author: NORVELL, Justice.

text:
    REPUBLIC NATIONAL LIFE INSURANCE COMPANY, Petitioner, v. Helen F. BLAIN et al., Respondents.
    No. B-334.
    Supreme Court of Texas.
    March 6, 1968.
    J. W. Dewbre and Thomas G. Nash, Jr., Johnson, Guthrie, White & Stanfield, Curtis White, Dallas, for petitioner.
    Fields, Fields & Hardee, Jack Y. Hardee, Athens, for respondents.
   NORVELL, Justice.

The petitioner, Republic National Life Insurance Company, seeks relief here from a summary judgment rendered against it in favor of Helen F. Blain, the widow of Allen J. Blain. This judgment was affirmed by the Court of Civil Appeals, 415 S.W.2d 463.

The basis of Mrs. Blain’s claim was a group policy issued by petitioner to members of the Texas Public Employees Association (TPEA) which covered her husband who was a state employee at the Terrell State Hospital. The case is complicated by the action of the Terrell State Hospital employees in changing their group insurance from the TPEA-Republic plan to one promoted and supplied by National Bankers Life Insurance Company. Republic contends that as a result of this insurance switch, Blain was not covered by the group policy issued to the TPEA. The holding of the courts below was that it appears as a matter of law that Blain was covered by the TPEA policy at the time of his death.

Because of disability, Blain’s life insurance had been extended by Republic without payment of premiums. When his disability ended, he returned to work and was an active employee at the Terrell State Hospital when he died. We granted writ of error because of a tentative opinion that there was a question of fact involved in the determination of the issue as to whether or not Blain was eligible for insurance under the policy after his disability ended.

The TPEA-Republic group policy contained the following provisions relating to life insurance:

“Eligibility of Employees — All Employees, who are members of the Association and who are actively at work on the effective date of this Contract [1948], and those Employees then absent, upon their return to active work, and new Employees as they become members of the Association shall be eligible for coverage, —except that in no' case shall any new Employee be eligible until he has completed sixty days of continuous service, is then a Member of the Association and is then actively at work.”
“Extended Insurance on Disability— If at the time of discontinuance of premium payments for an Employee’s insurance, such Employee while under age 60, is totally disabled from bodily injury or disease which prevents engagement in any occupation for compensation or profit, the insurance will be extended, without payment of premiums, during the continuance of such total disability for a period not to exceed twelve months. * *
“If the Employee ceases to be so disabled and is then eligible for insurance under the Policy, insurance will be continued only if premium payments are resumed. If the Employee ceases to be so disabled and is not then eligible for insurance under the Policy, the insurance will automatically cease thirty-one days thereafter. Irrespective of the continuance of disability the insurance will automatically cease thirty-one days after the end of any year during which the Employee fails to furnish proof of the continuance of disability as hereinabove required or thirty-one days after refusal of the Employee to be examined as herein-above provided. During the thirty-one day period (mentioned in this paragraph) preceding termination of insurance, the Employee shall be entitled to apply for a policy of life insurance in accordance with the 'Conversion Privilege’ of this Contract as though employment had terminated at the beginning of such thirty-one days.”

No application for individual life insurance was made under the “Conversion Privilege” clause of the policy.

It appears from the summary judgment proof (answers to interrogatories and affidavits) that prior to November 30, 1963, Allen J. Blain was an active employee of the Texas State Hospital at Terrell, Texas. He was a member of TPEA and covered by a group policy of insurance issued to that organization by Republic. This policy pro-, vided for life insurance in addition to accident and sickness insurance with hospital and surgical expense benefits. That portion of the policy relating to life insurance is involved here.

On the date above mentioned, Blain sustained a severe heart attack and retired as an active employee of the hospital. On February 18, 1964, Republic extended Blain’s insurance without payment of premiums in accordance with the following letter:

“We acknowledge receipt of completed proofs in connection with this disability.
“The life insurance section of this policy has been extended in accordance with the Waiver of Premium Section of this policy.
“During total disability, it is necessary that you be unable to perform any occupation for wage or profit in order to keep this policy in force. If, at any time you return to any occupation for wage or profit, please notify us immediately and have your policy reinstated in accordance with the Master Contract.
“It will be necessary for you to file one year from 2/6/64, additional information showing continued, total and permanent disability. No notice of this anniversary date will be given to you by the company.”

On February 29, 1964, Republic issued Blain a certificate under the group policy as a retired employee.

On October 6, 1964, Blain, after taking a physical examination, returned to active duty and died some fifty-five days later on November 30th.

We may assume for present purposes that if the facts above set out were the only ones disclosed by the record, Blain would have been eligible for Republic insurance and died during the grace period for payment of premiums stipulated in the policy. However, if Blain had entered into a binding contract, either individually or through the Terrell Hospital group, with National Bankers Life Insurance Company under which he had agreed to accept National Bankers as the group insurance carrier in place of Republic, and National Bankers had agreed to be so bound, then it cannot be said that Blain was “eligible” for further Republic insurance coverage after his disability ended. This case turns upon the question of whether there was a valid contract of substitution. If there was, or if there is a fact issue involved in the answering of the question, then the judgments of the courts below must be reversed and the cause remanded for a conventional trial on the merits. (Republic filed no motion for summary judgment in the trial court. Cf. Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396 [1958]).

Article 3.51, Vernon’s Ann.Ins.Code, provides for the issuance of group insurance policies to associations, groups and classes of public employees. Provision is also made for salary deductions for premium charges. There are two groups of state employees involved in the present situation. The TPEA is a large association to which all state employees may belong. The employees of the Terrell State Hospital constitute a smaller segment of state employees. Both groups are, however, legally authorized to negotiate group insurance contracts. As heretofore noticed, the employees of the Terrell State Hospital were at one time covered by a group policy of insurance negotiated by the TPEA with Republic. However, in April of 1964, a majority of the employees of the State Hospital switched their insurance coverage from Republic-TPEA to a group policy offered by National Bankers Life Insurance Company. On May 6, the business manager of the State Hospital certified that the employees of such hospital were covered by the National Bankers policy and that Blain was eligible for benefits under such policy. In connection with this change of insurance coverage, Blain, on the date mentioned, executed the following written instrument:

“I hereby direct the State Employees Retirement System to discontinue deduction for Group Insurance Premium with the Republic National Life Insurance Company of Dallas, Texas under group program and contract with the Texas Public Employees Association. This cancellation shall become effective May 31, 1964.
“I hereby authorize the State Employees Retirement System to deduct from my monthly annuity, effective June 1, 1964, monthly premiums for my group insurance with National Bankers Life Insurance Company * *

This authorization was directed to the State Employees Retirement System and thereafter premiums due upon Blain’s accident and sickness insurance were paid to National Bankers. At this time, Blain’s life insurance was apparently still being carried by Republic under the extended insurance provision of the TPEA policy.

However, on July 31, Republic notified Blain by letter that as a result of the change in coverage by the State Hospital group, his Republic insurance coverage had been cancelled as of May 1. Blain complained of this action to Republic and the Commissioner of Insurance.

On August 7, the manager of Republic’s Life Benefits Department wrote Blain and notified him that it was Republic’s position that National Bankers’ coverage had replaced that previously held by Republic. On August 24, counsel for Republic wrote Blain and again stated the company’s position as follows:

“It is my understanding that you are eligible for coverage with National Bankers Life, which is the company which replaced our coverage for the Terrell State Hospital. I have in my files a notice which states that National Bankers will pick up all personnel whose eligibility is terminated under the Texas Public Employees Association coverage with Republic National, under the replacement coverage furnished by National Bankers. It is indicated in that notice that no one is to lose any coverage as a consequence of this change-over.”

On October 6, Blain, after taking a physical examination, returned to work at the hospital. On November 4, the State Retirement Claims Officer wrote Blain as follows:

“Thank you for your letter of October 30, 1964, in which you state that you have returned to employment with the Terrell State Hospital.
“We have also been advised by our Medical Board that, in their opinion, you are no longer incapacitated.
“In view of this, your disability retirement payments have been terminated as of September 30, 1964.
“Your group insurance premium to National Bankers Life Insurance Company for the month of October was deducted from your September annuity and reported to the company. You should make arrangements for your coverage as an active employee to be restored and the premium for November and thereafter deducted from your salary.”
Blain died on November 30.

Mrs. Blain sued Republic on March 19, 1965 and three days later filed suit against National Bankers. In the latter suit, she alleged that in April 1964 at a meeting of the employees of the State Hospital, a representative of National Bankers represented that if the hospital employees would change their insurance coverage from Republic to National Bankers, no one would suffer loss of any benefit due to the change; that she and her husband were present and her husband’s case was specifically mentioned and the National Bankers agent informed of the fact that Blain at the time had a waiver of premiums in effect with Republic. Mrs. Blain also alleged that the National Bankers’ representative distributed a pamphlet to all present which contained the following statement:

“6. NABLICO guarantees that no one will suffer loss of any benefit or eligibility due to change from TPEA coverage to NABLICO coverage.”

Mrs. Blain further alleged that although National Bankers was obligated to afford her husband the same coverage he had had with Republic, the certificate issued to him contained no life insurance provision, although such coverage, was included in the other certificates issued to the Terrell State Hospital employees.

Republic argues that by virtue of the certification for the National Bankers insurance program, the cancellation of Republic’s payroll authorization, and the other circumstances above referred to, there was a fact issue involved as to whether or not Republic coverage had been superseded by that of National Bankers insofar as Blain was concerned. Under our summary judgment procedure, the burden was upon Mrs. Blain as the proponent to demonstrate as a matter of law that National Bankers coverage had not taken the place of the Republic coverage. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952).

While, as heretofore pointed out, Republic on July 31, notified Blain that his insurance was cancelled as of May 1, we may for present purposes disregard this contention. However, the record indicates that Blain’s disability came to an end on or before October 6, the date he returned to work. His disability retirement payments were terminated as of September 30 and he was notified that he should make arrangements for the restoration of his insurance coverage as an active employee and for salary deductions for premium payments for the month of November and thereafter. As above pointed out, the hospital business manager on May 6, 1964 had certified that “Terrell State Hospital has a group insurance program in effect as of this date, and that such program provides coverage for Active and Retired Employees of this Department. The Group Insurance Carrier is National Bankers Life Insurance Company.” He further certified that, “Allen J. Blain a Retired Employee of this Department is eligible for Group Insurance Benefits under this program and contract with the National Bankers Life Insurance Company.”

This certificate is not restricted to accident and sickness features of the plan although the payroll deduction authorization addressed to the State Employees Retirement System may be so construed.

In our opinion, the summary judgment record does not conclusively establish that there was no valid binding agreement between National Bankers and the employees of the Terrell State Hospital under which Mr. Blain, despite his then existing disability, would be covered to the same extent he was covered under the TPEA-Republic plan. If there was such an agreement, Mr. Blain would not be eligible for continued Republic protection.

Undoubtedly, Mr. Blain was eligible for Republic insurance when the TPEA policy was issued but this does not mean that he remained forever eligible. The contracting parties could renounce the policy agreement if they so desired and Blain could then accept a substitute insurance carrier. Republic asserts that this substitution did take place, and the summary judgment proofs do not resolve this issue against Republic as a matter of law. It appears probable that Blain was covered under the extended insurance clause of the TPEA-Republic policy, but this clause is explicit as to the termination of such coverage when an “insured” is not eligible for insurance under the policy—“the insurance will automatically cease thirty-one days” after the disability of the insured ends.

In the trial court, a motion was made to consolidate Mrs. Blain’s suit against Republic with the one she instituted against National Bankers. Judging from the present record, it seems probable that one or the other of these insurance companies is liable upon a contract of life insurance. It cannot be said that either Mr. Blain or Mrs. Blain were estopped from claiming under the Republic policy simply because they attempted to obtain other insurance after they received notice from Republic that Mr. Blain was no longer covered by the TPEA-Republic group policy. However, if Mr. Blain did attempt to secure other insurance, and as a result of his efforts and those of the members of the Terrell State Hospital group, a policy was secured from National Bankers Life Insurance Company which superseded the TPEA-Republic policy, then a different question is presented for if a substitution of companies occurred, Republic would no longer be liable.

We have been somewhat handicapped in obtaining a complete picture of the controversy because we have not heard from National Bankers. A reply of that company to the motion to consolidate is shown in the present transcript. Such reply asserted that the issue between Mrs. Blain and National Bankers “can only be based on the breach of a contract to issue an insurance policy.” Evidently it is National Bankers’ position that while they were obligated to and did take over part of the insurance coverage afforded by the TPEA-Republic policy, they were not obligated to take over the life insurance coverage insofar as Mr. Blain was concerned. The issue of whether by its dealings with the Terrell Hospital group, National Bankers became contractually liable to afford life insurance protection to Mr. Blain would seem rather decisive of the present controversy. It appears that this controversy is primarily a quarrel between two insurance companies, and that a consolidation of the two causes filed by Mrs. Blain would be appropriate. However, we are of the opinion that this is not a case for summary judgment but rather one for a conventional trial on the merits. Womack v. Allstate Insurance Co., 156 Tex. 467, 296 S.W.2d 233 (1957); Gardner v. Martin, 162 Tex. 156, 345 S.W.2d 274 (1961); McDonald, Civil Practice in Texas, § 17.26.1 (cumulative supplement).

The judgments of the courts below are reversed and the cause remanded for new trial.

      . The action of the Terrell Hospital group was apparently anticipated by Republic. That company submitted and the Commissioner of Insurance approved an amendment to the TPEA-Republic group policy which provided:
      “Effective May 1, 1964 persons now insured or who may subsequently become insured as retired persons under this group may be eligible for coverage or to continue coverage provided the State Agency or segment thereof from which they retired from active employment has not adopted a formal group insurance program other than the T.P.E.A. Program and provided the percentage of participants of the active employees eligible for coverage in that agency or segment thereof is not less than 76 per cent of those persons eligible to participate as of January 1, 1963. The number of active persons actually insured as of January 1, 1963, in any agency or segment thereof will for these purposes be considered as 100 per cent of those eligible to participate. Insurance shall cease at the end of the month during which eligibility ceases.

      “All other provisions contained in said group contract, or amendments or endorsements thereto, not in conflict herewith shall remain unaltered and unchanged.”
      This amendment became effective after February 18, the date upon which Republic recognized Blain’s claim to extended insurance.


source: Caselaw Access Project

author: PER CURIAM. ONION, Judge.

license: Public Domain

text:
    Clarence Victor YORDY, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 40791.
    Court of Criminal Appeals of Texas.
    Nov. 15, 1967.
    On Appellee’s Motion to Reinstate Appeal Jan. 3, 1968.
    Rehearing Denied Feb. 7, 1968.
    On Appellant’s Motion to Reinstate Appeal March 13, 1968.

      Robert E. Hilton, Dallas, for appellant.
    Henry Wade, Dist. Atty., Jim Ramsey, William S. Mason, Jr., Asst. Dist. Attys., Dallas and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

PER CURIAM.

This is a conviction of appellant for operating a motor vehicle upon a public highway while his operator’s license was-suspended; the punishment, five days in jail and a fine of $150.

The record on appeal does not include sentence pronounced by the trial court, as required by Articles 40.09, subd-1; 42.02, and 42.04, V.A.C.C.P.

The appeal is dismissed.

OPINION ON APPELLEE’S MOTION TO REINSTATE APPEAL

ONION, Judge.

Appellee moves to reinstate the appeal,, and in the motion alleges a supplemental transcript has now been forwarded to this Court that contains the proper and correct sentence imposed in this cause by the trial court.

While the referred to supplemental transcript has been received by this Court, neither such transcript nor the sentence contained therein is certified to by the clerk of the trial court under his hand and seal of court.

Not being properly authenticated, the sentence cannot be considered.

The motion to reinstate the appeal is overruled.

OPINION ON STATE’S SECOND MOTION TO REINSTATE APPEAL

ONION, Judge.

This appeal was dismissed on original submission for lack of a sentence. On rehearing state’s motion to reinstate appeal was overruled for lack of a certification of the sentence forwarded with said motion. Our opinion on rehearing is, however, withdrawn.

We now observe that while an appellant may seek to reinstate an appeal and while this Court on its own motion may reinstate an appeal, the state may not do so. Article 5, Sec. 26, Texas Constitution, Vernon’s Ann.St.; Article 44.01, Vernon’s Ann.C.C.P. Cf. Dewberry v. State, 162 Tex.Cr.R. 160, 283 S.W.2d 399; State v. Wilson, 131 Tex.Cr.R. 43, 95 S.W.2d 971.

State’s second motion to reinstate appeal is overruled.

OPINION ON APPELLANT’S MOTION TO REINSTATE APPEAL

PER CURIAM.

Sentence was pronounced on January 23, 1967. Notice of appeal was given on March 6, 1967.

Notice of appeal was not given within the time prescribed by Article 44.08 (c), V.A.C.C.P., and there is nothing in the record to show that the trial court for good cause shown permitted the giving of such notice after the 10 days allowed had expired.

Motion to reinstate the appeal is denied.


author: WOODLEY, Presiding Judge.

text:
    Gene Augustus MULLINS, Appellant, v. The STATE of Texas, Appellee.
    No. 41107.
    Court of Criminal Appeals of Texas.
    March 13, 1968.

      D. C. Gandy, Fort Worth (by Appointment), for appellant.
    Frank Coffey, Dist. Atty., Gordon Gray and Wayne Roberts, Asst. Dist. Attys., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

The offense is burglary of a private residence at night; the punishment, 15 years.

The indictment alleged the burglary of the private residence of Riland Martin in White Settlement, Tarrant County, Texas, on or about October 19, 1966.

The state’s evidence shows that Mr. Martin was away from his home between 8 and 8:45 P.M. on said date and when he returned the glass door in the garage was broken and a color television set, some clothing and food, and $150.00 in money were missing. Some of the property was located in appellant’s house in Weatherford, Texas.

Appellant made a written confession, which was found by the court to have been voluntarily made after proper warning, in which he confessed to the burglary charged and four others.

Appellant’s first ground of error complains of the admission into evidence of “that portion of the confession admitting other offenses.”

When the confession was offered, and after the court had found that it was voluntarily made, the court admitted only the portion thereof which related to the offense for which appellant was on trial.

After the state had rested, appellant, as a witness in his own behalf, repudiated his confession and testified that he had never entered anybody’s house unless he was invited: “I have not and I won’t.”

The state was thereafter permitted to introduce the portion of appellant’s confession in which he confessed to the other four burglaries of private homes.

The confession being otherwise admissible as the voluntary confession of appellant, the portion of the confession relating to other burglaries became admissible for impeachment of his testimony inconsistent with his confession. McCormick & Ray, Texas Law of Evidence, Vol. 1, 2d Ed., Sec. 696.

In Freeman v. State, 172 Tex.Cr.R. 144, 354 S.W.2d 141, cited by appellant, it was pointed out that the oral statement of appellant while in custody was not admissible as original evidence because it was not made in compliance with the statute.

The rule that a confession made by the accused while in custody which would not be admissible as original evidence may not be used for impeachment has no application to a portion of a written confession admissible as original evidence which is excluded as original evidence under another rule, such as that it shows an extraneous offense.

Ground of error No. 2 complains of the admission of evidence obtained as the result of arrest without warrant and without probable cause.

No item of stolen property was introduced in evidence.

We do not agree that appellant’s written statement, which included a list of the personal property he confessed to having acquired in the burglaries, constituted evidence obtained as the result of an arrest.

We note further that Mrs. Martin testified without objection that she identified some of her missing property at appellant’s home a month after the burglary, at which time appellant and his wife were present; and evidence was admitted without objection that appellant’s wife had pleaded guilty to the burglary.

Ground of error No. 3 complains that the evidence is insufficient to sustain the conviction because prior to signing the confession the defendant was not carried before a magistrate who had informed the defendant of the accusation against him.

This ground of error is predicated upon the fact that, in warning appellant, the magistrate informed him that he was charged with the crime of burglary of a private residence, but did not tell him that he was charged with the crime of burglary of a private residence at night.

The record reflects that at the time appellant was brought before the magistrate to receive the warning provided by Art. 15.17 Vernon’s Ann.C.C.P., no complaint or affidavit had been filed charging him with the burglary.

The contention that the failure of the magistrate to inform appellant that the burglary of a private residence of which he was accused was a night time burglary rendered the evidence insufficient to sustain the conviction is without merit.

The remaining ground of error raised the contention that the court erred in permitting Mrs. Martin to testify over defense objection because her name was not listed on the indictment as a potential witness.

Art. 20.20 V.A.C.C.P. provides that the attorney for the state shall endorse on the indictment the names of the witnesses upon whose testimony it was found.

While such endorsement may be compelled by motion (Jacobs v. State, 35 Tex.Cr.R. 410, 34 S.W. 110) the testimony of a witness will not be excluded because his name is not endorsed on the indictment. Pruett v. State, 114 Tex.Cr.R. 44, 24 S.W.2d 41, and cases cited.

The judgment is affirmed.


text:
    Willie Howard KING, Appellant, v. The STATE of Texas, Appellee.
    No. 41071.
    Court of Criminal Appeals of Texas.
    Feb. 21, 1968.
    Rehearing Denied April 3, 1968.

      Lawrence R. Green, Dallas, for appellant.
    Henry Wade, Dist. Atty., Ross Teter, Joe M. Hendley and Kerry P. FitzGerald, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

The offense is fondling; the punishment, IS years.

The evidence adduced by the state reflects that appellant stopped at the yard of the house where the eleven year old boy named in the indictment was getting a Christmas tree out of a station wagon and, after asking the child for a match and receiving it, put an arm around the boy’s back and fondled the boy’s sexual parts with his other hand.

Testifying as a witness in his own behalf, appellant denied having fondled the child and testified that he patted him on the back after the boy asked him for a dime.

The jury chose to accept the child’s testimony and the ground of error complaining that the evidence is insufficient to sustain the jury’s verdict is overruled.

The officers who saw him with the child testified that appellant was taken before Justice of the Peace Joe B. Brown, Jr., and warned of his rights. Appellant denied this.

Appellant’s first ground of error complains that the court materially erred in refusing to allow appellant’s counsel to argue to the jury the failure of the state to produce Judge Brown, or official records of his court, there being a dispute as to whether appellant had been taken before Judge Brown.

No statement or confession made by appellant was admitted in evidence and no relevancy, or harm to appellant, is shown.

Numerous prior convictions of appellant for offenses involving moral turpitude were admitted by him at his trial. Appellant’s ground of error No. 2 complains that the state was allowed, over objection, to introduce for impeachment purposes convictions that were over ten years old and were too remote.

In view of his other convictions for offenses involving moral turpitude, none of the convictions were too remote. Route v. State, 168 Tex.Cr.R. 388, 327 S.W.2d 761; Walker v. State, 166 Tex.Cr.R. 297, 312 S.W.2d 666.

In determining remoteness of a conviction the computation of time should begin after release from prison. Vaughn v. State, 143 Tex.Cr.R. 150, 157 S.W.2d 894; Gill v. State, 147 Tex.Cr.R. 392, 181 S.W.2d 276; Toms v. State, 150 Tex.Cr.R. 264, 200 S.W.2d 174.

There being no period of more than 8 years between the prior convictions, the contention that they were too remote is without merit.

We note further that no timely objection was offered to the testimony as to such convictions on the ground that the convictions were too remote.

The judgment is affirmed.


author: BELCHER, Judge.

text:
    Joe MURPHY, Appellant, v. The STATE of Texas, Appellee.
    No. 41094.
    Court of Criminal Appeals of Texas.
    Feb. 28, 1968.
    Rehearing Denied April 3, 1968.
    Stone & Davis by, Everett Stovall, Free-port, Carl E. F. Dally, Houston, for appellant.
    Ogden Bass, Dist. Atty., Wallace...N.Shaw, Asst. Dist. Atty., Angleton, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Judge.

The offense is the possession of whiskey for the purpose of sale in a dry area; the punishment, a fine of $1,000 and one year in the county jail.

It was stipulated that Brazoria County was a dry area.

The appellant challenges the sufficiency of the evidence to support, the conviction, and complains of the failure of the court to respond to his request and instruct the jury on the law of circumstantial evidence.

Inspector Perkins of the Texas Liquor Control Board, working as an undercover agent on July 11 or 12, 1966, asked Charles Blackburn Ray, a cabdriver, if he could get some whiskey for him, and he said, “Come on, let’s go,” and Ray drove the agent and his wife to appellant’s grocery store. Perkins gave Ray some money, and Ray went to a side door of the store, knocked and the door opened, and a hand passed out a pint bottle of whiskey in a paper sack, and Ray placed six dollars in the hand and then gave Perkins the whiskey on returning to the cab. There .is no testimony identifying whose hand it was that passed the whiskey through the door to Ray.

On July 13, Perkins again told Ray that he wanted some whiskey, and on going to appellant’s store Ray parked at the side and went to the side door, but soon returned without any whiskey; that Ray and Perkins then drove about one-half block to a lounge where Ray told the appellant he had someone who needed some whiskey. The appellant made no response, but left the lounge walking toward the store, and was last seen on the sidewalk approximately 15 or 20 feet from the front door of the store, but no one saw the appellant enter the store. Ray returned to the store, went to the same side door, and after he knocked, a pint of whiskey was passed through the door by a hand, and Ray paid for it and returned to the cab. No one identified the person who passed the whiskey to Ray.

After obtaining a search warrant for the appellant’s store, the inspector and other officers went to the store about 10 p.m., to execute the search warrant. They knocked on the same side door that Ray did, and the appellant came to the door and they informed him of their purpose to search. On entering the building, they found no one there but the appellant. In searching appellant’s place, which consisted of the store in front with living quarters in the rear and a rest room, the officers found two pint bottles of whiskey in separate paper sacks on a chest of drawers which was about six feet from the side door.

Proof was offered that the appellant had leased and was occupying the store at the times in question in this case.

The appellant did not testify, but called one witness, who testified that he was living with the appellant in the living quarters of the store at the times here in question; that on the evening preceding the search he had bought two pints of whiskey to drink and had left them on the chest in the living quarters; and that the whiskey he had bought was the same as that exhibited to him while testifying.

The evidence is sufficient to support a finding that the appellant possessed the two pints of whiskey for the purpose of sale.

The amount of whiskey found by the officers on the search of appellant’s place was not sufficient to raise the prima facie presumption that the whiskey was possessed for the purpose of sale. Art. 666-23a(2), P.C.; 3 Branch 2d 18, Sec. 1280.

To identify appellant as the person who sold whiskey at the side door and to show that he possessed the two pints of whiskey found by the officers, the state was required to rely upon circumstantial evidence.

From the nature of the evidence, it is concluded that the refusal of the court to charge the jury upon the law of circumstantial evidence calls for a reversal. 33 Tex.Jur.2d 254, Sec. 124; Haswell v. State, 104 Tex.Cr.R. 454, 284 S.W. 221; Patrick v. State, 106 Tex.Cr.R. 205, 291 S.W. 901.

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


author: MORRISON, Judge.

text:
    Henry McCULLOUGH, Appellant, v. The STATE of Texas, Appellee.
    No. 41074.
    Court of Criminal Appeals of Texas.
    Feb. 14, 1968.
    Rehearing Denied April 3, 1968.

      John W. O’Dowd, Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough and Ruben W. Hope, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

'The offense is burglary with one prior ■conviction alleged for enhancement; the punishment, nine years.

Appellant’s first ground of error is that the “trial court erred in refusing to quash the indictment (because) it was not signed by the foreman (of the grand jury) as required by Article 21.02, Section 9, V.A.C.C.P.” No motion to quash was presented to the trial court as required by Article 27.10, Vernon’s Ann. C.C.P. We further observe that such signature is not essential to the validity of the indictment. Ex parte Landers, Tex.Cr.App., 366 S.W.2d 567. We find no merit in this contention.

Appellant’s second ground of error is that the “court erred in limiting the appellant (and the State) to 30 minutes of voir dire examination”. In support of his proposition appellant cites De La Rosa v. State, Tex.Cr.App., 414 S.W.2d 668. In De La Rosa objections were made during the course of the trial and the voir dire examination of the prospective jurors was brought forward to this Court. In the case at bar the voir dire examination is not before this court, nor does the record reflect that appellant objected to the time allotted by the court for examination. No error is shown. Campbell v. State, 122 Tex.Cr.R. 494, 56 S.W.2d 460. See also Singleton v. State, 171 Tex.Cr.R. 196, 346 S.W.2d 328, and Root v. State, 169 Tex.Cr.R. 382, 334 S.W.2d 154.

As his third ground of error appellant contends that the court erred in allowing the State to re-open the case after it rested. We find no error in such action. Mims v. State, Tex.Cr.App., 378 S.W.2d 318; Texas Digest, Criminal Law 686.

Appellant’s fourth ground of error is that the court erred in allowing the State to read the second offender count of the indictment to the jury prior to the determination of guilt or innocence. The only proof tendered to show that this occurred is the recitation that appellant was arraigned. If such count was read to the jury at that time, we fail to find that any objection was lodged to the same, and therefore, nothing is presented for review. Cox v. State, Tex.Cr.App., 422 S.W.2d 929, delivered Janary 17, 1968.

In his fifth ground of error, appellant contends that the court erred when the State was allowed to read the indictment that stated in the second offender count that appellant had previously been convicted of the offense of simple burglary in the State of Louisiana. As heretofore stated, no proof appears in this record that such count was ever read to the jury or utilized by the jury in assessing appellant’s punishment, and therefore, nothing is presented for review.

Finding no reversible error, the judgment is affirmed.


author: DICE, Judge.

text:
    Jerry Brent DENMAN, Appellant, v. The STATE of Texas, Appellee.
    No. 41106.
    Court of Criminal Appeals of Texas.
    March 13, 1968.
    A. Fred Fick, Fort Worth (On Appeal Only), for appellant.
    Frank Coffey, Dist. Atty., Rufus J. Ad-cock and Gordon Gray, Asst. Dist. Attys., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Judge.

The conviction is for burglary; the punishment, enhanced under Art. 63, Vernon’s Ann.P.C., by virtue of two prior convictions for felonies less than capital, life imprisonment.

One ground of error is urged by appellant in his brief filed with the clerk of the trial court, which is stated as follows:

“Appellant was denied effective legal counsel and representation upon the trial of this case.”

Appellant was represented at the trial by Jack A. Carter, Esq., an attorney appointed by the court, and in this appeal is represented by Alfred F. Fick, Jr., Esq., also appointed by the court. The appointment of counsel in each instance was upon appellant’s request and affidavit that he was too poor to employ counsel.

It is appellant’s contention that he was not effectively represented at the trial, due to the lack of experience of Attorney Carter in the trial of contested cases.

In support of his contention, appellant refers to certain testimony given at a pretrial hearing on his pro se motion to appoint additional counsel, in which Attorney Carter stated — in substance — that due to his lack of practice in the trial of criminal cases he did not feel that he could adequately represent appellant in the case.

At the hearing, Carter testified that the last contested criminal case which he had tried was in the late thirties or early forties and that he had tried no cases since the new Code of Criminal Procedure went into effect and was not familiar with the code except what he had learned since his appointment in the case some four weeks earlier.

Attorney John Whiteside, called as a witness by appellant, testified that based upon Attorney Carter’s testimony he (Whiteside) would be “somewhat” apprehensive if Carter were representing him as a defendant in the case.

Attorney Meto Miteff testfied that in his opinion an attorney of Carter’s inexperience in the trial of criminal cases was not qualified to represent appellant in the case.

Reference is also made to practically the same testimony given at a hearing on appellant’s pro se motion for a continuance until the court appointed additional counsel to assist Attorney Carter in the trial of the case.

At such hearings it was shown that Attorney Carter was a law school graduate with a license to practice law and was active in the practice of law in Tarrant County. He had a substantial civil practice and made quite a number of criminal bonds, and appeared in court in pleas of guilty but did not try contested cases.

The trial judge, in overruling appellant’s motion to appoint additional counsel, expressed his opinion that Carter was “eminently qualified to represent” the appellant.

The record reflects that, prior to trial, appellant’s court-appointed counsel obtained an order from the court authorizing the employment of a psychiatrist, at county expense, to investigate and examine appellant relative to his mental condition. The psychiatrist was employed and, after examining the appellant, reported his findings to the court that appellant was sane.

Upon a bifurcated trial, evidence was first offered by the state showing appellant’s guilt of the primary offense of burglary. Witnesses called by the state were fully cross-examined by appellant’s counsel.

At the hearing on punishment, the second and third paragraphs of the indictment were read to the jury and proof was offered by the state showing, in support of the allegations, that appellant had twice before been finally convicted of felonies less than capital.

At such hearing, appellant testified as a witness in his own behalf, and witnesses were called by him to testify.

Counsel closely cross-examined the officers concerning a line-up, and objected to the taking of appellant’s fingerprints during the course of the trial in his (counsel’s) absence.

Following return of the jury’s verdict, appellant’s counsel timely filed his original and amended motions for new trial, which were overruled.

While objections could have been made to certain leading questions as well as other questions propounded by state’s counsel during the trial, the record as a whole does not sustain appellant’s contention that he was denied the effective assistance of counsel. As was pointed out by this court in Fletcher v. State, Tex.Cr.App., 396 S.W.2d 393, the constitutional right to counsel does not mean errorless counsel or counsel judged ineffective by hindsight.

The judgment is affirmed.


author: BARROW, Chief Justice.

text:
    Bee HENDERSON, Appellant, v. Jessie Mae HENDERSON, Appellee.
    No. 14659.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 7, 1968.
    Rehearing Denied March 6, 1968.
    Evans & Marshall, San Antonio, for appellant.

      Newton & Newton, Del Rio, for appel-lee.
   BARROW, Chief Justice.

This is an appeal from a judgment rendered on July 27, 1967, partitioning' the community estate of the parties in a new suit filed subsequent to a divorce granted appellee on September 20, 1966. Appellant urges that the trial court erred in failing to allow him reimbursement from community funds, for his separate funds traced into enhancement of the community property, and in awarding appellee in excess of one-half of the community estate.

The parties were married in 1938, and their only two children were adults at the time of the divorce decree. The trial court found, in the divorce decree, that the parties owned as community property certain household furniture and an equity in a house in Del Rio. This decree provided that appellee have the use and benefit of this property “until said property is sold or until further order is made by the Court.” No other community property was mentioned in that decree.

On October 7, 1966, appellant filed this suit seeking an accounting of his separate property and a partition of the community estate. After a non-jury trial judgment was entered substantially as follows: (1) The house and furniture were awarded to and set aside unto appellee, subject to the vendor’s lien against same. (2) Of the $13,126.87 cash on hand at the time of the divorce decree %sths, or $1,750.26, was awarded to appellee, and the remaining ■%>ths, or $11,376.61, was awarded to appellant. (3) One-half of the stipulated cash surrender value of eight policies of life insurance on appellant’s life was awarded to each party. (4) In accordance with the stipulation of the parties, appellee was awarded a 1961 Chevrolet sedan, and appellant, a 1964 pick-up truck. (5) A note executed by the couple’s son, securing a lien on a 1963 Chevrolet automobile, was awarded equally to the parties. (6) The personal effects of each were set aside to the party possessing same.

The parties operated the “Ten Mile Ranch” for many years during their marriage, until it was sold in September, 1963, for over $100,000. Neither party challenges the trial court’s finding that at said time appellant owned' 1%sths of this ranch as his separate property and the community estate owned the other %sths. After payment of liens against this ranch property, appellant deposited $62,289.97 in his bank account. He had been borrowing money from his step-mother for the couple’s living expenses before this sale and he paid his stepmother over $5,000 in discharge of her loans. In addition, he paid off a loan of over $5,000 against his life insurance policies. By November 22, 1963, he had $49,000, remaining from the sale proceeds, on deposit in the bank account in his name. On this date he decided to keep the balance below $10,000 and therefore withdrew $39,000 from this account. Thereafter, $10,000 was deposited in an account in appellee’s name from which she customarily paid their living expenses. The balance was deposited in another bank; with $10,000 being deposited in an account in his name, the same amount in appellee’s name, and the remaining $9,000 in a joint account in both names. By the time of the divorce, only $13,126.87 of these funds remained on hand, and of this approximately $10,000 was in accounts in appel-lee’s name.

Appellant urges that he is entitled to reimbursement for his separate monies spent on the car sold to the son and on the 1964 pick-up truck. It is seen that the parties agreed to a division of the vehicles by giving appellee the 1961 sedan and appellant the 1964 pick-up truck. Further, appellant in his direct testimony conceded that the note from their son was community property and said, “we will have to divide that.” Under this testimony the trial court did not err in. finding that this note is owned equally by the parties.

Appellant also urges that he should be reimbursed for repayment of the loan on his life insurance policies. The record supports an implied finding that such loan was used for living expenses of the parties. In Norris v. Vaughan, 152 Tex. 491, 260 S.W.2d 676, 683 (1953), it was held that a husband was not entitled to reimbursement for separate funds spent for community living expenses, since the husband was obligated to furnish support for the community living, and if no community funds are available he should utilize his separate funds. The trial court did not err in denying appellant reimbursement for the repayment of this loan against his life insurance policies from funds which were in part his separate property.

The primary question presented by appellant’s second point is the status of the decree of September 20, 1966. It is well settled that Art. 4638, Vernon’s Ann. Civ.St., puts the mandatory duty on the trial court to make a partition of the community property when the pleadings of either party show the existence of such property. In doing so, the trial judge is not required to divide the community property equally in that he should consider all the facts and circumstances shown by the evidence and then partition the community property, both personal and real estate, in such manner as may be just and right. Such discretion is subject to review by the appellate courts. Hailey v. Hailey, 160 Tex. 372, 331 S.W.2d 299 (1960); Ex parte Scott, 133 Tex. 1, 123 S.W.2d 306, 313 (1939); Pelham v. Sanders, 290 S.W.2d 684 (Tex.Civ.App.—Texarkana 1956, no writ); 15 Baylor Law Review 237.

It is equally well settled that “Where a husband and a wife, owning community property, are divorced without the court in its decree having made any division of such property in the divorce decree, they become tenants in common in the property or joint owners thereof, just as if they had never been married.” Taylor v. Catalon, 140 Tex. 38, 166 S.W.2d 102, 104 (1942); Ex parte Williams, 160 Tex. 314, 330 S.W.2d 605 (1960); Manning v. Benham, 359 S.W.2d 927 (Tex.Civ.App.—Houston 1962, writ ref’d n. r. e.); Wade v. Wade, 295 S.W.2d 939 (Tex.Civ.App.—San Antonio 1956, no writ); McDaniel v. Thompson, 195 S.W.2d 202 (Tex.Civ.App.—San Antonio 1946, writ ref’d).

The trial court found here that it had expressly retained equitable jurisdiction in the divorce decree of and over the community real estate and furniture. This was the obvious purpose of the provision in the decree setting aside the house and furniture to appellee “until further order is made by the Court.” If the court retained equitable jurisdiction over this property in the divorce action, it would have the power to award same to appellee. Reardon v. Reardon, 163 Tex. 605, 359 S.W.2d 329 (1962). In such event, however, the divorce decree would not be a final judgment. Angerstein v. Angerstein, 389 S.W.2d 519 (Tex.Civ.App.—Corpus Christi 1965, no writ).

Here there was no attempt to consolidate this suit for partition with the original divorce decree. Cf. Richardson v. Milner, 345 S.W.2d 449 (Tex.Civ.App.—Amarillo 1961, writ ref’d n. r. e.). Furthermore, there is no appeal from, or attempt to review any of the provisions of, the divorce decree of September 20, 1966.

We conclude from this record that the real estate and household furniture placed in issue in the original divorce proceeding were not properly before the court in this new suit. The judgment of partition is therefore reformed to delete the adjudication of this property from said judgment.

As reformed, the judgment is affirmed.


author: CLAUDE WILLIAMS, Justice.

text:
    Gayle F. INGRAM, Appellant, v. DALLAS COUNTY WATER CONTROL AND IMPROVEMENT DISTRICT NO. 7, Appellee.
    No. 17066.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 23, 1968.
    Searcy M. Ferguson, Jr., of Blanchette, Smith & Shelton, Dallas, for appellant.
    H. Louis Nichols, of Saner, Jack, Sal-linger & Nichols, Dallas, for appellee.
   CLAUDE WILLIAMS, Justice.

This action for damages rising out of the breach of a written employment contract reaches this court on appeal for the second time. The material facts are set forth in the opinion of this court in Dallas County Water Control and Improvement District v. Ingram, 395 S.W.2d 834 (Tex.Civ.App., Dallas 1965, writ ref’d n. r. e.), wherein we reversed the judgment of the trial court.

Following remand the case was again tried before the court and a jury. The sole defense of the water Control District to Ingram’s cause of action was that it had good cause for terminating Ingram’s employment and therefore it was not legally responsible in damages for breach of the contract. Following the presentation of considerable evidence on the question of good cause for discharge the court submitted the case to the jury upon two special issues. Special Issue No. 1 was in the following form:

“Do you find from a preponderance of the evidence that the Board of Directors of Dallas County Water Control and Improvement District No. 7 had good cause for discharging Gayle F. Ingram as general manager of the water district on January 30, 1964?
“Answer ‘Yes’ or ‘No.’
“In connection with the preceding issue, you are instructed that the term ‘good cause’ means a failure of an employee to perform his duties in the scope of his employment in such manner as a person of ordinary prudence in the same employment would have performed under the same or similar circumstances.”

The jury answered this issue in the affirmative. Special Issue No. 2 inquired as to the amount of damages incurred because of the discharge.

Based upon the verdict the court rendered judgment denying Ingram any recovery against Dallas County Water Control and Improvement District and it is this judgment that is now before us on this appeal.

In his first three points of error appellant complains of the trial court’s refusal to grant his motions for instructed verdict and for judgment non obstante veredicto, and also in submitting Special Issue No. 1 to the jury, because, as he contends, under the terms of the written employment contract he is entitled to recover his damages as a matter of law and “good cause” does not constitute a valid defense thereto. We cannot agree with appellant.

In essence appellant bases his contention upon the proposition that since the contract itself is silent as to the right of appellee to discharge him for good cause then such contract, like a promissory note, must be paid in full upon discharge for any reason. This would contemplate that if an employee under such contract is discharged for good cause, whatever may be the reason, whether it be inefficiency, dishonesty, failure to perform any or part of his duties, or for some other legitimate reason, the employer would be under a legal obligation to pay the employee for the full period of the contract.

The consideration for the written employment contract was the mutual covenants of the parties, i. e., Ingram was to perform “certain services” as manager of the district for which he was to be compensated at a rate stipulated. No one could deny that an integral part of this agreement would be the implied obligation on the part of Ingram to perform such services in a satisfactory manner. Indeed, the parties contemplated possible disagreements when they incorporated a provision in the agreement for arbitration of disputes.

Appellant cites no cases in support of his contention and we find no basis for it in law.

Our opinion in the first appeal of this case is decisive of the question in that we therein specifically held that the law did not deprive the employer of its right to terminate the contract for good cause. After holding the contract to be clear and unambiguous, we said:

“Appellant agreed with appellee that if it terminated appellee’s employment under the contract prior to the expiration of five years that it would be obligated to honor appellee’s claim for services for the remaining period of the contract. This, of course, contemplated a discharge by appellant without just cause. The law did not deprive appellant of its right to terminate the contract, and discharging appellee for good cause, such rule being duly recognized by the parties as well as the trial court in the submission of the case to the jury.”

Again, in the course of our opinion, we said:

“Our Texas courts have held that a contract of employment is not void as unilateral because, although the employer is bound for a definite period, the employee may terminate it at pleasure. The real basis for the decisions is the agreement on the part of the employer, implied in law, that he will not unjustly or wrongfully discharge the employee during the period of the contract.”

In discussing an employment contract for lifetime Justice Baugh, of the Austin Court of Civil Appeals, in Matlock v. Gulf, C. & S. F. Ry. Co., 99 S.W.2d 1056 (Tex.Civ. App., Austin 1936), pointed out that such lifetime contract would not relieve the employee from his duty to properly perform his labors and to observe the rules of the company in the same manner and to the same extent as would any other employee of the company. “It would carry with it no implication that he could not be discharged for good cause resulting from his own misconduct. Sinsheimer v. Edward Weil Co., 61 Tex.Civ.App. 209, 129 S.W. 187 (writ ref.); St. Louis, etc., Ry. Co. v. Morgan, 107 Ark. 202, 154 S.W. 518; 29 Tex.Jur. p. 29; 39 C.J. 84.”

It is to be observed that appellant directed no complaint in the trial court to the manner in which the issue was submitted nor does he now complain that the answer of the jury was not supported by competent evidence. We find that the court’s action in submitting the issue on good cause and in refusing to direct a verdict or render judgment non obstante veredicto was proper. Appellant’s points 1, 2 and 3 are overruled.

In his fourth point of error appellant contends that the court below should have granted his motion for judgment non ob-stante veredicto for the reason that Special Issue No. 1, as submitted by the court, and as answered by the jury, does not, as a matter of law, constitute a showing of “good cause” for termination of the employment contract. Appellant argues under this point that what constitutes sufficient cause for discharge of a servant is a question of law and not one of fact. He also argues that the definition of “good cause” given by the court is improper.

While it is true that in some cases the evidence may be such that good cause for discharge would be shown as a matter of law yet in the instant record we are not confronted by such a situation. The testimony adduced on the question of good cause for discharge is voluminous and conflicting in some particulars. This issue constituted the main battleground in the trial court. We find no basis for support of appellant’s contention that the issue was one of law and not one of fact.

The issue, and accompanying instruction, was submitted by the court without objection from appellant as to form or substance. Appellant did object to the court submitting Special Issue No. 1 on the ground that he was entitled to a judgment as a matter of law. As pointed out in our discussion in connection with appellant’s first three points of error this contention was untenable.

Appellant was under a duty and obligation to object to the issue and explanatory instruction on account of any defect, omission or fault. This should have been done prior to the court’s action in submitting the issue to the jury and since no objection as to form or substance was made it is thereby waived. Rule 272, Texas Rules of Civil Procedure.

We find no error reflected in the court’s action in submitting the issue, and explanatory instruction, as here given. Jay-Kay Paint Mfg. Co. v. Carter, 281 S.W.2d 453 (Tex.Civ.App., Austin 1955, writ ref’d n. r. e.), and Pan American College v. Rojas, 392 S.W.2d 707 (Tex.Civ.App., Corpus Christi 1965, no writ hist.).

In his fifth and last point of error appellant contends that since his damages were liquidated the court should not have submitted the special issue to the jury which inquired as to the damages suffered by appellant as a result of his being discharged. The answer of the jury to Special Issue No. 1 to the effect that appellee had good cause for discharging appellant would preclude appellant’s recovery of any amount of damages. Since we have held that the submission of this issue was proper, and since appellant does not assail the answer of the jury to Special Issue No. 1 as being lacking in support in the evidence, we need not consider the point raised concerning the amount of damages.

The judgment of the trial court is affirmed.

       This arbitration agreement was not implemented by either party prior to the institution of this action.


author: BARRON, Justice.

text:
    Mason SMITH et ux., Appellants, v. HUNTSVILLE INDEPENDENT SCHOOL DISTRICT et al., Appellees.
    No. 76.
    Court of Civil Appeals of Texas. Houston (14th Dist.).
    Feb. 28, 1968.
    J. Leonard Gotsdiner, Ranseler O. Wyatt, Houston, for appellants.
    J. G. Davis, Charles S. Davis, Wm. E. Hornbuckle, III, Davis, Davis & Horn-buckle, Huntsville, for appellees.
   BARRON, Justice.

This is a trespass to try title suit.

Appellants, Mason Smith and wife, Annie Smith, claim title to a one-acre tract of land, with improvements thereon, by deed dated July 7, 1966, from Mount Pleasant Methodist Church of Dodge. Appellees, Huntsville Independent School District and Manee Park, originally answered this suit on December 23, 1966. The court set the case for trial on the merits on June 5, 1967. Appellants filed their amended pleadings on May 24, 1967, and appellees, with leave of court, filed their amended answer on June 5, 1967, disclaiming as to a part of the real property involved and specifically claiming title to the improvements on a one-acre tract in answer to allegations of appellants that the property and the improvements thereon belonged to appellants, who specifically made claim to the improvements thereon in their amended petition. Appellants objected to the filing of the Second Amended Answer on which appellees went to trial on grounds of surprise and failure to file the pleadings at least seven days before trial. Appellants’ objections were overruled by the trial court, whereupon appellants filed a motion for continuance, which the trial court overruled.

At the conclusion of the evidence, the trial court rendered judgment for appellees and ordered that appellants take nothing as to the one-acre tract involved, and allowed appellees 60 days from final judgment to remove from appellants’ adjoining land so much of the school building as encroached upon appellants’ land. By reason of the disclaimer filed, appellants were awarded title to approximately two acres adjoining the one-acre school tract. From the judgment of the trial court, appellants have perfected their appeal.

By point of error appellants assert that the court erred in admitting a deed from J. R. Roark to Dodge Independent School District, recorded in Volume 18, page 124, of the Deed Records of Walker County, Texas, dated June 5, 1902. The deed involving the one-acre tract of land was to appellees’ predecessor in title. Claim is made that the deed was not filed at least three days prior to the trial and that Article 3726, Vernon’s Ann.Tex.St., mandatorily and exclusively governs conditions for receipt in evidence of recorded instruments without further proof. On May 31, 1967, the appellants filed in the suit a notice that the above mentioned deed would be introduced in evidence in their behalf without producing the originals thereof under Article 3726, but appellants failed to offer the deed in evidence. However, appellees introduced the original deed as an ancient instrument under the common law and Rule 184, T.R.C.P., after proof that the instrument of 1902 came from proper custody and was free from suspicion.

Article 3726 (formerly Article 3700) is a rule of evidence and authorizes the admission of certain instruments in evidence without the necessity of proving their execution upon compliance with such statute. That such statute is not an exclusive procedure cannot be doubted. An instrument which comes within the statute may nevertheless be proved as at common law, which Was done in this case under the ancient instrument rule. The trial court properly admitted the deed in evidence. Texas Law of Evidence, McCormick and Ray (2d Ed.), Vol. 2, Sec. 1276, p. 147; 19 Tex. Jur.2d, Sec. 76, p. 348 ; 23 Tex.Jur.2d, p. 393 and Sec. 275, p. 406 et seq.; Lamberida v. Barnum, 90 S.W. 698 (Tex.Civ.App.), writ dismd.; Emory v. Bailey, 111 Tex. 337, 234 S.W. 660, 18 A.L.R. 901; Williams v. Cruse, 130 S.W.2d 908 (Tex.Civ.App.), writ ref. See also Stone v. State, 171 Tex.Cr.R. 201, 346 S.W.2d 323. Because appellants themselves gave the required notice of introduction of the deed, and because the deed was proved as at common law, appellants’ point of error is overruled.

Further complaint is made by appellants that the trial court erred in requiring appellants to go to trial after appellees filed their amended pleading on the day of trial over appellants’ objections. Appellants’ unverified motion for continuance stated that counsel for appellants did not have the opportunity to read the contents and substance of appellees’ amended pleading to determine whether or not it would be necessary to file supplemental pleadings, and that under the circumstances a continuance should be granted. As stated above, ap-pellees in their answer merely disclaimed as to a portion of the property involved and included a specific answer to the question of ownership of the improvements on the property involved, which had already been pleaded fully by appellants. Appellants had specifically put the ownership of the improvements in issue.

No evidence was presented on the motion for continuance. The motion did not allege that the claimed new matter pleaded was untrue, or that appellants had a meritorious defense, or if given time, they would be able to present a good defense thereto. It did not refer to any witnesses or any other source from which it was contemplated that evidence could or would be secured to defeat the alleged new facts if time should be granted. We see no new matter alleged by appellees, but on the contrary, appellants’ position was improved by reason of the disclaimer. Moreover, at the hearing on the motion for new trial, no proof was made supporting appellants’ right to a continuance. The motion for continuance and supporting proof was wholly insufficient. Cummings v. Rice & Nichols, 9 Tex. 527 (Tex.Sup.); Citizens Mut. Life Ins. Ass’n v. Miles, 77 S.W.2d 717 (Tex.Civ.App.), no writ hist.; Texas Employers Ins. Ass’n v. Sanders, 265 S.W.2d 219 (Tex.Civ.App.), writ ref., n. r. e.; Ellen v. City of Bryan, 410 S.W.2d 463, 466 (Tex.Civ.App.), writ ref., n. r. e.; Rule 325, T.R.C.P.; 12 Tex.Jur.2d, Sec. 37, p. 596 et seq. Under the circumstances, the matter of a continuance was discretionary with the trial court and no harm in the ruling is shown. 3 McDonald Texas Civil Practice, Sec. 10.32; Rule 434, T.R. C.P.

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

Affirmed.


author: BATEMAN, Justice.

text:
    Sam PERRONE, Appellant, v. Stanley N. KLINE, Appellee.
    No. 17008.
    Court of Civil Appeals of Texas. Dallas.
    Jan. 26, 1968.
    Rehearing Denied March 1, 1968.

      Gene W. Schutze, Dallas, for appellant.
    Austin C. Bray, Jr., of Wynne, Jaffe & Tinsley, Dallas, for appellee.
   BATEMAN, Justice.

The ultimate question here is whether the lessor or the lessee is liable for the cost of repairing a gas leak under certain leased premises. The facts are undisputed and both parties moved for summary judgment. The appellee’s motion was sustained and that of appellant overruled. We affirm.

Appellee had leased certain premises to appellant for retail business use. The premises consisted of a store building and an adjoining parking area. A gas leak occurred under the asphalt paving of the parking area and appellant, deeming it an emergency situation endangering the premises and his customers, caused the leak to be repaired at his cost and sued appellee for reimbursement.

Pertinent portions of the lease were:

“3rd. That the Lessor shall at his expense maintain in good repair the roof, foundation and exterior walls of the building and parking area. The Lessee shall maintain all glass, including plate glass, and any special store front or equipment.
“Lessee agrees to give Lessor written notice of defects or need for repairs in roof, foundation or exterior walls of the building and parking area and Lessor shall not be liable to Lessee for any damage caused by same being or becoming out of repair until he has had reasonable opportunity to have same repaired after being notified of need of same by Lessee. * * *
“4th. That the Lessee shall at his expense keep the interior of the building, including the plumbing, closets, pipes and fixtures belonging thereto, in good repair; and shall take good care of the property and its fixtures and suffer no waste; and keep the water pipes and connections free from ice and other obstructions, to the satisfaction of the municipal or governmental authorities, during the term of this lease. * * * ” (Italics ours.)

The words “and parking area,” which we have italicized, were interlined with a typewriter in the printed form.

The parties agree that the contract is unambiguous, and it remains only to determine what they intended by the language used. Appellant’s position is that the language in the first paragraph of the “3rd” section, wherein appellee, as lessor, promised to “maintain in good repair the roof, foundation and exterior walls of the building and parking area,” obligated him to maintain in good repair the gas pipes lying beneath the paving of the parking area. We do not agree.

We think that when the parties added “and parking area” to the portions of the building coming within the ambit of the lessor’s responsibility they contemplated only the surface of that area, not conduits of gas, water or electric power that might lie beneath that surface. They did not speak of it as a lot or part of a lot; they did not describe it by metes and bounds; they merely described it as an area allocated to a certain use, that of parking, or temporarily storing vehicles on its surface. The presence or absence of gas pipes beneath the area was wholly immaterial to the contemplated use thereof. The lease did not specifically provide that the lessor should maintain those gas pipes in good repair, and we see nothing in the record before us to justify our implying such a covenant from the language used.

“In the absence of anything to show an agreement by the parties to the contrary, the lessor is not bound to make repairs on the portion of the premises over which he has no control. Nor is the lessor required to pay for repairs that may have been made by the lessee. * * * The tenant takes the premises as he finds them. A covenant by the lessor to make repairs is never implied.” 35 Tex.Jur.2d, Landlord and Tenant, § 82, p. 572, and authorities cited therein.

Not only would it have been the appellant’s responsibility to make the repairs in question at common law, but in our opinion it was made his duty to do so by the “4th” section of the lease, wherein he agreed at his expense to “keep the interior of the building, including the plumbing, closets, pipes and fixtures belonging thereto, in good repair; and shall take good care of the property and its fixtures and suffer no waste-, * * *.” (Italics ours.)

We think the leaking pipe was clearly within the definition of “plumbing” and “pipes and fixtures belonging thereto,” as used in the “4th” section of the lease. Vernon’s Ann.Civ.St., Article 6243-101, Sec. 2(a), defines “plumbing” as including “All piping, fixtures, appurtenances and appliances for a supply of water or gas, or both, for all personal or domestic purposes in and about buildings where a person or persons live, work or assemble; all piping, fixtures, appurtenances and appliances outside a building connecting the building with the source of water or gas supply, or both, on the premises, or the main in the street, alley or at the curb; * * (Italics ours.)

Moreover, in our opinion appellant breached that portion of the “3rd” section of the lease wherein he agreed to give appellee “written notice of defects or need for repairs in roof, foundation or exterior walls of the .building and parking area.” No such written notice was ever given. No notice of any kind was given to ap-pellee until the day after the leak was discovered, and then only orally while the repairs were being made.

Appellant endeavors to excuse his failure to give written notice on the ground that a serious emergency had suddenly arisen, one fraught with great danger to persons and property, leaving no time for writing letters to the landlord and waiting until he had had reasonable opportunity to have the leak repaired. However, appellant could have had the repairs made on an emergency basis, as he did, and still have given the written notice he had agreed to give. The emergency constituted no excuse for his failure to comply with the terms of the lease contract respecting notice. Therefore, for this additional reason we think the summary judgment for appellee was correct.

Appellant also contends -that the court erred in overruling his motion for summary judgment on the question of liability, leaving for separate trial the reasonableness of the repair charges. For the reasons hereinabove given in our decision that appellee was entitled to summary judgment, we hold that there was no error in overruling appellant’s motion.

The judgment appealed from is

Affirmed.


author: McDONALD, Chief Justice.

text:
    CITY OF WACO, Appellant, v. TEXLAND CORPORATION and W. M. Kelly, Appellees.
    No. 4687.
    Court of Civil Appeals of Texas. Waco.
    Feb. 21, 1968.
    Rehearing Denied March 14, 1968.
    Earl Bracken, Jr., City Attorney, Waco, for appellant.
    John F. Sheehy, Bryan, Wilson, Olson & Stem, D. M. Wilson, Waco, for appellees.
   OPINION

McDONALD, Chief Justice.

Plaintiffs Texland and Kelly filed separate suits against the City of Waco to recover damages to their properties, caused by the construction by the City of a viaduct on 17th Street, on which plaintiffs’ properties fronted. No properties of plaintiffs were physically appropriated by the City, but access to plaintiffs’ properties was impaired by the viaduct. The trial court consolidated such suits. Trial was to a jury which found that Texland’s property was damaged $9,500 and that Kelly’s property was damaged $6,000 by construction of the viaduct. The trial court rendered judgment for plaintiffs on the verdict.

The City appeals, contending “the trial court erred in awarding any monetary damage to plaintiffs, as all of the damages alleged and proved are damnum absque in-juria.”

The question presented is whether damages for the diminishment in value of plaintiffs’ property resulting from impairment of access is recoverable under Article I, Sec. 17 of the Constitution of Texas, Vernon’s Ann.St., which provides: “No person’s property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made * * * ft

The location of plaintiffs’ properties is superimposed on the Supreme Court’s diagram in the DuPuy case. Prior to construction of the viaduct, Texland fronted on 17th Street and sided on Mary, and Kelly fronted on 17th Street and sided on Mary. The viaduct elevated 17th Street above the properties, and left access to the front by a way under the viaduct between the supporting columns; but 17th Street dead ends at DuPuy’s property on the north, and between Jackson and Webster on the south. Plaintiffs’ properties have access to Mary Avenue, and the City contends that Mary Avenue furnishes adequate access to plaintiffs’ properties. Mary Avenue is primarily a railroad street, with the main line of the Cotton Belt Railroad running down the center, and with 2 switch tracks on each side. The record reflects that in order to load or unload goods in and out of plaintiffs’ building from Mary Avenue, it is necessary to block the main line of the Cotton Belt Railroad.

This Court and our Supreme Court have considered the problem presented in DuPuy v. City of Waco, Tex., 396 S.W.2d 103, and in Archenhold Auto Supply Co. v. City of Waco, Tex., 396 S.W. 2d 111. In such cases the rule is laid down that a physical taking of the property is not required under Article I, Sec. 17 of the Constitution of Texas to entitle the owner to compensation; and that the test for such compensation is whether the plaintiff is left with reasonable access to his property. It is further held that whether the property owner has been deprived of reasonable access is a question of law.

In the DuPuy case, supra, the Supreme Court held that “It is not enough that DuPuy can get to the system of public roads and the traveling public can get to his building. We are clear in the view that the construction of the viaduct has deprived DuPuy of reasonable access which entitles him to invoke the provision of the Constitution requiring the payment of compensation when property is damaged for a public use.” As noted on the diagram, DuPuy had access to the streets of Waco on the lower level of 17th Street through the concrete columns, and access through a paved alley to Franklin Avenue.

In the Archenhold case, supra, the Supreme Court held that the property of Archenhold was more favorably circumstanced than the property of DuPuy, and that Archenhold’s fronting on, and access to Franklin Avenue, left him with substantial and reasonable access. The court further held that “one of two public streets (on which a property owner is situated) may be closed without compensation to an abutting landowner if the remaining street furnishes suitable means of access.”

In the instant case, plaintiff’s access is poorer and more restricted than that óf Archenhold, and we think no better than that of DuPuy.

Archenhold had access on Franklin Avenue, in addition to the lower level of 17th Street. Plaintiffs here have access to Mary Avenue, in addition to the lower level of 17th Street (which terminates on each end in a cul de sac). But Franklin Avenue is a main and unobstructed thoroughfare; and Mary Avenue is impaired and obstructed by the presence of three railroad tracks. The impairment and obstruction of a street by the presence of railroad tracks on same is obvious, and is recognized by the Supreme Court in DuPuy, as well as in Gulf, C. & S. F. R. Co. v. Eddins, 60 Tex. 656. We think plaintiffs’ access by way of Mary Avenue unsuitable because of the presence of the railroad tracks.

From the record, we conclude that under the authorities cited, plaintiffs have been deprived of reasonable access to their properties. The City of Waco’s contention is overruled. Affirmed.


author: SELLERS, Justice.

text:
    James MASON, Administrator of the Estate of Willie Mae Mason Rickard, James Mason and Robert Mason, Appellants, v. E. D. SNIDER, Appellee.
    No. 318.
    Court of Civil Appeals of Texas. Tyler.
    Jan. 25, 1968.
    Rehearing Denied March 14, 1968.
    Phenix & Wilder, James N. Phenix, Henderson, for appellants.
    Gordon Wellborn and Rex Houston, Ken McConnico, Henderson, for appellee.
   SELLERS, Justice.

We take the following statement of the case from Appellee’s Brief:

“On September 27, 1964, an automobile driven by Don Rickard and containing his wife, Willie Mae Mason Rick-ard, struck the car driven by Mr. and Mrs. E. D. Snider. This was a rear end collision and the Sniders suffered serious and intensive injuries. A lawsuit was filed September 30, 1964, and the defendants were served with citation on October 2, 1964. The parties stipulated the damages in the sum of $3,000.00 and a judgment for this amount was pronounced and entered on April 27, 1965. * * * At the time of the collision, September 27, 1964, and at the time of service of citation, October 2, 1964, Willie Mae Mason Rickard owned an undivided interest in land in Rusk County, Texas. This land was under production and Willie Mae Mason Rickard was receiving income from the sale of the oil. The brothers of Willie Mae Mason Rickard, James Mason and Robert Mason, also owned undivided interest in the lands in question.
“On October 14, 1964, some twelve days after service of citation, the defendants in the suit for damages, Willie Mae Mason Rickard and husband, Don Rickard, signed a deed conveying all of the lands owned by Willie Mae Mason Rickard in Rusk County, Texas, to attorneys James N. Phenix, C. A. Keeling and Bill Wilder. The firm of Phenix, Keeling and Wilder held this land from October 14, 1964, until April 12, 1965, and then conveyed the lands made the subject of the October 14, 1964, conveyance to the brothers of Willie Mae Mason Rickard, James and Robert Mason. This conveyance of April 12, 1965, was pursuant to an agreement between James N. Phenix, James Mason, Robert Mason, Willie Mae Mason Rickard and Don Rickard whereby Mr. Phenix agreed to take the land and later reconvey it to James and Robert Mason.
“Willie Mae Mason Rickard and Don Rickard were married July 11, 1964, * * * and they were separated at the time of Willie Mae Mason Rickard’s death.
“To summarize the above sequence of events, we see Willie Mae Mason Rick-ard’s undivided interest in land deeded to Phenix, Keeling and Wilder after the petition was filed against her and twelve days after service of citation.
“After the above series of transactions, the $3,000.00 judgment held by E. D. Snider against Willie Mae Mason Rick-ard and Don Rickard, jointly and severally, remained totally unsatisfied and so remains at the present time. On March 13, 1965, Cause No. 25,936, E. D. Snider filed suit against Willie Mae Mason Rickard, James Mason and Robert Mason, seeking a foreclosure on his judgment lien on the undivided property of Willie Mae Mason Rickard and that the conveyances of October 14, 1964, (Willie Mae Mason Rickard to Phenix, Keeling and Wilder), and April 12, 1965, (Phenix, Keeling and Wilder to James and Robert Mason) be set aside as fraudulent. Willie Mae Mason Rickard died after the filing of the fraudulent conveyance suit and James Mason, Administrator of the Estate of Willie Mae Mason Rickard, was made a defendant in his capacity as administrator.”

The case was tried to a jury and resulted in a verdict and judgment for appel-lee.

On examining the petition of appellee in the trial court, it is found that the Warranty Deed is from Willie Mae Mason Rick-ard, joined in by her husband, Don Rick-ard, to James N. Phenix, C. A. Keeling and Bill Wilder. The only parties to that deed who are parties to this suit is the administrator of the Estate of Willie Mae Mason Rickard. Neither the husband of Willie Mae Mason Rickard nor the grantees in the deed are before this Court.

Likewise, the second Warranty Deed sought to be canceled is that from James N. Phenix, C. A. Keeling and Bill Wilder to James Mason and Robert Mason, the grantees. The only parties to this suit for the cancellation of that deed are the grantees — the grantors are not parties.

This Court is confronted at the outset with its jurisdiction to pass upon the merits of this appeal due to a lack of necessary parties defendant. The appellee realized that he had to cancel the above two deeds in order to subject the property to his asserted judgment lien.

It seems well settled in this State that one who seeks to cancel a deed must have all parties to the deed made parties in the suit before relief can be granted. Matthews et al. v. Landowners Oil Ass’n et al., Tex. Civ.App., 204 S.W.2d 647; Dial et al. v. Martin et al., Tex.Civ.App., 8 S.W.2d 241, T.J.2d, Vol. 261, page 443, Section 151. Such parties are necessary parties and a failure to join them in the suit is fundamental error of which this Court must take notice. T.J.2d, Vol. 44, page 237, Section 86:

“As a rule, lack of necessary parties is a fundamental error. It cannot be waived by any party and may be noticed at any stage of the proceedings. It is an issue that may be raised for the first time on appeal, and whether pleaded or not in the court below may be noticed by the appellate court even without assignment of error. * * * ”

For the lack of necessary parties to this suit, the judgment of the trial court is reversed and the cause is remanded.


author: PER CURIAM.

text:
    Dudley PARKER, Relator, v. J. Burns BROWN et al., Respondents.
    No. 389.
    Court of Civil Appeals of Texas. Tyler.
    March 11, 1968.
    Tyner & Bain, J. W. Tyner, Tyler, for relator.
    Boulter, Fowler & Tunnell, Joe Tunnell, Tyler, for respondents.
   PER CURIAM.

This is an original mandamus proceeding by which relator, Dudley Parker, seeks to compel the respondents, J. Burns Brown, Chairman of the Smith County Democratic Executive Committee, and the remaining members of the Committee, to certify his name to the County Clerk of Smith County, Texas, as a candidate for County Commissioner, Precinct No. 3, of said county in the democratic primary to be held on May 4, 1968. In his petition, relator avers that on the 5th day of January, 1968, he filed his application with J. Burns Brown, Chairman of the Democratic Executive Committee, seeking to have his name placed upon the ballot as a candidate for said office in accordance with the provisions of Article 13.12 of the Texas Election Code, V.A.T.S. and duly paid his filing fee as required by Article 13.07a of said Code.

He further alleged that on February 15, 1968, he received a letter from the Chairman of the Executive Committee, notifying him that the Committee had determined that he was “ineligible as a candidate due to residential requirements” and that his name would not be placed on the ballot. In his sworn petition, he further alleges that he is and has been a resident of Precinct 3, Smith County, Texas, for more than six (6) months prior to the date for the primary election on May 4, 1968, and for more than six (6) months prior to the last day for the filing of an application to have his name placed on the ballot, which was February 5, 1968.

Respondents do not deny that relator filed his application in accordance with the provisions of the Election Code and that the same was duly received by the Committee in due time. Respondents allege, however, that when the relator’s application was presented to the Executive Committee, one of the members of the Committee raised a question as to relator’s eligibility under the six-month residential requirement as set forth in Article 1.05 of the Texas Election Code. Thereupon, Chairman Brown and another member of the Committee, Earl White, called upon the relator for the purpose of questioning him with reference to the length of time he had resided in Precinct 3. According to the affidavits of Brown and White, relator stated to them that he had “moved” to Precinct 3 on December 7, 1967. Based upon this information, the Committee determined that relator was ineligible as a candidate “due to residential requirements.”

Relator’s application for permission to file a petition for writ of mandamus was granted by this court and thereafter arguments were heard.

Relator contends that since it is undisputed that his application was in due form and in compliance with the Election Code, the Executive Committee should be required to certify his name as a candidate. He takes the position that the Committee exceeded its authority in raising an issue of fact with respect to the length of his residency and then to summarily determine the issue.

Article 13.12, supra, provides that any person desiring to have his name placed upon the official ballot for a general primary election must make application to the Committee in writing, indicating the office for which nomination is sought, and whether for a full term or for an unexpired term. The application must also state the occupation, county of residence, age and post office address of the applicant, and must be signed and duly acknowledged by him. The Election Code does not require any statement with reference to the length of his residency in the precinct.

It is without dispute that relator’s application complied with the Election Code in every respect.

The sworn pleading, together with the attached affidavits, raises an issue of fact upon the question of relator’s eligibility under the provisions of Article 1.05, supra. If this was the only issue presented, mandamus would be denied because we have no authority to issue a writ of mandamus where an issue of fact exists. But this is not the question presented here. What we are called upon to determine is the legal question of whether or not the Democratic Executive Committee was clothed with the power to go behind relator’s application and raise the issue of eligibility and then to determine such issue.

Similar cases involving the question of whether the Executive Committee may contradict statements of fact set forth in the application have heretofore been before the appellate courts of this state. In each instance, the courts have held that the Executive Committee has no authority to raise and determine an issue of fact by contradicting the allegations of the application and then deciding the issue so raised. Baker v. Porter, 160 Tex. 488, 333 S.W.2d 594; Perris v. Carlson, 158 Tex. 546, 314 S.W.2d 577.

In Baker v. Porter, supra, the Supreme Court said:

“ * * * While there is no showing in this record that the respondents did not act in good faith, we think it would be an unwise public policy to permit Executive Committees of political parties to raise and determine such a disputed issue of fact. That issue should be judicially determined. * * * ”

It is clear from the record before us that the Executive Committee attempted to go beyond the application and determine relator’s eligibility, and in so doing raised and determined the fact question of residency. The question of residence or domicile is usually a rather complicated question, involving a mixed question of law and fact, which we think the Committee has not the power to determine.

In Mills v. Bartlett et al., Tex., 377 S.W.2d 636, the Supreme Court of this state said:

“The term ‘residence’ is an elastic one and is extremely difficult to define. The meaning that must be given to it depends upon the circumstances surrounding the person involved and largely depends upon the present intention of the individual. Volition, intention and action are all elements to be considered in determining where a person resides and such elements are equally pertinent in denoting the permanent residence or domicile. Owens v. Stovall, Tex.Civ.App., 64 S.W.2d 360, writ refused; Prince v. Inman, Tex.Civ. App., 280 S.W.2d 779, no writ history; In re Garneau, 7 Cir., 127 F. 677, 679.”

In applying the foregoing rules of law to the particular facts before us, it appears to us that it would be an unwise public policy to permit the Executive Committee to go beyond and outside the application, as prescribed by law, and raise and determine some issues of fact foreign to the application. Ramsey v. Marlowe (Tex.Civ.App.), 376 S.W.2d 438.

It occurs to us that the question of whether or not relator had resided in the precinct for a sufficient length of time to establish his eligibility is a fact question which would be judicially determined in accordance with the provisions of Article 1.07, Texas Election Code, V.A.T.S., as amended.

Subject to relator tendering the proper filing fee, the writ of mandamus will issue directing the respondents to submit the name of Dudley Parker as a candidate for the office of Commissioner, Precinct 3, upon the list of candidates to be certified to the County Clerk of Smith County, Texas, unless in the meantime, it should be judicially determined that relator is ineligible to be a candidate for such office.

On account of the emergency due to the near approach of the time for printing the ballots for the May primaries, the parties will not be permitted to file a motion for rehearing.