author:
SMITH, Justice. CALVERT, Chief Justice
      GRIFFIN, Justice WALKER, Justice

text:
    W. R. MONTGOMERY, Petitioner, v. Charles Edgar RITTERSBACHER et al., Respondents.
    No. B-160.
    Supreme Court of Texas.
    Jan. 24, 1968.
    Rehearing Denied Feb. 28, 1968.

      Kelley, Looney, McLean & Littleton, L. C. McLean, Edinburg, for petitioner.
    Aldrich, McDonald & Stewart, B. R. Stewart, Edinburg, for respondents.
   SMITH, Justice.

Petitioner, W. R. Montgomery, brought this suit to establish his right to accumulated and prospective royalty under an oil, gas and mineral lease. The material facts are undisputed. The trial court in a non-jury trial rendered judgment that Montgomery take nothing. The Court of Civil Appeals affirmed. 410 S.W.2d 925. We reverse the judgments of the courts below and remand the cause to the trial court with instructions.

In 1945 Montgomery conveyed approximately eighty (80) acres of land, designated in the record as “First Tract,” to Respondents’ predecessors in title but reserved for himself a non-participating royalty interest. The title to the property, including the royalty interest not reserved by Montgomery, became vested in Respondents, who also owned land hereinafter designated as “Second Tract” which is contiguous to “First Tract.” Montgomery owned no interest in this “Second Tract.” Respondents were the owners of the executive rights under “First Tract” and “Second Tract” as well as some of the royalty rights under “Second Tract” and the royalty rights not owned by Petitioner under “First Tract.”

In 1953 Respondents filed for record an oil, gas, and mineral lease dated September 4, 1951, covering both “First Tract” and “Second Tract.” Since Respondents held the executive rights of “First Tract,” it was not necessary for Montgomery to join, nor did he, in the lease executed by Respondents. The lease contained a pooling clause whereby lessee was permitted to combine the leasehold estate with any other mineral estate in order to create appropriate operating units. The lease further provided that production on any tract of land within any unitized area formed under the pooling provision should constitute full compliance with the development, drilling, and producing obligations expressed in the lease. Additionally, the lease contained the following entirety clause:

“If the leased premises are now or shall hereafter be owned in severalty or in separate tracts, the premises, nevertheless, shall be developed and operated as one lease, and all royalties accruing hereunder shall be treated as an entirety and shall be divided among and paid to such separate owners in the proportion that the acreage owned by each such separate owner bears to the entire leased acreage.”

The lessee, Sun Oil Company, formed several units out of the original leased acreage by combining some of the land under the lease with land Sun held under other leases. A portion of “Second Tract” was unitized with a tract known as the Crutch-field tract, land not owned by Respondents and not covered by the lease. A producing well was completed on the Crutchfield tract in October, 19S6, from which commercial production was begun in May, 1958. “First Tract” was placed in a unit on which a dry hole was drilled in July, 1961.

Montgomery brought this suit in May, 1964, against Sun Oil Company, the lessee, and Respondents, the holders of the executive rights, claiming by virtue of the entirety clause a share of the royalties which were accruing under the lease. Since “Second Tract” is in the Crutchfield pool, it receives a proportionate share of the royalties that are produced from the Crutchfield well. This royalty, according to the terms of the entirety clause in the lease, is “divided among and paid to such separate owners in the proportion that the acreage owned by each such separate owner bears to the entire leased acreage.” Consequently, Montgomery seeks the proportion of the royalties accruing under the lease that his non-participating interest bears to the leased acreage. He contends that the entirety clause in the lease by its express terms applies to and includes his non-participating royalty interest; and since he has ratified the lease, Respondents cannot now deny the effect of the contract entered into between Respondents and Sun.

Respondents contend and the Court of Civil Appeals has held that Respondents did not have the power to bind Montgomery’s non-participating royalty interest with an entirety clause; Montgomery did not properly ratify the lease; and, Montgomery did not qualify to recover as a third party beneficiary of the lease. We agree that the Respondents, the holders of the executive rights, did not have the power to bind Montgomery’s non-participating royalty interest by virtue of the entirety clause alone, but do not agree with their contention that the Petitioner has not “properly” ratified the lease. We are of the opinion that the enlargement or diminishment of the rights of a prior non-participating royalty owner can be accomplished by the holder of the executive rights executing an oil, gas, and mineral lease which includes either a pooling clause or an entirety clause, provided the non-participating owner ratifies such action.

ENTIRETY CLAUSE

This Court has held that pooling effects a cross-conveyance among the owners of minerals under the various tracts of royalty or minerals in a pool so that they all own undivided interests under the unitized tract in the proportion their contribution bears to the unitized tract. Veal v. Thomason, 138 Tex. 341, 159 S.W.2d 472 (1942). The mere reservation of a non-participating royalty interest under a tract does not show that the royalty owner intended to give to the holder of the executive rights the power to diminish the royalty owner’s interest under that tract. Consequently, pooling on the part of the holder of the executive rights cannot be binding upon the non-participating royalty owner in the absence of his consent. Minchen v. Fields, 162 Tex. 73, 345 S.W.2d 282 (1961) ; Brown v. Smith, 141 Tex. 425, 174 S.W.2d 43 (1943); and Nugent v. Freeman, 306 S.W.2d 167 (Tex.Civ.App.—Eastland 1957, writ ref’d n. r. e.), cited with approval in Minchen v. Fields, supra. We can see no distinction between the pooling clause, insofar as it has the effect of changing the aggregate ownership of the non-participating royalty owner, and the entirety clause, which, in effect, would allow the holder of the executive rights to either diminish or enlarge the ownership of that of the royalty owner. In either case, the consent of the owner must be obtained.

Respondents argue that although the lease in question covered Montgomery’s non-participating interest, the entirety clause in the lease did not. They contend that since they did not have the power to diminish Montgomery’s interest in “First Tract” and thereby to obtain a proportional share of any royalties accruing to that tract, they did not intend for Montgomery to use the entirety clause to share proportionally in royalties accruing to their tracts. Furthermore, Respondents claim that one of the reasons that they inserted a proportional reduction clause in the lease was to make the entirety clause operative only on those interests which they had authority to cover by the entirety clause.

We are unable to agree with Respondents’ contention. The lease executed by Respondents and the original lessee explicitly described the entire tract in which Montgomery had a non-participating interest as being covered by the lease. The unambiguous entirety clause clearly indicates that it was to apply to all the interests covered by the lease. The clause points out that even if the premises are owned in sev-eralty at the time of the execution of the lease, as the premises were in this case, “the [leased] premises, nevertheless shall be developed and operated as one lease, and all royalties accruing hereunder shall be treated as an entirety and shall be divided among and paid to such separate owners in the proportion that the acreage owned by each bears to the entire leased acreage.” (Emphasis added.) This Court has held that an “are now” entirety clause as was contained in the present lease applies to minerals held in severalty at the time of the execution of the lease. Thomas Gilcrease Foundation v. Stanolind Oil & Gas Co., 153 Tex. 197, 266 S.W.2d 850, 853 (1954).

Respondents, in exercising the executive rights, had a duty to protect the nonparticipating royalty owner. See Jones, Nonparticipating Royalty, 26 Texas L.Rev. 569, 580-85 (1948) and Elliott, The Executive Right, 42 Texas L.Rev. 865 (1965). Had Respondents not intended to include Montgomery’s non-participating interest within the provisions of the entirety clause, they could. have easily taken affirmative steps to exclude the interest from the operations of the clause. The insertion of a proportionate reduction clause in the lease does not indicate an intention to exclude “First Tract” from the express terms of the entirety clause. The lessee, in this case, operated as if “First Tract” was covered by all of the terms contained in the lease. “First Tract” was placed in a unit and a well was drilled on that unit, even though the lessor could not pool the non-participat■ing royalty interest. Therefore, we view it as conclusively established that in executing the lease in question, Respondents purported to bind Montgomery’s interest by the entirety clause — whether or not they had the authority to do so.

RATIFICATION

This suit was filed on May 12, 1964. Prior to the filing of suit, Petitioner claimed and made demand upon Sun Oil Company for his pro-rata share of royalties payable under the terms of the lease. The parties stipulated that, “W. R. Montgomery by his attorney informed a representative of Sun Oil Company during the last week of January, 1959, that the said W. R. Montgomery was offering to sign a ratification of the Charles E. Rittersbacher, et al., lease to P. V. Hitt, dated September 4, 1951 [the lease in controversy] * * *The parties agreed that the affidavit of Montgomery would be acceptable in lieu of requiring him to appear in person as a witness. In the affidavit, Montgomery stated: “I am and have been willing to ratify the said lease and have offered and agreed with Bettis & Shepherd, Sun Oil Company’s predecessor in title, as well as Sun Oil Company, to execute any division order or ratification necessary or proper with regard to any royalty interest, if such be needed.” Respondents contend that this evidence does not establish actual ratification, but only amounts to an offer to make the ratification — the contention being that an offer, absent acceptance, does not meet the requirement that there must be actual ratification. Respondents further take the position that Montgomery’s offer to ratify was conditional and was never fully binding upon Montgomery. This evidence demonstrates Montgomery’s intention to ratify the lease, and by filing suit to enforce the lease as written, Mongomery, as a matter of law, has exercised his option to ratify the lease. We think that the manner in which he has exercised his option is analogous to the manner by which a principal can ratify the unauthorized actions of an agent — bringing a suit to enforce the unauthorized act. In such a situation it has been held that the bringing of the suit constitutes an implied ratification of the unauthorized act. Lyons v. Texorado Oil & Gas Co., 91 S.W.2d 375, 377 (Tex.Civ.App.—Amarillo 1935, writ ref’d); Ziegler v. Southwest Film Laboratory, Inc., 351 S.W.2d 636, 641 (Tex.Civ.App.—Texarkana 1961, writ ref’d n. r. e.); Commercial Standard Ins. Co. v. Nelson Mortg. Co., 138 S.W.2d 169, 173 (Tex.Civ.App.—Eastland 1940, writ dism’d jdgmt cor.); James v. Klar & Winterman et al., 118 S.W.2d 625, 627 (Tex.Civ.App.—Dallas 1938, no writ); Steele v. Butler, 227 S.W. 506, 510 (Tex.Civ.App.—Amarillo 1921, no writ) ; Lechenger v. Merchants’ Nat. Bank, 96 S.W. 638, 643 (Tex.Civ.App.—Houston 1906, writ ref’d) ; 2 C.J.S. Agency § 61, 2 Tex.Jur.2d Agency § 95.

This Court has never been called upon to decide the question of whether a holder of non-participating royalty has an option to make an entirety clause operative on his interest. We think that the nonparticipating royalty owner, so far as the existence of an option is concerned, occupies a comparable position to that of a cotenant under a lease made by his cotenant or a non-participating royalty owner under a pooling agreement made by the holder of the executive rights. As to the cotenant, it has been held that he has the right to ratify or repudiate a lease made by his cotenant which covers his interest. Ryan Consolidated Petroleum Corp. v. Pickens, 155 Tex. 221, 285 S.W.2d 201 (1955); Loeffler v. King, 149 Tex. 626, 236 S.W.2d 772 (1951); Gill v. Bennett, 59 S.W.2d 473 (Tex.Civ.App.—El Paso 1933, writ ref’d); Van Deventer v. Gulf Production Co., 41 S.W.2d 1029 (Tex.Civ.App.—Beaumont 1931, writ ref’d); Texas & Pacific Coal & Oil Co. v. Kirtley, 288 S.W. 619 (Tex.Civ.App.—Eastland 1928, writ ref’d); Duval v. W. T. Carter & Bro., 207 S.W.2d 962 (Tex.Civ.App.—Beaumont 1948, writ ref’d n. r. e.). Likewise, in the pooling area, if a non-participating royalty owner ratifies a pooling agreement, either by joining in the execution of the agreement or by accepting royalties from the pool, his interest is bound by the pooling agreement. Minchen v. Fields, supra, 162 Tex. at 77, 345 S.W.2d at 285; Guaranty Nat. Bank & Trust Co. v. May, 395 S.W.2d 80, 82 (Tex.Civ.App.—Waco 1965, writ ref’d n. r. e.); Nugent v. Freeman, supra, 306 S.W.2d at 170-171. Therefore, we hold that the non-participating royalty owner has the option to ratify or repudiate a lease containing provisions which as to his interest the holder of the executive rights had no authority to insert in the lease.

Montgomery, in bringing this suit, seeks two things under the lease — royalties that have already accrued and royalties that are to accrue in the future. We have held that Montgomery has ratified the lease in question by filing suit; consequently, he is only entitled to receive royalties accruing from .and after May 12, 1964, the date this suit was filed. In this connection, we point out that Montgomery, having thus ratified the lease, is as much bound thereby as if he had joined in the original execution thereof. As long as the lease is in force, he is not free to claim his full ½ non-participating interest under “First Tract.”

We come now to the judgment to be entered. The cause must be reversed and remanded to the trial court with instructions. There is an agreed order in the record which is to be used by the trial court in determining the percentage of royalty to be awarded Montgomery and the amount of accrued royalty in dollars and cents due him from May 12, 1964. The order, Plaintiff’s Exhibit No. 7, reflects that the Plaintiff and Defendants agreed and the court found that if successful in this suit, Montgomery would own 19.59% of the total royalty payable on the production allocated to the 80 acres of “Second Tract” placed in the Crutchfield Gas Unit; that the interest amounts to .006122 royalty interest of the production from said unit; and that the accrued royalty allocable to the Montgomery interest amounted to $1706.05 on runs from date of first production through October 31, 1964. Under our holding, Montgomery will not be entitled to royalty accruing prior to May 12, 1964, the date of filing of suit. The amount of money due Montgomery accruing under the lease subsequent to May 12, 1964, is to be determined in accordance with the above mentioned order, other pertinent stipulations in the record, and this opinion.

Reversed and remanded to the trial court with instructions. All costs are adjudged against the Respondents.

Dissenting opinions by CALVERT, C. J., and GRIFFIN and WALKER, JJ.

CALVERT, Chief Justice

(dissenting).

I join in the dissenting opinion filed by Justice Walker. I append the following comment.

The holding of the court is that the filing of suit by Montgomery on May 12, 1964, constituted a ratification of the lease. The parties stipulated that a well was completed as a producer pn the Crutchfield Unit on October 9, 1956, and that shut-in royalty was paid from that date until May, 1958, when actual production was begun. The record reflects that Montgomery knew as early as July, 1957, that the well had been completed. The record thus reflects that Montgomery waited nearly seven years before he ratified the lease.

By agreeing that ratification has been effected by the judgment herein, I do not wish to be understood as agreeing that a non-participating royalty owner, with full knowledge of his rights, cannot lose his right to ratify through laches. See Nugent v. Freeman, 306 S.W.2d 167 (Tex.Civ.App.—Eastland 1957, n. r. e.). There was no plea of laches in this case.

GRIFFIN, Justice

(dissenting).

I respectfully dissent. The entirety clause in a lease was never intended to convey and does not convey any interest owned by any land owner or mineral owner in any tract of land in any lease. It merely provides for each person to receive such part of the common production as was the ownership of the one who receives in his original tract of land or minerals.

WALKER, Justice

(dissenting).

In my opinion petitioner has heretofore done nothing that would irrevocably bind him to the terms of the lease, and he will not be bound thereby until his tender of ratification is made effective by the judgment rendered in this case. I would hold that he is entitled to his proportionate share of royalties accruing from and after the date of judgment.

CALVERT, C. J., joins in this dissent.

      . The interest Montgomery reserved is as follows: “Out of the grant hereby made there is, however, excepted and reserved unto the Grantor herein, his heirs and assigns, forever, the equal one-half part of the usual royalty of one-eighth of all the oil, gas and other minerals on, in and under the premises hereby conveyed, such one-half part to be paid and delivered under and by the terms of the present or any future oil, gas and mineral lease or leases outstanding on said premises. But Grantor, his heirs and assigns, shall not participate in, and no reservation is here made of the lease or annual rentals and/or bonus money received by Grantee, his heirs and assigns for any future lease or leases given on said premises, and it is understood and agreed that it shall not be necessary for said Grantor, his heirs and assigns to join in any such lease or leases so made.”

      . The lease covered a total of 204.19 acres —“First Tract” consisting of 80 acres and “Second Tract” consisting of 124.19 acres.

      . Eighty acres of “Second Tract” were placed in the Crutchfield unit — making a total of 320 acres in that unit. The remainder of “Second Tract,” 44.19 acres, and “First Tract” were not placed in the Crutchfield unit.

      . Sun Oil Company tendered Montgomery’s claimed share of the royalty payments into court and is involved in this controversy only as a nominal party.


source: Caselaw Access Project

author: CALVERT, Chief Justice.

license: Public Domain

text:
    SUN OIL COMPANY, Petitioner, v. Earnest WHITAKER et al., Respondents.
    No. B-234.
    Supreme Court of Texas.
    Jan. 31, 1968.

      Stubbeman, McRae, Sealy & Laughlin, W. B. Browder, Jr., Midland, Charles F. Heidrick and E. M. Cage, Dallas, for petitioner.
    Allison, Mann & Allison, Earl R. Allison and Dwight R. Mann, Levelland, Nelson, McCleskey & Harriger, George W. Mc-Cleskey, and Don Graf, Lubbock, for respondents.
   CALVERT, Chief Justice.

This is an appeal from a judgment of the trial court denying Sun Oil Company’s prayer for a temporary injunction, which judgment was affirmed by the court of civil appeals. 412 S.W.2d 680. We affirm.

Earnest Whitaker is the owner of the surface estate and Sun Oil Company is the owner of a mineral leasehold estate in a 267-acre tract of land in Hockley County. Sun acquired its lease on the property on April 5, 1946, from L. D. Gann and his wife, then the owners of the fee title subject to an outstanding non-participating one-sixteenth free royalty in the west one-half of the tract. The land was conveyed by Gann and his wife to Whitaker on January 2, 1948. The conveyance to Whitaker was subject to Sun’s lease, and the deed expressly excepted and reserved all minerals that might be produced from the land to the Ganns, their heirs and assigns.

Sun’s lease has been kept alive beyond the primary term of five years by production from eight oil wells which are producing from the San Andres formation. When production from its oil wells decreased because of diminishing pressure in the San Andres formation, Sun sought and obtained permission from the Railroad Commission to take fresh water from the Ogallala formation and inject it into the San Andres in furtherance of a pressure maintenance program. Whitaker and his son-in-law, Doyle Henderson, are using water from the Ogallala formation for cultivating the land as an irrigated farm.

Sun instituted this action to enjoin Whitaker and Henderson from interfering with entry upon the land of its employees and contractors for the purpose of drilling its water wells into the Ogallala formation and using water from that source in its water injection pressure maintenance program. The defendants filed an answer to Sun’s petition, and Whitaker filed a counterclaim in which he seeks an injunction to prevent Sun and its employees and contractors from using any of the fresh subterranean water underlying the land for reinjection, secondary recovery and repressuring purposes. The principal defense pleaded to Sun’s action and the principal ground pleaded in the counterclaim as a basis for affirmative relief is that Sun’s lease does not confer a legal right to use water as Sun proposes. An additional pleaded defense and ground for affirmative relief is that use by Sun of fresh water from the Ogallala formation for injection into the San Andres oil bearing formation would be “waste” of water as defined in and prohibited by Article 7880-3c.

High Plains Underground Water Conservation District No. 1, in which the land is situated, filed a plea in intervention in the case and seeks (1) a declaratory judgment that use of the Ogallala water as contemplated by Sun would constitute “waste” of water as that term is defined by Article 7880-3c A (6), and (2) an injunction to prevent Sun from violating Article 7880-3c and the rules and regulations of the water district. Sun filed a motion to strike the plea in intervention, a plea of privilege to the suit thereby instituted against it, and a motion to sever the water district’s cause of action from Sun’s cause of action against the original defendants and to docket the water district’s cause of action as a separate suit. The trial court overruled the motion to strike. There is no showing in the clerk’s transcript that action has been taken on the plea of privilege or the motion to sever.

A hearing was held on Sun’s prayer for a temporary injunction. All parties joined in a written agreement that in the temporary injunction proceeding no issue was to be joined and no arguments were to be made in the trial or appellate courts by any party “concerning or relative to ‘waste’ or ‘escape’ of underground water from one underground water reservoir to any other reservoir as mentioned, provided or defined in Article 7880~3c A(6) (c) or said Article 7880-3c D(4) (c),” or “concerning or relative to the clause ‘for any other purpose’ as mentioned or provided in said Article 7880-3c D (3).” The parties thus sought to eliminate all issues raised by the water district’s pleading and one of the defenses raised by Whitaker’s answer from the case in this preliminary proceeding, and to narrow the issue to the rights conferred on Sun and Whitaker by their respective title documents. Only the latter issue was tried by the trial court, as is clearly indicated by the findings of fact and conclusions of law, and only that issue was considered and decided by the court of civil appeals.

Sun’s lease grants and leases the 267-acre tract to Sun “for the purposes of investigating, exploring, prospecting, drilling and mining for and producing oil, gas and all other minerals, laying pipe lines, building tanks, power stations, telephone lines and other structures and means thereon to produce, save, take care of, treat, store, transport and manufacture said minerals, and housing its employees * * The lease also provides: “Lessee shall have free use of oil, gas, coal, wood and water from said land except water from Lessor’s wells for all operations hereunder * * The judgments of the trial court and court of civil appeals are based primarily upon a conclusion by the trial court that the parties to the lease did not intend that Sun should have free use of water from the Ogallala source for a water flooding pressure maintenance program when such use would result in substantial damage to the surface owner’s estate in the land.

The judgments of the courts below must be affirmed for reasons and on a ground neither urged on appeal by the appellee-respondent nor noticed by the court 'of civil appeals.

Some of the rules of law governing the right of trial courts to grant or deny writs of temporary injunction, and appellate review of such orders, are well established and clearly defined. To warrant issuance of the writ, an applicant is not required to establish that he will prevail on final trial; he needs only to plead a cause of action and to show a probable right on final trial to the relief he seeks and probable injury in the interim. Transport Co. of Texas v. Robertson Transports, Inc., 152 Tex. 551, 261 S.W.2d 549 (1953); Southwestern Greyhound Lines, Inc. v. Railroad Commission of Texas, 128 Tex. 560, 99 S.W.2d 263, 109 A.L.R. 1235 (1936). To be entitled to the writ when the only relief sought on final trial is injunctive, the applicant must show a probable right on final hearing to a permanent injunction. Oil Field Haulers Ass’n v. Railroad Commission, 381 S.W.2d 183 (Tex.Sup.1964). A necessary corollary of the preceding rule is that in no event should the writ issue for the protection of an applicant who does not show a probable right on final trial to a permanent injunction. Camp v. Shannon, 162 Tex. 515, 348 S.W.2d 517 (1961). A trial court judgment either granting or denying a writ will not be reversed unless the appellate courts are convinced that it represents a clear abuse of discretion. Texas Foundries, Inc. v. International Moulders Foundry Workers Union, 151 Tex. 239, 248 S.W.2d 460 (1952).

Considering the record before us and applying the foregoing rules which must guide our action, it would seem obvious that we cannot reverse the judgments denying Sun’s prayer for a writ of temporary injunction. The agreement that issue would not be joined and arguments would not be made concerning the issue of statutory waste raised by Whitaker’s answer and the water district’s plea in intervention completely destroyed Sun’s ability to show its probable right on final trial to a permanent injunction. The basis of Sun’s claimed right to injunctive relief is that its lease gives it a legal right to free use of all water from the Ogallala formation reasonably necessary to produce the oil underlying the land. By way of defense, Whitaker pleaded that the lease, properly interpreted, does not confer that right, and that even if it does, Sun’s proposed use of the water is prohibited by statute. The trial court permitted the water district to intervene by overruling Sun’s motion to strike the plea in intervention. The water district’s pleading also asserts that Sun’s proposed use of the water is prohibited by statute as well as by its rules. If we assume that Sun’s interpretation of the lease is correct, Sun would yet not be entitled to a permanent injunction to protect it from interference with its water flooding program if its proposed use of the water is prohibited by statute. With the latter issue stipulated out of this trial and appeal, we are not at liberty to determine the merits of the issue; therefore, we cannot hold that the statute does not prohibit Sun’s use of the water and that Sun has shown a probable right to a permanent injunction.

If we should hold that under a proper interpretation of its lease Sun has a legal right to free use of all water from the Ogallala formation reasonably necessary for production of the oil underlying the land, as Sun would have us do, and leave the statutory waste issue undetermined, as we are required to do, our decision could well be nothing more than an advisory opinion. Sun recognizes this to be true by the following statement in its application for writ of error: “The opinion of the Supreme Court in this cause will essentially control the legal issues of construction of the oil, gas and mineral lease when the cause is ultimately heard on the merits for permanent injunction.”

We cannot approve inauguration of a practice, by agreement, of trying the right of a party to a writ of temporary injunction on piecemeal issues. Permitting it in this case might resolve the major issue; but if it were permitted in this case, the right could be claimed with equal logic by other litigants in other cases. The ultimate result would be to make a mockery of our long-established rules governing the trial of temporary injunction proceedings, as should be self-evident. To illustrate: Let us assume a case in which the owner of land sues to cancel a gravel lease on the ground of fraud and seeks a temporary and permanent injunction to prevent the further taking of gravel; and the lessee defends the suit primarily on the ground that there was no fraud in procurement of the lease, but also alleges that in any event the cause of action for cancellation is barred by the statute of limitation. Could we permit the parties to try by agreement only the issue of fraud as a basis for granting or denying a temporary injunction, thus reserving for final trial only the issue of limitation as a basis for granting or denying a permanent injunction? Obviously not. While the underlying issues raised by separate defenses may be tried in separate trials, Rule 174(b), Texas Rules of Civil Procedure, the cause of action for temporary injunctive relief is indivisible and may not be so tried. The basic issue to be tried is the probable right of the applicant to a permanent injunction when all defenses made by the pleadings are considered. To hold otherwise would authorize use of a temporary injunction proceeding as a vehicle for piecemeal trial of defenses to the cause of action for temporary injunctive relief. We have often condemned piecemeal trials of indivisible causes of action. Iley v. Hughes, 158 Tex. 362, 311 S.W.2d 648 (1958); Waples-Platter Co. v. Commercial Standard Ins. Co., 156 Tex. 234, 294 S.W.2d 375 (1956); Fisher v. Coastal Transport Co., 149 Tex. 224, 230 S.W.2d 522 (1950). Cf. Storey v. Central Hide & Rendering Co., 148 Tex. 509, 226 S.W.2d 615 (1950).

The judgment of the court of civil appeals is affirmed.

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

      . Emphasis ours throughout unless otherwise indicated.


author: SMITH, Justice. NORVELL, Justice.

text:
    Ex parte Carl O. RAMZY, Jr., Relator.
    No. B-498.
    Supreme Court of Texas.
    Jan. 31, 1968.
    Rehearing Denied Feb. 28, 1968.

      Philip S. Kouri and Jimmy Casteldine, Wichita Falls, for relator.
    Spence, Martin & Richie, Howard Martin, Wichita Falls, for respondent.
   SMITH, Justice.

In this original habeas corpus proceeding presented to this Court on October 9, 1967, the Relator, Dr. Carl O. Ramzy, Jr., seeks to be discharged from an order of the District Court of Jack County, Texas, committing him to jail for contempt. The facts were developed at two different hearings before different trial judges. The reasons for holding two hearings will be discussed later in this opinion.

On April 2, 1966, Rhoda Chambless Ramzy presented to the District Judge of the 43rd Judicial District of Texas, a petition for divorce wherein her husband, the Relator, was named as defendant. The petition not only alleged a cause of action for divorce, but sought to restrain the Relator from disposing of certain personal property owned by the community. The divorce action is still pending.

The court granted a temporary restraining order decreeing that “the defendant be and he is hereby enjoined and restrained, without bond, from selling, disposing of or secreting any of the community property of Plaintiff and Defendant, or placing the said property or any portion thereof beyond the Plaintiff’s reach, including all real and personal property.” The court further ordered that the Defendant-Relator appear “in the District Court room, Courthouse, Jacksboro, Jack County, Texas, on the 7 day of April, A.D. 1966, at 2 o’clock p. m. to show cause, if any he has, why the Temporary Restraining Order herein prescribed should not be extended into a Temporary Injunction * *

On April 7, 1966, the court, after a hearing, granted a temporary injunction enjoining both the plaintiff and defendant from “selling, disposing of or secreting any of the property of plaintiff and defendant.” Each party was ordered to return into court a verified complete inventory of all property and assets in his or her possession. The court’s order granting the temporary injunction directed “the defendant not to dispose or remove any of the funds on deposit with or in safety deposit boxes in the Jacksboro National Bank, * * *, save and except that the defendant has a clinic account and personal checking account with the Jacksboro' National Bank, Jacksboro, Texas, and in connection with such checking accounts the court further directs that the defendant shall in 10 days file an inventory of all of the assets which he has in his possession, a copy of which shall be delivered to the plaintiff’s attorney herein, and upon the final trial of this cause all of the income and disbursements made from such accounts shall be audited, etc.”

Thereafter, the plaintiff, on the 5th day of September, 1967, executed a “contempt affidavit” charging that the Defendant-Relator had violated the injunction by disposing of a coin collection described therein. The affidavit alleged that the coins were in the exclusive possession of the defendant and such coins were listed in the inventory filed by the defendant in accordance with the court’s order.

The affidavit alleged and the defendant admitted at the contempt hearing on September 25, 1967, that the coin collection was no longer in Relator’s possession. At this hearing, the attorneys for the plaintiff and defendant were both present and participated in the examination of the witnesses. It was specifically charged in the “contempt affidavit” that on “August 3rd, 1966, while said temporary injunction was in full force and effect, defendant sold a portion of said coin collection to a man by the name of Gean Cashdan for the sum of $2500.00.”

“That on or about September 29th, 1966, the defendant sold a portion of said coin collection to a man by the name of M. A. Withers for the sum of $1508.60, while said temporary injunction was in full force and effect.”

“That on some date subsequent to April 7, 1966, and while said temporary injunction was in full force and effect, the defendant disposed of all of the gold coins in said valuable collection. That the defendant claims and represents to the plaintiff, and even to defendant’s own attorney in this cause, that he disposed of all of said coins by giving them to his children by one of his prior marriages.”

On September 25, 1967, the court entered its judgment holding the Relator in contempt. The court found that,

“ * * * the defendant has turned over to his children by a former marriage a portion of said coin collection consisting of United States gold coins. The Court finds that by the admissions of the defendant in this contempt proceeding said defendant at this time does not have in his possession any of said community coin collection which has any value whatsoever.”

Based upon the findings so made, the court ordered and decreed:

“[Tjhat the defendant, Carl O. Ramzy, Jr., be, and he is hereby, held guilty of contempt of this Court for his willful and intentional violation and disobedience of the order and temporary injunction of this Court issued and made in this cause on April 7th, 1966, and said defendant’s punishment is hereby fixed at confinement in the County Jail of Jack County, Texas, for a period of seventy-two (72) hours, same being three full days, and a fine of One Hundred ($100.-00) Dollars, together with all costs of this contempt proceeding incurred.
“It is further ordered and decreed by the Court that when the said defendant, Carl O. Ramzy, Jr., shall have served said 72 hours in the County Jail of Jack County, Texas, and shall have paid said $100.00 fine (or satisfied said fine by confinement in the Jack County Jail at the rate of $5.00 per day), and shall have paid the costs of this contempt proceeding, as punishment for his contempt of this Court, the said Carl O. Ramzy, Jr., shall continue to be confined in the County Jail of Jack County, Texas, until he shall have purged himself of all contempt of this Court by delivering to the possession of the District Clerk of Jack County, Texas, for safekeeping pending final trial of this suit for divorce, all portions of the coin collection delivered by defendant to Gean Cashdan, all portions of said coin collection delivered by the defendant to M. A. Withers, all portions of said coin collection delivered by the defendant to the Jacksboro National Bank of Jacksboro, Texas, and all portions of said coin collection delivered by the defendant to defendant’s children by a former marriage, and all portions of said coin collection remaining in the defendant’s possession or under defendant’s control, whether of value or not, and wheresoever located.
“When the defendant, Carl O. Ramzy, Jr., shall have served said 72 hours in the Jack County Jail and shall have satisfied said $100.00 fine and all costs of this contempt proceeding, and shall have purged himself of contempt of this Court in the manner provided in the preceding paragraph of this judgment, said defendant shall be released from further confinement in the County Jail of Jack County, Texas.”

Thereafter, on the 9th day of October, 1967, Relator presented his petition for writ of habeas corpus to this Court. The petition was denied. On the 10th day of October, 1967, Relator filed an original petition for writ of habeas corpus in the 43rd Judicial District Court of Texas at Jacksboro, Texas. In the petition it was alleged that the Relator was unlawfully restrained of his liberty by the Sheriff of Jack County, and notice was served upon the Sheriff, Hubert Jackson. Thereafter, on the same date the petition was filed, a hearing was held before the Honorable Arthur Tipps, a District Judge who was regularly appointed to preside. The court heard evidence and a statement of facts, approved by Judge Tipps, was filed in this Court on October 11, 1967.

On October 12, 1967, the Relator filed in this Court a motion for rehearing of his petition for writ of habeas corpus. This motion was granted on October 12, 1967, and the cause was set for submission on November 15, 1967. The Relator was admitted to bail pending final disposition of the cause in this Court. We believe it is proper under all of the circumstances for this Court to consider the testimony introduced at this latter hearing as well as that given at the hearing on September 25, 1967, as being properly before us. The Relator testified at both hearings. Cashdan and Withers, the parties heretofore mentioned, testified only at the last hearing.

Mrs. Ramzy has filed a brief in this Court in which she asserts that there has been a denial of “due process” in that the hearing on October 10, 1967, was held without notice to her or her counsel, and that the failure to give to her notice of the hearing deprived her of the right to offer evidence and the right to cross-examine the witnesses. We overrule this contention. A procedure by habeas corpus to be relieved of imprisonment for contempt can in no legal sense be regarded as a suit or controversy between private parties. In such a proceeding the petition for a writ of habeas corpus is for the relief of the prisoner and the prisoner only. It is to inquire why the liberty of the citizen is restrained. We hold that the authority to grant the writ is conferred upon the Court or the judge, and that a proceeding by ha-beas corpus is a matter for the investigation of the judge. The writ of habeas corpus is designed for the purpose of giving a speedy remedy to one who is unlawfully detained. The very nature of a procedure by writ of habeas corpus dictates that it would be inconsistent to recognize on the one hand that the purpose of the writ is to obtain a speedy adjudication of a person’s right to be free from illegal restraint, and on the other hand to compel the person to await service of notice of the proceedings upon some private party before the judge can proceed with the investigation. Paramount in cases of this nature is the basic premise that the purpose of the writ of habeas corpus is to obtain a speedy adjudication of a person’s right to liberation from illegal restraint.

Since the Relator has complied with that portion of the court’s order wherein his punishment for contempt was fixed at confinement in the County Jail of Jack County, Texas, for 72 hours, and a fine of $100.00, we are only concerned with the validity of the coercive portion of the judgment which orders that the Relator be confined in jail until he delivers to the District Clerk of Jack County, Texas, all of the coins described in the contempt judgment.

There is no question but that the Relator has voluntarily and contemptuously disposed of the coins described in the injunction and in the judgment of contempt. However, we are to determine whether or not it is within the Relator’s power to perform the act or acts which alone will purge him of contempt. A judgment of contempt imposing a coercive restraint is void if the conditions for purging the contempt are impossible of performance. Ex parte Gonzales, 414 S.W.2d 656 (Tex.Sup.1967) ; Ex parte Thetford, 369 S.W.2d 924 (Tex.Sup.1963); Ex parte Helms, 152 Tex. 480, 259 S.W.2d 184 (1953) ; Ex parte De Wees, 146 Tex. 564, 210 S.W.2d 145 (1948). Unless the contemner has the means by which he may purge himself of the contempt, he must be discharged from prison. This Court in De Wees expressly approved the language contained in the case of Staley v. South Jersey Realty Co., 83 N.J.Eq. 300, 90 A. 1042, 1043, L.R.A. 1917B, 113, wherein it was said:

“In a ‘civil contempt’ the proceeding is remedial, it is a step in the cause the object of which is to coerce one party for the benefit of the other party to do or to refrain from doing some act specified in the order of the court. ■ Hence, if imprisonment be ordered, it is remedial in purpose and coercive in character, and to that end must relate to something to be done by the defendant by the doing of which he may discharge himself. As quaintly expressed, the imprisoned man ‘carries the keys to his prison in his own pocket.’ ” (Emphasis added.)

It is well settled that recalcitrants may be sent to jail and there confined until proper contempt orders are complied with, unless it is clear that the court’s order cannot be obeyed. The power to administer punishment which is tantamount to life imprisonment cannot be exercised where it is not within the power of a person to perform. Davison v. Davison, 125 Kan. 807, 266 P. 650, 654, cited with approval in Ex parte De Wees, supra; Ex parte Rohleder, 424 S.W.2d 891 (Tex.Sup.1967).

An original habeas corpus proceeding in this Court is a collateral attack on the contempt decree. This Court does not evaluate facts. However, it is necessary for the Court to state the facts, and we treat the contempt order as void if the evidence offered at the hearing or hearings conclusively establishes that at the time of the contempt hearing it was not within the power of the Relator to perform the act or acts which would release him from the punishment authorized by the court’s judgment. Ex parte Rohleder, supra; Ex parte Jones, 163 Tex. 513, 358 S.W.2d 370 (1962); Ex parte La Rocca, 154 Tex. 618, 282 S.W.2d 700 (1955); Ex parte Tyler, 152 Tex. 602, 261 S.W.2d 833 (1953); Ex parte Fisher, 146 Tex. 328, 206 S.W.2d 1000, 1003 (1947).

The judgment of contempt recites that the Relator shall continue to be confined in the county jail until he shall have purged himself of contempt, by delivering to the possession of the District Clerk (1) “all portions of the coins delivered to Cashdan,” (2) “all portions of the coins delivered to Withers,” (3) “all portions of the coins delivered to the Jacksboro National Bank,” (4) “all portions of said coin collection delivered by the defendant to defendant’s children by a former marriage,” and (5) “all portions of said coin collection remaining in the defendant’s possession or under defendant’s control, whether of value or not, and wheresoever located.”

We shall first consider the above designated items 1, 2, 3 and 5. The testimony as to these items may be summarized as follows: The inventory filed by Relator reflects that he had in his possession 3013 silver coins. The Relator testified on September 25, 1967, and to the same effect on October 10, 1967, that he had disposed of a portion of these coins which were in his possession when the writ was granted to Cashdan for the sum of $2500.00, and, that this sum was deposited in the Jacksboro Bank, and had been spent. The contempt judgment recites that these coins were no longer in the possession of the Relator. Cashdan testified on October 10, 1967, that he purchased coins from the Relator for $2500.00 by check. The check was introduced in evidence, and is a part of the statement of facts. Cashdan further testified that none of the coins were in his possession having been sold over the counter to numerous customers.

The Relator testified at both hearings that he had sold a portion of the coins to Withers for $1508.60, and that this sum was deposited in the bank and spent. Withers testified that he had purchased coins from the Relator; he paid the sum of $1508.60 therefor; none of the coins were in his possession; the coins had been sold.

Relator testified on September 25, 1967, that as to the third transaction involving the coins delivered to the Jacksboro Bank, he “took $400.00 in U. S. Coins and put them in the Bank and got $400.00 worth of credit at the bank.” The President of the Jacks-boro bank testified on October 10th that if the Relator deposited coins in the bank, it would be impossible to identify them.

The testimony bearing upon that portion of the contempt judgment which ordered the Relator to deliver to the Clerk “all portions of said coin collection remaining in the defendant’s possession or under defendant’s control, whether of value or not, and wherever located,” is that none of the coins remained in Relator’s possession, and the court so found, as reflected by the September 25 order. The finding of the Court apparently has reference to silver and gold coins. Mrs. Ramzy testified at the hearing on September 25, 1967, that on August 23, 1967, she examined the books, ledgers, etc. in the possession of the Relator. This examination took place in the presence of Dr. Ramzy and the attorneys for the parties to the divorce suit. Mrs. Ramzy testified that these records reflected that Ramzy sold coins to Cashdan on August 3, 1966, for $2500.00; she saw the deposit slip; the books reflected a sale to Withers on September 9, 1966, for $1508.60; and that she saw the deposit slip for that sum. Mrs. Ramzy further testified that Dr. Ramzy told her none of these coins were in his possession; that she saw none of the coins; and further that Dr. Ramzy opened up a safe and there were no coins therein.

We hold that the testimony above related as to all items except item 4 and item 5, insofar as it pertains to gold coins, is conclusive, and that the Relator cannot comply with the four directives mentioned. The testimony “falls within the exception giving conclusive effect to such testimony where it is clear and positive and there are no circumstances in evidence tending to discredit or impeach it.” Ex parte Rohleder, supra; Ex parte Gonzales, supra; McGuire v. City of Dallas, 141 Tex. 170, 170 S.W.2d 722 (1943).

We come now to consider that part of the contempt judgment which directs the Relator to deliver to the Clerk “all portions of said coin collection delivered by the defendant to defendant’s children by a former marriage.” The coins referred to in this part of the contempt judgment were gold coins. Both the Relator and Mrs. Ramzy testified in regard to these coins at the September hearing. Relator testified that he had about $400.00 in gold coins, while Mrs. Ramzy testified that the Relator owned “between $500.00 and $1,000.00 in gold and silver coins prior to their marriage.” The Relator testified further that “[t]he only gold coins I had was some I had prior to the marriage and I gave them to the children some considerable time prior to the time the divorce action was filed.” This testimony indicates that he gave all of the gold coins [$400.00] to his children. However, later in his testimony he said that he gave only $100.00 in gold coins to his children. He further testified that he had $300.00 in gold coins in his possession after the injunction was issued and served restraining him from disposing of the coin collection. Relator testified that these particular coins were removed from a filing cabinet in his office by someone who had a key to the office. Relator’s testimony indicates that he believed Mrs. Ramzy was the person who entered the office and took the gold coins. He said that he did not list these gold coins in the inventory because he did not then have them in his possession, and that “Rhoda [Mrs. Ramzy] had it.” Mrs. Ramzy denied getting the gold coins. During the October hearing, the Relator testified that he gave the gold coins to his children in August, 1965, but he did not state at this hearing the value of the coins as he did during the former hearing. He said that it was impossible to secure a return of the gold coins which were given to the children, and, therefore, it was impossible to deliver the coins to the District Clerk. He testified that the mother of the children told him that she had sold the coins and that she could not remember the name of the man she sold them to.

The evidence above related in regard to the gold coins does not conclusively show that the Relator is unable to respond to the court’s order to deliver the gold coins to the Clerk. The burden rested upon the Relator, not to conclusively show the exact number of gold coins, but to conclusively show that whatever number of gold coins that were in his possession and control after the injunction was granted could not be delivered to the Clerk in accordance with the court’s order. The trial judge at the September hearing could have concluded that the Relator actually had in his possession $700.00 in gold coins and that he gave to his children $400.00 in gold coins, leaving the $300.00 in gold coins in his possession. On the other hand, the court could have concluded that he only had in his possession $400.00 in gold coins and that he gave to his children $100.00 in gold coins. The record as to these gold coins does not meet the test recently announced in Ex parte Rohleder, supra. The testimony must be clear and positive, and there must be no circumstances in evidence tending to discredit or impeach the testimony — upon which Relator relies. We hold that the court did not exceed its power in ordering that Relator be imprisoned until he delivers to the Clerk of Jack County, Texas, “all portions of said coin collection delivered by the defendant to defendant’s children by a former marriage.” See Ex parte Preston, 162 Tex. 379, 347 S.W.2d 938 (1961).

We hold that' the judgment of contempt is not void insofar as item 4 and that part of item 5 which pertains to gold coins are concerned. The Relator, Dr. Carl O. Ram-zy, Jr., is remanded to the custody of the Sheriff of Jack County, Texas, until he purges himself of contempt by delivering to the Clerk the gold coins referred to in the contempt judgment, or until it is shown that it is not within his power to comply with the judgment of contempt.

In the event another habeas corpus proceeding is instituted by the Relator, the issues presented for adjudication should be disposed of by the entry of final judgment by the trial court, either remanding the Relator to custody of the Sheriff of Jack County, Texas, or discharging him from such custody.

Concurring Opinion

NORVELL, Justice.

I concur in the order of the court remanding the relator to the custody of the Sheriff of Jack County. I have grave doubts as to the advisability of our considering the evidence adduced at the hearing held on October 10, 1967. However, even if such evidence be considered, the relator must be remanded to the custody of the sheriff as ordered by the court. It seems that the district judge misapprehended the nature of the proceeding instituted by the filing of Dr. Ramzy’s petition for writ of habeas corpus. By virtue of this action, the jurisdiction of the District Court of Jack County, 43rd Judicial District, was invoked to decide whether or not Dr. Ramzy was being lawfully restrained of his liberty. At that time Dr. Ramzy was in the custody of the sheriff and the district court could have and should have decided the issue presented by Dr. Ramzy’s petition, rather than merely certifying to this court the transcript of the testimony adduced in what amounted to an ex parte proceeding. Mrs. Ramzy was not notified of the hearing and no witness was subjected to cross-examination.

In my opinion, a district court is a more suitable forum than this court to decide issues arising in cases similar to the present one. By cases similar to this one, I mean those in which it appears beyond peradventure that a restraining order or injunction issued in a civil case has been violated and as a result a contempt order has been rendered containing both punitive and coercive sanctions. In this case, Dr. Ramzy violated an injunction and thus rendered himself liable for three days confinement in jail and a fine of $100.00. Article 1911, Vernon’s Ann.Tex.Stats. In addition to the punitive provision, the order contains a coercive clause which provided that Dr. Ramzy “shall be confined in the County Jail of Jack County, Texas, * * * until he shall have purged himself of all contempt of this Court by delivering to the possession of the District Clerk of Jack County, Texas, for safekeeping pending final trial of this suit for divorce, all portions of the coin collection delivered by defendant to Gean Cashdan, all portions of said coin collection delivered by the defendant to M. A. Withers, all portions of said coin collection delivered by the defendant to the Jacksboro National Bank of Jacksboro, Texas, and all portions of said coin collection delivered by the defendant to defendant’s children by a former marriage, and all portions of said coin collection remaining in the defendant’s possession or under defendant’s control, whether of value or not, and wheresoever located.”

Dr. Ramzy contends that it does not lie within his power or ability to comply with the coercive portion of the decree. Whether a person can or cannot perform as ordered by a court becomes a question of law in those instances only when from an examination of the evidence, reasonable minds cannot differ as to the conclusion, either that he can or cannot perform as ordered.

The habeas corpus power of this court does not extend to the determination of fact issues. Ex parte Reid, Ex parte Lytle, 99 Tex. 405, 89 S.W. 956 (1905); Ex parte Olson, 111 Tex. 601, 243 S.W. 773 (1922). It is only when the proof adduced at the hearing establishes the controlling issue — in this case, relator’s inability to comply with the court’s order, as a matter of law, that this court can regard the order of commitment as being invalid for the reason that a court may not deprive a person of his liberty for failure to comply with a coercive order when performance is impossible. Ex parte Helms,. 152 Tex. 480, 259 S.W.2d 184 (1953) ; Ex parte White, 154 Tex. 126, 274 S.W.2d 542 (1955); Ex parte Townsley, 156 Tex. 402, 297 S.W.2d 111 (1956), Ex parte Rohleder, 424 S.W.2d 891 (Tex.Sup.1967). A district court, however, is vested with plenary power to modify or vacate its mandatory orders requiring a person to perform certain acts so as to do justice in the particular case.

A situation may, and often does, arise in which a party may be able to comply with a court order when made, but because of a subsequent change in conditions, he cannot carry out the court’s directive. An example is afforded by the cases involving support orders wherein one’s earning capacity, through accident, sickness or other cause, is diminished or destroyed. In such a case, he may make application for relief to the district court. Ex parte Gonzales, 414 S.W.2d 656 (Tex.Sup.1967). In Gonzales, the relator after he had been found guilty of contempt and served three days in jail, thus satisfying the punitive portion of the district judge’s order, made application to the district court for release because of his inability to pay back support money. The trial judge refused to release him and after obtaining a statement of the evidence adduced upon the hearing of the motion, this court in an original habeas corpus proceeding held the restraint to be illegal because the evidence showed as a matter of law that relator could not comply with the order.

In my opinion, the procedure outlined in Gonzales is applicable here and would afford relator a more efficacious remedy than is available to him by an original proceeding in the Supreme Court; this, because of the broader authority vested in the district court relating to the control of its orders. Should the district court decide against relator, he would then have a record to bring to this court to support a contention that it appears conclusively as a matter of law that he is unable to comply with the coercive order of the district court.

There is one other matter that may be mentioned. While Albert ex rel. Buice v. Patterson, 155 F.2d 429 (1st Cir. 1946) was an appealed case, the opinion contains statements with reference to the difference in positions of the trial and the appellate courts which seem valid here. The trial judge has an opportunity to view the witness and judge his credibility and this may be decisive. The Court of Appeals said:

“No doubt there may be cases in which it would be clearly erroneous not to believe uncontradicted testimony. But so many factors affect credibility that it is hard to conceive of a situation in which we could say that it was clearly erroneous for a trial court to disbelieve, or find insufficient, oral testimony, even if uncontradicted, given with respect to a basic issue by a party having the burden of persuasion.”

Likewise, great care should be exercised in giving effect to testimony which has been adduced when no opportunity to cross-examine or contradict has been afforded. Generally, upon the filing of a habeas corpus proceeding, the district judge notifies the party interested in the enforcement of the order theretofore entered by the district court, if such notice can be given without delay. Then, evidence is adduced under adversary conditions and hence is more reliable than that contained in mere ex parte statements. Cross-examination is not a weapon in the arsenal of forensic art which we may safely disregard.

      . The most common case of this character is one involving child support payments where the father (or person ordered to make such payments) fails to do so and thereafter is held in contempt and both punitive and coercive provisions are contained in the contempt decree and he contends that he is financially unable to comply with the coercive portion of the decree.


author: WOODLEY, Presiding Judge. DICE, Judge.

text:
    Edward SMITH, Appellant, v. The STATE of Texas, Appellee.
    No. 41000.
    Court of Criminal Appeals of Texas.
    Jan. 24, 1968.
    On Motion to Reinstate Appeal Feb. 21, 1968.

      O’Connor & Brister, Lubbock, for appellant.
    Fred E. West, Lubbock, Carson Smith and Jack Layne, Asst. Dist. Attys., Lubbock, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

OPINION

The offense is possession of wine in a dry area for the purpose of sale.

Trial was before the court on a plea of not guilty.

The judgment dated June 15, 1967, recites : “The Court finds the defendant guilty as charged and assesses his punishment at a fine in the amount of $55.00. Pat Moore, Judge Presiding,” but adjudges that the state “recover of the Defendant Edward Smith the said fine of $350.00 and all costs

Sentence pronounced September 13, 1967, recited that the punishment was assessed at a fine of $350.00, together with all costs * * * and remanded appellant to the custody of the sheriff “to be confined until all such costs and fines are paid and said term of imprisonment has expired.”

The state moves that the appeal be dismissed. The only notice of appeal which is reflected by the record was that given in open court entered June 21, 1967, on which date bond on appeal was signed and approved.

Art. 44.08(c) Vernon’s Ann.C.C.P. requires that notice of appeal in cases such as this be given or filed within 10 days after sentence is pronounced. Notice of appeal prior to sentence does not meet such requirement. Hollingsworth v. State, Tex.Cr.App., 419 S.W.2d 854.

The state’s motion is granted and the appeal is dismissed.

OPINION

ON APPELLANT’S MOTION TO REINSTATE THE APPEAL

DICE, Judge.

On January 24, 1968, we dismissed the appeal in this cause for the reason that notice of appeal was given prior to sentence rather than within ten days after sentence was pronounced, as provided by Art. 44.08 (c), V.A.C.C.P.

In our opinion dismissing the appeal, attention was directed to the recitation in the court’s judgment assessing appellant’s punishment at a fine in the amount of $35.00 and to another recitation in the judgment that the state recover of the appellant a fine of $350.00. Attention was also directed to the sentence pronounced by the court which recited that the punishment was assessed at a fine of $350.00.

By supplemental transcript it is now shown that on January 30, 1968, with permission of the court, granted under the authority of Art. 44.08(e), V.A.C.C.P., appellant duly gave notice of appeal in open court.

The appeal is, accordingly, reinstated.

Under the record, the judgment must be reversed because the assessment of punishment by the court at a fine of $35 is less than the minimum punishment of a fine of $100 provided by Art. 666-41, V.A. P.C., for the offense. Henderson v. State, 167 Tex.Cr.R. 112, 318 S.W.2d 898; Bradshaw v. State, Tex.Cr.App., 331 S.W.2d 52; Clardy v. State, Tex.Cr.App., 415 S.W.2d 423.

The judgment is reversed and the cause is remanded.


author: WOODLEY, Presiding Judge. BELCHER, Judge.

text:
    Jose DE LA PAZ, Appellant, v. The STATE of Texas, Appellee.
    No. 40822.
    Court of Criminal Appeals of Texas.
    Nov. 29, 1967.
    On Motion to Re-Instate Appeal Jan. 17, 1968.
    Rehearing Denied March 6, 1968.
    Samuel K. Wasaff, El Paso, for appellant.
    Jack N. Fant, County Atty., LeBron Hardie, Jr., Asst. County Atty., El Paso, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

The offense is drunk driving; the punishment, 3 days in jail and a fine of $150.

Trial was before the court on a plea of not guilty.

Notice of appeal was given prior to sentence.

Article 44.08 Vernon’s Ann.C.C.P. requires that notice of appeal, necessary as a condition for perfecting an appeal to this court, shall in cases such as this be given or filed within ten days after sentence is pronounced “[and] [f]or good cause shown, the trial court may permit the giving of notice of appeal after the expiration of such ten days.”

The appeal is dismissed.

OPINION ON APPELLANT’S MOTION TO RE-INSTATE APPEAL

BELCHER, Judge.

The record having been perfected, the motion to re-instate the appeal is granted.

The sufficiency of the evidence is challenged.

While testifying, Officer Chacon identified the appellant as the person he saw driving an automobile on the wrong side ot a public street; that upon stopping the appellant he smelled a very strong odor of alcohol about him; that the appellant had soiled his trousers and he had a strong odor of alcohol, urine, and defecation on and about him; that the appellant had difficulty standing, fell one time, and he and. Officer Beare held him up while going from his car to the police car. Officer Chacon expressed the opinion that the appellant was very intoxicated.

On cross-examination, Officer Chacon testified that no blood or urine tests were made and that the appellant could have been sick at the time in question.

Officer Beare testified and his testimony was substantially the same as that of Officer Chacon.

Testifying in his own behalf, the appellant admitted driving his automobile but denied that he was intoxicated. He further testified that he drank a small glass of wine after leaving his place of employment at 5 p. m.; that the wine made him sick, and he went to sleep in his car, awoke about midnight, and while driving home the officers stopped him.

The court, trying the case without a jury, resolved the issue of intoxication against the appellant, and we find the evidence sufficient to support the conviction.

The appellant urges error on the ground that there is a fatal variance between the surname De La Paz in the complaint and De La Pza in the information.

This ground of error was first urged by the appellant when he moved the court to find him not guilty at the close of the state’s case in chief.

After considering the motion and the argument thereon, the court directed that the surname of the appellant in the information be changed to conform to that in the complaint.

While testifying in his own behalf on the main trial, the appellant stated that his name was Jose De La Paz. Thus, it appears that the surname in the information was a clerical error. In the absence of any showing of injury, the surname as first alleged in the information and its change to conform to that in the complaint does not warrant a reversal. Art. 21.19, V.A.C.C.P.

The judgment is affirmed.


author: MORRISON, Judge.

text:
    Charles Donald MURPHY, Appellant, v. The STATE of Texas, Appellee.
    No. 40927.
    Court of Criminal Appeals of Texas.
    Jan. 31, 1968.
    Rehearing Denied March 6, 1968.

      Phillip P. Mabry, E. Tynes, Jr., Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough and R. W. Hope, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is theft with two prior convictions alleged for enhancement; the punishment, life imprisonment.

Appellant’s first ground of error is that there was a variance between the name of the injured party alleged in the indictment and that proven. The indictment alleged Bill Upchurch as being the injured party. In response to the question, “For purposes of the record will you tell us your name and occupation?”, the witness answered, “Bill Upchurch, self-employed, Humble Service Station (which was later identified as the service station in question.)” Later, on cross-examination, the same witness testified as follows:

“Q. (By counsel for appellant): What is your correct name?

A. Willie Nelson Upchurch. I go by Billy Nelson Upchurch.”

It is appellant’s position that the witness’ above quoted testimony on cross-examination constituted a material variance from the indictment. We do not agree.

In Lunsford v. State, 80 Tex.Cr.R. 413, 190 S.W. 157, this Court said that where the injured party was “known and called” as alleged in the pleadings, it was immaterial what his true name was. See also Jackson v. State, 155 Tex.Cr.R. 266, 234 S.W.2d 428.

Appellant’s second ground of error is that he was not furnished an examining trial prior to the return of the indictment in accordance with Article 16.01, Vernon’s Ann.C.C.P. Ash v. State, Tex.Cr.App., 420 S.W.2d 703, and Trussell v. State, Tex.Cr.App., 414 S.W.2d 466, are authority for the rule that the failure to grant an examining trial prior to the return of an indictment does not affect the validity of the indict-_ment.

Appellant next contends that the judge who presided at his trial was disqualified because he had been district attorney at the time one of his prior convictions alleged for enhancement was secured. This question was raised for the first time on motion for new trial. Had it been called to the court’s attention prior to trial, we express the view that the judge should and would have re-cused himself.

The rule is that “when a judge has actively participated in any prior conviction alleged for enhancement while he was the prosecuting attorney for the State, such fact renders him disqualified to sit in the case.” Pennington v. State, 169 Tex.Cr.R. 183, 332 S.W.2d 569. An exception to this rule is that where the judge has not actively participated in the defendant’s prior conviction, he is not disqualified from sitting merely because of his former position, without proof of his actively taking part in the conviction. Ex parte Hopkins, Tex.Cr.App., 399 S.W.2d 551; Muro v. State, Tex.Cr.App., 387 S.W.2d 674; Garrett v. State, 155 Tex.Cr.R. 214, 233 S.W.2d 498; Koll v. State, 157 S.W.2d 377, 143 Tex.Cr.R. 104; and Goodspeed v. Beto, 341 F.2d 908, cert. den. 386 U.S. 926, 87 S.Ct. 867, 17 L.Ed.2d 798, reh. den. 386 U.S. 969, 87 S.Ct. 1032, 18 L.Ed.2d 126.

The testimony of the judge on examination by appellant’s counsel shows that he did not recall engaging in appellant’s prior conviction in any way. There is an absence of any allegation or proof showing that the trial judge had participated in any way in the preparation, investigation or prosecution of the case alleged for enhancement. Appellant’s ground of error is overruled.

As his fourth ground of error, appellant attacks as void one of the convictions alleged for enhancement because the judgment and sentence included the word “unlawfully” while the indictment charging a violation of Article 725b, Vernon’s Ann. P.C., contained no such allegation. There can be no merit in this contention since Sec. 14 of Article 725b, supra, makes all narcotic drugs contraband, and Subsection (12) of Sec. 1 of said Article denounces morphine as being included in the term “opium”, which is defined as a narcotic drug under Subsection (14). Webster’s Third New International Dictionary (1961) defines dilaudid as derived from morphine, which is itself defined as a narcotic under Sec. 1, Subsection (12), supra.

Appellant’s last contention is that the court erred in admitting at the hearing on punishment evidence of a prior conviction which had not been alleged in the indictment. It is not necessary that a prior conviction, which is used merely to show the accused’s reputation at the hearing on punishment in a bifurcated trial, be alleged in the indictment. Mullins v. State, Tex.Cr.App., 409 S.W.2d 869. Article 37.07, Section 2(b), V.A.C.C.P. (now Article 37.07, Sec. 3(a), V.A.C.C.P.). Appellant’s final ground of error is overruled.

Finding no reversible error, the judgment is affirmed.


author: WOODLEY, Presiding Judge.

text:
    William Bond CLIFFORD, Appellant, v. The STATE of Texas, Appellee.
    No. 40887.
    Court of Criminal Appeals of Texas.
    Jan. 10, 1968.
    Rehearing Denied March 6, 1968.

      Warren Burnett, Odessa (on appeal), for appellant.
    William Hunter, Dalhart, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

The offense is assault with intent to murder with malice; the punishment, 12 years.

The indictment alleged that appellant committed the assault in Deaf Smith County on or about April 8, 1966, by shooting Billy Joe Stevens with a gun.

The record shows without dispute that after shooting and killing his wife, at Canyon in Randall County, appellant drove to Hereford, in Deaf Smith County, and to Hereford Feed Mill where Billy Joe Stevens was employed and shot him at close range with a .22 caliber pistol loaded with hollow point bullets. Five shots struck Stevens in the head, one of which caused the loss of an eye. A sixth shot struck Stevens above the heart.

The evidence further reflects that appellant’s wife had left him and had sued for divorce and he was under a restraining order “to leave her alone and not to hurt her in any way.” Appellant testified that he had known since December 20, 1965, about Billy Joe Stevens having an affair with his wife. (The shooting occurred on April 8, 1966.)

The record further reflects that appellant had been indicted in Randall County for the murder of his wife; that the venue was changed to Denton County and that he had been tried and convicted. In the absence of the jury it was shown that a Den-ton County Jury had assessed his punishment at 2 years. (The sentence from which this appeal is prosecuted was cumulated with said 2 year sentence.)

Appellant testified to the effect that he did not remember anything that transpired concerning the shooting of his wife but realized that he had done something to hurt her, and testified:

“Q. What, if anything, did you do next?
“A. Well, I got in my car and I knew— I had that gun in my hand and I knew here was this guy chasing me and I knew very well I had done something to my wife and all I could think about was getting this man that had broken up my home, ruined my life, my children’s lives and all this — and I went to Hereford.
⅜ ⅜ ⅜ ⅜ ⅜ ⅜
“Q. Did you see Billy Joe Stevens at the Hereford Feed Yard?
“A. Yes, I did.
“Q. Did you say anything to him ?
“A. I don’t remember saying a word to Billy Joe Stevens.
“Q. All right. What, if anything, happened next?
“A. Well, I guess I shot him out there at the Feed Yards and then I went and I give this pistol to this girl in this front office and asked her to call the sheriff.
“Q. All right. Did you have any conversation there with her?
“A. Yes, I had a conversation with this young lady.
“Q. What, if anything, was said?
“A. Oh, she said — asked me if I was kidding, I said, ‘No,’ that I was serious and she asked me why I would kill Bill Stevens and I said the man had torn up my home, ruined my life, my kids’ life, I even went on to tell her that if she was married that she didn’t have any idea what she could get into by running around with other men.”

We find no merit in appellant’s ground of error No. 2 which complains of the refusal of his requested charge on aggravated assault.

Appellant’s first and principal ground of error is: “The trial court reversibly erred when it failed to sustain appellant’s motion to change venue.”

Appellant’s brief points out that the trial which gave rise to this appeal began on February 6, 1967, in Deaf Smith County where the offense was alleged to have occurred on April 8, 1966, and evidence was taken relevant to his motion to change venue on October 1, 1966.

Numerous news articles were introduced, the first of which described appellant as “the son of a prominent Amarillo real estate agent,” and another referred to Billy Joe Stevens as “the nephew of a former Randall County Judge.”

The newspaper, television and radio coverage included stories of the murder in Randall County and the shooting in Deaf Smith County on April 8, 1966; the denial of bail and the change of venue and the trial and result of the trial in Denton County.

The motion for change of venue was not finally overruled until some 4 months after the hearing of evidence when the voir dire examination of the jury panel was complete and a list of 36 jurors had been furnished for the exercise of peremptory challenges.

None of the jurors whose names appeared on such list had an opinion as to the guilt or innocence of appellant, and none had been challenged for cause or objected to by the defense.

The record does not reflect that either the state or the defense exhausted their peremptory challenges or that appellant was required to accept any juror that was objectionable to him.

Under the test applied by this court in the recent cases of Cotten v. State, Tex.Cr.App., 406 S.W.2d 452, and Taylor v. State, Tex.Cr.App., 420 S.W.2d 601, the ground of error is without merit. See also Jones v. State, 156 Tex.Cr.R. 248, 240 S.W.2d 771; McCarley v. State, 161 Tex.Cr.R. 263, 276 S.W.2d 300; Philpot v. State, 169 Tex.Cr.R. 91, 332 S.W.2d 323; Moon v. State, 169 Tex.Cr.R. 14, 331 S.W.2d 312.

Appellant cites and relies upon Pamplin v. Mason, 364 F.2d 1, wherein the 5th Circuit Court of Appeals said:

“In this case, therefore, we apply the Irvin holding with the gloss of Rideau, Estes, and Sheppard. The test is no longer whether prejudice found its way into the jury box at the trial, as the Texas court stated in the petitioner’s appeal. Mason v. State, Tex.Crim.App.1964, 375 S.W.2d 916. As we read the Supreme Court cases, the test is: Where outside influences affecting the community’s climate of opinion as to a defendant are inherently suspect, the resulting probability of unfairness requires suitable procedural safeguards, such as a change of venue, to assure a fair and impartial trial. As the Supreme Court stated in Sheppard v. Maxwell [384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600]:
“ ‘Due process requires that the accused receive a trial by an impartial jury free from outside influences. Given the pervasiveness of modern communications and the difficulty of effacing prejudicial publicity from the minds of the jurors, the trial courts must take strong measures to ensure that the balance is never weighed against the accused.
* * * [Wjhere there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial, the judge should continue the case until the threat abates, or transfer it to another county not so permeated with publicity. * * * If publicity during the proceeding threatens the fairness of the trial, a new trial should be ordered.’
384 U.S. at 362, 86 S.Ct. at 1522, 16 L. Ed.2d at 620.”

The argument advanced is that significant advantage fell to the prosecution when it was permitted to try appellant in a county where “curiosity” about the light sentence in Denton County was widespread.

We note, in this connection, that upon return of the finding of guilty appellant elected to have the same jury fix the punishment. (Art. 37.07, 2b, Vernon’s Ann. C.C.P.1965).

We also note that the jury was not selected until some 4 months after the hearing on the motion for change of venue, 5 months after the trial in Denton County, and some 10 months after the killing and assault.

In Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751, cited by appellant, Justice Clark delivering the opinion of the court setting out guidelines to be used in determining whether a change of venue should be granted stated:

“It is not required, however, that the jurors be totally ignorant of the facts and issues involved. In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case. This is particularly true in criminal cases. To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court. (Cases cited.)”

In Beck v. Washington, 369 U.S. 541, 82 S.Ct. 955, 8 L.Ed.2d 98, the court said:

“The fact that petitioner did not challenge for cause any of the jurors so selected is strong evidence that he was convinced the jurors were not biased and had not formed any opinions as to his guilt. * * *
“While this Court stands ready to correct violations of constitutional rights, it also holds that ‘it is not asking too much that the burden of showing essential unfairness be sustained by him who claims such injustice and seeks to have the result set aside, and that it be sustained not as a matter of speculation but as a demonstrable reality.’ U. S. ex rel. Darcy v. Handy, 351 U.S. 454, 462, 76 S.Ct. 965, 970, 100 L.Ed. 1331, 1338 (1956).”
“ * * * Of course there could be no constitutional infirmity in these rulings if petitioner actually received a trial by an impartial jury.”

Under the record we are unable to agree with appellant’s contention that he did not receive a trial by an impartial jury free from outside influences or that the holding of the 5th Circuit Court of Appeals in Pamplin v. Mason, supra, requires that the conviction be reversed.

The judgment is affirmed.