text:
    Antonio ALMARAZ, Appellant, v. The STATE of Texas, Appellee.
    No. 36459.
    Court of Criminal Appeals of Texas.
    March 4, 1964.
    Rehearing Denied April 22, 1964.
    Werner A. Gohmert, John G. Gonzalez, Alice, for appellant.
    Sam H. Burris, Dist. Atty., J. L. Campos, Asst. Dist. Atty., Alice, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is murder; the punishment, 20 years.

Appellant and Maria were both divorced and began to live together. With them was Maria’s young daughter by her previous marriage, and her father and stepmother lived with them for a while. After a year or so of such cohabitation, appellant went to his family and Maria to her relatives. According to Maria, prior to their separation appellant threatened to kill any man she might marry if she ever left him.

Some few months later Maria met deceased, and within a week they decided to get married, though no marriage ever took place.

According to appellant, the deceased told him some two weeks before the homicide that he knew about him and Maria, and that if he (appellant) ever got in his way, he (deceased) “was going to kill himself a Mexican.”

This brings us to the fatal evening. Deceased and Maria were seated in deceased’s pick-up in front of a drive-in drinking beer when appellant drove up and entered the establishment. A short time later, he came out and went to his automobile and then pointed a .22 rifle at deceased and challenged him to a fist fight. Deceased accepted the challenge, got out of his pick-up unarmed, and told appellant to put up his rifle. This appellant did and took off his shirt. From this point forward, Maria’s and appellant’s testimony differ. She stated that after putting his shirt in his automobile, appellant again took out his rifle and shot deceased, who was unarmed. She stated that deceased said, “The fool, he shot me. * * * Hand me the rifle.” She further testified that she attempted to hand deceased the rifle, which was on the floor of his pick-up, but the rifle fell- to the ground where the men fought until she was able to pick up one of the rifles and ■subdue appellant by hitting him on the head. She then fled the scene in appellant’s automobile, taking both rifles.

Appellant testified that as he was putting "his shirt in his automobile, he saw deceased holding a rifle and trying to load it or cock it, and that he shot the deceased in self defense.

Deceased died some 36 hours later as the result of one .22 caliber bullet wound in his abdomen. Officers recovered both weapons from Maria at her uncle’s house.

The first question is the competency of Maria to testify. The court first heard testimony in the absence of the jury on the question of whether a marriage between appellant and Maria was shown as a matter of law. He concluded that such was not established, permitted the jury to hear evidence on the question, and then instructed them in his charge that if they found that a common law marriage had existed between appellant and Maria and that they had not been divorced, Maria’s testimony could not be considered for any purpose. He further told them that for a valid common law marriage to exist there must be (1) an agreement to become husband and wife, (2) a living together pursuant to such agreement, and (3) a holding out of each other to the public as husband and wife.

Maria was emphatic in her statement that there was no agreement and no holding out. One of their landlords testified that she paid the rent by check made out in her maiden name. Appellant was unable to produce any witness who would testify that appellant had ever introduced Maria as his wife or that she had introduced him as her husband, or that she had .ever used his name as her own. We have concluded that the jury were authorized from this record to conclude that no common law marriage was shown, and therefore, Maria’s testimony was available for the prosecution.

Appellant leveled six objections to the court’s definition of malice aforethought in the charge. He recognizes that this Court has consistently through the years and as recently as Glenn v. State, 172 Tex.Cr.R. 513, 360 S.W.2d 146, approved the charge as given, but urges that we reconsider our prior holdings. Though there may be conceivable academic merit in appellant’s claim, we would not be justified in overruling the prior holdings of this Court unless they were patently wrong. We have been unable to bring ourselves to the conclusion that an accused is in any wise injured by this charge which has withstood objection thereto through the years.

Appellant next complains of the forms of verdict furnished the jury. They were as follows:

“ * * * not guilty * * *
“ * * * guilty of murder with malice aforethought * * *
“ * * * guilty of murder without malice * *

He contends that the omission of the word “aforethought” following the word “malice” in form number 3 deprived the jury of the opportunity of finding appellant guilty of murder without malice aforethought. The court’s charge and the forms of verdict furnished the jury follow the applicable statutes. Article 1256, 1257b and 1257c Vernon’s Ann.P.C.

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


source: Caselaw Access Project

author: WOODLEY, Presiding Judge.

license: Public Domain

text:
    Donnie MAULDIN, Appellant, v. The STATE of Texas, Appellee.
    No. 36792.
    Court of Criminal Appeals of Texas.
    April 8, 1964.
    Ray Sanderson, Abernathy, Billy Hall, Littlefield, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is burglary; the punishment, enhanced by two prior convictions for burglary, life.

The indictment alleged that the appellant unlawfully by force broke and entered a building occupied and controlled by Don Taylor with intent to commit theft.

The court, in his charge, required the jury, in order to convict, to believe from the evidence beyond a reasonable doubt that the appellant, by force and breaking, in the night, did break and enter the house of Don Taylor without his consent and with the intent to commit theft.

The evidence is deemed sufficient to show that the appellant removed three cases of coffee from the storeroom of the grocery store of Don Taylor, through the back door, which he loaded in his father’s automobile and took away. Two cases were returned to Mr. Taylor by the father and brother of the appellant and, after he had been arrested and released on bond, the appellant had a conversation with Mr. Taylor who testified :

“Well, he just admitted that he did it; that he didn’t know why he did it; that he come over to the store that night, I believe he said, to buy cigarettes or some candy, one, but he never did come in. And why he took it he didn’t know, but that he just took it. He didn’t need it and didn’t have no excuse for taking it; he just took it.”

The store was open for business when the coffee was taken. The doorway between the store proper and the room where the coffee was stored was open. The storeroom door opening to the outside, according to Mr. Taylor’s testimony, was not used for entry and exit by customers and was kept closed. A witness for the defense testified that she was a longtime customer and had frequently entered the store through the storeroom door.

It was the theory of the state that the appellant entered the storeroom through the closed outside door by force.

The appellant offered Wick Robertson, a fourth grade school boy, as a witness in support of his contention that there was no breaking and forceful entry, and that the door was open.

The court, having examined the tendered witness in the absence of the appellant and his counsel, as well as having heard and participated in his examination which is shown in the record, concluded: “ * * * he does not fully realize and understand the nature of an oath and that he does not fully realize or recall all matters pertaining to the transaction before this court,” and declined to permit the witness to be called to testify.

The examination of the witness shown by the record does not support the court’s ruling. The appellant was not afforded an opportunity to hear or know or learn, so as to present to this Court, any fact or conversation that occurred when only the witness and the trial judge were present.

The voir dire examination of the tendered witness shown in the record includes the following:

“Q. What is your name, please? A. Wick Robertson.
“Q. Wick, where do you live? A. In Floydada, Texas.
“Q. How long have you lived in Floy-dada? A. Three or four years.
“Q. Three or four years? A. Uh-huh.
“Q. Do you go to school in Floy-dada? A. Yes, sir.
“Q. How long have you gone to school in Floydada?
“A. About three — no, two.
“Q. Two years? A. Uh-huh.
“Q. What grade are you in now? A. Fourth.
“Q. Wick, do you know the difference between right and wrong ? A. Yes, sir.
“Q. Are you aware that you should tell the truth if you are called to testify in this case ?
“A. Yes, sir.
“Q. Do you know the difference between the truth and a lie?
“A. (Witness nods his head affirmatively) .
“Q. Do you know what happens to people when they don’t tell the truth in a situation like this ?
“A. (Witness nods his head negatively).
“Q. You know whether or not people are punished if they don’t tell the truth? A. No, sir.
“Q. Would you feel that you would be obligated to tell the truth? A. Yes, sir.
“Q. Would you answer all questions truthfully that either I or Mr. Gaston here asked you? A. Yes, sir.
“Q. Would you tell the court or the jury, if the jury was present, any lie? A. No, sir.
“Q. Do you believe in telling lies? A. No, sir.
“Q. Would you lie about the circumstances of this case in any way? A. No. sir.
“Q. Do you know whether or not you would be punished if you did not tell the truth? A. Yes, sir.
"‘Q. Would you or would you not be punished if you did not tell the truth? A. I would.
S}C ^ * * * *
“THE COURT: Do you know what you are called upon here to testify about in this case? A. Yes, sir.
“THE COURT: What is that? A. That the door was open.
“THE COURT: And you understand that is what you are called up here for? A. Yes, sir.
“THE COURT: Who told you that? A. Nobody.
“THE COURT: Who? A. Nobody.
“THE COURT: No one told you that? A. Huh-uh.
“THE COURT: How would you know that?
“A. That the door was open?
“THE COURT: No. How would you know that you were called up here to testify to that ?
“A. They told me that I was.
“THE COURT: Who did?
“A. Mother.”

From the record before us we must conclude that the trial judge abused his discretion in holding the tendered witness Wick Robertson incompetent to testify. Gonzales v. State, 113 Tex.Cr.R. 439, 22 S.W.2d 674.

We express no opinion upon the question of the sufficiency of the evidence.

The rule regarding the offense of burglary of a place of business during business hours, and the proof required, is set out in Trevino v. State, 158 Tex.Cr.R. 252, 254 S.W.2d 788, and cases there cited.

The judgment is reversed and the cause remanded.


author: BELCHER, Commissioner.

text:
    Robert Leo DUGAN, Appellant, v. The STATE of Texas, Appellee.
    No. 36666.
    Court of Criminal Appeals of Texas.
    March 25, 1964.
    Rehearing Denied April 22, 1964.

      Randall C. Jackson, of Jackson & Jack■■son, Abilene, for appellant,
    Leon B. Douglas, State’s Atty., Austin, 'for the State.
   BELCHER, Commissioner.

The offense is driving while intoxicated; the punishment, thirty days in jail and a fine of $1,000.

The testimony of the state reveals that the appellant was driving a pickup upon a public highway at the time and place alleged, and after failing to observe a stop sign, the appellant upon a signal from the officers stopped his pickup.

The officers testified that after he stopped they observed his actions and conduct, and that he had the odor of intoxicants on his breath, and each expressed the opinion that he was intoxicated. They further testified that appellant gave his oral consent to the removal of a blood specimen for a test of its alcoholic content.

Chemist Merritt testified that an analysis of the blood specimen revealed that it had an alcoholic content of 0.29 per cent, which is indicative of intoxication.

The appellant did not testify or offer any evidence.

Appellant insists that the trial court erred 'in admitting evidence of a blood test, and in refusing his motion to strike such evidence, on the ground that his written consent was for a urine test instead of a blood test.

The testimony reveals that the appellant gave his oral consent to the taking of a blood specimen, that he was taken to a hospital where a physician removed a specimen of his blood and placed it in a container. The written consent of a person under arrest is not necessary for the taking of a specimen of his blood. Mora v. State, 159 Tex.Cr.R. 321, 263 S.W.2d 787; Owen v. State, Tex.Cr.App., 347 S.W.2d 264.

The evidence further shows that the appellant gave his written consent to the taking of a urine test. The fact that he gave his written consent to take a urine test is not inconsistent with and does not preclude the state from also having or obtaining his oral consent for a blood test.

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

Opinion approved by the Court.


author: MORRISON, Judge.

text:
    John Edgar WESTMORELAND, Appellant, v. The STATE of Texas, Appellee (two cases).
    Nos. 36653, 36654.
    Court of Criminal Appeals of Texas.
    April 8, 1964.

      Ney Wade, Dallas, for appellant.
    Henry Wade, Dist. Atty., C. M. Turling-ton, Asst. Dist. Atty., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

Our prior opinion is withdrawn and the following substituted in lieu thereof. The conviction is for the felony offense of driving while intoxicated; the punishment, confinement in jail for 270 days.

The record contains no statement of facts or bills of exception.

The sentence orders the appellant’s confinement in jail for an indeterminate term of not less than 10 days nor more than 270 days.

Article 775 V.A.C.C.P., which provides for an indeterminate sentence, does not apply to jail terms. It applies only where the punishment is confinement in the' penitentiary for more than the minimum term.

The sentence is reformed so as to provide that the defendant be imprisoned in jail for 270 days.

As reformed, the judgment is affirmed, and appellant’s motion for rehearing is overruled.


text:
    H. M. SHELTON, Appellant, v. The STATE of Texas, Appellee.
    No. 36847.
    Court of Criminal Appeals of Texas.
    April 8, 1964.

      Foster, Lewis, Langley & Onion, by James C. Onion (On Appeal Only), San Antonio, Forrestt A. Bennett, San Antonio, for appellant.
    i Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is the unlawful practice of medicine; the punishment, 15 days in jail and a fine of $500.00.

The information, omitting the formal portions reads as follows:

“H. M. Shelton, a resident of and maintaining an office in Bexar County, Texas, did then and there in the County aforesaid, unlawfully practice medicine by publicly professing to be a physician and surgeon in offering to treat John T. Richter, a human being, for a disorder and disease, mental and physical and to effect a cure thereof when and while the said H. M. Shelton had not then and there obtained a license and certificate from the Texas State Board of Medical Examiners and had not then and there registered said license and certificate in the office of the District Clerk of said County.”

The State relied upon the testimony of Investigator Richter of the State Board of Medical Examiners. He stated that he entered a building in San Antonio (if there were any signs in front thereof or on the door, he does not mention it), saw two women dressed in white uniforms, told them his name was Johnny Kyle, and asked to see Dr. Shelton. While waiting, he looked into a room and saw an elderly lady in bed. Soon thereafter, appellant appeared, attired in a sport shirt, and answered in the affirmative when Richter inquired if he was Dr. Shelton. The two repaired to an office in which there were a number of books, and the witness told appellant that he thought he had an ulcer because he had pains in his stomach. Appellant told the witness that “he could get rid of the ulcer if I would stay in this establishment for six weeks * * * and during this time I would eat nothing, I would go on a fast, I couldn’t smoke and I couldn’t eat for six weeks.” During the course of their conversation appellant told the witness that if he “went to a medical doctor they would want to cut on me” and said, “Do you want that?”, to which the witness answered in the negative. The witness admitted that at no time did appellant represent himself to be a medical doctor, a physician or a surgeon. The witness admitted that he knew that appellant was a Doctor of Philosophy and was a licensed chiropractor. No money changed hands, nor did appellant attempt to examine the witness or prescribe for him other than is set forth above. The witness told appellant that he would have to get the money from his mother to pay for his room at the institution, and secured from appellant the following letter, which we copy in full including the printing at the top and bottom:

“DR. SHELTON’S HEALTH SCHOOL
WPIERE HEALTH IS BUILT . . . NOT BOUGHT
P. O. Box 1277 San Antonio 6, Texas
Telephone Bul verde, Tex., GEneva 8-2454
April 11, 1963
Mrs. Mary Kyle:
I have discussed your son’s gastric ulcer with him and have assured him that he can make a full recovery in five to six weeks time. This will require that he come here and undergo a fast of sufficient duration for the rest of the stomach to enable it to heal itself.
The rate for stay in the Health School is fifty dollars a week. After he re-suZmed eating, there will be a slight additional cost, a small sales tax on meals. This amount— to forty two •cents a week, but does not apply while he is fasting.
My suggestion is that he undergo the fast at once and not permit the ulcer to become worse.
I am
Respectfully,
s/ H. M. Shelton
H. M. Shelton
Corrective Exercise — Health Instruction — Toxin Elimination Physical Culture — Rational Fasting — Body Mould-ing — Natural Diet — Sun Bathing— Rest
Not a Medical Institution. NO Medicines — Drugs — Serums Vaccines — Surgery”

We deem it unnecessary to discuss appellant’s testimony in his own behalf, other than to observe that he denied that he ever told anyone that he was an M.D., a physician, or surgeon, and claimed to be a teacher who taught people “better ways of life.” He stated that he believed the human body •could cure its own ills and that fasting was sometimes a necessary step in right living.

The appellant relies on Guy v. State, 116 Tex.Cr.R. 392, 32 S.W.2d 460, and contends that the evidence is insufficient to support the allegation that appellant publicly professed to be a physician and surgeon. In Franklin v. State, 164 Tex.Cr.R. 480, 301 S.W.2d 140, Guy v. State was cited as authority for reversing the cause on the grounds that there was no testimony in the record that appellant had publicly professed to be a physician and surgeon. We observe that in Franklin the appellant introduced in evidence a Doctor of Psychology Degree from the American Institute of Applied Psychology and quote from the able State’s brief therein as follows:

“The second count of the information charged that appellant without having first properly registered, did publicly profess to be a physician and surgeon and did then and there treat and offer to treat, etc. The writer has been un- . able to discover any evidence or testimony in the record which discloses that appellant ever publicly stated she was a physician or surgeon. The evidence reveals that appellant introduced herself as Dr. Iyonne Franklin and that she was often referred to as Dr. Franklin, and that she professed to be able to cure W. E. Fish of his mental and physical disorder for approximately $500. The writer confesses that he has been unable to find a case holding that ' such evidence is sufficient to show that appellant publicly professed to be a physician or surgeon.”

We have concluded that in the case at bar the evidence is insufficient to show that appellant publicly professed to be a physician and surgeon. The judgment is therefore reversed and the cause remanded.


author: DICE, Commissioner.

text:
    Aaron Evert JONES, Appellant, v. The STATE of Texas, Appellee.
    No. 36780.
    Court of Criminal Appeals of Texas.
    April 8, 1964.

      Charles E. Benson, Lubbock, for appellant.
    Alton R. Griffin, Dist. Atty., Roy B. Johnson and William M. Laubach, Asst. Dist. Attys., Lubbock, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is under Art. 1350, Vernon’s Ann.P.C., upon an indictment for unlawfully, and wilfully injuring public property; the punishment, enhanced under Art. 63, Vernon’s Ann.P.C., by reason of two prior convictions for felonies less than capital, life imprisonment.

Art. 1350, supra, reads in part as follows :

“(1) (b) It shall be unlawful for any person to wilfully injure or destroy, or attempt to injure or destroy, any property belonging to- the State of Texas, any county, city, town, village, school district, or any other district or political subdivision of this State or any property belonging to any department, board, commission, or agency of the State or any such county, city, town, village, district, or political subdivision, of any kind whatsoever, without the consent of the person in charge of such property.”
“(3) Whoever shall violate the provisions of Subdivision (1) hereof shall be punished as follows:
“(a) When the value of the property destroyed or the extent of the injury inflicted is of the value of Fifty ($50.00) Dollars, or over, he shall be-confined in the penitentiary not less-than two (2) nor more than twenty-(20) years.
“(b) When the value of the property destroyed or the extent of the injury inflicted is under the value of’ Fifty ($50.00) Dollars, he shall be-fined not exceeding One Thousand: ($1,000) Dollars or be confined in-the county jail for not more than one-(1) year, or be both fined and imprisoned.”

The indictment upon which appellant stands convicted, omitting the formal parts,, in charging the primary offense, alleged: that on or about the 10th day of July,. 1963, the appellant in the county and state: aforesaid did:

• “then and there unlawfully and willfully injure certain corporeal personal property, to-wit: One (1) commode,, belonging to and owned by the City of Lubbock, a Municipal Corporation: chartered under and by virtue of the-Laws of the State of Texas, injuring-said commode, causing the same to-break, said corporeal personal property being then and there of the value-of over Fifty and No/100 Dollars-($50.00), and the said Defendant did then and there willfully injure said property without the consent of J. T. Alley, the person in charge of said corporeal personal property.”

The indictment is fundamentally-defective because it does not allege that the-property was destroyed, or the extent oF injury to the property.

Prior to the amendment of Art-1350, supra, in 1951, it was the value of the-property, and not the extent of injury, which determined the punishment to be assessed. Beaufier v. State, 37 Tex.Cr.R. 50, 38 S.W. 608. Under the statute, as presently amended, the value of the property determines the punishment for destruction of the property. The punishment for injury to the property is determined by the extent of injury, whether over or under $50.

We are not unmindful of the fact that we inadvertently used the word “value” in Hamilton v. State, Tex.Cr.App., 346 S.W. 2d 123, but an examination of the record of such case reveals that the “extent” of the injury was alleged.

The indictment herein, which charged unlawful injury to the property and failed to allege the extent of injury was insufficient to charge an offense.

For such reason the judgment is reversed and the prosecution is ordered dismissed.

Opinion approved by the court.


author: FRASER, Chief Justice.

text:
    Frank H. GOSS, Appellant, v. STAR ENGRAVING COMPANY, a corporation, Appellee.

      No. 5660.
    Court of Civil Appeals of Texas. El Paso.
    Jan. 15, 1964.
    Rehearing Denied. March 4, 1964.
    Schuyler Marshall, James L. Gallagher, El Paso, Scott, Hulse, Marshall & Feuille, El Paso, of counsel, for appellant.
    Brewster & Hoy, El Paso, for appellee.
   FRASER, Chief Justice.

The appellant here is a salesman for school and college jewelry, caps and gowns, invitations, hand uniforms, year books and related items. He had worked under a written contract with appellee from 1955 to 1960. After the termination of the written contract in 1960, appellant continued to procure merchandise for his customers from appellee and its associated sideline companies. On May 3, 1963 appellee notified appellant that it considered the relationship theretofore existing at an end. Then, on May 8, 1963, appellee filed its suit in the District Court of El Paso County and asked for a temporary restraining order. On June 24, 1963, after having previously dissolved the temporary restraining order in all but one respect, the court entered the temporary injunction from which this appeal has been taken. This injunction enjoins appellant from inducing the breach of certain designated “contracts” between appellee and its customers for the life of these “contracts” pending a trial on the merits.

Appellant maintains that these “contracts” were and are unenforcible for several reasons and, because of this fact, the injunction should not have been granted and should now be dissolved. Appellant further maintains that because the so-called “contracts” could not have been the basis for any cause of action, the injunction as worded above should be dissolved. Appellant outlines a number of reasons why, in his opinion, the “contracts” were mere sales “gimicks” or purchase agreements which were not definite in their terms or mutually binding, and are vague and ambiguous.

We believe that regardless of whether these “contracts” were enforcible or not, the appellee had, by virtue of its “contracts” or written agreements, established a relationship between itself and the potential customers that constituted a definite thing of value. It will be noted here that the injunction does not attempt to restrain trade in any way by denying anyone the right to compete, nor are there any trade secrets or matters of that type involved. The injunction merely restrains appellant from inducing the breach of any existing arrangement between appellee and any of its customers during the life or term of such “contract” or agreement. We repeat — there is no question of violation of fiduciary relationship or any question involving trademarks, patents or secret customer lists involved, the appellant resting his case entirely on his position that the “contracts” being unenforcible, the injunction with the wording set forth above should not have been granted and should now be dissolved by this court. Many of the authorities cited by the appellant deal with situations where a breach of a contract is sought to be restrained or prevented, or the parties to said contracts are seeking to enforce the terms of the contract against each other, which is not our situation here. The trial court did not make any finding as to the legitimacy or enforcibility of the “contracts”, and appellee maintains that it had established a valuable right and relationship which appellant ought not be permitted to destroy. It is pointed out that these service agreements or “contracts” are the means and manner by which salesmen are permitted to deal with schools and various segments of the student bodies of the same. Wc do not believe we are called upon here to determine the validity or enforcibility of the so-called “contracts” as, in our opinion, the injunction was intended to preserve the status quo of the parties until the matter could be tried on its merits. The record shows a lawsuit pending with a substantial garnishment involved and other substantial matters to be determined.

There are many cases that hold that where a contractual relationship is involved, the trial court is clothed with wide discretion in granting temporary injunctions in order to keep and hold the matters and the parties in status quo. We believe that here appellee has satisfactorily outlined a probable right and probable wrong sufficient to justify the trial court’s action, and to negate any abuse of discretion on his part in granting the temporary injunction which, we repeat, restrains the appellant from “inducing a breach”. It is our opinion, therefore, that the trial court was within his discretionary powers in granting the injunction, especially in view of the fact that there are other matters pending in the lawsuit, and the enforcibility or legality of the “contracts” in question has not as yet been determined. Don D. Robey v. Sun Record Co. Inc., 5 Cir., 242 F.2d 684; Yarber v. Iglehart, Tex.Civ.App., 264 S.W.2d 474; Davis et al. v. Freeman et al., Tex.Civ.App., 347 S.W.2d 650; Richardson v. Terry et al., Tex.Civ.App., 212 S.W. 523.

It will be noted in many of the above cases that the court points up the necessity of maintaining the status quo between the parties, even though it is alleged that the contracts involved are not enforcible. In the case before us it is clear, from the record, that these arrangements or “contracts” had a great potential value to ap-pellee, and it is estimated by appellee that in ninety per cent of the cases they were carried out. This causes us to believe that the court was correct in enjoining appellant from trying to induce the parties to breach their written agreements with appellee.

Appellant’s point of error is accordingly overruled, and the action of the trial court is affirmed.

ON MOTION FOR REHEARING

We feel it proper to file a written opinion answering appellant’s motion for rehearing. On his appeal from the trial court the appellant stated his sole point of error as follows:

“THE TRIAL COURT ERRED IN ENJOINING APPELLANT FROM INDUCING THE BREACH OF CERTAIN DESIGNATED ‘CONTRACTS’ FOR THE REASON THAT SUCH ‘PURCHASE AGREEMENTS’ OR ‘TERM AGREEMENTS’ ARE NOT REALLY COMPLETE, BINDING OR ENFORCI-BLE ‘CONTRACTS’, AND APPEL- . LEE HAS NO CAUSE OF ACTION AGAINST APPELLANT OR ANYONE ELSE FOR INDUCING THE BREACH OF SUCH ‘CONTRACTS’ BY SOLICITING BUSINESS FROM SUCH SCHOOLS AND THEIR STUDENTS.”

On the basis of his position we feel we arc required to pass only upon the matter set forth in the above-quoted point of error. The record doe's not indicate that the trial court made any direct finding or pronouncement as to the enforcibility of these contracts.

There are cases that hold that because of the trial court’s broad power and discretion in granting temporary injunctions for the purpose of preserving the status, quo, it is only necessary for the applicant to establish the existence of a probable right and a probable injury. These cases point out that the applicant for the injunction is not required to prove or establish that he would finally prevail in the litigation about which the injunction has been issued-Coastal Bend Milk Producers Ass’n. v. Garcia, Tex.Civ.App., 368 S.W.2d 260 (n. w. h.); Transport Co. of Texas v. Robertson Transports, Inc., 152 Tex. 551, 261 S.W.2d 549 (S.Ct.) ; Texas Foundries, Inc. v. International Moulders & Foundry-Workers Union, 151 Tex. 239, 248 S.W.2d 460 (S.Ct.). The trial court in the case before us, in granting the temporary-injunction, stated as follows:

“ * * * for the reason that Plaintiff has asserted and shown a probable right and probable injury unless the status quo is preserved pending a final hearing and determination of the issues between the parties.”

We assume that the court was satisfied that the necessity and authority for the injunction existed.

Appellant, in both his brief and motion for rehearing, urges that the injunction, should be dissolved because the various contracts and agreements involving the 69' different institutions are unenforcible, and do not bind the schools or school children-On the basis of the record before us we cannot determine whether all the contracts, or documents are enforcible or unenforcible-They involve 69 schools and/or institutions-Some of the contracts or agreements are-made by school districts, such as Ysleta. and El Paso, and some by denominational', schools, for material to be paid for by-the schools themselves. These agreements,, on their face, appear to have been executed^ by persons in authority and specify prices, descriptions of the articles involved, and minimum quantities. Such contracts or documents may or may not be enforcible. There are other documents, of course, involving articles to be purchased by the school children themselves. Then there are many agreements dealing with schools in New Mexico which give every indication, upon their face, that their legality or enforcibility would come under the laws of the State of New Mexico. Lastly, this is a blanket injunction, setting forth and naming all the institutions involved.

We do not believe that the record is such, that appellant’s point of error can or should be sustained.

We believe this matter comes under the provisions and reasoning of the cases cited eárlier in this opinion, but — in any event —we would not here be justified in reversing the trial court, since we believe, as set forth in our original opinion, that appellee pleaded and adduced sufficient proof to establish the existence of a probable right ■ and probable injury which, in turn, justified the trial court in holding the matter in status quo under the broad discretion vested in him in matters of-this type, under which circumstances the case can then be tried on its merits and the enforcibility of the various documents determined.

We should also like to point out, although it has not been mentioned by either party, that it may be that some matters within these agreements can be, or need to be, clarified or explained by parol evidence, assuming the proper predicate is established. We, of course, have no right to pick this injunction apart, piece-meal, nor have we been asked to do so.

In our original opinion we stated, “It will be noted here that the injunction does not attempt to restrain trade in any way by denying anyone the right to compete * * We believe that we were wrong in stating the matter as we did, because the trial court’s order does specifically restrain Mr. Goss from persuading any of the 69 customers to buy from a company other than that of appellee. Therefore, our original opinion is amended so that on page 208, the words “by denying anyone the right to compete”, are deleted.

For the reasons hereinbefore set forth, appellant’s motion for rehearing is denied.


text:
    Newell R. HAYS, Appellant, v. FIRST STATE BANK OF DELL CITY, Texas, Appellee.
    No. 5634.
    Court of Civil Appeals of Texas. El Paso.
    March 25, 1964.
    Rehearing Denied April 8,1964.

      Peticolas, Luscombe & Stephens, El Paso, for appellant.
    Kemp, Smith, Brown, Goggin & White, James F. Garner, El Paso, for appellee.
   FRASER, Chief Justice.

The First State Bank of Dell City, Texas sued one Fred Bogardus and one Jesus P. Holguin on notes executed by them and endorsed by another defendant, Newell R. Hays. There were several notes and one other defendant, but Mr. Hays is the only one to appeal from the judgment of the lower court, which entered judgment for the plaintiff against all of the defendants, including Hays. We will not itemize or further describe the notes, as all of the suits were consolidated, one of the notes was paid, one endorsed by Mr. Hays, and only Mr. Hays appealed from the judgment.

Appellant bases his appeal on the fact that the makers of the notes which he had endorsed had signed new notes which he, the defendant, had refused to endorse. Mr. Hays takes the position that because the plaintiff bank accepted the new notes, he, the appellant, was relieved of any obligation or liability as endorser of the original notes. It is not denied that appellant refused to sign or endorse the new notes, or that the bank took the new notes and entered them on its Note Liability Ledger, with each note having a separate number. The jury found, in answer to Special Issues 21, 22 and 23, that the plaintiff bank did not accept the new notes in lieu of the original notes.

Appellant insists that the extension of a promissory note without the consent of the surety releases the surety, and cites authorities as follows: Red River Nat. Bank v. Bray, 105 Tex. 312, 148 S.W. 290; Brinker v. First Nat. Bank, Tex.Com.App., 37 S.W.2d 136.

However, in the case before us there was a provision in the note as follows:

“The makers, signers and endorsers of this note, severally agree to all extensions * * * before or after maturity without prejudice to the holder * * * ”

This provision, we think, disposes of the Red River case, supra; and in the Brinker case one of the two sureties, a Mr. Wear, had died, and the court stated that the relationship of agency perished with the death of Mr. Wear. The agency referred to is that created by the above quoted waiver. Such waiver has been held to make or create for the principal the authority to act as agent for the surety for the purpose of extending the time of payment of a note. Appellant takes the position in the case before us that the agency was terminated when Mr. Hays refused to sign or endorse the new notes.

As stated in the following cases it is a well-established principle of law that the surety is not released from his liability when, in signing the original obligation, he has agreed in advance to any extension of time subsequently granted for the payment of the original obligation. Brinker v. First Nat. Bank (supra); State Nat. Bank v. Vickery, 206 S.W. 841 (Tex.Com.App.).

The court, in the Brinker case, stated as follows:

“Therefore, because of such waiver, the various extensions did not release the parties secondarily liable so long as the waiver clause was in effect, and Turley was authorized to agree with the bank for payment of the debt on some day subsequent to that previously stipulated (National Bank of Commerce v. Kenney, 98 Tex. [293], 300, 83 S.W. 368) and thus bind Wear and Brinker by such agreement of extension (evidenced in this case by new notes signed by him alone), whether known to them or not, and to that extent he represented and acted for them — the relationship of agency was created, but, when that relationship ceased, as it did, at Wear’s death, Turley’s right to further bind them likewise ceased, and any extensions thereafter made by him were not authorized by the waiver, and, if made without the consent of Brinker and Wear’s proper representatives, operated their release. * * * ”

We have reached the conclusion that appellant’s points must be overruled and the judgment of the trial court affirmed. The appellant did sign the original notes, with the above-quoted waiver, which notes have never been marked canceled or destroyed. It has been held that where renewal notes are involved, the holder may sue either on the renewal note or on the original note. Chapman v. Crichet, 127 Tex. 590, 95 S.W.2d 360; Kern v. Smith, Tex.Civ.App., 164 S.W.2d 193. This suit was brought on the original notes. We do not find that the trial court should have declared, as a matter of law, that the new notes had extinguished the old notes, or were taken in lieu of the original notes. The record shows that Mr. Charles Thomas, President of the appellee bank, testified that new loan numbers were assigned to each of the renewal notes and that each renewal note had been entered in its customers’ Liability Ledger. However, Mr. Thomas went on to testify that the original notes sued on here were not marked “Paid”, nor were they returned to the makers; but, on the contrary, were retained in the bank files, and that in each case there was no intention on the part of the bank to discharge or cancel the original notes. The trial court apparently felt this matter constituted fact issues and therefore submitted same to the jury. The jury found, as stated above, that the new notes were not taken in lieu of the original notes.

Appellant appears to take the position that the new notes, in each case, had the effect of novation, but we do not believe the authorities sustain his position. As a matter of practicality, it is difficult to assign any reason as to why the bank here would have taken new notes and deliberately released the endorser, as it must be presumed it had some reason for asking Mr. Hays to endorse the notes in the first place, such reason probably being one of credit. It is difficult to find any consideration moving to the bank in taking the new notes without the guarantee or suretyship of Mr. Hays with the intention of releasing Mr. Hays from his obligation on the original notes. It has been held that to create a novation, the intent so to do and the agreement creating such novation must be clearly established. We do not feel that the intent to create a novation, or any agreement creating a novation was sufficiently or clearly established in this case. As a matter of fact the trial court submitted to the jury special issues inquiring as to whether or not the new notes were taken in lieu of the old notes, and the jury — as triers of the facts involved — held against the appellant, saying that the new notes were not taken in lieu of the old notes. Cooper Grocery Co. v. Strange, 18 S.W.2d 609 (Tex.Com.App.); Frost v. First State Bank & Trust Co., 276 S.W. 222 (Tex.Com.App.); Naylor v. Anderson, Tex.Civ.App., 178 S.W. 620 (n. w. h.).

For the reasons stated above, and based on the above authorities, it is our holding that the decision of the trial court was correct, based, as it was, on the findings of the jury and the express waiver herein-before quoted. We do not believe that the refusal of appellant to sign or endorse the new notes revoked the agency he created as endorser of the original notes containing the waiver above set out.

We therefore overrule all of appellant’s points of error and affirm the judgment of the trial court.


author: PHILLIPS, Justice.

text:
    COMBINED AMERICAN INSURANCE COMPANY, Appellant, v. Cooper PARKER et ux., Appellees.
    No. 11176.
    Court of Civil Appeals of Texas. Austin.
    March 25, 1964.
    Rehearing Denied April 15, 1964.
    Newman & McCollum, Brady, Brundidge, Fountain, Elliott & Churchill, Dallas, for appellant.
    Davce & Davce, Brady, for appellees.
   PHILLIPS, Justice.

This is a suit on a contract of insurance.

The facts pertinent to this decision are as follows: On April 6, 1961, Faye Parker, a nurse, hereinafter called appellee, was contacted by one Duncan McCauley who was an insurance agent for the Combined American Insurance Company. The insurance company will be referred to as appellant.

Appellee alleged that she was in the market for a hospitalization policy and that McCauley offered to sell her such a policy. That the policy would pay all doctor and hospital bills plus $100 per week for loss of time. McCauley handed appellee a sample copy of his company’s policy which appellee glanced at casually, handed it back to him, agreed to purchase a policy and paid McCauley $14 quarterly payment by check.

Appellee further testified that McCauley told her that she was insured immediately and that he would send her a policy. Appel-lee never received a policy; however, appellant cashed her check and retained the proceeds.

On July 2, 1961, appellee was stricken with a thrombosis, was confined in the hospital for some five weeks and was confined to her bed thereafter for some three weeks.

On October 2, 1961, appellee wrote appellant inquiring about her policy. In response to this letter, appellant sent another agent to see appellee who informed her that appellant had never received her application for insurance, had never issued her a policy and offered to return the $14 premium that she had paid. Appellee refused to accept the amount of the premium tendered her.

Appellee brought suit against appellant claiming to have had a contract of insurance according to the representations made to her by McCauley, that is, she was entitled under such contract to $702.25 for hospital and doctor bills, $100 for each of the five weeks she was incapacitated plus attorney’s fees.

The trial was to the court who rendered judgment for appellee for the $702.25 doctor and hospital bills, $125 based on $100 per month for 1J4 months under the terms of the sample policy. In addition, the court awarded $250 in attorney’s fees. There were no findings of fact or conclusions of law. The award of attorney’s fees has not been questioned in this Court.

We reverse the judgment of the trial court and remand the case for proceedings im accord with this opinion.

Appellant is before this Court on two' points of error. The first point is that there is no evidence that Duncan McCauley had any authority to make a verbal contract of insurance on behalf of appellant, no evidence of apparent authority, and positive evidence that McCauley had no such authority. The second point is that McCauley told appellee that he could not deliver a policy, that one would be mailed, consequently what transpired constituted an offer on the part of appellee, requiring acceptance by appellant, and if any contract arose, it could not be more than an agreement to mail the policy which McCauley had authority to deliver without submission to the company.

Appellant admitted that at the time Mc-Cauley contacted appellee, he was authorized by appellant to sell hospitalization, sick or accident insurance policies.

We hold that agent McCauley had the authority to make a contract of insurance with the appellee on the basis of the sample policy that he showed her. Appellee admitted on the stand that she could have read the sample policy if she had cared to ; however, that she did not. Agent McCauley could have no more authority from the facts presented us than a recording agent in that, according to the testimony of an officer of the company, their sickness and accident policies were preissued. That when copies, of applications were received by the company, the company could then determine whether the policy would be continued in force. As a recording agent, McCauley did not have any authority to make a contract with appellee other than the one contained in the sample policy. Wyche v. Trinity Universal Insurance Co., Tex.Civ.App., 198 S.W.2d 158. Appellee has not proved any specific authority given McCauley to make the contract alleged. No apparent authority is shown. The sample policies in Mc-Cauley’s possession excluded any such authority. McCauley’s declarations were not sufficient to establish any authority nor the scope of his authority different from that in the sample policy. Great American Casualty Company v. Eichelberger, Tex.Civ.App., 37 S.W.2d 1050, writ refused.

We further hold that when appellant received appellee’s check ih payment of the.policy it was under a duty to either issue the policy or notify the appellee within a reasonable time that it was refusing to issue the policy and return the amount of the premium. By retaining the premium paid and remaining silent until the appellee had need for the insurance (which was within the time covered by the quarterly premium payment), the appellant is estopped to deny appellee a recovery under the terms of the sample policy. She was led to believe, to her detriment, that she was insured. Commonwealth Casualty Co. v. Coogle, Tex.Civ.App., 31 S.W.2d 362; Perez v. Ft. Worth Mutual Benefit Ass’n., Tex.Civ.App., 291 S.W. 574; 32 A.L.R.2d Sec. 13 at page 508.

We hold that appellee’s recovery is limited to the terms contained in the sample policy shown her by appellant’s agent. That on a •retrial the only facts to be ascertained are those hereinafter set out. Rule 434, Texas Rules of Civil Procedure.

We remand this case to the trial court to determine the length of time appellee was confined to the hospital and the length of time appellee was confined outside the hospital. As we read the sample policy, Section A provides $100 per month for confinement while regularly attended and treated by a physician. Section D of the sample policy •triples the amount payable under Section A while insured is confined to a hospital. Ap-pellee is also entitled to recover reasonable attorney’s fees.

The judgment of the trial court is reversed 'and remanded for trial in accordance with this opinion.

Reversed and remanded.


author: MOORE, Justice.

text:
    CITY OF IRVING, Appellant, v. DALLAS COUNTY FLOOD CONTROL DISTRICT et al., Appellees.
    No. 26.
    Court of Civil Appeals of Texas. Tyler.
    March 19, 1964.
    Rehearing Denied April 9, 1964.

      C. J. Taylor, Jr., City Atty., City of Irving, Irving, for appellant.
    Henry Kucera, City Atty., City of Dallas, Scurry, Scurry & Hodges, Henry Wade, Dist. Atty., Dallas County, Dallas, for ap-pellees.
   MOORE, Justice.

This is an appeal from an order of the trial court granting a temporary injunction, enjoining the appellant, City of Irving, from passing on a final reading of its annexation ordinances 833 and 834, attempting to annex a portion of City and County of Dallas Levee Improvement District and Dallas County Levee Improvement District No. 5. The suit was filed by Dallas County Flood Control District, joined by Dallas County Levee Improvement District No. 5 and also by City and County of Dallas Levee Improvement District. The City of Dallas, as well as the State of Texas, both intervened in the suit, joining plaintiffs in their application for injunctive relief against appellant, City of Irving.

The trial court granted appellees a temporary restraining order and after a hearing, the court granted a temporary injunction against the appellant, City of Irving, enjoining the city from passing the annexation ordinances, above referred to, on the ground that Article 974e-8, Vernon’s Ann. Tex.St., prohibits a city of less than 425,000 population from annexing any territory within a levee district in this state. The City of Irving excepted to this portion of the judgment and has perfected this appeal.

Appellees, plaintiffs in the court below, in addition to their contention that the City of Irving was ineligible under Art. 974e-8 to annex the terrritory, also contend that the ordinances were invalid because they include an area of the levee district which was within the city limits of the City of Dallas and further that the ordinances were invalid in that the field notes thereon describing the area to be annexed were so indefinite, uncertain, and ambiguous as to be void. Appellees sought to further enjoin the city from passing said ordinances as written or amending same before a final reading. The trial court refused to grant this portion of the requested injunctive relief and appellees have likewise perfected their appeal to that portion of the judgment.

A brief history of the background and developments in the area covered by the levee districts in question will be helpful in analyzing the problem.

The two levee districts, named above, were originally created prior to 1926 by Constitutional Amendment followed by special enabling statutes by the Legislature. The purpose of their creation was to protect the property along the Trinity River which flowed through the city limits of the City of Dallas. The two districts sold bonds and cleared the land for the floodway, built levees on each side of the river and set up pump stations to accomplish their purpose in flood control. During the 1930s the districts fell into financial distress and in order to protect its property and citizens, the City of Dallas for a number of years lent financial assistance to the two districts in meeting their operating expenses. In 1945 the Legislature created the Dallas County Flood Control District, which encompassed both of the above-named levee districts. The purpose of this action was to attempt to place the whole system of levees and flood control under one operating management and to attempt to place the same on a sound financial basis. Thereafter, the U. S. Corps of Engineers instituted a program in cooperation with the Flood Control District and the City of Dallas to improve the system at a cost of approximately ten million dollars. The City of Dallas contributed approximately three hundred thousand dollars to this undertaking. According to the record, the entire project has always been in financial trouble and under the existing tax structure will in all probability continue to have trouble in meeting the operating expense amounting to approximately $250,000.00 per annum. The City of Dallas is vitally interested in the proper up-lceep, maintenance and control of the two districts due to the fact that the levees on the east and west side of the river, together with the pump stations and other equipment, protect property lying within the City of Dallas from the overflow of the river. The property sought to be protected includes the Dallas County Courthouse as well as a large portion of the commercial district of the city with a valuation in excess of one billion dollars. The levee system was not shown to be instrumental in protecting the City of Irving. It is without dispute that the population of the City of Irving is less than 425,000, same being approximately 60,000.

The area sought to be annexed to the City of Irving is a long strip of land approximately one-half mile in width and six miles in length, extending from the east city limits line of the City of Irving down the diversion channel of the Trinity River and lying between the east and west levees thereof to a point at or near the Commerce Street viaduct in Dallas. The area covers approximately 4,000 acres. It has been cleared for the floodway and contains no improvements except for five pump stations used in connection with the project. The area is subject to overflow, and it cannot be used for any purpose other than a flood-way.

This controversy will necessarily involve the construction to be given Chapter 326, p. 561, of the Acts of 52nd Legislature, 1951, and codified as Art. 974e-8.

The preamble and other pertinent portions of the Act are as follows:

“An Act prescribing the powers, duties and obligations of cities including Home Rule cities and those operating under General Laws or special charters having a population in excess of four hundred twenty-five thousand (425,-000) inhabitants with reference to properties of levee improvement districts which have heretofore been annexed or which may hereafter be annexed by such cities; providing a savings clause; and declaring an emergency.”
“Section 1. Any city, including Home Rule cities and those operating under General Laws or special charters, having a population in excess of four hundred twenty-five thousand (425,000) according to the last preceding Federal Census, which has heretofore annexed or may hereafter annex, all of the territory within a levee improvement district organized under the-laws of the State of Texas, shall takeover the properties and assets and shall, assume all debts, liabilities and obligations and perform all functions and. services of such district, and such district shall be abolished.”

The remainder of Section 1 sets out the-duties and obligations of such cities when any part or all of the district is annexed.

Section 2 contains only the savings clause, and Section 3 the emergency clause, which recites:

“The fact that there is not any law applicable to the annexation by cities of territory situated within levee improvement district * * * creates an emergency and an imperative public necessity that the Constitutional Rule requiring bills to be read on three several days in each House be suspended * * *.”

By points one and two, appellant contends that the trial court' erred in ruling ■that only a city of more than 425,000 is empowered to annex territory within a levee improvement district and thereby abused its discretion in enjoining the city from annexing the territory because Article 974e-8 does not prohibit such action, and Article 11, Section 5, Vernon’s Ann.St. of the Constitution of this State empowers Home Rule cities such as appellant to annex any territory so long as the territory sought to be annexed is (1) adjacent to the city and (2) is not within the boundaries of another municipality.

Appellant further contends that Article 974e-8 has no application to the facts in this case, because such statute is only a special statute, merely defining the powers, duties and responsibilities of cities of over 425,000 population which choose to annex levee improvement districts.

The question of legislative intent being in issue, such intention must be ascertained from the provisions of the act itself, as well as related acts and the terms of the Constitution in accordance with the established rules of construction.

In construing statutes there is no inflexible rule. The dominant rule to be observed is to give effect to the intention of the Legislature. Generally, the intent and meaning is obtained primarily from the language of the statute. In arriving at the intent and purpose of the law, it is proper to consider the history of the subject matter involved, the end to be obtained, the mischief to be remedied and the purpose to be accomplished. Magnolia Petroleum Company v. Walker, 125 Tex. 430, 83 S.W.2d 929; Calvert v. Fort Worth National Bank, 163 Tex. 405, 356 S.W.2d 918.

Another rule of statutory construction is that it is the duty of the court to examine the entire act and construe it as a whole. By "entire act” is meant the caption or preamble, the body of the act, and the emergency clause. Popham v. Patterson, 121 Tex. 615, 51 S.W.2d 680; Anderson v. Penix, 138 Tex. 596, 161 S.W.2d 455.

Also it must be presumed that the Legislature acted with full knowledge of all existing statutes, and especially those dealing with the subject matter under consideration. Hurt v. Oak Downs, Tex.Civ. App., 85 S.W.2d 294.

It must be further presumed that the Legislature acted with knowledge of all prior decisions upon the subject matter under consideration. Gabbert v. City of Brownwood, Tex., Tex.Civ.App., 176 S.W.2d 344, err. ref.

With these rules in mind, we turn now to an examination of the act from its four corners.

At the outset it will be observed that in the emergency clause the Legislature expressly declares “there is not any law applicable to the annexation by cities of territory situated within levee improvement districf’ thereby creating an emergency requiring immediate action on the part of the Legislature. (Emphasis supplied.)

The emergency clause of a statute may be considered if it tends to shed light upon the inquiry and will aid the court in ascertaining the legislative intent. Huntsville Ind. School Dist. v. McAdams, 148 Tex. 120, 221 S.W.2d 546; Texas Prison Board v. Cabeen, Tex.Civ.App., 159 S.W.2d 523.

Prior to the enactment of Article 974e-8, Home Rule cities, such as appellant, had authority both under Article 11, Section 5, of the Constitution, as well as under the enabling acts found at Article 1165, et seq., to annex additional territory "subject to such limitations as may be prescribed b3>-the Legislature” provided such act of annexation was not inconsistent with the Constitution and general laws enacted by the Legislature.

Subject to the foregoing limitation, Home Rule cities are granted a broad authorization in the exercise of their legislative power to annex additional territory so long as the territory is adjacent to the city and not within the boundaries of another municipality. State ex rel. Pan American Production Co. v. Texas City, Texas, et al., 157 Tex. 450, 303 S.W.2d 780, citing cases.

Because of the legislative pronouncement “that there is not any law applicable to the annexation by cities of territory situated within levee improvement district,” we have reviewed the provisions of Article 16, Section 59, of the Constitution titled “Conservation and development of natural resources; conservation and reclamation districts,” as well as the enabling statutes creating authority for establishing levee improvement districts as contained in Article 7972 through Article 8042, V.A.T.S. Nowhere, either in the Constitution, statutes or in any of the cases cited thereunder, have we been able to find any express authorization empowering cities to annex levee improvement districts, or contemplating that cities and levee districts may embrace the same territory. It is significant to note that the Legislature has enacted statutes contemplating that cities and water control and improvement districts, as well as water conservation districts, may embrace the same territory. City of Pelly, et al. v. Harris County Water Control and Improvement District No. 7, et al., 145 Tex. 443, 198 S.W.2d 450.

Such being the situation that existed prior to the enactment of the present statute, the question to be resolved is what was the purpose and intent of the Legislature in passing this law. In attempting to answer the question, the following conclusions and observations would seem to be pertinent to the inquiry.

In view of the history of this legislation and the pronouncement of the Legislature in the emergency clause, we have concluded that Article 974e-8 was intended as remedial legislation.

In construing remedial or curative legislation, the courts must give such statutes the most comprehensive and liberal construction possible and will not give such legislation a narrow technical construction which will defeat the very purpose for which the statute was enacted. City of Mason v. West Texas Utilities Co., 150 Tex. 18, 237 S.W.2d 273; Edwards v. Murphy, Tex.Civ.App., 256 S.W.2d 470.

In arriving at the legislative intent, it is necessary to consider all the other statutes relating to the same subject matter and apply the well known rule that where a later act of the Legislature implies a particular construction of statutes in pari materia, interpretation of the prior acts by the Legislature as contained in the latter act is persuasive when a court is called upon to interpret the law. Stanford v. Butler, 142 Tex. 692, 181 S.W.2d 269, 153 A.L.R. 1054; 39 Tex.Jur., p. 239.

“It is another established rule that all acts in pari materia are to be taken together, as if they were one law, and that if it can be gathered from a subsequent statute, in pari materia, what meaning the Legislature attached to the words of a former statute, this will amount to a legislative declaration of its meaning, and will govern the construction of the first statute.” Cannon’s Adm’r v. Vaughan, 12 Tex. 399.

We also deem it important to consider the purpose of the people in adopting the Conservation Amendment, Article XVI, Section 59, of the Constitution. This Amendment expressly declares that the conservation of the state’s natural resources, including reclamation, is a public right and duty as contrasted to a private or municipal right and duty. By the very terms of the Amendment the duty was enjoined upon the Legislature to implement the public policy by passing such laws in connection therewith as may be appropriate. Such duty belongs exclusively to the legislative branch and only the Legislature can carry out the public policy, unless such authority is properly delegated. City of Corpus Christi v. City of Pleasanton, 154 Tex. 289, 276 S.W.2d 798.

The establishment, operation and control of levee improvement districts is considered to be a function of the state and are not to be placed in the same category as water control, conservation and improvement districts. Smith v. Harris County—Houston Ship Channel Navigation District, et al., Tex.Civ.App., 330 S.W.2d 672. The Legislature does not classify them as being in the same category, else the Legislature would have provided a method whereby both a city and a levee district could embrace the same territory as has been provided in other situations as was demonstrated in the City of Pelly case cited above.

The question of whether the act under consideration is a general or a special law is thought to be pertinent. We have concluded that Article 974e-8 is a general law even though, necessarily, it applies in practical results only to a very limited number of cities in the state. It does apply, however, to all cities in the state which have a population in excess of 425,000. Hunt et al. v. Atkinson, County Judge, et al. (Tex.Com.App.), 12 S.W.2d 142.

Taking into consideration the history of this legislation, together with the Constitution, and applying the pertinent rules of construction, we have come to the conclusion that, since the Legislature has said there was no law applicable to the annexation by cities of territory within levee improvement districts, and since the Constitution declares that conservation of the state’s natural resources through the levee districts is a public right and duty, which only the Legislature can carry out, and since the Legislature in carrying out that duty has never heretofore delegated that duty to cities or granted cities the right of annexation, it was the intent and purpose of the Legislature in the enactment of Article 974e-8 to pass a general law authorizing annexation and delegating legislative authority over levee improvement districts to only those cities with a population of more than 425,000. Having thus, authorized annexation and delegated authority to perform this important state function only to the larger cities, appellant, City of Irving, was by implication excluded and is thus left without any authority to annex such districts.

If indeed cities had such power before the enactment of the present statute, the effect of the statute is to negate the passing of any such claimed right to cities of less than 425,000 population under the general law of their creation, and at the same time to affirmatively confer exclusive jurisdiction over levee improvement districts upon eligible annexing cities. City of Galena Park et al. v. City of Houston, Tex.Civ.App., 133 S.W.2d 162.

Even though it could be successfully argued that appellant, being a Home Rule city, would have had the power to. annex such territory under existing law prior to the enactment of Article 974e-8; however, after the enactment of this statute, yet another consideration would also-reach the result we have heretofore reached. That is, where two statutes cover the same subject, the one general and the other special, the more specific special statute will control, not upon any theory of implied repeal, but upon the broad rule that all' parts of the act or statutes must stand if possible, and that the intention of the Legislature is more clearly reflected by the special statute than by the general one. Both are permitted to stand, the special article or enumeration being treated as though it were a proviso excepting something from the general rule. Thus, here, the general' rule broadly covering all cities of more than 5,000 inhabitants, under the Home Rule amendment and the enabling act, permits an extension of the city’s boundary lines to cover any territory which is adjacent to the city and not within the boundaries of another municipality, but Article 974e-8, applying specially to cities having a population of 425,000 or more, places a limitation upon the general statutes so that any attempted annexation by a city of less than 425,000 is now clearly contrary to the provision of the general law as contained in Article 974e-8. By such construction both statutes are thus permitted to stand, each applying in its proper place. Hunt v. Atkinson, supra; Fortinberry v. State (Tex.Com.App.), 283 S.W. 146.

We hold, therefore, that the intent and purpose of the Legislature in the enactment of this statute was to implement the Constitution and to effect the public policy in furtherance of the state function of conservation by the way of flood control, intending to delegate such functions only to cities with a population above 425,000.

Appellant’s contention that since the act also defined the powers, duties and responsibilities of all cities that had theretofore annexed levee districts, the Legislature recognized the power of all cities to annex such districts under the general law governing Home Rule cities or that the Legislature thereby meant to confer such authority on all cities regardless of size, defining only the powers, duties and responsibilities of large cities upon annexation, is not thought to be well taken.

To construe the statute as only prescribing the duties and responsibilities of a city in excess of 425,000, as contended for by the appellant, would be to say that the Legislature intended to recognize or grant the power to annex levee districts to all cities, but intended to impose responsibilities only upon larger cities, and at the same time intended that the smaller cities were to be permitted to annex without assuming such responsibilities. We must assume that at the time of the enactment of this legislation, the Legislature knew of the history and condition of these two districts; we must also assume that the .Legislature was cognizant of the fact that the operation of levee improvement districts involved a great deal of expense in their operation and recognized the tremendous responsibility imposed upon them in carrying out this important state function. To hold that by this act, the Legislature intended only to define the powers, duties and responsibilities of large cities in the operation of levee districts, and intended that smaller cities would be permitted to annex such districts without assuming any responsibility for the operation thereof, would be to ascribe to the Legislature an intent to do an unreasonable thing, which the courts will not do if the statute is susceptible of a construction that will not accomplish such result. Trimmier v. Carlton, 116 Tex. 572, 296 S.W. 1070; Winder v. King, Tex.Com.App., 1 S.W.2d 587; Anderson v. Penix, supra.

The fact that the statute defines the powers, duties and responsibilities of cities of more than 425,000 which may have “heretofore” annexed levee improvement districts, does not alter or detract from the legislative finding that there is “no law applicable” to such annexations. On the contrary, such a provision supports the theory that any such annexation theretofore made was without lawful authority, and would therefore require validation, which it then perfected in cities of over 425,000.

Appellant cites the holding by the Supreme Court in State v. Texas City, Texas, supra, decided subsequent to the present statute, as authority for the proposition that any city of any size may now annex any territory, including levee districts, so long as the same are adjacent to the city and not included in the boundaries of any other municipality. We do not construe the holding there, nor any of the cases cited therein to be controlling in this case. The question of annexation of a levee improvement district was not before the court in that case, nor was Article 974e-8, and therefore the announcement by the court that the only limitation on a city’s power of annexation was that the territory be adjacent to the city and not within another municipality, was but a statement of the general rule and would have no application to the facts in the case now pending before us.

Being committed to the view that from and after the enactment of Article 974e-8, only cities with a population in excess of 425,000 now have any authority to annex levee improvement districts, and the population of appellant city not having been shown to be within that classification, we believe the trial court properly granted the injunction against the appellant, City of Irving, prohibiting the annexation of such territory.

Having reached this conclusion, we see no necessity in discussing appellees’ points of error.

The judgment of the trial court is affirmed.


author: HIGHTOWER, Chief Justice.

text:
    Roy D. BRITE et ux., Appellants, v. John GRAY et al., Appellees.
    No. 6576.
    Court of Civil Appeals of Texas. Beaumont.
    March 19, 1964.
    Frank M. Adams, Beaumont, for appellants.
    King, Sharfstein & Rienstra, Beaumont, for appellees.
   HIGHTOWER, Chief Justice.

This is an injunction suit that was brought as a class action by appellee John Gray, et al., as homeowners in the Lakeview Terrace Addition, a residential subdivision of the City of Beaumont, against Roy D. Brite and wife, Frances H. Brite, to enjoin them from constructing and operating an animal clinic upon certain property owned "by them within said addition. The Brites have appealed from the judgment of the trial court temporarily enjoining them from •constructing said clinic and from using their property for other than residential purposes. It is their contention that restrictions appertaining to certain of the lots in said addition have no application to their prop•erty.

The original developer-owners of the addition, prior to the sale of any of the lots therein, filed for record a map or plat of the addition along with a dedication thereof, pertinent provisions in the latter instrument being:

“Whereas [the developers] are the owners in fee simple of Lots One (1) to Ten (10) in Block One (1); Lots One (1) to Ten (10) in Block Two (2) ; and Lots One (1) to Sixteen (16) in Block Three (3), all in Lakeview Terrace Addition to the City of Beaumont * * * Whereas, in consideration of the advantages to be derived therefrom, the owners have agreed to restrict all of such property as to the nature of the buildings to be erected thereon, and the purposes for which they shall be used * * * All lots in the tract shall be known and described as residential lots, except Lot One (1) in Block One (1). * * * Lot One (1) in Block One (1) is reserved for commercial purposes * * * ”

Immediately south of Lot Ten (10) of Block Two (2) was a small strip of property. Contiguous to the southern boundary ■of this bit of property was a small lake. Although the boundaries of the addition, as evidenced by the plat of record, encompassed this small strip of property and lake, such property had not been surveyed and •designated on the plat as being either a lot or lots. A filled-in portion of the lake and the strip of property contiguous thereto is the focal point of this litigation.

The instrument of dedication contained restrictions, among others, to the effect that no noxious or offensive trade or activity shall be carried on upon any lot nor shall anything be done thereon which may be or become an annoyance or nuisance to the neighborhood; that no animal, livestock or poultry of any kind shall be raised, bred or kept on any lot except that household pets may be kept provided that they are not kept, bred or maintained for any commercial purposes.

■ Most of the lots in the addition were sold to appellees and those whom they represent. All these deeds contained the restrictions above mentioned, incorporated them therein and subjected the property conveyed thereto. At a later date the developers, having retained title to the lake proper, filled in a small portion of the same and conveyed title to the remainder of the lake proper to the property owners of the addition.

Subsequently, the developers of the addition conveyed to H. E. Austin and wife as Tract One (1) all of Lots Nine and Ten in Block Two of the addition subject to all restrictions of record. By the same instrument the developers conveyed to Austin and wife the filled-in portion of said lake together with the small strip of property contiguous thereto, this property being described in the deed as Tract Two, containing .261 acres, more or less.

Immediately following said paragraph describing Tract Two was the provision that “the conveyance of the two tracts of land hereinabove described is made subject to all reservations, restrictions, easements and covenants of record affecting the said property.”

Thereafter Austin and wife conveyed all of Lots Nine and Ten in Block Two of Tract One to appellants which, as aforesaid, had been conveyed to them by the developers. The conveyance of the Austins of said lots to appellants subjected said lots to the same restrictions as has been hereinbefore stated. However, by the same instrument, the Austins conveyed the small strip of property together with the filled-in portion of the aforesaid lake contiguous thereto to appellants, designating the same as being “Tract Two”. The conveyance of this latter property omitted any reference to the restrictions aforesaid.

It is the contention of appellees that the restrictions appertaining to the lots generally in the addition have no application to their property described as Tract Two. In this connection, they emphasize that the developers specifically restricted the restrictions to the lots and blocks hereinbe-fore enumerated.

Appellants and appellees submit that there are no decisions in this state or others directly in point, and we have found none.

It was not alleged that there existed any ambiguity in any of the instruments heretofore referred to. Therefore, said instruments should be construed so as to carry out the intent of the parties thereto. This intent is to be gathered from the instruments as a whole and not from isolated parts thereof. The acts and conduct of the parties themselves, including acts done in course of performance, indicating the construction that the parties themselves applied is to be considered. Ervay, Inc. v. Wood, Tex.Civ.App., 373 S.W.2d 380, and cases cited.

We construe the conveyance from the developers to the Austins as expressly providing that the same restrictions applicable to the property in the addition generally are also applicable to Tract Two. Were such restrictions not contained in said conveyance, perhaps it could be argued that there did exist an ambiguity as to whether or not Tract Two was burdened with any restrictions. Theoretically, it could be that the developers, by expressly singling out specific lots in the addition to which the restrictions were to apply, excluded consideration that such restrictions were applicable to any of the other property in the addition under the doctrine of “expressio unius est exclusio alterius.” However, said conveyance from the developers to the Austins clearly establishes that Tract Two was restricted. This conveyance, together with all the other instruments hereinbefore mentioned, establishes that the developers and all those deraigning title from them, with the exception of appellants, contemplated a genteel residential neighborhood adjacent to a small lake, unblemished by the construction of commercial enterprises of the nature which appellants wished to establish. The record as a whole indicates a general scheme for such a neighborhood.

Moreover, the Austins accepted title to Tract Two with the restrictions imposed thereon. These were restrictive covenants running with the land. They could convey no greater estate to appellants than that which they had received. Matthews v. Rains County, Tex.Civ.App., 206 S.W.2d 852.

We hold that appellants’ property, Tract Two (2), is burdened with the same restrictions applicable to other lots in the addition and that the trial court correctly issued the injunction.

Affirmed.


author: GREEN, Chief Justice.

text:
    John C. EDGAR, Appellant, v. SOUTHWESTERN OIL & REFINING COMPANY et al., Appellees.
    No. 17.
    Court of Civil Appeals of Texas. Corpus Christi.
    March 19, 1964.
    Rehearing Denied. April 16, 1964.

      Jesse G. Foster, Stamford, for appellant.
    Gerald D. James of Head & James, Charles L. Hale, Jr., of Boone, Davis, Cox & Hale, Corpus Christi, Carmel F. Davis of Perkins, Floyd, Davis & Oden, Alice, for appellees.
   GREEN, Chief Justice.

This appeal is from a summary judgment for the defendants in- a suit on an alleged breach of a covenant to reasonably develop for the production of oil and gas a mineral lease on a 2258 acre tract of land in Hidalgo County, Texas. Appellant is the owner of the surface of the land and a portion of the mineral and royalty estate therein, and lessor in the lease. Appellees are owners of the leasehold estate working interest, overriding royalty interests, and production payments under the lease.

Appellant filed his third amended original petition, hereinafter called the petition on July 20, 1962. On March 12, 1963, appellee Southwestern Oil & Refining Company and four other defendants filed a motion for summary judgment based on three specific grounds as follows: (1) that plaintiff’s petition was insufficient to state a cause of action against them; (2) that the land covered by the mineral lease has been adequately and reasonably developed as a matter of law; (3) that the pleadings, substantive law governing the same, and affidavits attached to the motion show that there is no genuine issue of any material fact, and that defendants are entitled to judgment as a matter of law. Attached to such motion were affidavits of two officials of appellee Southwestern, a copy of the sales agreement with Tennessee Gas Transmission Co., and a trial brief.

Thereafter, all other defendant-appellees filed similar motions, to each of which the affidavits and other exhibits attached to Southwestern’s motion were made a part by specific reference.

Plaintiff filed his answer to these motions, accompanying same with counter affidavits. The pleadings and the affidavits and other exhibits attached thereto, and the lease dated August 2, 1950, were all that was before the trial court for his consideration. He permitted no other evidence to be introduced. Upon the basis of such record, he found that there was no genuine issue as to any material fact, and that all of the defendants were entitled to judgment as a matter of law. Appellant excepted and has appealed to this Court. We reverse and remand the judgment.

The lease in question provides that after discovery of oil, gas or other mineral in paying quantities on the leased premises, “Lessee shall reasonably develop the acreage retained hereunder * * * ” All parties before this court recognize this express covenant to be the same as otherwise would have been implied by the terms of the lease. Such covenant requires a lessee, after production is discovered on the premises, to conduct further development with reasonable diligence, to the end that such operations would result in a benefit or profit for both the lessor and lessee. Clifton v. Koontz, 160 Tex. 82, 325 S.W.2d 684, 79 A.L.R.2d 774.

It appears from the petition and affidavits that only one well dually completed has been drilled on the 2258 acres covered by this lease. That was completed near the southern boundary in the southeast quarter of the tract in February, 1955, in the 10,062 foot zone and later, in 1958, dually completed at 9,900 feet. The petition alleges that it has been producing gas and associated liquid hydrocarbons profitably since such completion at the rate of approximately 500 M.C.F. a day.

There are further allegations as to other producing gas and distillate wells being completed within 500 feet of the southern boundary of the tract on adjoining land at depths of 11,396 and 11,275 feet, and of a well being drilled on other land within 2400 feet of the north boundary to a depth of 11,045 feet, all evidencing the existence of a productive pool oval in shape covering all of the leased land except the northeast corner. Leasing activity in the area is detailed. Appellees’ affiants show this last well to have been abandoned as a non-producer, but appellant’s affiants raise an issue as to whether it could ‘be made to produce profitably with the use of information now available.

The petition states that reasonable development would have required drilling a well on the northwest 320 acre tract adjoining the discovery well within 6 months after completion thereof, and that such a well, and other wells, could have been drilled to the known production sands with a reasonable expectation of profit to lessee. There are allegations of facts showing failure on the part of defendant lessees to use reasonable diligence in developing this lease after disc'overy. The potential productivity of other zones are set forth, and the existence of zones and strata capable of being made to produce in paying quantities with profit to the lessee and lessor, and the area of the location of such zones, are alleged.

The petition states facts allegedly showing that the known zones have not been properly developed by the drilling on the 2258 acre tract of the one well dually completed in the southeast corner thereof, and that a prudent operator, under the circumstances and using reasonable diligence, would have proceeded to further drill and develop this lease, and that such development would have resulted in profit to lessor and lessees. Allegations of the existence of a market for additional productions are made. The petition alleges the production which could reasonably have been expected with such prudent development, the money value of such production, and the loss which plaintiff says he has sustained because of lessees’ failure to use ordinary diligence. It alleges that written notice and demand to develop was delivered to lessees prior to filing of suit. It states that damages which are susceptible of proof are an inadequate remedy under the circumstances.

By reason of all such allegations, plaintiff in his petition prays for (1) total cancellation of the lease; (2) cancellation of all of the lease except as to the 320 acres surrounding the producing wells; (3) for an order requiring the lessees to proceed with drilling a well on a space of 320 acres adjoining the discovery well within 90 days, with a penalty of cancellation if the order is not complied with; (4) judgment for his ascertainable damages.

Appellees submit that this petition does not allege a cause of action for failure to reasonably develop, and that the summary judgment could properly have been rendered on such inadequate pleadings, citing Clifton v. Koontz, 160 Tex. 82, 325 S.W.2d 684, 79 A.L.R.2d 774 and Felmont Oil Co. et al. v. Pan American Petroleum Corporation, et al., Tex.Civ.App., 334 S.W.2d 449, writ ref. n. r. e.

In discussing lessees’ obligation to reasonably develop an oil lease after production, the opinion in Clifton v. Koontz, supra, among other matters states:

“While it is true that each separate stratum or horizon would be entitled to separate development, yet it is equally true that the burden rests upon the lessor to prove that the producing stratum required additional wells, or that strata different from that from which production is being obtained, in reasonable probability exists, and that by the drilling of additional wells there would be a reasonable expectation of profit to the lessee. Under such circumstances, the lessee’s obligation as to development is measured by the rule of reasonable diligence or what an ordinarily prudent and diligent operator would do, and he is not required to continue in the performance of these duties or to engage in the performance of such implied duties unless there is a reasonable expectation of profit, not only to the lessor, but also to the lessee.”

The following quote as to the burden resting on plaintiff in such a suit is from Felmont Oil Co. et al. v. Pan American Petroleum Corporation, et al, supra:

“Assuming as we do that there is no valid distinction between the implied covenant to ‘explore’ and the implied covenant to ‘develop’, the burden rests upon appellants to do more than merely prove that a ready, able and willing operator would drill, regardless of the certainty of profit. Appellants are required to prove:
“(1) That the lessees failed to measure up to the standards of the prudent operator;
■“(2) That producing strata or horizons, which they contend should have been further explored or drilled, required additional wells;
“(3) That strata or horizons other than those from which production is being obtained (on which further exploration or drilling is sought), exists in reasonable probability;
“(4) That by the drilling of additional wells, there would be a reasonable expectation of profit, not only to the lessor, but also to the lessee.”

We hold that, in the absence of special exceptions, the petition in general terms meets the requirements of a suit of this nature and is sufficient to entitle appellant to a trial on the alleged merits of his case. Clifton v. Koontz, supra; Perkins v. Mitchell, 153 Tex. 368, 268 S.W.2d 907; W. T. Waggoner Estate v. Sigler Oil Co., 118 Tex. 509, 19 S.W.2d 27; Pan American Petroleum Corp., et al v. Hardy, Tex.Civ.App., 370 S.W.2d 904, writ ref. n. r. e.

However, even if it were otherwise, this appeal must be determined on the entire record before us, and not merely on the alleged sufficiency or insufficiency of the petition. We quote from Womack v. Allstate Insurance Company, 156 Tex. 467, 296 S.W.2d 233, as follows:

“Under the provisions of Rule 166-A, Texas Rules of Civil Procedure, summary judgment may be rendered only if the pleadings, depositions, admissions and affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court will normally look to the pleadings to determine the issues that may exist in the case, but when the depositions, admissions or affidavits disclose facts which show that an amendment to the pleadings of the opposite party will render the position of the moving party insupportable under the substantive law, it cannot be said that the latter has established his right to judgment as a matter of law. As stated in Rossiter v. Vogel, 2 Cir., 134 F.2d 908, 912, * * * where facts appear in affidavits upon motion for a summary judgment which would justify an amendment of the pleadings, such amendment should not be prevented by the entry of a final judgment. * * * ’ We hold, therefore, that when the affidavits or other summary judgment ‘evidence’ disclose facts which render the position of the moving party untenable, summary judgment should be denied regardless of defects which may exist in the pleadings of the opposite party.”

Attached to appellees’ motions for summary judgment are two affidavits, one by Charles A. Steen, manager of production for appellee Southwestern, and the other by John Harris, chief petroleum engineer for the same appellee. Both affidavits were executed in March, 1963. Both of these men qualify as expert geologists and petroleum engineers, and both show intimate familiarity with the lease in question, its productive capacity or incapacity from various zones and sands, and with the producing and non-producing wells on adjoining lands. After stating such information as called for from their personal observations and from the records available to them, they each state under oath that they know that this entire lease has been adequately developed, and that a prudent operator would not drill to any of the zones mentioned in plaintiff’s petition with any reasonable expectation of deriving a profit therefrom.

Steen further cites the terms of the sales contract with Tennessee Gas Transmission Co., and states that the recoverable reserves originally contained in the 9950 and 10,050 foot reservoirs from which the dual well on the lease is producing have been determined according to the terms of the contract, and that said well has been from the date of its final completion to November 21, 1959, the date the suit was filed, three and a third years prior to the execution of the affidavit capable of producing the maximum amount of gas marketable from said reserves under said contract. He concludes from such statement that as of November 21, 1959, a date more than two and a half years before the filing of appellant’s trial petition on July 20, 1962, such fact would have prevented further development from such reservoirs from being profitable to lessees.

Harris’ affidavit ends with this statement:

“In view of the above data I state upon my own personal knowledge that said 10,200 foot and 10,300 foot sands have no productive merit under the acreage covered by the subject lease. The 9,860 sand deserves further evaluation in the hole now constituting the Bank well before the well is plugged and abandoned. However, there is no technical or economic justification for the drilling of a well to this sand for evaluation purposes. Therefore, said Bank lease has been adequately and reasonably developed and a reasonably prudent operator could not drill additional wells to the 9,860, 9,950, 10,050, 10,200 or 10,300 foot depths underlying said lease with a reasonable expectation that any such well would result in additional production which would result in a profit to such operator.”

Upon the filing of these affidavits by appellees it became necessary for appellant, in order to be entitled to a trial on the merits, to show opposing evidentiary data sufficient to raise genuine issues of the material facts of his case. Gulf C. & S. F. Ry. Co. v. McBride, 159 Tex. 442, 322 S.W.2d 492; Kuper v. Schmidt, 161 Tex. 189, 338 S.W.2d 948. Appellant filed affidavits of three men also familiar with the geological status and drilling operations on the leased land and contiguous properties. David P. Hoover, an experienced graduate geologist and petroleum engineer, and registered professional engineer of the State of Texas, had been associated with the driller in the drilling and completion of the discovery well on the lease. He swore to facts demonstrating his intimate familiarity with the productive and nonproductive areas on the leased lands and on neighboring properties and showing the reasonable probability of profitable production being obtained from further development. W. R. Phillips, a graduate professional geologist and a consulting petroleum engineer, has done considerable work and study as to the various sands of the producing and non-producing wells of the area, and showed his qualifications to testify about them. Paul R. Wimberly, an owner of mineral interests in adjacent land and an oil field driller of 23 years experience, also gave sworn testimony tending to rebut the statements of appellees’ affiants.

Without going further into the details of these affidavits we find the facts and opinions expressed by the affiants of each party to be so in conflict as to raise definite genuine issues of material fact as to whether the leased property has been reasonably developed, and as to whether an ordinarily diligent and prudent operator would conduct further developments with reasonable expectation of profit to lessee and lessor.

Appellees insist that no genuine issues of material facts are created by appellant’s affidavits because, so appellees say, they are based on hearsay and statements of opinion. Box v. Bates, 162 Tex. 184, 346 S.W.2d 317; Heien v. Crabtree, (Tex.Civ.App.1963) 364 S.W.2d 271, Affd., Tex., 369 S.W.2d 28. As we stated above, all of appellant’s affiants, as well as appel-lees’ affiants, in their affidavits showed familiarity with the matters about which they gave factual testimony, and qualified as expert witnesses on the subjects concerning which they expressed opinions.

In this regard, a large portion of appel-lees’ affidavits were expressions of the affiants’ conclusions. As to a number of their factual statements they did not produce the source of their information. Their affiant Steen limits his views as to a market for additional production to a period which ended over two and a half years prior to the filing of appellant’s trial petition, and more than three and a third years before he signed the affidavit.

Appellees rely strongly on Clifton v. Koontz, 160 Tex. 82, 325 S.W.2d 684, 79 A.L.R.2d 774, as authority for their contention that, based on the entire record, the trial court properly granted the summary judgment. We have carefully studied this opinion, as well as the annotation in 79 A.L.R.2d 792 et seq., and find that it is not authority against the position taken by appellant. The appeal was from a trial on the merits. The decision of the Supreme Court on the issue of breach of an implied covenant to further develop the lease was based on the failure of plaintiff to discharge the burden to prove, as required, that the lessees failed to measure up to the standard of the prudent operator. The lease covered only 350 acres and had one producing gas well. The opinion, insofar as it holds that the lessor had not complied with his burden of proving a violation of the covenant to reasonably develop, entirely divorces itself from the situation in our case when it says:

“However, it should be noted that we do not have a factual situation where the lease covers several thousand acres and an effort is being made to hold such vast acreage by showing production from a comparatively small area. Neither are we confronted with a situation where an unreasonably long length of time has elapsed since the last development of the leased premises. Therefore, we do not pass upon these questions.”

For a further discussion of the laws applicable to this situation, see the annotation following Clifton v. Koontz in 79 A.L.R.2d 792 et seq., and article in 42. Texas Law Review, page 199, et seq.

Applying the rules of summary judgments to the present appeal, it is our opinion that the record does show the existence of material genuine fact issues, and that the summary judgment should not have been granted. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929; Gardner v. Martin, 162 Tex. 156, 345 S.W.2d 274; Bolin et al v. Tenneco Oil Co., et al., Tex.Civ.App., 373 S.W.2d 350, writ ref. n. r. e.

Appellees in their third counterpoint assert that in no event does the record show that appellant has any remedy for cancellation of the lease, even though we hold he may have a cause of action for failure to reasonably develop, citing the following provision of the lease:

“The breach by Lessee of any obligation arising hereunder shall not work a forfeiture or termination of this lease nor cause a termination or reversion of the estate created hereby nor be grounds for cancellation hereof in whole or in part.”

As stated above, there were no special exceptions directed at plaintiff’s third amended petition. Since we have held that the cause should be reversed because of the existence of genuine issues of material facts as shown by the pleadings and affidavits, any further ruling as to the respective rights and remedies, if any, of the parties should be determined in appropriate proceedings in the trial court.

The trial court having certified that the two geological reports attached to appellant’s Bill of Exceptions No. 1 were not admitted in evidence, and were not a part of the record in the case, we have not considered such reports in reaching our decision in this cause.

Reversed and remanded.