probate of the September will and offered the July will for probate.

In affirming the judgment of the trial court, the court of civil appeals held that the jury finding that execution of the September will was procured by undue influence was supported by evidence of certain declarations made by the testatrix after the will was executed. In this connection the court said (400 S.W.2d 624):

Although all the evidence which was adduced on the point were declarations of the testatrix after the fact of execution of the new will, we consider such competent to prove the existence of undue influence inducing testatrix’ act, and also her state of mind at the time.

The holding that the declarations are evidence “of the existence of undue influence inducing testatrix’ act” is contrary to the rule recognized by this court in Scott v. Townsend, 106 Tex. 322, 166 S.W. 1138, 1144 (1914), that a testator’s “declarations are not competent to prove the fact of undue influence.” The correct rule with respect to declarations of the testator in undue influence cases is succinctly summarized in McCormick & Ray, Texas Law of Evidence, § 894 (2d ed. 1956), as follows:

Undue influence as an invalidating fact consists of two elements: first, the external, the words or acts of third persons which bring the pressure to bear; second, the internal, the collapse of the testator’s own will, produced by such external conduct. It is held that declarations of the testator, of whatever type, are no evidence of the former but only of the latter element.

We reaffirmed the rule as recently as 1964. See Lindley v. Lindley, 384 S.W.2d 676, 682 (Tex.Sup.1964).

Having concluded that declarations of the testatrix are not evidence of the fact of undue influence, we must look elsewhere for proof of that element of the issue. There is in the record no direct evidence of the fact of undue influence, but the fact may be established by circumstantial evidence. Long v. Long, 133 Tex. 96, 125 S.W.2d 1034, 1036 (1939). A review of the evidence is required.

Mrs. Ferguson died June 28, 1962, at age 82. Her estate, having an appraised value of $73,310.50, consisted principally of cash on deposit in banks and savings and loan institutions. Her home was valued at $7,500.00. Article II of the July will contains a bequest of $1,000.00 in cash and a devise of a life estate in the home to Floyd M. Cross. The will contains no other specific bequest or devise. The remainder interest in the home and all other property is disposed of in the residuary clause of the will one-third to the testatrix’ sister, Della M. Pearce, and two-thirds in trust for the benefit of Mrs. Pearce’s two sons during their lives with remainder to their children. The only material change made in the July will by the September will was elimination of the devise of a life estate in the home to Cross and reduction of the money bequest to him from $1,000.00 to $125.00. The inquiry thus narrows to whether there is evidence in the record from which the jury could reasonably infer and conclude that this change was procured by undue influence exercised by Mrs. Pearce.

Evidence in the record leaves no doubt that Cross was a natural object of Mrs. Ferguson’s bounty, and, indeed, that Mrs. Ferguson considered herself at least morally obligated to devise to him a life estate in the home. Cross and his wife, Jewell, lived with Mrs. Ferguson in her home for some twenty years. During that period of time, Mrs. Ferguson and Jewell, who had no children, got along with each other “wonderfully. They were almost inseparable. Wherever one went the other was there;” and Jewell and the respondent, Cross, were “very happy” together. Jewell died June 29, 1961, but Cross continued to live in Mrs. Ferguson’s home until her death one year later.

When Mrs. Ferguson discussed the drafting of the July will with her attorney, she told him that her daughter had died only recently and expressed the “highest love and care for her.” She said that Cross “had been better to her than a son could be,” and told him that several years before she had entered into an agreement with her daughter and son-in-law that “if they would dispose of their home or whatever they had and move in with her and take care of her, that that home would be their home the rest of their life and that they did.” She insisted that the attorney write into the will the following sentiment: “I would like to take this opportunity to also express my appreciation of my beloved són-in-law, Floyd M. Cross, for that kind and tender care which he extended me during my stay here on earth.”

There is no suggestion in the evidence that the legacy to Cross contained in the July will did not represent Mrs. Ferguson’s wish at the time the will was executed. Instructions for preparation of the will were given by Mrs. Ferguson in her home and were given by her alone. Cross was not in the room at the time. The will was also executed in Mrs. Ferguson’s home, at a time when Cross was not in the house.

There is no evidence in the record of a change in the relationship between Cross and Mrs. Ferguson between July 27 and September 1, 1961, or thereafter, which would justify a reasonable belief that Mrs. Ferguson concluded that Cross no longer had a claim on her beneficence or that she no longer felt a moral obligation to fulfill her agreement made with him and her daughter. Indeed, the evidence is all to the contrary. A nurse who was employed by Mrs. Pearce and who lived in Mrs. Ferguson’s home and cared for her from July 15 to October 15,1961, testified that Cross “lost many a night’s sleep helping out in taking care of” Mrs. Ferguson; that Mrs. Ferguson “seemed to be very fond of Mr. Cross,” and said “numbers of times that he had been so good to her and was still good to her.” Another nurse employed by Mrs. Pearce and in the home from October, 1961 until January, 1962, testified that Cross helped care for Mrs. Ferguson and looked after the laundry and bought all the groceries; that when Cross was away, Mrs. Ferguson would “want to know where he was and when he was coming back” and said she “didn’t know what she would do without Floyd.” A third nurse who was also employed by Mrs. Pearce and went to work about March 1, 1962, testified that Cross helped with Mrs. Ferguson and was “wonderful” to her; that Mrs. Ferguson worried about Cross “from the time he left the house until he came in * * * thought the world and all of” him, and “did not want him ever to leave her.”

The September will was drafted and executed under circumstances differing entirely from the circumstances surrounding the drafting and execution of the July will. Mrs. Pearce exhibited an interest in the July will soon after it was. executed. The attorney who prepared the will sent a copy to Mrs. Pearce’s son in Houston who was named independent executor in the will. Thereafter, Mrs. Pearce telephoned the attorney and wanted to know the contents of the will, but the attorney refused to divulge them. She then asked if a copy had been sent to her son, and upon being advised that it had been, she said, “Well, I’ll find out what’s in it.” Sometime later, Mrs. Pearce telephoned the attorney and told him “she had talked to Mrs. Ferguson and they wanted to change the will.” She asked the attorney to come by her house, which he did the next morning. Mrs. Pearce told the attorney that she had authority to speak for Mrs. Ferguson and that “they wanted Article II changed leaving the life estate out and knocking the $1000.00 out.” Mrs. Pearce asked, “would it be legal if we left him a dollar?” And when the attorney “kind of snickered,” she said, “Well, let’s leave him a hundred or something like that.” She finally suggested the figure of $125.00. Mrs. Ferguson never called the attorney about changing the will, and he never talked to her about changing it.

On September 1 Mrs. Pearce went for Mrs. Ferguson in her car and drove to the parking lot of a bank where, by prearrangement, she was to meet the attorney who was to arrange for witnesses to the execution of the new will. When the attorney arrived at the parking lot, Mrs. Ferguson was being helped from the bank by Mrs. Pearce. The three sat in the front seat of the attorney’s car, the attorney under the wheel, Mrs. Ferguson in the center and Mrs. Pearce on the right-hand side, while the attorney explained the change which had been made in the writing of the new will and that the new will would revoke or cancel the July will. Mrs. Ferguson “nodded her head yes or said yes,” the attorney did not remember which. Two officers of the bank were present as attesting witnesses and a bank employee was present to take the required acknowledgments to the self-proving affidavit. While the will and the self-proving affidavit were being executed, Mrs. Pearce surrendered her seat in the car to the notary but remained “in the immediate area all the time.” The executed will was delivered to Mrs. Pearce who took it into the bank while Mrs. Ferguson remained in the car.

We turn our attention now to the evidence showing the relative personalities and dispositions of the two principal actors in the drama — Mrs. Ferguson and Mrs. Pearce— and their relationship, conduct and activities. Mrs. Ferguson was 81 years of age when she executed the two wills. When the attorney who prepared the wills visited her in her home in July, he found her to be “in declining health” and grieving over the recent loss of her daughter. He testified that Mrs. Ferguson “seemed to have been, and was at that time, a very sweet, kind, gentle woman.” The nurse in the home from July 15 to October 15, 1961, testified that Mrs. Ferguson’s “health was bad and her strength was weakening by the day,” and “her mind was weakening with her body.” One of the witnesses who attested execution of the September will testified that at that time Mrs. Ferguson was not very strong and talked weakly; the other testified that she “was feeble,” and the attorney testified that she “was in ailing health and was tired.” According to the testimony of the first nurse, Mrs. Pearce was a much stronger person than Mrs. Ferguson and was much stronger “in her talk and conversation.”

Soon after Jewell’s death Mrs. Pearce began making frequent visits to the Ferguson home. The first nurse testified that Mrs. Pearce never came to the house to “try to do anything for her sister or comfort her in any way,” her visits “worried” Mrs. Ferguson, and she appeared intent upon getting Mr. Cross out of the house; Mrs. Pearce told Mrs. Ferguson “numbers of times * * * that they just had to get Floyd out of the home, that he was there for no good and that he was just hanging around there for what he could get.” Asked if “those particular conversations did anything about upsetting Mrs. Ferguson,” the witness answered: “Oh, they did very much. She’d get awful nervous after Della would come down and go back, and I’d have to work with her. She’d get awfully nervous.” On one such occasion Mrs. Ferguson told Mrs. Pearce, “Listen, Floyd is not in this home because he wants to be. I asked him and Jewell to move here in this home and take care of me in my old days.” The nurse also' testified that Mrs. Pearce would come to the house “to borrow money or to get her some cigarettes,” prompting Mrs. Ferguson to say on one occasion, “It’s got so here she * * * never comes about me only when she wants money or wants me to buy her something.” Mrs. Ferguson had the witness hide her purse to prevent Mrs. Pearce from finding it, and had the witness carry" her bank box key in her uniform pocket because she couldn’t “trust Della with them.” The nurse quit her job because “Mrs. Pearce was running me crazy.”

According to the testimony of the second nurse, when Mrs. Pearce came to the house she was always complaining to Mrs. Ferguson “about the expenses of the nurses and all the medicine she was taking,” and Mrs. Ferguson “was always nervous and upset when Mrs. Pearce left.” At times Mrs. Pearce took Mrs. Ferguson’s “wearing apparel out” and took it home. This nurse also quit as a result of a quarrel with Mrs. Pearce.

The third nurse testified that she was told by Mrs. Pearce before she went to the Ferguson home that “Mr. Cross was stealing * * * and she intimated that he had been familiar with all the nurses;” that Mrs. Pearce also told the witness that if she “would stick by her and do as she said, that I would have a living the rest of my life.” She testified further that at times when Mrs. Pearce came to the house she “took quite a lot of things out of Effie Ferguson’s closet” and took away from the house bedspreads, quilts, dishes and clothing; and while doing so she accused Cross of taking things. Asked if Mrs. Pearce would “talk kindly or otherwise” to Mrs. Ferguson, the witness replied: “Well, she got pretty rough at times. She would tell Effie Ferguson just exactly how things were supposed to go around there and it did upset Mrs. Ferguson an awful lot.”

Considering only the evidence here summarized at considerable length and in some detail, we cannot say that the jury was unauthorized reasonably to infer that Mrs. Pearce exercised undue influence on Mrs. Ferguson to procure the change made in the July will by the September will. This inference could reasonably have been reached from direct evidence of Mrs. Ferguson’s deep affection for and sense of obligation to Cross and her inclusion of the legacy to him in the July will which was dictated by her alone; the continued display of affection, without diminution of intensity, to and including the date of execution of the September will and throughout the remainder of her life; the determined effort of Mrs. Pearce to prejudice Mrs. Ferguson against Cross and to obtain all of Mrs. Ferguson’s property for herself and her descendants, even to the point of taking some of it while Mrs. Ferguson still lived; the preparation of the September will at the instance and according to instructions given alone by Mrs. Pearce at a place where Mrs. Ferguson could not hear or participate; the practical .elimination by the ■ September will of the only dispositive provisions in the July will which did not benefit Mrs. Pearce and her descendants and their consequent benefit from the change; the intimate presence of Mrs. Pearce during explanation by the attorney to Mrs. Ferguson of the change which had been made and her nearby presence during its execution, and the taking of the executed will into her possession by Mrs. Pearce and the keeping of it under her control.

Our conclusion that the evidence reasonably supports an inference of the fact of undue influence does not, standing alone, give vitality to the jury finding that the September will was procured by undue influence. We must also find that the evidence will support a reasonable inference that the influence was such as to destroy the free agency of the testatrix and produce a will which she would not otherwise have made. Rothermel v. Duncan, 369 S.W.2d 917, 922 (Tex.Sup.1963). It is on this issue that declarations of the testatrix are competent evidence as showing the state of mind of the testatrix at the time of execution of the instrument. Scott v. Townsend, 106 Tex. 322, 166 S.W. 1138(1914). There are such declarations.

After the September will had been executed, Mrs. Pearce returned Mrs. Ferguson to her home. While the nurse was getting Mrs. Ferguson ready for bed, she said: “Della took me down and had me to just make another will and completely willed Floyd out of my property, my home and everything. I feel awful bad about it.” According to the nursé, Mrs. Ferguson also said: “Della wanted it that way and would have it that way;” and she “mentioned several times she felt awful bad about it.”

Within a week or two after the September will was executed, Mrs. Ferguson telephoned the attorney and said she wanted to make a new will to devise a life estate in the home to Cross. When asked by the attorney why she had executed the second will, she said that “Della had just been riding her so that she decided to do it.” After further discussion, the attorney asked, “Gosh, just why did you do it ?” And she replied, “Well, Della made me.” Asked why she did not get the will and tear it up, Mrs. Ferguson answered, “I can’t. Della has got it locked up down at the safety deposit box.” Shortly after the conversation, Mrs. Ferguson’s illness became more serious and she went to the hospital. The attorney never heard from her again.

The foregoing declarations disclose that at the time Mrs. Ferguson executed the September will she still felt an obligation to leave her home to Cross and was deeply anguished that she had executed an instrument which did not do so. When these declarations are added to the evidence heretofore summarized, and consideration is givém to evidence from which the jury could reasonably infer that when Mrs. Ferguson executed the will she was a gentle person, frail in body and mind and weak of will, and thus more likely than a person in normal physical and mental health to yield to pressing persuasions and impositions; and that Mrs. Pearce was a quarrelsome, domineering and avaricious person; together with the statements of Mrs. Pearce indicating that she was arrogating to herself an equal right with Mrs. Ferguson to determine what part of the property, if any, was to be left to Cross, and the effect other efforts of Mrs. Pearce to influence and dominate Mrs. Ferguson had on her, we have no. difficulty in holding that the jury was reasonably authorized to infer and conclude that in the writing of the September will Mrs. Ferguson’s own free will and volition were subverted and destroyed by inordinate persuasions on the part of Mrs. Pearce, and that she was thus induced to execute a will which she would not otherwise have executed.

As had often been said by this court, every case of undue influence must be decided on its own peculiar facts. See Rothermel v. Duncan, 369 S.W.2d 917 (Tex.Sup.1963) ; Long v. Long, 133 Tex. 96, 125 S.W. 2d 1034 (1939). Rothermel v. Duncan, supra, and Curry v. Curry, 153 Tex. 421, 270 S.W.2d 208 (1954), are so obviously distinguishable on their facts that they need not be analyzed at length.

The judgment of the court of civil appeals is affirmed.

GRIFFIN, SMITH, and NORVELL, JJ., dissenting.

GRIFFIN, Justice

(dissenting)

I am unable to agree with the disposition made of this cause by the majority opinion. I take it there is no disagreement that the declarations of Mrs. Ferguson are hearsay and competent only to prove her state of mind after a prima facie case of undue influence has been made. Scott v. Townsend, 106 Tex. 322, 166 S.W. 1138, 1144; Lindley v. Lindley, Tex.Sup., 384 S.W.2d 676, 682 (1964). I propose to demonstrate that the facts in this case do not support such a prima facie case. The evidence, as analyzed below, shows efforts by Mrs. Pearce to exert undue influence on the mind of Mrs. Ferguson, but the evidence also shows such efforts were of no avail.

Undue influence that is sufficient to set aside a will is composed of two elements. First: It must be proven either directly or by circumstances that the undue influence, or its attempted exertion, existed; and second : That such undue influence was effectually exercised, its purpose accomplished and the will thereby produced. Scott v. Townsend, supra, 166 S.W. p. 1144.

“Thus, before a testament may be set aside on the grounds of undue influence the contestant must prove: (1) the existence and exertion of an influence; (2) the effective operation of such influence so as to subvert or overpower the mind of the testator at the time of the execution of the testament; and (3) the execution of a testament which the maker thereof would not have executed but for such influence.” Rothermel v. Duncan, Tex.Sup., 369 S.W.2d 917, 922 (1963).

Now, keeping in mind the rules of law governing cases such as this, let us examine all the admitted testimony in this record which the majority says tends to show that Mrs. Pearce exerted undue influence upon Mrs. Ferguson and procured the execution of the September 1st will contrary to Mrs. Ferguson’s wishes.

The testimony of the nurses demonstrated that Mrs. Pearce was quarrelsome with Mrs. Ferguson, that Mrs. Pearce objected to the employment and expense of so many nurses, and that Mrs. Pearce attempted to get Mrs. Ferguson to do without so many nurses thus lessening the expense. However, the record shows that although Mrs. Pearce tried to influence Mrs. Ferguson in this regard she was unable to do so. All of Mrs. Pearce’s efforts were apparently fruitless, evinced by the fact that Mrs. Ferguson continued with the same nursing services at presumably the same expense. Thus we are forced to the conclusion that with regard to this item Mrs. Ferguson was not influenced by Mrs. Pearce’s desires.

Mrs. Pearce also tried to reduce the quantity and quality of medicines and prescriptions used by Mrs. Ferguson in treatment of her illness. Her effort here was equally fruitless. Mrs. Ferguson continued to use these same medicines. There is no evidence that Mrs. Pearce’s position, that “a little wine and eggnog” was sufficient medicine, was adopted; Mrs. Ferguson’s will was not overcome.

Mrs. Pearce attempted to substitute her will for Mrs. Ferguson’s regarding Mr. Cross living in the home. Mrs. Pearce tried to force Mrs. Ferguson to have Mr. Cross move out, but Mrs. Ferguson was unmoved. Mrs. Ferguson “talked right up” to Mrs. Pearce. She said that Cross was in the home by invitation, that she wanted him there and that he was going to stay — and he did. This again shows that'Mrs. Fergu- _ son exercised her own will and volition contrary to the efforts and importunities of Mrs. Pearce.

The occurrences described above are relied on by the majority as circumstantial evidence tending to prove that Mrs. Pearce was successful in subverting the will of Mrs. Ferguson in regard to her testamentary disposition ; yet, it tends to prove the opposite. The fact that Mrs. Pearce was unable to control Mrs. Ferguson’s decisions in regard to the matters discussed above tends to prove that she did not control Mrs. Ferguson’s decisions at the time of the execution of the will.

We next come to the preparation of the September 1st will. This testimony, standing alone, might indicate Mrs. Pearce dictated the terms of Article II of this will. This evidence is somewhat similar to that in Curry v. Curry, 153 Tex. 421, 270 S.W.2d 208 (1954), in which the beneficiary under a deed had gone to a lawyer in an adjoining county and had the lawyer prepare a deed for the grantor’s signature. The deed conveyed the property in dispute to the beneficiary, son of the grantor, to the exclusion of the grantor’s other children. The son-grantee informed the lawyer as to the terms of the deed. The father, grantor, was not present at this lawyer’s office at the time the deed was prepared. The son procured the notary and the persons present when the deed was executed, and although not in the hospital room with his father at the time the deed was signed, he was in the “immediate vicinity” of the signing.

This Court reversed the judgment of the Court of Civil Appeals, which had reversed the trial court’s judgment for the son “notwithstanding the verdict.” This Court affirmed the trial court’s judgment on the ground there was no evidence to support the jury’s verdict that the execution of the deed had been procured by undue influence exercised by the grantee-son over the grantor-father. In discussing the fact that the son had the deed prepared and told the attorney the terms and conditions of the deed, this Court said: “There is no direct testimony that the grantor had nothing to do with the preparation of the deed and did not know it had been prepared until it was presented to him, but there is testimony from which the jury might reasonably have drawn such an inference.” p. 210-211. Following this the Court said the existence of these circumstances and inferences does not mean they were of such probative force as to support the jury finding of undue influence. The Court further said that it attached no weight to the fact that the grantee-son arranged for the notary and attesting witnesses.

In the case at bar the record shows it was Mrs. Ferguson’s attorney who drew the will of September 1st in accordance with Mrs. Pearce’s statement that “we want” Article II changed so as to leave Mr. Cross only $125.00. Here, as in Curry v. Curry, supra, there is no evidence that Mrs. Ferguson was in ignorance of the new Article II. In fact, the circumstances surrounding the execution of the will show the contrary. The attorney had represented Mrs. Ferguson in preparing the July 21st will. She had called him to discuss a third will after the September 1st will had been executed.

At the execution of the will in question Mrs. Ferguson, her attorney, and Mrs. Pearce met at the bank parking lot, and the attorney explained to Mrs. Ferguson the meaning and effect of Article II of the September 1st will. Again, after the two officers of the bank and the secretary-notary had come to the car occupied by Mrs. Ferguson, the attorney read Article II to Mrs. Ferguson and explained its legal effect. He again in the presence of the subscribing witnesses and notary asked Mrs. Ferguson if she understood the new Article II; if this set forth her wishes; and if she wished to execute the will and have it witnessed and authenticated. Upon her affirmative answer the attorney presented the will to Mrs. Ferguson, and she signed her name at the bottom of each page of the will and at the place provided for her signature, both on the last page of the will and also at the end of the self-proving certificate. The witnesses signed their names in similar fashion, and the notary authenticated the self-proving part of the will.

Sec. 59 of the Probate Code, V.A.T.S., requires that a certificate be executed by the testator and the subscribing witnesses in order that the will may be self-proving. Among other things, the officer taking the self-proving acknowledgment must certify that the testatrix declared to the officer and the witnesses that said instrument was her last will and testament and that she had willingly made and executed it as her free act and deed. The certificate attached to the will of September 1st contained the statutory language. The record is void of any evidence that while Mrs. Ferguson was signing her will, or while the notary was taking her acknowledgment to the self-proving part, Mrs. Ferguson said or did anything to indicate that anyone (including Mrs. Pearce) had influenced her to make this will contrary to her own wishes and desires. She never protested, either by word or act, that she did not understand the provisions of the will or that this was not the way she wanted to dispose of her property. During the time Mrs. Ferguson, the attorney, and the subscribing witnesses and notary were signing the will and the self-proving certificate, Mrs. Pearce was not in the car and was not saying or doing anything to force Mrs. Ferguson to sign these papers. The evidence shows that only the attorney, Mrs. Ferguson and the notary were in the car, and that the attesting witnesses were standing next to the front doors of the car in order that they might affix their signatures as witnesses and notary. Mrs. Pearce was out of the car and walking around in the parking lot near to or “in the immediate vicinity” of the car. No evidence or circumstance is contained in the record to show that Mrs. Pearce was exerting any influence — undue or otherwise — over'the will of Mrs. Ferguson at the time of the execution of the will.

In my opinion, the record herein fails to establish that Mrs. Pearce unduly influenced Mrs. Ferguson in the execution of this will. There is no evidence, circumstantial or otherwise, to establish the presence of undue influence. At best, the evidence shows only unsuccessful efforts on the part of Mrs. Pearce to influence the decisions of Mrs. Ferguson. The fact of undue influence not having been established, the declarations of Mrs. Ferguson which tend to show the state of her mind, become of no consequence. I would reverse and render this cause.

SMITH and NORVELL, JJ., join in this dissent.

      . Emphasis the authors’.

      . Emphasis ours unless otherwise indicated.


source: Caselaw Access Project

author: WOODLEY, Presiding Judge.

license: Public Domain

text:
    Leonard B. ORTEGA, Appellant, v. The STATE of Texas, Appellee.
    No. 40169.
    Court of Criminal Appeals of Texas.
    April 5, 1967.
    Rehearing Denied May 17, 1967.
    Charles A. Tucker, Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough and Frank Puckett, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

This is an appeal from an order revoking probation.

On June 28, 1960, appellant plead guilty to the offense of burglary and was assessed a punishment of five years in the penitentiary. Execution of sentence was deferred and appellant was placed on probation for a period of five years, one condition being that he “commit no offense against the laws of this or any other State or the United States.”

On May 28, 1965, the State filed a motion to revoke appellant’s probation, alleging the terms and conditions of his probation were violated in that he, on or about April 29, 1965, committed the offense of possession of heroin. The State’s motion was granted' and a warrant for appellant’s arrest was issued on May 28, 1965, one month prior to the time his probationary period was to expire.

The warrant was not executed until August 4, 1965. Revocation hearings were held on August 27, 1965, and September 27, 1965. Subsequent to these hearings, the trial court entered an order revoking probation.

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

The evidence at the revocation hearings shows that on April 29, 1965, appellant was arrested at a Pizza house by Houston police officers. When appellant saw one of the officers, he removed a red balloon from his pocket and threw it. The balloon landed approximately ten to fifteen feet away. Appellant was immediately arrested and the balloon was retrieved and found to contain capsules which were identified by a Houston police chemist as containing heroin.

The evidence is sufficient to sustain the trial court’s finding that appellant violated the terms of his probation.

Appellant contends that his probation expired prior to his arrest, making the revocation of same void. Warrant for arrest having been issued prior to expiration of his probation, appellant’s contention has no merit. Ex parte Fennell, 126 Tex.Cr.R. 286, 284 S.W.2d 727; Erija v. State, 167 Tex.Cr.R. 300, 320 S.W.2d 3. '

Appellant also contends that his arrest for possession of narcotics was illegal in that the officers failed to obtain a warrant for his arrest. Appellant’s arrest was authorized by Art. 215 C.C.P., in that narcotics officers testified that they acted on information related to one of them over the telephone by a reliable informant and that they believed they lacked time to obtain a search warrant. Weeks v. State, No. 40,037; Robles v. State, 168 Tex.Cr.R. 617, 330 S.W.2d 454. The recovery of the balloon which the officers saw appellant throw to the ground was not a search. Mendez v. State, Tex.Cr.App., 362 S.W.2d 841, and cases cited.

No abuse of discretion on the part of the trial court being shown, the order revoking probation is affirmed.


text:
    Jerry Wayne TRUSSELL, Appellant, v. The STATE of Texas, Appellee.
    No. 40259.
    Court of Criminal Appeals of Texas.
    April 26, 1967.

      Leslie Echols, Paris, for appellant.
    Jim N. Thompson, County Atty., Paris, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

The offense is robbery with firearms; the punishment, 15 years.

Trial was before a jury on a plea of not guilty.

The State did not seek the death penalty. The jury having found appellant guilty, he elected to have the same jury assess the punishment. Art. 37.07, Sec. 2(b), Vernon’s Ann.C.C.P.

Appellant’s first ground of error is the failure of the trial judge to set aside the indictment because the appellant had been denied a preliminary hearing.

The record reflects that appellant was arrested for the robbery and taken before a magistrate on January 10, 1966, where he was advised of the nature of the charge and of his rights. He asked for an examining trial and that counsel be appointed. Counsel who represented him at his trial, and represents him in this appeal, was appointed.

On January 13, 1966, the indictment was returned without any examining trial having been held.

Appellant cites Art. 16.01 C.C.P. which he would have us construe as depriving the grand jury of authority to return an indictment prior to his being afforded an examining trial.

Art. 16.01 reads in part:

“The accused in any felony case shall have the right to an examining trial before indictment in the county having jurisdiction of the offense, whether he be in custody or on bail, at which time the magistrate at the hearing shall determine the amount or sufficiency of bail, if a bailable case.”
We see no error.

The remaining grounds of error relate to the introduction in evidence at the hearing on punishment of certified copies of indictments, judgments and sentences, showing prior convictions of appellant for felonies in 1956, 1957 and 1959. The prior convictions were admissible at the hearing on punishment under the provisions of Art. 37.07, Sec. 2(b), C.C.P.

There is no merit in the contention that the prior convictions were inadmissible under said statute because they were too remote.

The prison records including copies of the judgments, sentences, fingerprints and photographs, were admissible though not filed among the papers and no copies were furnished appellant or his counsel. Roberts v. State, Tex.Cr.App., 400 S.W.2d 903.

The judgment is affirmed.


author: ONION, Judge.

text:
    Bruce BOSLEY, Appellant, v. The STATE of Texas, Appellee.
    No. 40183.
    Court of Criminal Appeals of Texas.
    April 5, 1967.
    Rehearing Denied May 17, 1967.

      John Cutler, Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough and Robert Floyd, Asst. Dist. Attys., and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

ONION, Judge.

The offense is Possession of Heroin; the punishment is confinement in the Texas Department of Corrections for twenty (20) years.

In addition to the primary offense, the indictment alleged two (2) prior convictions of felonies less than capital apparently for the purpose of enhancement of punishment under the provisions of Article 63, Vernon’s Ann.P.C. The Court granted appellant’s pre-trial motion to quash that portion of the indictment alleging a prior conviction for Robbery and the case proceeded as one charging appellant as a subsequent offender under the provisions of Article 725b, V.A. P.C., since the remaining prior conviction involved a violation of the Uniform Narcotic Drug Act.

The case was tried before a jury on the question of guilt or innocence upon the primary offense alone. The appellant elected to have the judge assess the punishment. The prior conviction for the sale of marijuana as alleged in the second paragraph of the indictment was properly stipulated at the separate hearing on punishment, but it does not appear that the judge gave application to the enhanced punishment provisions of Article 725b, V.A.P.C., for the sentence pronounced reflects that the penalty imposed is for not less than two (2) nor more than twenty (20) years.

It will be necessary to. summarize the facts to properly appraise appellant’s grounds of error.

Officer B. E. Majors of the City of Houston Police Department testified that on December 13, 1965, he received information that one James Lyles had heroin in his possession for sale and use at his apartment at 1511 West 12th Street in Houston. He related that this information was received from a person that had given him information on previous occasions that proved to be true. Pursuant to these facts, Majors and other officers set up a surveillance of Lyles’ apartment between 3 P.M. and 6 P.M. on December 13 and December 14, 1965.

Two of the three people seen entering the apartment on December 13, 1965, were known to the officers to be narcotic users. Two of the persons observed entering the following day were likewise known to the officers as narcotic users. At 8:25 P.M. on December 14, 1965, Officers Majors and Franguille obtained a search warrant from Justice of the Peace, Jack Treadway, and at approximately 11 P.M., Majors, Fran-guille and two other officers entered Lyles’ unlocked apartment. Five minutes later the appellant Bosley and Lyles entered the apartment. When the appellant saw the officers, he dropped two “papers” on the floor, and said, “You got me.”; or as Officer Majors recalled, “I’m busted. I had the stuff.”. A subsequent search of the apartment revealed two hypodermic syringes. The chain of custody of the “papers” was properly established, and Floyd‘McDonald, the chemist, testified that one of the two “papers” contained .74 grams of heroin and the other, .64 grams of heroin.

We find no merit in appellant’s first ground of error that the trial court erred in its failure to hear the appellant’s pre-trial motion to suppress evidence. The case at bar was set for trial and commenced on May 25, 1966, and on the same date, appellant filed his pre-trial motion to suppress. In declining to hear such motion, the trial judge clearly indicated to appellant that he could make any appropriate objection at the time the evidence sought to be suppressed was tendered on the trial on the merits. Nothing in Article 28.01, Vernon’s Ann. C.C.P., or elsewhere in the Code of Criminal Procedure would have required the court to have heard the said motion to suppress. This article permits the trial judge, within his discretion, after five days notice to the accused, to set certain motions in limine and to suppress evidence. This innovation in Texas criminal procedure was designed to enable the trial judge to dispose of such matters sometime prior to trial to avoid delays after jurors and witnesses have been summoned. Unlike Rule 41 of the Federal Rules of Criminal Procedure, Article 28.01 C.C.P., is without detailed provisions for the procedure or scope of such motions to suppress. There being no specific requirement that objections to evidence resulting from arrests and searches be raised in pre-trial motions to suppress, it is clear that the defendant in Texas courts may still make such objections at the trial on the merits for the first time under the procedural requirements laid down in Rosales v. State, Tex.Cr.App., 399 S.W.2d 541; Ramos v. State, Tex.Cr.App., 395 S.W.2d 628, 629; and Pritchett v. State, Tex.Cr.App., 214 S.W.2d 623.

It is further observed that shortly after the State called its first witness at the trial, the jury was removed, and a hearing was held to determine the legality of the search here involved.

Appellant’s second ground is that the affidavit to the search warrant was insufficient to demonstrate probable cause for the issuance thereof.

We observe that the search warrant affidavit attached to the record is in almost the exact language, except for names, dates, addresses, and hours of surveillance as the affidavits approved by this Court in Acosta v. State, Tex.Cr.App., 403 S.W.2d 434, and Gonzales v. State, Tex.Cr.App., 410 S.W.2d 435.

Appellant cites Riggan v. Virginia, 384 U.S. 152, 16 L.Ed.2d 431, 86 S.Ct. 1378, as his authority that the affidavit here is insufficient as to probable cause. Appellant contends that Acosta v. State, supra, can be distinguished from the case at bar because in the Acosta case there was no comparison of the Acosta affidavit with the one in the Riggan case. That now has been done contrary to appellant’s contention in Gonzales v. State, supra.

Appellant next contends that the trial court erred in refusing to permit the disclosure of the identity of the informant mentioned in the affidavit for the search warrant as well as the names of the “users of narcotics” seen going in and out of Lyles’ apartment.

In permitting the officer to withhold the informant’s identity, the Court was following well established Texas law. Acosta v. State, supra; Thayer v. State, Tex.Cr.App., 397 S.W.2d 236; Artell v. State, Tex.Cr.App., 372 S.W.2d 944. Appellant sought the identity of the undisclosed informer in order to refute the existence of probable cause for the search warrant’s issuance, and not on the ground that the undisclosed informer’s testimony was material to, and probative of, the main issue of guilt or innocence of the appellant. When the issue is not the guilt or innocence, but as in the case at bar, the question of probable cause for an arrest or search, peace officers need not invariably be required to reveal an informer’s identity. This is especially true where the trial court is convinced by evidence submitted in open court and subject to cross-examination that the officers did rely in good faith upon credible information supplied by a reliable informer.

Appellant relies upon Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed. 2d 639, as his authority that the informant’s identity be disclosed. The position of this Court relative to such a contention was stated in Acosta v. State, supra, as follows :

“Appellant cites a number of cases from other jurisdictions, and we hold, as we have in the past, that it is only those cases which were described by the Supreme Court of the United States in Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639, that the name of the informer should be disclosed. That is where the informer ‘had taken a material part in bringing about the possession of certain drugs by the accused, had been present with the accused at the occurrence of the alleged crime, and might be a material witness as to whether the accused knowingly’ committed the act. It would appear from the holding of the opinion of the Supreme Court of the United States in Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, 11 L.Ed.2d 887, that the Court does not intend to extend the rule announced in Roviaro v. United States, supra.”

In the case at bar, the four (4) police officers, the appellant, and James Lyles, who testified for the appellant, were the only ones present at the time of the arrest, and there is no showing that the informer participated in the offense; was present at the time; or was a material witness as to whether the appellant had committed the act charged.

In disposing of a similar contention as that advanced here by the appellant, the United States Supreme Court in McCray v. State of Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62, said:

“What Roviaro thus makes clear is that this Court was unwilling to impose any absolute rule requiring disclosure of an informer’s identity even in formulating evidentiary rules for federal criminal trials. Much less has the Court ever approached the formulation of a federal evidentiary rule of compulsory disclosure where the issue is the preliminary one of probable cause, and guilt or innocence is not at stake. Indeed, we have repeatedly made clear that federal officers need not disclose an informer’s identity in applying for an arrest or search warrant. As was said in United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 745, 13 L.Ed.2d 684, we have “recognized that ‘an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affi-ant,’ so long as the magistrate is ‘informed of some of the underlying circumstances’ supporting the affiant’s conclusions and his belief that any informant involved ‘whose identity need not be disclosed * * * was “credible” or-his information “reliable.”’ Aguilar v. State of Texas, supra, 378 U.S. 108 at 114, 84 S.Ct. [1509], at 1514, [12 L.Ed.2d 723].” (Emphasis added.) See also Jones v. United States, 362 U.S. 257, 271—272, 80 S.Ct. 725, 736-737, 4 L.Ed.2d 697; Rugendorf v. United States, 376 U.S. 528, 533, 84 S.Ct. 825, 828, 11 L.Ed. 2d 887. And just this Term we have taken occasion to point out that a rule virtually prohibiting the use of informers would “severely hamper the Government” in enforcement of the narcotics laws. Lewis v. United States, 385 U.S. 206, 210, 87 S.Ct. 424, 427, 17 L.Ed.2d 312.
In sum, the Court in the exercise of its power to formulate evidentiary rules for federal criminal cases has consistently declined to hold that an informer’s identity need always be disclosed in a federal criminal trial, let alone in a preliminary hearing to determine probable cause for an arrest or search. Yet we are now asked to hold that the Constitution somehow compels Illinois to abolish the informer’s privilege from its law of evidence, and to require disclosure of the informer’s identity in every such preliminary hearing where it appears that the officers made the arrest or search in reliance upon facts supplied by an informer they had reason to trust. The argument is based upon the Due Process Clause of the Fourteenth Amendment, and upon the Sixth Amendment right of confrontation, applicable to the States through the Fourteenth Amendment. Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923. We find no support for the petitioner’s position in either of those constitutional provisions.”

In support of his contention that the names of the “narcotic users” known to the officers should have been disclosed, appellant cites no authorities and we know of none.

It should be observed that the information received from the undisclosed informer and relied upon in part by the officers to establish probable cause for the issuance of the search warrant provided the reason for the officers’ presence at Lyles’ apartment, but did not cause the arrest. The probable cause for the arrest was really not dependent upon the informer’s statement. The officers being legally upon the premises by virtue of the search warrant observed a felony committed within their • view when appellant dropped the two “papers” of heroin. The narcotics were obtained without any search of the appellant’s person or the apartment. See Arredondo v. State, 168 Tex.Cr.R. 110, 324 S.W.2d 217.

Appellant’s fourth ground of error relates to the failure of the trial court to instruct the jury not to consider a prejudicial and unresponsive answer of an experienced police officer on cross-examination concerning a statement made by appellant under arrest, and in failing to grant a mistrial.

A careful examination of the record reveals that if the answer or answers of which the appellant complains were in fact unresponsive and error occurred, it was certainly cured by appellant in inquiring at some length as to the same matters before making any objection at all to the replies of which he now complains. Garza v. State, Tex.Cr.App., 397 S.W.2d 847; Ervin v. State, Tex.Cr.App., 367 S.W.2d 680; Ramirez v. State, 169 Tex.Cr.R. 494, 335 S.W.2d 228, 229; and Scanlin v. State, 165 Tex.Cr.R. 183, 305 S.W.2d 357.

Finding no reversible error. The judgment is affirmed.


author: MORRISON, Judge. WOODLEY, Presiding Judge.

text:
    Ex parte John Clayton WILLIAMS.
    No. 40239.
    Court of Criminal Appeals of Texas.
    April 5, 1967.
    Rehearing Denied May 17, 1967.

      Wm. Brode Mobley, Jr., Corpus Christi, for relator.
    Sam L. Jones, Dist. Atty., W. DeWitt Alsup, Asst. Dist. Atty., Corpus Christi, and Leon B. Douglas, State’s Atty., Austin, for The State.
   OPINION

MORRISON, Judge.

Relator, an inmate of the Department of Corrections, made application to the 105th Judicial District Court for writ of habeas corpus alleging that he is illegally restrained by virtue of a conviction in cause # 10822 in said court, which resulted in a conviction for the offense of burglary with two prior felony convictions alleged for enhancement in which his punishment was assessed at confinement for life. Relator’s conviction was appealed to this Court, and the same was affirmed. Williams v. State, Tex.Cr. App., 364 S.W.2d 403.

He bases his attack upon the following contentions:

1. He first contends that his prior conviction in cause # 8015 in the 107th Judicial District Court of Cameron County, which was one of the convictions alleged for enhancement, was void because, though represented by court appointed counsel at the time probation was granted upon his plea of guilty in said cause, he was not represented by counsel at the time of the revocation of such probation in 1952.

2. Secondly, he contends that his prior conviction in cause # 1947 in the District Court of Hutchinson County, the other conviction alleged for enhancement, was void because, though represented by court appointed counsel at the time of the entry of his plea of guilty and the entry of a judgment finding him guilty on February 7, 1956, he was not represented by counsel at the time he was sentenced in said cause on February 10, 1956.

The Honorable J. D. Todd, Judge of said 105th Judicial District held a hearing, granted the writ and has certified the facts to this Court. As to his Cameron County conviction, relator testified at the hearing before Judge Todd that though represented by the Honorable Daniel Rentfro at the time he entered his plea of guilty and was granted probation in 1951, he was not represented by counsel at the time of the revocation of probation in 1952. In 1964, this Court held in Ex parte Crawford, 379 S. W.2d 663, that judgment was not void because his probation, in a prior case used to enhance, had been revoked without probationer’s having the assistance of counsel.

Article 42.12, Vernon’s Ann.C.C.P., which became effective January 1, 1966, providing for the appointment of counsel at the time probation is sought to be revoked, is not retroactive. See Article 1.02, V.A. C.C.P. The holding in Ex parte Crawford, supra, still applies to hearings on motions to revoke probation held prior to January 1, 1966.

We hold that relator’s Cameron County conviction is not void, and since relator does not have sufficient credit for time in the Department of Corrections to have served 12 years, which is the punishment set by Article 1397, Vernon’s Ann.P.C., and Article 62, V.A.P.C. for the conviction in cause # 10822 in Nueces County enhanced by the prior conviction in cause # 8015 in Cameron County, it becomes unnecessary to pass upon the validity of the Hutchinson County conviction. This Court is not authorized to enter a declaratory judgment. State v. Parr, Tex.Cr.App., 293 S.W.2d 62.

3. Relator further contends that the conviction in cause # 10822 from Nueces County is yoid because of a variance or typographical error in the judgment and the sentence in cause # 8015 from Cameron County, which he alleged were introduced at his Nueces County trial. The copies of the judgment and sentence which were introduced at appellant’s Nueces County trial and which are part of the records of this Court fail to reveal any such error or variance.

The relief prayed for is denied.

CONCURRING OPINION

WOODLEY, Presiding Judge.

I concur in the denial of the relief prayed for, but not with that part of the opinion which assumes that the provisions of Section 3a of Art. 42.12 V.A.C.C.P., if retroactive, would require that relief be granted.


author: WILSON, Justice.

text:
    H. T. MERRILL, Appellant, v. Soula F. TROPOLI, Appellee.
    No. 4631.
    Court of Civil Appeals of Texas. Waco.
    April 13, 1967.

      Martin & Knox, Kenneth N. Knox, Houston, for appellant.
    William J. Kershner, Houston, for ap-pellee.
   WILSON, Justice.

A negative finding in answer to an issue as to whether defendant failed to keep a proper lookout in this rear-end automobile collision case was disregarded by the trial court. Defendant appeals from a judgment for plaintiff on the remainder of the verdict. We affirm.

Defendant’s contention is that there was evidence to support the negative answer in his favor on the proper lookout issue. No other ground of negligence was submitted or requested. The testimony relied on is that of an investigating officer who arrived after the collision, and that of plaintiff who testified he returned to his parked car after the night time collision. The duration of the interval following the impact is not ascertainable. These witnesses testified that when they asked the 18-year-old defendant how the collision occurred, he answered, “I really don’t know. The car sure stopped quick in front of ,me.” The officer testified, “there was an odor of alcoholic beverage on his breath.”

Plaintiff’s evidence showed that his car developed engine trouble, that he pulled to the curb, parked, raised his hood, left his rear parking lights burning, and was taken by a passing motorist to a filling station five blocks away where he telephoned for help. He left his car unattended. When he returned to his car it had been struck in the rear by defendant’s vehicle.

Testimony of the two witnesses that defendant stated that plaintiff’s car “stopped real quick in front of me” is hearsay. McCormick and Ray, Texas Law of Evidence, (2d ed.), Sec. 781, p. 559. It was not offered as an admission. Defendant’s statement was self-serving.

Hearsay, even when not objected to, is without probative force and will not, alone, support a jury finding. Texas Co. v. Lee, 138 Tex. 167, 157 S.W.2d 628, 631; Aetna Ins. Co. v. Klein, 160 Tex. 61, 325 S.W.2d 376, 381. Defendant did not testify. The recited testimony is all that can be marshalled in support of the lookout finding. It was properly disregarded by the court.

It is also urged that the findings of the jury as to value of plaintiff’s car before and after the collision is supported by no evidence or insufficient evidence, or the findings are contrary to the overwhelming preponderance of the evidence. While the efforts to prove damages were, to say the least, unconventional, we have undertaken to sift the inadmissible evidence offered from that which was properly adduced, and in our opinion the findings are adequately supported.

The jury found the reasonable cash market value of plaintiff’s Cadillac to be $4250 before, and $3100 after the collision. It was found that the car could, by repairs, be restored to substantially the same condition it was in immediately before the collision. $637 was found to be the reasonable cost of so restoring it. Judgment was for $1150.

Neither in the trial court nor here does defendant complain that an improper or excessive measure of damages was applied. His point here and his assignment in the motion for new trial submit only that “there is an irreconcilable conflict” in the recited answers to the damage issues. The parties cite numerous intermediate court opinions referring to damages.

The rules governing the measure of damage to personalty are clearly defined in Pasadena State Bank v. Isaac, 149 Tex. 47, 228 S.W.2d 127. Ordinarily the yardstick is “the difference in the market value immediately before and immediately after the injury to such property at the place where the damage was occasioned.” This difference is usually ascertained in a jury trial by submission of two special issues, if raised by the evidence, inquiring as to market value before and after injury. Variations in factual situations suggested in the Pasadena State Bank case may require other measures of damage and other types of issues. Where repairs will restore the chattel to its condition before the injury, that case announces, the owner may recover the reasonable cost of repair if he so elects, in the manner specified in that decision, together with damages for loss of use; or he may, alternatively, recover “the difference between the value of the chattel before the harm and the value after the harm.” It is there said to be the defendant’s burden, if he desires to claim enhancement of value by repairs, to plead and prove such matter defensively.

In the present case there is no “conflict” in the findings. Both separate measures of damages were submitted and found, without objection, and the judgment was based on the difference between the “before and after” market value.

Affirmed.


author: MOORE, Justice.

text:
    BEN WHEELER INDEPENDENT SCHOOL DISTRICT, Appellant, v. COUNTY SCHOOL TRUSTEES OF VAN ZANDT COUNTY, Texas et al., Appellees.
    No. 277.
    Court of Civil Appeals of Texas. Tyler.
    April 13, 1967.
    Rehearing Denied May 4, 1967.

      Lawrence & Lawrence, W. Dewey Lawrence, Tyler, for appellant.
    Wynne & Wynne, Gordon R. Wynne, Wills Point, for appellees.
   MOORE, Justice.

This is an appeal from a judgment denying appellant’s application for a temporary injunction and granting a temporary injunction in favor of appellee.

The controversy arose when appellee, County School Trustees of Van Zandt County, acting under the authority granted by the provisions of Article 2922a, Vernon’s Ann.Tex.Civ.St., entered an order annexing Ben Wheeler Independent School District to the Van Independent School District. Appellant, Ben Wheeler Independent School District, appealed from the order by filing this suit against the County School Trustees and the Van Independent School District as provided for under the provisions of Article 2686, V.A.T.S. In its petition, appellant alleged that the order of the County School Trustees, dated July 8, 1966, annexing the two school districts, was null and void because the order was arbitrary, unreasonable and without basis or support in fact or in law. Ancillary to the main suit, appellant also sought a temporary injunction against the County School Trustees and Van Independent School District, restraining them from enforcing the order pending final determination of the main suit.

Appellees answered the suit with a general denial. Also, appellee, Van Independent School District, by way of a cross action, sought a temporary injunction against the trustees of the Ben Wheeler Independent School District, to restrain the trustees from interfering with the appellees in carrying out the order of annexation.

After a hearing, the trial court denied appellant’s application for temporary injunction and entered an order granting a temporary injunction in favor of appellee, Van Independent School District, restraining and enjoining the Ben Wheeler District from interfering with the Van District in carrying out the orders and directions of the County Board of School Trustees pending a final decree therein.

Appellant, Ben Wheeler Independent School District, has perfected this appeal and contends by a sole point of error that the trial court erred in granting the temporary injunction in favor of appellee and in denying the application of appellant for temporary injunction because such action destroyed the status quo and denied to, appellant the preservation of the last, actual, peaceful and non-contested status which preceded the controversy.

Article 2922a, supra, grants authority to the County School Trustees to annex independent school districts to other independent school districts. That portion of Article 2922a concerning annexation provides, in part, as follows:

“In each organized county in this state, * * * the county school trustees may annex one or more common school districts or one or more independent school districts having less than two hundred fifty (250) scholastic population to a common school district having four hundred (400) or more scholastic population, or to an independent school district having two hundred fifty (250) or more scholastic population. * * * ”

Under the provisions of the foregoing statute, discretionary authority is vested in the County School Trustees to annex one independent school district to another independent school district and in so doing, the County Trustees may act upon their own motion without a petition from or notice to the school district affected. Prosper Independent School Dist. v. County School Trustees (Tex.Com.App.), 58 S.W.2d 5.

Except for the order of annexation, the only evidence before the trial court at the injunction hearing was the testimony of the Chairman of the Board of the Ben Wheeler District. The record shows that he was called as a witness by appellees. His testimony, consisting of only three pages, shows that although the trustees of the Ben Wheeler District were cognizant of the order of annexation, they had continued to operate the school in defiance of the order of the County School Trustees.

The order of annexation, dated July 8, 1966, shows that the two districts were contiguous; that the Van District had a scholastic population of more than 250 and that the Ben Wheeler District had a scholastic population of less than 250, and that the County Board of School Trustees of Van Zandt County, after considering the matter, had determined that the annexation of the two districts would be to the best interest of both the scholastics and the county as a whole and that it was so ordered.

A decision of an administrative agency is ordinarily presumed to be valid. 1 T.J.2d, Sec. 29, page 670, 671; Trapp v. Shell Oil Co., 145 Tex. 323, 198 S.W.2d 424.

Generally speaking, where an applicant seeks a temporary injunction to preserve the status quo, he need only show the existence of a probable injury and a probable right of recovery; he is not required to establish that he will prevail in the litigation. Walling v. Kimbrough (Tex.Civ.App.), 365 S.W.2d 941, aff’d., Tex., 371 S.W.2d 691. Nevertheless, however, applicant would still have the burden of offering some evidence which, under applicable rules of law, would tend to establish a probable wrong and a probable right of recovery. If he cannot or does not discharge this burden, he is not entitled to the extraordinary relief. Writs of injunction should not issue on mere surmise. Camp v. Shannon, 162 Tex. 515, 348 S.W.2d 517; Teas v. Texas State Board of Examiners in Optometry (Tex.Civ.App.), 382 S.W.2d 122.

As pointed out before, appellant failed to offer any evidence which would tend to show that the order of annexation was not accomplished in accordance with the provision of the statute pr that the Board failed to conduct a hearing thereon. Nor did appellant offer any evidence which would tend to show that upon a final hearing, appellant would probably be able to offer evidence of some type showing that the order of annexation was either arbitrary, capricious or in bad faith. As we see it, appellant failed to discharge its burden of proof in that no evidence of probative force was offered tending to show a probable wrong or a probable right, and as a result, appellant would no| be entitled to the extraordinary writ of injunction maintaining the status quo. 31 Tex.Jur.2d, Sec. 148, page 262; Camp v. Shannon, supra, and Teas v. Texas State Board of Examiners in Optometry, supra. Appellant’s cause being without support in the evidence, it follows that the tjrial court did not abuse his discretion in refusing to grant a writ maintaining the states quo.

In reaching this conclusion, we are not unmindful of the rule that the trial court is authorized under some circumstances to decide fact issues in a hearing for temporary injunction on the basis of the sworn pleadings considered as affidavits. Lee v. Howard Broadcasting Corporation (Tex.Civ.App.), 305 S.W.2d 629.

Even so, however, it appears to us that the sworn petition would be insufficient as a means of proof in that it fails to allege any facts which would show a probable wrong or a probable right. But even if the petition should be deemed sufficient, we nevertheless do not believe that it would necessarily follow that the trial court abused his discretion in refusing to maintain the status quo under the circumstances which existed here. The situation presented is somewhat unusual in that it involves conflicting rights asserted by two interdepartmental government agencies, each of which claims a right to perform a governmental function in the executive branch of the government.

. Under such circumstances, the right of a judicial review of the orders of the County School Trustees would not entitle the Ben Wheeler District to a temporary injunction, the effect of which would be to perpetuate the district and thwart the efforts of the former in carrying out its duty. White v. Bolner (Tex.Civ.App.), 223 S.W.2d 686, writ ref. The question of whether Ben Wheeler had a right to the preservation of- the status quo would be a matter for the application of sound judicial discretion. The trial court in the exercise of his discretion determined that under the circumstances, an order maintaining the status quo was not warranted.

It is always the duty of a court of equity to strike a proper balance between the needs of the plaintiff and the consequences of giving the desired relief especially where governmental action is involved; courts should not intervene unless the need for equitable relief is clear, not remote or speculative. 2 Am.Jur.2d, Sec. 627, pages 474, 475; Eccles v. Peoples Bank of Lakewood Village, Cal., 333 U.S. 426, 68 S.St. 641, 92 L.Ed. 784.

It is a well settled rule of law that trial judges are endowed with broad discretion in granting or denying injunctions. Accordingly, the scope of appellate review in such cases is limited to the narrow question of whether the action of the trial judge in granting or denying the temporary injunction constitutes a clear abuse of discretion. Janus Films, Inc. v. City of Fort Worth, 163 Tex. 616, 358 S.W.2d 589.

Under the particular facts and circumstances presented here, we have determined that no abuse of discretion is shown and consequently the trial judge did not commit error in refusing to grant a temporary injunction maintaining the status quo.

f[10] What we have heretofore said renders unnecessary a discussion of the propriety of the court’s ruling restraining appellant from interfering with the process of annexation. If appellants were not entitled to an injunction maintaining the status quo, it would obviously follow that the ruling of the trial court restraining appellant from interfering with the orderly process of annexation of the two districts was proper.

For the reasons stated, the judgment of the trial court is affirmed.


author: PHILLIPS, Chief Justice.

text:
    Howard H. GANO, Appellant, v. FILTER-AID COMPANY, Inc., et al., Appellees.
    No. 11471.
    Court of Civil Appeals of Texas. Austin.
    April 19, 1967.

      Joseph H. Peck, Jr., Butler, Binion, Rice, Cook & Knapp, Houston, for appellant.
    Stanley B. Binion, John M. Robinson, Reynolds, White, Allen & Cook, Houston, Crawford Martin, Atty. Gen., John F. Pet-tit, Asst. Atty. Gen., Austin, for appellees.
   PHILLIPS, Chief Justice.

This is an appeal by Howard H. Gano, Intervenor below, from a judgment of the District Court reviving and reinstating the corporate charter of Appellee, Filter-Aid Company, Inc., previously forfeited by the Secretary of State for Appellee’s failure to file franchise tax reports and pay franchise taxes to the State of Texas.

Appellee’s suit below was in the nature of a Bill of Review proceeding wherein the Secretary of the State of Texas and the Attorney General of Texas together filed a general denial as defendants.

Appellant, with the approval of the court and the agreement of all parties, duly intervened as a Co-Defendant with the Secretary of State and the Attorney General to resist Appellee’s Bill of Review.

After a hearing before the court without a jury, the court granted Appellee’s Bill of Review and entered a judgment setting aside and vacating the Secretary of State’s prior forfeiture and reinstating and reviving Appellee’s Corporate Charter.

We reverse and render the judgment of the trial court.

Appellant is before this Court on five points of error, however, inasmuch as we grant his Point D under his point of error number one, it is unnecessary for us to consider his remaining points. Here Appellant maintains that Tex.Rev.Stat.Ann. art. 12.17 Taxation-General, as amended August 30, 1965, is unconstitutional, as applied to Appellant, in that the direct and indirect effect of such amendment is to divest and impair vested property rights of Appellant.

We sustain this point.

Appellant was a stockholder of Ap-pellee at the time Appellee’s charter was forfeited and as such immediately became the owner of an undivided interest in the property of Appellee. In a situation such as this, title to the assets of the corporation vests in the stockholders subject to payment of debts owed by the corporation. Humble Oil and Refining Co. v. Blankenburg, 149 Tex. 498, 235 S.W.2d 891 (1951).

Article 12.17 supra reads in part as follows :

“The corporation shall first file all delinquent franchise tax returns as required by law and also pay all franchise taxes, penalties and interest due by said corporation at the time of filing the suit hereinafter mentioned. Any stockholder or director of the corporation at the time of the forfeiture of the right to do business, or of the charter, may, in the name of the corporation, bring suit in the District Court of Travis County, Texas, in the nature of a bill of review to set aside such forfeiture. The Secretary of State and Attorney General shall be made defendants in said suit. In the event judgment is rendered setting aside the charter forfeiture, the Secretary of State shall endorse on the charter of said corporation the words ‘Charter Revived by Court Judgment’ and state the cause and date on which such judgment was entered, and shall administratively revive the corporation’s right to do business in accordance with the provisions of Article 12.15 of this Title. If the forfeited corporation’s charter is revived, it shall ascertain from the Secretary of State whether the name of the forfeited corporation is available, and, if not available, file an amendment to its charter changing the name of the corporation. It is further provided that nothing in this Act shall affect the liability of the officers and directors of such corporation for any debts, obligations or liabilities incurred between the date of the forfeiture of the right to do business and the revival as herein provided. As amended Acts 1965, 59th Leg., p. 1268, ch. 582, § 1.”

Article 12.17 was not in effect at the time that Appellee’s charter was forfeited. At the time of the forfeiture there was no remedy or appeal from such action.

The law pertinent hereto was stated in Rossi v. Caire et al, 186 Cal. 544, 199 P. 1042, 1921 by the Supreme Court of California with a fact situation identical to the case at bar. In Rossi, the corporation there under consideration had forfeited its charter for failure to pay its franchise taxes. Thereafter the legislature enacted a statute providing for the rehabilitation and revival of corporate charters. Here the court held that the enforcement of such a statute reviving a corporate charter against a nonconsenting former stockholder who diligently asserted his rights, would be an impairment of a vested right in property prohibited by both State and Federal Constitutions. The court said:

“The judgment of death pronounced by the law on this corporation had been carried into effect. The corporation was dead, and had died without any existing provision of law for its revivification. Taking, for the purposes of this decision, the view most favorable to respondent, the legal title to the property of the former corporation had wholly vested in the trustees designated by the statute for the purposes of the trust declared by the statute, which were solely the liquidation of the affairs of the corporation and the distribution of the property remaining among the former stockholders. Subject to the expenses of the trustees and the payment of creditors, the former stockholders were the sole beneficiaries and the absolute owners in equity of the property. Under all the definitions this was certainly a vested property right. It cannot matter why such penalty of forfeiture of charter was imposed and enforced, or what the obligation to each other of the former stockholders would have been had such penalty not been enforced. The status with relation to the property had been created, and the terms of the trust upon which it was held defined. We do not see how it can be held that the rights of former stockholders under the trust defined by the statute, the right subject to the payment of the former corporation debts and expense of liquidation, to have the property distributed among them, was not a vested property right secure against impairment by subsequent act of the Legislature.”

We reverse the judgment of the trial court and render judgment for appellant dismissing the Bill of Review proceedings instituted by Appellee, Filter-Aid Company, Inc.

Reversed and rendered.


author: DENTON, Chief Justice.

text:
    N. H. READ, Appellant, v. B. M. BRITAIN et al., Appellees.
    No. 7695.
    Court of Civil Appeals of Texas. Amarillo.
    April 3, 1967.
    Rehearing Denied May 1, 1967.

      Lom Moser, E. H. Foster, Kolander & Templeton and R. L. Templeton, Amarillo, for appellant.
    Culton, Morgan, Britain & White, Amarillo, L. A. White and Ray W. Richards, Amarillo, of counsel, for appellees.
   DENTON, Chief Justice.

This suit involves the construction of an oil and casinghead gas lease. This suit, brought by N. H. Read against B. M. Britain and David Kritser, seeks to recover from the defendants gas royalties he contends are due under the lease covering certain land in Gray County, Texas. The trial court granted the defendants a partial summary judgment as to the plaintiff’s cause of action under one section of the lease, and subsequently submitted the remainder of the case to the jury. The court thereafter sustained the defendant’s motion for judgment non obstante veredicto and entered final judgment denying the plaintiff any recovery.

Read as lessor and G. L. Knight as lessee executed the oil and casinghead gas lease on August 8, 1962 for a primary term of one year and as long thereafter as oil or casinghead gas was produced in paying quantities. This lease was subsequently assigned by Knight to the defendants Britain and Kritser. Oil and casinghead gas were produced in paying quantities within the primary term and production has continued to the present time. The principal question is whether or not the defendants as lessees have properly accounted to plaintiff under the gas royalty clauses of the lease. It is conceded the lessees have timely paid the oil royalty provided for in section 3(a) of the lease.

The material facts are largely undisputed. B. M. Britain, one of the defendants and a practicing attorney, prepared the lease at Read’s request. The three gas royalty clauses of the lease were given to Britain by Read and they were inserted into the lease at Read’s request. Britain testified he copied these provisions verbatim into the lease. Knight, the original lessee assigned it to Britain and Kritser on October 2, 1962. Shortly thereafter drilling operations were commenced and oil and casinghead gas production was secured. A total of nine producing wells have been drilled on the leased premises. After production was secured the defendants began negotiating with various companies in the area to sell the gas. Dorchester Gas Producing Company subsequently agreed to purchase the gas from the defendants contingent upon Dorchester being able to resell the certain components, of the casinghead gas to Northern Natural Gas Company. With this accomplished, the defendants and Dorchester entered into a casinghead gas purchase contract on April' 26, 1963, at a price of 10⅜⅛ per m. c. f. The contract was for a period of five years, renewable thereafter from year to year in the absence of a notice to terminate by either party. A ⅛ m. c. f. increase was provided for at the beginning of each five-year period.

There is no dispute concerning how the casinghead gas was handled or how it was. processed. The defendants installed a conventional separator on their lease. Oil from their wells goes into the separator where the casinghead gas is separated from the oil. The gas is then moved to a Dor-chester compressor, through a meter and then into a transmission line owned by Northern Natural Gas Company which crosses the Read lease. The defendants delivered the casinghead gas to Dorchester at the compressor and were paid 10$ per m. c. f. Dorchester then delivered the gas to Northern into the latter’s lines on the Read premises. Northern paid Dorchester 12$ per m. c. f. for this gas. The gas then became co-mingled with other gas in Northern’s line from gas wells in the area which was being moved to Dorchester’s gasoline plant some ten miles from the Read lease. When Dorchester contracted to sell to Northern the gas purchased from the defendants, Dorchester reserved the right to purchase from Northern at the inlet of its gasoline plant, a volume of gas in Northern’s line equal to that sold by Dorchester to Northern. In other words, Dorchester sold the defendants’ gas to Northern and repurchased the same volume of gas from Northern and ran this amount through its plant and extracted therefrom certain liquid hydrocarbon elements from the gas and retained the extracted hydrocarbon elements. Dorchester then sold the residue, estimated to be approximately 90% in volume, of the gas purchased at the plant inlet back to Northern at the processing plant outlet for the same price of 12$ per m. c. f. Dorches-ter extracted and retained such hydrocarbons as propane, butane and natural gasoline.

As stated, the primary question is whether or not the defendants have properly accounted for and paid the lessor the gas royalties provided for under the lease. This ■question turns upon the interpretation of the .applicable lease provisions. The material clauses of the lease are:

“(b) Except where casinghead gas is processed or used as provided for in sub-paragraph (c) below, Lessee agrees and covenants that before any gas containing liquid hydrocarbons recoverable in commercial quantities, produced on the land, is sold, or used, it shall be run through an adequate separator of conventional type, or other equipment at least as efficient, and that all liquid hydrocarbons recoverable from the gas by such means shall be recovered. As a royalty, Lessee shall pay, or cause to be paid, during the term hereof, three-sixteenths (3/16) of the value of such liquid hydrocarbons actually recovered, or an equivalent fraction of that amount which accrues to the Lessee, whichever is the greater.
“(c) The Lessee shall pay, or cause to be paid, during the term hereof, as royalty on casinghead gas sold or used for the manufacture of motor fuel, natural gasoline, butane, propane, and/or other liquid hydrocarbon products, or for the manufacture of sulphur and/or any other solid or non-liquid products (hereinafter referred to in this subparagraph as ‘products’), whether such be by casinghead gas plant, or fractionating, absorption, or any other process except as set out in subparagraph (b) above (1) three sixteenths (3/16) of thirty-three and one-third per cent (33-1/3%1 of the value of the aforesaid products of said gas actually recovered at the plant, o'* (2) three-sixteenths (3/16) of the value of the same which accrues to the Lessee, or (3) three-sixteenths (3/16) of the total consideration which accrues to the Lessee, whether directly or indirectly, whichever is the greatest. The basis for valuing the aforesaid products shall be the average selling price of the respective grades therefor f. o. b. at the plant in which casinghead gas is used, for the month in which such gas was delivered; providing that the prices shall not be less than the average prices quoted in two of the leading trade journals of the industry for similar grades of the aforesaid products in the territory.
“(d) In addition to any royalties provided for in paragraphs above the Lessee shall pay, or cause to be paid, during the term hereof, as a royalty on residue gas sold or used for any purpose, except when used as hereinafter provided, three-sixteenths (3/16) of the value of such gas sold or used, but in no event shall the royalty be based on an amount less than the gross proceeds of the sale thereof, or the highest price paid for residue gas in the area, or that amount which accrues to the producer or processor, whichever is the greatest, and in no event shall this value be computed at less than seven (7⅜⅞) cents per thousand cubic feet.”

All parties seem to agree there is no ambiguity in the provisions of the lease under consideration, even though their respective interpretations of the gas royalty clauses reach a different result. This in itself does not render the lease ambiguous. In interpreting the lease it is the duty of the court to seek the intentions of the parties. 42 Tex.Jur.2d 344, Oil & Gas, Section 163. The intention of the parties, as expressed in the lease, is to be ascertained by the consideration of all provisions of the lease, and by harmonizing, if possible, those provisions which may appear to be in conflict. McMahon v. Christmann, 157 Tex. 403, 303 S.W.2d 341. Woods v. Sims, 154 Tex. 59, 273 S.W.2d 617. These three royalty clauses must be construed together as they relate to each other. By pleadings and brief appellant has abandoned any claim for .royalties under 3(b). Lessees have admittedly installed a separator and accounted for and fully paid all royalties due under that clause by paying the 3/16 of the value of the casinghead gas sold to Dorchester at the outlet of the separator. The question then is whether the lessor is entitled to gas royalties under either 3(c) or 3(d) or both, in addition to casinghead gas royalties being received under 3(b).

The trial court granted a partial summary judgment which held the lessees were not obligated to pay gas royalties under 3(c). This action constitutes the first group of appellant’s points of error. Appellant, by pleadings and brief, contends the defendants are obligated to pay royalty on the casinghead gas under 3(c) for the reason it was sold by the defendants to Dor-chester “for the manufacture of motor fuel, natural gasoline, butane, propane, and/or other liquid hydrocarbon products”; and that this obligation was imposed upon the defendants regardless of the fact the defendants were not the processors of the gas. Their position is there are genuine issues of material facts; and that therefore the defendants are not entitled to a summary judgment as to section 3(c). Appellant contends such genuine issues of material fact are: a proper interpretation and application of the casinghead gas contract between the defendants and Dorches-ter; whether the casinghead gas was sold or used for the manufacture of motor fuel, etc.; what Dorchester did with the gas and how it was processed; and others that need not be mentioned. These alleged fact issues are not in dispute. An interpretation of an unambiguous contract is a question of law rather than of fact. We therefore must interpret the royalty provisions in accordance with the general rules previously mentioned and determine the intentions of the parties from the lease itself. Skelly v. Archer, 163 Tex. 336, 356 S.W.2d 774.

Section 3(c) must be considered in connection with Section 3(b). Both sections deal with casinghead gas. It is conceded the defendants are complying with 3(b) in all respects. Section 3(b) provides “except where casinghead gas is processed or used as provided for in subparagraph (c) below; Lessee agrees and covenants * * Defendants have installed and are using an adequate separator to separate the oil and casinghead gas produced from the lease and are paying lessor “3/16 of the value of such liquid hydrocarbons actually recovered” in accordance with 3(b). Section 3(c) also makes reference to 3(b). It provides “the Lessee shall pay * * * as royalty on casinghead gas sold or used for the manufacture of motor fuel, natural gasoline, butane, propane and/or other liquid hydrocarbon products * *' * whether such be by casinghead gas plant, or fractionating, absorption, or any other process except as set out in subparagraph (b) above.” (Emphasis added). They clearly differentiate how the lessee may deal with the production from the lease. Both sections 3(b) and 3(c) eliminates its application if the other subparagraph is applied. It was not the intention of the parties that the lessee would deal with the casinghead gas under both subparagraphs. If lessee sold or used the casinghead gas, they were obligated to do one of two things under 3(b) and 3(c). They could install a separator, run the produced oil through the separator, and pay lessor 3/16 of the value of the casinghead gas “actually recovered”; or the lessees could sell or use the casinghead gas for the manufacture of products from the gas in which case a different royalty would be payable to lessor under 3(c). The lessees are not required to comply with both provisions, nor is the lessor entitled to gas royalties under both sections. These two sections are in the nature of alternative provisions.

By the grant in the lease ownership and title to all the gas produced from the land passed to appellees as lessee. Stephens County v. Mid-Kansas Oil & Gas Company, 113 Tex. 160, 254 S.W. 290, 29 A.L.R. 566; Tidewater Associated Oil Co. v. Clemens (Tex.Civ.App.) 123 S.W.2d 780. The agreement to pay gas royalties provided for in the lease is a personal obligation on the part of the lessee to pay a specific fractional part of the casinghead gas recovered which had already been conveyed to lessees. Reynolds v. McMan Oil & Gas Company (Tex.Comm.App.) 11 S.W.2d 778; Tidewater Associated Oil Co. v. Clemens (supra). By complying with the provisions of section 3(b) lessees cannot be required to also comply with section 3(c). Lessees did not process the casinghead gas nor were they required under the lease to do so. Neither can it be said the lessees had control of Dorchester’s use of such gas. Lessees chose to handle the production under the lease in accordance with 3(b). Their compliance with this section is not disputed. The trial court correctly entered a partial judgment and held under this record the lessor was not entitled to gas royalties under section 3(c) of the lease.

We next turn to lessor’s gas royalty rights under section 3(d). The trial court submitted one special issue, to-wit: “What was the highest price paid for residue gas in the area on January 1, 1964?” The jury found such price to be 13$ m. c. f. The trial court granted the defendants’ motion for judgment non obstante vere-dicto as to lessor’s right of recovery of royalties under this section. We therefore have a law question to determine lessor’s rights under this section. This clause will be interpreted in accordance with the accepted rules of construction applicable to the other sections of the lease. By its own terms, section 3(d) is cumulative of either sections 3(b) or 3(c). It provides such royalty is “in addition to any royalties provided for in paragraphs above.” It further provides the Lessee shall pay a royalty “on residue gas sold or used for any purpose”. Where sections 3(b) and 3(c) provide certain royalties for “casinghead gas” section 3(d) provides for a royalty for “residue gas”. These terms are not synonymous. They have different meanings in the oil and gas industry and by accepted definition. One witness, an experienced oil and gas man, defined casinghead gas as “the gas which physically is produced in conjunction with the production of oil”. This in essence is the same definition generally used and understood in the industry. Mus-sellem v. Magnolia Petroleum Company, 107 Okl. 183, 231 p. 526, quotes with approval the definition found in regulations of the Interior Department, to-wit: “Casing-head gas — the gas from an oil well coming through the casing, with the oil from oil producing strata”. See also Magnolia Petroleum Company v. Connellee (Tex.Comm.App.) 11 S.W.2d 158. On the other hand, “residue gas” is that gas which remains after such elements as propane, butane, and gasoline have been removed. Tidewater Associated Oil Co. v. Clemens (supra). Utilities Production Corporation v. Carter Oil Co., 72 F.2d 655 (10th Cir.). It is apparent “casinghead gas” and “residue gas” were not meant to be used interchangeably. They clearly refer to the gas at a different stage of processing or treatment. Under this record lessee’s gas was casinghead gas at the outlet of the separator and at the time it was sold to Dorches-ter. Their contract with Dorchester was a “Casinghead Gas Purchase Contract”. This contract defined casinghead gas as “the vapor stream including all compounds and elements contained therein at the outlet of the separator which was produced from a well which has its rate of production controlled by the volume of oil simultaneously produced from the reservoir”. This is the generally understood meaning of casinghead gas. This casinghead gas was then run through Dorchester’s processing plant. There, certain elements and compounds were removed by fractionating in the plant. The remainder of the gas then was moved into Northern’s transmission lines at the plant’s outlet. The latter gas is the residue gas that is referred to in section 3(d).

Was the lessor entitled to an additional 3/16 royalty on this residue gas? We think not. Residue gas comes into being only after the processing provided for in section 3(c). Residue gas comes from processing either “dry gas”, which is gas coming from a gas well, or casinghead gas by fractionating or absorption. It does not come from running oil through a separator. Although it may be argued the separation of casinghead gas from the oil by the separator technically makes the casing-head gas residue gas as to the oil, this is not in conformity with the accepted meaning of residue gas. The lessees handled their production in accordance with section 3(b) and paid royalty thereunder. They did not choose to process the casing-head gas as provided for in section 3(c). It necessarily follows there was no residue gas involved as between the lessor and lessees. Title to the casinghead gas passed from the lessees to Dorchester at the separator. The lessees exercised no control of the gas beyond that point. Lessor’s claim to royalty under 3(d) is conditioned upon being entitled to royalty under 3(c). Having determined gas royalty was not due under this latter section, it follows lessees are not obligated to pay royalties under 3(d).

A great deal of testimony was offered to show the “highest prices paid for residue gas in the area” as provided for in 3(d). Most of the evidence was excluded by the trial court. However testimony of this fact becomes immaterial in view of our holding royalty is not recoverable under section 3 (d). Thus the highest price paid for residue gas in the area does not come into play. Where under the pleadings and evidence the lessor was not entitled to .recover, it was proper for the trial court to disregard the jury finding of highest price of residue gas in the area and render judgment for appellees.

The judgment of the trial court is affirmed.